                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  November 3, 2004 Session

             IN RE ESTATE OF LEVESTA MEASLES, DECEASED

             An Appeal from the Chancery (Probate) Court for Warren County
                     No. 1501-P Larry B. Stanley, Jr., Chancellor



                     No. M2004-00244-COA-R3-CV - Filed June 27, 2005


This is a claim against an estate for personal services rendered to the decedent. The decedent’s
stepson and his wife provided personal services to the decedent for several years prior to her death.
The decedent died intestate, leaving no issue. The decedent’s nephew was appointed as
administrator of the decedent’s estate. The stepson and his wife filed claims against the estate on
the theory of implied or quasi contract, seeking reimbursement for the expenses incurred in
providing the personal services for the decedent. The decedent’s estate filed an exception to those
claims. After a hearing, the trial court granted a portion of the stepson’s and his wife’s claims for
personal services, finding that an implied contract existed with the decedent as to those items. The
estate now appeals. We reverse, finding that the evidence preponderates against the trial court’s
finding of an implied contract between the decedent and the claimants that the claimants would be
paid for their services at the time the services were rendered.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Reversed

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, J., and DAVID
R. FARMER , J., joined.

Jennifer Austin Mitchell, Dunlap, Tennessee, for the appellant, Estate of Levesta Measles.

Dale Bohannon, Cookeville, Tennessee, for the appellees, Lee Roy Shofner and Josie Shofner.


                                            OPINION

        In 1936, the decedent, Levesta Measles (“Decedent”), married Powell Measles (“Mr.
Measles”). At the time they were married, Mr. Measles had a son, Claimant/Appellee Lee Roy
Shofner (“Stepson”), the stepson of the Decedent. Mr. Measles died in 1985. After Mr. Measles
died, the Decedent continued to live in McMinnville, Tennessee. Stepson was later given power of
attorney for Decedent, and his name was added to her bank accounts and a certificate of deposit.
        In 1989, the Decedent suffered a stroke. Thereafter, she had several mini-strokes, and
consequently her health gradually worsened. Beginning sometime in 1996, the Decedent began
receiving assistance from Stepson and his wife Claimant/Appellee Josie Shofner (“Wife”), whose
home was in Knoxville, Tennessee. The Decedent spent between three and four months per year
with Stepson and Wife, and they assisted her with medical appointments and provided her food,
clothing, and personal items.

        In February 2001, the Decedent was hospitalized after she suffered another very debilitating
stroke. After this stroke, she was never again able to talk. In March 2001, when Decedent was
released from the hospital, she was placed in a nursing home in Pigeon Forge, near Knoxville, where
she stayed for the remainder of her life. When the Decedent was placed in the nursing home, she
signed over a $22,428.04 certificate of deposit (“CD”) to Stepson. Stepson cashed the CD and placed
the proceeds into his personal bank account. On January 11, 2002, the Decedent died at the age of
eighty-four, intestate and without issue.

        On September 19, 2002, Willard Jones, the nephew of the Decedent, filed a petition to
probate the Decedent’s estate (“Estate”). The petition requested that Jones be confirmed as the
administrator of the Estate. Jones asserted that he and his two sisters were the living heirs of the
Decedent. The petition stated that the value of the Decedent’s remaining personal property was
estimated at less than $20,000, and that the value of her real property was estimated at $53,000. On
the same day, the trial court entered an “Order for Issuance of Letters of Administration,” granting
the petition and appointing Jones (hereinafter “Administrator”) as the Administrator of the Estate.1

        On January 21, 2003, Stepson and Wife each filed separate but identical claims against the
Estate in the amount of $32,050.67. Of this total amount, $6,380 was for funeral expenses, $1,920
was for cable television charges, and $23,750 was for personal services and other expenditures
incurred on behalf of the Decedent. On February 20, 2003, the Estate filed exceptions to both
claims. Later, Wife withdrew her claims for funeral expenses and cable television charges, because
Stepson had paid for those claims. Her claim for personal services remained intact.

        On July 22, 2003, the trial court held a hearing on the claims filed by Stepson and Wife.2
The trial court heard testimony from several witnesses, including Stepson and Wife.

