                                                                                              FILFD
                                                                                         COURT OF APPEALS
                                                                                               DIVISION 11

                                                                                        20114 SEP - 3 !        3: 22,

                                                                                         STATE OF WASHINGTON

                                                                                         BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                      DIVISION II

KENNETH HAUGE,                                                                         No. 44305 -8 -II


                                          Appellant,


         v.



CITY OF LACEY, a municipal corporation,                                         UNPUBLISHED OPINION


                                          Respondent,


THURSTON COUNTY, a subdivision of
Washington State,


                                          Defendant.




          LEE, J. —       Kenneth Hauge appeals the trial court' s order granting summary judgment in

favor   of   the   City   of   Lacey    and    dismissing   his inverse     condemnation claim.         Hauge argues that,


despite a previous settlement between the parties related to the City' s condemnation and

acquisition of a right -of way over his property, the City failed to pay him just compensation for
                           -

a) the reduction of his property' s value due to increased traffic noise; and ( b) the removal of

three trees    outside of       the   right -
                                            of way.
                                               -       Hauge also argues that the trial court erred in failing to

address      his   claims      for    abuse,   retaliation,   negligence,      and additional    governmental takings.


Because the        settlement    between Hauge         and    the   City   provided   Hauge   with   just   compensation   for
No. 44305 -8 - II



any reduction in his property' s value incident to the City' s road expansion and the disputed trees,

and    Hauge'   s   other     contentions        are   meritless,     we   affirm.     We also deny Hauge' s request for

attorney fees.

                                                                   FACTS


A.       BACKGROUND


         In May 2008, the City posted a public notice of its intent to widen Carpenter Road from

two to four lanes           as part of a        long -
                                                     term         transportation    project.     From its inception, affected


property   owner        Hauge      was       steadfastly   opposed        to the        widening project.
                                                                                   road -                         Hauge, who is


extremely sensitive to noise, feared the project would destroy the character of his property and

have   adverse      impacts       on   his   and   his elderly      mother' s    health.   Accordingly, Hauge rejected the

City' s many prelitigation offers to purchase a 4, 058 square foot right - way over a narrow strip
                                                                         of -

of his property.

         In March 2010, the              City      offered   Hauge $ 44, 500 as just compensation for the right -
                                                                                                                of-


way.     The City took the position that " just compensation is the difference between the fair

market value of the property before the acquisition and the fair market value of the property

remaining       after   the    acquisition.         It is the property that needs to be evaluated and not the

circumstances of        the    owner."         Clerk' s Papers ( CP)        at   180. Hauge rejected the offer and instead


asked   for "$ 425, 000 for the total taking                 of [ his]    property."       CP   at   183.   The City rejected the

counter -offer because it was unwilling to " treat a partial acquisition as a total acquisition without

any basis for making that decision." CP at 184.


         Hauge      and     the   City   were unable         to   reach an amicable agreement.               In Deccember 2010,


the. City successfully sought an order of public use and necessity in December 2010, to condemn



                                                                      2
No. 44305 -8 -II


and     acquire   the         of way
                        right -  -                over        Hauge'   s   property.        Before proceeding to a jury trial to

establish just compensation, Hauge and the City negotiated a settlement.

          During     negotiations,            the       City' s   appraiser        valued        the         of way
                                                                                                       right -  -       at $   57, 000.   This


included $ 20, 000 for the land itself, $ 7, 680 for the contribution value of affected timber


    including   trees   outside        the          of way
                                              right -  -             that       would   need       to be     removed),     and $   29, 320 in


severance       damages.'        Hauge'      s own appraiser assessed                 the   value of      the   right -
                                                                                                                      of way at $
                                                                                                                         -           172, 500.


This figure included $ 34, 500 for the land itself, $26, 000 for trees to                                    replace   lost timber, $53, 000


in   severance    damages,        and $      59,000 for loss of the land value for accessory dwelling units and a

cedar    fence.    In March 2011, the                   parties    filed   a "    Stipulation of Settlement" with the trial court


evidencing their        agreement            to   settle       for $ 150, 000.       CP     at    317 -19.      After Hauge accepted the


funds, the trial        court    entered          a "   Decree      of     Appropriation" memorializing that the $ 150, 000


represented      the " just   compensation               for the [ City'     s]   taking    of   the [ Hauge] property."         CP at 322.


