Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose May 29 2014, 10:15 am of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
DAVID VAN GILDER ROBERT J. PALMER Van Gilder & Trzynka, P.C. May * Oberfell * Lorber Fort Wayne, Indiana Mishawaka, Indiana
IN THE COURT OF APPEALS OF INDIANA
HOLLY and CHRISTOPHER DUNN, ) HOLLY and BENJAMIN ROTHENBUSH, and ) TOMI and MICHAEL MEYER, ) ) Appellants-Plaintiffs, ) ) vs. ) No. 02A03-1307-PL-269 ) KATHRYN DAVIS and FOR THE CHILDREN ) MEDICAL MISSION FOUNDATION, INC., ) ) Appellees-Defendants. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Robert C. Probst, Senior Judge Cause No. 02D01-1104-PL-142
May 29, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge Case Summary
Christopher and Holly Dunn (“the Dunns”), Benjamin and Holly Rothenbush (“the
Rothenbushes”), and Michael and Tomi Meyer (“the Meyers”) (collectively,
“Appellants”) appeal the trial court’s grant of summary judgment to For the Children
Medical Mission Foundation, Inc., (“the Foundation”). We affirm.
Issues
Appellants raise two issues, which we restate as:
I. whether the trial court properly granted summary judgment to the Foundation on Appellants’ breach of contract claim; and
II. whether the trial court properly granted summary judgment to the Foundation on Appellants’ fraud claim.
Additionally, the Foundation argues that it is entitled to appellate attorney fees pursuant
to Indiana Appellate Rule 66(E).
Facts
The Foundation is a tax exempt organization that helped provide international
orphans with medical care and matched them with host families in the United States. The
host families had the option to adopt the children through a licensed adoption agency.
Kathryn Davis is the executive director of the Foundation. The Dunns, the
Rothenbushes, and the Meyers each agreed to host a child from the Philippines through
the Foundation. Each family signed a Host Family Agreement that provided:
In recognition of the fact that Kathryn and Gary Davis, of For the Children International Medical Mission Foundation, Inc. . . . are the legal guardians of the child
2 placed with us for us to act as host parents during the child’s medical treatment, and acknowledging that Kathryn and Gary Davis and the Foundation are legally responsible for the child during the treatment, including compliance with all rules and regulations of government agencies and departments in both the United States and the child’s home country, we, the undersigned, acting as host parents, agree as follows:
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3. The host parents agree that on the 30th day after the child is placed with the host parents, if the host parents intend to apply for formal adoption, the host parents will provide the Foundation [sic] indicating an unqualified intent to adopt. The host parents agree that if it is their intent to adopt, they will use the services of a licensed adoption agency.
The host parents acknowledge that at no time are they required to apply for formal adoption of the child. In the event that the host parents choose not to adopt, or fail to provide the intent to adopt letter to the Foundation on the thirtieth day after the child is placed with the host parents, the host parents, at the discretion of the Foundation, may or may not continue to host the child for the duration of any needed medical treatment, after which the child will be placed with another family for a possible adoption or returned to the Philippines.
4. In the event that the host parents choose to apply for adoption, they agree to have all necessary documents returned to the adoption agency of their choice within five months of submitting their letter of intent to adopt. These documents include, but are not limited to, all documents required by the Filipino government. The host parents further agree to comply with any other time restrictions for submission of all necessary documents that may be imposed by their chosen adoption agency.
3 6. The host parents acknowledge that all adoption procedures and fees are in no way affiliated with, or determined by the Foundation, which is a completely separate and distinct entity from any adoption agency. The host parents also acknowledge that at no time does the Foundation, or anyone associated therewith, have any influence on the host child’s governmental or agency requirements or errors. Any questions or comments regarding the host parents’ relationship with the adoption agency must be directed towards the agency, not the Foundation, unless it is directly related to the child’s medical condition.
8. The host parents acknowledge that the Foundation, and Gary and Kathryn Davis, are the guardians of the child while in the United States and will hold the child’s passport until the child returns to the Philippines. . . .
9. The host parents agree that upon admission of the child to the hospital, if the letter of intent to adopt has not yet been written, that the Foundation’s name, For the Children International shall be listed as the guarantor for said child. If intent to adopt letter has been submitted, the host parents agree to list their names as guarantor of child.