       In his testimony, Stepson gave some background. He said that, when his father married the
Decedent, they lived in Indiana for a long period of time, and Stepson stayed in Tennessee with his
grandmother. By the time Mr. Measles and the Decedent moved back to Tennessee, Stepson had
three children. Stepson said that Mr. Measles and the Decedent visited Stepson and his family


         1
             The order was entered on September 19 and filed on September 20, 2002.

         2
         In addition, the trial court considered motions filed by the Estate requesting the return of personal property
from Stepson and a motion to sell the Decedent’s real property. The resolution of those motions is not at issue on this
appeal.

                                                         -2-
regularly and that they all had “a good relationship.” After Mr. Measles died, Stepson was given
power of attorney for the Decedent, and he was added to her bank accounts and put on her CD.

         After the Decedent suffered the debilitating stroke in 1989, Stepson testified, she never
completely recovered. Although her health was “pretty good” for about ten years thereafter, the
Decedent continued to have “mini-strokes,” and her condition gradually worsened. Stepson said
that, after the stroke, he took care of the Decedent. After Stepson married Wife in 1996, they both
took care of the Decedent. Stepson and Wife lived in Knoxville, while the Decedent continued to
live in McMinnville. Stepson said that the Decedent had to travel to Knoxville often for health
related issues, such as to get glasses, to have dental work done, or to undergo medical tests, and
when she did so, she stayed with Stepson and Wife. Between 1996 and the time of the Decedent’s
2001 stroke, Stepson stated, the Decedent spent an average of four to eight months per year with him
and Wife. In his testimony, Stepson recounted several different incidents that required the Decedent
to stay with him and Wife for prolonged periods of time. In 1997, the Decedent was hospitalized
in Knoxville for three weeks because of a negative reaction to a medication. When she was released,
she stayed with Stepson and Wife for about three months. In 1999, the Decedent had cataracts
removed from her eyes, and stayed with Stepson and Wife for several weeks. Also in 1999, the
Decedent stayed with them when she was diagnosed with a slow-growing cancer; treatment was not
recommended because of the Decedent’s frail health. The Decedent also stayed with them in 2000
after she fell off of her bed and cracked some ribs. During the time the Decedent stayed with them,
Stepson said, they took the Decedent to doctor appointments and made sure that she had her baths,
food, and proper medication. In the year preceding the Decedent’s 2001 stroke, Stepson and Wife
had to help the Decedent get out of bed in the morning because she could not get up by herself.
Stepson said that Wife helped the Decedent with baths and other personal needs. On cross-
examination, Stepson agreed that he loved the Decedent like his own mother, that they had a trusting,
family-type relationship, and that he wanted to take care of her. Stepson testified that, after the
Decedent was placed in the nursing home after her 2001 stroke, he and Wife visited the Decedent
almost every day and fed her one meal each day to ensure that she got proper care.

        In his testimony, Stepson calculated that, over a five-year period, the Decedent stayed in his
home approximately 950 days and, if his and Wife’s services were valued at $25 per day, their
services to the Decedent were worth $23,750. Stepson acknowledged that he cashed out the
Decedent’s $22,000 CD when she moved into the nursing home and put the funds in his own bank
account. He explained, however, that the Decedent had no medical insurance, and that the proceeds
from the CD were used to pay her medical bills. Stepson said that Social Security and
Medicaid/Medicare paid for about three months of the Decedent’s nursing home expenses, and that
he filed the claims for the Medicare benefits.3 He said that Medicare did not pay the full nursing
home expense, and asserted that he used the proceeds of the CD to pay the difference between the
cost of the nursing home and the amount that Medicare paid.



        3
          The Bureau of TennCare, Department of Finance and Administration, filed a claim against the estate of the
decedent in the amount of $19,969.57 for her care in the nursing home from March 2, 2001 through January 9, 2002.

                                                       -3-
        Stepson testified that he paid the Decedent’s funeral expenses, totaling $6,190.65, from his
own funds. He also said that he paid her cable television bill, approximately $30 per month, from
1989 through February 2002. Stepson claimed that the only way the Decedent would allow him to
pay for her cable television was if he agreed to be reimbursed by her estate when she died. On cross-
examination, Stepson acknowledged that the Decedent twice had her cable television canceled, but
he claimed that she did so because she did not want him to have to pay for it.

