Filed 6/6/16 Dahlin v. Bank of America CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JULIE DAHLIN, D067955
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2014-00082352- CU-BC-CTL) BANK OF AMERICA, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Timothy B. Taylor, Judge. Affirmed in part, reversed in part.
Janis L. Turner Law Offices and Janis L. Turner for Plaintiff and Appellant.
Reed Smith, Michael Gerst, Elena Gekker, and Kasey J. Curtis for Defendants and
Respondents.
Plaintiff and appellant Julie Dahlin took out a loan to refinance her home in 2004.
In early 2011, Dahlin received a notice of default of the loan. Dahlin subsequently filed
this action alleging, among others, causes of action for breach of contract, fraud, violation
of statute and declaratory relief. Dahlin appeals a judgment of dismissal entered after the trial court sustained,
without leave to amend, a demurrer brought by defendants Bank of America, et al. (Bank
of America) against Dahlin's second amended complaint (SAC). Dahlin contends:
(1) the demurrer did not meet the requirements of Code of Civil Procedure section
430.60, (2) the complaint alleges facts sufficient to sustain the alleged causes of action,
and (3) the court erred by not granting leave to amend. We affirm the judgment of
dismissal of Dahlin's SAC without leave to amend with respect to the fraud, violation of
statute and declaratory relief causes of action but reverse as to the breach of contract
cause of action.
FACTUAL AND PROCEDURAL BACKGROUND
Because this appeal arises from the sustaining of a demurrer, we summarize the
underlying facts stated in the SAC, accepting as true the properly pleaded factual
allegations and judicially noticed facts. (See Debrunner v. Deutsche Bank National Trust
Co. (2012) 204 Cal.App.4th 433, 435-436.)
Factual Allegations in Dahlin's SAC
In 2004, Dahlin took out a loan for $265,000 to refinance her home. Thereafter,
Dahlin made timely payments each month on the mortgage. In January 2009,
Countrywide, the loan servicer, contacted Dahlin and offered her a loan modification to
lower her interest rate and monthly payments. Dahlin agreed and Countrywide sent her a
loan modification agreement, which she promptly signed and returned to Countrywide.
Countrywide completed execution of the agreement and subsequently confirmed the
payment instructions for the modified loan over the phone and in writing. In the
2 following months, Dahlin made the required payment each and every month as required
under the modified loan.
Bank of America acquired Countrywide and, in May 2009, a representative of
Bank of America called Dahlin to inquire about late payments. After Dahlin informed
the representative she had been making her payments, the representative confirmed she
could see Dahlin was making the payments but written notes regarding the loan
modification appeared in the wrong place and information regarding the lower payment
amount had not been properly updated in the computer. Despite mailing her payment
each month, Dahlin continued to receive calls from Bank of America inquiring when she
would make up the difference in her payments. Each time, after Dahlin explained the
situation, the representative would confirm the modification appeared in the computer
and the problem would be fixed.
In January 2011, Bank of America sent Dahlin a notice stating they could not
accept her December 2010 payment because it was for the wrong amount and, shortly
thereafter, sent Dahlin a notice of default and a notice of trustee sale. In November 2011,
Bank of America filed a new notice of trustee sale and, in June 2012, Dahlin filed a
lawsuit to stop foreclosure. Dahlin and Bank of America then entered into a settlement
whereby Bank of America would grant a new loan modification. Bank of America
provided documentation to Dahlin to provide necessary information to Bank of America's
loan modification department and, after some delay, she returned the documentation in
May 2013. From there on, Dahlin did not have any contact with Bank of America until a
notice of trustee sale was posted in December 2013. On December 31, 2013, Dahlin
3 received a letter from a customer relationship manager at Bank of America informing
Dahlin that she would be her dedicated single point of contact concerning the foreclosure
process.
