Appeal by Kaleel Builders, Inc., from the following orders by
Judge Richard D. Boner in Mecklenburg County Superior Court filed
16 July 2002, dismissal of claims pursuant to N.C. Gen. Stat. § 1A-
1, Rule 12(b)(6) (2001) of the North Carolina Rules of Civil
Procedure against Bob's Heating and Air Conditioning Company, Inc.,
LW Corp., and Kent Ashby d/b/a Superior Exteriors; order filed 12
September 2002, dismissal of claims pursuant to N.C. Gen. Stat.
§ 1A-1, Rule 12(b)(6), against Lake Builders, Inc.; and order filed
19 September 2002, grant of summary judgment pursuant to N.C. Gen.
Stat. § 1A-1, Rule 56, for defendant Don Duffy, Architect. Heard
in the Court of Appeals 10 September 2003.
Jones, Hewson & Woolard, by Lawrence J. Goldman, for plaintiff
appellant.
McAngus, Goudelock & Courie, P.L.L.C., by Charles D. Cheney
and Jeffrey D. Keister, for Kent Ashby, d/b/a Superior
Exteriors defendant appellee.
Pharr & Boynton, P.L.L.C., by Mark D. Boynton, for Lake
Builders, Inc., defendant appellee.
Moreau, Marks & Gavigan, P.L.L.C., by Daniel C. Marks, for LW
Corp. defendant appellee.
Giordano, Gordon & Burns, P.L.L.C., by Marc R. Gordon, for
Bob's Heating & Air Conditioning Company, Inc., defendant
appellee.
Hamilton, Gaskins, Fay & Moon, P.L.L.C., by David B. Hamilton
and David G. Redding, for Don Duffy, Architect defendant
appellee.
McCULLOUGH, Judge.
This case arises out of a dispute between general contractor,
Kaleel Builders, Inc. (“plaintiff”), and various subcontractors and
an architect (when referred to collectively “defendants”). The
trial court dismissed the claims against subcontractors Kent Ashby,
d/b/a Superior Builders, Inc. (“Ashby”), Lake Builders, Inc. (“Lake
Builders”), LW Corp., and Bob's Heating & Air Conditioning
Company, Inc. (“Bob's Heating”), and granted summary judgment in
favor of architect, Don Duffy (“Mr. Duffy”).
The underlying facts of the case are as follows: Plaintiff
was hired by Pier Giorgio and Paula A. Andretta (“Andrettas”) to
construct a residence in Mecklenburg County, North Carolina.
During construction of the home, plaintiff entered into the
following agreements: with Ashby, to provide all labor and
materials for the application of the hard coat stucco exterior;
with Lake Builders, to perform framing on the residence; with LW
Corp., to provide all the labor and materials for the installation
of the roofing system to the residence; and with Bob's Heating, to
provide the design and all labor and materials for the
HVAC/mechanical installation to the residence. The Andrettas
contracted directly with Mr. Duffy to provide architectural
services on the residence.
In the fall of 1996, construction of the residence was halted.
The Andrettas filed a demand for arbitration against plaintiff forallegedly defective construction including the work of the
defendant subcontractors and the design/construction supervision of
Mr. Duffy. Plaintiff's complaint, filed on 18 July 2001, seeking
indemnification or, in the alternative, contribution was dismissed
as to the subcontractors on the basis that the action was not
commenced within the applicable period of limitations on the breach
of contract and breach of warranty claims, and failed to state a
cause of action on the negligence claims. Summary judgment on the
negligence claim was granted in favor of Mr. Duffy. We affirm the
lower court's order granting dismissal of the claims against the
subcontractors and summary judgment in favor of Mr. Duffy.
Dismissal of the Subcontractors
Plaintiff argues that dismissal of the claims against the
subcontractors was error as the trial court failed to recognize
plaintiff's theory of indemnity or, alternatively, contribution.
Defendants argue, and the trial court found, that the facts of this
case preclude the plaintiff's use of indemnification and
contribution as prayers for relief, and that the remaining claims
of breach of warranty and breach of contract are time barred by
N.C. Gen. Stat. § 1-52(1) (2001). Furthermore, defendant argues
all other allegations fail to state any remediable claims that
sound in tort. We agree with defendants' argument pursuant to the
reasoning herein.
