          IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-CA-01585-COA

TRIANGLE CONSTRUCTION CO., INC.                                          APPELLANT

v.

FOUCHE AND ASSOCIATES, INC.                                                APPELLEE

DATE OF JUDGMENT:                         10/07/2015
TRIAL JUDGE:                              HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED:                RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   MACY DERALD HANSON
ATTORNEY FOR APPELLEE:                    CECIL MAISON HEIDELBERG
NATURE OF THE CASE:                       CIVIL - CONTRACT
TRIAL COURT DISPOSITION:                  SUMMARY JUDGMENT GRANTED IN
                                          FAVOR OF APPELLEE
DISPOSITION:                              AFFIRMED – 05/09/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      IRVING, P.J., FOR THE COURT:

¶1.   Triangle Construction Company (Triangle) filed suit in the Circuit Court of Rankin

County against East Madison Water Association (EMWA) and Fouche1 and Associates

(Fouche). In the suit, Triangle alleged that it had entered into a contract with EMWA that

had been breached by both EMWA and Fouche, the designated engineer in the contract. It

further alleged, based upon several theories, that it was entitled to recover damages from

Fouche. Both Fouche and EMWA filed separate motions for summary judgment. The record


      1
        Documents in the record vary with respect to the spelling of “Fouche”—in some
instances, it is spelled “Fouché,” while in other instances, it is spelled “Fouche.” For
consistency, we use “Fouche” throughout this opinion.
does not inform us as to the status of EMWA’s motion. However, the circuit court granted

Fouche’s motion and entered judgment accordingly pursuant to Rule 54(b) of the Mississippi

Rules of Civil Procedure. Triangle now appeals, arguing that there existed genuine issues

of material fact regarding:

       (1) whether Fouche, as the designing engineer of the water-installation project
       at issue in this lawsuit, breached the tort-based duties that it owed to Triangle,
       the contractor, to design and manage the project in a reasonable and prudent
       manner; (2) whether Fouche had entered into the terms of the Specifications
       for Water Distribution System Addition 2009 contract either as a signatory or
       through its conduct, as an implied[-]in-fact contract; (3) whether Fouche was
       the responsible party for obtaining easements for this project, on behalf of
       [EMWA]; and (4) whether an accord-and-satisfaction agreement had been
       reached between Triangle and Fouche related to the claims pleaded by
       Triangle against Fouche.

Finding no genuine issue of material fact, we affirm.

                                           FACTS

¶2.    Triangle won a bid offered by EMWA for a construction project to build a water

system in Madison and Leake Counties. On February 9, 2010, Triangle and EMWA entered

into the “Specifications for Water Distribution System Addition 2009” agreement, which

incorporates many contractual documents as part of the “Contract” between Triangle and

EMWA that is now at the center of this dispute.2 Triangle argues on appeal that Fouche, the



       2
        For clarity, “Contract,” as the word is used throughout this opinion, will refer to all
contract documents encompassed within the “Specifications for Water Distribution System
Addition 2009” agreement between EMWA and Triangle for the construction project of the
water system, including “General Conditions (pages GC-1 to GC-57, inclusive),” which we
reference several times throughout this opinion.

                                               2
project’s engineer, was also a party to the Contract; however, Fouche disagrees.

¶3.    Triangle asserts that while it performed its obligations satisfactorily under the

Contract’s terms, EMWA and Fouche did not. Specifically, Triangle argues that EMWA and

Fouche did not obtain easements in a timely manner, as they had agreed to do in the Contract.

Triangle further argues that EMWA and Fouche prematurely and negligently issued a notice

instructing Triangle to proceed with its work (“Notice to Proceed”) far before the easements

necessary to continue that work had been acquired. Triangle maintains that these failures

resulted in delays, as “Triangle could not perform its contractually obligated work” in

“significant areas of the [p]roject.” Furthermore, Triangle asserts that, even after the

appropriate easements had finally been attained, neither EMWA nor Fouche gave Triangle

notice that it could continue its work, resulting in more unnecessary delays.

