IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ROVER STAY OVER, INC., a No. 87904-9-I Washington State corporation DIVISION ONE Appellant,
v. UNPUBLISHED OPINION
WHATCOM COUNTY, a municipal entity,
Respondent.
SMITH, J. — Charmae and Ken Scheffer own and operate Rover Stay
Over, Inc., a canine boarding and kennel facility in Whatcom County. In 2020,
the United States Department of Homeland Security, Customs and Border
Protection (CBP) issued a solicitation for canine boarding services. Three
businesses applied, including Rover and R&R Kennels, LLC. During bid review,
CBP contacted Whatcom County’s Buildings and Code Department to confirm if
the applicants complied with local permitting and zoning laws. The County stated
that Rover and R&R Kennels had conditional use permits (CUPs) that allowed
them to operate kennels in their respective locations. In fact, R&R Kennels’s
CUP expired some years prior. CBP awarded the contract to R&R Kennels.
Rover filed a bid protest with the United States Government Accountability Office
(GAO), which was ultimately dismissed. Rover sued Whatcom County for
negligence and tortious interference with contract or business expectancy. The No. 87904-9-I/2
trial court granted summary judgment in favor of Whatcom County. Rover
appeals. Finding no error, we affirm.
FACTS
Charmae and Ken Scheffer own and operate Rover Stay Over, Inc.
kenneling services at their facility in Lynden, Washington. The facility is in an
agricultural (AG) zone. Before acquiring the facility, the Scheffers met with
Whatcom County to discuss their plans to operate a commercial dog kennel.
Whatcom County informed Rover that commercial dog kennels are prohibited in
an AG zone, and the County recommended they look at properties in a rural
zone instead. Nonetheless, Rover acquired the facility in Lynden and operated a
kennel and boarding business.
In May 2014, the County issued Rover a notice of violation, stating that
Rover’s kennel violated Whatcom County zoning ordinance, Title 20, and the
international residential/building code. The violation observed (1) that the existing
structure was not permitted for kenneling, (2) a new unpermitted structure was in
the process of being built, and (3) a chain-link fenced area where six to eight
Homeland Security vehicles were stored until dispatched for what appears to be
K-9 patrol, which is a prohibited use in the AG zone.1 A month later, the County
posted a stop work order on Rover’s new unpermitted structure, but the County
and Rover agreed that a stop work order would not be posted on the existing
1 The violation detailed that the existing structure was legally permitted to be used as a single story storage or agriculture building for personal use only. The violation also stressed that storing CBP vehicles and operating a kennel were not allowable uses in an AG zone.
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structure. Later in 2014, Rover contracted with CBP to provide canine kenneling
services for up to five years. In 2016, the County approved Rover’s application
for a conditional use permit (CUP) to kennel CBP canines as a public community
facility, but this did not allow Rover to perform kennel services in an AG zone. In
2018, the County amended its zoning ordinance to allow kenneling services in
the AG zone with a CUP. In August 2020, Rover was approved to operate as a
commercial kennel, and Rover had no other outstanding regulatory issues.
During Rover’s contract with CBP, Rover encountered several issues with
CBP Officer Escobar, whose canine was boarded at Rover. In 2016, Rover
notified CBP of conflicts that the owner had with Officer Escobar, including that
Officer Escobar claimed that his canine was injured at Rover, that he violated
kennel rules by letting his canine fence fight,2 and that he accused Rover of
letting his canine fight with other dogs. Rover also had security footage of Officer
Escobar letting the air out of another CBP officer’s vehicle. Rover notified CBP
that because of these incidents, Officer Escobar was not allowed on Rover’s
property. In response to Rover’s concerns, CBP moved Officer Escobar’s canine
to another facility in the area, R&R Kennels. Since the canine was moved to a
different kennel, CBP notified Rover that it reduced Rover’s contract.
In June 2020, CBP notified Rover that it would not exercise the option to
extend the contract into its fourth year, and the contract ended September 2020.
Also in 2020, shortly before CBP and Rover’s contract expired, CBP issued
2Fence fighting is when dogs show aggression toward each other through a barrier.