        The Decedent’s long-time neighbor and friend, Sandra Jones (“Jones”), testified on behalf
of Stepson and Wife. Jones testified that she had known the Decedent since she moved into her
house in McMinnville in the early 1970s and said that she talked to her every day and knew her
“better than anybody in McMinnville.” Jones said that, since 1996, the Decedent stayed with
Stepson and Wife at their home in Knoxville “quite often,” sometimes for one, two, or three months
at a time. Jones explained that the Decedent went to Knoxville on Christmas, birthdays, and when
she needed to see one of her physicians. She said that the Decedent loved Stepson “as if he were her
own blood,” and that she “was crazy about [Wife]. [Wife] was very good to her.” When asked what
services Stepson and Wife provided for the Decedent, Jones said that Stepson paid her television
cable bills, and that the Decedent had told her that she wanted him to be reimbursed for those bills.
She said that the Decedent “wanted [Stepson] to have all that she had to begin with. It was my
understanding from day one, [Stepson] was to have everything that she had. He was going to take
care of her. He promised Mr. Measles that he would take care of her.” Jones said she came to have
that understanding because the Decedent had told her this “many, many times.”

        On cross-examination, counsel for the Estate showed Jones a copy of a Last Will and
Testament and Codicil purportedly signed by the Decedent. The purported will had not been entered
into probate. In that purported will, the Decedent left her property to Stepson’s three children, but
not to Stepson or Wife.4 Jones said that she was familiar with the Decedent’s handwriting, and that
the signatures on the will and codicil were not those of the Decedent.

        Another long-time friend of the Decedent, Grace Ward (“Ward”), also testified at trial. Ward
said that she had known the Decedent for thirty years, and had attended the same church with her for
about fifteen years. Ward said that she and the Decedent were “very close,” and that they visited
each other’s homes. She testified that Stepson and Wife “were there for [the Decedent] when she
was sick and needed help,” and that they took the Decedent to their home for a month or two at a
time. She said that Stepson and Wife bought the Decedent new clothes and paid her cable television
bill. Ward said that the Decedent “always wanted to pay [Stepson] back for everything he did.” She
claimed that the Decedent had changed her Last Will and Testament and “made it to [Stepson] and
his family,” and that the Decedent said to her, “[Stepson] will be tak[ing] care of me.” According
to Ward, the Decedent told her, “ ‘[Stepson] promised my husband, Mr. Powell Measles, that he
would care of me,[’] that was just a little while before Mr. Measles passed away, and said ‘I want


         4
           A Complaint and Petition to Probate the Last W ill and Testament of the decedent was filed in the trial court
in an attempt to probate a document purporting to be the decedent’s Last W ill and Testament and Codicil. The petition
was contested and, for reasons that are unclear from the record, was voluntarily dismissed.

                                                          -4-
him to have what I’ve got.’ ” Ward conceded that she did not see the Decedent’s revised will, but
asserted that the Decedent told her, “I have changed the Will and that way I know [Stepson] will get
reimbursed.” Although the Decedent ostensibly told Ward that the will would be in a tin box under
her bed, no will fitting that description was found. On cross-examination, counsel for the Estate
showed Ward a copy of the purported Last Will and Testament and Codicil that left all of the
Decedent’s property to Stepson’s three children, but not to Stepson and Wife. Ward said that she
was not aware of that will.

         Wife testified as well. She corroborated Stepson’s testimony regarding the frequency and
duration of the Decedent’s stays in their home. During the five years prior to the Decedent’s move
to a nursing home, Wife helped the Decedent with her physical therapy, and her speech therapy, and
generally “whatever she needed.” Wife said that she helped the Decedent with bathing, dressing,
and taking her medicine. When the Decedent stayed with Wife and Stepson, Wife prepared three
meals a day for her. Once the Decedent moved to the nursing home, Wife said, she and Stepson
went to the nursing home every day to visit and feed her. During this time, they also paid for the
Decedent’s clothes and personal items.

