SER The First State Bank v. Hon. F. Jane Hustead, Judge

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2015 Term
FILED
October 8, 2015
released at 3:00 p.m.
No. 15-0151 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

STATE OF WEST VIRGINIA EX REL.
THE FIRST STATE BANK,
Petitioner

HONORABLE F. JANE HUSTEAD,
JUDGE OF THE CIRCUIT COURT OF
CABELL COUNTY, WEST VIRGINIA,
AND JEFFREY B. POWERS,
Respondents

PETITION FOR WRIT OF PROHIBITION

WRIT DENIED

Submitted: September 15, 2015

Filed: October 8, 2015

Daniel T. Yon, Esq. Jennifer S. Wagner, Esq.
David D. Amsbary, Esq. Mountain State Justice, Inc.
Bailes, Craig & Yon, PLLC Clarksburg, West Virginia
Huntington, West Virginia Attorney for Respondent Powers
Attorneys for Petitioner

CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT

1. “‘A writ of prohibition will not issue to prevent a simple abuse of

discretion by a trial court. It will only issue where the trial court has no jurisdiction or

having such jurisdiction exceeds its legitimate powers. W.Va. Code 53-1-1.’ Syl. Pt. 2,

State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).” Syl. Pt. 1,

State ex rel. York v. W.Va. Office of Disciplinary Counsel, 231 W.Va. 183, 744 S.E.2d

293 (2013).

2. “‘A court, in the exercise of discretion given it by the remedial

provisions of Rule 60(b), W.Va. R.C.P., should recognize that the rule is to be liberally

construed for the purpose of accomplishing justice and that it was designed to facilitate

the desirable legal objective that cases are to be decided on the merits.’ Syl. Pt. 6, Toler v.

Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).” Syl. Pt. 10, Rose v. Thomas Mem’l

Hosp. Found., Inc., 208 W.Va. 406, 541 S.E.2d 1 (2000).

3. “A motion to vacate a judgment made pursuant to Rule 60(b),

W.Va.R.C.P., is addressed to the sound discretion of the court and the court’s ruling on

such motion will not be disturbed on appeal unless there is a showing of an abuse of such

discretion.” Syl. Pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).

i
Workman, Chief Justice:

Petitioner, The First State Bank (hereinafter the “Bank”), invokes this

Court’s original jurisdiction seeking a writ of prohibition. The Bank asks that we prevent

the Circuit Court of Cabell County, West Virginia, from enforcing its order granting

Respondent Jeffrey B. Powers’ motion for relief from judgment. After a careful review of

the briefs and the appendix record, and upon consideration of the arguments of the

parties, we deny the writ.

I. PROCEDURAL HISTORY

In the underlying dispute, the Bank filed suit against Mr. Powers seeking

payment of the outstanding balance remaining on a $15,000.00 loan it made to him in

February of 2012. Jackie Cantley, the Bank’s Vice President, was the loan officer who

arranged Mr. Powers’ loan. At the time of the filing of the complaint in June of 2013, the

Bank asserted Mr. Powers owed it $13,098.86. Mr. Powers did not file a responsive

pleading to the complaint or serve discovery upon the Bank regarding the underlying

debt. Rather than litigate the matter, Mr. Powers, represented by counsel, entered into an

“Agreed Order Confessing Judgment” with the Bank for the full amount and agreed to a

payment plan. The circuit court entered the Agreed Order Confessing Judgment on

August 16, 2013, and the matter was dismissed.1

In September of 2013, a Grand Jury for the United States District Court for

the Southern District of West Virginia indicted Mr. Cantley on six counts of bank fraud

and related charges. Mr. Cantley allegedly made loans in violation of bank policies, did

not appropriately underwrite loans, misapplied funds, moved loan funds between

different person’s accounts without authorization, forged signatures, made multiple

disbursements from closed end loans, and failed to keep appropriate or accurate records.2

In February of 2014, Mr. Cantley agreed to plead guilty to count four of the indictment,

through which he was charged with a violation of 18 U.S.C. § 656 (West 1996)3 (theft or

embezzlement by bank officer or employee).

