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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: March 13, 2023
4 No. A-1-CA-39687
5 SCOTT ROSER and ROBERTA ROSER,
6 Plaintiffs-Appellees,
7 v.
8 JESSICA L. HUFSTEDLER,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 11 John P. Sugg, District Court Judge
12 Scott Roser 13 Roberta Roser 14 Ruidoso, NM
15 Pro Se Appellees
16 New Mexico Legal Aid, Inc. 17 Lucilla C.G. Clarke 18 Roswell, NM
19 for Appellant 1 OPINION
2 BOGARDUS, Judge.
3 {1} Jessica Hufstedler (Resident) appeals the district court’s order denying her
4 counterclaim for unlawful diminution of services based on her landlords’ act of
5 directing a utility provider to shut off Resident’s water services due to Resident’s
6 unpaid water bill. Resident argues the district court erred in denying her
7 counterclaim, contending that the district court misinterpreted NMSA 1978, Section
8 47-8-36(A)(4) (1995) of the Uniform Owner-Resident Relations Act (UORRA). We
9 agree with Resident and reverse.
10 BACKGROUND
11 {2} This case arises from an action to evict Resident from property owned by Scott
12 and Roberta Roser (Owners). Pursuant to NMSA 1978, Section 47-8-42 (1975) of
13 UORRA, Owners brought a petition for restitution of possession of the premises
14 against Resident based on unpaid rent and property damage, which Resident
15 answered. On March 9, 2021, the magistrate court entered a judgment for restitution
16 in favor of Owners and issued a corresponding writ of restitution. The writ ordered
17 the sheriff to remove Resident “on or after . . . March 16, 2021,” but “no later than
18 seven days following entry of judgment.” On March 15, 2021, Resident filed a notice
19 of appeal of the magistrate court’s judgment in the district court. 1 {3} It is undisputed that, as of Friday, March 19, 2021, the writ of restitution had
2 not been executed, and Resident remained in possession of the premises. As of that
3 date, Resident’s utility bill from the Village of Ruidoso (the Village) showed that
4 she owed the Village $738.39 for water services, which included a past due amount
5 of $612.38 for several months of unpaid charges. As owners of the property,
6 Owners were ultimately responsible for paying this water bill.
7 {4} Aware of Resident’s outstanding balance, Owners called the Village on
8 March 19, 2021, and directed the Village to shut off water services for
9 nonpayment. The Village shut off the water that same day. After 4:00 p.m. on
10 March 19, 2021, Resident paid the Village the past due amount. By the time
11 Owners learned that Resident had paid the outstanding balance, however, the
12 Village water department had closed for the weekend. The Village restored
13 water service the following Monday, March 22, 2021.
14 {5} With the district court’s permission, Resident filed an amended answer,
15 adding a counterclaim for unlawful diminution of services pursuant to Section 47-8-
16 36(A)(4), and seeking abatement of rent for the days Resident was without water
17 service. After a bench trial, the district court denied Resident’s claim for unlawful
18 diminution of services. Resident appeals, and Owner declined to participate in the
19 appeal.
2 1 DISCUSSION
2 {6} Resident argues that the district court erred in denying her counterclaim for
3 unlawful diminution of services because the court misinterpreted Section 47-8-
4 36(A)(4). Whether Section 47-8-36(A)(4) permitted Owner to direct the Village to
5 shut off Resident’s water services involves statutory construction and the application
6 of the statute to undisputed facts, which is a question of law that we review de novo.
7 See Hedicke v. Gunville, 2003-NMCA-032, ¶ 24, 133 N.M. 335, 62 P.3d 1217
8 (stating that statutory interpretation is an issue of law which this Court reviews de
9 novo); Giant Cab, Inc. v. CT Towing, Inc., 2019-NMCA-072, ¶ 6, 453 P.3d 466
10 (“We review de novo the district court’s application of law to the facts.”). Resident
11 argues the district court misinterpreted two provisions of Section 47-8-36(A)(4): (1)
12 the meaning of “court order” and (2) language addressing an owner’s obligations
13 regarding a resident’s unpaid utility charges. We review each argument in turn.1
1 The parties have presented no argument addressing the intent required under Section 47-8-36(A)(4), or whether Owners directed the Village to shut off water services with the required intent. The district court likewise made no determination in this regard. We therefore need not decide and express no opinion on this issue. See Pirtle v. Legis. Council Comm. of N.M. Legislature, 2021-NMSC-026, ¶ 58, 492 P.3d 586 (“As a general rule, appellate courts rely on adversarial briefing to decide legal issues and avoid reaching out to construct legal arguments that the parties, intentionally or otherwise, have not presented. . . . With rare exceptions, this Court . . . should decide the issues presented by the parties, as the parties present them.” (internal quotation marks and citations omitted)).
