If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
VHS OF MICHIGAN, INC doing business as THE UNPUBLISHED
DETROIT MEDICAL CENTER, April 1, 2021
Plaintiff-Appellee,
v No. 352881
Oakland Circuit Court
STATE FARM MUTUAL AUTOMOBILE LC No. 2019-174743-NF
INSURANCE COMPANY,
Defendant-Appellant.
Before: TUKEL, P.J., and JANSEN and CAMERON, JJ.
PER CURIAM.
In this first-party no-fault action, defendant, State Farm Mutual Automobile Insurance
company, appeals by leave granted1 the trial court’s order denying its motion for leave to amend
its affirmative defenses to plead fraud with particularity. We reverse, vacate the trial court’s
February 10, 2020 order denying defendant’s motion to amend its affirmative defenses to plead
fraud with particularity, and remand for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of a motor vehicle accident that occurred on December 2, 2018 near
the intersection of Evergreen Road and Seven Mile Road in Detroit, Michigan. At the time of the
accident, defendant’s insured, Ferlita Reyes, was driving a 2009 GMC Yukon XL, and there were
five other passengers in the vehicle. At some point following the accident, Reyes, sought medical
treatment with plaintiff, VHS of Michigan, Inc, doing business as The Detroit Medical Center (the
DMC), in the emergency room. Under MCL 500.3143, Reyes executed an assignment of all her
1
VHS of Michigan, Inc v State Farm Mut Auto Ins Co, unpublished order of the Court of Appeals,
entered June 17, 2020 (Docket No. 352881).
-1-
rights, privileges, and remedies to payment to plaintiff from defendant for PIP benefits to which
Reyes may be entitled under MCL 500.3101 et seq., and under her insurance contract.
On June 20, 2019, plaintiff filed the complaint in the instant action, asserting that it had
submitted reasonable proof of charges incurred to defendant and demanded payment, however,
defendant unreasonably delayed or refused payment for the balance of benefits due. Plaintiff
claimed that defendant had breached its contractual and statutory obligation to provide no-fault
benefits by unreasonably delaying or refusing payment and sought a judgment under MCR 2.605
declaring defendant liable for no-fault benefits, a judgment in the amount of the total liability due,
plus costs, interest, and attorney fees.
Defendant timely answered the complaint, denying most of the allegations contained
therein, and inter alia, asserted the following affirmative defenses:
1. Plaintiff’s patient has made statements which do not comport with
known facts. She has made, caused to be made, or submitted false statements in
connection with this claim that would, therefore, bar her from recovering benefits.
If discovery reveals any actionable fraud, [d]efendant will seek leave to amend its
affirmative defenses to state a fraud or rescission defense with more particularity.
2. Even if [p]laintiff’s patient did not intentionally make false
representations, [d]efendant may be entitled to void coverage as a non-intentional
or innocent misrepresentation of material fact. Wiemayer v Midland Mutual Ins,
414 Mich 369 (1992).
The parties engaged in written and oral discovery, and on January 22, 2020, before the
expiration of the discovery period on February 4, 2020, defendant moved to amend its affirmative
defenses to plead fraud with particularity. Defendant argued that discovery had revealed
inconsistencies between Reyes’ account of the accident, the five other passengers’ account of the
accident, medical documentation, and the opinion of defendant’s expert, Don Parker, who had
reviewed the initial photographs of the vehicle, inspected the vehicle, downloaded the vehicle’s
information from the event data recorder (EDR), and reviewed the occupants’ testimony.