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another solicitation for canine services. Three kenneling services bid on the
solicitation, including Rover and R&R Kennels. In August 2020, CBP contacted
the County’s planning and development services to confirm if the applicants
complied with local permitting and zoning laws. The County stated that Rover
and R&R Kennels had CUPs that allowed them to operate kennels in their
respective locations. CBP awarded the contract to R&R Kennels. Rover filed a
bid protest with the United States Government Accountability Office (GAO),
claiming that R&R Kennels did not have a CUP and was not permitted to conduct
kenneling services. While assessing Rover’s appeal, CBP’s Office of the Chief
Counsel (OCC) contacted the County requesting it provide written confirmation
that R&R Kennels had the proper permits to board canines. GAO ultimately
dismissed Rover’s protest.3 In September 2021, Royce Buckingham, Senior Civil
Deputy for Whatcom County, sent CBP a letter clarifying R&R Kennels’ permit
status. The letter stated that R&R Kennels had been operating as a legal, pre-
existing nonconforming use under the Code, and was in the process of filing for a
CUP.
Rover sued the County in Snohomish County Superior Court for
negligence and tortious interference with contract or business expectancy, which
resulted in the termination of Rover’s relationship and business with CBP. The
3 In dismissing Rover’s protest, GAO concluded that “whether the awardee complies with the license and permit requirements is a matter of contract administration, which we will not review.” Rover also alleged that CBP engaged in bad faith, but GAO found that Rover did not provide any evidence to support its claim.
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trial court granted summary judgment to the County, dismissing all of Rover’s
claims. Rover appeals.
ANALYSIS
Standard of Review
“We review summary judgments de novo.” Ranger Ins. Co. v. Pierce
County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary judgment is
granted when “there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” Locke v. City of
Seattle, 162 Wn.2d 474, 483, 172 P.3d 705 (2007) (alteration in original) (quoting
CR 56(c)). “A genuine issue of material fact exists where reasonable minds
could differ on the facts controlling the outcome of the litigation.” Ranger Ins.,
164 Wn.2d at 552. This court “view[s] all facts and reasonable inferences in the
light most favorable to the nonmoving party.” Elcon Constr., Inc. v. E. Wash.
Univ., 174 Wn.2d 157, 164, 273 P.3d 965 (2012).
Rover indicates that because the trial court did not identify why it granted
the County’s motion, it had to address all of its “relied upon justifications.” CR 56
does not require a court to explain its basis for granting or dismissing a motion.
The court’s order granting the motion for summary judgment listed the
documents and evidence considered in granting the motion.4 Given that our
4 In the order granting summary judgment, the court considered: (1) the plaintiff’s complaint, (2) answer and affirmative defense of Whatcom County to plaintiff’s complaint, (3) defendant Whatcom County’s motion for summary judgment, (4) memorandum in support of defendant Whatcom County’s motion for summary judgment, (5) declaration of Amy Keenan, (6) Declaration of Quinn N. Plant, (7) plaintiff’s response brief and exhibits, and (8) defendant’s reply brief.
5 No. 87904-9-I/6
review is de novo, it is appropriate for the parties to address any basis to grant or
deny the summary judgment motion put forth by either party.
Public Duty Doctrine
Rover contends that the trial court erred when it granted the County’s
motion for summary judgment because the public duty doctrine does not apply.
Rover also asserts that its claim is not based upon a duty arising out of a statute
or the violation of an ordinance. The County maintains that the public duty
doctrine applies because the enforcement of zoning is unique and exclusive to
the government.
Whether the public duty doctrine applies is a question of law, which is
reviewed de novo. Babcock v. Mason County Fire Dist. No. 6, 144 Wn.2d 774,
784, 30 P.3d 1261 (2001).
Under the public duty doctrine, “governmental entities may be held liable
only ‘to the same extent as if they were a private person or corporation.’ ” Norg v.
