Opinion
B301522
03-11-2021
MARK ELLENSOHN et al., Plaintiffs and Appellants, v. JOHN A. STRAIN et al., Defendants and Respondents.
Barbara S. Harper for Plaintiffs and Appellants. Yee & Associates, Steven R. Yee and Niall A. Fordyce, for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC721174) APPEAL from a judgment of the Superior Court of Los Angeles County, David Sotelo, Judge. Affirmed. Barbara S. Harper for Plaintiffs and Appellants. Yee & Associates, Steven R. Yee and Niall A. Fordyce, for Defendants and Respondents.
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Plaintiffs and appellants Mark Ellensohn, Edward Proctor, and Ryan Harper (collectively Plaintiffs) appeal a judgment of dismissal after the trial court sustained a demurrer by defendants and respondents John A. Strain and Law Offices of John A. Strain, a California Professional Corporation (sometimes referred to collectively as Strain), to Plaintiffs' second amended complaint (SAC) without leave to amend.
We affirm. We conclude the trial court properly sustained demurrers to Plaintiffs' causes of action for legal malpractice, breach of fiduciary duty, negligent misrepresentation, and fraud, without leave to amend. We also reject Plaintiffs' contention that they are entitled to leave to amend to add a new cause of action against Strain for a civil conspiracy with his clients.
FACTUAL AND PROCEDURAL BACKGROUND
1. Pleadings.
a. Earlier pleadings.
Plaintiffs commenced this action against Strain on September 11, 2018.
After Strain demurred to the original complaint, Plaintiffs filed a first amended complaint (FAC) as a matter of right, prior to a hearing on the demurrer. (Code Civ. Proc., § 472, subd. (a).) Pursuant to a notice of related cases, the trial court related the instant action to Harper v. Manhattan Inn Operating Company, LLC, et al. (L.A. Super. Ct. No. BC568691) (hereafter the Harper action), a lawsuit that Ryan Harper filed in January 2015.
In response to the FAC, Strain's counsel sent a meet and confer letter to Plaintiffs' counsel that asserted the pleading was inadequate. The parties agreed that Plaintiffs would file an amended complaint without the need for a demurrer to the FAC.
b. The allegations of the operative SAC against Strain.
On January 31, 2019, Plaintiffs filed their SAC, which is their third attempt to state a cause of action, and is the operative pleading. The SAC alleges in relevant part:
Plaintiffs were investors/partners in various entities, which they refer to collectively as "the various Zislis Group entities." Defendants Strain and his law firm were counsel for The Zislis Group, Inc., which is the "de facto management company" for the following entities: Promenade Restaurant Group, LLC (PRG); Rock N Fish, LLC; Rock N Fish 2, LLC; DMZ Restaurants, LLC; Manhattan Inn Operating Company, LLC (MIOC); Rock & Brews, LLC; and Rock and Brews Holdings, Inc. (collectively the Zislis entities).
As part of the investment process, Plaintiffs signed a document entitled "Agreement to Terms of Operating Agreement and Limited Power of Attorney." The execution of the power of attorney imposed a fiduciary duty upon Strain to act in accordance with Plaintiffs' best interests.
In January 2015, plaintiff/investor Ryan Harper filed the Harper action against MIOC, manager Michael Zislis, Strain, and others, alleging fraud and breach of the operating agreement. In defending against the Harper action, Strain represented himself and his law firm, as well as MIOC, Zislis, and The Zislis Group. In April 2018, at an arbitration hearing in the Harper action, Strain testified that he was a shareholder in the Zislis entities, and that he had obtained his units in the Zislis entities at a discount, in exchange for his legal fees for services rendered. This was the first time that Plaintiffs learned how Strain became a shareholder in the entities he was representing in the Harper action.
The SAC alleges that Strain had acted in a manner inconsistent with the best interests of the entities and the minority investors, such as by: using money from the Zislis entities to pay for the legal defense in the Harper action, including Strain's own defense in that matter, thereby commingling funds and reducing dividends being paid out to all members/partners; bartering units of investment in the various Zislis entities in exchange for his legal fees; receiving his units for less than their value; manipulating tax documents in order to benefit certain entities, as well as certain individual members, to the detriment of other investors, thereby defrauding those certain investors as well as the Internal Revenue Service; refusing to provide various financial information and other documents relating to the various entities, to which Plaintiffs, as members, were entitled; and directing employees of the various Zislis entities to alter financial documents and financial reports prior to sending them out to investors, in order to hide improprieties. The SAC also alleges that Strain had concealed his misconduct.
