Judgment rendered September 22, 2021. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,095-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
DONALD R. MODICUE Plaintiff-Appellee
versus
PRINCE OF PEACE AUTO SALE, Defendant-Appellant LLC
Appealed from the Monroe City Court for the Parish of Ouachita, Louisiana Trial Court No. 2019-CV-04012
Honorable Tammy D. Lee, Judge
BRIGETTE SWAYZER Agent for Appellant
OFFICE OF ANTHONY J. BRUSCATO Counsel for Appellee By: Anthony J. Bruscato
Before THOMPSON, ROBINSON, and HUNTER, JJ. ROBINSON, J.
Defendant, Prince of Peace Auto Sale, LLC, by and through its agent,
Brigette Swayzer, appeals a judgment by the Monroe City Court in favor of
Donald Modicue awarding damages and attorney fees totaling $7,591.78.
We AFFIRM the judgment, but AMEND to remove the award of general
damages and to include a credit to the seller.
FACTS
The plaintiff, Donald Modicue (“Modicue”), purchased a used 2008
Ford Fusion from the defendant, Prince of Peace Auto Sale, LLC (“Prince of
Peace”), the sole member/owner of which is Brigette Swayzer (“Swayzer”),
on April 13, 2019, for a sale price of $3,995.00. Modicue paid a $1,500.00
down payment and the balance was financed at a 29.9% interest rate payable
to Prince of Peace.
Modicue test drove the vehicle prior to purchase, but claims that he
did not reach any high speed. At the time of purchase, the vehicle had only
one minor issue disclosed, a broken interior door handle. Swayzer promised
to have the door handle repaired and sent representatives to do so, but they
were apparently unable to. According to Modicue, immediately following
the purchase, the car began to develop more problems. Once, when he was
operating the car at a higher rate of speed, the engine began to shake. This
led to the discovery of a defective motor mount which Swayzer promised to
reimburse him for. Other issues with the car included: a failed battery and
alternator, power steering malfunction, and oil leak. These issues allegedly
resulted in the car being in and out of the shop with Modicue having little
use of it, as well as Modicue having to pay for these repairs. After five months of owning the car, Modicue missed several car
payments (it is disputed the exact number missed or late). Modicue then
sued Swayzer seeking rescission of the sale and damages, alleging that the
vehicle had multiple defects. Swayzer in turn seized the car for Modicue’s
failure to make payments. On July 7, 2020, the Monroe City Court rendered
judgment in favor of Modicue, granting rescission of the sale based on a
redhibition claim, and awarding special damages of $3,591.78, general
damages of $1,500.00, and attorney fees of $2,500.00, for a total damage
amount of $7,591.78, with Prince of Peace maintaining possession of the
vehicle.
Prince of Peace, by and through its agent, Swayzer, now appeals,
arguing that the car was in operating condition when sold and was sold “as
is,” and Prince of Peace should not be held responsible for any unknown
defects. She also claims that Modicue’s claims are inaccurate in an attempt
to avoid responsibility for the payments, and further, that she should be
credited for Modicue’s use of the vehicle during his possession.
DISCUSSION
Several issues were raised on appeal, primarily whether the court
committed manifest error in granting rescission of the vehicle sale due to a
redhibitory defect when there was an “as is” sale, basing its finding on
credibility. Other issues include the appellant’s assertion of bias, and
whether there is jurisdiction over the appeal based on an untimely appeal.
The claim of bias is unfounded and warrants no further discussion. This
Court first addresses the issue of jurisdiction and whether the appeal is
timely in order to proceed with any discussion regarding the validity of the
rescission. 2 Jurisdiction – Untimely Appeal
“An appeal from a judgment rendered by a city court or a parish court
may be taken only within ten days from the date of the judgment or from the
service of notice of judgment, when such notice is necessary.” La. C.C.P.
art. 5002. In Myles v. Turner, 612 So. 2d 32 (La. 1993), the Louisiana
Supreme Court stated that “we hold that the 10-day appeal delay provided
for in La. Code Civ. Proc. Art. 5002 commences to run upon receipt of
notice of judgment rather than upon the mere mailing of said notice.”
