IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-207
No. COA21-204
Filed 5 April 2022
Mecklenburg County, No. 18 CVS 19752
PATRICK PRESTON, Plaintiff,
v.
TOSHIKO PRESTON, Defendant.
Appeal by defendant from order entered 2 September 2020 by Judge Karen D.
McCallum in Mecklenburg County District Court. Heard in the Court of Appeals 26
January 2022.
Hamilton Stephens Steele & Martin, PLLC, by Kyle W. LeBlanc, for Plaintiff- Appellee.
Fleet Law, by Jennifer L. Fleet, for Defendant-Appellant.
CARPENTER, Judge.
¶1 Toshiko Preston (“Defendant”) appeals from an order granting sanctions and
attorneys’ fees to Patrick Preston (“Plaintiff”). We dismiss Defendant’s appeal as
interlocutory.
I. Background
¶2 Plaintiff and Defendant were married on 25 July 1988. The facts leading to
the imposition of sanctions against Defendant are as follows: Plaintiff filed a PRESTON V. PRESTON
Opinion of the Court
complaint for absolute divorce in October 2018. On 12 July 2019, Defendant filed her
answer as well as motions to dismiss for lack of subject matter jurisdiction, improper
venue, insufficiency of process, failure to state a claim, and a motion for sanctions. A
hearing on these motions was held on 15 January 2020 (“the motions to dismiss
hearing”). At the motions to dismiss hearing, the trial court indicated Defendant
argued “profusely” that Plaintiff was not a citizen or resident of Mecklenburg County,
that venue was improper in Charlotte, North Carolina and that North Carolina
lacked jurisdiction to proceed with Plaintiff’s complaint for absolute divorce. The trial
court found Plaintiff was, in fact, a North Carolina resident, and jurisdiction was
proper. Defendant appealed the trial court’s decision, and those matters were
resolved by this Court in the case of Preston v. Preston, 2021-NCCOA-670
(unpublished). In the appeal now before us, we review the imposition of sanctions
against Defendant pursuant to N.C. Gen. Stat. § 1A-1, R. 11 (2021) (“Rule 11”).
¶3 On 14 January 2020, one day before the motions to dismiss hearing, Defendant
signed a verification for her complaint for post separation support, alimony, equitable
distribution, and attorneys’ fees. Contrary to the position she took at the motions to
dismiss hearing, Defendant’s complaint stated Plaintiff was a resident of North
Carolina and admitted jurisdiction was proper. The complaint was file stamped on
15 January 2020, approximately one hour after the conclusion of the motions to
dismiss hearing. In February 2020, Defendant also filed a motion to stay the divorce PRESTON V. PRESTON
proceeding, which was denied. Plaintiff subsequently filed a motion for sanctions and
attorneys’ fees pursuant to Rule 11. The divorce had not been finalized at the time
both parties’ briefs were filed.
¶4 On 1 September 2020, the trial court signed a written order granting Plaintiff’s
request for sanctions against Defendant and ordering Defendant to pay Plaintiff
$15,000.00 in attorneys’ fees, to be remitted in monthly increments of $300.00 until
paid in full. On 30 September 2020 Defendant filed a notice of appeal.
II. Jurisdiction
¶5 Defendant’s appeal is interlocutory. “An interlocutory order is one made
during the pendency of an action, which does not dispose of the case, but leaves it for
further action by the trial court in order to settle and determine the entire
controversy.” Beasley v. Beasley, 259 N.C. App. 735, 738, 816 S.E.2d 866, 870 (2018)
(citation omitted). “[N]o appeal lies to an appellate court from an interlocutory order
or ruling of the trial judge unless such ruling or order deprives the appellant of a
substantial right.” Waters v. Qualified Pers., Inc., 294 N.C. 200, 207, 240 S.E.2d 338,
343 (1978) (internal citations and quotation marks omitted). This Court has
previously held: “Certain sanctions have been deemed immediately appealable
because they affect a substantial right . . . [h]owever, an order to pay attorney’s fees
as a sanction does not affect a substantial right.” Long v. Joyner, 155 N.C. App. 129,
134, 574 S.E.2d 171, 175, (2002) (emphasis added) (internal quotations and citations PRESTON V. PRESTON
omitted). As we stated in Long, “[t]he order granting attorney fees is interlocutory,
as it does not finally determine the action nor affect a substantial right which might
be lost, prejudiced, or be less than adequately protected by exception to entry of the
interlocutory order.” Id. at 134, 574 S.E.2d at 175 (quoting Cochran v. Cochran, 93
N.C. App. 574, 577, 378 S.E.2d 580, 582 (1989)).