11. The host parents acknowledge that at no time does the Foundation reimburse the host parents for insurance co-pay or any other expenses related to the child’s medical treatment, or any other expenses related to the child, if letter of intent to adopt has been submitted.
13. The host parents agree, in the event that they submit notice of their intent to adopt, to pay a fee to the Foundation of $1,800.00 due and payable with notice of intent to adopt on or before the thirtieth day from the child’s arrival. The host parents further agree to
4 pay [to] the Foundation a fee of $750.00 in the event that the child remains in the United States as a medical mission child for twelve months after the initial arrival, unless travel would be life threatening to the child.
Appellee’s App. pp. 163-65, 227-29, 320-23.
Each of the host families also signed a Fee Acceptance and Disclaimer Form,
which provided:
It is understood that the fee schedule of For the Children International is a requirement. At no time during the hosting of a medical mission child, will the fees increase.
These fees are subject to change for future medical mission children without notice.
The fees of the adoption agency (if applicable) that the host family chooses are in no way affiliated with For the Children and it is hereby noted that the foundation fees and operations are a completely separate entity and the foundation takes no responsibility for fee increases by separate agencies.
Id. at 171, 226, 319. Each family was provided with a fee schedule discussing the
Foundation’s fees. Appellants allege that Kathryn represented to them “that using her
agency would result in being matched with a child ‘sooner’ and at a ‘lower cost’ than a
regular international adoption service.” Appellants’ App. pp. 81, 110, 139.
Catholic Charities was an adoption agency and was one of the options available to
Appellants to complete an adoption. According to Appellants, Kathryn also provided
each family with a document prepared by Catholic Charities that listed the adoption costs.
The estimated costs ranged, depending on the date the families were provided with the
documents, from $11,800 to $14,280, excluding homestudy and post-placement fees.
5 The Meyers signed the Host Family Agreement and the Fee Acceptance and
Disclaimer Form in January 2006. They were matched with a child less than two weeks
later, and the child was placed in their home in August 2006. The Dunns signed the Host
Family Agreement in September 2006, and they were matched with a child the same
month. The child was placed in their home in May 2007. The Rothenbushes executed
the Host Family Agreement and the Fee Acceptance and Disclaimer Form in December
2006, and they were matched with a child in January 2007. The child was placed in their
home in May 2007.
Each of the families indicated their desire to adopt the children and chose to use
Catholic Charities to complete the adoptions. At some point after the children were
placed with the host families, the host families allege that Kathryn provided them with
revised fee schedules for the Catholic Charities adoption costs ranging from $17,200 to
$19,880. Ultimately, each family paid over $30,000 to complete the adoptions, which
were completed in late 2010. Appellants allege that Kathryn “induced” them “not to call
Catholic Charities stating the agency is ‘difficult to deal with’ and they should just do
what they are told.” Id. at 82, 111, 140.
In April 2011, Appellants filed a complaint against Kathryn, the Foundation, and
Catholic Charities, alleging the following claims: (1) fraud against Kathryn and the
Foundation; (2) constructive fraud against Kathryn, the Foundation, and Catholic
Charities; (3) breach of contract against Kathryn and the Foundation; and (4) negligence
6 against Kathryn, the Foundation, and Catholic Charities.1 The basis of the claims related
to the increased cost of the adoptions. The trial court later dismissed the constructive
fraud and negligence counts based on the statute of limitations. As a result, Catholic
Charities was also dismissed from the proceedings. In October 2012, the trial court
granted a stay of the proceedings against Kathryn pursuant to the bankruptcy code stay
provisions, 11 U.S.C. § 362(a)(1), leaving only Appellants’ fraud and breach of contract
claims against the Foundation to proceed. The Foundation then brought a counterclaim
against Appellants for breach of contract and pursuing a frivolous lawsuit.