In this case, a notice of judgment was mailed by the Monroe City
Court to Prince of Peace, through its agent, Swayzer, to the business address
of 1619 South Grand Street, Monroe, LA 71202, on November 9, 2020, as
evidenced by a certificate of mailing. The notice of judgment was stamped
with that same date. Swayzer’s motion for suspensive appeal was filed on
December 3, 2020, which was 24 days following the mailing of the
judgment. An order granting Swayzer’s appeal was entered and filed on
December 7, 2020.
There is a presumption in Louisiana that “[w]hen a letter has been
properly addressed, stamped and mailed it is presumed to reach the
addressee.” Ragas v. Social Security Admin., 99-2684, (E.D. La. March 1,
2002), 2002 WL 362816. It is presumed that the judgment was mailed since
the certificate of mailing was executed by a deputy clerk and is part of the
record, and the address listed on the certificate is what was provided by
Swayzer. Since the notice was properly addressed, stamped, and mailed, it
is presumed to have reached Swayzer at some point. However, there is
nothing in the record showing that the notice of judgment was sent via
certified or registered mail, or some other delivery service in which receipt is 3 acknowledged; therefore, it is uncertain the exact date on which notice of the
judgment was received by Swayzer.
Modicue argues this Court lacks jurisdiction due to an untimely
appeal, but provides no evidence to support this argument. There were no
certified mail receipts or any receipt acknowledgments to show receipt by
Swayzer. The record reflects that the motion for appeal sent to Prince of
Peace and Modicue, and the notice of appeal sent to the Judicial
Administrator, Louisiana Second Circuit Court of Appeal, Modicue, and
Prince of Peace, were all delivered via certified mail and included delivery
acknowledgments for all recipients. It is puzzling that there would be no
delivery acknowledgement for the very document for which it would be
most useful, since there is a specific delay applicable to the service of the
judgment.
The facts in Smith v. Winn-Dixie Louisiana, Inc., 626 So. 2d 750 (La.
App. 5 Cir. 1993), are very similar to those in this matter. The trial court
had rendered judgment against Winn-Dixie and notice of the judgment was
mailed to counsel of record for both parties on November 13, 1992. Winn-
Dixie suspensively appealed the judgment on December 9, 1992, 26 days
later. Id. The Fifth Circuit issued an order, sua sponte, directing the parties
to show cause why the appeal should not be dismissed on the basis it was
taken untimely, but neither party ever filed a response to the court’s order.
Id. By issuing the order, the court seemingly acknowledged that there was a
legitimate possibility that the appeal was timely. Here, this Court has
chosen not to issue such an order to show cause, but to proceed with its
opinion based on the reasoning herein.
4 The Fifth Circuit in Winn Dixie stated:
While the Myles holding is relevant to the case before us today, and mindful of its importance, this court cannot speculate that counsel for Winn-Dixie did not receive the notice of judgment until November 29, 1992, or later. Moreover, based on the fact that the defendant was given ample opportunity (through July 26, 1993) to show its appeal was filed timely, and has failed to file anything with this court since its appeal brief of May 28, 1993, this court must conclude that the notice of judgment was received by counsel for Winn-Dixie prior to November 29, 1992, and that therefore, the appeal is untimely. Id.
The Fifth Circuit stated that it could not speculate that counsel for appellant
did not receive notice until the date that would allow for a timely appeal,
within ten days of notice. Id. However, the Court based its decision on the
fact that the defendant failed to show its appeal was timely after being given
the opportunity to do so upon the issuance of the rule to show cause order.
This Court finds the opposite result using the Fifth Circuit’s same
reasoning in Winn-Dixie. If we cannot speculate as to notice not being
received, we should not be able to speculate that notice was received. This
Court cannot look at information beyond what is contained in the appellate
record. The appellee presents the argument of lack of jurisdiction due to an
untimely appeal, but provides no support. There is nothing in the record to
show the appeal was untimely filed since there was no acknowledgment of
receipt. “Actual knowledge of the signing of the judgment outside of the
record and absent compliance with the mailing or service requirement is not
sufficient to cause new trial and appeal delays to commence.” Morice v.
Alan Yedor Roofing and Construction, 16-532 (La. App. 5 Cir. 2/8/17), 216
So. 3d 1072. Also, given the timing of the mailing – during the 2020
presidential election and the ongoing COVID pandemic – it is not
unreasonable to believe that mail could have been significantly delayed
5 where Swayzer did not receive the notice until at least November 23, 2020,
such that she would have met the filing deadline.