¶6 However, we have also held an order for a party to pay a “significant amount
of money” may be immediately appealed if it can be shown by the appealing party to
affect a substantial right. See Estate of Redden ex rel. Morely v. Redden, 179 N.C.
App. 113, 116-17, 632 S.E.2d 794, 798 (2006) (“The Order appealed affects a
substantial right of [the] Defendant . . . by ordering her to make immediate payment
of a significant amount of money; therefore this Court has jurisdiction over the
Defendant’s appeal pursuant to N.C. Gen. Stat. § 1-277 and N.C. Gen. Stat. § 7A-
27(d).” (citations omitted)), remanded on other grounds, 361 N.C. 352, 649 S.E.2d 638
(2007); N.C. Gen. Stat. § 7A-27(b). Of course, “[t]he burden is on the appellant to
establish that a substantial right will be affected unless he is allowed immediate
appeal from an interlocutory order.” Embler v. Embler, 143 N.C. App. 162, 166, 545
S.E.2d 259, 262 (2001) (citation omitted).
¶7 In Beasley v. Beasley, the plaintiff was ordered to pay $48,188.15 in attorneys’
fees to his former wife. 259 N.C. App. at 742, 816 S.E.2d at 873. The trial court had
not determined and resolved the parties’ equitable distribution claims. Id. at 741, PRESTON V. PRESTON
816 S.E.2d at 872. In Beasley, the issue before this Court was “whether an order for
attorney’s fees, which completely disposes of that issue as it relates to other
substantive claims, is immediately appealable . . . particularly where . . . it arguably
affects a substantial right.” Id. at 741, 816 S.E.2d at 872 (citations and internal
quotation marks omitted). This Court held the plaintiff’s interlocutory appeal was
entitled to immediate review and reasoned:
to delay plaintiff's appeal from the order regarding attorney’s fees until a final determination on the merits of all the parties’ remaining claims would jeopardize plaintiff’s substantial right not only because it is “an order which completely disposes of one of several issues in a lawsuit . . . but also because it orders plaintiff to pay a not insignificant amount—$48,188.15—in attorney’s fees.
Id. at 742, 816 S.E.2d at 872–73.
¶8 The distinction between Beasley and the case at bar is two-pronged and lies in
the manner in which the award for attorneys’ fees was requested. In Beasley, an
award of attorneys’ fees was requested pursuant to statutory authority, specifically
N.C. Gen. Stat. § 50-13.6 (2017) (“Counsel fees in actions for custody and support of
minor children”) and N.C. Gen. Stat. § 50-16.4 (2017) (“Counsel fees in actions for
alimony, post-separation support”). Id. at 740, 816 S.E.2d at 871. In the case at bar,
Plaintiff does not request an award of attorneys’ fees pursuant to North Carolina’s
alimony or child support statutes, but requests the award in conjunction with Rule
11, as part of a motion for sanctions against Defendant. See N.C. Gen. Stat. § 1A-1, PRESTON V. PRESTON
R. 11.
¶9 As to the first distinction between Beasley and the case at bar, the grant of
attorneys’ fees in Beasley involved the final disposal of an underlying issue, while the
grant of attorneys’ fees in the case at bar stems from a Rule 11 motion for sanctions
intended to address Defendant’s conduct in the ongoing lawsuit. Id. at 741, 816
S.E.2d at 872. “[A]n order which completely disposes of one of several issues in a
lawsuit affects a substantial right.” Case v. Case, 73 N.C. App. 76, 78, 325 S.E.2d
661, 663 (1985) (citing Oestreicher v. Stores, 290 N.C. 118, 225 S.E. 2d 797 (1976)).