¶4.    Triangle also argues that Fouche elected to expand the size and scope of the project

“long after the [p]roject had been designed, sealed by [Fouche], and long after the Notice to

Proceed . . . had been issued to Triangle.” Triangle asserts that, as a result, EMWA and

Fouche “made repeated oral promises to Triangle that [they] would execute a ‘Summary

Change Order’ that would fairly compensate Triangle for the greatly-expanded scope of work

that it was commanded to perform”; however, Triangle maintains that it never received such

an order.

¶5.    Triangle contends that, upon ultimate completion of the project, EMWA sent Triangle

a check marked “Final Payment,” but the check did not compensate Triangle for its increased


                                             3
construction costs as a result of the delays or for the extracontractual project expansion.

Triangle concedes that it cashed the check, but argues that it repeatedly asserted to

EMWA—including in a letter sent to Fouche—that it did not consider EMWA’s “final

payment” to be final and that it would continue seeking the remainder of what it was owed.

¶6.    Triangle’s lawsuit against both EMWA and Fouche, as codefendants, alleged breach

of contract, unjust enrichment or quantum meruit, breach of the covenant of good faith and

fair dealing, and negligence. As stated, the circuit court granted Fouche’s motion for

summary judgment, leading to this appeal.

¶7.     Additional facts, as necessary, will be discussed throughout the opinion.

                                        DISCUSSION

¶8.    Rule 56(c) of the Mississippi Rules of Civil Procedure provides that a motion for

summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories

and admissions on file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” M.R.C.P. 56(c). “We review the grant or denial of a motion for summary judgment

de novo, viewing the evidence ‘in the light most favorable to the party against whom the

motion has been made.’” Karpinsky v. Am. Nat’l Ins., 109 So. 3d 84, 88 (¶9) (Miss. 2013)

(quoting Pratt v. Gulfport-Biloxi Reg’l Airport Auth., 97 So. 3d 68, 71 (¶5) (Miss. 2012)).

“However, to survive summary judgment, the party opposing the motion may not rest upon

the mere allegations or denials of his pleadings, but his response . . . must set forth specific


                                               4
facts showing there is a genuine issue for trial.” Huynh v. Phillips, 95 So. 3d 1259, 1262 (¶6)

(Miss. 2012) (citation and internal quotation marks omitted). “Summary judgment is

appropriate where a non-moving party who will bear the burden of proof at trial does not

establish the existence of an essential element to his case.” Gorman-Rupp Co. v. Hall, 908

So. 2d 749, 757 (¶ 25) (Miss. 2005) (citation omitted).

¶9.    For clarity, we will first address whether Triangle’s negotiation of EMWA’s check

marked “final payment” operated as an accord and satisfaction of its claims against EMWA

and Fouche; next, we will address Triangle’s contract claims, including both Fouche’s status

as a party to the Contract and whether Fouche was contractually obligated to acquire the

easements; finally, we will address Triangle’s claims with respect to whether Fouche

breached any duties in tort that it may have owed to Triangle.

       1.     Accord and Satisfaction

¶10.   Triangle maintains that there are genuine issues of material fact regarding whether it

reached an accord-and-satisfaction agreement with EMWA and Fouche, such that summary

judgment should not have been granted.

¶11.   Mississippi law requires satisfaction of four elements for an accord and satisfaction

to exist:

       (1) something of value must be offered “in full satisfaction of a demand”; (2)
       the offer must be “accompanied by acts and declarations [that] amount to a
       condition that if the thing is accepted, it is accepted in satisfaction”; (3) “the
       party offered the thing of value” must “understand that if he takes it, he takes
       subject to such conditions”; and (4) the party offered the item must “actually
       . . . accept the item.

                                               5
Stewart v. Bridge Props., LLC, 62 So. 3d 979, 986-87 (¶18) (Miss. Ct. App. 2010) (quoting

Waggoner v. Williamson, 8 So. 3d 147, 156 (¶18) (Miss. 2009)).

