2016-0427, Appeal of Estate of Beatrice Jakobiec

appended to the Estate’s statement of claim to the PPFC and appears in the disciplinary proceeding in the Attorney Discipline Office (ADO), which was The following facts are taken from the Auditor’s Report in Tessier’s

remand. stolen by former attorney Thomas Tessier. We reverse in part, vacate, and (PPF) in an amount significantly less than that which the Estate claim s was that the Estate is entitled to reimbursement from the Public Protection Fund Hampshire Bar Association Public Protection Fund Committee (PPFC), finding Estate of Beatrice Jakobiec (Estate), appeals a decision of the responde nt, New HICKS, J. The claimant, Edmund Hibbard, Esq., Administrator of the

orally), for the responde nt. Bussiere & Bussiere, P.A., of Manchester (Keith F. Diaz on the brief and

brief and orally), for the claimant. Law Office of Steven M. Latici, P.A., of Gilmanton (Steven M. Latici on the

(New Hampshire Bar Association Public Protection Fund Committee)

No. 2016 - 0427 Public Protec tion Fund Committee

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

between the gross and the net recoveries represented attorney’s fees incurred that “[a] ccording to the [Estate’s] offer of proof at the hearing, the difference recoveries were $ p. 2 250,000.00 and $20,000.00, respectively. The PPFC noted had prepared the Estate’s federal tax return. The gross amounts of those probate bond and $14,211. 18 from the certified public accountant (CPA) who recoveries it obtained from third parties: specifically, $180,896.00 f rom the Against the gross amount of its loss, t he Estate credited the net

Corporate Bond Rate of 5.68% for p. 2 2002 - 2008.” Estate’s attorney’s “simple interest calculations applying Moody’s average AAA of the CDs, legal fees, and insurance premium,” and was supported by the that claim sought “to recover the opportunity cost ari sing from the alleged theft l ost i ncome claim, t he PPFC noted that, according to the Estate’s offer of proof, payment of legal fees to his law firm and himself.” With respect to the Estate’s account” of Tessier’s law firm and that “T essier directed the unlawful periodic Estate alleged that “assets of the estate were deposited to the. . . client trust $99,531.81 in lost income. In support of its claim for stolen legal fees, the in stolen assets (the S tolen Assets), $96,500.00 in stolen legal fees, and gross amount of $404,830.76. The Estate’s total loss consisted of $208,798.95 a loss, as restated in its memorandum and at the hearing at the PPFC, in the On April 2, 2009, the Estate filed its claim in the instant matter, alleging

for Thaddeus, who has been blind since birth. powers of attorney, of funds belonging to Frederick individually or held in trust addition, t he a uditor detail ed Tessier’s misappropriation, using fraudulent purposes” a refund on i nsurance premium s that was due the Estate. In further noted that Tessier received and presumably “utilized. . . f or his own it appeared Tessier took the proceeds “for his own purposes.” The auditor T essier as administrator of the Estate. The auditor for the ADO concluded that by Tessier, with the proceeds issued by check payable to the Estate or to particular, certain bank certificates of deposit owned by Beatrice were canceled include additional assets owned by Beatrice at the time of her death. In were valid and belonged in the Estate valuation,” b ut that Tessier failed to auditor concluded that “[t]he assets included in the Estate by Attorney Tessier purposes, as determine d by the auditor for the ADO, was $576,074.0 3. The the Estate at $ p. 2 280,1 24.00. The actual value of the Estate for probate final account for the Estate with the probate court on April 10, 2003, valuing 26, 2002, Tessier was appointed to administer the Estate. He filed a first and Frederick A. Jakobiec, M.D. and Thaddeus Jakobiec, Jr., as heirs. On June Beatrice Jakobiec passed away on May 11, 2001, leaving two sons,

for background only. record. The se facts do not appear to be disputed and, in any event, are recited p. 3 3

equals $209,72 p. 3 3.58. The Estate appears to have made a mathematical error, as its gross claim less net recoveries 1