          Following      the     settlement,            the    City began       work on     the          of way.
                                                                                                   right -  -          However, a dispute


soon arose over Hauge' s refusal to allow the City to remove three trees on his property abutting

the right - way. Believing it had compensated Hauge for the trees as part of the settlement, the
          of -

City moved to enjoin Hauge from interfering with their removal. As part of its motion to enjoin,

the City included a declaration from City Engineer Roger Schoessel and the construction plans

filed   as part of   the   public use and               necessity      hearing.       Schoessel' s declaration stated that " Hauge



1
     Severance damages           are   statutorily            recognized        in Washington. RCW 8. 12. 190( 2). "                A loss of
value    to the land that is           not    taken       is   referred    to     as ` severance       damages.'"       Cent. Puget Sound
Reg'    l Transit Auth.     v.   Heirs &
                               Devisees ofEastey, 135 Wn. App. 446, 456, 144 P. 3d 322 ( 2006)
 quoting Shields v. Garrison, 91 Wn. App. 381, 388 n.2, 957 P.2d 805, 967 P. 2d 1266 ( 1998)).
Both.the City' s appraiser and Hauge' s appraiser refer to these damages as " proximity damages,"
but, from the context, it is clear that severance damages are intended. CP at 128.




                                                                            3
No. 44305 -8 -II'



refused to allow the removal of the three ( 3) trees shown on Plan Sheet 7 even though the City

 had]   paid    for those trees        as part of      the   settlement."    CP    at   39.   In May 2011, the trial court

granted the City' s motion to enjoin Hauge from interfering with removal of the trees. Hauge did

not appeal the order, and construction on the project continued.


B.        PROCEDURE


          In June 2012, Hauge filed                  a complaint against     the   City   for inverse     condemnation.      The


complaint      alleged     that ( 1)    the City did not compensate Hauge for the three trees it removed

outside   of    the   right -
                            of way;
                               -           (   2) the City' s actions rendered Hauge' s auxiliary dwelling unit

uninhabitable; (      3)    the retaining wall built by the City did not comply with manufacturer

specifications, posed a substantial risk of collapse, and encroached on                            Hauge'   s   property; ( 4) the


City failed to compensate Hauge for heightened noise levels resulting from increased traffic on

Carpenter Road; and ( 5) the City' s actions caused a loss of lateral support on the property.
                                                                                                                       2
          The    City      moved for summary judgment in                    response      to Hauge'   s   complaint.       Hauge


opposed the City' s summary judgment and filed a cross- motion for summary judgment.

          Before the summary judgment                    hearing,   Hauge    amended       his   complaint.      In the amended


complaint,      Hauge      alleged     that ( 1) "   The actions of the defendants have damaged the Property to

the extent that the Property is worthless to the plaintiff and a constructive taking has occurred,"

 2) he should be compensated for the three trees removed outside of the right -of way, and ( 3)
                                                                                  -

 the plaintiff has a cause of action for severance damages arising from diminution in the value of



2 The City submitted a CR 12(b)( 6) motion with considerable materials outside the pleadings and
asked the court to treat it "procedurally the same as a Motion for Summary Judgment pursuant to
CR 56."    CP at 18. The trial court and the parties treated the City' s motion as a summary
judgment motion. On appeal, we review the motion as one for summary judgment. CR 12( c).



                                                                    4
No. 44305 -8 -II



the Property caused by the construction and continued existence of the widened Carpenter

Road."      CP at 155 -56.


         Shortly    thereafter,     the    trial    court     heard       oral   argument    on        the    parties'   motions for


summary judgment, granted the City' s summary judgment motion and denied Hauge' s cross -

motion for summary judgment. Hauge appeals.

                                                             ANALYSIS


A.       STANDARD OF REVIEW


         We    review a   trial court' s summary judgment ruling                    de    novo.        Torgerson v. One Lincoln


Tower, LLC; 166 Wn.2d 510, 517, 210 P. 3d 318 ( 2009).                            Summary judgment is appropriate only

if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any

genuine issues of material fact, and the moving party is entitled to judgment as a matter of law.

