Pedersen & Houpt, P.C. v. Main Street Village West, Part 1, LLCPedersen & Houpt, P.C. v. Main Street Village West, Part 1, LLC
Held
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
Plaintiff law firm‘s attempt to collect its lien for attorney fees via a foreclosure action in a pending mechanic‘s lien case involving third parties was properly dismissed on the ground that the
Decision Under Review
Appeal from the Circuit Court of Cook County, No. 08-CH-30891; the Hon. Lisa R. Curcio, Judge, presiding.
Judgment Affirmed.
Counsel on Appeal
Arnstein & Lehr, LLP (David A. Golin, of counsel), Polsinelli Shughart, PC (Peter J. Schmidt, Tiffany R. Harper, and Matthew R. Moriarity pro hac vice, of counsel), and Fidelity National Law Group (Erik J. Anderson, of counsel), all of Chicago, for appellees.
¶ 1 After questions were raised by the trial court regarding the propriety of a law firm‘s attempt to collect an attorney fees lien in a pending mechanic‘s lien case, the law firm filed a foreclosure action seeking payment of its attorney fees and priority over all mechanic‘s lien claimants. The trial court ruled that the
I. BACKGROUND
¶ 2 ¶ 3 The genesis of the attorney fees that the Pedersen & Houpt law firm (P&H) seeks to collect via its foreclosure complaint filed in a mechanic‘s lien court is a real estate dispute wherein it successfully represented its client, Summit Real Estate Group, LLC (Summit). Back in 2004, P&H filed a complaint on behalf of Summit seeking specific performance of a real estate contract to acquire a parcel of real estate located in Orland Park, Illinois, from certain defendants (Lakeside Bank as trustee, the holder of legal title to the property; Hickory Properties, Inc.; and Steven P. Gianakas) in exchange for money. Summit Real Estate Group, LLC v. Lakeside Bank, No. 04 CH 16593 (Cir. Ct. Cook Co.). Trial was held in 2005, and the circuit court entered a judgment on February 17, 2005, requiring specific performance of the real estate contract wherein the defendants werе to convey the Orland Park real estate to Summit. Id. The circuit court granted a stay of the specific performance order on the condition that Lakeside Bank post a $6 million bond. Lakeside sought a stay in the appellate court, also requesting that the amount of the bond be lowered. These appeals were dismissed. The circuit court set a new closing date for June 17, 2005. When Lakeside Bank still refused to close, the circuit court set July 12, 2005, as a return date on a rule to show cause. On June 28, 2005, Lakeside Bank filed a motion in the appellate court to stay the circuit court‘s hearing. This appeal was also dismissed. P&H represented Summit during these appeals. Neither before nor during P&H‘s representation of Summit‘s interests until the conclusion of the specific performance case did P&H ever give notice to any of the three defendаnts of any attorney fees lien. P&H also did not file any motion to enforce or adjudicate any attorney fees lien before the judgment became final. In other words, no statutory lien was sought to be placed on the property in the specific performance action.
¶ 4 The defendants in the above-described specific performance real estate action complied with the court‘s final judgment by conveying the parcel of Orland Park real estate in two separate conveyances to Summit on August 22, 2005 and January 12, 2006. The portion of the parcel conveyed to Summit on August 22, 2005 is not subject to this lawsuit. There is no evidence that P&H ever sought to enforce a lien on that portion of the parcel. The second portion of the parcel was conveyed to Summit on January 12, 2006. Summit, by quitclaim deed dated January 13, 2006, immediately cоnveyed the second portion of the parcel to one of the defendants in this lawsuit, Main Street Village West, Part 1, LLC. Both transactions involving the second portion of the parcel were the subject of the same closing that occurred on January 25, 2006. P&H did not assert any attorney fees lien arising
¶ 5 By letter dated January 17, 2006, almost 11 months after the judgment in the specific performance lawsuit became final, P&H sent a notice of its claimed statutory attorney fees lien to only one of the named defendants in the specific pеrformance action, Hickory Properties, Inc. The two other defendants, Lakeside Bank and Steven P. Gianakas, against whom Summit had a claim in the specific performance action were not sent any attorney fees lien notice directly by P&H on January 17, 2006 or at any other time. Copies of the January 17, 2006 P&H attorney fees lien notice were also sent to two agents at Chicago Title & Trust, to the attorney who had represented the defendants in the specific performance litigation and to the individual former clients of P&H in the specific performance action, Messrs. Tyman and Schutte. Immediately upon receipt of the attorney fees lien notice by Hickory Properties, Inc., their attorney informed P&H on January 23, 2006, that P&H‘s notice of an attorney fees lien was not meritorious.
