COLORADO COURT OF APPEALS                                       2016COA95

Court of Appeals No. 15CA0467
City and County of Denver District Court No. 12CV3907
Honorable Kenneth M. Laff, Judge


Judith Z. Miller and Thomas C. Miller,

Plaintiffs-Appellants,

v.

Bank of New York Mellon, as Trustee for the Certificate Holders of CWABS,
Asset-Backed Certificates 2004-10, f/k/a Bank of New York; Bank of America,
N.A.; and Countrywide Home Loans, Inc.,

Defendants-Appellees.


                            JUDGMENT AFFIRMED

                                   Division I
                         Opinion by JUDGE TAUBMAN
                         Dailey and Freyre, JJ., concur

                          Announced June 16, 2016


Edward Dale Parrish, PC, Edward Dale Parrish, James Wade Noland, Golden,
Colorado, for Plaintiffs-Appellants

Holland & Hart LLP, Christina F. Gomez, Sean M. Hanlon, Denver, Colorado,
for Defendant-Appellee Bank of New York Mellon

Akerman LLP, Justin D. Balser, Melissa L. Cizmorris, Denver, Colorado, for
Defendants-Appellees Bank of America and Countrywide Home Loans
¶1    In this case involving dual tracking, a process where banks

 pursue foreclosure on a home while negotiating a loan modification,

 plaintiffs, Judith Z. and Thomas C. Miller (the Millers), filed claims

 against five financial institutions (collectively the Banks).1 The

 Millers contend that the Banks improperly subjected them to dual

 tracking in violation of the consent judgment that resulted from the

 National Mortgage Settlement generally prohibiting dual tracking,

 as discussed below. The district court dismissed their complaint for

 failure to state a claim for relief, and the Millers appeal from that

 judgment. We affirm.

                          I.     Background

¶2    We consider only facts alleged in the Millers’ amended

 complaint, the documents they attached as exhibits or incorporated

 by reference, and matters proper for judicial notice. Fry v. Lee,




 1 The defendants are Bank of New York Mellon (BNY Mellon), Bank
 of America, N.A. (BANA), Countrywide Home Loans, Inc. (CHL),
 Mortgage Electronic Registrations Systems (MERS), and Wilshire
 Credit Corporation, Inc. (Wilshire). Apparently, although all the
 parties list Wilshire as a party on appeal, the district court
 dismissed Wilshire because BANA bought Wilshire or Wilshire
 merged with it. Thus, Wilshire is not a party on appeal.

                                    1
 2013 COA 100, ¶ 19, ___ P.3d ___, ___. We view all facts in the light

 most favorable to the Millers. Id. at ¶ 17, ___ P.3d at ___.

¶3    In September 2004, the Millers signed a note and deed of trust

 to obtain a $422,750 loan to purchase a house in Denver. The loan

 was a three-year adjustable rate mortgage with an initial annual

 interest rate of 8.075%. CHL originally gave them the loan, under

 the trade name of America’s Wholesale Lender. A deed of trust,

 given to MERS as beneficiary, secured the loan.

¶4    The Millers began missing payments in 2007, and CHL began

 foreclosure proceedings on the house. In 2008, CHL transferred the

 loan to BNY Mellon, and BANA serviced the loan on BNY Mellon’s

 behalf. MERS also assigned its interest in the deed of trust to BNY

 Mellon.2

¶5    The Millers separately filed for bankruptcy, and they both

 received discharges in 2009. Following the conclusion of both

 bankruptcy cases, BANA told the Millers to vacate the house. The




 2 As a result, the Banks and the Millers agree that MERS is not a
 proper party to this appeal, and, accordingly, it has been dismissed
 from the appeal.

                                    2
 Millers instead stayed in the house and eventually entered into

 negotiations with BANA regarding a loan modification.

¶6    In February 2012, BNY Mellon moved for an order authorizing

 the public trustee to proceed with a foreclosure sale in the Denver

 County District Court against the Millers under C.R.C.P. 120.

¶7    In June 2012, while the Rule 120 action was pending, the

 Millers filed their own complaint against the Banks in the Denver

 County District Court to quiet title to the house in their favor. The

 Millers alleged that BNY Mellon had not established an unbroken

 chain of title and that the Millers had not been afforded due process

 in the Rule 120 action because the court had not conducted a

 hearing.

