*1 Jаnuary 10, Argued Appeals judgment and submitted decision of the Court of and reversed; of the circuit court case remanded to the circuit court for further proceedings May 9, 1996
STEELMAN-DUFF, INC.,
a corporation, Respondent Review, on
v. STATE OF OREGON, and acting by through its DEPARTMENT OF TRANSPORTATION/ OREGON STATE HIGHWAY DIVISION,
Defendant, J.C. COMPTON CONTRACTOR, INC.,
an Oregon corporation, Petitioner on Review.
(CC S42501) 92C12356; A80684; CA SC
Keith M. A. and Eric A. Guy Grasberger, Rives, Portland, filed a brief on behalf of amicus of Stoel curiae of the Associated General Oregon-Columbia Chapter America, Contractors of Inc.
GRABER, J. J., Fadeley filed a which
Durham, concurring opinion JJ., joined. and Unis
GRABER, J. interрretation This case involves that, of held in ORS Court Appeals provision Contractor, Inc. (Comp J.C. Compton under ORS fees in this action. Steel- not entitled to ton), 545, 135 Or Inc. v. Dept. Transportation, App man-Duff, (1995). follow, the reasons that we P2d 752 For reverse. 279.067 provides:
“(1) any Any bidder affected or trade associ- acting on behalf of a mem- ation of construction contractors protect ber of the association to interests common to may construction contractor members commence a suit in county circuit court for the in are located the which principal public contracting agency, offices of the for the with, purpose requiring compliance prevention of vio- of, 279.063, lations ORS 279.011 to or to determine of ORS applicability 279.011 to 279.063 to matters or deci- agency. sions of the
“(2) may The court equitable order such relief as it con- appropriate siders in the circumstances. In addition to or in any relief, equitable may lieu of the court award an any aggrieved damages bidder suffered the bidder as a result of violations of ORS 279.011 to 279.063 for the preparing submitting reasonable cost of A deci- bid. contracting agency sion of shall not be voided if equitable other relief is avаilable.
“(3) If the public agency defending is successful in its against potential actions claims of violation or violation of 279.063, ORS 279.011 to then the court award to the any aggrieved public agency damages suffered as a result of the suit. “(4) payment The court order reasonable attor-
ney appeal and costs on trial and successful *4 added.) under (Emphasis suit this section.” 279.063, statute, ORS 279.011 to referred to in the foregoing con- relate to for bids and bidders in the requirements public tracting process.
Steelman-Duff was an affected bidder that 279.067(1). brought this action under ORS Steelman-Duff Oregon Department claimed Transportation (ODOT) requirements pub- had failed to follow certain of the contracting improperly rejected lic law and had its bid on a project being nonresponsive. construction Assum- ing responsive, that its bid was Steelman-Duff was the lowest project. Compton bidder on that Because was the next lowest bidder, and ODOT had announced its intention to award the Compton, contract Steelman-Duff named J.C. Company, as well as ODOT, as a defendant.1 The relief sought was
“a determination that [Steelman-Duff] is the lowest respon- responsive sible bidder and is entitled to award of the sub- ject procurement, appropriate injunctive with relief so requiring, together with determination in [Stеel- favor of against recovery [ODOT] and [Steelman- man-Duffl Duff’s] attorney’s fees and costs incurred herein.” Compton then filed answer, defenses, affirmative counterclaims, and cross-claims. In the first counterclaim Compton alleged and cross-claim, it was the lowest responsible, responsive bidder and that ODOT remained obligated through to follow on its announced intention to Compton. award the contract to The relief that sought “[t]he was that court should honor the decision of [ODOT] Project Compton to award the contract for and [ODOT] Compton.” should direct to award the contract to sought attorney also fees and costs from Steelman- pursuant Duff to ORS Compton sought
In its second counterclaim, dam- ages delay by filing from Steelman-Duff for caused of the Compton Company It was later discovered that J.C. were not entity, although they companies. the same Compton Company, were related J.C. Compton, defendant, although Compton entity not had been named aas was the subject project. that had submitted the second-lowest bid on the Steelman-Duff dis Compton Company A(1), missed J.C. pro from the action under ORCP 54 which part: vides (a) plaintiff by “[A]n action be dismissed without order of court
filing serving a notice of dismissal with the court and such notice on the defendant.” substituting Compton “[plursuant The trial court entered an order as a defendant attorneys agreement parties.” for the
225 costs fees and attorney sought also court action. 20.105(1),2 and ORCP 17.3 279.067(4), to ORS pursuant for the request reiterated counterclaim, Compton third In its costs. fees and attorney the affirmative filed a reply
Steelman-Duff Steelman- things, other Among counterclaims. and defenses be awarded fees should attorney Duff denied Compton. determined The trial court tried.