Together, the attorneys agreed that making Thaddeus whole was actions] and Boesch worked together extensively for many months. Claimant’s brother, Frederick Jakobiec, to investigate Tessier’s this process, and Attorney [R egina] Rockefeller [hired by the Thomas Tessier hired Attorney William Boesch to represent him in

made to reimburse Thaddeus and Frederick for funds taken by Tessier: PPFC quoted a portion of the probate court’s order explaining arrangements (unpublished decision affir ming probate court order). In that proceeding, t he M. Smillie, Case No. 2010 - 0675, 2011 WL 1 p. 3 3092686 (N.H. Dec. 8, 2011) established for Thaddeus’s benefit (the Smillie Trust). See In re Trust of Lillian P roceeding), the PPFC relied upon a probate court decision involving a trust In the PPFC proceeding regarding Thaddeus (the Thaddeus Jakobiec

$14,242.51. accordingly reduces the Net Eligible R ecovery by half to compensated for losses suffered by Mr. Tessier’s defalcations, and PPF made by Thaddeus] that Thaddeus Jakobiec has been fully previously has found [in a proceeding on a separate claim on the the Estate, Frederick and Thaddeus Jakobiec. The [PPFC] The [PPFC] further finds that there are only two beneficiaries of

recovery of $28,485.02. The PPFC then c oncluded: the CPA ($250,000.00 and $20,000.00 respectively), to arrive at a net eligible deducted the gross amounts the Estate recovered from the probate bond and $298,485.02 to be eligible for reimbursement. From that amount, the PPFC S tolen A ssets and Stolen Le gal fees, the PPFC found the gross amount of recovery” under New Hampshire Supreme Court Rule 55(4). Totaling the The PPFC also found that “the Estate’s claim for lost income is not eligible for for the benefit of Thaddeus Jakobiec a nd are not proper ly reimbursed here.” Excluded Checks) claimed to represent stolen legal fees “appear to have been discrepancy i n those amounts is due to the PP FC’s finding that two checks (the misappropriated by Tess ier “were stolen and are reimbursable.” The (the Stolen Legal Fees) of the $96,500.00 in legal fees claimed to have been premium, and that these amounts were stolen.” It also found that $89,686.07 [cer ti ficates of deposit omitted from the probate accounting] and insurance the evidence that it suffered a loss in assets of $208,798.95 for the fi ve The PPFC found “that the Estate has established by a preponderance of

Estate submitted a claim of $209,72 p. 3 3.76.” 1 in collect ing the recoveries. After applying these net recovery credits, the p. 4 4

failing to recognize the Estate, or its administrator, as an entity distinct from We conclude that the PPFC unsustainably exercised its discretion in

losses.” merely limited the amount reimbursed by the PPF to the Estate’s “actual rejects that characterization of it s order, and asserts i nstead that its decision PPFC’s decision to a court ordered distribution of Estate assets.” The PPF C In respo nse, the PPF C contends that “[t]he Estate appears to equate the

the claims of creditors of the estate.” It asserts that “[a] s an asset of the estate the ‘net eligible recovery’ is subject to the probate estate or otherwise interfere with the distribution of those assets.” claim submitted” and, specifically, “has no ju risdiction to reduce the assets of argues that the PPFC “only has jurisdiction to determine the amount of each The Estate first challenges the fifty percent reduction of its claim. It

Sup. Ct. R. 55(5). Stacy, 16 p. 4 4 N.H. 706, 712 (2013) (quotation, brackets, and ellipsis omitted); see will be reviewable only for unsustainable exercise of discretion.” Appeal of claims and the amount of payments shall be within the PPFC’s discretion and amount of the recov eries.” “Decisions of the PPFC as to whether or not to pay by the Estate for the gross amount of those recoveries rather than the net included a claim for lost income; and (4) “applying credits for prior recoveries the Excluded Checks; (3) finding that the Estate’s claim against the PPF Estate”; (2) reducing the Estate’s claim for stolen legal fees by the amo unts of finding that Thaddeus Jakobiec . . . had received his full distribution from the (1) reducing the amount of its claim by fifty percent based upon an “earlier O n appeal in the instant case, the Estate argu es that the PPFC erred by:

means or another, as of December 18, 2006. Jakobiec had been made whole in both respects, through one Frederick Jakobiec, through Attorney Rockefeller. Thaddeus out. The excess funds were a lso returned for the benefit of account, plus a whole lot more he wasn’t entitled to, as it turned his Irrevocable Trust ($199,963.12) was also then in the trust these proceedings, the full amount due Thaddeus Jakobiec under Smillie Trust in 2006. As it tu rns out, although not at issue in MD, the present petitioners, became the successor trustees of the the Sm illie Trust accounts when Rocke feller and James Goves, Thaddeus Jakobiec under the Smillie Trust, $110,162. p. 5 53, was in was agreed that, as of Decem ber 18, 2006, the full amount due calculated his share of his mother’s estate expenses and taxes. It Irrevocable Trust, receipts, valid expenditures for his care, and Smillie Trust, Beatrice Jakobiec Estate, Thaddeus Jakobiec their first priority. The att orneys reviewed documents from the 5

Stolen Assets previously recovered and paid to Thaddeus Jakobiec.” The PPFC, had to be limited to actual losses and, consequently, could not include the that if the Estate was entitled to r eimbursement from the PPF, the p ayment recoverable from another source. Thus, it contends that “t he PPFC determined Supreme Court Rule p. 5 55 ’s purpose of reimbursing only actual losses not The PPF C nevertheless defends it s decision as being consistent with

Bingham, 66 F.3d at p. 5 563. beneficiaries of the estate are indistinguishabl e from the estate itself.” exercised its discretion “to the extent that [it] incorrectly assume[d] that the with the analysis in Bingham, and conclude that the PPFC unsustainably (providing for suits by and ag ainst administrators). With that said, we agree existence vis - à - vis its beneficiaries. Cf. RSA ch. 556 (2007 & Supp. 2016) re cognize the Estate ’s status as an “entity” solely to denote its separate estate, any more than creditors” (quotation omitted)). Accordingly, we legal sense of the term, in a proceeding by or against the representati ve of the and that, by “contrast, heirs and legatees are not parties in interest, in the party to bring or defend actions relating to the personal estate of the deceased” (1952) (noting general rule that “an executor or administr ator is the only proper beneficiaries, on the other. See Scamman v. Sondheim, 97 N.H. 280, 281 between the estate and/or its administrator, on the one hand, and the estate’ s relating to the decedent’s per sonal estate, we have recognized a distinction analogous to that of a corporation”). Nevertheless, in the context of suits individual, an executor is a creation of the law,” under a “legal concept . . . 481 - 82 (1941) (noting that “[a]s an artificial person distinct from himself as an a s an “e ntity.” Cf. Lisbon Sav. Bank & c. Co. v. Moulton’s Est., 91 N.H. 477, It does not appe ar that we have previously referred to a decedent’s estate

(footnotes omitted)). name to indicate the sum total of assets and liabilities of a decedent.” known to the law, and is not a natural or an artificial person, but is merely a and Administrators § p. 5 5 (2009) (“The estate of a deceased person is not an entity separate and distinct from its beneficiaries.” Id. But cf. 33 C.J.S. Executors indistinguishable from the estate itself. An estate, of course, is an entity the extent that he incorrectly assumes that the beneficiaries of the estate are disagreed, noting that the “[d]efendant’s argument is fundamentally flawed, to used to pay for the estate’s legitimate expenses.” Id. at 5 p. 6 63. The court distributed to estate beneficiaries who were entitled to receive them or were funds from the estate’s ‘offshore’ companies and its bank accou nts were the defendant attorney argued that “the estate suffered no loss because the decedent’s] estate to themselves.” Bingham, 66 F.3d at 556 - 57. On appeal, accountant for “allegedly divert[ing]. . . assets and . . . income from [the 55 3 (2d Cir. 1995), an action seeking damages from a decedent’s attorney and analogous to an argument rejected by the court in Bingham v. Zolt, 66 F.3d Thaddeus Jak obiec, one of the Estate’s beneficiaries. The PPFC’s reasoning is 6

interests of Thaddeus, investigated Tessier’s activities and obtained copies of that, in that proceeding, it found that “Attorney Rockefeller, representing the based upon its fi nding s in the Thaddeus Jakobiec P roceeding. The PPFC notes The PPFC, on the other hand, contends that its decision is sustainably