¶8    In July 2012, the court in the Rule 120 action held a hearing

 and authorized the sale of the house. Meanwhile, the Millers

 continued negotiating a loan modification with BANA.

¶9    On December 31, 2012, BANA sent two contradictory letters to

 the Millers. One letter stated that their request for a loan

 modification had been denied, and the other stated that their

 request had been approved.




                                    3
¶ 10   In 2013, BANA and the Millers agreed to a loan modification,

  although the Millers averred in their amended complaint that they

  accepted the modified loan under duress because of the threat of

  foreclosure.3 They began making payments three months before

  they executed the loan modification agreement in May 2013. They

  agreed to add all their unpaid and deferred interest, fees, charges,

  escrow advances, and other costs, excluding unpaid late charges, to

  the outstanding principal balance, for a combined balance of

  $630,077.16. BANA permanently forgave $220,077.16 of that

  balance, leaving a new principal balance of $410,000. BANA also

  deferred $72,321.19 of the new balance until the end of the life of

  the loan, with no accrued interest. BANA applied an initial 2%

  annual interest rate to the remainder, which would eventually

  increase to 3.375%.

¶ 11   BNY Mellon dismissed the Rule 120 action in September 2013,

  seven months after the Millers began making modified payments

  and four months after the execution of the modification agreement.




  3Despite this, the Millers do not seek to void the modified note and
  deed of trust.

                                    4
¶ 12   In October 2014, the Millers amended their complaint,

  asserting claims for breach of the implied duty of good faith and fair

  dealing, intentional infliction of emotional distress, fraud, and

  negligence. The Banks moved to dismiss the Millers’ amended

  complaint.

¶ 13   The court granted the motion. It ruled that the Millers’ tort

  claims were barred by the economic loss rule because the Millers

  had not identified any duty independent of the parties’ contractual

  obligations. The court also dismissed the Millers’ contract claim for

  breach of the implied duty of good faith and fair dealing because it

  concluded that the Millers did not have a reasonable expectation

  that their original loan would be modified or that the Banks would

  not engage in dual tracking.

¶ 14   The Millers raise two contentions on appeal: (1) the district

  court erred in determining that the economic loss rule barred their

  tort claims and (2) the court erred in dismissing their contract claim

  because they had a reasonable expectation that the Banks would

  not engage in dual tracking and would modify their loan. We

  disagree.




                                     5
            II.     Motion to Dismiss Standard of Review

¶ 15   We review de novo a district court’s grant of a motion to

  dismiss. Fry, ¶ 17, ___ P.3d at ___.

¶ 16   A motion to dismiss tests the formal sufficiency of a complaint.

  Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1259 (Colo.

  2000). It is looked upon with disfavor, and a complaint should not

  be dismissed unless it appears beyond a doubt that a claimant can

  prove no set of facts in support of his or her claim which would

  entitle him or her to relief. Pub. Serv. Co. of Colo. v. Van Wyk, 27

  P.3d 377, 385-86 (Colo. 2001). Motions to dismiss should only be

  granted when the plaintiff’s allegations cannot support a claim as a

  matter of law. Wagner v. Grange Ins. Ass’n, 166 P.3d 304, 307

  (Colo. App. 2007).

                          III.    Tort Claims

¶ 17   The Millers first contend that the district court erred in

  determining that the economic loss rule barred their claims for

  intentional infliction of emotional distress, fraud, and negligence.

  We disagree.




                                     6
                          A.    Applicable Law

¶ 18   Under the economic loss rule, “a party suffering only economic

  loss from the breach of an express or implied contractual duty may

  not assert a tort claim for such a breach absent an independent

  duty of care under tort law.” Town of Alma, 10 P.3d at 1264.

¶ 19   “Contract obligations arise from promises the parties have

  made to each other, while tort obligations generally arise from

  duties imposed by law to protect citizens from risk of physical harm

  or damage to their personal property.” A.C. Excavating v. Yacht

  Club II Homeowners Ass’n, 114 P.3d 862, 865-66 (Colo. 2005).

¶ 20   The existence and scope of any duty in tort are questions of

  law to be determined by the court. Id. at 866. The source of a tort

  duty may originate from a judicial decision or a legislative

  enactment. United Blood Servs. v. Quintana, 827 P.2d 509, 518

  (Colo. 1992).