Upon our review of the trial court's order granting a Rule
12(b)(6) dismissal, we read all allegations in the light most
favorable to plaintiff.
See Ford v. Peaches Entertainment Corp., 83 N.C. App. 155, 349 S.E.2d 82 (1986);
disc. review denied, 318
N.C. 694, 351 S.E.2d 746 (1987). However, a complaint is without
merit if:
(1) the complaint on its face reveals that no
law supports the plaintiffs' claim, (2) the
complaint on its face reveals the absence of
facts sufficient to make a good claim, or (3)
the complaint discloses some fact that
necessarily defeats the plaintiffs' claim.
Harrold v. Dowd, 149 N.C. App. 777, 780, 561 S.E.2d 914, 916
(2002)
. A statute of limitations defense is properly asserted in
a motion to dismiss under Rule 12(b)(6), and is proper grounds for
the trial court to find a complaint is without merit.
Horton v.
Carolina Medicorp,
Inc., 119 N.C. App. 777, 779, 460 S.E.2d 567,
568 (1995),
rev'd on other grounds, 344 N.C. 133, 472 S.E.2d 778
(1996).
I. Indemnification
[1] In its complaint, plaintiff argues that it is entitled to
indemnity for damages which may be awarded to the Andrettas in
pending arbitration against plaintiff. In determining whether
plaintiff has stated a claim of indemnity for which relief can be
granted, we first review a general summary of a party's right to
indemnity in North Carolina. Upon this review, we believe the trial
court properly dismissed plaintiff's claim of a right to indemnity.
In North Carolina, a party's rights to indemnity can rest on
three bases: (1) an express contract; (2) a contract implied-in-
fact; or (3) equitable concepts arising from the tort theory of
indemnity, often referred to as a contract implied-in-law.
See McDonald v. Scarboro, 91 N.C. App. 13, 370 S.E.2d 680,
disc. review
denied, 323 N.C. 476, 373 S.E.2d 864 (1988);
41 Am. Jur. 2d
Bases
for Indemnity § 2 (1995) at 348. While an indemnity clause
specifically set out in a contract as part of the bargained-for
exchange is clear under traditional contract principles, the two
variations of implied rights to indemnity discussed in North
Carolina cases require some background before applying them to the
instant case.
A right of indemnity implied-in-fact stems from the existence
of a binding contract between two parties that necessarily implies
the right. The implication is derived from the relationship between
the parties, circumstances of the parties' conduct, and that the
creation of the indemnitor/indemnitee relationship is derivative of
the contracting parties' intended agreement.
See McDonald, 91 N.C.
App. 13, 370 S.E.2d 680;
see also, Terry's Floor Fashions, Inc. v.
Georgia-Pacific Corp., 36 U.C.C. Rep. Serv. 2d (Callaghan) 680, at
*18 (E.D.N.C. 1998),
summary judgment granted, 39 U.C.C. Rep. Serv.
2d (1999). In
McDonald, defendant Scarboro broke his contract with
plaintiff McDonald to work for codefendant McCary, based on
McCary's oral promise to provide an attorney if Scarboro was sued
for breach of contract. In that case, this Court found there to be
sufficient evidence of an implied-in-fact contract for indemnity
when Scarboro testified at trial and in a deposition that McCary
had orally agreed to provide an attorney in the event he was sued
by plaintiff for breach of contract. Furthermore, Scarboro was an
employee of McCary, and the creation of the indemnitor/indemniteerelationship was at the essence of their intent to formulate their
contractual master-servant relationship.
While contractual indemnity implied-in-law is a rather
discrete legal fiction, North Carolina appellate courts have been
consistent as to the elements required which warrant a right of
indemnity on this theory. Specifically, the indemnity implied-in-
law arises from an underlying tort, where a passive tort-feasor
pays the judgment owed by an active tort-feasor to the injured
third party. The Supreme Court set this out clearly:
The old-time judges said that the duty imposed
by law upon the actively negligent tort-feasor
to reimburse the passively negligent
tort-feasor for the damages paid by him to the
victim of their joint tort was based on an
implied contract, meaning a contract implied
in law from the circumstance that the
passively negligent tort-feasor had discharged
an obligation for which the actively negligent
tort-feasor was primarily liable. And this is
all the courts mean today when they declare
that the right of the passively negligent
tort-feasor to indemnity from the actively
negligent tort-feasor rests upon an implied
contract. There is, of course, in such case no
contract implied in fact. This is necessarily
so because contracts implied in fact are true
contracts based on consent.