3 1 I. The District Court Erred in Concluding That a “Court Order” Permitted 2 Owners to End Water Services
3 {7} Section 47-8-36(A) states that “an owner or any person acting on behalf of the
4 owner shall not knowingly exclude the resident, remove, threaten or attempt to
5 remove or dispossess a resident from the dwelling unit without a court order” by
6 taking any one of a series of actions, including by “interfering with services or
7 normal and necessary utilities to the unit . . . including . . . hot or cold water.” Section
8 47-8-36(A)(4) (emphasis added). If the owner violates Section 47-8-36(A), the
9 resident may be entitled to certain remedies for unlawful diminution of services. See
10 § 47-8-36(C). The district court denied Resident’s counterclaim for unlawful
11 diminution of services based on its conclusion that, on the date, Owners directed the
12 Village to shut off Resident’s water, there was a “court order” permitting Owners to
13 end water service, pursuant to Section 47-8-36(A)(4). Specifically, the district court
14 determined that, at the time Owners directed the Village to end water services, the
15 magistrate court had already entered a judgment for restitution of the premises in
16 favor of Owners and issued a writ of restitution directing the sheriff to restore
17 possession to Owners, and that this judgment and writ constituted a “court order”
18 under Section 47-8-36(A). See NMSA 1978, § 47-8-46(A) (1995) (providing that,
19 “[u]pon petition for restitution filed by the owner if judgment is rendered against the
20 defendant for restitution of the premises, the court shall . . ., at the request of the
4 1 plaintiff or [their]attorney, issue a writ of restitution directing the sheriff to restore
2 possession of the premises to the plaintiff”).
3 {8} Resident argues that the district court misinterpreted “court order,”
4 contending that a judgment for restitution for which a writ of restitution has been
5 issued does not constitute a “court order.” Resident points out that no court order
6 authorized Owners to shut off Resident’s water, that Resident remained in the
7 dwelling unit with Owners’ knowledge, and that the sheriff never executed the writ
8 of restitution. The narrow question before us, then, is whether a judgment for
9 restitution for which a writ of restitution has been issued but not executed constitutes
10 a “court order” as used in Section 47-8-36(A)(4). We conclude it does not.
11 {9} We begin with the statute’s plain language and observe that the Legislature
12 used the phrase “court order” rather than “judgment for restitution” or “writ of
13 restitution.” See Baker v. Hedstrom, 2013-NMSC-043, ¶ 11, 309 P.3d 1047 (“When
14 construing statutes, our guiding principle is to determine and give effect to
15 legislative intent,” and “[w]e use the plain language of the statute as the primary
16 indicator of legislative intent.” (alterations, internal quotation marks, and citations
17 omitted)). “The Legislature knows how to include language in a statute if it so
18 desires,” State v. Greenwood, 2012-NMCA-017, ¶ 38, 271 P.3d 753 (alteration,
19 internal quotation marks, and citation omitted), and could have included in Section
20 47-8-36(A) the phrase “judgment for restitution,” “writ of restitution,” or both—
5 1 instead of “court order”—as it did in several other UORRA provisions. See § 47-8-
2 46 (referring to entry of a “judgment . . . for restitution of the premises” and “writ of
3 restitution”); NMSA 1978, § 47-8-47(A) (1999) (referring to “the judgment” and
4 “writ of restitution”); NMSA 1978, § 47-8-33(E)(2) (1999) (referring to “a writ of
5 restitution” and “entry of judgment”). Accordingly, Section 47-8-36(A)’s plain
6 language indicates that the Legislature did not intend that a judgment for restitution
7 for which a writ of restitution has been issued to constitute a “court order.” See
8 Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep’t, 2013-NMSC-013, ¶ 36, 484
9 P.3d 954 (“We have previously said that when the Legislature includes a particular
10 word in one portion of a statute and omits it from another portion of that statute, such
11 omission is presumed to be intentional.” (internal quotation marks and citation
12 omitted)).