Dahlin's Complaints and Bank of America's Demurrers
Dahlin filed her original complaint in the present case on January 7, 2014,
asserting the following causes of action: (1) breach of contract; (2) breach of covenant;
(3) fraud; (4) violation of statute; (5) quiet title; (6) specific performance; and (7)
declaratory relief. Bank of America demurred and the court sustained the demurrer with
leave to amend, noting key portions of the complaint were unintelligible and instructing
Dahlin's counsel to proofread her future submissions to the court. In response, Dahlin
filed a first amended complaint (FAC)—a redlined version of the original complaint
which added a number of factual allegations and contentions. Bank of America demurred
again, and the court again sustained the demurrer, this time instructing Dahlin's counsel
to carefully read two cases cited by the court and to file a focused, carefully drafted SAC
that did not contain redlines or strikeouts.
Dahlin filed her SAC, incorrectly titled third amended complaint, on
November 17, 2014 and, despite the court's instruction, it still contained redlines and
strikeouts. The SAC made additional factual assertions, including that Dahlin made all
payments under the original loan modification until Bank of America breached the
agreement by refusing to accept her payment and foreclosing on the property, and deleted
the causes of action for breach of covenant, quiet title, and specific performance. The
4 remaining causes of action in the SAC were: (1) breach of contract, (2) fraud, (3)
violation of statute, and (4) declaratory relief.
Bank of America demurred to all four causes of action and argued: (1) Dahlin
failed to present facts sufficient to state a claim for breach of contract, fraud, violation of
statute or declaratory relief, (2) Dahlin's breach of contract claim was barred by the
statute of frauds; (3) Dahlin's fraud claim was time-barred; (4) Dahlin added a statute to
her violation of statute cause of action without leave to do so; and (5) the court should not
give Dahlin additional leave to amend.1 The court sustained the demurrer without leave
to amend, explaining Dahlin still did not plead the elements of breach of contract or
violation of statute, Dahlin did not plead fraud with the requisite specificity, and, because
Dahlin failed to plead the other causes of action, no actual controversy existed between
the parties to support declaratory relief. In denying leave to amend, the court explained
Dahlin's pleadings indicated she was unable to state a valid cause of action.
DISCUSSION
On appeal, Dahlin argues (1) the demurrer did not meet the requirements of Code
of Civil Procedure section 430.60, (2) the complaint alleges facts sufficient to sustain the
alleged causes of action, and (3) the court erred by not granting leave to amend. We
conclude the demurrer meets the requirements of Code of Civil Procedure section 430.60
and the court properly dismissed the causes of action for fraud, violation of statute and
1 Bank of America also asked the court to take judicial notice of two recorded documents: (1) a deed of trust, dated September 16, 2004 related to the property at issue and (2) a substitution of trustee, dated January 20, 2011. The court granted Bank of America's request. 5 declaratory relief without leave to amend, but the SAC does plead facts sufficient to
sustain a cause of action for breach of contract.
I
STANDARD OF REVIEW
We review a judgment of dismissal based on an order sustaining a demurrer de
novo, exercising our own independent judgment to determine whether the complaint
states sufficient facts to constitute a cause of action or a right to the relief requested. (Los
Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 650; Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.) We read the pleading as a whole and assume the
truth of the facts properly pleaded by the plaintiff, as well as those that are judicially
noticeable. (Ibid.) We also consider evidentiary facts found in exhibits attached to a
pleading (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94), and facts found in any
attached written instrument control over inconsistent allegations made in the pleadings.
(Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955.) However, we
do not admit plaintiff's contentions, deductions or conclusions of law or fact. (Blank,
supra, at p. 318.)
We may affirm the judgment on any ground apparent from the record, regardless
of the grounds upon which the trial court sustained the demurrer. (Carman v. Alvord
(1982) 31 Cal.3d 318, 324; Blue Chip Enterprises, Inc. v. Brentwood Savings & Loan
Assn. (1977) 71 Cal.App.3d 706, 712.)
6 II
BANK OF AMERICA'S DEMURRER MEETS THE REQUIREMENTS OF CODE OF CIVIL PROCEDURE SECTION 430.60
Dahlin argues the "Notice" here is deficient under Code of Civil Procedure section
430.60 because it fails to distinctly specify the grounds upon which Bank of America
bases its objections and, because counsel represents multiple parties, it is unclear on
whose behalf the demurrer is brought. We disagree.