Hunsucker v. Chair Co., 237 N.C. 559, 563-64, 75 S.E.2d 768, 771
(1953) (citing
Queen v. DeHart, 209 N.C. 414, 184 S.E. 7 (1935));
Montgomery v. Lewis, 187 N.C. 577, 122 S.E. 374 (1924);
see also
Hayes v. Wilmington, 243 N.C. 525, 91 S.E.2d 673 (1956); and
Cox v.
Shaw, 263 N.C. 361, 139 S.E.2d 676 (1965).
A. Express Contract Plaintiff's complaint alleges no express contractual right,
neither written nor oral, of indemnity in the agreements between
plaintiff and subcontractors. We next read its claims liberally to
see if plaintiff sufficiently alleges an implied-in-fact or
implied-in-law right to indemnity.
B. Contract implied-in-fact
In its analysis of the contract implied-in-fact theory of
indemnity, the Eastern District of North Carolina, in an
unpublished order,
Terry's Floor Fashions, 36 U.C.C. Rep. Serv. 2d
(Callaghan) 680, at *18,
offers an instructive analysis of the
common law of indemnity in North Carolina. Additionally, in
American Alloy Steel, Inc. v. Armco, Inc., 777 S.W.2d 173, 175-76
(Tex. App. 1989), the Texas Court of Appeals held that Texas common
law indemnity cases in which there was no underlying tort,
recognized an implied-in-fact right of indemnification when a
surety or an agency relationship existed between the plaintiff and
defendant. Because that court found no such relationship, it
affirmed the lower court's grant of summary judgment. While we are
neither bound by, nor do we adopt, Texas Law or
Terry's Floor
Fashions interpretation thereof, we find the law of these cases
instructive.
In
American Alloy and
Terry's Floor Fashions, both courts held
that the plaintiffs in those cases were free to negotiate a
provision in their contracts to protect themselves from foreseeable
future liabilities, and that they had failed to do this.
SeeAmerican Alloy, 777 S.W.2d at 175, and
Terry's Floor Fashions, 36
U.C.C. Rep. Serv. 2d (Callaghan) 680, at *24 (E.D.N.C.).
When deciding whether a contract implied-in-fact existed
between plaintiff and subcontractors that would support a potential
right to indemnity under that theory, we look to their relationship
and its surrounding circumstances.
See McDonald, 91 N.C. App. 13,
370 S.E.2d 680. Unlike the facts in
McDonald, the party here
praying for indemnity is in neither a master-servant nor agency-
type relationship with the subcontractors. Also unlike
McDonald,
plaintiff has not alleged any circumstances tending to show the
existence of an indemnification agreement, either written or oral.
No matter how liberally we read plaintiff's complaint, we see
nothing suggesting more than a number of independent contractor
relationships with plaintiff. Furthermore, there is nothing in the
allegations that suggests establishing an indemnitor/indemnitee
relationship was at the essence or intent of the agreement between
plaintiff and the subcontractors.
While we refrain from adopting the limited Texas rule that an
implied-in-fact right to indemnity must stem from a surety or an
agency relationship, we hold that plaintiff's allegations in this
case do not allege a right to indemnification implied-in-fact in
North Carolina. Read liberally, plaintiff's complaint alleges
breach of contract and breach of warranty by a number of
independent subcontractors. For this Court to read a right of
indemnity implied-in-fact into such bald allegations would be to do
so in every general and subcontractor agreement, thus infringingupon this state's long standing and coveted principle of freedom of
contract.
C. Contract implied-in-law
At this point in our opinion, we preview what is set out in
greater detail below concerning plaintiff's allegations of
negligence by the subcontractors in performing their contractual
duties.
Finding no liberal reading of plaintiff's allegations from
which we can recognize a right to indemnity under the theory of
contract implied-in-law, we hold plaintiff has stated no
allegations in tort for which relief can be granted.
There exists in North Carolina a common law right to
indemnification for a passively negligent tort-feasor from an
actively negligent tort-feasor, for injuries caused to third
parties.
See Edwards v. Hamill, 262 N.C. 528, 138 S.E.2d 151
(1964).
This action for indemnity is usually brought by means of
a third party complaint, and is maintained in equity.
