Date: 07-03-2018

Case Style:

Case Number: SC95944

Judge: Per Curiam

Court: Supreme Court of Missouri on appeal from the Circuit Court, St. Louis County

Plaintiff's Attorney: Randall J. Reinker, William Edward Waits and Mary J. Ligocki

Defendant's Attorney: Lee R. Camp, Jacki L. Langum, Cheryl Rafert and Daniel E. Claggett

Description: Latasha Johnson appeals a judgment entered in favor of Kohner Properties, Inc., in a rent-and-possession action. She argues the circuit court erroneously barred her from asserting the implied warranty of habitability as an affirmative defense and counterclaim because she remained in possession of the premises without depositing her unpaid rent to the circuit court in custodia legis, which is “traditionally used in reference to property taken into the court’s charge during pending litigation over it.” Black’s Law Dictionary 885 (10th ed. 2014). The circuit court’s judgment is affirmed.
Factual and Procedural History
Johnson entered into a written lease agreement with Kohner to rent an apartment. The lease required Johnson to pay monthly rent. During her tenancy, the ceiling above Opinion issued July 3, 2018
2
the shower in the bathroom collapsed as a result of a water leak in the unit above
Johnson’s apartment. Kohner attempted to repair the leak and placed a tarp or trash bag
over the hole in the ceiling, but the leak persisted. As a result of the damage, Johnson
stayed at a hotel at her own expense to use the shower. The circuit court found the
parties offered conflicting testimony as to whether Johnson allowed Kohner access to the
premises to repair the ceiling and broken floor tiles. Johnson withheld two months-worth
of rent.
Kohner filed an action against Johnson seeking unpaid rent and possession of the
apartment. Johnson filed an answer and raised an affirmative defense and counterclaim
alleging Kohner had breached the implied warranty of habitability. At trial, and prior to
opening statements, Kohner verbally moved to bar Johnson’s affirmative defense and
counterclaim because she remained in possession of the apartment but had failed to
deposit her unpaid rent to the circuit court in custodia legis. After hearing argument, the
circuit court overruled Kohner’s motion, explaining:
Inasmuch as the Court has not received any evidence at this juncture as to
what the circumstances are regarding this tenancy and has no information at
this time as to the status of the tenant in her claim, so at this point the Court
finds -- I’m sorry -- the Court is going to overrule [Kohner]’s objection and
does not consider whatever position [Kohner] has at this juncture. A bar to
[Johnson] defending this claim and will take up whether or not the elements
of any defense she might have have been substantiated during this trial.
At trial, the parties were permitted to introduce evidence regarding whether
Kohner breached the implied warranty of habitability. After trial, the circuit court, upon
“careful consideration of the evidence[,]” entered judgment in favor of Kohner. The
circuit court found the hole in the ceiling remained covered by plastic and had not been
3
repaired, and water continued to drip from the hole and plastic covering the ceiling into
the bath tub below. Nonetheless, the circuit court barred Johnson from asserting her
affirmative defense and counterclaim based on the implied warranty of habitability
because she “failed to either vacate the premises or tender her rent to the Court in
custodia legis as required by” King v. Moorehead, 495 S.W.2d 65, 77 (Mo. App. 1973).
However, the circuit court also found, while Johnson was barred from asserting
her affirmative defense and counterclaim, Kohner breached its promise to make repairs
under the maintenance clause of the lease agreement and awarded Johnson a set-off for
hotel expenses. Accordingly, the circuit court awarded Kohner possession of the
apartment along with rent, late fees, attorney fees, and court costs. Johnson appealed,
and the court of appeals, after opinion, transferred the case to this Court. Mo. Const. art.
V, sec. 10.
Analysis
“On review of a court-tried case, [this C]ourt will affirm the circuit court’s
judgment unless there is no substantial evidence to support it, it is against the weight of
the evidence, or it erroneously declares or applies the law.” Sun Aviation v. L-3
Commc’ns Avionics Sys., 533 S.W.3d 720, 727 (Mo. banc 2017) (citation omitted). Legal
questions are reviewed de novo. See, e.g., Blanchette v. Blanchette, 476 S.W.3d 273,
277-78 (Mo. banc 2015).1
1 It is unclear whether Johnson is claiming the circuit court erroneously declared the law or
erroneously applied the law. “[A]llegations of error not briefed or not properly briefed shall not
be considered in any civil appeal.” Rule 84.13(a). Nowhere in her substitute brief does Johnson
expressly say the circuit court erroneously declared or applied the law. This alone suggests
Johnson’s contention against the in custodia legis procedure is “technically deficient” and thus
4
I.