Code of Civil Procedure section 430.60 states, in its entirety: "A demurrer shall
distinctly specify the grounds upon which any of the objections to the complaint, cross-
complaint, or answer are taken. Unless it does so, it may be disregarded." The SAC
names "Bank of America, as successor in interest to [Countrywide and a number of other
financial institutions] and DOES 1 through 25" as defendants. The demurrer expressly
states it was filed on behalf of "Bank of America, N.A., as successor by merger to [the
correct Countrywide entity and the remaining named financial institutions]." With
respect to the grounds upon which Bank of America bases its demurrer, the memorandum
of points and authorities in support of the demurrer lays out Bank of America's legal
arguments, specifying each separate ground for the demurrer. Dahlin appears to argue
the notice of the demurrer itself, as opposed to the accompanying memorandum of points
and authorities, lacks sufficient detail but the notice expressly and properly relies upon
the memorandum. We therefore conclude the demurrer meets the requirements of Code
of Civil Procedure section 430.60.
7 III
SPECIFIC CAUSES OF ACTION
We turn next to the substantive arguments regarding each alleged cause of action
to which Bank of America demurs.
A. Dahlin Does Plead Facts Sufficient to State a Claim for Breach of Contract
The first cause of action in the SAC is breach of contract. In order to state a claim
for breach of contract, the plaintiff must allege: (1) the existence of a contract; (2)
plaintiff's performance or excuse for nonperformance; (3) breach; and (4) that the breach
caused the plaintiff harm. (Wall Street Network Ltd. v. New York Times Co. (2008) 164
Cal.App.4th 1171, 1178.)
Here, Dahlin discusses two contracts, the 2009 loan modification agreement and a
later loan modification proposed by Bank of America in 2012 in response to Dahlin's
previous lawsuit. With respect to the 2012 loan modification proposal, the SAC does not
contain factual allegations establishing the existence of a written agreement between the
parties, Dahlin's performance of her obligations under any such agreement, or specific
factual allegations regarding Bank of America's breach of any such agreement. As such,
we agree that Dahlin has not plead facts sufficient to state a cause of action for breach of
contract with respect to the 2012 loan modification proposal. However, with respect to
the allegations concerning breach of the 2009 loan modification agreement, we conclude
the SAC has sufficiently pled the elements of a breach of contract cause of action.
The SAC alleges Dahlin and Countrywide, a predecessor to Bank of America,
entered into a written loan modification agreement, Dahlin performed under the
8 agreement by submitting the required payments each month, Bank of America breached
by refusing to accept her payments and foreclosing, and Dahlin was damaged as a result.
In sustaining the demurrer, the court explained conclusory allegations of breach are
insufficient to state a cause of action and pointed to language in the SAC alleging
"defendants 'either directly or indirectly' breached the contract, 'through the actions of
others' by either 'refusing to perform its conditions or transferring the loan.' " While we
agree this conclusory language is insufficient to support a cause of action for breach of
contract, the SAC also includes specific factual allegations regarding the breach; the SAC
alleges Dahlin made all required payments until Bank of America "unilaterally breached
the contract by its refusal to accept payments and its foreclosure on the property." This
language, along with the other factual allegations in the SAC, is not merely conclusory
and is sufficient to support a cause of action for breach of contract.
Bank of America also argues the demurrer is proper because the 2009 loan
modification agreement attached to the SAC is not sufficient to satisfy the statute of
fraud, and the trial court noted, in sustaining the demurrer, the attached 2009 loan
modification agreement is incomplete, Dahlin's signature and the date are unclear, and the
agreement is not signed by defendants. The court properly sustains a demurrer when the
complaint establishes on its face the allegedly breached agreement is subject to the statute
of frauds and the agreement does not satisfy the statute of frauds. (Malerbi & Associates
v. Seivert (1961) 191 Cal.App.2d 760, 763; Parker v. Solomon (1959) 171 Cal.App.2d
125, 136.) Here, the SAC does not establish on its face the agreement does not satisfy the
9 statute of frauds and, instead, includes factual allegations sufficient to establish the
existence of a fully executed written agreement.