Teachy v.
Coble Dairies, Inc., 306 N.C. 324, 332, 293 S.E.2d 182, 187 (1982)
.
In
Edwards, our Supreme Court stated:
Primary and secondary liability between
defendants exists only when: (1) they are
jointly and severally liable to the plaintiff;
and (2) either (a) one has been passively
negligent but is exposed to liability through
the active negligence of the other or (b) one
alone has done the act which produced the
injury but the other is derivatively liable
for the negligence of the former.
Edwards, 262 N.C. at 531, 138 S.E.2d at 153 (citations omitted)
(emphasis added). For indemnification implied-in-law, more an
equitable remedy than an action in and of itself, North Carolinalaw requires there be an underlying injury sounding in tort. The
party seeking indemnity must have imputed or derivative liability
for the tortious conduct from which indemnity is sought. Plaintiff
has alleged nothing that this Court can recognize to make out such
a case in equity.
Reading plaintiff's alleged facts as true, they state the
following: construction on the Andrettas' house stopped in the fall
of 1996 due to indecision in construction matters; the Andrettas
later sought arbitration against plaintiff for alleged defective
construction; and the construction complained of includes the work
of defendant subcontractors. However, there is no
prima facie tort
case made out to allege negligence not otherwise covered by
contractual obligations between the parties.
On that basis alone,
without determining whether there is sufficient allegations in the
complaint of imputed or derivative liability, we hold that
plaintiff has not stated a claim for an equitable right under the
implied-in-law theory of indemnity.
II. Negligence and Contribution
[2] In its complaint, plaintiff alleges negligence as a cause
of action against each of the named subcontractors. Specifically,
the complaint alleges, per subcontractor, negligence in fulfilling
its duties and the quality of the services contracted for by
plaintiff. Pursuant to this claim in tort, plaintiff seeks
contribution.
Plaintiff's complaint acknowledges the contractual
relationships between the parties. In accord with the SupremeCourt's and our analysis in prior cases, we acknowledge no
negligence claim where all rights and remedies have been set forth
in the contractual relationship.
North Carolina case law on this issue is clear and long
standing. In a previous holding upon facts nearly identical to
those
sub judice, the Supreme Court stated the well-established
law: “Ordinarily, a breach of contract does not give rise to a tort
action by the promisee against the promisor.”
Ports Authority v.
Roofing Co., 294 N.C. 73, 81, 240 S.E.2d 345 (1978),
rejected in
part on other grounds, Trustees of Rowan Tech. v. Hammond Assoc.,
Inc., 313 N.C. 230, 242, 328 S.E.2d 274, 281 (1985).
Ports
Authority sets out four categorical exceptions to this rule, none
of which are applicable to the facts pled by plaintiff.
(See footnote 1)
See alsoSpillman v. American Homes, 108 N.C. App. 63, 65, 422 S.E.2d 740,
741-42 (1992), where this Court held:
[A] tort action does not lie against a party
to a contract who simply fails to properly
perform the terms of the contract, even if
that failure to properly perform was due to
the negligent or intentional conduct of that
party, when the injury resulting from the
breach is damage to the subject matter of the
contract. It is the law of contract and not
the law of negligence which defines the
obligations and remedies of the parties in
such a situation.
Id. (citations omitted).
Because plaintiff has alleged no cause of action in tort,
plaintiff's contribution theory of recovery fails as a matter of
law. The right of contribution in North Carolina is governed by
N.C. Gen. Stat. § 1B-1 (2001), part of the Uniform Contribution
Among Tort-Feasors Act (UCATA), stating:
Except as otherwise provided in this Article,
where two or more persons become jointly or
severally liable in tort for the same injury
to person or property or for the same wrongful
death, there is a right of contribution among
them even though judgment has not been
recovered against all or any of them.
Under this statute, there is no right to contribution from one who
is not a joint tort-feasor. Therefore, by clear language of the
statute, plaintiff is not entitled to contribution for a claim
sounding only in contract. See Holland v. Edgerton, 85 N.C. App.
567, 355 S.E.2d 514 (1987). Without a tort, there can be no tort-
feasor; and without a tort-feasor, there can be no right to
contribution under the UCATA. Thus, as a matter of law, plaintiff
states no claim that could entitle it to any future right tocontribution from defendant subcontractors and the trial court's
dismissal was proper.