¶ 21   A special relationship automatically triggers an independent

  duty of care that supports a tort action even when the parties have

  entered into a contractual relationship. A Good Time Rental, LLC v.

  First Am. Title Agency, Inc., 259 P.3d 534, 540 (Colo. App. 2011).

  The few special relationships recognized in Colorado share the same


                                    7
  characteristic: each implicates a risk of damages to interests that

  contract law is not well suited to protect. Id.

                              B.    Analysis

¶ 22   We conclude that the district court properly dismissed the

  Millers’ tort claims because a consent judgment in a federal case

  challenging dual tracking, discussed below, did not create a private

  cause of action for third parties, and, therefore, the Millers did not

  have standing to bring their tort claims. Further, we conclude that

  no special relationship existed between the parties to establish an

  independent duty.

                       1.   Private Cause of Action

¶ 23   In April 2012, BANA, four other mortgage servicers, the United

  States, forty-nine states, and the District of Columbia reached a

  National Mortgage Settlement that resulted in the consent judgment

  at issue here. The consent judgment settled complaints brought by

  the Department of Justice and state attorneys general alleging

  various foreclosure abuses, including dual tracking. Chaves v.

  Bank of Am., N.A., No. 3:13-CV-498, 2014 WL 3052491, at *1 (E.D.

  Tenn. July 3, 2014). The settlement agreement “was intended to

  provide relief to homeowners whose loans were improperly serviced,


                                     8
  resulting in numerous foreclosures that otherwise may have been

  prevented.” Id. The consent judgment prohibited most dual

  tracking, and the Colorado General Assembly subsequently passed

  a statute that also largely prohibited the practice.4 § 38-38-103.2,

  C.R.S. 2015.

¶ 24   The Millers argue that the consent judgment created an

  independent duty because the Banks agreed to comply with certain

  servicing standards, including no longer engaging in dual tracking.5

  The Millers also contend that the Banks signed the consent

  judgment prior to initiating their Rule 120 action and that the

  consent judgment did not require the Millers to release or waive any

  right or legal claim as a condition of receiving payments pursuant to

  it.6 However, we need not address these arguments because we

  conclude that the Millers lack standing to sue to enforce provisions




  4 Under both the consent judgment and Colorado statute, dual
  tracking is allowed in certain circumstances. Those circumstances
  are not at issue here.
  5 The Millers do not allege whether all the Banks were parties to the

  consent judgment. The Banks allege it was BANA alone.
  6 The Millers state in their opening brief that they received a

  nominal settlement amount from the consent judgment.

                                    9
  of the consent judgment and that the consent judgment did not

  create a cause of action for third parties.

¶ 25   In general, federal law presumes that third parties do not have

  standing to enforce federal consent judgments. Duque v. Wells

  Fargo, N.A., 462 S.W.3d 542, 546 (Tex. App. 2015). A well-settled

  line of United States Supreme Court authority establishes that “a

  consent decree is not enforceable directly or in collateral

  proceedings by those who are not parties to it even though they

  were intended to be benefited by it.” Blue Chip Stamps v. Manor

  Drug Stores, 421 U.S. 723, 750 (1975); see also Parrish Chiropractic

  Ctrs., P.C. v. Progressive Cas. Ins. Co., 874 P.2d 1049, 1056 (Colo.

  1994) (Colorado law to the same effect).

¶ 26   Several federal circuit courts have interpreted this prohibition

  on suits by non-parties to a consent decree as meaning that

  incidental third-party beneficiaries may not enforce a consent

  decree. Beckett v. Air Line Pilots Ass’n, 995 F.2d 280, 288 (D.C. Cir.

  1993); Hook v. Ariz. Dep’t of Corr., 972 F.2d 1012, 1015 (9th Cir.

  1992); Berger v. Heckler, 771 F.2d 1556, 1565 (2d Cir. 1985). State

  courts generally may not decline to recognize federal law. Howlett v.

  Rose, 496 U.S. 356, 371 (1990). Moreover, principles of comity


                                     10
  counsel that state courts should not apply a federal consent

  judgment in a way that would be prohibited in federal courts.

  Duque, 462 S.W.3d at 546.

¶ 27   Here, while the Millers benefited from the consent judgment

  when they received settlement funds, they were not parties to it.

  Therefore, the Millers did not have standing to enforce the consent

  judgment.