Calogero v. USA Agencies Casualty Insurance Company, Inc., 2019-
0347 (La. App. 4 Cir. 12/4/19), 286 So. 3d 586, is also comparable to this
case and Winn-Dixie. Notice of signing of judgment was issued by the clerk
of court on November 16, 2018, but the plaintiff did not file a motion for
devolutive appeal until January 11, 2019, 54 days later. Id. As in Winn-
Dixie, the Fourth Circuit ordered the plaintiff to show cause as to why the
appeal should not be dismissed as untimely. Id. Counsel for the
plaintiff/appellant did respond with an affidavit stating that she had moved
her law office just two weeks prior to mailing the notice and had not
received the notice. Id. The attorney continued to use her previous office
address on pleadings and correspondence through November 2018 and into
January 2019. Id. The Court cited the relevant city court rule regarding an
attorney’s obligation when moving offices, to change the address on all
pleadings previously filed on which the former address has been shown, the
failure to do so barring the attorney from pleading nonreceipt of a notice
mailed by the court to the address originally shown on the pleadings. Id.
The Court in Calogero recognized the decision in Myles, but ultimately held
that the appeal was untimely, based on the specific court rule regarding an
office relocation that barred the attorney from pleading nonreceipt. Id.
Here, Prince of Peace was not represented by counsel and did not
allege failure of receipt due to change of address or any other reason. In fact,
appellant, appearing pro se, should generally be given wide latitude, as she is
at a disadvantage having no formal training in the law and rules of
procedure. In Re: Medical Review Panel Claim of Scott, 206 So.3d 1049 6 (La. 2016). The Court in Credit Acceptance Corporation v. Prevo, 52,734
(La. App. 2 Cir. 6/26/19), 277 So. 3d 847 stated that, “In the interest of
justice, this court will read pro se filings indulgently and try to discern the
thrust of the appellant's position and the relief she seeks.” Citing Magee v.
Williams, 50,726 (La. App. 2 Cir. 6/22/16), 197 So. 3d 265. A pro se
litigant does assume responsibility for her lack of knowledge of the law,
Scott, supra, but there is nothing in the record that shows appellant claims
ignorance of the law as a defense and this Court does not find such a defense
is necessary.
Appeals are favored in law and any doubt shall be resolved in favor of
maintaining, rather than dismissing an appeal. Alan Yedor Roofing, supra.
Unless the grounds for dismissal are free from doubt, the appeal should be
maintained. Id.
This Court bases its reasoning primarily on the fact that the record
does not show that appellant did not receive the notice of judgment, with the
position that it is not unreasonable to believe that circumstances of the
timing of the mailing were such that the notice could have been received by
Prince of Peace by a date that would result in a timely appeal. This court is
further influenced by its ability to afford some level of leeway to pro se
litigants. The grounds for dismissal based on lack of jurisdiction for an
untimely appeal is not free from doubt, and that doubt should be resolved in
favor of maintaining this appeal.
Warranty of Redhibition:
A seller warrants the buyer against redhibitory defects or vices in the
thing sold. La. C.C. art. 2520. A defect is redhibitory when it “renders the
thing useless, or its use so inconvenient that it must be presumed that the 7 buyer would not have bought the thing had he known of the defect.” Id.
The existence of this type of redhibitory defect enables the buyer to obtain
rescission of the sale. Id. A thing can also contain a redhibitory defect when
the defect “diminishes its usefulness or its value so that it must be presumed
the buyer would still have bought it, but for a lesser price.” Id. This type of
defect limits the right of a buyer to seek a reduction of the price. Id.
Further, although minor defects alone do not constitute redhibitory defects,
multiple defects collectively may support redhibition. Young v. Ford Motor
Co., Inc., 595 So. 2d 1123 (La. 1992). The existence of redhibitory defects
is a question of fact which should not be disturbed in the absence of manifest
error. Berney v. Rountree Olds-Cadillac Co., 33,388 (La. App. 2 Cir.
6/21/00), 763 So. 2d 799.
The buyer of an automobile who asserts a redhibition claim need not
show the particular cause of the defects making the vehicle unfit for the
intended purposes, but rather must simply prove the actual existence of such
defects. Young v. Ford Motor Co., supra. In general, the intended purpose
of an automobile is transportation. Guillory v. Morein Motor Co., 322 So.