¶ 6 The January 25, 2006 closing for this second portion of the parcel of real estate was concluded and P&H purposefully did not assert or in any way claim payment should be made for its attorney fees arising out of its successful litigation in the specific performance action that made this closing possible. In other words, P&H intentionally missed the opportunity to get paid during this liquidating event. P&H‘s stated rationale was to try to work out a payment plan with its client for its attorney fees. P&H also never followed up with the title company by filing a claim with it for insuring over P&H‘s claimed lien.1
¶ 7 On August 1, 2006, more than six months after receipt of the January 23, 2006 letter from attorneys for Hickory Properties, Inc., and the January 25, 2006 closing on the final portion of the property where its client sold the property to a third party, P&H filed a lawsuit in the law division of the circuit court, to recover its unpaid fees from its former client, Summit, for its representation in the specific performance action. This suit included a count for enforcement of its аttorney fees lien naming a subsequent owner of the second parcel of real estate, Main Street Village West, Part I, LLC, as an additional defendant. Pedersen & Houpt, LLC v. Summit Real Estate Group, LLC, No. 06 L 8078 (Cir. Ct. Cook Co.). This lawsuit did not name any of the original three defendants from the specific performance action and, specifically, did not name Hickory Properties, Inc., the one defendant to whom P&H sent its letter dated January 17, 2006 asserting a lien. On August 18, 2006 and August 21, 2006, P&H recorded two lis pendens using the personal identification number (PIN) used for mechanic‘s lien notices for the subject property.
¶ 8 The law division judge ruled on an attorney disqualification issue in the action filed by P&H to recover its attorney fees. P&H appealed that ruling and this court addressed the issue in an opinion. Pedersen & Houpt, P.C. v. Summit Real Estate Group, LLC, 376 Ill. App. 3d 681 (2007). The appellate
¶ 9 On remand from the appellate court, on June 9, 2009, the law division judge of the circuit court found that the P&H attorney fees lien attached to the property that P&H obtained for Summit as a result of the specific performance litigation. On July 29, 2009, the law division judge also determined that the P&H attorney fees lien was for $278,870.90.
¶ 10 On November 3, 2009, the law division judge determined that the date of attachment of the P&H attorney fees lien to the property was January 17, 2006, the date P&H sent its first and only notice to one of the defendants from the specific pеrformance lawsuit and to others. On that same day, the law division judge granted summary judgment in favor of P&H and against its former client, Summit, in the amount of $297,333.76, a money judgment for all attorney fees Summit owed to P&H. No judgment was entered against the other defendants named in the law division case. The real estate at issue in the specific performance case was subdivided and transferred to other entities between January 13, 2006 and November 3, 2009. There is no evidence that those individuals who had subsequently acquired an interest in the property were ever named as additional defendants in this lawsuit or were otherwise given notice that P&H was requesting the court to adjudicate a significant interest in the property, specifically, P&H‘s attorney fees as a lien on the property. We can find no evidence of record that the law division judge was ever informed that third parties not namеd in the complaint pending in law division court had ownership and lien interests in the subject property pending before him.
¶ 11 In a separate proceeding in mechanic‘s lien court, on August 22, 2008, a general contractor filed a mechanic‘s lien action to foreclose on a portion of the property that was the subject of the above-mentioned specific performance action. In January 2009, P&H was participating in this mechanic‘s lien proceeding pending before Judge Curcio from which this appeal is taken. The trial court in the instant mechanic‘s lien proceeding issued an order dated August 19, 2009, which stated: “At [the next] status hearing [September 21, 2009] counsel [for all mechanic‘s lien claimants] shall be prepared to inform the Court how their clients intend to proceed as to the lien claimed by Pedersen/Houpt. Pedersen/Houpt shall report on the status of lien [pending before the law division judge].”