CR 56( c).     A material fact is one on which the outcome of the litigation depends in whole or in

part.                             Owners Ass 'n Bd. of Dirs.
        Atherton Condo. Apartment —                                                  v.   Blume Dev. Co., 115 Wn.2d 506,


516, 799 P. 2d 250 ( 1990).          We consider " all the facts submitted and the reasonable inferences


therefrom     in the light   most   favorable to the nonmoving party." Atherton, 115 Wn.2d at 516.


         Summary judgment is              subject   to   a   burden- shifting      scheme.    Young v. Key Pharms., Inc.,

112 Wn.2d 216, 225, 770 P. 2d 182 ( 1989).                     The moving party has the initial burden to show the

nonexistence of genuine         issues     of material       fact.       Young,   112 Wn.2d       at   225.       If the moving party

satisfies    its initial burden, the       inquiry    shifts    to the nonmoving party to " present evidence that


demonstrates that      material     facts    are    in dispute."          Atherton, 115 Wn.2d                at   516.   However, '   a




complete failure of proof concerning an essential element of the nonmoving party' s case

necessarily     renders   all   other     facts immaterial. "'            Young,    112 Wn.2d           at    225 (   quoting Celotex



                                                                     5
No. 44305 -8 -II



Corp.    v.   Catrett, 477 U. S. 317, 322 -23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 ( 1986)).                            Summary

judgment should only be granted if the nonmoving party fails to show that a genuine issue as to a

material      fact   exists.   Seven Gables      Corp.    v.   MGM/UA Entm' t Co., 106 Wn.2d 1,               13, 721 P. 2d 1


 1986).


B.        JUST COMPENSATION


          Hauge argues that the trial court misinterpreted the parties' settlement, and therefore, he


has not been provided just compensation for the diminution in value of his property in light of

increased noise from the expanded road or for the three trees removed during construction of the

      of -
right -  way.          Because the only reasonable interpretation of the parties' settlement is that the

City provided Hauge with just compensation for the trees and severance damages for the effects

of the road, we disagree.


          We interpret         settlement agreements           the   same   way   we   interpret   other contracts.   McGuire


v.   Bates, 169 Wn.2d 185, 188,               234 P. 3d   205 ( 2010). "     The touchstone of contract interpretation

is the   parties'     intent."    Tanner Elec. Co -op          v.   Puget Sound Power & Light Co., 128 Wn.2d 656,


674, 911 P.2d 1301 ( 1996).


          In Washington, the intent of the parties to a particular agreement may be
          discovered not only from the actual language of the agreement, but also from
           viewing the contract as a whole, the subject matter and objective of the contract,
          all the circumstances surrounding the making of the contract, the subsequent acts
          and conduct of the parties to the contract, and the reasonableness of respective

          interpretations advocated by the parties."


Scott    Galvanizing,          Inc.   v.   Nw. EnviroServices, Inc., 120 Wn.2d 573, 580 -81,                   844 P. 2d 428


 1993) ( quoting         Berg    v.   Hudesman, 115 Wn.2d 657, 667, 801 P. 2d 222 ( 1990)).                      If "only one




                                                                     6
No. 44305 -8 -II



reasonable          inference      can       be drawn from the        extrinsic evidence,"             we can determine the contract' s


meaning as a matter of law. Scott Galvanizing, 120 Wn.2d at 582.

          In    interpreting                contracts,   courts      normally      give     words       their "'   general   and ordinary


accepted meaning and connotation' unless otherwise defined by the parties or by the dictates of

the   context."        Blue Mountain Mem' l Gardens v. Dep' t ofLicensing, Cemetery Bd., 94 Wn. App.

38, 43, 971 P. 2d 75 ( quoting Keeton                       v.   Dep' t of Soc. & Health Servs., 34 Wn. App. 353, 360 -61,

661 P. 2d 982,          review         denied, 99 Wn.2d 1022 ( 1983)),                 review      denied, 138 Wn. 2d 1011 ( 1999).


However, "           a term of art in a given field is given its technical meaning when used in, an

agreement within             that field."          Blue Mountain, 94 Wn. App. at 43 ( citing RESTATEMENT ( SECOND)

OF    CONTRACTS § 202 ( 1981)).