1
Thereafter, Mr. Powers made some payments to the Bank.
2
The indictment does not specifically reference Mr. Powers’ loan.
3
18 U.S.C. § 656 provides, in part:

Whoever, being an officer, director, agent or employee
of, or connected in any capacity with any Federal Reserve
bank, member bank, depository institution holding company,
national bank, insured bank, branch or agency of a foreign
bank, or organization operating under section 25 or section
25(a) of the Federal Reserve Act, . . . embezzles, abstracts,
purloins or willfully misapplies any of the moneys, funds or
credits of such bank, branch, agency, or organization or
holding company or any moneys, funds, assets or securities
(continued . . .)
2

After learning of Mr. Cantley’s guilty plea, Mr. Powers became suspicious

regarding the circumstances of his loan with the Bank. In April of 2014, Mr. Powers

requested documentation supporting the allegations in the Bank’s complaint; Mr. Powers

contends the Bank never provided any documents to him evidencing the terms of the loan

or setting forth how his payments had been applied. The Bank did not respond to this

request.

In May of 2014, Mr. Powers, represented by new counsel, filed a motion

for relief from the confessed judgment pursuant to Rule 60(b) of the West Virginia Rules

of Civil Procedure. Mr. Powers attached his sworn affidavit to the motion. According to

Mr. Powers, he wanted to borrow a much smaller amount of money but agreed to accept

the $15,000.00 check because Mr. Cantley said he could make payments he could afford

over time. Mr. Powers stated he made payments as agreed. However, in May of 2013, a

Bank representative telephoned Mr. Powers and accused him of bank fraud and stated

that he could “go to jail for a long time.” This representative also said that the Bank was

going to “take the collateral for the loan.” After receiving the Bank’s complaint in the

intrusted to the custody or care of such bank, branch, agency,
or organization, or holding company or to the custody or care
of any such agent, officer, director, employee or receiver,
shall be fined not more than $1,000,000 or imprisoned not
more than 30 years, or both[.]

3
mail, Mr. Powers authorized his former attorney to enter into a consent judgment because

he feared he would lose his home and he knew he could not afford to pay the amount the

Bank claimed he owed in one lump sum.

Mr. Powers claimed that after he learned Mr. Cantley pleaded guilty to

bank fraud, he suspected there were improprieties regarding his loan. Mr. Powers swore

in his affidavit he never received loan documentation from the Bank and, therefore, was

unaware what the interest rate was or the terms of the agreement. Furthermore, Mr.

Powers stated that “[i]f such a document does exist, I do not believe that I signed it, and if

I did, I had no knowledge that I was signing such a document.”

Based on the foregoing assertions, Mr. Powers argued that relief from the

Agreed Order Confessing Judgment was appropriate in this case because the judgment

was void, was obtained by fraud, misconduct, and fraud on the court, and/or warranted by

the discovery of new evidence. Further, Mr. Powers maintained it was in the interests of

justice to allow a decision to be reached on the merits of the case.

At the time he filed the motion to set aside the Agreed Order Confessing

Judgment, Mr. Powers also requested leave to file an answer, affirmative defenses, and a

counterclaim against the Bank. In his counterclaim, Mr. Powers alleged the Bank

engaged in illegal debt collection conduct pursuant to the West Virginia Consumer Credit

Protection Act,4 fraud, breach of contract, abuse of process and malicious prosecution.

Acknowledging that those claims could be filed as a separate action because he signed no

release when executing the Agreed Order Confessing Judgment, Mr. Powers stated he

filed the counterclaim with the present action “to reach the most efficient resolution of

the issues by presenting them in one case for resolution on the merits.”

Three days prior to the hearing scheduled on the matter, the Bank served its

response to Mr. Powers’ motion on July 8, 2014, and attached the previously-requested

loan documentation.5 In its pleading, the Bank asserted Mr. Powers failed to meet his

burden under Rule 60(b) of the West Virginia Rules of Civil Procedure because he failed

to demonstrate any extraordinary circumstances that would justify relief from judgment.