¶ 28   Our conclusion is supported by the decisions of numerous

  federal and state courts that have unanimously rejected homeowner

  claims against their lenders premised on the consent judgment,

  holding that homeowners lack standing to enforce it. See Dale v.

  Selene Fin. LP, No. 3:15CV1762, 2016 WL 1170772, at *13 (N.D.

  Ohio Mar. 25, 2016); Purnell v. CitiMortgage, Inc., No. 14-11107,

  2015 WL 4199243, at *12-14 (E.D. Mich. July 13, 2015); Flores v.

  EMC Mortg. Co., 997 F. Supp. 2d 1088, 1105-06 (E.D. Cal. 2014);

  Adams v. Bank of N.Y. Mellon, No. 13-CV-509-JD, 2014 WL

  3850326, at *1 (D.N.H. Aug. 5, 2014); Chaves, 2014 WL 3052491,

  at *2-4; Weber v. Wells Fargo Bank, N.A., No. 3-13-CV-158, 2014

  WL 198661, at *4 (N.D. W. Va. Jan. 15, 2014); Ghaffari v. Wells

  Fargo Bank, N.A., 6 F. Supp. 3d 24, 29-30 (D.D.C. 2013); Rehbein v.


                                   11
  CitiMortgage, Inc., 937 F. Supp. 2d 753, 761-62 (E.D. Va. 2013);

  Ripa v. Fed. Nat’l Mortg. Ass’n, No. CV-13-01612-PHX-DGC, 2013

  WL 5705426, at *5 (D. Ariz. Oct. 21, 2013); Duarte v. Wells Fargo

  Bank, N.A., No. 3:13-CV-00371-RCJ, 2013 WL 5236565, at *2 (D.

  Nev. Sept. 16, 2013); Winders v. CitiMortgage, Inc., No. 3:13-CV-56

  CDL, 2013 WL 4039399, at *2 (M.D. Ga. Aug. 7, 2013); see also

  Bank of Am., N.A. v. Moody, 352 P.3d 734, 736 (Okla. Civ. App.

  2014); BAC Home Loans Servicing, LP v. Trancynger, 847 N.W.2d

  137, 141-42 (S.D. 2014); Duque, 462 S.W.3d at 546-49 & n.1.

¶ 29   At oral argument, the Millers conceded that the above-cited

  cases were correctly decided. They nevertheless argue, in their

  briefs, that these cases are not binding precedent. However, they

  have cited no contrary authority, and we are persuaded by the

  unanimous holdings of courts in thirteen states and the District of

  Columbia.

¶ 30   The Millers also argue, relying only on Ripa, that the cases

  cited are distinguishable. While the Millers correctly note that the

  Ripa court considered actions that had occurred prior to entry of

  the consent judgment, the Ripa court did not rely on that fact when

  it held that the plaintiff was not a party to the consent judgment


                                   12
  and accordingly could not enforce it. Further, most of the cases

  addressing this issue have involved conduct occurring after entry of

  the consent judgment. Therefore, we find no basis on which to

  distinguish the cases on their facts.

¶ 31   The Millers argue that they did not seek to enforce the terms of

  the consent judgment, but rather the consent judgment established

  an independent legal duty forming a basis for their tort claims. We

  disagree. We see no distinction between the right of incidental

  third-party beneficiaries — like the Millers — to enforce the

  provisions of the consent judgment and the consent judgment

  creating an independent legal duty that would provide the basis for

  alleging tort claims against the Banks.

¶ 32   In any event, while judicial decisions can create independent

  duties, the consent judgment was not a judicial decision that could

  create an independent duty. See Ross v. Old Republic Ins. Co., 134

  P.3d 505, 511 (Colo. App. 2006) (“A consent judgment is not a

  judicial determination of any litigated right, and it is not the

  judgment of the court, except in the sense that the court allows it to

  go upon the record and have the force and effect of a judgment.”),

  aff’d in part, rev’d in part, 180 P.3d 427 (Colo. 2008).


                                     13
                        2.    Special Relationship

¶ 33   In the alternative, the Millers contend that they had a special

  relationship with the Banks which automatically triggered an

  independent duty of care supporting a tort action. A Good Time

  Rental, LLC, 259 P.3d at 540. Therefore, they contend that the

  Banks were required to exercise reasonable care and skill not to

  engage in dual tracking starting in May 2012. We disagree.