Johnson argues the circuit court erroneously barred her from asserting the implied
warranty of habitability as an affirmative defense and counterclaim on the basis she failed
to either vacate the premises or tender her rent to the court in custodia legis.
The circuit court relied on King in barring her from asserting a breach of the
implied warranty of habitability. In King, a landlord sued a tenant for rent and
possession. 495 S.W.2d at 67. The tenant lost in the magistrate court and vacated the
premises before appealing to the circuit court. Id. The tenant asserted, as an affirmative
defense, that the landlord breached an implied covenant to provide premises in a safe,
sanitary, and habitable condition. Id. at 68. The circuit court determined the tenant failed
to state a valid defense. Id. The court of appeals reversed, holding the tenant stated a
valid defense because all residential leases include an implied warranty of habitability
obligating lessors to guarantee the “dwelling is habitable and fit for living at the inception
of the term and that it will remain so during the entire term.” Id. at 75.
Because a landlord is obligated to provide a habitable dwelling, a breach of the
warranty “justifies retention of possession by the tenant and withholding of rent until
habitability has been restored.” Id. at 77. The court of appeals in King concluded its
analysis of the implied warranty of habitability by stating, “A tenant who retains
possession . . . shall be required to deposit the rent as it becomes due, in custodia legis
not preserved for review in this Court. Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo. banc
1997). But this Court may “treat the point as preserved for appellate review” if it “provides
sufficient notice to the parties and to this Court as to the issues presented on appeal.” Id. Here,
the Court is on notice of the issue presented on appeal and the briefing suggests Kohner is on
notice as well.
5
pending the litigation.” Id. It explained, “This procedure assures the landlord that those
rents adjudicated for distribution to him will be available to correct the defects in
habitability, and will also encourage the landlord to minimize the tenant’s damages by
making tenantable repairs at the earliest time.” Id.
The court of appeals’ discussion of the in custodia legis procedure in King was
unnecessary to resolve the case. Because the tenant in King had already vacated the
premises, the in custodia legis procedure, which applies when a tenant retains possession
of the property, did not pertain to the tenant in King. Therefore, the discussion in King,
imposing the in custodia legis procedure in all rent and possession actions when the
tenant retains possession of the premises and alleges the landlord breached the implied
warranty of habitability, was not necessary to resolve King and could be accurately
characterized as dicta.
Even if King’s pronouncement of an in custodia legis procedure was dicta, it is
undisputed that the legal pronouncement in King has been dutifully followed by our
circuit courts for almost five decades in the absence of contrary guidance from this Court
or the Missouri General Assembly. See, e.g., 36 Jane Pansing Brown, Missouri Practice
Series: Landlord-Tenant Handbook §§ 1:1, 23:8 (2017); 18A Timothy J. Tryniecki,
Missouri Practice Series: Real Estate Law § 52:18 (3d ed. 2006). Moreover, since King,
the in custodia legis procedure has been discussed in at least two reported decisions by
the court of appeals: Tower Management, Inc. v. Henry, 687 S.W.2d 564 (Mo. App.
1984), and Wulff v. Washington, 631 S.W.2d 109 (Mo. App. 1982). As in King, however,
the tenant in Wulff vacated the premises, 631 S.W.2d at 109-10, and, therefore, any
6
discussion of an in custodia legis procedure in Wulff is, likewise, dicta. And in Henry,
the tenants retained possession, but did not deposit their rent to the circuit court in
custodia legis. 687 S.W.2d at 565-66.2
Until now, this Court has never been required to examine King’s pronouncement
of an in custodia legis procedure in all rent and possession actions when the tenant
remains in possession. In Detling v. Edelbrock, in which this Court recognized an
implied warranty of habitability, most of the tenants had vacated the premises. 671
S.W.2d 265, 267, 270 (Mo. banc 1984), abrogated on other grounds by Heins Implement
Co. v. Mo. Highway & Transp. Comm’n, 859 S.W.2d 681, 684 n.2 (Mo. banc 1993).