City of Seattle, 200 Wn.2d 749, 758, 522 P.3d 580 (2023) (emphasis omitted)
(quoting RCW 4.96.010(1)). “The public duty doctrine provides ‘a mechanism for
focusing upon whether a duty is actually owed to an individual claimant rather
than the public at large.’ ” Norg, 200 Wn.2d at 758 (quoting J&B Dev. Co. v. King
County, 100 Wn.2d 299, 304-05, 669 P.2d 468 (1983)). “If the duty that the
government allegedly breached was owed to the public at large, then the public
duty doctrine applies; if the duty was owed to an individual, then the public duty
doctrine does not apply.” Norg, 200 Wn.2d at 758. “The public duty doctrine
applies only to claims based on an alleged breach of ‘special governmental
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obligations [that] are imposed by statute or ordinance.’ ” Norg, 200 Wn.2d at 758
(alteration in original) (quoting Beltran-Serrano v. City of Tacoma, 193 W.2d 537,
549, 442 P.3d 608 (2019)).
There are four exceptions to the public duty doctrine: “(1) legislative intent,
(2) failure to enforce, (3) the rescue doctrine, and (4) a special relationship.”
Norg, 200 Wn.2d at 758. “A special relationship imposing an actionable duty to
perform arises between the plaintiff and a government entity when ‘(1) there is a
direct contact or privity between the public official and the injured plaintiff which
sets the latter apart from the general public, and (2) there are express
assurances given by a public official, which (3) gives rise to justifiable reliance on
the part of the plaintiff.’ ” Cummins v. Lewis County, 156 Wn.2d 844, 854, 133
P.3d 458 (2006) (internal quotation marks omitted) (quoting Beal v. City of
Seattle, 134 Wn.2d 769, 785, 954 P.2d 237 (1998)).
Rover claims that the County was not performing a special governmental
obligation when it communicated with CBP because it was not in an active
permitting or enforcement process.5 Under Whatcom County Code (WCC)
20.04.035, the County’s “department of planning and development services is
responsible for the administration of [Whatcom County zoning ordinance].” The
communication between the County and CBP was specifically about the status of
a permit. The code does not limit the department’s communication exclusively to
parties actively involved in permit processes. Because the County’s Planning
5Rover also asserts that the County has no obligation to answer questions from a third party about a permit status. This argument is not supported by the Whatcom County Code.
7 No. 87904-9-I/8
and Development Services is statutorily obligated to administer the zoning code
and shall “act as a coordinating agent to ensure that the regulatory process is
expeditious,” the public duty doctrine applies. WCC 20.04.035.
For the County to have a duty to Rover under the public duty doctrine,
Rover must meet an exception. Here the most relevant exception is special
relationship. Rover sent a letter to the County about its concern that R&R
Kennels did not have a CUP. Specifically, Rover inquired for a code
interpretation on: whether the boarding of CBP detector dogs, including the provision of gated, secure parking for CBP vehicles and CBP officers’ personal vehicles, can be conditionally permitted under WCC 20.36.156 and WCC 20.40.165, or whether the use must go through conditional permitting under WCC 20.36.151 and WCC 20.40.151 as a public facility.
Rover’s correspondence with the County meets the direct contact element of a
special relationship.
Next, our Supreme Court has held that “[t]he plaintiff must seek an
express assurance and the government must unequivocally give that assurance.”
Babcock, 144 Wn.2d at 789. In the County’s formal interpretation addressing
Rover’s concerns about R&R Kennels, it clarified its zoning laws about boarding
CBP dogs. Particularly, the County addressed “whether CBP dogs must be
boarded in a public and community facility” or “at a kennel that is allowed to
board ‘animals’ or ‘domestic animals.’ ” The County’s interpretation said, “[N]o.
CBP dogs may be boarded at a public/community facility or at a kennel that is
8 No. 87904-9-I/9
allowed to board ‘animals’ or ‘domestic animals.’ ” Additionally, in the formal
report, the County clarified that [b]oarding of CBP dogs, as well as other dogs or animals used for a public safety purpose including police and search and rescue dogs, may be considered under the public and community facility use. Dogs boarded under the public and community facility use must be owned by a public agency (CBP, Sheriff's Department, State Patrol, etc.).
CBP dogs may also be boarded in zones where “animal” or “domestic
animal” kennels are allowed. CBP dogs are not household pets. CBP dog
kennels are not allowed in the AG zone unless they are a public/community
facility. In the County’s formal code interpretation, it did not make any
unequivocal assurances or provide incorrect information. Therefore, no
unequivocal assurance or incorrect information was provided that Rover could
have justifiably relied upon. We conclude that the County did not have a duty to
Rover under the public duty doctrine’s special relationship exception.