III. Breach of Contract and Breach of Warranty
[3] Plaintiff's complaint alleges both breach of contract and
breach of warranty against subcontractors. Any claims from a
breach of contract are governed by N.C. Gen. Stat. § 1-52(1)
(2001), a three-year statute of limitations. A cause of action
based upon breach of a contract accrues on the date of the breach,
at which time the three years begin to run. Miller v. Randolph, 124
N.C. App. 779, 780, 478 S.E.2d 668, 670 (1996). The statute of
limitations for breach of warranty is also three years, accruing at
breach. Haywood Street Redevelopment Corp. v. Peterson Co., 120
N.C. App. 832, 836, 463 S.E.2d 564, 566 (1995), disc. review
denied, 342 N.C. 655, 467 S.E.2d 712 (1996).
Plaintiff alleges in its complaint that all construction
stopped in the fall of 1996. Any breach of contract or warranty by
subcontractors which arose out of its contract with plaintiff was
on or before that time. Plaintiff's complaint was not filed until
18 July 2001, nearly five years after any breach by the
subcontractors could have occurred and nearly two years after the
statute of limitations had run. Alternatively, to the extent
plaintiff could argue under the Uniform Commercial Code (“UCC”),
which it has not, the triggering date for the statute of
limitations for any goods or services provided by a subcontractor
is still in or before the fall of 1996. Because the governing
statute under the UCC is N.C. Gen. Stat. § 25-2-725, with anapplicable limitation period of four years, plaintiff's 18 July
2001 complaint is still time barred.
Therefore, after a liberal reading of the alleged facts of
plaintiff's complaint, we conclude that any breach of contract and
breach of warranty claim is barred by the statute of limitations.
Summary Judgment for the Architect
In review of the trial court's grant of summary judgment in
favor of the architect, Mr. Duffy, we review
de novo whether the
trial court properly concluded that Mr. Duffy showed, through
pleading and affidavits, “'that there is no genuine issue as to any
material fact and that any party is entitled to a judgment as a
matter of law.'”
Bruce-Terminix Co. v. Zurich Ins. Co, 130 N.C.
App. 729, 733, 504 S.E.2d 574, 577 (1998) (quoting N.C. Gen. Stat.
§ 1A-1, Rule 56(c) (2001)).
Plaintiff seeks indemnity, or in the alternative, contribution
from Mr. Duffy. Unlike the subcontractors, Mr. Duffy was in a
contractual relationship with the Andrettas. Therefore, the only
claim plaintiff may have, and the only claim sought against Mr.
Duffy, is in the tort of negligence. While we do not recognize a
claim in tort where an underlying contract governs the rights and
duties between parties,
see Ports Authority, 294 N.C. 73, 240
S.E.2d 345, this Court has recognized a cause of action in
negligence brought by a general contractor or subcontractor against
an architect seeking direct damages:
[W]e hold that an architect in the absence of
privity of contract may be sued by a general
contractor or the subcontractors working on aconstruction project for economic loss
foreseeably resulting from breach of an
architect's common law duty of due care in the
performance of his contract with the owner. It
is true that neither the general contractor
nor the subcontractors could maintain a cause
of action against the architects grounded on
negligent performance of the architects'
contract with New Hanover County.
Davidson and Jones, Inc. v. County of New Hanover, 41 N.C. App.
661, 667, 255 S.E.2d 580, 584,
cert. denied, 298 N.C. 295, 259
S.E.2d 911 (1979). In that case, we reversed the lower court's
grant of summary judgment.
The stipulated period when construction on the Andretta house
stopped was in the fall of 1996. The statute of limitations for
a claim in negligence is three years under N.C. Gen. Stat. § 1-
52(5) (2001), and plaintiff brought this action on 21 July 2001.
Plaintiff does not allege in theory or in fact, that discovery of
Mr. Duffy's alleged negligence was sometime after the stop date of
the construction. We therefore need not consider the potential
claim that a later discovery of the negligence tolled the statute,
preserving a direct claim for damages in negligence.
Plaintiff alleges that its claim in negligence survives the
statute of limitations because its theory of recovery is in either
indemnity or contribution. We find there to be no issue of fact
which would allow recovery under either of these theories, and for
the reasons below affirm the trial court's grant of summary
judgment.