that Thomas Tessier advanced [those funds] for Thaddeus’ support.” payable to Thomas Tessier and there has never been any evidence produced supported by the evidence.” The Estate asserts t hat the checks were “made stolen from the Estate” in the amount of the Excluded Checks “was not The Estate next contends that the PPFC’s “reduction of attorney’s fees

division thereafter. any issues regarding double r ecovery shall be taken up with the probate consistently with this decision, the net eligible recovery due to the Estate and asset of the estate.” Accordingly, up on remand, the PPFC shall determine, account ing must identify the full amount of the ‘net eligible recovery’ as an refute, that “[t]he Estate of Beatrice Jakobiec remains open and the next Bingham, p. 6 66 F.3d at 563 - 64. The Estate represents, and the PPF C does not

recovery to the beneficiaries. probate court or the trial court in this case to avoid a double proceeding, appropriate applications may be made to the .. . amounts due the beneficiaries are ascertained in the probate entitlement, if any, as a beneficiary of the estate]. Once the to instruct the jury [not to consider the decedent’s wife’s still in probate at the time of this damages action, it was not error beneficiary can receive a double recovery . . . . But with the estate We recognize that neither [the decedent’s wife] nor any other

court). We again take guidance from the court in Bingham: probate division of circuit court and granting jurisdiction of former probate (jurisdiction of former probate court); RSA 490 - F:3 (Supp. 201 p. 6 6) (establishing administration therein” (quotation omitted)); RSA 547:3 (Supp. 20 16) of deceased persons” and a court “has no powe r to. . . interfere with due exclusive, original jurisdiction of the settlement and distribution of the estates (noting that “[b]y the c onstitution and the statute, the probate court has division of the circuit court. Cf. Lisbon Sav. Bank & c. Co., 91 N.H. at 479 concern; we conclude, however, that it is one to be resolved by the probate We acknowledge that the risk of double recovery presents a valid

double recovery by Thaddeus Jakobiec. much the calculation of t he Estate’s actual loss es, but a concern about a of $ 89, p. 6 686.0 p. 7 7. Indeed, t he PPF C ’s brief suggests that the real issue is not so “suffer [] a loss in assets of $208,798.95” and in stolen legal fees in the amount however, fo und that the Estate, which we treat herein as a separate entity, did 7

the Estate’s offer of proof at the hearing: the net sum of the third party sources. The PPF C argues that it “properly exercised its discretion based on bond and the CPA or, as the PPF C argues, its gross rec overies from those should have been, as the Estate argues, its net recover ies from the probate from the Estate’s gross claim against the PPF to arrive at its net eligible claim We first add ress the parties’ dispute over whether the amount deducted

Sup. Ct. R. 55(4). interest on the amount lost or money spent attempting to collect the loss.” the money or property lost by the lawyer defalcation and shall not include ma ximum amount which may be paid on a claim shall be the dollar value of Supreme Court Rule 55(4), which provides, in relevant part, that “[t]he reimbursement from the PPF. (Capitalization omitted.) The PPF C c ites collect stolen assets and interest on the amount lost” were not eligible for in finding that “both the amount of money the Estate spent i n attempting to PPF C counters that it correctly applied the language of Supreme Court Rule 55 amount of the prior recoveries to reduce the claim against the [PPF].” The Similarly, the Estate contends that the PPFC “further misapplied the gross

remaining claim against the [PPF]. be applied for the purpose of ascertaining the net amount of the the probate bond litigation against which the net recovery should purpose of establishing the gross amount of the Estate’s claim in The lost income claim presented to the [PPFC] was for the limited

reimbursement of lost income from the PPF. The Estate explains: The Estate next argues that the PPFC misconstrued its claim as seeking

about double recovery should be raised in the probate division. personally, were stolen from the Estate. Again, we note that any concerns Checks, which appear to have been written from the Estate’s account to Tessier Accordingly, we remand for the PPFC to determine whether the Excluded beneficiaries, suffered a loss of these funds due to Tessier’s theft s. question; rather, the issue is whether the Estate, as an entity distinct from its Thaddeus’ expenses. . . [or] benefit[ed] Thomas Tesssier” is not the relevant from Thaddeus Jakobiec. W hether “the two draft orders properly paid halving of the Estate’s claim: it fail s to recognize the Estate as an entity distinct We reject the PP FC’s argument for the same reason we struck down its