Negligence
a. Common Law Duty of Care
Although the public duty doctrine applies, Rover asserts that its
negligence claim is based in a common law duty of care. Specifically, Rover
claims that Whatcom County owed a duty in the County’s individual capacity to
disseminate accurate information in dealing with CBP when it voluntarily
answered CBP’s inquiry.6 In response, the County contends that its
6 Rover contends that the County committed governmental misfeasance when it voluntarily provided information to CBP about the permit status of the solicitation applicants. “Misfeasance involves active misconduct resulting in positive injury to others.” Robb v. City of Seattle, 176 Wn.2d 427, 437, 295 P.3d
9 No. 87904-9-I/10
communication to CBP did not give rise to a duty.
We review de novo the issue of whether an actionable duty was owed to
the plaintiff. Munich v. Skagit Emergency Commc'n Ctr., 175 Wn.2d 871, 877,
288 P.3d 328 (2012).
Under common law, “ ‘every individual owes a duty of reasonable care to
refrain from causing foreseeable harm in interactions with others.’ ” Norg, 200
Wn.2d at 763 (quoting Beltran-Serrano, 193 Wn.2d at 550). “While there is
generally no duty to prevent a third person from intentionally harming another, a
duty arises when ‘a special relationship exists between the defendant and either
the third party or the foreseeable victim of the third party's conduct.’ ” H.B.H. v.
State, 192 Wn.2d 154, 168, 429 P.3d 484 (2018) (quoting Niece v. Elmview Grp.
Home, 131 Wn.2d 39, 43, 929 P.2d 420 (1997)). Courts find that a special
relationship exists when “(1) the defendant has a special relationship with the
third person that imposes a duty to control that person's conduct or (2) the
defendant has a special relationship with the victim that gives the victim a right to
protection.” H.B.H., 192 Wn.2d at 168-69. “Common examples of § 315(b)[7]
protective special relationships include the relationships between schools and
their students, innkeepers and their guests, common carriers and their
passengers, and hospitals and their patients.” H.B.H., 192 Wn.2d at 169.
While both parties agree that Amy Keenan, a County planner, misstated
that R&R Kennels had a CUP, as discussed supra, no special relationship
212 (2013). Rover alleges the County made negligent communications to a third party which is not a direct act of harm. We decline to review this argument. 7 Restatement (Second) of Torts § 315(b) (Am. Law Inst. 1965).
10 No. 87904-9-I/11
existed between the County and Rover. In addition, the duty of care requires that
an individual refrain from causing foreseeable harm.8 Here, when the County
told CBP that Rover and R&R Kennels had the required permits,9 the County
could not reasonably foresee whether Rover would be harmed. CBP did not
mention to the County the weight or impact that the County’s information would
have on the bids. Based on CBP’s question solely about permit compliance, the
County had no reason to believe that the information it gave CBP would have
negative consequences for Rover. We find no error.
b. Causation
Rover asserts that the trial court erred when it granted summary judgment
based on a lack of evidence regarding causation. Specifically, Rover stresses
that a fact finder could conclude that CBP desired and intended to award the
“contract to a fully permitted operation.” The County contends that Rover did not
provide competent evidence of causation. We determine that no evidence exists
from which a fact finder could find causation because (1) CBP’s solicitation did
not require proof of permits, (2) the solicitation evaluated multiple factors, and (3)
8 A breach of the duty of care also requires intent. During a deposition, Keenan was asked what her goal was in answering CBP’s questions. Keenan answered, “to respond to the questions that were asked.” Keenan was then asked, “was [your goal] to respond accurately to the questions that were asked?” She replied, “[t]o my knowledge, yes.” No evidence suggests that Keenan had ill or malicious intent when she informed CBP that R&R Kennels had a valid permit to board CBP canines. 9 The County claims that when CBP reached out, both Rover and R&R
had been issued CUPs and neither kennels had complied with the CUP conditions. This information was not before the trial and therefore we decline to review this argument.
11 No. 87904-9-I/12
CBP stated that it only relied on the County’s statement to continue R&R
Kennels’ contract after the contract was awarded.