In June 2012, the Foundation filed a motion for summary judgment. The
Foundation argued that it was entitled to summary judgment on the breach of contract
claim and the fraud claim. Appellants responded and argued that the Foundation, through
Kathryn, provided them with fee schedules representing the costs of a Philippine
adoption but that the ultimate costs significantly exceeded the amounts listed on the fee
schedules. Appellants also filed a cross-motion for summary judgment on the
Foundation’s counterclaim against them. The Foundation filed a response and designated
additional evidence in opposition to Appellants’ cross-motion for summary judgment.
After a hearing, the trial court entered an order granting the Foundation’s motion
for summary judgment and denying Appellants’ motion for summary judgment on the
counterclaim. The trial court found no contract between Appellants and the Foundation
regarding the adoption fees. Consequently, the trial court found that the Foundation was
1 The complaint also included claims against Gary Davis, but he was dismissed by stipulation in June 2011. 7 entitled to summary judgment on Appellants’ breach of contract claim. Similarly, the
trial court found regarding the fraud claim that “all of the contentions of the [Appellants]
concerning fraud involved future occurrences” and that the Foundation was entitled to
summary judgment on the fraud claim. Appellants’ App. p. 22. The trial court found
genuine issues of material fact regarding the Foundation’s counterclaims and denied
Appellants’ cross-motion for summary judgment regarding the counterclaims. The trial
court found no just reason for delay and entered final judgment regarding the granting of
the Foundation’s motion for summary judgment, leaving the counterclaims pending for
future proceedings.
On appeal, Appellants argued, in part, that the trial court erred by denying their
motion for summary judgment regarding the Foundation’s counterclaims. However, we
dismissed Appellants’ appeal regarding that issue because the trial court specifically did
not enter final judgment regarding that issue. See Ind. Trial Rule 54(B); T.R. 56(C).
Analysis
Appellants argue that the trial court erred by granting the Foundation’s motion for
summary judgment. Summary judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. T.R. 56.
We liberally construe all designated evidentiary material in a light most favorable to the
non-moving party to determine whether there is a genuine issue of material fact.
Bradshaw v. Chandler, 916 N.E.2d 163, 166 (Ind. 2009). The party that lost in the trial
court has the burden of persuading the appellate court that the trial court erred. Id. Our
8 review of a summary judgment motion is limited to those materials designated to the trial
court. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001).
I. Breach of Contract
Appellants claim that the trial court improperly resolved disputed material facts
rather than leaving resolution of those facts to the fact finder. In its motion for summary
judgment, the Foundation argued that, pursuant to the Host Family Agreement and Fee
Acceptance and Disclaimer Form, the Foundation did not control the adoption fees and
that the Foundation did not breach its contracts with Appellants. The trial court agreed,
concluding that the adoption fees were not part of those contracts. According to
Appellants, the Foundation breached a contract because the Foundation misrepresented
the adoption costs to entice Appellants to use the Foundation’s services. Appellants
contend that the Foundation promised Appellants that they would incur lower adoption
costs by working with the Foundation.
Appellants cite no authority demonstrating how the alleged representations
regarding the adoption costs were part of a contract between the Foundation and
Appellants. In fact, in their section of argument related to the breach of contract theory,
Appellants cite no authority whatsoever. Indiana Appellate Rule 46(A)(8)(a) requires an
appellant to make arguments supported by cogent reasoning and “citations to the
authorities, statutes, and the Appendix or parts of the Record on Appeal relied on . . . .”
Because Appellants do not present a cognizable argument in support of this assertion, the
issue is waived. Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002),
trans. denied.
9 Waiver notwithstanding, the essential elements of a breach of contract action are
the existence of a contract, the defendant’s breach thereof, and damages. Fowler v.
Campbell, 612 N.E.2d 596, 600 (Ind. Ct. App. 1993). In general, “in construing [a]
written instrument, the language of the instrument, if unambiguous, determines the intent
of the instrument such that parol or extrinsic evidence is inadmissible to expand, vary, or
explain the instrument unless there has been a showing of fraud, mistake, ambiguity,
illegality, duress or undue influence.” Clark v. CSX Transp., Inc., 737 N.E.2d 752, 758
(Ind. Ct. App. 2000), trans. denied. In the Host Family Agreement and the Fee
Acceptance and Disclaimer Form, Appellants were repeatedly and unambiguously
informed that, if they chose to adopt, they would be required to retain the services of an
adoption agency and that the Foundation had no control over the adoption procedures or
fees. Except in the case of fraud, which we address in Issue II, parol evidence is
inadmissible to vary those contracts.