13 {10} This interpretation is bolstered by the Legislature’s use of the phrase “court
14 order” in another section of UORRA, where the phrase could not reasonably refer to
15 a judgment for restitution or writ of restitution. See N.M. Dep’t of Game & Fish v.
16 Rawlings, 2019-NMCA-018, ¶ 6, 436 P.3d 741 (“We consider all parts of the statute
17 together, reading the statute in its entirety and construing each part in connection
18 with every other part to produce a harmonious whole.” (alterations, internal
19 quotation marks, and citation omitted)). That section, NMSA 1978, Section 47-8-24
20 (1995), generally restricts an owner’s right to access a dwelling unit to certain
6 1 situations, see § 47-8-24(A), (B), but includes a “court order” exception. See § 47-
2 8-24(D) (providing, in relevant part, that “[t]he owner has no other right of access
3 except by court order” (emphasis added)). That is, Section 47-8-24(D)’s use of
4 “court order” apparently contemplates an order, which authorizes the owner to
5 access a dwelling unit without the resident’s consent, an act generally prohibited by
6 that statute.
7 {11} Section 47-8-36(A) has a similar structure and uses “court order” in a similar
8 way to Section 47-8-24. Like Section 47-8-24, Section 47-8-36(A) restricts an
9 owner’s rights to interfere with a resident’s possession of the dwelling unit. Section
10 47-8-36(A) prohibits an owner from taking certain actions on their own to recover
11 possession of a dwelling unit from a resident who refuses to surrender or abandon
12 the unit. See id. Specifically, Section 47-8-36(A) provides, “Except in case of
13 abandonment, surrender or as otherwise permitted in [UORRA], an owner or any
14 person acting on behalf of the owner shall not knowingly exclude the resident,
15 remove, threaten or attempt to remove or dispossess a resident from the dwelling
16 unit” by committing certain acts, such as changing the locks or as in this case,
17 interfering with necessary utilities. Id. (emphases added). And like Section 47-8-
18 24(D), Section 47-8-36(A) provides for an exception to the statute’s general
19 restriction on owner interference with a resident’s possession of the unit where there
20 is a “court order.” See § 47-8-36(A) (providing that “an owner . . . shall not
7 1 knowingly exclude the resident, remove, threaten or attempt to remove or dispossess
2 a resident from the dwelling unit without a court order” (emphasis added)). Section
3 47-8-36(A)’s use of “court order” thus contemplates an order which authorizes a
4 particular act by an owner that is generally prohibited by the statute: an act to recover
5 possession of the dwelling unit. In the present case, that act was directing the Village
6 to shut off water services, which was prohibited by Section 47-8-36(A)(4).
7 Accordingly, we conclude that Section 47-8-36(A) prohibits an owner from acting
8 to recover possession of a dwelling unit that a resident has not surrendered or
9 abandoned unless a “court order” authorizes the “owner or any person acting on
10 behalf of the owner” to take such action.
11 {12} Adopting the district court’s construction of “court order”—to include a
12 judgment for restitution for which a writ of restitution has been issued but not
13 executed—would frustrate one of UORRA’s goals and lead to illogical results. See
14 Rutherford v. Chaves Cnty., 2003-NMSC-010, ¶ 24, 133 N.M. 756, 69 P.3d 1199
15 (“Statutes are to be read in a way that facilitates their operation and the achievement
16 of their goals.”); Regents of Univ. of N.M. v. Armijo, 1985-NMSC-057, ¶ 5, 103
17 N.M. 174, 704 P.2d 428 (“Statutes should be construed so as to avoid illogical
18 results.”). As discussed, UORRA generally prohibits owners from acting to recover
19 possession of a dwelling unit from a resident who refuses to surrender or abandon
20 the unit. See § 47-8-36(A). UORRA instead places the responsibility for recovering
8 1 possession of the unit with the sheriff. See § 47-8-46(A) (providing that the court
2 “issue a writ of restitution directing the sheriff to restore possession of the premises
3 to the plaintiff” after judgment is rendered against the defendant for restitution of
4 the premises (emphasis added)). UORRA thus seeks to prevent owners themselves
5 from acting to recover possession of a dwelling unit by ensuring that another
6 recovery procedure—executed by a law enforcement official—is in place. See
7 §§ 47-8-36(A),-46(A); see also NMSA 1978, § 47-8-41 (1975) (“An action for
8 possession of any premises subject to the provisions of [UORRA] shall be
9 commenced in the manner prescribed by [UORRA].”); accord 52B C.J.S. Landlord
10 & Tenant § 1484 (2023) (stating that “[t]he modern trend, pursuant to which
11 landlords are generally given a speedy judicial remedy for the recovery of possession
12 of leased property from a tenant improperly holding over after the termination of the
13 lease, is that . . . the landlord . . . may [not] resort to self-help to recover possession
14 of the leased property from the tenant”).