¶ 12 On January 25, 2010, P&H filed a counterclaim and third-party complaint in the mechanic‘s lien proceedings before
II. ANALYSIS
A. Standard of Review
¶ 15 This decision involves statutory interpretations of the
B. Discussion
¶ 17 The mechanic‘s lien court ruled that because the statute allowing for an attorney fees lien for services rendered did not specifically allow for collection of that lien via a foreclosure action, it would not allow P&H to proceed with its counterclaim and third-party complaint in the mechanic‘s lien proceеdings to foreclose on a portion of the property that was the subject of the specific performance litigation.
¶ 18 In addition to the record in the mechanic‘s lien action for foreclosure, the record contains the 64-page, 388-paragraph complaint filed by P&H in the law division wherein P&H claimed a statutory attorney fees lien on a portion of the property previously owned by Summit that was the subject of the specific performance action. There is no indication from the specific performance action that reflects P&H ever claimed an attorney fees lien was imposed while that case was pending or prior to judgment being final. P&H only subsequently sued for a money judgment against its client in a separate action, which was allowed and for a lien on the property no longer owned by Summit or the original three defеndant-owners against whom Summit had a claim during the specific performance action which was the subject of the specific performance action in which Summit prevailed. It is not possible to enter any judgments affecting property unless a court has jurisdiction over the res. Financial Freedom v. Kirgis, 377 Ill. App. 3d 107, 120 (2007). There is no evidence that the subsequent purchasers, current owners or parties with an interest in the property were sued, served with process or otherwise given proper notice of the suit by P&H before the law division court.
¶ 20 The purpose of the
¶ 21 We begin this analysis with the
“Attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee, for the services of such suits, claims, demands or causes of action, plus costs and expenses. ***
To enforce such lien, such attorneys shall serve notice in writing, which service may be made by registered or certified mail, upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes of action. Such lien shall attach to any verdict, judgment or order entered and to any money or property which may be recovered, on account of such suits, claims, demands or causеs of action, from and after the time of service of the notice. On petition filed by such attorneys or their clients any court of competent jurisdiction shall, on not less than 5 days’ notice to the adverse party, adjudicate the rights of the parties and enforce the lien.”
770 ILCS 5/1 (West 2006) .
¶ 22 No statutory attorney fees lien was placed on the property during the specific performance action. Although P&H filed its lis pendens using the mechanic‘s lien PIN, P&H‘s current collection efforts should not be treated like a mechanic‘s lien on the ground that it secured the property for the prior owner, Summit, in a prior specific performance action and subsequently secured both a money judgment against Summit and a lien on the entire property for its fees that the law division judge ruled in 2009 attached to the property as of January 17, 2006.
¶ 23 P&H‘s efforts in the specific performance action should not be trеated like a worker‘s mechanic‘s lien, and its lis pendens filed like a mechanic‘s lien notice is
¶ 24 Generally, a lien is a charge on property or personalty for the payment of a debt. If properly recorded, it encumbers property to secure payment of the debt. 51 Am. Jur. 2d Liens § 1 (2003). We are concerned in this case with a statutorily created attorney fees lien. The “character, operation and extent of [a statutory] lien must be ascertained from the terms of the statute *** and then only where there has been substantial compliance with all the statutory requirements.” (Internal quotation marks omitted.) United States v. Beaver Run Coal Co., 99 F.2d 610, 612 (3d Cir. 1938). “Since the attorney‘s lien is a crеature of statute, the [Attorneys Lien] Act must be strictly construed, both as to establishing the lien and as to the right of action for its enforcement. Attorneys who do not strictly comply with the [Attorneys Lien] Act have no lien rights.” People v. Philip Morris, Inc., 198 Ill. 2d 87, 95 (2001); Haj v. American Bottle Co., 261 Ill. 362 (1913); Unger v. Checker Taxi Co., 30 Ill. App. 2d 238 (1961); Schlake v. Lumbermens Mutual Casualty Co., 25 Ill. App. 2d 194 (1960); Cazalet v. Cazalet, 322 Ill. App. 105 (1944). Therefore, statutory liens are available and enforced only on such terms as the legislature sees fit to provide.