“For legal responsibility to attach to the negligent conduct, the claimed
breach of duty must be a proximate cause of the resulting injury.” LaPlante v.
State, 85 Wn.2d 154, 159, 531 P.2d 299 (1975). A defendant's negligence is a
proximate cause of the plaintiff's injury only if such negligence, unbroken by any
new independent cause, produces the injury complained of. Maltman v. Sauer,
84 Wn.2d 975, 982, 530 P.2d 254 (1975).
Rover’s assertion that CBP intended to contract only with a business that
was fully permitted at the time of application is at best speculative because CBP
did not require applicants to have valid permits at the time of application
submission. The statement of work (SOW) issued by CBP states that “the
contractor shall hold and maintain applicable licenses and permits throughout the
duration of the contract.” When Rover appealed CBP’s decision, GAO found that
the solicitation “did not require firms to provide evidence of its permits or
certifications as part of their proposal.” Additionally, the language references the
contractor, not an offeror or applicant.
Even if CBP had intended to contract with a fully permitted facility, Rover
failed to show causation because CBP considered multiple factors in awarding
the contract. GAO’s decision detailed that the solicitation had three evaluation
factors: technical and management approach, past performance, and price.10
10The order of importance of the factors, from most important to least, were as follows: (1) technical and management approach, (2) past performance,
12 No. 87904-9-I/13
The technical management approach factor had four subfactors, including: “(1)
[a] strategy to satisfy the requirements of the statement of work; (2) [the]
capability and methodology of management to provide full range of required
services; (3) key personnel qualifications and experience – staffing plan, and (4) .
. . [the ability to demonstrate that the] facility is capable and equipped to handle
required services.” Regarding the past performance factor, the incidents
involving Officer Escobar may have fallen into that category as a factor in Rover’s
application. Concerning the price factor, the GAO’s decision found that R&R’s
proposal represented the best value. Although technical management approach
is the most important factor, it is unclear how the other factors were evaluated,
how the technical management subfactors were weighed, and how much weight
was given to permit compliance.
Lastly, Rover asserts that CBP relied on the County’s statements on R&R
Kennel’s permit status because CBP stated in an e-mail to Rover that “[CBP] will
continue with our contract [with R&R Kennels] unless the county tells us
otherwise.” The timing of CBP’s e-mail does not support the claim that CBP
relied on the County’s permit information in its decision to award the contract to
R&R Kennels. Rover’s GAO decision, in which GAO concluded no error
occurred in awarding R&R Kennels, was finalized in October 2020. CPB’s e-mail
to Rover was sent in January 2021. The County then sent CPB a letter on R&R
Kennels’s permitting status in September 2021. Even if the e-mail shows CPB’s
and (3) price (“When combined, technical and management approach and past performance were significantly more important than price.”).
13 No. 87904-9-I/14
reliance on the County, it does not show that the reliance existed at the time of
the contract award. Causation is speculative and too attenuated; therefore, we
find no error in the court’s dismissal of the negligence claim.
Tortious Interference with Business Expectancy
Rover asserts that the court erred in dismissing its tortious interference
with business expectancy claim because evidence was available that a fact
finder could conclude that the County’s interference was intentional. Rover
contends that a fact finder could find that the County tortiously interfered through:
(1) CBP’s explicit statements that it relied upon the County’s misstatement, (2)
CBP’s statement that it would continue its contract “unless the County tells us
otherwise,” (3) Keenan’s statement that she understood CBP relied upon the
permit information from the County, and (4) evidence that CBP desired and
intended to award a fully permitted kennel. The County contends no evidence
exists that it intentionally interfered with Rover’s business expectancy.