To the extent Appellants argue that the Foundation provided them with the
Catholic Charities’ adoption fee schedule after signing the Host Family Agreement and
the Fee Acceptance and Disclaimer Form, the trial court found no consideration to form a
separate contract. We agree. An offer, acceptance, plus consideration make up the basis
for a contract. Homer v. Burman, 743 N.E.2d 1144, 1146 (Ind. Ct. App. 2001). “A
mutual assent or a meeting of the minds on all essential elements or terms must exist in
order to form a binding contract.” Id. at 1146-47. “Assent to those terms of a contract
may be expressed by acts which manifest acceptance.” Id. at 1147. “Consideration is
defined as a benefit to the party promising, or a loss or detriment to the party to whom the
10 promise is made.” Pistalo v. Progressive Cas. Ins. Co., 983 N.E.2d 152, 159 (Ind. Ct.
App. 2012), trans. denied. “A benefit is a legal right given to the promisor to which the
promisor would not otherwise be entitled.” Id. “A detriment is a legal right the promisee
has forborne.” Id.
According to Appellants, the Foundation received consideration because, if
Appellants adopted the children, the Foundation was “more quickly relieved of the
responsibilities to provide care and support for the medical missions children.”
Appellants’ Br. p. 10. The trial court properly noted that, under the Host Family
Agreement, the Foundation was no longer financially responsible for the children after
the host families signed the letters of intent to adopt. We further note that the designated
evidence indicates no offer by the Foundation regarding the adoption fees. Simply
providing a Catholic Charities updated adoption fee schedule to Appellants, if indeed that
occurred, is insufficient to form a contract between the Foundation and Appellants
regarding those adoption fees.
Appellants argue that genuine issues of material fact exist regarding the breach of
contract claim. A genuine issue of material fact exists where “facts concerning an issue
that would dispose of the litigation are in dispute or where the undisputed material facts
are capable of supporting conflicting inferences on such an issue.” Wicker v. McIntosh,
938 N.E.2d 25, 28 (Ind. Ct. App. 2010). A fact is “material” if it helps to prove or
disprove an essential element of the plaintiff’s cause of action. Lake States Ins. Co. v.
Tech Tools, 743 N.E.2d 314, 318 (Ind. Ct. App. 2001). We conclude that the disputed
facts cited by Appellants are not material to whether the Foundation breached a contract
11 with Appellants. The trial court properly found that the Foundation was entitled to
summary judgment on Appellants’ breach of contract claim.
II. Fraud
Appellants also argue that the trial court erred by granting summary judgment to
the Foundation on Appellants’ fraud claim. Again, Appellants cite no authority
whatsoever regarding their fraud claim. Indiana Appellate Rule 46(A)(8)(a) requires an
appellant to make arguments supported by cogent reasoning and “citations to the
authorities, statutes, and the Appendix or parts of the Record on Appeal relied on . . . .”
Because Appellants do not present a cognizable argument in support of this assertion, the
issue is waived. Loomis, 764 N.E.2d at 668.
Waiver notwithstanding, the five elements of actual fraud are: 1) a false statement
of past or existing material fact, 2) made with knowledge it was false or made recklessly
without knowledge of its truth or falsity, 3) made for the purpose of inducing the other
party to act upon it, 4) and upon which the other party did justifiably rely and act, 5)
proximately resulting in injury to the other party. Epperly v. Johnson, 734 N.E.2d 1066,
1073 (Ind. Ct. App. 2000). The trial court found that all of Appellants’ contentions
concerning fraud involved future occurences, not past or existing material facts. There
was no designated evidence that the Foundation was aware of what the final adoption
costs would be. “[A]ctionable fraud arises from false representation of past or existing
facts, not from representations as to future action or future conduct. It cannot be based on
broken promises, unfulfilled predictions, or statements of existing intent which are not
executed.” Kopis v. Savage, 498 N.E.2d 1266, 1272 (Ind. Ct. App. 1986).