¶ 25 Under the
¶ 26 P&H cites Catherwood v. Morris, 360 Ill. 473 (1935), as support for its position that its attorney fees lien may attach to real property and is valid even though conveyances to third parties preceded its lien notice. Catherwood does provide support for its argument that a statutory attorney fees liеn may attach to real property. However, Catherwood does not support its argument that such a lien can attach to property even after the property is conveyed away from the parties against whom an attorney‘s client had a claim or away from the attorney‘s client. Catherwood involved a dispute over the distribution of real property of an estate. The dispute involving payment of an attorney fees lien arose while the original case was pending. The circuit court in Catherwood held that there existed a valid attorney fees lien “upon the interests of the Catherwoods in certain of the real property *** obtained in the settlement of the litigation” (id. at 478) and ordered the administrator of the estate to pay the attorney fees. Our supreme court affirmed and held that the attorney fees lien attached to the real property acquired through the settlement.
¶ 27 On the basis of the Catherwood ruling, P&H argues that its lien can attаch to property even after the final judgment in the specific performance action was satisfied. Further, P&H argues that it was not required to send notice of its lien to all defendants against whom its client once had a claim and the lien extends to innocent, unsuspecting third parties who acquired an interest in the real property even before P&H asserted its lien. We disagree. In Catherwood, the client of the attorney seeking payment of his previously noticed lien actually still possessed the property at the time the trial court enforced the lien. No final judgment had been entered in the case. The Catherwood ruling provides no basis for a conclusion that P&H‘s lien can attach to property after judgment is satisfied and runs with the property once it is out of the hands of the original defendants and then out of the hands of its client, in the instant case, Summit, to whom the property was transferred pursuant to a settlement or judgment. Catherwood, 360 Ill. at 480; Process Color Platе Co. v. Chicago Urban Transportation District, 125 Ill. App. 3d 885, 889 (1984) (attorney for plaintiff who took no action so his lien would be paid from proceeds of lawsuit was precluded from seeking lien enforcement directly against the defendant in the underlying litigation).
¶ 28 If we were to allow P&H‘s method of recovery, the current owner is not afforded due process by being given an opportunity to contest notice or whether the lien was properly perfected not just against the property, but against the current owners, who had never used P&H‘s legal services. The fundamental principles of due process require notice and an opportunity to be heard where a judicial body makes a fact-based adjudication affecting property rights. Therefore, absent a statutory mechanism written into the
¶ 29 As one can readily see from the above-quoted
¶ 30 Further, it does not appear of record that P&H perfected its judgment from the law division. In order to perfect a judgment, one must place the world on notice that it has an interest superior to that of other creditors in the property. In Illinois, in addition to the provisions of the
¶
¶ 32 Additionally, the
¶ 33 The
¶ 34 P&H had every opportunity to protect its attorney fees by filing a lien during the pendency of the original specific performance action, before judgment became final or before the property was transferred to third parties, but it did not.
¶ 35 P&H also had every opportunity to seek payment of its attorney fees during the January 25, 2006 closing and the closing that preceded it that also involved a portion of the real estate that was the subject of the specific performance action. Our legislature did not intend that attorneys, with full awareness of their client‘s recovery and who had every opportunity to assert a statutory attorney fees lien against the proceeds or property going to their client, should be free to ignore those proceeds or property flowing to their client and later claim the benefit of their attorney fees lien from the defendants in the underlying action, much less from an uninvolved third party, in an action unrelated to the litigation giving rise to the proceeds. Process Color Plate Co. v. Chicago Urban Transportation District, 125 Ill. App. 3d 885, 889 (1984). The laborers who filed the mechanic‘s liens had no such ability to protect themselves from any lien that P&H did not pursue immediately and did not secure until June 2009. What the laborers did know and all that they could possibly know was that a valid construction loan was made to the current owners of the property which would fund the project they worked on to improve the property. The workers proceeded to improve the property as they were hired to do. It is hardly their fault that P&H did not secure a lien on the property before it was transferred from the original defendants in the specific performance case to P&H‘s former client, Summit and then to other bona fide, new owners and, more importantly, never recorded the judgment after it was entered by the law division judge in 2009. Further, that judgment was only against Summit, which no longer had any interest in the real property at issue when the judgment was entered in 2009.