At the time of the accident, Reyes had been driving a 2009 GMC Yukon XL and had five
passengers in the vehicle: Curtis Houston, FaQuan Houston, Darrell Nickerson, Jermaine Dixon,
and Kirshean Nelson. Reyes recalled that she had picked up the passengers in order to meet other
friends for dinner at a restaurant. At her deposition, Reyes testified that while driving on Evergreen
Road around 9:30 p.m., she looked into her rearview mirror and became aware of a red Ford F-
150 driving “crazy” behind her. At some point, the F-150 began to pass Reyes on the left and
made contact with the Yukon. Reyes could not remember if the F-150 made contact with the side
or rear of the Yukon, but she was certain that impact occurred. Reyes then lost control of the
Yukon, and swerved to the right and into a parked Chevrolet Impala. According to Reyes, the F-
150 fled the scene. Reyes further testified that she never saw the damage to the Yukon because it
was towed from the scene and repaired by defendant. The five other occupants of the Yukon had
similar recollections of the accident: that the F-150 had been traveling behind the Yukon in the
same direction. Medical records also indicated that the passengers of the Yukon initially reported
that the Yukon had been rear-ended by another vehicle.
-2-
However, defendant argued, the Michigan Traffic Crash Report was inconsistent with the
occupants’ recollection of the accident. The report detailed:
Per a witness at the scene, Unit 1, a red Ford F-150, crossed left of center while
southbound on Evergreen. Unit 1 was driving at a high rate of speed and sideswiped
Unit 2. Unit 2 then rear-ended Unit 3, which was also northbound on Evergreen.
Unit 1 left the scene.
The expert report created by Parker also called into question the occupants’ version of
events. In support of its motion to amend, defendant attached a copy of the collision damage
analysis performed by Parker. Parker wrote in that report that he performed the analysis “to
quantify the nature and severity of the subject collision.” Parker reviewed the traffic crash report,
the CARFAX vehicle history for the subject 2009 GMC Yukon XL, the repair estimate for the
Yukon, deposition transcripts from occupants of the Yukon, industry information for both the
Yukon and the Chevrolet Impala involved in the secondary collision, and aerial and street view
photographs of the claimed collision site. Parker also inspected the Yukon in person at a car
dealership after the vehicle had been repaired. During this inspection, Parker was able to access
the airbag control module (ACM) which contained an EDR that was “capable of capturing certain
pre-crash and crash information[.]” The EDR was imaged by Parker using a “Bosch crash data
retrieval (CDR) tool for retained data relevant to the subject incident.” Parker also wrote that “[i]n
addition to the above-mentioned materials and activities, I have relied on my education and
training and my experience in vehicle design, crash testing, crash analysis, and crash
reconstruction” in formulating opinions regarding this accident.
Parker first addressed certain inconsistencies in the deposition transcripts he had reviewed,
and asserted that those inconsistencies challenged the veracity of the testimony. For example,
Reyes had testified that Nickerson was a “childhood friend” of hers, but Nickerson testified that
he had only known Reyes for “maybe a couple of years.” Parker also noted inconsistencies across
the testimony regarding who had been picked up first by Reyes, and whether the occupants had
stayed in the vehicle after the collision, or had gotten out and waited for the police and EMS while
sitting on the curb.
Parker next wrote that the repair estimate of the Yukon included photographs of the Yukon
that had been taken at the time the estimate was created. These photographs showed damage to
the front bumper cover, the plastic lower shield panel, the front grille, the rear bumper cover, and
the right tail lamp. All of the aforementioned parts required replacement. There was no structural
damage to the Yukon, and no adjacent components such as the radiator, the air conditioning
condenser, or the headlights, required replacement or repair. Parker opined that there was “little
discernable damage to the front end of the Yukon. The hood and grille appear undisturbed, with
no buckling of the hood as designed for a frontal impact. Only some minor disruption is visible at
the lower central section of the front bumper cover.” The rear bumper cover and the right rear
quarter panel had some minor longitudinal scratching and shallow denting visible, however this
damage was not consistent with any kind of accident, and because of the location of the damage,
it was not consistent with the “claimed collision scenario.” There were no repairs to be made on
the left side of the Yukon. Parker went on to opine that the “lack of damage to the front end of the
Yukon is consistent with at most a minor impact or bump into another vehicle or object. It is not
consistent with a 30+ mph impact into another vehicle such as the subject Chevrolet Impala.”