15 {13} Despite the goal of UORRA to avoid owner self-help, under the construction
16 of Section 47-8-36(A) imposed by the district court, an owner could conceivably
17 take action to recover possession of a dwelling unit—by changing the locks or
18 shutting off utilities, for example—as soon as a judgment and writ of restitution
19 directing the sheriff to restore possession was issued, even though the sheriff had not
20 yet executed the writ. Such a result, where the owner’s act could effectively force a
9 1 resident to surrender possession of the dwelling unit, would render the sheriff’s
2 obligation to “restore possession of the premises” unnecessary. See § 47-8-46(A).
3 Moreover, allowing an owner to act to recover possession of a unit as soon the
4 judgment for restitution was entered and writ was issued would render superfluous
5 both Section 47-8-46(A)’s provision that the sheriff must generally wait three days
6 after entry of judgment before executing the writ and Section 47-8-47(A), which
7 contemplates a stay of execution of “any writ of restitution” in the event of an appeal
8 by the resident under certain circumstances. See Am. Fed’n of State, Cnty. & Mun.
9 Emps. (AFSCME) v. City of Albuquerque, 2013-NMCA-063, ¶ 5, 304 P.3d 443
10 (“Statutes must . . . be construed so that no part of the statute is rendered surplusage
11 or superfluous.” (internal quotation marks and citation omitted)). Accordingly,
12 adopting the district court’s construction of “court order” would frustrate rather than
13 facilitate achievement of UORRA’s goal of preventing owners from acting on their
14 own to recover possession of a dwelling unit. See §§ 47-8-36, -46.
15 {14} In sum, we conclude that “court order” as used in Section 47-8-36(A)
16 contemplates an order authorizing the “owner or any person acting on behalf of the
17 owner” to recover possession of the dwelling unit. A judgment for restitution for
18 which a writ of restitution has been issued does not constitute such an order.
19 Accordingly, the district court erred in concluding that the judgment for restitution
10 1 and its accompanying writ constituted a court order permitting Owners to direct the
2 Village to shut off the dwelling unit’s water services.
3 II. The District Court Misinterpreted Section 47-8-36(A)(4)’s Duty 4 Exemption Clause
5 {15} As an additional ground for denying Resident’s unlawful diminution of
6 services claim, the district court concluded that Owners’ act of directing the Village
7 to shut off water services was permitted based on the following language in Section
8 47-8-36(A)(4):
9 [A]n owner . . . shall not knowingly exclude the resident, remove, 10 threaten or attempt to remove or dispossess a resident from the dwelling 11 unit without a court order by . . . interfering with services or normal and 12 necessary utilities to the unit . . ., including . . . hot or cold water . . ., 13 provided that this section shall not impose a duty upon the owner to 14 make utility payments or otherwise prevent utility interruptions 15 resulting from nonpayment of utility charges by the resident.
16 (Emphases added.) We refer to this italicized language as the “duty exemption
17 clause.”
18 {16} The district court concluded that, because the Village was holding Owners
19 responsible for Resident’s unpaid water bill,2 the duty exemption clause permitted
20 Owners to direct the Village to shut off the dwelling unit’s water services. Resident
21 does not dispute that the Village had the right to hold Owners responsible for
See Village of Ruidoso, N.M., Code of Ordinances ch. 86, art. I., § 86-5(a) 2
(2014) (providing that utility charges are payable jointly and severally by the owner and principal occupant).