“To establish a prima facie case of tortious interference with a business
expectancy,” the plaintiff must show “ ‘(1) the existence of a . . . [valid] business
expectancy; (2) that [the defendant] had knowledge of that [expectancy]; (3) an
intentional interference inducing or causing . . . termination of the . . . expectancy;
(4) that [the defendant] interfered for an improper purpose or used improper
means; and (5) resultant damage.’ ” Greensun Grp., LLC v. City of Bellevue,
7 Wn. App. 2d 754, 767-68, 436 P.3d 397 (2019) (alteration in original) (quoting
Pac. Nw. Shooting Park Ass'n v. City of Sequim, 158 Wn.2d 342, 350, 144 P.3d
276 (2006)). “Intentional interference requires an improper objective or the use
14 No. 87904-9-I/15
of wrongful means that in fact cause injury to the person's contractual
relationship.” Leingang v. Pierce County Med. Bureau, Inc., 131 Wn.2d 133,
157, 930 P.2d 288 (1997). The interference is intentional “ ‘if the actor desires to
bring it about or if [they] know[] that the interference is certain or substantially
certain to occur as a result of [their] action.’ ” Newton Ins. Agency & Brokerage,
Inc. v. Caledonian Ins. Grp., Inc., 114 Wn. App. 151, 158, 52 P.3d 30 (2002)
(quoting Restatement (Second) of Torts § 766B, cmt. d).
Business Expectancy
The County does not contest that Rover had a business expectancy
associated with CBP or that the County had knowledge of Rover’s business
expectancy. We find that the first two elements of tortious interference, existence
of business expectancy and defendant’s knowledge of that expectancy, are met.
Intentional Interference
Rover asserts that CBP intended to contract with a fully permitted
operation, citing CBP’s e-mail to the County that stated, “CBP wants to ensure
that our K-9s are placed in a properly permitted kennel to avoid any disruption to
their boarding down the road.” But Rover’s assertion is not supported by the
evidence. In the GAO’s decision about Rover’s petition, it stated that evidence of
permits or certifications were not a SOW requirement. Although permits are
required for the awarded contractor, GAO did not state that CBP intended to
contract with a fully permitted operation. Additionally, the evidence of Rover’s
prior CBP contract while not fully permitted does not support Rover’s claim.
15 No. 87904-9-I/16
Rover stresses Buckingham’s refusal to provide corrected information to
CBP and asserts that it reached out to Buckingham, requesting that the County
correct the misinformation that it gave to CBP. Rover claims Buckingham did not
respond to the request. However, in Buckingham’s deposition, he stated that he
corrected the information in the 2021 letter sent to CBP.
Rover maintains that Buckingham’s letter was intentional interference with
Rover’s business expectancy because the letter was based on an informal
assessment. Buckingham’s letter to CBP about R&R Kennels stated the permit
history of the operation. Although R&R Kennels was unpermitted at the time of
the letter, Buckingham stated that R&R Kennels was working with the County to
meet County requirements. Buckingham and Bob Carmichael, owner of R&R
Kennels, exchanged several e-mails about the letter before it was sent to CBP.
The e-mails do not mention Rover or any intent to interfere with Rover’s
business. No evidence shows that Buckingham intentionally conveyed
information about R&R Kennels for the purpose of interfering with Rover’s
business expectancy.11 Rover does not meet the intentional interference
element.
Improper Purpose or Improper Means
Even if the intentional interference element is met, Rover cannot show that
the County acted with an improper purpose or improper means. Rover highlights
11 In Buckingham’s disposition, he was asked if he signed the letter to assist R&R Kennels to maintain its CBP contract. Buckingham responded, “I don’t think it’s a motive to assist. It’s to clarify our position. . . . We don’t have an interest in who gets the contract.”
16 No. 87904-9-I/17
Keenan’s testimony to support that she knew CBP relied on the information, and
nonetheless gave false information.12 But Keenan’s deposition does not indicate
that she intentionally gave false information. Keenan stated that her goal was to
respond accurately to the questions to the best of her knowledge. Keenan’s
statement that she understood that CBP relied on the information does not
confirm that she had an improper purpose or means.
Rover fails to provide evidence that the County, with improper purpose or
improper means, interfered with Rover’s business expectancy.
We affirm.
WE CONCUR:
12 Additionally, Rover contends that the County’s enforcement actions against Rover were handled “differently and more aggressively than normal,” and the County’s actions show it intentionally interfered with Rover’s business expectancy. However, in the County’s enforcement action against Rover, the County did not order Rover to shut down business. Rather, the County allowed Rover to continue its boarding and kennel operation while the Scheffers navigated the permit process. The County’s enforcement action with Rover is consistent with its enforcement against R&R Kennels, where it did not shut down R&R Kennels because of lack of permits. The facts do not support Rover’s assertion.