-3-
Finally, Parker addressed the CDR report for the Yukon’s EDR. The EDR was imaged on
July 8, 2019, and there were no collision events stored in its memory. Parker submitted that
“[f]rom comparison to the extent and nature of physical damage” it is likely that “[t]he incident
that caused the damage to the Yukon was not of sufficient severity to induce a 5 mph change” in
vehicle velocity so as to register a collision event in the EDR, or that “[i]n the 3,157 miles of usage
subsequent to the repair estimate, the ignition had been cycled at least 250 times[,] which would
have reset the EDR. However, Parker opined that “from the combination of physical evidence and
imaged EDR data, there is no evidence of a hit-and-run impact to the left rear or side of the subject
Yukon. Any frontal impact into another object, such as the subject Chevrolet Impala, was very
minor[.]” Ultimately, Parker offered four opinions:
With a reasonable degree of scientific certainty, my opinions regarding the above-
captioned matter are as follows:
1. On December 2, 2018, Ms. Ferlita Reyes was reportedly operating the
subject 2009 GMC Yukon SUV northbound on Evergreen Road in Detroit,
Michigan when the Yukon was impacted in the left rear side by another
vehicle, which left the scene.
2. There was no evidence of damage, as documented in post-collision
photographs and repair documents, and as confirmed during my inspection
of the vehicle, to the rear or left side of the Yukon to support the claim of a
first impact by a hit-and-run vehicle, causing a loss of control.
3. The minor level of relevant front-end damage to the subject GMC Yukon
SUV, as documented in post-collision photographs and repair documents,
and as confirmed during my inspection of the vehicle, is consistent with at
most a minor frontal impact with another object.
4. Significant discrepancies in vehicle occupant testimony reduces the veracity
of that testimony.
Finally, defendant attached two Social Media Investigation Reports for two of the
passengers: Curtis Houston and Kirshean Nelson. With respect to Houston, the investigation
revealed:
On December 12, 2018, the subject posted a Facebook live video of himself in his
car eating tacos. At the time stamp of approximately 3:07[,] he gets out of the
vehicle and drops the phone. At the time stamp of approximately 5:30, he reentered
the vehicle with an unknown male. During a conversation, the unknown male asked
him “what was that --- you was talking about, that insurance shit?” He replied that
he was trying to get a rental and put full insurance on it and stage a car accident and
put 3 or 4 people in it. He stated that they all had to have the same story and make
a claim and get a claim number and start taking them to therapy. Get $100 every
Friday in pills. The unknown male said something that was unclear, and the subject
replied, “bro done took me through it, I mean we done did it.” He said, “this was
the plan from the get-go, bro showed me the circles and gave me the sauce and I
-4-
get off his coattails and start making my own.” He went on to discuss what exactly
to say to the doctor to get stronger pills. He discussed how he has a girlfriend on
the side, and he told her he needs an address with no car registered to it. He further
stated he needs to find somewhere to get a cheap rental. He said get a 2014 with
full coverage and “flip that bitch.” He said he want[s] to try and keep it for two
days and then roll it over. He then makes a joke “hit and run” with sound effects.
He said how he gives someone $50.00 to smash a car.
* * *
On September 14, 2018, he posted “OK I got something good for y’all if anyone
has been in a car accident in the past year inbox me asap. It’s money in it 4 us.”
With respect to Nelson, the investigation revealed:
Mr. Nelson bragged about money from selling drugs on multiple occasions. In a
Facebook live video on March 12, 2019, he was seen counting out one-hundred[-
]dollar bills and fanning the money. He then put a pill bottle up to the camera and
stated over “they going to get me rich dumb ---.” On March 5, 2018, the subject
posted a Facebook live video and stated he was on his way to the city and would be
“------- with those doctors in the morning.”