The circuit court conducted a hearing on the motion on July 11, 2014, and

heard argument from counsel. By order entered October 7, 2014, the circuit court held

that relief from judgment was justified pursuant to Rule 60(b)(6).6 The circuit court found

4
See W.Va. Code §§ 46A-1-101 to -8-102 (2015).
5
The promissory note in the appendix record before this Court is basically
illegible but it appears to display Mr. Powers’ signature. The “Consumer Loan
Application” form has a line drawn across the words “Consumer Loan” and the word
“Commercial” is handwritten at the top of the document. The documents do not specify
any collateral for the loan.
6
The circuit court rejected Mr. Powers’ argument that the Agreed Order
Confessing Judgment was void under the West Virginia Consumer Credit and Protection
Act. The relevant portion of that statute provides that “[a] consumer may not authorize
(continued . . .)
5

“the circumstances surrounding the loan at issue at a minimum make the loan

questionable” and “a decision on the merits is favored.” The Bank petitioned this Court

for prohibitory relief from this ruling on February 25, 2015.

II. STANDARD FOR ISSUANCE OF WRIT

The instant proceeding comes before this Court as a petition for a writ of

prohibition. In its petition, the Bank asserts the circuit court committed clear legal error

when it set aside an Agreed Order Confessing Judgment entered into between the parties

and their respective counsel “in the absence of a finding by the [c]ourt of extraordinary

circumstances justifying such relief.” The Bank argues the order granting Mr. Powers’

motion for relief from judgment will compel re-litigation of a matter that the parties

previously resolved. Mr. Powers responds that the Bank will not be required to re-litigate

anything, given that this case had a very short history with only the filing of the

Complaint followed by a confession of judgment. Furthermore, litigation between the

parties has not concluded but will proceed on Mr. Powers’ allegations against the Bank

for violations of the Consumer Credit Protection Act; if this Court does grant the Bank’s

any person to confess judgment on a claim” arising out of a consumer loan and any such
authorization is “void.” W.Va. Code § 46A-2-117. Nevertheless, the statute does not
prohibit the consumer himself from confessing judgment. Therefore, the circuit court did
not base relief from judgment on Rule 60(b)(4). The circuit court further declined to rule
conclusively on (1) whether the Bank engaged in misconduct or fraud; and (2) whether
newly-discovered evidence relating to the indictment and guilty plea of the loan officer
supported setting aside the judgment. See W.Va.R.Civ.P. Rule 60(b)(2) and (3).

request for prohibitory relief, Mr. Powers states he will assert those claims in an original

action.

With respect to a request for prohibitory relief, this Court has held:

“A writ of prohibition will not issue to prevent a
simple abuse of discretion by a trial court. It will only issue
where the trial court has no jurisdiction or having such
jurisdiction exceeds its legitimate powers. W.Va. Code 53-1
1.” Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va.
314, 233 S.E.2d 425 (1977).

Syl. Pt. 1, State ex rel. York v. W.Va. Office of Disciplinary Counsel, 231 W.Va. 183, 744

S.E.2d 293 (2013).7 With these principles in mind, we consider the merits of the Bank’s

request for a writ of prohibition.

III. DISCUSSION

A. West Virginia Rule of Civil Procedure 60(b)(6)

7
See also Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12
(1996) (“In determining whether to entertain and issue the writ of prohibition for cases
not involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as direct appeal, to obtain
the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that
is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as
a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or substantive law; and (5) whether
the lower tribunal’s order raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should issue. Although all five
factors need not be satisfied, it is clear that the third factor, the existence of clear error as
a matter of law, should be given substantial weight.”).