Based on the above, the SAC pled causes of action for legal malpractice (first cause of action), negligent misrepresentation (second cause of action), breach of fiduciary duty (third cause of action), and fraud (fourth cause of action).
2. Strain's demurrer.
Strain demurred to the SAC in its entirety. Strain contended the pleading failed to allege facts to show the existence of an attorney-client relationship between Strain and Plaintiffs, and that Strain was counsel only for the Zislis entities, in which each of the Plaintiffs held less than a one percent interest. Further, the limited power of attorney which gave Strain the power to execute certain documents on Plaintiffs' behalf did not, as a matter of law, create an attorney-client relationship between Strain and Plaintiffs. Strain contended that Plaintiffs therefore had failed to state claims for legal malpractice or breach of fiduciary duty.
Strain also contended the SAC failed to plead specific facts to properly allege causes of action for negligent misrepresentation or fraud, and that those claims were time-barred.
3. Plaintiffs' opposition to the demurrer.
In opposing the demurrer, Plaintiffs contended the SAC was well pled or, alternatively, that leave to amend should be granted to add any necessary allegations. However, the opposition papers did not set forth in what manner Plaintiffs proposed to amend their pleadings.
Plaintiffs also conceded that the demurrer accurately stated the general rule that an attorney represents an organization rather than its members, but emphasized that courts have also recognized exceptions to this limitation on liability. Plaintiffs contended that "[c]onspiracy liability may properly be imposed on non-fiduciary agents or attorneys for conduct which they carry out not simply as agents or employees of fiduciary defendants, but in furtherance of their own financial gain." Plaintiffs asserted that Strain came within this exception because he had a pecuniary interest in his investment in the entities, which he had obtained at a discount in exchange for his supposed legal fees.
However, Plaintiffs' opposition papers did not request leave to amend to add a fifth cause of action against Strain for a civil conspiracy with his client. With respect to leave to amend to add a new cause of action, Plaintiffs' papers merely asserted in conclusory fashion that "leave to amend should be granted so that [Plaintiffs] can allege violations of the RICO Act."
RICO refers to the federal Racketeer Influenced and Corrupt Organizations Act. (18 U.S.C. § 1961 et seq.)
4. Hearing and trial court's ruling.
On August 2, 2019, the demurrer to the SAC came on for hearing. At the hearing, as reflected in the minute order, Plaintiffs made an oral request for leave to amend "all four (4) Causes of Action." Notably, Plaintiffs did not seek leave to amend to add a fifth cause of action for civil conspiracy.
There is neither a reporter's transcript nor a settled statement of the August 2, 2019 hearing on the demurrer.
At oral argument on appeal, Plaintiffs' counsel asserted that at the August 2, 2019 hearing on the demurrer, she specifically requested leave to amend to add a new cause of action for civil conspiracy. However, this statement finds no support in the record. As a reviewing court we are bound by the record as it is presented. "[I]t is well established that a reviewing court may not give any consideration to alleged facts that are outside of the record on appeal. [Citation.]" (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 539, fn. 1.) Pursuant to the rules governing appellate review, we conclude that Plaintiffs did not request leave to amend below to add a new cause of action for civil conspiracy, let alone make a showing to the trial court of their ability to successfully plead such a cause of action.
After taking the matter under submission, the trial court sustained Strain's demurrer to the SAC in its entirety and also denied Plaintiffs' request for leave to amend their existing causes of action.
The trial court found that Plaintiffs' first and third causes of action, for legal malpractice and breach of fiduciary duty, alleged that a duty was owed to them based on an attorney-client relationship with Strain. However, "no such relationship existed. Therefore, Plaintiffs have failed to sufficiently allege those two causes of action."
The trial court explained: "An attorney-client relationship arises from an attorney's agreement to render legal services to a client. It is undisputed that Strain was the attorney for Zislis and that Plaintiffs were investors in several of the Zislis entities. Plaintiffs' argument about a limited power of attorney creating an attorney-client relationship is unavailing. A limited power of attorney allows an agent to act on behalf of a principal for a limited period or purpose. The limited power of attorney signed by Plaintiffs was for the purpose of allowing an agent to execute, acknowledge, deliver, file, and record in any appropriate public office, certificates, instruments, and amendments to the articles or organization. . . . . Such a limited power of attorney does not demonstrate the existence of an attorney-client relationship. Plaintiffs cite Skarbrevik [v. Cohen, England & Whitfield (1991) 231 Cal.App.3d 692 (Skarbrevik)] for the proposition that an attorney may have a duty to shareholders when the attorney acts for [his] own advantage and engages in conspiracy. [¶] However, Strain is correct that Plaintiffs do not allege a cause of action for conspiracy." (Italics added.)