¶ 34   As noted above, very few special relationships are recognized

  in Colorado tort law, and the lender-borrower relationship is not

  one of them. See Town of Alma, 10 P.3d at 1263; see also Premier

  Farm Credit, PCA v. W-Cattle, LLC, 155 P.3d 504, 523 (Colo. App.

  2006) (“In the absence of special circumstances, the relationship

  between a lending institution and its customer is merely one of

  creditor and debtor.”); Franks v. Colo. Nat’l Bank-Arapahoe, 855

  P.2d 455, 458 (Colo. App. 1993) (“A relationship of debtor and

  creditor, standing alone, is insufficient to constitute a special

  relationship.”).

¶ 35   Moreover, courts across the country have held that the

  consent judgment did not create a special relationship between

  lenders and borrowers. See Weber, 2014 WL 198661, at *3-4


                                     14
  (holding that there ordinarily is no special relationship between

  lenders and borrowers and the consent judgment did not create

  such a relationship because the plaintiff lacked standing to enforce

  it); Jurewitz v. Bank of Am., N.A., 938 F. Supp. 2d 994, 999 (S.D.

  Cal. 2013) (concluding that the consent judgment did not establish

  a lender’s duty of care to a homeowner); Ripa, 2013 WL 5705426, at

  *3 (same); Sanguinetti v. CitiMortgage, Inc., No. 12-5424 SC, 2013

  WL 4838765, at *5-6 (N.D. Cal. Sept. 11, 2013) (same).

¶ 36   Therefore, we conclude the district court did not err in

  dismissing the Millers’ tort claims.

                        IV.        Contract Claim

¶ 37   The Millers next contend that the district court erred in

  dismissing their contract claim for breach of the implied duty of

  good faith and fair dealing. We disagree.

                              A.   Applicable Law

¶ 38   A duty of good faith and fair dealing is implied in every

  contract. New Design Constr., Inc. v. Hamon Contractors, Inc., 215

  P.3d 1172, 1181 (Colo. App. 2008).

¶ 39   A plaintiff may rely on the duty of good faith and fair dealing

  “when the manner of performance under a specific contract term


                                      15
  allows for discretion on the part of either party.” Id. (citation

  omitted). “Discretion in performance occurs ‘when the parties, at

  formation [of the contract], defer a decision regarding performance

  terms of the contract’ leaving one party with the power to set or

  control the terms of performance after formation.” McDonald v.

  Zions First Nat’l Bank, N.A., 2015 COA 29, ¶ 67, 348 P.3d 957, 967

  (quoting City of Golden v. Parker, 138 P.3d 285, 292 (Colo. 2006)).

¶ 40   “Good faith performance of a contract involves ‘faithfulness to

  an agreed common purpose and consistency with the justified

  expectations of the other party.’” Id. at ¶ 68, 348 P.3d at 967

  (quoting Amoco Oil Co. v. Ervin, 908 P.2d 493, 498 (Colo. 1995)).

  “Each party to a contract has a justified expectation that the other

  will act in a reasonable manner in its performance.” Wells Fargo

  Realty Advisors Funding, Inc. v. Uioli, Inc., 872 P.2d 1359, 1363

  (Colo. App. 1994). “When one party uses discretion conferred by

  the contract to act dishonestly or to act outside of accepted

  commercial practices to deprive the other party of the benefit of the

  contract, the contract is breached.” Id.

¶ 41   However, the implied duty of good faith and fair dealing cannot

  contradict terms or conditions for which a party has bargained, nor


                                     16
  can it inject substantive terms into the parties’ contract. ADT

  Security Servs., Inc. v. Premier Home Protection, Inc., 181 P.3d 288,

  293 (Colo. App. 2007); see also Amoco Oil Co., 908 P.2d at 507 n.6

  (Vollack, C.J., concurring in part and dissenting in part) (“Rather, it

  requires only that the parties perform in good faith the obligations

  imposed by their agreement.”).

                              B.    Analysis

¶ 42   We conclude that the Millers did not state a claim for breach of

  the implied duty of good faith and fair dealing because they had no

  reasonable expectation that their loan would be modified or that the

  Banks would refrain from dual tracking.