Therefore, this Court did not address whether the tenants asserting a breach of the
implied warranty of habitability were required to deposit rent payments with the circuit
court.
II.
The “majority of the courts which permit rent withholding” leave the imposition of
an in custodia legis procedure to the sound discretion of the trial court. Restatement
(Second) of Prop.: Landlord & Tenant § 11.3, at 377 (Am. Law Inst. 1977); see also
Teller v. McCoy, 253 S.E.2d 114, 129 (W. Va. 1978) (“[S]everal courts have held that the
trial court, upon request, after determining that a fact questions [sic] exists as to a breach
of warranty of habitability, may, during the pendency of the action, require the tenant in
2 The dissenting opinion states there has been “only one case in which application of the in
custodia legis procedure discussed in King was necessary for the resolution of the case for
tenants remaining in possession of the rented property[,]” citing Henry. Although Henry is the
only reported Missouri appellate case to sanction King’s pronouncement of an in custodia legis
procedure, the dissenting opinion fails to account for the numerous circuit courts, like the circuit
court in this case, that have applied an in custodia legis procedure after King.
7
possession to make future rent payments or part thereof unto the court as they become
due.”) (emphasis added); Robert S. Schoshinski, American Law of Landlord and Tenant
§ 6:15.10, at 507, 510-11 (Supp. 2018) (collecting numerous cases in which trial courts
“without statutory authorization” have the discretion to impose an in custodia legis
procedure).
For instance, the illustrious Judge J. Skelly Wright, writing for a unanimous court
in Javins v. First National Realty Corp., weighed in on the in custodia legis procedure:
Appellants in the present cases offered to pay rent into the registry of the
court during the present action. We think this is an excellent protective
procedure. If the tenant defends against an action for possession on the
basis of breach of the landlord’s warranty of habitability, the trial court
may require the tenant to make future rent payments into the registry of the
court as they become due; such a procedure would be appropriate only
while the tenant remains in possession. The escrowed money will,
however, represent rent for the period between the time the landlord files
suit and the time the case comes to trial. In the normal course of litigation,
the only factual question at trial would be the condition of the apartment
during the time the landlord alleged rent was due and not paid.
As a general rule, the escrowed money should be apportioned between the
landlord and the tenant after trial on the basis of the finding of rent actually
due for the period at issue in the suit. To insure fair apportionment,
however, we think either party should be permitted to amend its complaint
or answer at any time before trial, to allege a change in the condition of the
apartment. In this event, the finder of fact should make a separate finding
as to the condition of the apartment at the time at which the amendment
was filed. This new finding will have no effect upon the original action; it
will only affect the distribution of the escrowed rent paid after the filing of
the amendment.
428 F.2d 1071, 1083 n.67 (D.C. Cir. 1970) (emphasis added). Similarly, a California
court of appeal echoed Javins’ support for an in custodia legis procedure in some cases,
explaining:
8
If the tenant claims that all or a part of the rent is not due because of defects
in the premises, the trial court may, during the pendency of the action and
at the request of either party, require the tenant to make the rental
payments at the contract rate into court as they become due for as long as
the tenant remains in possession. At the trial of the action the court can
then determine how the rent paid into court should be distributed.
Hinson v. Delis, 102 Cal. Rptr. 661, 666 (Ct. App. 1972), disapproved of on other
grounds by Knight v. Hallsthammar, 623 P.2d 268, 273 n.7 (Cal. 1981) (emphasis
added). The Supreme Court of California sanctioned Hinson’s in custodia legis
procedure, calling it “a fair means of protection of landlords from potential abuses of the
proposed warranty of habitability defense.” Green v. Superior Court, 517 P.2d 1168,
1182 (Cal. 1974). Moreover, this “sound procedural safeguard[] suffice[s] to protect the
landlord’s economic interests without depriving the tenant of a meaningful opportunity to
raise the breach of warranty issue.” Id. Notably, the court of appeals in King cited to
both Javins and Hinson in support of an in custodia legis procedure. King, 495 S.W.2d at
77.
Furthermore, the Supreme Court of Pennsylvania recognized a trial court is in the
best position to determine whether an in custodia legis procedure is appropriate in a given
case, explaining:
[T]he decision whether a tenant should deposit all or some of the unpaid
rents into escrow should lie in the sound discretion of the trial judge or
magistrate. The tenant may retain his rent, subject to the court’s
discretionary power to order him, following a hearing on the petition of the
landlord or tenant, to deposit all or some of the rent with the court or a
receiver appointed by the court.