With respect to the second and fourth causes of action, negligent misrepresentation and fraud, the trial court found that Plaintiffs had failed to plead those causes of action "with the required specificity. (See Charnay v. Cobert (2006) 145 Cal.App.4th 170, 185, fn. 14 [stating that both fraud and negligent misrepresentation must be pleaded with particularity, with facts that show how, when, where, to whom, and by what means the representations were tendered].) Plaintiffs fail to specify when and by what means Strain made the representations to them."
Additionally, the trial court found that Plaintiffs' negligent misrepresentation and fraud claims were time-barred because a review of the pleadings in the Harper action, which were before the trial court by way of judicial notice, indicated that by 2015, the Plaintiffs "more than suspected the injury [that] Strain's wrongdoing [had] caused."
Plaintiffs filed a timely notice of appeal from the judgment of dismissal.
CONTENTIONS
Plaintiffs contend the trial court erred in sustaining the demurrer because the SAC stated facts sufficient to state a cause of action under the theories that were alleged therein, and the trial court further erred in denying leave to amend those causes of action because there is a reasonable possibility that Plaintiffs can amend their pleadings to cure any defects.
Plaintiffs also contend that leave to amend "should have been granted" to enable them to plead a new cause of action for civil conspiracy.
DISCUSSION
1. Standard of appellate review.
" ' "On appeal from an order of dismissal after an order sustaining a demurrer, our standard of review is de novo, i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law." ' (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 650.) In reviewing the complaint, 'we must assume the truth of all facts properly pleaded by the plaintiffs, as well as those that are judicially noticeable.' (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814.) We may affirm on any basis stated in the demurrer, regardless of the ground on which the trial court based its ruling. (Carman v. Alvord (1982) 31 Cal.3d 318, 324.)" (Krolikowski v. San Diego City Employees' Retirement System (2018) 24 Cal.App.5th 537, 549 (Krolikowski).)
Whether the trial court should have granted leave to amend "is reviewed under the abuse of discretion standard, although error is shown if there is any reasonable probability an amendment that cures the defect can be made. Appellants bear the burden on appeal of showing a reasonable possibility exists that the complaint can be successfully amended. [Citation.]" (Fischer v. Time Warner Cable Inc. (2015) 234 Cal.App.4th 784, 790 (Fischer).)
2. Trial court properly sustained demurrers to the causes of action for legal malpractice and breach of fiduciary duty without leave to amend, due to Plaintiffs' failure to plead the existence of an attorney-client relationship.
As the trial court found, Plaintiffs' first and third causes of action, for legal malpractice and breach of fiduciary duty, alleged that a duty was owed to them based on their attorney-client relationship with Strain. However, as the trial court determined, Plaintiffs failed to plead facts showing they had such a relationship with Strain.
Plaintiffs do not dispute the general principle that "[a]n attorney representing a corporation does not become the representative of its stockholders merely because the attorney's actions on behalf of the corporation also benefit the stockholders; as attorney for the corporation, counsel's first duty is to the corporation. [Citation.] Corporate counsel should, of course, refrain from taking part in any controversies or factional differences among shareholders as to control of the corporation, so that he or she can advise the corporation without bias or prejudice. [Citation.] Even where counsel for a closely held corporation treats the interests of the majority shareholders and the corporation interchangeably, it is the attorney-client relationship with the corporation that is paramount for purposes of upholding the attorney-client privilege against a minority shareholder's challenge. [Citation.] These cases make clear that corporate counsel's direct duty is to the client corporation, not to the shareholders individually, even though the legal advice rendered to the corporation may affect the shareholders." (Skarbrevik, supra, 231 Cal.App.3d at pp. 703-704.)
In the court below, Plaintiffs argued that an attorney-client relationship was created by the documents they signed as investors that gave Strain a limited power of attorney. The trial court rejected that argument, and Plaintiffs have not pursued that theory on appeal.
Notwithstanding the general rule that an attorney's duty is to his or her corporate client, rather than to the corporation's shareholders, Plaintiffs rely on Skarbrevik for the proposition that "a duty arises when a lawyer for the entity has a pecuniary interest in the entity." The argument is without merit. The effect of a lawyer's having a pecuniary interest in the entity is that the lawyer may be subject to conspiracy liability, which is an exception to the general rule that an agent, acting in its official capacity on behalf of the principal, is not liable for conspiring with the principal. (Skarbrevik, supra, 231 Cal.App.3d at p. 709; Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 817-818.) Skarbrevik does not stand for the proposition that an attorney's pecuniary interest in an entity gives rise to an attorney-client relationship between counsel and the entity's shareholders.