¶ 36 The object of the
” ‘By serving the notice claiming a lien the attorney in effect becomes a joint claimant with his client *** in the proceeds of any settlement that may be made by his client, and to the extent of the amount of his fee has the same interest in such proceeds *** as his client and is entitled to his pro rata share thereof.’ ” People v. Philip Morris, Inc., 198 Ill. 2d 87, 97-98 (2001) (quoting Baker v. Baker, 258 Ill. 418, 421 (1913)).
¶ 37 P&H‘s arguments go even further, as its attempt to impose its January 17, 2006 lien on unsuspecting third parties who had no involvement in the specific
¶ 38 Additionally, neither Summit nor any of the three original defendants from the specific performance action were the owners of the property at the time the judgment was secured on June 9, 2009 before Judge Taylor. There is no legal basis to have the current owners of the property step into the shoes of the prior owner and require them to bеar the burden of the attorney fees Summit incurred in the 2004-05 specific performance action. P&H argues that the new owners of the property additionally obtained the benefit of P&H‘s legal services because its legal services in acquiring the property for Summit allowed the new owners to purchase it from Summit and others. This analysis falls flat. Such a result would approve an unjust enrichment for Summit, who originally incurred the attorney fee debt to P&H. In any case involving property, such a decision would approve a client‘s action in not paying his attorney fees for legal services incurred during a transaction involving real property and, under a theory of subrogation, transfer the nonpaying client‘s attorney fees to a new owner and a party who was never a client of P&H and, more importantly, was never a party against whom its client had a claim аnd had no lien notice from P&H. If proper notice of a statutory attorney fees lien had been given to the original three defendants in the specific performance action, those defendants would have shared in Summit‘s burden of ensuring P&H was paid. This is what the
¶ 39 We also observe that the attorney fees lien which was sent by P&H suffers from several fatal defects. First, notice was not sent before or during the pendency of the specific performance suit as contemplated by the prospective language used in the Act. Secondly, notice of P&H‘s lien was sent well after the case was resolved and the judgment became final. Silberstein v. Joos, 59 Ill. App. 3d 293, 295 (1978) (notice must be sent before judgment is satisfied by defendants); Rendtorff v. Lowman, 184 Ill. App. 391 (1913) (same); see also Catherwood v. Morris, 360 Ill. 473, 480 (1935). Third, there is no evidence that P&H‘s notice was sent while it was still acting as Summit‘s attorney, as is required. Rhoades v. Norfolk & Western Ry. Co., 78 Ill. 2d 217 (1979); Anderson v. Anchor Organization for Health Maintenance, 274 Ill. App. 3d 1001 (1995); Paul v. Neely, 155 Ill. App. 3d 241 (1987); Department of Public Works v. Exchange National Bank, 93 Ill. App. 3d 390 (1981). Fourth, notice was not sent to all defendants previously named in the specific performance action. In re Midway Industrial Contractors, Inc., 272 B.R. 651, 669 (Bankr. N.D. Ill. 2001); Cazalet v. Cazalet, 322 Ill. App. 105 (1944); Reynolds v. Alton, Granite & St. Louis Traction Co., 211 Ill. App. 158, 160-61 (1918). Additionally, notice of P&H‘s lien was never recorded against the property. Fifth, at the time P&H instituted their attorney fees litigation before the law division court, the property P&H had recovered for Summit in the specific performance action had already been transferred to new owners and was no longer owned or controlled by the named defendants in the specific performance action or by P&H‘s former client, Summit. It appears the property continued to be transferred, subdivided and encumbered during the litigation, as well. Sixth, no attempt was made by P&H to name and serve the current owners or interested parties of the property it wished to encumber with a lien of its lawsuit before the law division court. All of these defenses to the lien P&H was asserting in the lawsuit before the law division judge could have been raised by parties with an interest in the property had they been properly joined by P&H in the action.
¶ 40 P&H attempted to excuse its belated attorney fees lien when it alleged in its lawsuit before Judge Taylor that it never filed the requisite lien notice during the specific performance action because it relied on promises made by its former client, Summit, that it would pay P&H all of its attorney fees.3 P&H, in reliance on Summit‘s promises, also did not attempt to enforce any lien against the property it secured for its former client, Summit, and admittedly took no action to prevent Summit from conveying the property to a new owner in January 2006.