2d 375 (La. App. 3 Cir. 1975). Inherent in the sale of an older car is the
knowledge that the machinery and parts are worn and subject to breakdown
and that the vehicle will require mechanical work from time to time to keep
it in good running condition. Burch v. Durham Pontiac Cadillac, Inc., 564
So. 2d 380 (La. 1990). Although the warranty against redhibitory defects
does not apply as extensively as with new products, it requires that even
used equipment operate reasonably well for a reasonable period of time.
Berney, supra.
8 The warranty against redhibitory defects extends only to defects that
exist at the time of delivery. La. C.C. art. 2530. The buyer must prove that
the vice existed before the sale. Id. Holloway v. Gulf Motors, 588 So. 2d
1322 (La. App. 2 Cir. 1991). Proof of this fact may be made either by direct
evidence or by circumstantial evidence giving rise to a reasonable inference
that the defect existed at the time of sale. Boos v. Benson Jeep-Eagle Co.,
Inc., 98-1424 (La. App. 4 Cir. 6/24/98), 717 So. 2d 661. There is a
presumption that a vice existed before the sale if it has made its appearance
within three days immediately following the sale. La. C.C. art. 2530.
To reverse a factfinder’s determination, the appellate court must find
from the record that a reasonable factual basis does not exist for the finding
of the trial court and that the record establishes that the finding is clearly
wrong. Stobart v. State through Dept. of Transp. & Dev., 617 So. 2d 880
(La. 1993). Even if an appellate court may feel its own evaluations and
inferences are more reasonable than the factfinder’s, reasonable evaluations
of credibility and reasonable inferences of fact should not be disturbed upon
review where conflict exists in the testimony. Cole v. State Dept. of Public
Safety & Corr., 01-2123 (La. 9/4/02), 825 So. 2d 1134. An appellate court
may not set aside a trial court’s finding of fact in the absence of manifest
error or unless it is clearly wrong. Id. Where two permissible views of the
evidence exist, the factfinder’s choice between them cannot be manifestly
erroneous or clearly wrong. Id. Moreover, where the factfinder’s
conclusions are based on determinations regarding credibility of witnesses,
the manifest error standard demands great deference to the trier of fact
because only the trier of fact can be aware of the variations in demeanor and
9 tone of voice that bear so heavily on the listener’s understanding and belief
in what is said. Rosell v. ESCO, 549 So. 2d 840 (La. 1989).
The lower court is in the best position to determine credibility of
witnesses. Id. It weighed the testimony of both parties and ultimately
decided that there was a valid redhibition claim that warranted rescission, so
it presumably found in favor of Modicue on all elements necessary to
establish such a claim.
Modicue claims that he had chronic problems with the vehicle
following purchase, including a defective motor mount, failed battery, power
steering malfunction, failed alternator, and oil leak. He alleges that at one
point, the vehicle was in the shop for two months to get the alternator
repaired. He testified that he did not initially notice the problems with the
vehicle, but that they became apparent within a few days of purchase. He
stated that he made numerous trips back to the car lot to get the car fixed.
While there seemed to be some inconsistencies in the exact timeframe the
defects became apparent, the court found Modicue’s testimony that there
were problems with the vehicle shortly after its purchase to be credible.
La. C.C. art. 2522 requires that a buyer give a seller notice of the
defect and allow time for the seller to repair. If the seller has actual
knowledge of the defect, no notice is required. Id. A seller who did not
know that the thing he sold had a defect is considered a “good faith seller.”