Dahlin alleges she signed the agreement and sent it back to the bank, and the bank
thereafter completed execution and acknowledged the existence of the contract on several
occasions. The document Dahlin sent back to the bank, with her signature alone, is
attached to the SAC as Exhibit G. While the document is not signed by the bank and
does appear to be missing one or two pages, the SAC asserts the bank executed the
agreement as well and the included pages establish the existence of a contract—a loan
modification agreement between Dahlin and Countrywide Home Loan Servicing LLP;
Dahlin's main obligation under that contract—a monthly payment beginning on March 1,
2009, in the amount of $1,234.46 and not subject to change until March 2010; and, the
obligations in the deed of trust that Bank of America allegedly breached. Specifically
regarding Bank of America's obligations, section 9 of the 2009 loan modification
agreement states "[e]xcept as otherwise specifically provided in this Agreement, the Note
and [deed of trust] will remain unchanged, and . . . the Lender will be bound by, and
comply with, all terms and provisions thereof." At Bank of America's request, the court
took judicial notice of the deed of trust, which indicates Bank of America had the right to
accelerate if Dahlin defaulted on the loan, which the SAC asserts Dahlin did not do.
Bank of America also argues the breach of contract claim is time-barred on its face
because a Bank of America representative first contacted Dahlin in May 2009 regarding
deficiencies in her loan and Dahlin did not file her initial complaint until January 2014,
after the four-year statute of limitations for breach of contract had run. Where a demurrer
10 raises the bar of the applicable statute of limitations, the defect must be clear on the face
of the document; it is not enough that the action may be time-barred based on the
allegations. (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308,
1315-1316.) Here, in May 2009, the representative assured Dahlin the only problem was
with Bank of America's computer system, and not Dahlin's loan. The SAC does not
allege a breach occurred in 2009, but rather in 2011 when Bank of America refused
Dahlin's payment and proceeded with foreclosure. Thus, there is no statute of limitations
defect clear on the face of the SAC.
We therefore conclude the SAC taken as a whole, along with the attachments and
judicially noticed documents, pleads facts sufficient to state a cause of action for breach
of contract.
B. Dahlin Does Not Plead Facts Sufficient to State a Claim for Fraud
The second cause of action in the SAC is fraud. Fraud remains one of the causes
of action with a heightened pleading standard, requiring a plaintiff to set forth specifically
how, when, where, to whom and by what means the defendant made the underlying false
representations. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (Lazar).) The
court does not invoke the typical policy of liberally construing pleadings against a
demurrer to sustain a fraud cause of action where the complaint fails to set forth such
specific allegations. (Ibid.) Thus, "every element of the cause of action for fraud must be
alleged in full, factually and specifically." (Wilhelm v. Pray (1986) 186 Cal.App.3d
1324, 1331.) To state a fraud cause of action, Dahlin must adequately allege (1) a
11 misrepresentation as to a material fact; (2) knowledge of its falsity; (3) intent to defraud;
(4) justifiable reliance; and (5) resulting damage. (See Lazar, supra, at p. 638.)
Dahlin fails to meet the heightened pleading standard for fraud. First, the SAC
does not specify who made which misrepresentations with knowledge of falsity or which
misrepresentations Dahlin relied on to her detriment. The SAC references statements
made by several different Bank of America employees in the background section and
under the fraud cause of action and then alleges, "Defendant knew that these
representations were false or made them with reckless disregard for their truth or falsity,"
and "they" knew or should have known "they" planned to transfer the loan to someone
that would not honor it, apparently referring to the statements made by Countrywide
representatives regarding the 2009 loan modification. These allegations are primarily a
formulaic recitation of the elements of a fraud cause of action and do not meet the
heightened pleading requirements. (See Lazar, supra, 12 Cal.4th at p. 645.) Further, the
SAC contains no factual allegations supporting the conclusory assertion Countrywide, or
any of its individual employees, somehow knew it would later transfer the 2009 loan
modification agreement to Bank of America and Bank of America would subsequently
fail to perform under the agreement. Finally, the SAC notes the employees Dahlin spoke
with were different and often would not give their names but this does not exempt Dahlin
from the requirement to plead fraud with specificity. Dahlin could have used descriptions
or DOES to identify the individuals even if she did not know their given names. Based
on the foregoing, we conclude the court properly sustained the demurrer as to the fraud
12 Bank of America also asserts the cause of action for fraud is time-barred. As we
find the court properly sustained the demurrer with respect to Dahlin's cause of action for
fraud, we need not address whether the statute of limitations also bars the claim.