¶12.   In Dix v. Trigger Contractors, Inc., 337 So. 2d 694, 696-97 (Miss. 1976), the

Mississippi Supreme Court held that an accord and satisfaction existed where the debtor gave

a creditor a check labeled “Final Payment” for less than the full amount owed to the creditor,

and the creditor cashed the check but struck through the word “final” and inserted the word

“part” in its place. The court held that the creditor accepted the payment notwithstanding his

strikethrough of the word “final,” and stated, “[t]hat a creditor protests against receiving less

than the full amount of his claim, but, nevertheless, accepts it, is of no consequence[.]” Id.

at 697. A creditor is “duty-bound to either accept the . . . check . . . as conditioned or refuse

to accept it,” and “[t]he cashing of the . . . check, conditioned by the debtor as ‘Final

Payment,’ constituted an accord and satisfaction.” Id.

¶13.   Here, Triangle maintains that it did not accept EMWA’s “Final Payment,” because it

repeatedly told EMWA that its acceptance of the check did not waive its claim for further

payment. The record includes both the check from EMWA for $129,090.07 marked “Final

Payment,” and a letter from Triangle’s attorney to Fouche, in which Triangle asserts that

$129,090.07 is insufficient payment “for all the work that Triangle performed on this job,”

and that “Triangle does not waive, in any way, its contractual claims to additional funds

under the terms of the bid contract.” However, Mississippi law is clear that, despite whatever

contentions a party may make to the contrary, cashing a check marked “final payment”


                                               6
constitutes an accord-and-satisfaction agreement, which precludes that party from bringing

future claims for additional payment.

¶14.   Without speaking to Triangle’s claim against EMWA, we find that Triangle’s claim

against Fouche is likely barred as an accord-and-satisfaction agreement. Although the check

marked “Final Payment” was specifically provided by EMWA and did not include Fouche’s

name anywhere on the check, Triangle argues repeatedly on appeal that Fouche acted as

EMWA’s representative or agent, and that Fouche directly controlled the management of the

construction project on behalf of EMWA. Further, the very letter written by Triangle

asserting that it would continue to seek payment, despite cashing the “final payment” check,

was written to Fouche, not EMWA. Triangle has centered much of its argument upon the

contention that Fouche acted as EMWA’s agent. However, with respect to its argument

regarding accord and satisfaction, it argues that EMWA and Fouche are separate entities. We

refuse to allow Triangle to have it both ways. It cannot now argue that Fouche and EMWA

are separate entities solely for the sake of its accord-and-satisfaction argument. Thus, we

hold that Triangle’s claims against Fouche are barred pursuant to the doctrine of accord and

satisfaction. This fact notwithstanding, we address the remainder of Triangle’s claims

against Fouche.

       2.     Issues in Contract

¶15.   Triangle maintains that genuine issues of material fact exist as to whether Fouche

owed a contractual duty to Triangle—either expressly or through a contract implied in


                                             7
fact—to obtain the easements on behalf of EMWA.

              a.      Whether Fouche was an express party to the Contract

¶16.   Triangle maintains that Fouche was a party to the Contract, either expressly or implied

in fact from Fouche’s conduct throughout the duration of the construction project. Fouche

disagrees. “A de novo standard of review is applied to questions of contract construction.”

Epperson v. SOUTHBank, 93 So. 3d 10, 16 (¶16) (Miss. 2012) (citation omitted). When

presented with a contractual dispute in the context of summary judgment, the reviewing court

need not go through the traditional analysis of contract construction. Id. at 17 (¶20). Rather,

the court

       should determine only whether the contract is ambiguous. Questions of
       contract construction and ambiguity are questions of law that are committed
       to the court rather than questions of fact committed to the fact finder. If the
       reviewing Court finds the terms of the contract to be ambiguous or subject to
       more than one interpretation, the case must be submitted to the trier of fact,
       and summary judgment is not appropriate.

Id. (internal citation and quotation marks omitted). Although Triangle does not assert in its

brief that the Contract was ambiguous, the parties dispute whether Fouche was a party to the

Contract. Thus, we will analyze the Contract to determine whether it is ambiguous with

respect to Fouche’s role therein.