         Stepson’s daughter, Carol Shofner Preston (“Preston”), testified on behalf of the Estate.
Preston said she had not seen her father since October of 2000. In contrast to the testimony of
Stepson and Wife, Preston claimed that she oversaw the Decedent’s medical care, ordered her
prescription medication, and made sure that she went to the doctor. Preston asserted that she was
the one who usually took the Decedent to her doctor appointments. She acknowledged that, about
eighteen months before the Decedent’s debilitating 2001 stroke, Stepson, her father, took over the
medical care of the Decedent. Preston was unsure about what Stepson did for the Decedent. She
conceded that the Decedent stayed with Stepson and Wife when she went to Knoxville, but claimed
that the Decedent also spent a part of each visit with Preston and her husband. Preston said that the
Decedent visited in Knoxville three or four times a year, and would stay for four to six weeks each
visit. She recalled that the Decedent would typically visit Knoxville for Thanksgiving, Christmas,
her birthday, and one week during the summer. Over time, the visits became longer, and after one
of her mini-strokes, the Decedent extended her stay to at least four months. Counsel for the Estate
showed Preston the Decedent’s purported will and codicil devising her personal property to Preston
and her two brothers, one of whom was deceased. Preston asserted that she was aware that the
Decedent had left a will, and recognized the will presented as that of the Decedent. Preston testified
that she visited the Decedent in the nursing home and at least two or three times a month, and on
those occasions fed her supper. She claimed that, when she visited, she never saw Stepson or Wife
there, and disputed the testimony of Stepson and Wife that they fed the Decedent every night.
Preston said that it was “[a]bsolutely untrue” that Stepson and Wife met all of the Decedent’s
medical needs, and asserted that she bought the Decedent most of her clothes. As for the cable
television, Preston said that her whole family gave the Decedent monthly cable television as a gift
after they discovered that the Decedent had cancer. She said that the Decedent’s cable television was
a running joke with the family, because the Decedent would have never paid for it herself, and she
even had it disconnected on more than one occasion. Preston said that the family would outsmart
the Decedent by having the cable television bill sent to Knoxville, then Stepson would write one


                                                 -5-
check to cover several payments in advance. When the Decedent had her cable television turned off,
Stepson would call and have it turned back on.

        The Administrator’s wife, Wilma Jones (“Jones”), also testified on behalf of The Estate.
Jones said that sometimes she visited the Decedent several times a week, although there were
occasions on which she did not visit for two or three weeks. Jones stated that the Decedent usually
visited Stepson and Wife on holidays, and that she did not remember a time when the Decedent
stayed with Stepson and Wife two to three months at a time.

        At the conclusion of the hearing, the trial court granted in part and denied in part the claims
filed by Stepson and Wife. The trial court found that the familial relationship between the Decedent
and the claimants, Stepson and Wife, created a presumption that the services provided were
gratuitous. It concluded, however, that Stepson and Wife overcame that presumption and had proved
that a quasi contract or implied contract existed between themselves and the Decedent. On this
basis, the trial court granted their claim for personal services rendered. It found that the value of
their services to the Decedent was less than they claimed, and determined that reasonable
compensation for those services was $10,500, based on a finding that Stepson and Wife had cared
for the Decedent for three and one-half months per year over a period of four years, or 420 days, at
a value of $25 per day. The trial court also granted Stepson’s claim for out-of-pocket funeral
expenses, finding that claim to be valid. The trial court denied the claim for cable television
expenses because “there was no real thought of repayment” for that expense. On September 30,
2003, the trial court entered an order consistent with its oral ruling. From that order, the Estate now
appeals.

         On appeal, the Estate challenges only that portion of the trial court’s decision granting the
claim of Stepson and Wife for the value of personal services rendered to the Decedent. The Estate
argues that the preponderance of the evidence does not support the trial court’s conclusion that an
implied or quasi contract existed between the Decedent and claimants Stepson and Wife. The Estate
asserts that the evidence shows that the Decedent requested a favor from Stepson, and that there was
no evidence that she intended to pay them for their services. Furthermore, the Estate argues, the
closeness of the relationship between the parties triggered the presumption of gratuitous services,
and the presumption was not overcome by the evidence presented at trial. The Estate points out that
neither Stepson nor Wife testified that they expected to be paid for their services to the Decedent.
On the contrary, they claim, Stepson testified that he performed the services for the decedent out of
love for her. Allowing hearsay testimony from Jones and Ward, the Estate argues, was clearly
erroneous because there was no applicable exception to the hearsay rule, and because the testimony
violated the “Dead Man’s” statute. Therefore, the Estate maintains, the decision of the trial court
should be reversed.