12 Appellants’ claims on this issue are not entirely clear. They appear to argue that
the Foundation committed fraud when it provided the Catholic Charities fee schedules to
Appellants. However, Appellants were well aware that the Foundation did not control
the adoption process or Catholic Charities’ fees. In fact, Appellants could have chosen a
different adoption agency. Unfulfilled predictions of the ultimate cost of the adoptions
cannot give rise to actionable fraud. The trial court properly granted the Foundation’s
motion for summary judgment on Appellants’ fraud claim.
III. Appellate Attorney Fees
On appeal, the Foundation argues that it is entitled to appellate attorney fees
pursuant to Indiana Appellate Rule 66(E), which provides: “The Court may assess
damages if an appeal, petition, or motion, or response, is frivolous or in bad faith.
Damages shall be in the Court’s discretion and may include attorneys’ fees. The Court
shall remand the case for execution.” Our discretion to award attorney fees under Indiana
Appellate Rule 66(E) is limited to instances when an appeal is permeated with
meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay.
Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). Although Indiana
Appellate Rule 66(E) provides this Court with “discretionary authority to award damages
on appeal, we must use extreme restraint when exercising this power because of the
potential chilling effect upon the exercise of the right to appeal.” Id.
Indiana appellate courts have formally categorized claims for appellate attorney
fees into “substantive” and “procedural” bad faith claims. Id. To prevail on a substantive
bad faith claim, the party must show that the appellant’s contentions and arguments are
13 utterly devoid of all plausibility. Id. Procedural bad faith, on the other hand, occurs
when a party flagrantly disregards the form and content requirements of the rules of
appellate procedure, omits and misstates relevant facts appearing in the record, and files
briefs written in a manner calculated to require the maximum expenditure of time both by
the opposing party and the reviewing court. Id. at 346-47. Even if the appellant’s
conduct falls short of that which is “deliberate or by design,” procedural bad faith can
still be found. Id.
The Foundation argues that Appellants’ appeal meets the requirements for both
substantive and procedural bad faith. According to the Foundation, Appellants’ appeal
was made in substantive bad faith because Appellants improperly attempted to appeal the
denial of their motion for summary judgment and improperly attempted to raise their
dismissed constructive fraud claim by disguising it as a fraud claim. As for procedural
bad faith, the Foundation argues that Appellants failed to include relevant summary
judgment materials in their appendix and failed to make cogent arguments and cite
authorities.
Although we acknowledge that Appellants’ brief fails to fully comply with the
Appellate Rules and that their argument on appeal fails, we cannot say that their
arguments were “utterly devoid of all plausibility” or were “written in a manner
calculated to require the maximum expenditure of time both by the opposing party and
the reviewing court.” Potter v. Houston, 847 N.E.2d 241, 249 (Ind. Ct. App. 2006).
Consequently, we deny the Foundation’s request for appellate attorney fees.
14 Conclusion
The trial court properly granted the Foundation’s motion for summary judgment
regarding Appellants’ breach of contract and fraud claims. Further, we conclude that the
Foundation is not entitled to appellate attorney fees pursuant to Indiana Appellate Rule
66(E). We affirm.
Affirmed.
CRONE, J., concurs.
BAKER, J., dissents with separate opinion.
15 IN THE COURT OF APPEALS OF INDIANA
HOLLY and CHRISTOPHER DUNN, ) HOLLY and BENJAMIN ROTHENBUSH, ) and TOMI and MICHAEL MEYER, ) ) Appellants-Plaintiffs, ) ) vs. ) No. 02A03-1307-PL-269 ) KATHRYN DAVIS and FOR THE CHILDREN ) MEDICAL MISSION FOUNDATION, INC., ) ) Appellees-Defendants. )
BAKER, Judge, dissenting
I respectfully dissent. As Justice Massa recently stated, “sometimes standards of review
decide cases.” Robinson v. State, 5 N.E.3d 362, 363 (Ind. 2014). It is the standard of
review that we must apply in the disposition of a summary judgment motion that compels
me to part ways with my colleagues.