The case then was ODOT relief, because not entitled to that Steelman-Duff the time of At as nonresponsive. its bid rejected had properly The contract. subject not awarded yet had trial, ODOT 67 B4 on Steel- under ORCP a judgment trial court entered costs to both awarded judgment claims. The man-Duffs for counterclaim that Compton’s and provided defendants 2 20.105(1) (1993) part: provided in * * * * * * action, any proceeding in a circuit court suit or other “In civil attorney discretion, appropriate in the may, its award reasonable court circumstances * ** asserted, party against if that is party a claim is whom by party asserting paid proceeding to be prevailing in the and a claim * * disobeyed willfully by a *, upon finding that the a the court solely faith, wantonly oppressive reasons.” or for acted in bad order or court 21.105(1) 1995, 618, § ch 2. legislature in 1995. Or Laws amended ORS The 140(1) 618, 1995, ch apply § Or Laws do not to this case. See amendments Those pro- apply and to “actions to ORS (providing that the amendments 9,1995). September ceedings commenced on or after” that are 3 part: provides in ORCP 17 by party represented an Every paper of a pleading, motion and other “A. attorney who is an active attorney signed of record be at least one shall Oregon State Bar.” member of the motion, paper lawyer pleading, a provides that a who files further ORCP 17 sanctions, including attorney circumstances, subject fees. be, under certain 1995, 618, Oregon § ch 4. 17 in 1995. Or Laws amended ORCP 140(2), 618, amendments to ORCP chapter that the section Laws before, actions, after the effective date on or “apply whether commenced to all analysis today, pertinent however. to our of ORCP 17 is not The text this act.” to ORCP 17 deciding those amendments read whether Nothing should be as herein retroactively. apply part: provides in 67 B ORCP action, presented in an whether than one claim for relief more “When claim, multiple par- counterclaim, сross-claim, or when claim, or third a entry judgment as to one involved, of a final direct the the court ties are only upon express parties determi- an all of the claims or fewer than more but express for delay upon direction just and is no reason for that there nation entry judgment.” proceeding. fees would later be resolved in a That judgment appealed. was not subject
Thereafter, ODOT awarded the contract to Compton. voluntarily dismissed its first counter- leaving claim only counterclaim, and cross-claim and its second request its for costs. petition filed a then fees. The ground petition
trial court denied the on the party” “was not successful in a suit supplemental judgment deny- under ORS 279.067. The court entered a
ing Compton’s request supplemental for fees. aIn second *6 judgment, Compton’s the trial court denied statement of ground untimely. costs on the that was Compton appealed supplemental judgments, both Appeals and the Court affirmed Steelman-Duff, both. 135 App Appeals Or 550. at The Court of held trial that the court properly Compton’s request attorney fees, denied for because Compton only legal controversy [that “was not a to the 279.067(4)] contemplates ORS between an affected public contracting agency.” App a bidder and 135 at Or 549. respect Appeals costs, With to the Court of held that the trial properly request, Compton’s court denied that because cost untimely. bill was Id. at 549-50.