         The trial court’s decision must be reviewed de novo, presuming the trial court’s findings of
fact to be correct unless the preponderance of the evidence is otherwise. In re Estate of Vires, No.
W2000-02953-COA-R3-CV, 2002 WL 1760502, at *2 (Tenn. Ct. App. Apr. 10, 2002). Conclusions
of law are reviewed de novo, with no such presumption of correctness. See State v. Levandowski,


                                                 -6-
955 S.W.2d 603, 604 (Tenn. 1997); Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn.
1996).

         “In asserting a claim against an estate for services rendered the decedent, the cause of action
necessarily is based upon either contract or quasi contract.” Cobble v. McCamey, 790 S.W.2d 279,
281 (Tenn. Ct. App. 1989) (quoting trial court opinion); Cotton v. Estate of Roberts, 337 S.W.2d
776, 780 (Tenn. Ct. App. 1960). In order to prove the existence of such a contract, the claimant must
show that there was an offer and an acceptance of that offer, which may be expressed or implied
from the parties’ conduct. Cobble, 790 S.W.2d at 281 (quoting trial court opinion). “Therefore, if
the plaintiffs establish that the decedent expressly or impliedly requested the services, and if the
plaintiffs prove that they rendered those services with the expectation that they were to be paid in
some manner for those services, then a contract is made out entitling the plaintiffs to recover against
the estate for the reasonable value of those services.” Id. at 282; see also Hughes v. Estate of
Haynes (In re Estate of Haynes), No. M2002-01896-COA-R3-CV, 2003 WL 22056011, at *3
(Tenn. Ct. App. Sept. 4, 2003). The issue is whether the claimants expected payment for the services
at the time the services were rendered. Hughes, 2003 WL 22056011, at *4. “If the request is for
a favor, and the services are rendered on that basis, there is no contract. Likewise, if the services are
rendered with no intention at the time of rendition to charge therefor, and are accepted on that basis,
there is no contract.” Cotton, 337 S.W.2d 779-80. When one family member renders services to
another family member, a presumption arises that those services were “rendered gratuitously, from
motives of affection and duty.” Id. at 780. The presumption “grows weaker as the relationship
recedes.” In order to overcome the presumption, the claimant must establish “an expressed contract
or such exceptional facts and circumstances as will establish an intention on the one part to charge
and on the other part to pay, notwithstanding the relation of kinship.” Id.

        In this case, the trial court concluded that the petitioners had a relationship with the Decedent
that raised the presumption that the services provided by them were gratuitous. The trial court
concluded, however, that there was sufficient evidence of a quasi contract to overcome that
presumption. The trial court reasoned:

        [T]he claimant does have some relationship and that created a presumption that the
        services were rendered gratuitously to the decedent, for reasons that we talked about,
        affection, and the closer [the relationship] the stronger that presumption is, whether
        it’s by marriage or by blood. The decedent, Mrs. Measles, could have saved herself
        if she intended to give [to] these people. I think she intended for them to have
        something whether it was just being able to take care of her money and take a little
        bit out of that, I believe that she wanted them to have something. I wish she’d
        changed her Will and made it much clearer. . . . I find that there was a quasi-contract
        or an implied contract that the claimants’ have proved, have met the burden of proof
        in showing that there was the intention to provide for them and the expectation on
        their behalf that some compensation would be given. . . . I think the presumption has
        been overcome that they rendered services [gratuitously] for this lady.



                                                  -7-
Thus, because the Decedent expected to compensate Stepson and Wife, and Stepson and Wife
expected some compensation, the trial court determined that an implied or quasi contract existed.

        At trial, the testimony of Stepson, Wife, Ward, and Jones supported the trial court’s finding
that Stepson and Wife had, indeed, performed personal services for the Decedent when she visited
them in Knoxville for about fourteen weeks each year. Even Preston, who testified for the Estate,
acknowledged that the Decedent stayed in the home of Stepson and Wife when she visited Knoxville
three or four times a year, for four to six weeks each visit, and that Stepson took over the Decedent’s
medical care during the last eighteen months before she moved into the nursing home.