C. Dahlin Does Not Plead Facts Sufficient to State a Claim for Violation of Statute
The third cause of action in the SAC is violation of statutes. The SAC references
Civil Code2 sections 2923.5, 2923.55, 2923.6 and 2923.7 but fails to allege facts
establishing a violation of any of these statutes.
Sections 2923.5 and 2923.55 require a loan servicer to contact the borrower to
assess the borrower's financial situation and explore options for the borrower to avoid
foreclosure at least 30 days before filing a notice of default. They do not require the
lender to modify the loan. (Stebley v. Litton Loan Servicing, LLP (2011) 202
Cal.App.4th 522, 526.) As of January 1, 2013, section 2923.6 requires loan servicers to
offer borrowers any workout plan or loan modification that is consistent with the
servicer's contractual or actual authority before recording a notice of default or notice of
sale or conducting a trustee's sale. Also as of January 1, 2013, section 2923.7 requires
the mortgage servicer to establish a single point of contact for borrowers who request a
foreclosure prevention alternative.
Here, the SAC does not sufficiently allege a violation of sections 2923.5, 2923.55,
2923.6 or 2923.7. The SAC first asserts Bank of America was obligated to contact
Dahlin to assess her finances and explore foreclosure avoidance options and "Defendant
2 Unless otherwise noted, all future statutory references are to the Civil Code. 13 has failed to abide by this Code requirement." This conclusory assertion does not
establish a violation and, regardless, the SAC establishes on its face Bank of America did
contact Dahlin regarding a second loan modification sometime between June 2012 and
May 2013. The SAC next alleges Bank of America violated "the statute . . . because they
did not handle the modification in good faith in that they negotiated it knowing or likely
knew that the modification was in place and executed a plan to transfer the loan to
another lender to escape the requirements of the Code." Such assertions, which appear to
relate to the negotiation of the original loan modification in 2009, cannot support a cause
of action for violation of sections 2923.6 or 2923.7 because they were not in effect before
2013. (See Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047,
1056.) Further, sections 2923.5, 2923.55, 2923.6 and 2923.7 relate to a process by which
banks are to explore foreclosure avoidance and do not address the loan servicer's
performance, or lack thereof, under a fully executed loan modification agreement.
Finally, the SAC asserts Bank of America refused or was unable to connect plaintiff with
the designated contact in violation of its statutory obligations. However, the SAC also
acknowledges Bank of America subsequently provided a new contact and includes a
letter designating such an individual which appears on its face to comply with the statute.
The SAC does not include factual assertions sufficient to establish how Bank of
America allegedly violated any of the cited statutes and, instead, shows on its face that
Bank of America met the referenced statutory obligations. As such, the SAC fails to
plead facts sufficient to state a cause of action related to the violation of any statute.
14 D. Dahlin Does Not Plead Facts Sufficient to State a Claim for Declaratory Relief
The fourth and final cause of action in the SAC is declaratory relief. A party to a
written instrument or contract may seek a declaration of his or her rights or duties where
an actual controversy involving justiciable questions as to such rights or duties exists
between the parties. (Code Civ. Proc., § 1060.) A complaint for declaratory relief must
set forth facts establishing such an actual controversy and must request the court
adjudicate the rights and duties of the parties under dispute. (Columbia Pictures Corp. v.
DeToth (1945) 26 Cal.2d 753, 760.) Declaratory judgment is proper where it serves
some practical end in stabilizing an uncertain or disputed legal relationship between the
parties, such as serving to guide the future conduct of the parties. (Meyer v. Sprint
Spectrum L.P. (2009) 45 Cal.4th 634, 647.)