Summary judgment is a powerful tool. Its purpose is to terminate litigation before
trial. Ebersol v. Mishler, 775 N.E.2d 373, 378 (Ind. Ct. App. 2002). Accordingly, the
motion may not be granted in circumstances “[w]here material facts conflict, or
undisputed facts lead to conflicting material inferences . . . .” Id. “This is true even if the
court believes the non-moving party will not succeed at trial.” Id.
16 Here, the trial court granted summary judgment in favor of the Foundation on the
breach of contract claims because it essentially determined that there was no
consideration. Appellants’ App. p. 15. The Appellants’ designated evidence tended to
show that the Foundation needed host families to adopt the children to relieve the
Foundation of its many responsibilities, including financial obligations and the well-
being of each child. Id. at 37, 41, 45, 165-66, 193. From this evidence, the Appellants
point out that the Foundation received a clear benefit, or consideration, by promising
speedy and less costly adoptions.
On the other hand, the Foundation’s argument is that there could be no
consideration after the letter of intent to adopt was executed because the Foundation was
no longer responsible for that child. Indeed, the Foundation simply matched and placed
the child with the host family. Additionally, the Foundation agrees with the trial court’s
analysis that if the fee schedules were given before the Host Family Agreement and Fee
Acceptance Disclaimer Form were signed, they did not become part of the contract; if
they were signed after, there was no additional consideration. Id. These competing
views indicate the existence of genuine issues of material fact that should not be decided
at the summary judgment stage.
Moreover, I cannot agree with majority’s statement that “[s]imply providing a
Catholic Charities updated adoption fee schedule to Appellants, if indeed that occurred, is
insufficient to form a contract between the Foundation and Appellants regarding those
adoption fees.” Slip op. at 11 (emphasis added). It is perplexing insofar as the record
contains exhibits of Catholic Charities fee schedules. Appellant’s App. p. 50-55.
17 Additionally, the Appellants stated in interrogatories that they were provided with the fee
schedules. Appellants’ App. p. 81-84; 109-113; 138-42.
The Appellants also contend that the trial court erred by deciding questions of
material fact regarding its claim of fraud against the Foundation. More specifically, the
trial court found that the Foundation made no contention that by using its services, the
cost of an international adoption would be lower and much faster. As such, the trial court
found that it did not have to determine whether the “matches” occurred sooner and at a
lower cost since the crux of the complaint were the adoptions. The trial court also
determined that the Appellants’ intermingled “matching” with “adopting” and that the
adopting fees were beyond the control of the Foundation. Appellants’ App. p. 21.
Here, the Appellants designated evidence that the sum of the conversations leading
to the signing of the Host Family Agreement and Fee Acceptance Disclaimer Form and
the additional representations made afterwards led them to believe that the international
adoption process beginning with the Foundation’s “matching” mechanism would be
faster and less costly than traditional international adoptions. The Appellants contend
that the Foundation provided them with adoption fee schedules that represented that the
cost of an international adoption would be between $11,800 and $14,280. Appellants’
App. p. 81, 110, 139. The Appellants maintain that the Foundation was in a superior
position of knowledge and influence and induced each Family through intimidation and
exploitation of their emotional vulnerabilities. Id. at 81-83, 110-12, 139-42.
In light of this evidence, it appears that the trial court simply chose not to believe
the Appellants’ designated evidence that they relied on the Foundation’s assertions that
18 working through them beginning with the matches would lead to faster and less costly
adoptions. These are not necessarily assertions of future events, but rather, assertions of
the expectations of a particular process. Additionally, although it may not have been the
trial court’s intention, it weighed the evidence, and by doing so, it essentially tried the
case at the summary judgment stage of the proceedings. Again, because we must
interpret the evidence and reasonable inferences in favor of the nonmoving party but
expressing no opinion on the merits of this claim, I believe that summary judgment was
improper.
With all due respect, I believe that my esteemed colleagues have essentially
applied the abuse of discretion standard. In other words, the majority reviewed this
appeal as if it had been tried, and this Court is reviewing the verdict. While I
acknowledge that many of our trial courts are juggling overwhelming dockets, we must
nevertheless seek to strike the appropriate balance between efficiency and ensuring that
the citizens of this State have proper access to their courts. Admittedly, this is a close
case, but one in which the proverbial scales tilt in favor of continuation of underlying
litigation. Accordingly, I dissent.