However, the sanctioning nature of the issue in the present case does not involve the
disposal of an issue underlying the parties’ original divorce litigation; rather, it
presents an entirely new question. The trial court ordered Defendant to pay Plaintiff
$15,000.00 in attorneys’ fees, to be remitted in monthly increments of $300.00 until
paid in full. The order of such a sanction, pursuant to Rule 11, was imposed to
address and deter Defendant’s conduct, which the trial court found to be significant
in the ongoing action. The imposition of the Rule 11 sanctions was clearly intended
to serve as a continuing deterrent, not as a signifier of the disposal of an issue
underlying the parties’ original divorce litigation. See Case, 73 N.C. App at 78, 325
S.E2d at 663.
¶ 10 Secondly, according to N.C. Gen. Stat. § 50-16.4 (2021), “the court may, upon
application of such spouse, enter an order for reasonable counsel fees, to be paid and PRESTON V. PRESTON
secured by the supporting spouse in the same manner as alimony.” N.C. Gen. Stat §
50-16.4 (emphasis added). Based on the plain language of N.C. Gen. Stat. § 50-16.4,
the legislature intended a dependent spouse should receive the award when a request
for attorneys’ fees was made pursuant to the statute.
¶ 11 There is a difference between the N.C. Gen. Stat. § 50-16.4 scenario and a
request for attorneys’ fees made pursuant to a Rule 11 motion for sanctions, as the
purpose of an award for attorneys’ fees in conjunction with a Rule 11 motion for
sanctions is to prevent a party’s injurious conduct, including harassment and causing
unnecessary delay, from continuing during ongoing litigation. See N.C. Gen. Stat. §
1A-1, R. 11. Although Defendant admitted in her complaint for post separation
support and alimony she is the “dependent spouse,” and Plaintiff is the “supporting
spouse” pursuant to N.C. Gen. Stat. § 50-16.1A (2), (5) (2021), and stated she does not
have adequate resources to meet her reasonable needs, Plaintiff’s request for
attorneys’ fees in conjunction with a Rule 11 motion is not limited by a qualifier
suggesting the receiver of the award should be the dependent spouse. Cf. Beasley,
259 N.C. App. at 751, 816 S.E.2d at 877-78.
¶ 12 Where Plaintiff’s request for attorneys’ fees was made in conjunction with a
Rule 11 motion for sanctions, whether the sanction involved an immediate payment
of a significant amount of money is important to the determination of whether the
sanction affects a substantial right. See Estate of Redden ex rel. Morely at 116-17, PRESTON V. PRESTON
632 S.E.2d at 798. However, no case law exists to support the contention Defendant’s
status as a dependent spouse affects whether Defendant has a substantial right to
have this Court hear her interlocutory appeal. Defendant’s bare assertion she is
unable to pay does not suffice to confer jurisdiction on this Court. See, e.g., Hoke Cty.
Bd. of Educ. v. State, 198 N.C. App. 274, 277-78, 679 S.E.2d 512, 516 (2009) (“The
appellants must present more than a bare assertion that the order affects a
substantial right; they must demonstrate why the order affects a substantial right.”).
Defendant provides no argument in her brief attempting to meet her burden of
establishing that a substantial right will be affected unless she is allowed an
immediate appeal from an interlocutory order. See Embler v. Embler, 143 N.C. App.
162, 166, 545 S.E.2d 259, 262 (2001) (citation omitted) (“The burden is on the
appellant to establish that a substantial right will be affected unless he is allowed
immediate appeal from an interlocutory order.”). “It is not the duty of this Court to
construct arguments for or find support for appellant’s right to appeal from an
interlocutory order[.]” Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380,
444 S.E.2d 252, 254 (1994). This Court therefore lacks jurisdiction to hear
Defendant’s appeal based on the contention the award of attorneys’ fees affects a
substantial right.