We address Plaintiffs' contention that they are entitled to leave to amend to plead a new cause of action for civil conspiracy in section 4 of the Discussion, infra.
Because the causes of action for legal malpractice and breach of fiduciary duty were predicated on the existence of an attorney-client relationship between Plaintiffs and Strain, and Plaintiffs have not stated facts showing the existence of such a relationship, the trial court properly sustained the demurrers to those causes of action without leave to amend.
3. Trial court properly sustained demurrers to Plaintiffs' causes of action for intentional and negligent misrepresentation without leave to amend; Plaintiffs' theory of fraudulent concealment has been forfeited.
a. Claims for intentional and negligent misrepresentation.
In California, a cause of action for intentional fraud must be pled specifically; general and conclusory allegations do not suffice. This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 (Small).) The specificity requirement also applies to a cause of action for negligent misrepresentation. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166-1167.) The specificity requirement serves two purposes: to apprise the defendant of the specific grounds for the charge, and to enable the court to determine whether there is any basis for the cause of action. (Id. at p. 1167.)
The trial court ruled that Plaintiffs failed to plead the intentional and negligent misrepresentation claims with the required specificity. Having carefully reviewed the allegations of the SAC, we agree with the trial court's assessment. While the complaint alleged various acts of wrongdoing by Strain, it did not plead facts to show any specific affirmative misrepresentations—much less how, when, where, to whom, and by what means the representations were tendered. (Small, supra, 30 Cal.4th at p. 184.)
As to whether leave to amend these claims is warranted, appellants bear the burden on appeal of showing a reasonable possibility exists that they can successfully amend these claims. (Fischer, supra, 234 Cal.App.4th at p. 790.) In the appellants' opening brief, Plaintiffs merely reiterate the background allegations of the complaint (paragraphs 6 through 17) to argue that the defects in the intentional and negligent misrepresentation claims can be cured by amendment. However, the background allegations suffer from the same infirmity of a lack of specificity. Thus, on the record presented, we perceive no abuse of discretion in the trial court's denial of leave to amend those causes of action.
Because the fraud and negligent misrepresentation claims were not pled with the required specificity, it is unnecessary to address the trial court's determination that these causes of action are also time-barred.
b. Plaintiffs have forfeited any theory of fraud based on fraudulent concealment.
In addition to alleging that Strain made affirmative misrepresentations to Plaintiffs, the SAC contains various allegations that Strain concealed or failed to disclose certain information to which they were entitled. Among other things, the SAC alleged that Strain had refused to provide Plaintiffs with certain financial information and had failed to disclose his conflicts to Plaintiffs.
However, insofar as Plaintiffs purport to assert a cause of action for fraud based on fraudulent concealment, they have not presented a legal argument in that regard. Plaintiffs have not briefed the elements of a cause of action for fraudulent concealment, let alone shown that they either pled or are capable of pleading sufficient facts to satisfy each of the elements of the tort.
"The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact. [Citation.]" (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606.)
Irrespective of the principle that an order of dismissal following the sustaining a demurrer is subject to this court's de novo review (Krolikowski, supra, 24 Cal.App.5th at p. 549), the standard of appellate review does not relieve an appellant of the burden of showing prejudicial error. (See, e.g., Bains v. Moores (2009) 172 Cal.App.4th 445, 455 [notwithstanding de novo review of summary judgment it is appellant's responsibility to affirmatively demonstrate error].) Further, an appellant's burden demands more than a mere assertion that the judgment is wrong because "[i]ssues do not have a life of their own," and if issues are not raised or developed with a legal argument supported by citation to authority, they may be treated as waived. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.) Here, due to Plaintiffs' failure to develop a legal argument with respect to a theory of fraudulent concealment, the issue has been forfeited.
4. No merit to Plaintiffs' contention that the trial court should have granted them leave to amend to plead a new cause of action for civil conspiracy.
Plaintiffs contend the trial court should have granted them leave to amend to assert a new cause of action against Strain for a civil conspiracy with his client(s), namely, The Zislis Group. The argument is meritless. As discussed in greater detail below, in opposing the demurrer, Plaintiffs merely asserted their existing claims were well pled or could be amended; Plaintiffs did not request leave to add a new cause of action for conspiracy. Further, even if a request to add a new cause of action could be made for the first time at the appellate level, Plaintiffs have not shown a reasonable possibility that they can amend their pleading to state a cause of action for civil conspiracy.
a. Plaintiffs did not make a request below for leave to amend to add a new cause of action for civil conspiracy, and the trial court did not abuse its discretion by not granting such relief on its own motion.