Compton sought only respect sup- review with to the plemental judgment request attorney that denied fees, its and this court review. allowed
Attorney statutory fees are in a recoverable action provides. when, and to the extent that, the statute so Investors, Cash v. Co., 88, 91, Flow Inc. Union Oil 318 Or 862 (1993). Compton P2d 501 The statute that asserts 270.067(4). attorney basis for its claim for fees is ORS presented interpret requires issue in this case thus us to ORS 270.067(4) to determine whether the intended to attornеy litigant Comp authorize award of in position. v. Industries, ton’s See PGE Bureau Labor and (1993) (explaining 317 P2d 610-12, Or method statutory analysis). 279.067(4) provides
ORS that a order court “toa fees and costs successful in a suit added.) argues Compton (Emphasis this section.” under it is “a successful party’ is used in ORS as that term was, 279.067(4). Compton fact, a that it reasons brought by that, because Steel- Steelman-Duff the action Compton was and because that action man-Duff lost “successful.” thereafter, was the contract awarded Accordingly, it is entitled to concludes, fees. “suc- was not counters
Steelman-Duff “brought respect under” to the action with cessful” required in order to be enti- 279.067, as “brought Any the stat- under” of fees. action tled to an award dispute between limited to the Steelman-Duff, is ute, reasons aggrieved Steelman-Duff —and case, this bidder—in respect contracting agency case, this ODOT—with —in Applying aggrieved that definition bidder’s bid. to the dispute statutorily us, the facts before Steelman- defined directly argues and, not involved Duff have “successful.” could not been thus, arguments of both cases, is true in close As often Certainly, plausible. the text of ORS sides are begin leg- Compton’sargument. support with, To lends the defi- article, “a,” rather than the indefinite islature used parties оbtain “the,” when it stated which article, nite addition, In the word under ORS arguably thereby “party’ permitting statute, at least defined in the is not *7 party proceeding any entity a that became attorney eligible brought fees, for the statute to be under original party could have been an that was or or not whether bringing plaintiff the action party Plaintiff, or defendant. And, as a defendant. statute, named the under adjec- finally, at least when that “successful,” ordinary the sense. Because of its common and used in tive is accepted litigation, Compton’s and it bid was the of outcome project. profit to from the was able parts of the text and con- hand, other On the other 279.067(4) reading. support Steelman-Duffs text of ORS may be awarded that fees statute That * * * brought only under this in a suit to “a successful added.) section,” brought By referring (Emphasis “a suit to 279.067(4) under this section” (emphasis added), ORS limits an of award to the form of specific action that the remainder of the section authorizes someone bring. 279.067(1) ORS delineates the that as a may, matter of an action ORS right, bring under “[a]ny bidder 279.067 — affected” or adversely “any trade association of construction a of contractors on behalf of member the acting association”— whom the against аction be brought public —“the contracting Thus, the statute agency.” may be read plausibly an award of authorizing only to a party spe- identified cifically elsewhere the text: either to an bidder a aggrieved trade association the hand, on one or to the contracting governmental on the other. agency * * * Additionally, by the term using in a “successful suit under this added), section” instead (emphasis 279.067(4) the more common term “prevailing,” ORS could be read limit the award of attorney fees to a achieves success as defined in the remainder of the section. 279.067(1) allows affected adversely bidder trade аssociation to sue a public for the agency, purpose requir- the ing comply with the agency public law or of contracting the from preventing agency the violating public contracting law. Under ORS the example, public agency is the The statute be defending party. thus read to suggest that, because of the nature the claim, only the adversely affected or the be agency bidder can “successful” in the action the statute That if a contemplates. is, court holds that the agency has violated or potentially law, violated is successful. If a court plaintiff holds that the public has not viоlated or agency potentially law, violated the is successful. Under agency rationale, and with respect to the kind of controversy 279.067, contemplated by or the be a agency will “successful” plaintiff party. course,
Of the latter of the text and context reading of ORS would defeat Compton’s argument. Comp- ton is not one of the identified in two-sided action parties under ORS 279.067. not a “bidder action, affected” as that term is used in ORS agency’s 279.067, because did not that ODOT acted allege *8 the con- to award improperly its intention it announced when fully supported Compton that deci- Compton. Indeed, tract to “public Similarly, Compton con- a by is neither ODOT. sion tracting agency” of construction “trade association nor a acting the association” a member of on behalf of contractors Compton does not 279.067; used in ORS terms are as those contend otherwise. argues Compton should that 279.067
Instead,
only
contemplate
here,
action
a two-sided
to
not be read
added)
“necessary party” (emphasis
Compton was a
because
under ORS
Steelman-Duff
to the action
Compton
meaning
29 A.5
of ORCP
within
“necessary party,”
a sub
it had
a
because
that it was
asserts
If
of the action.
in the outcome
interest
financial
stantial
Compton
prevailed,
not receive
would
Steelman-Duff
a
that, because was
therefore concludes
contract.
“necessary party,”
“a
loss makes
Steelman-Duffs
party’
ORS 279.067.
in the action under
successful
“necessary
not a
that
was
We conclude
present
disa-
party’
gree
We
action under
in the
Compton’s argument
premise
for three rea-
with
action under
no claim in the
made
First, Steelman-Duff
sons.