III. Conclusion
¶ 13 The trial court’s award of Plaintiff’s request for attorneys’ fees in conjunction PRESTON V. PRESTON
with a Rule 11 motion for sanctions against Defendant does not dispose of an
underlying issue involved in the parties’ divorce litigation and has not been shown by
Defendant to affect a substantial right. This Court does not have jurisdiction to hear
Defendant’s appeal from an interlocutory order, and Defendant’s appeal is therefore
dismissed.
Judge ARROWOOD concurs.
Judge TYSON dissents by separate opinion. No. COA21-204 – Preston v. Preston
TYSON, Judge, dissenting
¶ 14 Plaintiff’s counsel’s anticipation of a potential adverse outcome on the issue of
jurisdiction and the parties’ domicile and subsequent filing of claims in North
Carolina does not support nor warrant Rule 11 sanctions. Plaintiff’s substantial
rights are affected by the issuance of attorney’s fees as sanctions under Rule 11 to
warrant an immediate review. I vote to address these substantial rights and to vacate
the trial court’s order. I respectfully dissent.
¶ 15 Defendant signed a verification for her complaint for post-separation support,
alimony, equitable distribution, and attorney fees on 14 January 2019. That
complaint was not filed until 15 January 2020, after the jurisdictional hearing and
ruling. Defendant’s complaint stated Plaintiff was a resident of North Carolina,
admitted jurisdiction was proper, and was filed one hour after the hearing concluded.
Defendant filed a motion to stay the divorce proceeding in February 2020 which was
denied. Plaintiff then filed his motion for Rule 11 sanctions and for attorney fees.
The divorce had not been finalized at the time both parties’ briefs were filed.
¶ 16 The trial court granted Plaintiff’s request for sanctions against Defendant and
ordered Defendant to pay Plaintiff $15,000.00 in attorney fees. Defendant appeals.
A. Interlocutory Appeal PRESTON V. PRESTON
TYSON, J., dissenting
¶ 17 “An interlocutory order is one made during the pendency of an action, which
does not dispose of the case, but leaves it for further action by the trial court in order
to settle and determine the entire controversy.” Beasley v. Beasley, 259 N.C. App. 735,
738, 816 S.E.2d 866, 870 (2018) (citation omitted). “[N]o appeal lies to an appellate
court from an interlocutory order or ruling of the trial judge unless such ruling or
order deprives the appellant of a substantial right.” Waters v. Qualified Personnel,
Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978) (citations omitted).
Admittedly the “substantial right” test for appealability of interlocutory orders is more easily stated than applied. It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered.
Id. at 208, 240 S.E.2d at 343.
B. Substantial Right
¶ 18 As the majority’s opinion explains, in Beasley, the plaintiff was ordered to pay
$48,188.15 in attorney fees to his former wife. Beasley, 259 N.C. App. at 742, 816
S.E.2d at 873. The trial court had not determined and resolved the couple’s equitable
distribution claims. Id. at 741, 816 S.E.2d at 872. On appeal, the issue before this
Court was “whether an order for attorney’s fees, which completely disposes of that
issue as it relates to other substantive claims, is immediately appealable . . .
particularly where . . . it arguably affects a substantial right.” Id. (citations and PRESTON V. PRESTON
internal quotation marks omitted).
¶ 19 This Court held the plaintiff’s interlocutory appeal was entitled to immediate
review and reasoned:
to delay plaintiff’s appeal from the order regarding attorney’s fees until a final determination on the merits of all the parties’ remaining claims would jeopardize plaintiff’s substantial right not only because it is “an order which completely disposes of one of several issues in a lawsuit but also because it orders plaintiff to pay a not insignificant amount—$48,188.15—in attorney’s fees[.]
Id. at 742, 816 S.E.2d at 872–73 (citation omitted).
C. Award of Attorney Fees
¶ 20 “[A] trial court’s award of attorneys’ fees must be supported by proper findings
considering ‘the time and labor expended, the skill required, the customary fee for
like work, and the experience or ability of the attorney.’” ACC Const., Inc. v. SunTrust
Mortg., Inc., 239 N.C. App. 252, 271, 769 S.E.2d 200, 213 (2015) (citation omitted).