¶17.   As stated, Triangle asserts that Fouche was a party to the Contract, despite the fact that

Fouche did not actually sign the agreement. Triangle’s argument is premised on the fact that

Fouche’s company’s seal was affixed to the Contract’s cover and Fouche was designated as

the project’s engineer in the Contract’s terms. Triangle points to Section 3.01 of the

                                               8
Contract, which provides that Fouche “is to act as [EMWA’s] representative, assume all

duties and responsibilities, and have the rights and authority assigned to [Fouche] in the

Contract Documents in connection with the completion of the Work in accordance with the

Contract Documents.” Triangle maintains that, as EMWA’s representative, Fouche was

liable for failing to obtain the easements in a timely manner, pursuant to Section 4.01 of the

Contract3 requiring EMWA—as the project-owner—to “obtain in a timely manner and pay”

for easements necessary for completing the project. Finally, Triangle references Section

12.03 of the Contract,4 which provides:

       If [EMWA], [Fouche], or other contractors or utility owners performing other
       work for [EMWA] as contemplated by Article 7, or anyone for whom
       [EMWA] is responsible, delays, disrupts, or interferes with the performance
       or progress of the Work, then Contractor shall be entitled to an equitable
       adjustment in the Contract Price or the Contract Times, or both.

¶18.   Fouche disagrees and argues that it is not a party to the Contract. First, Fouche

references Section 9.09(A) of the Contract,5 which provides:

       Neither [Fouche’s] authority or responsibility under this Article 9 or under any
       other provision of the Contract Documents nor any decision made by [Fouche]
       in good faith either to exercise or not exercise such authority or responsibility
       or the undertaking, exercise, or performance of any authority or responsibility
       by [Fouche] shall create, impose, or give rise to any duty in contract, tort, or

       3
        Section 4.01 is located on page GC-12, which is expressly deemed part of the
“Contract Documents.” Thus, we include it in discussion of the “Contract,” as a whole.
       4
       Section 12.03 is located on page GC-41, which is expressly deemed part of the
“Contract Documents.” Thus, we include it in discussion of the “Contract,” as a whole.
       5
       Section 9.09(A) is located on page GC-33, which is expressly deemed part of the
“Contract Documents.” Thus, we include it in discussion of the “Contract,” as a whole.

                                              9
       otherwise owed by [Fouche] to [Triangle] . . . .

Fouche further argues that it is not an agent of EMWA, and its role as EMWA’s

representative is limited to only those duties and responsibilities “assigned to [Fouche] in the

Contract Documents in connection with the completion of the Work in accordance with the

Contract Documents.” Fouche maintains that the Contract expressly limits Fouche’s

involvement and that, while it may be EMWA’s representative in title, it holds no duty in

contract or tort to Triangle.

¶19.   We agree with Fouche that it is not an express party to the Contract. We note that the

specific portion of the Contract in dispute—the “Specifications for Water Distribution

System Addition 2009” agreement—is entitled “AGREEMENT BETWEEN OWNER AND

CONTRACTOR FOR CONSTRUCTION CONTRACT (STIPULATED PRICE) FUNDING

AGENCY EDITION.” The title makes no mention of Fouche, and expressly provides that

this Contract is between the Owner (EMWA) and the Contractor (Triangle). Fouche’s role

in the project is not even mentioned until Section 3.01. While Triangle relies on this

language to argue that Fouche is EMWA’s agent and is therefore responsible for any

shortcomings committed by EMWA, Triangle overlooks the critical language limiting

Fouche’s role only to that specified by the Contract. Section 4.01 provides that EMWA is

responsible for obtaining the easements; Section 9.09(A) of the Contract provides that no

provision of the Contract or behavior by Fouche will “create, impose, or give rise to any duty

in contract, tort, or otherwise owed by [Fouche] to [Triangle].” These provisions explicitly


                                              10
limit Fouche’s duties and do not include the responsibility of obtaining easements. Triangle

acquiesced to this language when it signed the contract. Thus, we find no merit to this

argument.

              b.     Whether Fouche and Triangle had a contract, implied in
                     fact, for Fouche to procure the easements

¶20.   Triangle alternatively contends that if Fouche is not an express party to the Contract,

Fouche had a contractual duty to obtain the easements, implied in fact from the parties’

behavior throughout the duration of the construction project. “A contract that arises from the

conduct of the parties, also known as a contract implied in fact, has the same legal effect as

an express contract.” Franklin v. Franklin ex rel. Phillips, 858 So. 2d 110, 120 (¶34) (Miss.