West Virginia Rule of Civil Procedure 60(b)8 authorizes a circuit court to

grant relief from a final judgment for five enumerated reasons or “any other reason that

justifies relief.” W.Va.R.Civ.P. 60(b)(6). 9 While this “catch-all” reason includes few

textual limitations, its context requires that it be invoked in only extraordinary

circumstances when the reason for relief from judgment does not fall within the list of

enumerated reasons contained within the rule. See J. Cleckley, J. Davis, and L. Palmer,

8
The rule provides, in pertinent part:

Mistakes; Inadvertence; Excusable Neglect;
Unavoidable Cause; Newly Discovered Evidence; Fraud, etc.
On motion and upon such terms as are just, the court may
relieve a party or a party’s legal representative from a final
judgment, order, or proceeding for the following reasons: (1)
Mistake, inadvertence, surprise, excusable neglect, or
unavoidable cause; (2) newly discovered evidence which by
due diligence could not have been discovered in time to move
for a new trial under Rule 59(b); (3) fraud (whether
heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no
longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the
operation of the judgment. The motion shall be made within a
reasonable time, and for reasons (1), (2), and (3) not more
than one year after the judgment, order, or proceeding was
entered or taken. A motion under this subdivision (b) does not
affect the finality of a judgment or suspend its operation.
9
Similarly, the Rule 60(b)(6) federal counterpart grants courts the power to vacate
judgments “whenever such action is appropriate to accomplish justice.” Teamsters,
Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. Co.,
953 F.2d 17, 19 (1st Cir.1992). Rule 60(b)(6) provides relief from judgment for “any
other reason” not otherwise covered by the rule. Fed.R.Civ.P. 60(b)(6).

Litigation Handbook on West Virginia Rules of Civil Procedure § 60(b)(6) at 1319 (4th

ed. 2012); Syl. Pt. 2, Hustead ex rel. Adkins v. Ashland Oil, Inc., 197 W.Va. 55, 56, 475

S.E.2d 55, 56 (1996) (“One of the purposes of West Virginia Rule of Civil Procedure

60(b) is to provide a mechanism for instituting a collateral attack on a final judgment in a

civil action when certain enumerated extraordinary circumstances are present. When such

extraordinary circumstances are absent, a collateral attack is an inappropriate means for

attempting to defeat a final judgment in a civil action.”).

This Court stated in Powderidge Unit Owners Association v. Highland

Properties, Ltd., 196 W.Va. 692, 474 S.E.2d 872 (1996), that a circuit court is not

“required to grant a Rule 60(b) motion unless a moving party can satisfy one of the

criteria enumerated under it. In other words, a Rule 60(b) motion to reconsider is simply

not an opportunity to reargue facts and theories upon which a court has already ruled.” Id.

at 706, 474 S.E.2d at 886. As we recognized in N.C. v. W.R.C., 173 W.Va. 434, 317

S.E.2d 793 (1984): “‘The provisions of this rule [(60(b))] must be carefully interpreted to

preserve the delicate balance between the sanctity of final judgments, expressed in the

doctrine of res judicata, and the incessant command of the court’s conscience that justice

be done in light of all the facts.’” 173 W.Va. at 437, 317 S.E.2d at 796 (quoting Bankers

Mortgage Co. v. U.S., 423 F.2d 73, 77 (5th Cir.1970)).

To balance the competing policies of finality of judgments and resolving

litigation on the merits, courts considering motions under Rule 60(b)(6) ordinarily
9

examine a variety of factors. Recognizing that the motion must be determined on a case-

by-case basis, this Court has chosen not to adopt specific factors that are applied rigidly.

Rather, courts consider the factors raised by the movant and incorporate them “into a

holistic appraisal of the circumstances.” Ungar v. Palestine Liberation Org., 599 F.3d 79,

83-84 (1st Cir. 2010). “[T]here is no ironclad rule requiring an in-depth, multi-factored

analysis in every case. Sometimes one factor predominates to such an extent that it

inexorably dictates the result.” Id. at 86; see also Richard v. Boggs, 162 P.3d 629, 636

(Alaska 2007) (discussing judicial need to consider equities of case when deciding Rule

60(b)(6) motion).