Stuck v. Long, 40,034 (La. App. 2 Cir. 8/17/05), 909 So. 2d 686, writ denied,
05-2367 (La. 3/17/06), 925 So. 2d 546. A good faith seller is only bound to
repair, remedy, or correct the defect. La. C.C. art. 2531. The buyer must
afford the good faith seller a reasonable opportunity to repair the defect in
the light of the particular circumstances of each case. Arnold v. Wray Ford, 10 Inc., 606 So. 2d 549 (La. 1992). Factors to consider in determining
reasonableness of the opportunity to cure include whether the buyer was
furnished substitute transportation, the extent to which the buyer’s lifestyle
was disrupted by the unavailability of the vehicle, the nature of the defect,
the difficulty of remedy, and the number of unsuccessful attempts. Dreher
v. Hood Motor Co., Inc., 492 So. 2d 132 (La. App. 1 Cir. 1986). What
constitutes a reasonable opportunity to repair a defect is a question for the
finder of fact. Reid v. Leson Chevrolet Co., Inc., 542 So. 2d 67 (La. App. 5
Cir. 1989). If the seller fails or is unable to remedy the defect, he must
return the purchase price to the buyer with interest from the time it was paid,
reimburse him for reasonable expenses occasioned by the sale and for
preservation of the item, less the credit to the seller if the use of the item was
of value to the buyer. La. C.C. art. 2531; Alexander v. Burroughs Corp.,
359 So. 2d 607 (La. 1978).
The city court made a credibility determination based on testimony
that Modicue notified Swayzer of the defects after they arose and gave a
reasonable opportunity to cure. However, there were never any allegations
or findings that Swayzer had knowledge of any defects at the time of sale.
Therefore, Prince of Peace is considered to be a “good faith seller” who
should have been given notice of the defect and a reasonable opportunity to
remedy any defects. Prince of Peace failed to remedy the defect, so it is
obligated to pay an amount to Modicue equal to the purchase price paid for
the vehicle, including any expenses associated with the sale, and for
expenses to repair/maintain the vehicle, less a credit for the value Modicue
derived from the vehicle.
11 According to Modicue’s testimony, he paid a total of $3,208.78 for
the vehicle in the form of a $1,500.00 down payment and $1,708.78 in
monthly payments, which covered both the purchase price and associated
sale expenses such as tax, title, and license. This amount was essentially
uncontested by Swayzer. The city court awarded the $3,208.78 in damages
to Modicue.
The court awarded an additional $383.00 in special damages for repair
expenses allegedly incurred by Modicue. However, Modicue presented no
evidence or documentation of any such expenses paid, other than a basic,
typed list of amounts he paid, presumably self-prepared, in which he claims
to have paid the total amount of $383.00 in parts and labor for repairs.
There were no work orders, testimony by mechanics, copies of invoices,
etc., to support an award of special damages for the repair expenses.
The court also awarded general damages in the amount of $1,500.00.
It is only in the case of a bad faith seller, one who has knowledge of the
defect and fails to declare it, that a seller is answerable to the buyer in
general damages. Since Prince of Peace is a good faith seller, the award of
general damages is error.
When there is a finding of a redhibitory defect warranting rescission,
the seller is to be credited for the use of the vehicle if it were of some value
to the buyer, reducing any amount awarded for return of the purchase price
and reimbursement of expenses relating to the sale and incurred for the
preservation of the item. La. C.C. art. 2531; Alexander v. Burroughs Corp.,
supra. Swayzer presented evidence in the form of the bill of sale from
Prince of Peace’s initial purchase of the vehicle on March 6, 2019, showing
mileage of 212,818 miles, approximately one month prior to Modicue’s 12 purchase. She claims that the vehicle had 223,079 miles at the time it was
repossessed, an additional 10,261 miles over a period of 225 days. It was
obviously regularly used and provided value to Modicue as a mode of
transportation. Modicue offered no response to Swayzer’s claim, and the
court failed to address it altogether.
Prince of Peace should have received a credit for the value afforded to
Modicue for his use of the vehicle that offset any damages awarded for the
redhibition claim. In the reconventional demand, Swayzer requested
damages in the amount of $25/day for usage of 225 days for a total of
$5,625.00, and $3,591.35 for 0.35/mile for 10,261 miles. This Court denies
appellant’s specifically requested amounts, but finds the monthly payments
made by Modicue while in possession of the vehicle, a total of $1,708.78, to
be a sufficient amount for the requisite credit to the Prince of Peace for the
value of the vehicle’s use derived by Modicue.
The lower court also awarded attorney fees in the amount of
$2,500.00. Attorney fees in redhibition cases are specifically allowed under
La. C.C. art. 2545. A trial court has great discretion in awarding attorney
fees in redhibition cases. Jones v. Winnebago Indus., Inc., 47,137 (La. App.
2 Cir. 05/16/12), 92 So. 3d 1113. We do not find the city court abused its
discretion in awarding attorney fees to Modicue.