          The Decree              of   Appropriation        stated   that $ 150, 000        was " just compensation" for the taking

of    Hauge'    s    property. "            Just   compensation"       is   a   term   of   art   in   eminent     domain law. Where a


partial taking of a plaintiff' s land is involved, just compensation " is the difference between the

fair market value of the entire property before the acquisition and the fair market value of the
remainder           after   the    acquisition."           State v. Sherrill, 13 Wn. App. 250, 254 -55, 534 P.2d 598,

review    denied, 86 Wn.2d 1002 ( 1975). "                         Fair market value is the amount of money which a well

informed purchaser, willing but not obliged to buy the property would pay, and which a well

informed seller, willing but not obliged to sell it would accept, taking into consideration all uses

to which the property                  is   adapted."    State v. Wilson, 6 Wn. App. 443, 447, 493 P. 2d 1252 ( 1972).

           Here, Hauge             argues       that the   parties   intended the $ 150, 000 settlement as compensation for


the "   fair   market value of               the 4, 058 sq. ft.    portion      of property," and not compensation for the trees




                                                                            7
No. 44305 -8 -II



and severance damages for the impact that the right -of way would have on Hauge' s remaining
                                                        -

land. Br. of Appellant at 6. The record, however, belies this assertion.


           Before reaching settlement, the City' s appraiser valued just compensation for the right-

of-way at $     57, 000,     a    figure that included $ 20, 000 for the land itself, $7, 680 for trees that had to


be    removed, and $         29, 320 in severance damages for the effect the new road would have on the


property     value   of      Hauge'      s   remaining land.         Hauge' s appraiser valued just compensation at

    172, 500,   which       included $ 34, 500 for the         acquired       land, $ 26, 000 for lost timber, $ 53, 000 for


severance       damages — a         figure that explicitly accounted for " increased noise and vibration above

the   allowable standards,"              and $   59, 000 for the loss of land value for an additional dwelling unit

and a cedar      fence.       CP    at   55 -56.   Given these figures, it is highly improbable that the City paid

Hauge $ 150, 000        merely for 4, 058 square feet of right - way and nothing else.
                                                               of -

           Additionally, although the stipulation of settlement does not specifically reference " just

compensation,"       it does reference the City' s petition for public use and necessity and the decree
                        3
of appropriation.            Both these documents            state   that the   parties   intended the $ 150, 000 settlement


to   represent "   just     compensation"          to Hauge   pursuant     to the     eminent   domain   proceedings.   CP at


322, 314. When read together, and in context of the settlement negotiations between the parties,


the only    reasonable        interpretation is that the        parties   intended the $ 150, 000 settlement amounted


to just compensation for the diminution of Hauge' s property value, including the lost trees and

severance       damages.           Tanner Elec.,          128 Wn.2d      at    674.    Thus, Hauge' s argument that the




3
     The   stipulation       of    settlement      also   specifically   references       chapter   8. 25 RCW ( " Additional
provisions applicable to eminent domain proceedings ").




                                                                     8
No. 44305 -8 -II



settlement did not include damages for the trees and the impact of the right -of way on his
                                                                                 -

remaining land fails.

          Hauge also asserts that he did not need to appeal the trial court' s ruling on the motion to

enjoin because the issue of whether he had been compensated for the three trees abutting the

right - way " was simply not before the court" when it enjoined him from interfering with the
      of -

City' s   construction activities.   Br.     of   Appellant   at   20.   But this was precisely the issue before the

trial   court.    The City moved to enjoin Hauge from interfering with the tree removal process

because the three trees at issue " were purchased by the Petitioners as part of the settlement and

judgment     entered    herein."   CP   at    37.   Moreover, the City submitted the plans used during the

public use and necessity hearing which clearly indicate that the three abutting trees would need

to be   removed.      The trial court' s order enjoining Hauge from interfering with the removal effort

references       these plans.   Hauge   never appealed        the trial   court' s order.   The doctrine of collateral


estoppel precludes a party from relitigating an issue of ultimate fact previously determined by a

valid and     final judgment.      State     v.   Williams, 132 Wn.2d 248, 253 -54, 937 P. 2d 1052 ( 1997).


Thus, Hauge' s assertion that he did not need to appeal the trial court' s ruling on the motion to

enjoin fails.