The North Carolina State Bar has issued a conjunctive eight-factor rule concerning
the reasonableness of attorney fees:
(a) A lawyer shall not make an agreement for, charge, or collect an illegal or clearly excessive fee or charge or collect a clearly excessive amount for expenses. The factors to be considered in determining whether a fee is clearly excessive include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the PRESTON V. PRESTON
acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.
27 N.C. Admin. Code 2.1.05 (Supp. 2021) (emphasis supplied).
¶ 21 Here, Plaintiff’s counsel’s fee affidavit covers the time period from the
inception of Plaintiff’s divorce action in September 2018 up to and including
Plaintiff’s motion for sanctions in 2020. The affidavit highlights Plaintiff’s counsel’s
time working for Plaintiff. The trial court did not make these findings prior to award.
The eight factors listed above to determine reasonable attorney fees are unaffected
by the actions of the opposing party. ACC Const., Inc., 239 N.C. App. at 271, 769
S.E.2d at 213. Defendant’s substantial rights are affected to warrant immediate
review.
D. Rule 11
¶ 22 Further, Rule 11 provides:
If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which PRESTON V. PRESTON
may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
N.C. Gen. Stat. § 1A-1, Rule 11(a) (2021) (emphasis supplied). If sanctions are
warranted in this case, a reasonable fee must be calculated from the filing of the
sanctioned complaint on 15 January 2020 pursuant to Rule 11, not for Defendant’s
actions prior to the filing of the sanctioned complaint.
¶ 23 Defendant and Plaintiff each filed a myriad of complaints and motions
throughout the preceding three years. Plaintiff argues Defendant’s jurisdictional
challenges unreasonably caused delays. The evidence, findings, and conclusions do
not support this assertion. Plaintiff failed to provide the proper petition and the trial
court findings do not support a conclusion holding Defendant financially responsible
for nearly 30 months of legal fees prior to Defendant’s purported sanctionable
conduct. See id.
¶ 24 Defendant asserted in her complaint for post-separation support and alimony
that she is the dependent spouse and asserts Plaintiff is the supporting spouse
pursuant to N.C. Gen. Stat. § 50-16.1A(2),(5) (2021). Defendant stated she does not
have adequate resources to meet her reasonable needs. The underlying divorce has
not been finalized, which further complicates the issue of marital and non-marital
property from which the $15,000 fee could be taken. PRESTON V. PRESTON
¶ 25 Considering the particular facts of this case, Defendant’s substantial rights are
affected by the trial court’s order to pay a “not insignificant amount” before the final
determination of the divorce judgment. Beasley, 259 N.C. App. at 742, 816 S.E.2d at
872-73. I vote to allow Defendant’s interlocutory appeal under a substantial right.
III. Argument
A. Standard of Review
The trial court’s decision to impose or not to impose mandatory sanctions under N.C.G.S. § 1A–1, Rule 11(a) is reviewable de novo as a legal issue. In the de novo review, the appellate court will determine (1) whether the trial court’s conclusions of law support its judgment or determination, (2) whether the trial court’s conclusions of law are supported by its findings of fact, and (3) whether the findings of fact are supported by a sufficiency of the evidence.
....
[I]n reviewing the appropriateness of the particular sanction imposed, an “abuse of discretion” standard is proper[.]
Turner v. Duke Univ., 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989).
B. Imposition of Rule 11 Sanctions
¶ 26 Defendant argues the trial court erred in issuing Rule 11 sanctions against
her. Plaintiff argues Defendant’s signature and date on the verification de facto
violates Rule 11 and requires sanctions as a matter of law. Rule 11 states in relevant
part: PRESTON V. PRESTON
The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
N.C. Gen. Stat. § 1A-1, Rule 11(a) (emphasis supplied).