In ruling on the demurrer, the trial court acknowledged that Skarbrevik, supra, 231 Cal.App.3d 692, states that an attorney may have a duty to shareholders when the attorney acts for his own advantage and engages in conspiracy, but added "Strain is correct that Plaintiffs do not allege a cause of action for conspiracy." The trial court's statement was accurate. The SAC, which we have summarized, did not include a cause of action for civil conspiracy, and Plaintiffs did not propose to add such a cause of action in the court below.
Given this record, by arguing on appeal that the trial court "should have granted" Plaintiffs leave to amend to add a cause of action for conspiracy, even though Plaintiffs made no such request below, Plaintiffs in effect are arguing the trial court should have granted leave to amend on its own motion. Bearing in mind that Plaintiffs have the burden on appeal to show the trial court abused its discretion in denying leave to amend (Fischer, supra, 234 Cal.App.4th at p. 790), and in view of Plaintiffs' failure below to seek leave to amend to add a cause of action for civil conspiracy, we perceive no abuse of discretion in the trial court not having granted leave to amend on its own motion.
b. Plaintiffs have not met their appellate burden to show a reasonable possibility exists that they can state a cause of action for civil conspiracy.
An appellant bears the burden on appeal of showing a reasonable possibility exists that the complaint can be successfully amended. (Fischer, supra, 234 Cal.App.4th at p. 790.) Even assuming Plaintiffs' request for leave to amend to add a new cause of action is cognizable for the first time on appeal, Plaintiffs have not met their burden to show they are capable of stating a cause of action for civil conspiracy.
In the appellants' opening brief, Plaintiffs have focused their discussion on their allegation that Strain had a pecuniary interest in the investment entity, to argue that Strain acted in furtherance of his own financial gain, and therefore Strain may be held liable for a civil conspiracy with his client(s). However, more than that is required to state a cause of action for civil conspiracy.
Conspiracy "is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration." (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) " ' "[T]he elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design . . . . In such an action the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity." ' " (Id. at p. 511, italics added.)
Here, Plaintiffs have failed in their opening brief to assert the existence of any common design or plan between Strain and others, or that any tortious acts were performed in furtherance of such an agreement that caused damage to Plaintiffs. Plaintiffs contend they are not required to allege that Strain "knew all the details of the agreement or the identities of all the other participants." (Italics added.) However, Plaintiffs do not offer any factual allegations concerning the existence of a common plan or design, nor do Plaintiffs identify any parties to an alleged agreement, other than Strain. In short, Plaintiffs have not offered sufficient facts concerning a civil conspiracy, and Strain's alleged role in it, to warrant leave to amend to plead such a cause of action.
Although a showing that a complaint can be amended may be made for the first time to the reviewing court (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711), "[o]bvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant" (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11), and therefore points raised for the first time in an appellant's reply brief will not be considered, absent good cause for failure to present them earlier. (Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583.) Thus, we do not address any new arguments in the appellants' reply brief concerning a factual basis supporting a cause of action for conspiracy.
5. Plaintiffs' additional arguments are not properly presented.
The appellants' opening brief states, without elaboration, that Plaintiffs intend to bring a RICO claim if leave to amend is granted. Because Plaintiffs' assertion that they have a viable RICO claim is not accompanied by any legal argument, it does not require any discussion. (Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520 [appellate court may disregard legal arguments that are not supported by citations to legal authority or are conclusory].)
Finally, the appellants' reply brief contends that Strain owed Plaintiffs a duty of good faith and fair dealing pursuant to Corporations Code section 17704.09, relating to fiduciary duties of members and managers of a limited liability company. We decline to consider this statutory argument, which was raised for the first time in the appellants' reply brief without any showing of good cause for the delay. (Nordstrom Com. Cases, supra, 186 Cal.App.4th at p. 583; see also American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258, 276 ["Fairness militates against allowing an appellant to raise an issue for the first time in a reply brief because consideration of the issue deprives the respondent of the opportunity to counter the appellant by raising opposing arguments about the new issue."].)
The various exhibits that are appended to the appellants' reply brief are not properly before this court because respondents were deprived of the opportunity to address them. In any event, these exhibits are unavailing because they do not show that Plaintiffs are capable of curing the pleading defects that are identified in this opinion. --------
DISPOSITION
The judgment of dismissal is affirmed. Respondents shall recover their appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
EGERTON, J.