          Finally, Hauge stresses that the following provision in the stipulation of settlement

evinces the City' s intent to purchase the right - f way without also compensating Hauge for the
                                                 o -

diminution in property value to his remaining land:




                                                              9
No. 44305 -8 -II



           It is further agreed by the [ City] that neither this Stipulation nor the Judgment and
           Decree to be entered herein shall in any manner be used to prevent [ Hauge] from
           filing a separate action for displacement, negligence, personal injury, or any other
           road related action on        the     City]... in constructing the Carpenter Road
                                               part of   the [

           Improvement Project or relating to such roadway.

CP    at   319.       Contrary   to Hauge'     s assertions,     this "   reservation of rights"             clause does not allow


Hauge to        seek    just   compensation     for damage for         which       the   City   has already      paid.      Rather, the


clause recognizes that the settlement would not preclude Hauge from filing suit for additional

takings     or other causes of action not envisioned               by     the   settlement. "     Filing two separate lawsuits

based      on   the   same event —claim         spitting —is     precluded        in Washington,"           Landry v. Luscher, 95

Wn.     App.      779, 780,       976 P. 2d      1274,    review       denied, 139 Wn.2d                   1006 ( 1999),     and it is


unreasonable to read this provision as encouraging claim splitting.

           The only         reasonable   interpretation from the                extrinsic   evidence          is that the $ 150, 000


settlement between Hauge and the City provided him just compensation for the acquired land,

for the three trees abutting the right - way, and for the diminution in property value due to
                                       of -

increased       noise    from the   road expansion.          Accordingly, we affirm the trial court' s granting of

summary judgment on these claims.

C.         HAUGE' S OTHER CLAIMS


           Hauge next argues that summary judgment was improper because the trial court " focused

only on his takings claims and failed to consider the nature or sufficiency of his remaining

claims,     which      he   characterized as abuse and retaliation claims."                     Br.   of   Appellant   at   9. He also


alleges that he sufficiently pled and argued that the City failed " to construct a retaining wall on

the   right -
            of way
               -            according    to    the   manufacturer' s            specifications"        and    that the      City "   took


additional        property from him for the          project outside       the    scope of      the   original right -
                                                                                                                     of-way."         Br.




                                                                  10
No. 44305 -8 -II



of    Appellant   at   13, 15.      Because Hauge never actually brought causes of action for abuse and

retaliation, and the record does not raise a genuine issue of material fact with regard to Hauge' s


contention that the City acted negligently in building the retaining wall or appropriated

additional property during its construction, we hold that these claims were insufficiently pleaded

and/or properly dismissed on summary judgment.

           Washington follows notice pleading rules and simply requires a ` concise statement of

the   claim and    the   relief sought. "'         Champagne v. Thurston County, 163 Wn.2d 69, 84, 178 P.3d

936 ( 2008) (     quoting Pac. Nw. Shooting Park Assn v. City ofSequim, 158 Wn.2d 342, 352, 144

P. 3d 276 ( 2006));      see also        CR 8(   a).   A complaint that fails to give the opposing party fair notice

of asserted claims is insufficient. Dewey v. Tacoma Sch. Dist. No. 10, 95 Wn. App. 18, 25, 974

P. 2d 847 ( 1999). "            While inexpert pleadings may survive a summary judgment motion,

insufficient    pleadings cannot."
                                               Pac. Nw. Shooting ParkAss' n, 158 Wn.2d at 352.

          Here, Hauge          argues    that, although     his " complaint is     not a model of      clarity,"   it sufficiently

pleaded       claims   for   abuse       and retaliation    by City      employees.       Br.   of   Appellant     at   13.    Even


assuming "      abuse"    and " retaliation" claims are recognized causes of action, Hauge' s complaint


does    not   indicate that he is             bringing   such   claims    or   seeking   relief on    these   grounds.        In the


 FACTS" portion of his complaint, Hauge mentions that " employees of the City of Lacey or its

contractors frequently directed hostile and aggressive behavior at plaintiff Kenneth Hauge and

his   mother,    Helen."       CP   at   8.    But, under the " CAUSES OF ACTION" section, Hauge nowhere


mentions a claim         for   abuse or retaliation.        CP   at   9 -10.   In addition, the trial court allowed Hauge


to submit an amended complaint four days before it heard argument on the parties' summary

judgment       motions.      Despite having the opportunity to clarify the causes of action for which he



                                                                  11
No. 44305 -8 -II



would     be seeking        relief,   Hauge did       not    mention          a   claim    for    abuse         or   retaliation.   This is


insufficient to       give    fair    notice   of   his     asserted       claims.         Thus,        we      hold that,       even   under




Washington' s generous notice pleading standards, Hauge failed to sufficiently plead claims for

abuse and retaliation.