I. Contribution [4] As discussed above in this opinion, contribution is a
statutory right of relief in North Carolina, governed by the
Uniform Contribution Among Tort-Feasors Act, N.C. Gen. Stat. § 1B-1
(2001). The right is applicable only between joint tort-feasors.
Roseboro Ford, Inc. v. Bass, 77 N.C. App. 363, 335 S.E.2d 214
(1985). Our Supreme Court has defined joint tort-feasors as
parties whose negligent or wrongful acts are united in time or
circumstance such that the two separate acts concur to cause a
single injury to a third party.
State Farm Mut. Auto Ins. Co. v.
Holland, 324 N.C. 466, 470, 380 S.E.2d 100, 103 (1989). Therefore,
in reading plaintiff's pleadings and supporting affidavits
liberally, we must find at least some issue of fact as to whether
plaintiff and Mr. Duffy jointly caused a tortious injury to the
Andrettas.
Mr. Duffy is in contractual privity with the Andrettas;
plaintiff is in contractual privity with the Andrettas. Therefore,
as to the subject matter of the contract and performance thereunder
in these two relationships, the contract governs, and we recognize
no injuries sounding in tort flowing from either Mr. Duffy or
plaintiff to the Andrettas. The contract provides the grounds for
relief.
See Ports Authority, 294 N.C. 73, 240 S.E.2d 345, and the
discussion above. The only negligence claim alleged here is the
discrete form of negligence flowing from an architect directly to
a general contractor which this Court recognized in
Davidson and
Jones, Inc. This direct action provides a form of relief when
contractual privity is otherwise lacking. Therefore, we find no issue of fact as to whether Mr. Duffy
and plaintiff are joint tort-feasors, and plaintiff therefore has
no statutory right to contribution from Mr. Duffy. There is only
one tort alleged and supported by the facts before us, that between
general contractor plaintiff and architect Mr. Duffy. This direct
action, however, is clearly barred by the statute of limitations.
Thus, the trial court properly granted summary judgment on the
issue of contribution.
II. Indemnification
[5] Applying our analysis as to the bases for indemnification
in North Carolina, we hold plaintiff has neither pled, alleged or
provided facts to create any issue of fact as to whether there is
an express contract or a contract implied-in-fact with Mr. Duffy as
there is no contractual privity between the two. Thus, those routes
to a right of indemnity have been foreclosed.
Plaintiff has alleged, and supported with good case law, a
discrete common law tort between a general contractor and an
architect specifically applicable where there is no contractual
relationship between the two.
See Davidson and Jones, Inc., 41 N.C.
App. 661, 255 S.E.2d 580. However, plaintiff has not alleged any
tort flowing to the Andrettas from either he or Mr. Duffy. North
Carolina recognizes an implied-in-law right to indemnity when a
passive party is made liable for an active party's tortious conduct
flowing to and injuring a third party.
Edwards, 262 N.C. at 531,
138 S.E.2d at 153. But again, as was made clear in our contribution
analysis above, there is only one tort recognized by our Courtwhich has been raised by plaintiff's factual allegations and that
tort flows
directly from an architect to a general contractor. Mr.
Duffy is accountable to the Andrettas in his contract with them, as
is plaintiff.
See Ports Authority, 294 N.C. 73, 240 S.E.2d 345.
Therefore, the parties do not fit the active-passive tort-feasor
framework required to support an equitable right to indemnity
implied-in-law as the Andrettas have no claim in tort against
either plaintiff or Mr. Duffy.
The only tortious conduct alleged does not even flow to the
Andrettas, but to plaintiff as a general contractor. The statute
of limitations, however, has run on this claim and plaintiff is
barred from relief.
Plaintiff had legally recognizable claims in contract against
the subcontractors, and in tort against Mr. Duffy. These were
direct claims, and it is undisputed that the three-year statute of
limitations has run on them. Plaintiff has failed to allege facts
or circumstances which would provide relief under the theories of
contribution or indemnity. Therefore, after reading the briefs,
the record, and all facts and allegations in the light most
favorable to plaintiff, we agree with the trial court's dismissal
of plaintiff's claims against the subcontractors, and grant of
summary judgment in favor of Mr. Duffy. We thus affirm.
Affirmed.
Judges TIMMONS-GOODSON and HUDSON concur.
Footnote: 1