Pugh v. Holmes, 405 A.2d 897, 907 (Pa. 1979). Likewise, the Supreme Court of
Minnesota explained:
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[O]nce the trial court has determined that a fact question exists as to the
breach of the covenants of habitability, that court will order the tenant to
pay the rent to be withheld from the landlord into court . . . and that until
final resolution on the merits, any future rent withheld shall also be paid
into court. The court under its inherent powers may order payment of
amounts out of this fund to enable the landlord to make repairs or meet his
obligations on the property or for other appropriate purposes. In the
majority of cases, final determination of the action will be made quickly
and this procedure will not have to be used. It is anticipated that the trial
court, in lieu of ordering the rent paid into court, in the exercise of its
discretion may order that it be deposited in escrow subject to appropriate
terms and conditions or, in lieu of the payment of rents, may require
adequate security therefor if such a procedure is more suitable under the
circumstances.
Fritz v. Warthen, 213 N.W.2d 339, 343 (Minn. 1973) (footnote omitted).
Consistent with the prevailing view of a majority of jurisdictions, this Court holds
circuit courts may exercise discretion on a case-by-case basis to determine whether an in
custodia legis procedure is appropriate in a particular case. See Unif. Residential
Landlord & Tenant Act § 4.105(a) (Unif. Law Comm’n 1972) (amended 1974) (revised
2015) (“[T]he court from time to time may order the tenant to pay into court all or part of
the rent accrued and thereafter accruing, and shall determine the amount due to each
party.”) (emphasis added). A circuit court is in the best position to assess the merits of
each case and the parties’ respective positions, and is in the best position to accommodate
“the competing interests of the parties in affording necessary and fair protection to both
parties.” Eli Haddad Corp. v. Cal Redmond Studio, 476 N.Y.S.2d 864, 865-66 (App.
Div. 1984); see also Unif. Residential Landlord & Tenant Act § 4.105 cmt. (“It is
anticipated that upon filing of the counterclaim the court will enter the order deemed
appropriate by him concerning the payment of rent in order to protect the interests of the
parties.”).
10
This practice “is said to derive from a trial court’s general equitable powers to
protect a landlord from the potential loss of income from his property during a prolonged
period of litigation.” Schoshinski, supra, at 507; see also id. (noting trial courts may
impose an in custodia legis procedure “without statutory authorization”). The in custodia
legis procedure merely “preserves the status quo until a final judgment is rendered.”
MMB Assocs. v. Dayan, 564 N.Y.S.2d 146, 147 (App. Div. 1991). “The tenant pays rent
into escrow at the discretion of the court, which apportions the escrowed money between
the landlord and tenant after final judgment.” Restatement (Second) of Prop., supra, at
381. No one, including the trial court, may “invade escrow accounts before final
judgment without the consent of the parties.” Teller, 253 S.E.2d at 130.3 Without an in
custodia legis procedure available to the trial court,
the tenant remains in occupancy without making any payments for this
protracted period, with little or no assurance that any deficiencies will be
collected at the conclusion of the litigation should the landlord prevail on
the merits. Payments into court thus provide this assurance—if the rent or
any portion of it is finally determined to be due, the escrowed fund is
available for its payment.
Schoshinski, supra, at 508. Moreover,
if the tenant is withholding all the rent, the landlord runs the risk that the
tenant may ultimately be unwilling or unable to pay the amount found by
the court to be due and owing. Hence the court may, in appropriate cases,
enter a “protective order” requiring the tenant to pay all or part of the rent
3 Contrary to the dissenting opinion’s assertion that an in custodia legis procedure “places
landlords in a better position than they would be if tenants did not assert an implied warranty of
habitability defense[,]” permitting the circuit courts the discretion to implement or not implement
a procedure that merely “preserves the status quo until a final judgment is rendered[,]” Dayan,
564 N.Y.S.2d at 147, is not a windfall to landlords. Indeed, no one, including the circuit court,
may “invade escrow accounts before final judgment without the consent of the parties.” Teller,
253 S.E.2d at 130. This is consistent with the dissenting opinion’s own assertion that a landlord
is not “entitled to recover rent or possession prior to a favorable adjudication of the landlord’s
rent and possession claim.”