* * *
On January 7, 2019, he posted, “Who got good license and wanna make ah 1000$$
hit by nbox No bs.”
Defendant argued that these videos were evidence of a scheme or plan to defraud defendant by
staging fake car accidents in order to defraud insurance companies, particularly in light of Parker’s
opinion that the accident at issue did not occur as stated by Reyes or the other occupants of the
vehicle.
Moreover, defendant submitted, it had been tipped off that the accident was fraudulent by
a pain management doctor who had treated all of the occupants of the Yukon. Dr. Vinod Sharma,
M.D., “wrote a letter to [defendant]” in March 2019 “indicating that he believed this was a
fraudulent accident.” Dr. Sharma also gave testimony in the form of a statement on the record,
where he testified that he eventually discharged all six patients because he learned through the
Michigan Automated Prescription System (MAPS) that they were also treating with another pain
management physician, and thus Dr. Sharma classified them as “drug-seekers” or “doctor
shoppers,” meaning they were looking for doctors to prescribe them pain medications. Dr. Sharma
recalled that when drug tested, all were “clean,” and thus, Dr. Sharma opined that they were not
taking the prescribed pain medication, but selling it.
Defendant argued that the foregoing evidence, revealed through the discovery process,
prompted its motion to amend its affirmative defenses under MCR 2.118(2) so that it could plead
fraud with particularity. Defendant argued that its motion was timely, and that plaintiff could not
be surprised by its motion given that that defendant had pleaded “cautionary affirmative defenses
-5-
… from the outset” and therefore “nobody involved in this case can be surprised or will be unfairly
prejudiced by the amendment[.]” Moreover, defendant argued, the amendment would not be
futile: given the evidence, there could be little doubt that the accident had been staged, and Dr.
Sharma’s testimony revealed a clear motive.
Plaintiff opposed defendant’s motion to amend, arguing that the trial court should find
defendant waived fraud as an affirmative defense because defendant failed to plead fraud with
particularity in a responsive pleading, here its answer to the complaint, as is required under MCL
2.111(F)(2).2 First, plaintiff noted that the majority of the documents relied on by defendant had
been produced to plaintiff for the first time as exhibits to the motion to amend. Moreover, plaintiff
argued, defendant’s motion was untimely. Defendant had all the evidence it needed to move to
amend several months earlier, but strategically chose to wait until right before the close of
discovery. Plaintiff argued that the timing of defendant’s motion showed bad faith because the
delay denied it “the fair and reasonable notice necessary to rebut this defense.”
The trial court held a hearing on defendant’s motion where the parties argued consistently
with their briefs. The trial court ultimately denied defendant’s motion, reasoning:
Based on the [c]ourt’s review of the motion, the briefs attached there, I don’t
find that the defendant . . . has established a reasonable basis for their undue delay
in bringing this motion before the [c]ourt. I was satisfied initially that they were at
least put on notice in March of 2019 of the potential that fraud existed, and while I
accept what’s offered by counsel that Judge, it wasn’t specific enough, and yes, we
got this information, but it’s not specific enough, so I’d assume from what’s
presented they started the investigation along those lines, but then in September of
2019, they do a deposition and I get that this is a treating physician, he was a treating
physician when he sent the letter to [defendant] that said in my opinion, this person
– he said a number of things, he even referred about drug-seeking, but more
importantly, as it relates to the accident, that it was his opinion that his accident
was staged, and that this may be a fraudulent claim. The deposition happens in
September of 2019, and what’s one of the subject matters that’s covered, this very
correspondence.
So the [c]ourt views that as this is a physician, who’s a treating physician
of one of the plaintiffs, who first brings this to [defendant’s] attention in March of
2019, they subsequently depose this physician, and in the interim, they’re not just
2
Plaintiff also argued that the interview of Dr. Sharma qualified as an ex parte interview, and
under Holman v Rasak, 486 Mich 429, 442; 785 NW2d 98 (2010), defendant was required to give
notice of the interview to plaintiff and seek entry of a HIPPA-compliant qualified protective order
before attaching the interview transcript to its motion. See also MCL 600.2157; 45 CFR
164.512(e). Thus, plaintiff argued, the trial court should strike defendant’s motion to amend for
failure to comply with federal and state privacy laws. The trial court did acknowledge that Dr.