          Hauge also argues that he sufficiently pleaded a claim for either negligence or inverse

condemnation because the City failed to construct the retaining wall according to manufacturer

specifications and the wall encroaches on his property. To counter Hauge' s bare assertions in his

pleadings, the City presented a number of expert declarations, stating that the wall was built

according to         manufacturer       specifications,       is structurally             sound,       and does not encroach on

                                                                                                                   4
Hauge'    s   property.     Hauge failed to rebut the              City' s    evidence on         this       point.     A party opposing

summary judgment " may not rely merely upon allegations or self -
                                                                serving statements, but must

set   forth   specific   facts showing that       genuine     issues      of material      fact       exist."    Newton Ins. Agency &

Brokerage, Inc.       v.   Caledonian Ins.        Grp., Inc., 114 Wn. App. 151, 157, 52 P. 3d 30 ( 2002).

Therefore,      we   hold that,       even   assuming Hauge properly                  pleaded           a    claim     for   negligence    5 or

inverse condemnation related to the retaining wall, he failed to bring forth any evidence




4
     Hauge did       submit    an     expert' s    report.        However,         contrary to Hauge' s assertion- that he
    presented expert       testimony    on   the issue"      of   the    wall' s " significant risk of               future   collapse,"   the

report nowhere states that the alleged deficiencies in the construction of the retaining wall
potentially damaged ( or encroached on) Hauge' s property. Br. of Appellant at 15.

5 Hauge argues that he " sought leave to amend his complaint a second time to add a negligence
claim; however, it appears that the amendment never occurred because the trial court dismissed
                                                                                                        13    n. 10.      This    contention
the    complaint      on     summary judgment."                   Br.    of   Appellant          at

misrepresents the record. Although Hauge argued in his cross -motion for summary judgment on
September 28, 2012, that he " should be allowed to amend the complaint to allege damages due to
negligence"       in building the retaining wall, Hauge filed his amended complaint approximately

                                                                    12
No. 44305 -8 -II




sufficient to survive summary judgment on this issue.

          Finally, Hauge appears to argue that the City took additional property outside the right-

of-way       for    which    he    was not compensated.               Hauge fails to articulate what property this claim
              6
involves.          Therefore,      we    do    not address    this   argument    any further. See RAP 10. 3(             a)(   5) -( 6).


D.        ATTORNEY FEES


          Hauge         argues      that the "         City' s response brief is so nonresponsive as to constitute no

response          at all"   and,   accordingly, the          City " should pay [ Hauge' s] attorney fees and costs on

appeal"      as a    RAP 18. 9( a)            sanction.    Appellant'   s    Reply Br.   at   8.   However, the City' s response,

though brief, does           articulate arguments            supporting its      position     that ( a)   "[   t] he claim for the taking

of   trees    outside       of   the          of way
                                        right -  -          had been    resolved    by    the condemnation action," (                  b) the


parties   settlement accounted                   for   severance     damages;    and ( c)     Hauge'      s"   statement that the City

and the court were on notice that Mr. Hauge had claims different than that set forth in his

Amended Complaint is                    stated   for the first time in Mr. Hauge'         s   Appellate Brief."         Br. of Resp' t at

6, 7 -8. Therefore, we deny Hauge' s request for attorney fees.




one month          later. CP            91.
                             The trial court did not specifically address Hauge' s negligence claim
                                   at

because he twice failed to plead itnot because summary judgment was prematurely granted.

6 Hauge does not articulate what property this claim involves, but does cite to clerk' s papers that
were stricken by this court because they were not before the trial court when that court ruled on
summary judgment.


                                                                        13
No. 44305 -8 -II



        We affirm the trial court' s summary judgment dismissal of Hauge' s lawsuit and deny

attorney fees as a RAP 18. 9( a) sanction against the City.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




                                                  14