¶ 43   Neither of the reasonable expectations the Millers cite has any

  basis in the parties’ contractual agreement. First, the Millers had

  no reasonable expectation under their original note and deed of

  trust that the Banks would modify the loan. The original note and

  deed of trust gave BANA the right to foreclose in the event of default

  and did not require BANA to consider or agree to a modification.

¶ 44   The Millers argue that the note and the deed of trust allow for

  discretionary action by the Banks. They cite this language from the

  original note for support: “If I am in default, the Note Holder may


                                    17
  send to me a written notice . . . the Note Holder may require me to

  pay in immediately the full amount of [principal] . . . .”) (emphasis

  added in the opening brief). The Millers also cite the following

  language from the deed of trust: “If Lender invokes the power of sale

  . . . .” (Emphasis added in the opening brief.) However, these

  contract provisions do not support the Millers’ argument. Rather,

  they support our conclusion that the original loan and deed of trust

  gave BANA the right to foreclose in the event of default.

¶ 45   Second, the Millers had no reasonable expectation that the

  Banks would refrain from dual tracking and cease all foreclosure

  efforts while the parties were negotiating a loan modification. The

  Millers suggest that they had such an expectation because of

  mortgage lenders’ “discretionary power” to commence foreclosure

  proceedings at the same time they negotiate loan modifications;

  because the parties were engaged in lengthy negotiations over

  modification; and because of the consent judgment.7



  7 The Millers state that the reasons the loan negotiations took so
  long are disputed. However, in the motion to dismiss context, this
  argument is inapposite because we construe all factual allegations
  in the light most favorable to the Millers. Fry v. Lee, 2013 COA 100,
  ¶ 17, ___ P.3d ___, ___.

                                    18
¶ 46   None of these arguments supports the Millers’ claim. The

  Millers’ good faith and fair dealing claim is not based on any terms

  of performance that were left to the Banks’ discretion under the

  loan documents, as discussed above. The loan and the deed of

  trust specified many terms, including how the interest rate would

  be calculated, when loan payments would become due, and the

  amount of monthly payments. However, those documents did not

  indicate that whether the Banks would enter into loan modification

  negotiations was discretionary because they did not mention

  modification procedures at all. If anything, it appears that the

  Millers are trying to inject new terms into the loan documents —

  something they plainly cannot do. See McDonald, ¶ 70, 348 P.3d at

  967. The loan and the deed of trust both specifically gave BANA the

  right to foreclose in the event of default and did not require BANA to

  consider or agree to a modification.

¶ 47   The length of the loan modification negotiations is irrelevant

  now because the parties reached a loan modification agreement.

  Further, the length of the loan modification negotiations does not

  compel the conclusion that the Millers reasonably expected that the

  Banks would refrain from dual tracking. The Millers had no


                                   19
  assurance that protracted negotiations would result in a loan

  modification.

¶ 48   Last, the Millers were not parties to the consent judgment, so,

  as discussed above, they do not have enforcement rights under that

  agreement. See Rehbein, 937 F. Supp. 2d at 763 n.13 (holding the

  consent judgment did not support homeowner’s good faith and fair

  dealing claim complaining about dual tracking).

¶ 49   Other courts have rejected other homeowners’ similar good

  faith and fair dealing claims premised on dual tracking. See id. at

  763-64; see also Castaneda v. Wells Fargo Home Mortg., No. 2:15-

  CV-08870-ODW-KS, 2016 WL 777862, at *6 (C.D. Cal. Feb. 26,

  2016); Frangos v. Bank of Am., N.A., No. 13-CV-472-PB, 2014 WL

  3699490, at *4 (D.N.H. July 24, 2014) (rejecting similar good faith

  and fair dealing claim based on dual tracking); McFarland v. JP

  Morgan Chase Bank, No. EDCV 13-01838-JGB, 2014 WL 1705968,

  at *9 (C.D. Cal. Apr. 28, 2014) (same); Ripa, 2013 WL 5705426, at

  *5 (same); Lindberg v. Wells Fargo Bank, N.A., No. CV C 13-0808

  PJH, 2013 WL 3457078, at *4 (N.D. Cal. July 9, 2013) (same).

¶ 50   For the same reasons, we conclude the district court did not

  err in dismissing the Millers’ contract claim.


                                    20
                         V.        Conclusion

¶ 51   The judgment is affirmed.

       JUDGE DAILEY and JUDGE FREYRE concur.




                                    21