Modicue was awarded a total of $7,591.78. As stated hereinabove,
Modicue should be not be awarded the special damages of $383.00 for
repairs since there was no proof of those amounts. There should also be no
general damages award of $1,500.00. Further, there should be a credit to the
seller for the value afforded to the buyer in the amount of $1,708.78. The
13 award of the amounts paid toward the purchase of the car and the attorney
fees should be upheld.
“As Is Sale” - Waiver of Warranty
Swayzer primarily argues that the vehicle was sold “as is” and she
was not responsible for any unknown defects, and claims that there were no
known defects at the time of the sale other than the broken door handle. She
further claims that she was never informed of any defects or provided any
documentation of the supposed defects or any repair expenses paid by
Modicue until after he filed suit.
La. C.C. art. 2548 states, in pertinent part, that the parties may agree
to an exclusion or limitation of the warranty against redhibitory defects. In
order to be effective, a waiver of warranty must: (1) be written in clear and
unambiguous terms; (2) be contained in the contract; and (3) either be
brought to the attention of the buyer or explained to him. Prince v. Paretti
Pontiac Co., 281 So. 2d 112 (La.1973).
The mere fact that a sale is confected “as is” does not create a waiver
of all warranties. Hendricks v. Horseless Carriage, Inc., 332 So. 2d 892
(La. App. 2 Cir. 1976). If the act of sale fails to state that the purchaser
waives express and implied warranties, including the warranty of fitness for
a particular purpose and the warranty against redhibitory vices, it is not
sufficiently clear and the seller remains responsible for implied warranties
associated with the concept that the thing be fit for the use for which it is
intended. La. C.C. art. 2520. The seller bears the burden of proving the
warranty has been waived. Boos v. Benson-Jeep-Eagle Co., supra.
In Sabbath v. Martin, 44,862, (La. App. 2 Cir. 10/28/19), 2009 WL
3449096, the seller claimed that the sale was “as is” and the warranty against 14 redhibitory defects had been waived by the buyer. There were facts that
called into question whether the parties understood the waiver of redhibitory
defects, mainly the fact that the buyer had initially repaired several defects
free of charge without asserting the waiver, resulting in a finding that the
waiver was ambiguous and invalid. Id.
Even if the language waiver requirements were met, personal
assurance of the seller that a car was in good condition qualified a written
waiver, rendering its language ambiguous. Wilks v. Ramsey, 48,738 (La.
App. 2 Cir. 1/15/14), 132 So. 3d 1009.
In this case, the sale contract did contain explicit language that the
purchaser waived express and implied warranties, including the warranty of
fitness for a particular purpose and the warranty against redhibitory vices.
However, there was evidence there was a misunderstanding of the waiver
terms. Prince of Peace inserted language into the contract that there was an
exception to the “as is” sale for the repair of the door handle, a qualification
that resulted in ambiguous terms. In addition, Modicue testified that he
repeatedly contacted Swayzer in an attempt to have Prince of Peace remedy
the vehicle defects, and that Swayzer told him to bring in repair bills for the
defects and she would reimburse him for the amounts, which would operate
as an implied warranty that could be relied upon by the buyer. The lower
court found that although the sale was intended to be “as is,” there was no
waiver of warranty in this case. We agree.
CONCLUSION
This Court upholds the City Court’s finding in favor of the appellee,
Donald Modicue, that redhibitory defects existed that warranted rescission
of the “as is” sale. The lower court based its finding on a credibility 15 determination that this Court does not disturb. As a result, this Court
upholds the award of $3,208.78 for the amounts paid by Modicue for the
purchase of the vehicle, but denies the special damages award of $383.00
since Modicue offered no proof in support thereof. However, Prince of
Peace is entitled to a credit in the amount of $1,708.78 for value derived
from the use of the vehicle by Modicue. Further, since this Court finds
Prince of Peace to be a good faith seller, it finds the $1,500.00 in general
damages awarded to Modicue to be error.
Therefore, this Court AFFIRMS the finding of the lower court of a
claim of redhibition warranting rescission of sale, but AMENDS to remove
the award of general damages and to include a credit to the seller, reducing
the award of damages from $7,591.78 to $4,000.00. All respective costs of
appeal are to be absorbed by the parties.
AFFIRMED AS AMENDED.