        Evidence showing that the Decedent and the claimants had an implied contract or quasi
contract for the performance of services, however, is not as substantial. As noted above, the
claimants must prove (1) that the Decedent expressly or impliedly requested the services, and (2) that
Stepson and Wife performed those services with the expectation that they were to be paid in some
manner at the time the services were rendered, during the Decedent’s life. Hughes, 2003 WL
22056011, at *3, *4. “If the services were rendered in the hope or expectation of some provision in
[the decedent’s] will, and without any other contract for payment, there can be no recovery because
of the failure of such testamentary provision.” Id. at *5.

        In Hughes, supra, the claimants were husband and wife and were unrelated by blood or
marriage to the decedent. They filed an action against the decedent’s estate to recover compensation
for personal services rendered to the decedent for several years prior to her death. Attached to their
claim was a statement written by the decedent stating that, “[a]fter I am gone I want [the claimants]
to be paid $150,000 for all the things you have done for me over the years and haven’t been paid
for.” Id. at *1. It was undisputed that this statement satisfied neither the requirements for a will
codicil or for an express contract. However, based on the decedent’s intent as expressed in the
statement, the trial court awarded the claimants $75,000 for their services.5 Id. at *2. The estate
appealed. On appeal, this Court determined that there was “ample” evidence to support a finding
that the claimed services had been rendered and that those services had been requested. However,
the appellate court concluded that there was insufficient evidence to show that the claimants
expected payment from the decedent at the time the services were rendered. Id. at *4-*5. The record
showed that the decedent was very independent, paid her bills in a timely manner, and that the
claimants had received payment for some of their services at the time the services were rendered.
Under these circumstances, the appellate court concluded, the decedent’s handwritten statement
requesting that the claimants be paid “after” her death for services that they “haven’t been paid for,”
showed testamentary intent, not an intent to contract. However, the decedent did not leave a proper
testamentary provision in her Will or in a codicil. Thus, the appellate court concluded the claimants
were not entitled to recover on a theory of implied contract.




        5
         The amount awarded was based on the testimony of the claimants that the value of their services was between
$75,000 and $85,000. Hughes, 2003 W L 22056011, at *1-*2.

                                                        -8-
         As in Hughes, the record in this case supports a finding that the Decedent requested, through
Mr. Measles and otherwise, that Stepson “take care of” the Decedent. However, the evidence does
not support a finding that the claimants expected to be paid for their services to the Decedent at the
time they rendered such services. To the contrary, neither Stepson nor Wife testified that they
expected to be paid for their services, and Stepson testified that he loved the Decedent like his own
mother and wanted to take care of her. The claimants mainly rely on the testimony of Ward and
Jones to establish the Decedent’s intent to “reimburse” the claimants for the services they provided
to her over the years. Jones testified that the Decedent told her that Stepson had promised Mr.
Measles to “take care of” the Decedent, and that Stepson was to “have everything that she had.”
Ward testified that the Decedent told her that she was going to change her Last Will and Testament
so that she would know that Stepson would be reimbursed, although no such will was found. Rather
than establishing the existence of a contract for payment at the time the services were rendered, this
testimony establishes the Decedent’s intention to include the claimants in her Last Will and
Testament so that they would recover payment from her estate, to the extent that the estate would
be able to pay, for the expenses related to her care. Indeed, the trial court appeared to implicitly
recognize the Decedent’s testamentary intent when it commented, “I wish she’d changed her Will
and made it much clearer.” Thus, based on the record before us, we must conclude that the evidence
preponderates against the trial court’s finding that the parties entered into an implied or quasi
contract, and preponderates in favor of a finding that the Decedent intended, but failed, to include
the claimants in her Will. “[W]ithout any other contract for payment, there can be no recovery
because of the failure of such testamentary provision.” Id. at *5. Therefore, the award of $10,500
to the claimants for services rendered to the Decedent must be reversed. All other issues raised in
this appeal are pretermitted.6

      The decision of the trial court is reversed. Costs on appeal are to be taxed to Appellees Lee
Roy Shofner and Josie Shofner, for which execution may issue, if necessary.




                                                             ___________________________________
                                                             HOLLY M. KIRBY, JUDGE




        6
         W e need not address the issue of whether the relationship between the claimants and the Decedent raises a
presumption of gratuitous services.

                                                       -9-