2003) (citations omitted).    A contract implied in fact—also referred to as a quasi-

contract—“is an obligation created by law, in the absence of an agreement, when and

because the acts of the parties or others have placed in the possession of one person money

under circumstances that in equity and good conscience he ought not to retain and which in

justice and fairness belong to another.” Id. at 120-21 (¶35). “[A]ny conduct of one party

from which the other party may draw the inference of a promise is effective as such and the

conduct of the parties is viewed as a reasonable man would to determine the existence or not

of the contract implied in fact.” Id. at 121 (¶35) (citation omitted). “To collect under an

unjust enrichment or quasi-contract theory, the claimant must show ‘there is no legal contract

but . . . the person sought to be charged is in possession of money or property which in good

conscience and justice he should not retain, but should deliver to another.’” Id. (citation

                                             11
omitted).

¶21.   Triangle maintains that its only communication regarding the project was with

Fouche, and that Fouche controlled when and where Triangle worked. Triangle also

contends that, “despite provisions in the [C]ontract to the contrary, Fouche . . . controlled the

day-to-day ground operations, including giving Triangle instructions on where to lay pipe as

well as to where and what private easements had been obtained.” In response, Fouche again

references Section 4.01 of the Contract, which unambiguously provides that EMWA—not

Fouche—had the duty to procure the easements for the project, and that Triangle may not

now offer parol evidence suggesting otherwise. Further, Fouche provides evidence that

EMWA accepted responsibility for obtaining the easements. In a letter dated December 27,

2010, from Fouche to Triangle, Fouche’s president stated, “The Owner has informed us that

they have obtained sufficient private and/or public easements for you to complete this

project.” The Owner, as specified by the Contract, was EMWA. Finally, Fouche presented

evidence that EMWA’s president, Arthur Tate, stated in a deposition, “No, [Fouche] didn’t

get no [sic] easements. We get the - - East Madison Water Association is the one who gets

easements. Engineers don’t do easements. We do easements.”

¶22.   Given these facts, it is evident that EMWA was responsible for procuring the

easements for the project. Again, we find no merit to this issue.

       3.     Issues in Tort

¶23.   Triangle maintains that genuine issues of material fact exist as to whether Fouche


                                               12
breached its duty to Triangle to act in a reasonable and prudent manner in its professional

capacity. Triangle argues that Fouche breached this duty in the following ways: (1) in

negligently designing the project; (2) in extracontracually expanding Triangle’s scope of

work long after the written Contract had been executed by the parties; (3) in issuing a notice

to Triangle to proceed with the project months before obtaining the necessary easements; and

(4) in failing to provide notice to Triangle until early 2013 that permits were obtained on

October 4, 2010. In response, Fouche contends that it did not owe any duty to Triangle at

all, referencing Section 9.09(A) of the Contract. Further, Fouche maintains that even if it

owed a duty and consequently breached that duty, there is no evidence that the alleged breach

proximately caused Triangle’s damages.

¶24.   Both Triangle and Fouche cite Magnolia Construction Co. v. Miss. Gulf South

Engineers, Inc., 518 So. 2d 1194, 1202 (Miss. 1988), in support of their arguments regarding

whether Fouche owed any duty in tort to Triangle. In Magnolia, our supreme court reversed

a grant of summary judgment where it found that a genuine issue of material fact existed with

respect to a project-engineer’s duties to the project-contractor who was engaged in

construction as part of an agreement with the project-owner. Id. at 1197. Triangle points to

the portion of the Magnolia opinion providing that certain design professionals, such as

project-engineers, still owe a duty to project-contractors to exercise ordinary professional

skill and diligence—even where the engineer and contractor are not in a direct contractual

relationship—because of the inherent nature of the engineer’s contract with the project-


                                             13
owner:

         [W]here the engineer does not have a direct contractual relationship with the
         contractor, the legal duty which forms the basis of the contractor’s negligence
         claim still must arise from a contract-based obligation of the engineer to the
         [party with whom the contractor has actually contracted and for whom the
         engineer works]. Indeed, Mississippi law imposes on design professionals
         (architects/engineers) the duty to exercise ordinary professional skill and
         diligence. Further, Mississippi law allows third parties to rely on a design
         professional’s contractual obligation to the owner.