11
claimed into court until it is finally determined whether there is a breach of
the implied or statutory warranty and, if so, how large an abatement of rent
the court should grant.
Roger A. Cunningham et al., The Law of Property 340-41 (2d ed. 1993).
In sum, even though King’s pronouncement of an in custodia legis procedure in all
rent and possession actions when the tenant retains possession was dicta, the circuit
courts have the discretion to institute a suitable protective procedure upon either party’s
request and after notice and an opportunity to be heard by the opposing party. See Unif.
Residential Landlord & Tenant Act § 408(b) & cmt. (expanding upon § 4.105 and stating,
“[i]f a tenant is in possession of the dwelling unit when the landlord files an action based
on nonpayment of rent, either party may seek a court order directing the tenant to pay all
or part of the unpaid rent and all additional rent as it accrues into an escrow account with
the court”). It should be emphasized, however, that King’s pronouncement of an in
custodia legis procedure had been in place for almost five decades, and, therefore,
constituted the status quo in Missouri. For this reason, and given the absence of contrary
authority from this Court or contrary legislation from the General Assembly, the circuit
court in this case cannot be faulted for relying on King when it barred Johnson’s
affirmative defense and counterclaim.4
4 In resolving this case, this Court recognizes “the time-honored principle of separation of
powers and the recognition that policy decisions such as [those] presented in this case are within
the” province of the General Assembly. Goerlitz v. City of Maryville, 333 S.W.3d 450, 456
(Mo. banc 2011). Regardless of the outcome in this case, the General Assembly could enact
legislation codifying the approach taken in this case, i.e., allowing our circuit courts to exercise
their sound discretion to impose an in custodia legis procedure on a case-by-case basis. Or it
could enact legislation adopting King’s dicta imposing an in custodia legis procedure in all rent
and possession actions when the tenant remains in possession of the premises. This has been the
unchallenged and unquestioned process in place for almost five decades and constitutes the
status quo in Missouri. Or it could enact legislation adopting the dissenting opinion’s approach,
12
Accordingly, it did not erroneously declare or apply the law at the time it entered
its judgment.5
Conclusion
The circuit court’s judgment is affirmed.
Fischer, C.J., Wilson and Russell, JJ., concur;
Breckenridge, J., dissents in separate opinion filed;
Stith, J., concurs in opinion of Breckenridge, J.
Draper and Powell, JJ., not participating.
which would prohibit an in custodia legis procedure in all cases. In any event, the General
Assembly is perfectly capable of enacting laws it perceives reflect sound policy that best serve
all Missourians.
5 To the extent Johnson argues upholding the circuit court’s imposition of an in custodia legis
procedure in this case violates article I, section 14, of the Missouri Constitution, she: failed to
raise an open courts violation before the circuit court even though she could have, Rule 78.07(b);
failed to file an after-trial motion raising such a violation, id.; and failed to raise a point relied on
regarding such a violation in her brief filed in the court of appeals. Accordingly, such a
contention is not preserved for review in this Court. See, e.g., J.A.R. v. D.G.R., 426 S.W.3d 624,
629 (Mo. banc 2014); Brown v. Brown, 423 S.W.3d 784, 788 & n.5 (Mo. banc 2014) (per
curiam); St. Louis Cty. v. Prestige Travel, 344 S.W.3d 708, 712-13 (Mo. banc 2011). Indeed,
this Court “will avoid deciding a constitutional question if the case can be resolved fully without
reaching it.” Lang v. Goldsworthy, 470 S.W.3d 748, 751 (Mo. banc 2015).
SUPREME COURT OF MISSOURI
en banc
KOHNER PROPERTIES, INC., )
)
Respondent, )
)
v. ) No. SC95944
)
LATASHA JOHNSON, )
)
Appellant. )
DISSENTING OPINION
I respectfully dissent. The circuit court relied on King v. Moorehead, 495 S.W.2d
65 (Mo. App. 1973), in barring Latasha Johnson from asserting a breach of the implied
warranty of habitability. But the in custodia legis procedure discussed in King was simply
dicta. The principal opinion reasons it is immaterial that the in custodia legis procedure in
King is dicta because such dicta has been “dutifully followed by our circuit courts for
almost five decades.” An examination of Missouri case law, however, reflects only one
case in which application of the in custodia legis procedure discussed in King was
2
necessary for the resolution of the case for tenants remaining in possession of the rented
property.1 See Tower Mgmt. Inc. v. Henry, 687 S.W.2d 564, 565-66 (Mo. App. 1984).