B. Circuit Court’s Discretion on Rule 60(b)(6) Motions

A circuit court has broad discretion in ruling on a motion under Rule

60(b)(6). In syllabus point ten of Rose v. Thomas Memorial Hospital Foundation, Inc.,

208 W.Va. 406, 541 S.E.2d 1 (2000), we held:

“A court, in the exercise of discretion given it by the
remedial provisions of Rule 60(b), W.Va. R.C.P., should
recognize that the rule is to be liberally construed for the
purpose of accomplishing justice and that it was designed to
facilitate the desirable legal objective that cases are to be
decided on the merits.” Syl. Pt. 6, Toler v. Shelton, 157 W.Va.
778, 204 S.E.2d 85 (1974).

See generally Int’l Controls Corp. v. Vesco, 556 F.2d 665, 670-71 (2d Cir. 1977) (“While

any motion under Rule 60(b) is addressed to the discretion of the trial court . . . this

discretion is especially broad under subdivision (6), because relief under it is to be

granted when ‘appropriate to accomplish justice,’ Klapprott v. United States, 335 U.S.

601, 615, 69 S.Ct. 384, 93 L.Ed. 266 (plurality opinion of Black, J.), modified on other

grounds, 336 U.S. 942, 93 L.Ed. 1099 (1949); see 11 C. Wright & A. Miller, [Federal

Practice and Procedure] § 2864, at 211-12 [(1971)].”).

This Court likewise affords deference to rulings presented for relief under

Rule 60(b). In syllabus point five of Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85

(1974), we held: “A motion to vacate a judgment made pursuant to Rule 60(b), W.Va.

R.C.P., is addressed to the sound discretion of the court and the court’s ruling on such

motion will not be disturbed on appeal unless there is a showing of an abuse of such

discretion.” This Court’s standard of review “reflects the circuit court’s institutional

position as the forum best equipped for determining the appropriate use of Rule 60(b)[.]”

Powderidge, 196 W. Va. at 705, 474 S.E.2d at 885.

C. The Bank’s Petition for Extraordinary Relief

As discussed above, this Court exercises judicial restraint in granting the

extraordinary relief of a writ of prohibition. For that reason, we are not surprised that the

Bank does not cite a single case wherein we granted extraordinary relief to prevent a

circuit court from enforcing its order on a Rule 60(b)(6) motion. Nevertheless, the Bank

seeks this relief, alleging the circuit court “abused its legitimate powers” by granting Mr.

Powers’ Rule 60(b) motion. The Bank asserts the circuit court failed to define

extraordinary circumstances and provided no finding of fault with regard to the Agreed
11

Order Confessing Judgment. As the Bank posits, relief was improperly sought by a party

who changed his mind after choosing to settle a case.

The Bank relies on Gabritsch v. Gabritsch, 164 W.Va. 146, 260 S.E.2d 841

(1979), a case in which this Court affirmed on direct appeal a trial court’s order denying a

wife’s motion to set aside a judgment entered in a divorce proceeding. In Gabritsch, we

stated “[d]issatisfaction by the parties with the result of a divorce [settlement] is common,

but such dissatisfaction does not constitute ground for relief under Rule 60(b).” 164

W.Va. at 151, 260 S.E.2d at 844. We find the Bank’s reliance on Gabritsch unavailing

because that case is clearly distinguishable from the matter before us; the wife fully

litigated her case on the merits and accepted the divorce settlement as it was read into the

record. Unlike Gabritsch, Mr. Powers does not seek merely to re-litigate legal issues

heard at an underlying proceeding.

The Bank also rests on Benjamin H. v. Walker, No. CV.A.3:99-0338, 2009

WL 590160, at *1 (S.D.W.Va. Mar. 6, 2009), a case in which a federal district court

refused to grant Rule 60(b)(6) relief, because “[f]ailure to litigate an issue before

choosing to settle the dispute does not create an extraordinary circumstance.” Yet,

Benjamin H. is patently dissimilar to the instant case. In Benjamin H., the state agency

negotiated a settlement of a certified class action and challenged the consent order nine

years after it was entered without demonstrating any particular support for its Rule 60(b)

motion other than a new legal theory that had not previously been advanced. Here, Mr.
12

Powers filed his motion within months of learning that the Bank’s loan officer pleaded

guilty to bank fraud. He also submitted an affidavit in support of his motion alleging facts

that would justify setting aside the judgment.