Id. at 1202 (internal citation and quotation marks omitted). In response, Fouche references

the portion of the opinion providing that any duty a project-engineer owes to a project-

contractor as part of its contractual duty to the project-owner must be determined by the

contract between the engineer and the owner:

         The trial judge was correct in trying to determine the intent of the parties to the
         contract from the four corners of the document. Early on, this Court stated the
         principle that in construing a contract, the instrument as a whole will be looked
         to and its meaning determined for the entire agreement as written in order to
         ascertain the intentions of the parties from the contract.

Id. at 1203-04 (citations and internal quotation marks omitted).

¶25.     Magnolia is distinguishable from this case for several reasons: First, the Magnolia

court directly referenced the contract between the project-owner and project-engineer in its

decision, whereas we cannot do so because our record does not include any separate

contractual agreement between the EMWA, the project-owner, and Fouche, the project-

engineer; the extent of any contractual dealings between Triangle and Fouche appears to be

limited to the terms of the Contract, in which Fouche’s duties are expressly limited. Id.

Further, our supreme court referenced several pieces of evidence in Magnolia—including

                                                 14
affidavits from the project-contractor’s president and a crew member and a deposition from

the project-engineer’s staff—which gave rise to a genuine issue of material fact regarding

whether the project-engineer had actually owed and breached a duty to the project-contractor.

Id. In contrast, here, there is insufficient evidence to suggest that Fouche actually owed any

extracontracual duties in tort to Triangle, as Triangle suggests. Not only do the terms of the

Contract explicitly provide otherwise, as evidenced by Section 9.09(A), quoted above, but

we also have the deposition of Triangle’s president, Robert King, in which King indicates

that Fouche was not even responsible for the duties that Triangle now argues it was. When

asked specifically about being given the directive to continue work after the necessary

easements had been obtained, King answered that Triangle only knew it was able to proceed

“[a]t the direction of the engineer and Mr. Meyer[6].” However, this statement is directly

contradicted later in King’s deposition, where he explains the function of a notice to proceed:

       The directive to be able to go out and do the work in an easement, whether it’s
       public or private, to direct me to continue doing work, whether that be from
       Mr. Meyer, as an agent of [Fouche], or whether it was an actual member of
       [Fouche], you know, or [EMWA]. Somebody would direct me to go and say,
       [“]You can continue your work here in this area.[”] Outside of that, you know,
       that’s the only direction that we have to be able to go to work.

The only other evidence provided by Triangle suggesting that Fouche owed extracontractual

duties to Triangle includes an affidavit by Triangle’s president, Robert King, in which King

maintained that Triangle’s communications were exclusively with Fouche, not EMWA.



       6
           Ronald Meyer was the project inspector on behalf of Fouche.

                                              15
However, this evidence is insufficient to show that Fouche owed a duty to Triangle outside

of those expressly delineated within the Contract, particularly in light of the Contract’s direct

language limiting Fouche’s duties to Triangle. In light of these facts, we cannot say that

Fouche owed any extracontractual duties to Triangle regarding this project.

¶26.   As previously stated, Triangle has the burden of establishing that there is a genuine

issue of material fact regarding an essential element of its case. Given the evidence before

us, we cannot find that there is a genuine issue of material fact with respect to the issues put

forth by Triangle, and that the circuit court erred in granting summary judgment. Thus, we

find that Fouche owed no duty to Triangle. We find that this is dispositive of any issue

regarding breach or proximate cause and therefore decline to consider these issues.

¶27.   In summary, we find that the circuit court did not err in granting Fouche’s motion for

summary judgment. Although the circuit court offered no reason for its decision, our de

novo analysis of these issues on appeal leads us to conclude that (1) Triangle’s act of cashing

EMWA’s check marked “final payment” constituted an accord-and-satisfaction agreement

and subsequently barred Triangle from bringing claims against Fouche, and (2) Triangle

failed to show any genuine issue of material fact with respect to its other claims.

Accordingly, we affirm.

¶28. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

     LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, GREENLEE
AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN
THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

                                               16