11 1 Resident’s unpaid water bill but argues that the district court misinterpreted the duty
2 exemption clause, contending that the clause did not permit Owners to direct the
3 Village to end her water services. We agree with Resident.
4 {17} “[C]ourts read an entire statute as a whole, considering statutory provisions in
5 relation to one another, and give effect to all provisions of a statute so as to render
6 no part inoperative or surplusage.” Pirtle, 2021-NMSC-026, ¶ 19 (citation omitted));
7 see id. (recognizing that “[c]ourts assume that every word, phrase, and clause in a
8 legislative enactment is intended and has some meaning and that none was inserted
9 accidentally”). Here, however, the district court appears to have relied on the first
10 part of the duty exemption clause—“this section shall not impose a duty upon the
11 owner to make utility payments”—without reference to the clause’s second portion:
12 “or otherwise prevent utility interruptions resulting from nonpayment of utility
13 charges by the resident.” Section 47-8-36(A)(4) (emphasis added). In doing so, the
14 district court rendered superfluous the phrase “otherwise prevent.” See AFSCME,
15 2013-NMCA-063, ¶ 5 (“Statutes must . . . be construed so that no part of the statute
16 is rendered surplusage or superfluous.” (internal quotation marks and citation
17 omitted)). We explain.
18 {18} Read as a whole, the duty exemption clause contemplates a situation in which,
19 because of “nonpayment of utility charges by the resident,” a utility provider acts to
20 interrupt those utilities. See § 47-8-36(A)(4); see also, e.g., NMSA 1978, § 3-23-
12 1 1(B) (2011) (providing that a municipality may discontinue water service if payment
2 of a water charge is not made within thirty days from the date the payment is due).
3 When a utility provider takes such action to interrupt utility services, Section 47-8-
4 36(A)(4) “shall not impose a duty upon the owner to . . . prevent [the] . . .
5 interruption[] resulting from nonpayment of utility charges by the resident.”
6 {19} Section 47-8-36(A)(4) contemplates various methods by which an owner
7 could prevent such utility interruptions. We read the duty exemption clause’s first
8 part as recognizing the principal method by which an owner could prevent such an
9 interruption: “mak[ing] utility payments” on behalf of the nonpaying resident. See
10 id. The clause’s use of “or otherwise prevent utility interruptions,” however,
11 contemplates that there may be other methods—apart from payment—by which an
12 owner could prevent such utility interruptions. See id. (emphasis added). In this way,
13 the clause’s use of “otherwise prevent” indicates that the owner’s act of “mak[ing]
14 utility payments” is done to “prevent utility interruptions resulting from nonpayment
15 of utility charges by the resident.” See id. (emphasis added). Accordingly, an owner
16 has no duty to make utility payments to “prevent utility interruptions resulting from
17 nonpayment of utility charges by the resident.” Id.
18 {20} The duty exemption clause therefore presupposes some affirmative act by a
19 utility provider to interrupt the resident’s utility services, in which case the owner is
20 relieved of any duty to make payment on the resident’s behalf to prevent this
13 1 interruption. Here, it is undisputed that there is no evidence the Village provided
2 notice of a utility shut off, told Resident or Owners that service would be shut off
3 unless Resident’s bill was paid, nor otherwise acted to interrupt service. Owners’ act
4 of directing the Village to shut off water services was thus not made in response to
5 any act by the Village to shut off service. Because the Village had not acted to
6 interrupt utility services before Owner directed the Village to do so, the duty
7 exemption clause does not apply. The district court erred in concluding otherwise.
8 {21} Our conclusion is further supported by the goal of UORRA to limit owner
9 self-help remedies. See Armijo, 1985-NMSC-057, ¶ 5; Baker, 2013-NMSC-043,
10 ¶ 11. Under the district court’s interpretation, an owner could conceivably act to
11 interfere with a resident’s necessary utilities—effectively evicting the resident—
12 whenever a resident had past due utility charges for which the owner could
13 eventually become liable, absent a court order or any act from the utility company
14 to interrupt service. Allowing an owner to effectively evict a resident in this way
15 would frustrate Section 47-8-36(A)’s goal of preventing owners from acting on their
16 own to recover possession of a dwelling unit. See §§ 47-8-36(A), -46(A); accord
17 52B C.J.S. Landlord & Tenant § 1484.