Compton’s
respecting
conduct. Steelman-Duff
ORS 279.067
awarding
prevent
to
sought
the contract
ODOT from
allegedly
erred in its con-
had
else, because ODOT
somеone
nonresponsive.
was
low bid
that Steelman-Duffs
clusion
part Compton
wrongdoing
alleged
on the
no
Steelman-Duff
Compton.
sought
relief from
no affirmative
why Compton
not a neces-
was
reason
The second
had
sary
is that ODOT
action
to the ORS 279.067
Compton had no
trial.
the time of
contract at
awarded no
right
protect.
existing
contractual
part:
A
ORCP 29
joined
process
as a
in the
subject
shall be
person
to service of
“A
who is
(1)
among
complete
cannot be accorded
person’s
relief
in that
absence
action if
(2)
relating to the sub-
already
person
an interest
partiеs,
claims
those
person’s
disposition in that
absence
ject
is so situated that
the action and
(a)
ability
protect
person’s
impair
impede
practical
matter
as a
interest!.]”
why Compton
necessary
The third reason
not a
to the action relates to the first two.
lacked
controversy brought by
direct interest in the
outcome
*9
Steelman-Duff.
did have an
in
interest
the indirect
litigation
of
effects
the outcome of the
between Steelman-
Compton’s
Duff and
However,
ODOT.
in
interest
the indirect
litigation
of
effects
the outcome of the
is not the same as an
controversy
Wright
interest in the
ments,
Seе
v.
itself.
Hazen Invest-
(1982) (holding
Or
Inc.,
259, 261-64,
In
was not a
279.067(1),
though
party
the action under ORS
it
even
was a
litigation.
inquiry,
the
That
however,
does not end our
necessary
party,
because, even if was not a
party
proceeding
to the
had
“a”
been
under the
availability
to the
of
statute.6 We therefore turn
issue of
by fees, under ORS
named
necessary party.
plaintiff who was not a
summary,
foregoing
As
be seen
from
the text
controversy
context
do not
of ORS
resolve
this case in
of either
in
favor
Steelman-Duff. The
case,
procedural posture
In the
we are not
on to
this
called
decide whether
Compton appropriately
litigation;
given
was made a
to the
that is a
here.
plausible.
It is not
reading given
remains
that statute
each
analysis
whether
first-level
clear from our
nonnecessary party
any
apply to
meant for that subsection
ORS 279.067 or
initiated under
in an action
involved
provision applies
to the
the fee
whether, instead,
and the
under ORS 279.067
initiated an action
proposed
application
agency
contracting
that defends its
Accordingly,
public contracting
application
we
law.
history surrounding
passage
legislative
turn to the
PGE,
“Any bidder
county in
are located the
circuit court for the
which
board or the
offices of the local contract review
principal
local
pliance
com-
agency,
purpose
requiring
for the
government
*10
of,
279.011 to
with,
prevention
or
of violations ORS
agency.
of the board or
The
279.061 to matters or decisions
court
appro-
relief
it considers
may
equitable
order such
A
of the local contract
in the circumstances.
decision
priate
review
voided if other
shall not be
government agency
board or the local
relief is available. The court
equitable
attorney
reasonable
and costs to suc-
payment
order
of
fees
(Empha-
under this section.”
in a suit
cessful
added.)7
sis
by
proposed
the Executive
Bill 190 was
Senate
Department
to the Senаte Committee on
and was referred
Tape Recording, Senate
and Elections.
Local Government
Elections,
190,
SB
Government and
Committee on Local
(statement
Gary
Tape
A at 16
of
9, 1983,
30, Side
March
Esgate,
Administrator).
purpose
of the bill
The
Committee
present
in
Laws
legislature
to its
form 1990. Or
amended ORS 279.067
The
Sess).
in 1990
1990,
6,
(Spec
made those amendments
When the
§
ch
(3)
279.067(1);
provisions, three additional
modified ORS
added
it:
279.067(4);
subsection,
and
(5);
attorney
provision
own
fees
to its
& moved the
attorney
legisla
provision. The
phrase
appeal” to that
fees
“on trial and
added the
provision.
wording
Accord
change
оperative
not
the
ture did
history surrounding
passage
legislative history
the
of SB
ingly,
pertinent
is the
the
pertinent.