¶ 41 The legislature, by utilizing the prospective language in the Act, gave attorneys a lien in any proceeds or property they may recover in any lawsuit or settlement. The Act clearly is meant to grant attorneys a right to share in any recovery they secure for their client in order for their attorney fees to be paid. However, this statutory right does not mean the attorneys can pick and choose when to give notice of the lien, to whom they may give notice and how and when to exercise enforcement of their lien. Attorneys must exercise their lien rights by notifying all the parties against whom their client may have a claim of their assertion while they are still acting as the attorney for their client and prior to the final judgment being satisfied in the case for which they are seeking legal fees.
¶ 42 Our supreme court has clearly stated that “an attorney‘s lien under the Act ‘is a lien upon the proceeds, only, of the litigation or settlement of the claim’ ” and “the attorney‘s only interest is in the proceeds of the litigation or settlement.” People v. Philip Morris, Inc., 198 Ill. 2d 87, 97 (2001) (quoting Baker v. Baker, 258 Ill. 418, 421 (1913)); see Countrywide Mutual Insurance Co. v. State Farm Mutual Automobile Insurance Co., 339 Ill. App. 3d 78, 83 (2003). Only after the attorney‘s lien is properly perfected, “upon petition ‘any court of compеtent jurisdiction’ may adjudicate the lien. [Citation.] This includes the circuit court that heard the matter [citation], or the circuit court that has jurisdiction over the money recovered [citation].” People v. Philip Morris, Inc., 198 Ill. 2d 87, 95 (2001). The law division court was neither the original court that heard the
¶ 43 Because P&H never served any lien notice upon all of the defendants in the specific performance case before any recovery was made by P&H on behalf of Summit, it never secured a statutory interest in any recovery of property it made on Summit‘s behalf with regard to the specific performance lawsuit. A proper statutory lien was never created by P&H to protect its attorney fees under the Act which would have enabled P&H to enforce it against the named defendants in the specific performance case. It is impossible for the defendants in the specific performance case to have complied with a statutory attorney fees lien when they were never made aware of it by P&H prior to final judgment.
¶ 44 The defendants in the specific performance case conveyed the property to P&H‘s client pursuant to the final judgment via two separate conveyances on August 22, 2005 and January 12, 2006. Only one of the three defendants in the specific performance case was given notice that P&H was asserting a statutory lien for its attorney fees and only by letter dated January 17, 2006, after the two conveyances took place. The notice was first provided by letter dated January 17, 2006, well after the judgment became final and after its former client, Summit, was conveyed the property and reconveyed it to Main Street Village West. Additionally, final judgment in the specific performance case was entered and there is no evidence that P&H was Summit‘s attorney at the time it gave notice to one of the three defendants in the specific performance action.
¶ 45 The best P&H can do at this point is attempt to recover its attorney fees from its client, Summit. It has already secured a money judgment against Summit for the full amount of its attorney fees. There is no evidence that P&H pursued enforcement of its judgment via a citation to discover assets or to record its judgment against its client. Instead, P&H seeks payment of its attorney fees from third parties who were never involved in the underlying litigation and also had no notice of any statutory attorney fees lien at the time they became involved with the property. Most importаntly, none of the entities named by P&H involved in the mechanic‘s lien case was ever defined as a “party against whom [P&H‘s] client [Summit] may have such suits, claims, or causes of actions” as defined in the
¶ 46 This case highlights one of the risks involved in the practice of law. Sometimes clients for whom attorneys have performed stellar legal services do not pay their bills. To remedy this problem, our legislature created a statutory method for attorneys to protect their interest in getting paid. However, the legislature did not allow this mechanism to infringe on the rights of innocent third parties and force them to pay the attorney fees that an attorney did not recover from his client. Illinois adheres to the rule that generally denies any prevailing party, like Summit in the specific performance action, to recover attorney fees from the defendant (Brundidge v. Glendale Federal Bank, F.S.B., 168 Ill. 2d 235, 237 (1995)), let alone innocent third parties. What the
III. CONCLUSION
¶ 48 For all the foregoing reasons, the circuit court ruling dismissing P&H‘s foreclosure action is affirmed.
¶ 49 Affirmed.