The Bank essentially argues it is entitled to prohibitory relief from this

Court because the circuit court should have denied Mr. Powers’ Rule 60(b) motion.

While not admitting any misconduct with regard to the loan transaction, the Bank

maintains the actions of the Bank that Mr. Powers now complains about were known to

him at the time he signed the Agreed Order Confessing Judgment and he was represented

by counsel at that time.10 Yet inherent in the deferential abuse-of-discretion standard is a

command of “judicial restraint, which safeguard[s] the superior vantage points of those

entrusted with primary decisional responsibility.” Evans v. Eaton Corp. Long Term

Disability Plan, 514 F.3d 315, 320-21 (4th Cir. 2008). When reviewing a circuit court’s

decision for abuse of discretion, words like “could” and “should” are not part of our

judicial vocabulary. The abuse-of-discretion standard “draws a line . . . between the

10
Mr. Powers does not allege any negligence on the part of his prior counsel or
argue that he should be relieved from judgment based on this claim. We note, however,
that courts are split on the issue of whether a motion for relief of judgment in a civil
matter can be based on attorney neglect. See generally Bell v. Eastman Kodak Co., 214
F.3d 798, 802 (7th Cir. 2000) (denying Rule 60(b) motion because “exclusive remedy for
legal malpractice in a civil case . . . is a suit for malpractice or for breach of fiduciary
duty.”), but see Ethan Michael Inc. v. Union Twp., 392 F. App’x 906, 911 (3d Cir. 2010)
(stating attorney neglect may constitute extraordinary circumstance supporting relief
under Rule 60(b)(6)).

unsupportable and the merely mistaken.” Evans, 514 F.3d at 321. Reversal is proper only

in the former instance.

Since relief under Rule 60(b)(6) is discretionary, this Court is disinclined to

substitute our judgment for that of the circuit court on direct appeal; we certainly refuse

the invitation to do so through extraordinary relief in this case based on the record before

us. When considering a Rule 60(b)(6) motion, a circuit court should use its discretion to

determine if the granting of such motion would further justice. The circuit court has done

exactly that here.

This Court is persuaded that the circuit court reviewed the underlying

circumstances and exercised its discretion appropriately to grant Rule 60(b)(6) relief

because justice dictates that this case be decided on the merits. The pleadings in the

appendix record reveal substantial equitable considerations that balance the scales in

favor of Mr. Powers. Although the circuit court did not use the phrase “extraordinary

circumstances” in its ruling, several such factors supported its decision: the lack of

discovery in the case; the fact that the loan officer at issue later pleaded guilty to bank

fraud; allegations of fraudulent inducement in the loan; and newly-discovered evidence

of the loan documentation that the Bank had previously refused to provide to Mr. Powers.

Evidently the circuit court recognized the need to jointly resolve the merits of the Bank’s

claims against Mr. Powers and Mr. Powers’ claims against the Bank. See Cruciotti v.

McNeel, 183 W. Va. 424, 430, 396 S.E.2d 191, 197 (1990) (“Although the circuit court
14

failed to articulate specifically the grounds for relief under Rule 60[6], apparently it

recognized that the interests of justice required conducting further proceedings on the

matter.”).

Accordingly, we find that the circuit court’s decision to grant Mr. Powers’

motion to vacate the judgment was within the parameters of its sound discretion and the

record fully supports its conclusions. Therefore, we deny the Bank’s request for

prohibitory relief because this case does not warrant the exercise of this Court’s original

jurisdiction.

IV. CONCLUSION

Based upon the foregoing, this Court denies the writ of prohibition sought

by the Bank to prevent the Circuit Court of Cabell County from enforcing its October 7,

2014, Order Granting Motion for Relief from Judgment.

Writ denied.