Here, the trial court found no actual controversy existed between the parties
because the other causes of action failed. As we have established, the SAC does plead
facts sufficient to establish a cause of action for breach of contract such that there is an
actual controversy between the parties. However, we conclude the allegations in the
SAC are nevertheless insufficient to support a cause of action for declaratory relief.
The SAC alleges a dispute has arisen "as to the duties and obligations of the
respective parties with regard to the loan and/or foreclosure," the dispute concerns "the
ownership and/or rights under the loan modification and or [sic] settlements entered into
between Plaintiff and Defendants and their principals together with the obligation of
Defendant pursuant to Civil Code § 2827.4 et seq.," and "a declaration of rights and
duties of the parties herein by the court is essential to determine the actual status and
15 validity of the loan and any rights duties and/or obligations as to the enforcement of it."
Neither the cause of action for declaratory relief nor the prayer for relief request a
declaration regarding any particular question pertaining to the rights or duties of the
parties with respect to any underlying agreement. The SAC therefore does not establish
what declaratory relief Dahlin seeks, what future rights or obligations Dahlin is asking
the court to address, or whether the requested relief relates to the actual controversy
surrounding the alleged breach of the 2009 loan modification agreement. Further, to the
extent the SAC seeks to have the court determine whether Bank of America has already
breached the 2009 loan modification agreement, declaratory relief is not necessary. (See
Osseous Technology of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191
Cal.App.4th 357, 366 [no basis for declaratory relief where only past wrongs are
involved]; 5 Witkin, Cal. Procedure (2016 supp.) Pleading, § 869, p. 21.) As such, we
affirm the trial court's sustaining of the demurrer with respect to the cause of action for
declaratory relief.
E. Breach of Covenant, Quiet Title and Specific Performance
Finally, Dahlin presents arguments regarding causes of action for breach of
covenant, quiet title and specific performance, none of which are asserted in the SAC.
When a plaintiff amends their complaint after the court sustains a demurrer with leave to
amend, the plaintiff waives their right to challenge the validity of the ruling on that
demurrer. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966, fn. 2.)
Here, Dahlin previously asserted breach of covenant, quiet title and specific
performance causes of action in her original complaint and FAC, but the court sustained
16 demurrers to both, and Dahlin subsequently deleted these causes of action from the SAC.
Bank of America therefore did not demur with respect to these causes of action, Dahlin
did not raise them in her opposition to the demurrer, and the court did not address them in
its order sustaining the demurrer. Dahlin cannot now resurrect these claims on appeal
and, even if she could, the SAC, having been stripped of the allegations concerning these
causes of action, does not include factual allegations sufficient to state a claim for breach
of covenant, quiet title or specific performance.
VI
LEAVE TO AMEND
The trial court has abused its discretion if it sustains a demurrer without leave to
amend where there is a reasonable possibility the defect can be cured by amendment.
(Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78.) On appeal, the
burden is on the plaintiff to demonstrate how he or she could amend the complaint in
order to avoid dismissal. (Hendy v. Losse (1991) 54 Cal.3d 723, 742 (Hendy).)
Dahlin had not one but two chances to amend her complaint prior to the demurrer
from which she now appeals. The trial court even offered suggestions as to how Dahlin
might do so. On appeal, Dahlin makes a generalized argument regarding leave to amend
but does not describe any new or more specific facts, or explain how any new or more
specific facts would allow her to cure the defects in her complaint. As such, we do not
find the court abused its discretion in refusing Dahlin leave to amend her complaint.
(Hendy, supra, 54 Cal.3d at p. 742.)
17 DISPOSITION
The judgment of dismissal is reversed. This matter is remanded to the trial court
with instructions to enter a new order denying the demurrer as to the breach of contract
cause of action. The court's order sustaining the demurrer to the causes of action for
fraud, violation of statute and declaratory relief without leave to amend is affirmed. The
parties are to bear their own costs on appeal.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.