190,
1983;
history surrounding
is not
See
the 1990 amendments
in
the
(“views
(1984)
WPPSS,
550, 561,
legislators have
296 Or
“The bill thаt requires is before a local oversight func- not, adequate tion. Whether that is whether you or not choice for point needed that is a I you make. out to * * * you if are concerned about compliance lots there’s ways to that. of alternative that’s achieve There’s of lots alternatives. The
presented you Senate in Bill 190 is a board things. local to review those There are other alterna- you explore you’re tives that can if interested in them. One ways the most to require compliance with state of mandated effective is to programs provide exam- fees for in law ple successfully suits that challenge local officials’ compliance. some get executing You self by enforcement association outcome. people actually bar the and who are interested And, can you personal I tell experience, from things one of that gets local officials’ attention is they prospect pay they the Senate if Tape Recording, lose.” Committee Local Elections, on Government and SB (statement 9,1983, Tape 30, March Side A at 165-82 Justice) added). Long, Department (emphasis Stan Senator Gardner about questioned Long the possi- tо the bill. Id. at bility adding provision The following 295-303. exchange occurred between Senator Gardner Long: “[Long:] you’re compliance If worried about with state * * *
statutes, way this bill that problem addresses tois say oversight there will be a local to take care of that. I was *11 merely you pointing out to that that anwas alternative that you, selected present was and there are other alterna- staffed tives weren’t and one them is private enforcement. * * * as,
“[Sen. Or a combination. if Gardner:] Such remedy, exhausted this then can you’ve you go to circuit court, try and to enforce those you standards there. And if * * * win, you attorney fees get and costs. Now that gives road, at the you you’ve [sic] arbitration end of the but got to front got in there. You’ve getting hazards to initial some bidder, presume. I You, disappointed of it. the costs * ** are recoverable be these I assume it would fees jurisdiction? right? Is that the local against That’s an alternative. “[Long:] they be recoverable Who else would Gardner:] “[Sen. from? * * * pre- traditional I would have in mind a
“[Long:] approach. kind of vailing party would be jurisdiction And the local Gardner:] “[Sen. * * *
the defendant and not a legged, that a two And I would make “[Long: * * * so that provision legged one * * * way Gardner:] Either “[Sen.
“[Long:] government You bet. Give the local its fees if if up proceed That will sober some of the incentives to wins. you’re right. you didn’t think Well, bill, go Gardner:] if we do the route of
“[Sen. something we want to on there to make put be other incentives for adherence to the sure that there’s some added). Id. at 303-40 (emphasis statute?” exchange surprisingly, foregoing shows, not that Senator The Long provision and envisioned an Gardner aggrieved govern- would allow fees to either the bidder or entity awarding But it also shows that mental the contract.8 person thought held a view con- of, neither even much less cerning, possibility that a third would find itself proceeding. in such a enmeshed exchange, committee discussed other After that meeting, spoke aspects At that no other witness of the bill. topic adding provision, and the favor by any the committee. further member of not discussed meeting on Local a later of the Senate Committee At to SB 190 Elections, various amendments Government Tape Recording, proposed. on Local Senate Committee were provision associ original no trade version of the statute contained bring action. ation to such an *12 Tape Elections, 30, 1983, 190, 46, Government Side B at 35. At the March SB request of the committee, Penhollow, Bill representative Oregon Counties, Association of Tape explained Recording, the amendments. Senate Com mittee on Local Government and Elections, 190, SB March (state Tape Tape 30, 1983, 47, 122, Side A at BSide at 404 Penhollow). Tape Recording, ment of Bill See also Senate on Local Government and Elections, 190, Committee SB (statement Tape 30, 1983, 47, March Side A at 119 of Sen. Heard) (“[t]he committee will recall that the chair asked Bill questions to chair a subcommittee to deal with some ofthe on bill”). this Penhollow stated: 12, 13 14, “Finally, question attorney fees, on linеs & the in, this committee was which interested that: ‘The may order the payment attorney court of reasonable fees on appeal trial or on to a successful in a suit attorney under this section.’ So that fees would go both ways.” Senate Tape Recording, Committee on Local Gov Elections, 190, 30, 1983, 46, ernment and SB March Tape BSide at 397-404. quoted adopted by
The sentence was verbatim the committee operative phrase Tape and became the at issue in this case. Recording, Senate Committee on Local Government and Tape Elections, 47, SB Side B at 58. The bill then was pаssed by the House, without further discussion of the attor- ney provision. fees legislative history surrounding passage