did not benefit Thomas Tesssier.” Proceeding, “that the two draft orders properly paid Thad deus’ expenses and account reconciliation agreement,” it concluded, in the Thaddeus Jakobiec of Thaddeus.” It further notes that “[b]ased on Rockefeller and Boesch’s records, including records accounting for various expenditures made on behalf p. 8 8

legitimately recovered from another s ource should be treated in a claim on the PPF. legitimate recovery of attorney’s fees. Accordingly, we need not consider how attorney’s fees the PPFC. Nor does it now argue that any portion of its recovery on the bond represents a for such a claim in the breakdown of its total claim on the bon d set forth in its memorandum to income, “attorney’s fees and exemplary damages,” it does not appear to have included an amount Although the Estate represents that its claim on the probate bond included, in addition to lost 2

of discretion with respect to the exclusion of expenses of recovery. conclude that the Estate has failed to demonstrate an unsustainable exercise distribution — from the PPF — of the expenses of recovery. Accordingly, we achieves a similar result: it prevents the Estate’s bene ficiaries from receiving a estate.” Pike v. Adams, 99 N.H. 221, 223 (1954). The PPFC’s decision here amount of these expenses and to require payment over to creditors of the gross damages recovered serves “to deprive beneficiaries of a right to retain the reached here. Th at statute’s specification of expenses to be paid out of the We do not find the policy of RSA 556:14 to be at odds with the result

claim ag ainst the [PPF] runs contrary to” that inten t. argues that applying the Estate’s gross recoveries “in further reduction of [its] the net recovery by the estate shall be considered an estate asset,” the Estate Then, a sserting that RSA 556:14 expresses “the clear statutory intent that only administrator brings on behalf of the estate, in cluding a wrongful death claim.” against the PPF “is no different than any other third party claim an provisions of law.” RSA 556:14 (2007). The Estate first asserts that its claim decedent’s es tate and be distributed in accordance with the applicable other debts as approved by the probate court, shall become a part of the recovered, less the expenses of recovery, expenses of administration, taxes or provides that, in a wrongful death action by the administrator, “the damages rather than gross, recoveries should have been deducted. That statute The Estate nevertheless cites RSA 556:14 to support its position that net,

conclude that t he PPFC ’s decision is consist ent with Rule 55(4). net recoveries adds attorney’s fees into the calculation. Accordingly, w e here, the net recoveries equal gross recoveries less attorney’s fees, subtracting Because, based upon th e offer of proof credited by the PPFC and not disputed on collecting its losses,” which “Rule 55(4) does not permit.” We agree. recovery from the CPA, the Estate is asking the [PP F] to reimburse money spent reasoned that “[b]y deducting only its net recoveries on the probate bond and does not specifically challenge that finding on appeal. The PPFC the n 2 represented attorney’s fees incurred in collecting the recoveries.” The Estate proof at the hearing, the difference between the gross and the net recoveries In its decision, t he PPFC noted that “[a]ccording to the [Estate’s] offer of

recoveries ($270,000) the attorney fees it incurred while collecting its loss es.” recoveries ($1 p. 9 95,107.1 p. 8 8) was calculated by subtracting from the sum of gross 9

the loss,” we see nothing prohibiting a claimant from recovering lost income claimant for “interest on the amount lost or money sp ent attempting to collect Ct. R. 55(4). Nevertheless, while the rule prohibits the PPF from reimbursing a than “the dollar value of the money or property lost by lawyer defalcation,” Sup. it seeks to provide “some measure of reimbursement,” id., limited to n o more recovery from, or to ensure that a claimant is made whole by, the PPF. Rather, Sup. Ct. R. 55(1). By its terms, the rule does not purport to guarantee full

the lawyer and the claimant. the course of the client - lawyer or fiduciary relationship between practice law in this jurisdiction occurring in New Hampshire and in money or property caused by the defalcation of lawyers admitted to providing some measure of reimbursement to victims who have lost administration of justice and the integrity of the legal profession by public service and to promote public confidence in the The purposes of the Public Protection Fund are to provide a

system of judicial discipline”). manner that “would run counter to the manifest purposes of New Hampshire’s construe supreme court rules regarding committee on judicial conduct in a stat ed p urpose. Cf. Petition of Thayer, 145 N.H. 177, 183 (2000) (declining to We interpret the rule establishing and governing the PPF in light of its