¶ 27 When a party acts in “good faith and upon the advice of counsel” our Supreme
Court has held that such conduct is objectively reasonable. Bryson v. Sullivan, 330
N.C. 644, 662, 412 S.E.2d 327, 336 (1992). Counsel bears a duty to zealously advocate
for her client. 27 N.C. Admin. Code 2.0.1(b) (2021).
¶ 28 Here, Defendant’s attorney had prepared a summons, draft complaint, and
verification, which Defendant signed on 14 January 2020, to be filed in the event of
an adverse ruling by the trial court the next day. During the hearing, Defendant, a
resident of the state of Maryland, had argued North Carolina did not have proper
jurisdiction over the parties’ divorce proceedings. The parties stipulate the trial
court’s determination that subject matter and personal jurisdiction were proper in
North Carolina did not occur until 15 January 2020.
¶ 29 Defense counsel signed the summons and complaint and filed them
approximately one hour after conclusion and ruling on the hearing on 15 January PRESTON V. PRESTON
2020. Plaintiff argues one hour after the hearing, Defendant acknowledged North
Carolina courts have jurisdiction in her filed compliant for post-separation support,
alimony, equitable distribution, and attorney fees. Defense counsel claimed she
followed this protocol to preserve Defendant’s answer to and claims on the merits of
Plaintiff’s complaint for divorce.
¶ 30 The trial court’s Rule 11 findings of fact stated Defendant’s actions warrant
sanctions because she “was duly sworn and… acknowledged that the contents of the
Complaint were true of her own personal knowledge.” When the complaint and
verification were filed, the trial court had already determined jurisdiction was proper
in North Carolina. Defendant acknowledged North Carolina’s jurisdiction as the
court had ruled.
¶ 31 Defendant acted in good faith following the guidance of her counsel in signing
the corresponding complaint and verification, which was filed only after the adverse
ruling on jurisdiction. Defendant accepted the trial court’s ruling after the hearing
and moved forward with her legal strategy to preserve her claims and defenses on
the merits. Defendant is not required to agree with the trial court’s determination
before she signs and her counsel files a complaint.
¶ 32 It is not sanctionable for counsel to alternatively anticipate an adverse outcome
and to plan accordingly. Defendant’s acknowledgement of North Carolina
jurisdiction only occurred after her attorney filed her complaint to protect her marital PRESTON V. PRESTON
interests in North Carolina. Whether it was filed an hour, day, or week later after
the court ruled is immaterial.
¶ 33 Even if sanctions were appropriate, the trial court made an error of law and
abused its discretion by ordering Defendant to pay for the entirety of Plaintiff’s
attorney fees. Both parties filed a myriad of complaints and motions throughout the
preceding. Plaintiff failed to show why Defendant should be financially responsible
for more than two years of legal fees prior to Defendant’s purported sanctionable
conduct. See N.C. Gen. Stat. § 1A-1, Rule 11(a).
¶ 34 The majority’s opinion acknowledges the implementation of Rule 11 sanctions
is the basis to award attorney fees in this case. The imposition of Rule 11 sanctions
against Defendant which resulted in ordering her to pay Defendant’s attorney’s fees
from inception is unreasonable and invalid. Plaintiff’s arguments are without merit.
IV. Conclusion
¶ 35 Defendant has asserted and shown a substantial right to merit immediate
review. Defendant’s counsel acted zealously and pre-emptively in preparing
summons, a complaint, and a verification to be signed by an out-of-state party in
anticipation of a potential adverse ruling on jurisdiction and domicile. Rule 11 is not
violated by preparing drafts of pleadings in anticipation of an unfavorable ruling,
which are not filed until after the court’s decision. Defendant acted in good faith
under advice of counsel. See Bryson, 330 N.C. at 662, 412 S.E.2d at 336 PRESTON V. PRESTON
¶ 36 Substantial attorney fees awarded as Rule 11 sanctions are immediately
appealable and are not warranted under these facts. The award of Plaintiff’s
substantial attorney fees for other and non- jurisdictional matters against Defendant,
a dependent spouse, is also unwarranted. I vote to vacate the sanctions order and
remand to the trial court for further proceedings. I respectfully dissent.