18 {22} Adopting the district court’s interpretation would also frustrate UORRA’s
19 purpose of simplifying and clarifying the rights and obligations of owners and
20 residents. See NMSA 1978, § 47-8-2 (1975); Runge v. Fox, 1990-NMCA-086, ¶ 11,
14 1 110 N.M. 447, 796 P.2d 1143. More specifically, allowing an owner to interfere with
2 a resident’s necessary utilities when a resident had an outstanding utility balance for
3 which the owner could become liable would blur the rights of owners in relation to
4 the obligations of utility providers, which are required by state and local law to
5 follow certain procedures before terminating utility services. See, e.g., § 3-23-1(B)
6 (providing that a municipality may not discontinue water service sooner than thirty
7 days from the date the payment is due); NMSA 1978, § 27-6-17(A) (1993)
8 (providing that “no gas or electric utility shall discontinue service to any residential
9 customer for nonpayment during the period from November 15 through March 15
10 unless” requested by the customer or specific procedures are followed); Village of
11 Ruidoso, N.M., Code of Ordinances ch. 86, art. I., § 86-6 (a)-(c) (1999) (providing
12 that the Village must give customers a thirty day period to pay past due charges and
13 an additional ten-days’ notice before terminating service to the customer). For these
14 reasons, we conclude the district court erred in concluding that Section 47-8-
15 36(A)(4)’s duty exemption clause permitted Owners to direct the Village to shut off
16 water services.
17 {23} We acknowledge that, in certain circumstances, an owner could become liable
18 for a resident’s unpaid utility charges accrued before a writ of restitution is executed
19 and before a utility provider acts to terminate service due to nonpayment by the
20 resident. Nevertheless, both UORRA and contract law provide protections for
15 1 owners in such a scenario. See NMSA 1978, § 47-8-4 (1995) (providing that
2 principles of law, including the law relating to capacity to contract, supplement
3 UORRA, unless UORRA displaces those principles); see also Hedicke, 2003-
4 NMCA-032, ¶¶ 25, 27 (looking to the language of UORRA and the rental agreement
5 to resolve the owners’ attorney fees claim against residents). The Rental Agreement
6 in this case, read together with UORRA, illustrates these protections.
7 {24} Under UORRA, “If the rental agreement is terminated, the owner is entitled
8 to possession and may have a claim for rent and a separate claim for damages for
9 breach of the rental agreement.” NMSA 1978, § 47-8-35 (1975) (emphases added).
10 The Rental Agreement in this case provided that Resident must place all utilities in
11 Resident’s name, that any bill received by Owner for Resident’s utilities “will be
12 treated as unpaid rent,” and that “[a]ny failure by [Resident]” to “pay utility bills
13 when due will constitute a material breach of th[e Rental] Agreement” for which
14 Owner has “the right to serve a notice of noncompliance.” See § 47-8-33(A), (B)
15 (providing for seven days’ notice before an owner may terminate a rental agreement
16 for material noncompliance); § 47-8-33(D) (providing for written notice of
17 nonpayment of rent and intent to terminate the rental agreement and for an additional
18 three days after receipt of that written notice before an owner may terminate a rental
19 agreement for unpaid rent). Thus, under UORRA and the terms of the Rental
20 Agreement, Owners possessed a remedy to recover from Resident any unpaid utility
16 1 bill for which Owners became liable through either a claim for rent or damages for
2 breach of the Rental Agreement. See § 47-8-35. As further protection for owners
3 compelled to pursue these claims, “UORRA mandates the award of attorney fees to
4 the prevailing party.” Hedicke, 2003-NMCA-032, ¶ 25 (citing NMSA 1978, § 47-8-
5 48(A) (1995)).
6 CONCLUSION
7 {25} For the foregoing reasons, we reverse the district court’s judgment denying
8 Resident’s claim for unlawful diminution of services and remand for further
9 proceedings on this issue in accordance with this opinion.
10 {26} IT IS SO ORDERED.
11 ____________________________ 12 KRISTINA BOGARDUS, Judge
13 WE CONCUR:
14 ________________________________ 15 GERALD E. BACA, Judge
16 ________________________________ 17 KATHERINE A. WRAY, Judge