The the 297.067(4) attorney provision fees now contained in ORS clearly legislators establishes that the and witnesses who provision litigation only discussed the tional, foresaw cast in tradi- attorney terms and intended that two-sided fees be ways.” provision originally available “both envisioned fees Senator would have awarded fees Gardner aggrieved successfully challenged to an bidder who public contracting agency’s compliance with the con- tracting Long suggested provision that the fee law. become a two-way agreed. street, and Gardner Penhollow then drafted provision suggestion. to accommodate
Unfortunately, history foregoing nothing adds knowledge legislature intended, our of what the would have party’s presence possibility had the of a third in the action called thought its attention. It seems clear us that been no one possibility, even about that much less made a con- policy respect text, scious choice with to it. Our review of the legislative history context, and of ORS thus does not reveal whether intended to make the statutory provided provision available to non-necessary party “[a]ny a affected,” acting that is not bidder
“any trade of association construction contractors protect on behalf of a of the member association interests common to members,” construction contractor or public contracting agency” “the as those terms are used in 297.067(1). ORS scrutiny neither first
Because of the two levels of seek, the answer that we we are left to utilize vari- statutory ous maxims of construction to the resolve issue in (discussing methodology). PGE, this case. See 317 Or 612 at statutory analysis help. Even this of level is of little None of resolving dispute, leaving the usual mаxims aids us in the us with no but recourse to use the maxim this that court has developed just such situations: When all else fails, this attempt court will to decide the case in accordance with what legislature it believes the would have done, had considered question. (referring specifically the at PGE, See 617 Or citing Security to that maxim and Luebke, State Bank v. (1987), Or 418, 423, 737 P2d 586 as illustrative of its application). here,
Even the issue is much in doubt. Rationales ways easily posed. can both be conclude, however,
We that the most likely would have intended be fees to awarded in identify any this situation. We so conclude because we cannot legislature, having reason that the once determined to use availability encourage of the as a fees “stick” to compliance requirements public bidding ensure with the of deny attorney categorically any law, the party would wish to long proceedings, to such as had a so that stake in process, outcome, the contributed to “successful,” the and was ordinarily term is understood. We that the hold attor- 297.067(4) ney provision permits in an award of any party brought pursuant proceeding fees to is 297.067, whether not that one of kinds to ORS contrary specifically in The enumerated that statute.9 conclu- Appeals of and of the circuit court sions of Court were incorrect. Appeals judg-
The of the and the decision Court The court are reversed. case is remanded ment of circuit proceedings. circuit court for further to the concurring. DURHAM, J., agree majority’s petitioner I with the conclusion that brought in a section,” “successful suit under this is a my meaning However, view, of ORS within requires exposition ambiguity plausible in the no statute legislative history maxims resort to court-created its legislature’s probable to divine the intention. construction majority concludes is ambiguous respects. phrase “a in two The first is the suit brought disagree. No under this section.” I reasonable doubt that this action is a suit under ORS 279.067. exists Neither the Appeals parties suggests nor Court of major- meaning phrase disputed or unclear. The the ity’s *14 ambiguity phrase that is effort discover unpersuasive. according ambiguity, to the
The second source of majority, prevailing, is term However, “successful.” any defini- was a “successful” under familiar majority apparently agrees with that of that term. The tion conclusion, eventually, holds, because “ ordinarily 323 Or as that term is understood.” at ‘successful’ 235-36. key context, their make the terms,
The statute’s
interpretive
legislature’s
Therefore,
clear.
our
task
intention
history
legislative
complete
an examination of
is
without
legislative
secondary sources of
intent. Under our
other
9
fees,
require
do we
does not
an award of
nor
hold
We note
the statute
required
“may”
case. ORS
the court
that one is
in this
and,
so,
if
what
Those are issues for
award fees
is to decide
award is “reasonable.”
court on
the circuit
remand.
methodology,
proceed
“we
no further.” See
Forbes,
McIntire v.
(1996) (so holding);
426, 429,
322 Or
Fadeley join concurring and Unis, JJ., in this opinion.