More importantly, an examination of the in custodia legis procedure espoused in
King reveals its origin is not rooted in application of common law principles. Rather, the
recognition of an implied warranty of habitability marked a change from Missouri’s
previous application of caveat emptor. King, 495 S.W.2d at 69. In recognizing the implied
warranty of habitability, Missouri courts acknowledged a shift in the common law from a
landlord’s unfettered right to rent and possession toward recognition of a bilateral contract
in which the tenant’s obligation to pay rent is dependent on the landlord’s performance of
the obligation to provide a habitable dwelling. Id. It is not surprising, therefore, that, in
the course of that transition, the court of appeals discussed the in custodia legis procedure,
which undoubtedly reserved some remnants of protection for the landlord. But the fact
remains such a procedure had no basis in present property law or contract principles.
1 The principal opinion states “numerous circuit courts” have applied the in custodia legis
procedure under “appropriate circumstances.” The only authority supporting such
conclusion is secondary authority that, once again, relies on the dicta in King. See 36 Jane
Pansing Brown, Missouri Practice Series: Landlord-Tenant Handbook §§ 1:1, 23:8
(2017); 18A Timothy J. Tryniecki, Missouri Practice Series: Real Estate Law § 52:18 (3d
ed. 2006). Those secondary sources do not establish circuit courts have been dutifully
applying in custodia legis procedures or whether such procedures have been applied under
the appropriate circumstances. Furthermore, even if circuit courts have been relying on the
dicta in King and these secondary sources, they state application of the in custodia legis
procedure is mandatory for tenants remaining in possession of the property. See King, 495
S.W.2d at 77; 36 Jane Pansing Brown, Missouri Practice Series: Landlord-Tenant
Handbook §§ 1:1, 23:8 (2017). This differs significantly from the discretionary approach
the principal opinion adopts going forward.
3
Furthermore, despite the principal opinion’s finding to the contrary, the in custodia
legis procedure is not necessary to safeguard landlords’ property interests when a tenant
asserts a breach of the implied warranty of habitability. A landlord suffers no detriment
from assertion of the defense in the absence of an in custodia legis requirement because a
landlord is not otherwise entitled to recover rent or possession prior to a favorable
adjudication of the landlord’s rent and possession claim. Therefore, requiring tenants to
deposit with the court the rent as it becomes due places landlords in a better position than
they would be if tenants did not assert an implied warranty of habitability defense.
The principal opinion finds the in custodia legis procedure “preserves the status
quo” and “is not a windfall to landlords.” But requiring a tenant to deposit rent as it comes
due prior to adjudication of a landlord’s claim for rent and possession is a financial
prerequisite to a tenant’s access to the courts to present a claim or defense of a breach of
the implied warranty of habitability. And the principal opinion cannot cite to any other
action – based in either property or contract –requiring the disputed amount to be paid into
the court as a precondition to asserting a defense or raising a claim.
Moreover, such findings ignore the disparity between tenants and landlords that
often exists in situations in which the implied warranty of habitability is being asserted and
overlook the likelihood that requiring payment of rent as it becomes due acts as a deterrent
to tenants wishing to assert the defense. Therefore, in practice, the in custodia legis
procedure revives the constructive eviction doctrine the implied warranty of habitability
was designed to replace. Accordingly, I am not persuaded that an in custodia legis
requirement is a necessary procedural safeguard in rent and possession actions.
4
Finally, even if I agreed the discretionary in custodia legis procedure adopted by the
principal opinion were appropriate, that would not justify affirming the circuit court’s
judgment in this case. Rather, the record makes clear the circuit court perceived the in
custodia legis procedure to be mandatory, not discretionary, when it barred Ms. Johnson
from asserting a breach of the implied warranty of habitability. Ms. Johnson should be
afforded the same opportunity for the circuit court to exercise its discretion in this case as
tenants in rent and possession cases will have going forward. Accordingly, I would reverse
the circuit court’s judgment.
_____________________________
PATRICIA BRECKENRIDGE, JUDGE

Outcome: Affirmed

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