We agree with the Estate that it should. source without having to deduct that recovery from its claim against the PPF. is whether a claimant should be allowed to recover lost income from another because the PPF will not reimburse lost income in any event. Rather, the issue issue is not whether the claim against the Estate “includes” lost income, such inclusion would not affect the final reimbursement amount. The real value of the money or property lost by lawyer defalcation,” Sup. Ct. R. 55(4), Nevertheless, because reimbursement from the PPF is cappe d at “the dollar sources would result in a claim against the PPF that included lost income. case in which the amount of lost income exceeded recoveries from other as lost income ($ p. 9 99,531.81). Employing the Estate’s method of calculation in a deducted fro m its gross claim ($195,107.18) exceed ing the amount it calculated T he Estate’s position, as we understand it, rests upon the recoveries it

included lost income.” simply the balance of the claim against th e probate bond which legitimately asserts that its net claim “against the [PPF] does not include lost income. It is against the probate bond included, among other things, l ost income, but against Tessi e r as admi nistrator of the Estate.” The Estate notes that its claim the [PP F] for lost income on the amounts stolen, it is not the case for a claim certainly true the regulations of the [PPF] do not permit the recovery against T urning to the issue of lost income, t he Estate argues that “[w]hile it is p. 10 10

alternative sources of recovery, but is required to exhaust all non - PPF avenues other fund” (quotation omitted)). Here, a single claimant has access to exhaust the fund on which he alone has a lien before allowing him to use the recourse to it, the court will often ‘marshal the assets’ and compel t he former to which will prove inadequate for his payment if the senior creditor has primary for his full satisfaction, while a junior creditor has recourse to but one fund, which, “[w]hen one creditor may have recourse to two funds more than ample of protecting junior creditors . . . known as ‘marshaling the assets’,” under So. N.E. Prod. Credit Assoc., 122 N.H. 179, 182 (1982) (discussing “technique etc.) according to their liability or availability for payment of debts”); Lineham v. ( p. 10 10th ed. 2014) (defining “marshal,” in relevant part, as “[t]o arrange (assets, order to maximize the claimant’s recovery. Cf. Black’s Law Dictionary 1121 In essence, we are applying a n equitable concept akin to marshaling in

claim against the PPF. recover ies from other sources before th ose recover ies are applied to reduce its the claimant is entitled to deduct its lost income recovery from its total another source (here, the probate bond) that le gitimately included lost income, where, as the Estate claims here, a claimant recovers on a claim against double recovery) best effectuate s that purpose. Accordingly, we hold that maximizes a claimant’s total recovery from all sources (without providing Ct. R. 55(1), we conclude that an equitable allocation of recoveries that in the administration of justice and the integrity of the legal profession,” Sup. Because one of the purposes of the PPF is “to promote public confidence

claimant’s claim aga inst the PPF. specify how recoveries from other sources should be applied in calculating a property, as a prohibition on double recovery. Nevertheless, the rule does not the provision capping reimbursement at the dollar value of lost money or We read that provision (requiring exhaustion of other sources), together with the offending lawyer an d the offending lawyer’s law firm.” Sup. Ct. R. 55(4). made only after exhaustion of all available assets, insurance, and sur eties of last resort”). Thus, Rule 55 provides that “[p]ayments from the [PPF] shall be Protection Fund Rule, 142 N.H. at 591 (sta ting that “[t]he PPF is designed as a reimbursement from the PPF. Sup. Ct. R. 55(4); see also In re Proposed Public exist, and requires a claimant to exhaust those ot her sources before receiving In fact, the rule recognizes that other sources of reimbursement may

available to victims, including civil and criminal litigation” (emphasis added)). claims that arise” but noti ng that “other avenues of compensation will remain Rule, 142 N.H. 588, 591 (199 8) (acknowledging that the PPF “may not cover all sources to obtain a full recovery. See In re Proposed Public Protection Fund no persuasive policy reason for preventing a claimant from utilizing other claimant from being made whole, if other sources allow it, and we can think of from another source. Id. In other words, we see nothing prohibiting a p. 11 11

DALIANIS, C.J.