Sharma’s interview qualified as an ex parte interview, and thus falls within the purview of our
Supreme Court’s holding in Holman, however the motion to amend was not denied on this basis.
-6-
doing nothing, they’re starting to investigate in detail what’s raised by this same
physician, and then they depose him, and under oath, subject to perjury, he elicits
– they elicit the same information or generally the same information.
What I hear here today is that Judge, we were still investigating, we were
determining and establishing with particularity that fraud existed. Well, I’m
satisfied that on the information provided in March, and surely by that time they
took the deposition in September and the information under oath coming forth
again, that they had a basis to file at that time a motion to amend their affirmative
defense, and they didn’t do that.
* * *
I find that there was undue delay in this case. The motion is not timely. It
would bring and be severely prejudiced to the plaintiffs at this point, and I haven’t
heard any reasonable excuse for more timely bringing this motion, and therefore
this motion is denied.
An order denying defendant’s motion for the reasons stated on the record was entered on
February 10, 2020. This appeal followed.
II. STANDARD OF REVIEW
This Court reviews a trial court’s decision on a motion to amend affirmative defenses for
an abuse of discretion. Weymers v Khera, 454 Mich 639, 654, 563 NW2d 647 (1997). An abuse
of discretion occurs when the trial court’s decision falls outside the range of reasonable and
principled outcomes, or when the trial court makes an error of law. Pioneer State Mut Ins Co v
Wright, 331 Mich App 396, 405; 952 NW2d 586 (2020).
III. ANALYSIS
Defendant’s sole argument on appeal is that the trial court abused its discretion by denying
its motion to amend its affirmative defenses to plead fraud with particularity. We agree.
Leave to amend “shall be freely given when justice so requires.” MCR 2.118(A)(2).
Amendment is generally a matter of right. In re Kostin Estate, 278 Mich App 47, 51, 748 NW2d
583 (2008).
Ordinarily, a motion for leave to amend should be granted, and should be denied
only for the following particularized reasons: (1) undue delay, (2) bad faith or
dilatory motive on the part of the movant, (3) repeated failure to cure deficiencies
by amendments previously allowed, (4) undue prejudice to the opposing party by
virtue of allowance of the amendment, or (5) futility of the amendment. [Lane v
KinderCare Learning Ctrs, Inc, 231 Mich App 689, 697, 588 NW2d 715 (1998).]
“Michigan’s procedural rules recognize and account for the fact that it may not be possible
to plead fraud, or indeed anything else, with particularity at the commencement of a case. A party
may move to amend its affirmative defenses at any time, and leave should be granted freely unless
-7-
doing so would prejudice the other party.” Glasker-Davis v Auvenshine, ___ Mich App ___, ___;
___ NW2d ___ (2020) (Docket No. 345238); slip op at 5, citing SE Mich Surg Hosp, LLC v
Allstate Ins Co, 316 Mich App 657, 663; 892 NW2d 434 (2016); Stanke v State Farm Mut Auto
Ins Co, 200 Mich App 307, 320-321; 503 NW2d 758 (1993). Indeed, MCR 2.118(C) provides
that amendments to conform to the evidence “may be made on a motion of a party at any time,
even after judgments[,]” and MCR 2.111(F)(3) confirms that “[a]ffirmative defenses must be
stated in the party’s responsive pleading, either as originally filed or as amended in accordance
with MCR 2.118.” (emphasis added).
Here, defendant sought to amend its affirmative defenses to plead fraud with particularity
with respect to fraud allegedly committed by Reyes, defendant’s insured, when making the
underlying claim for PIP benefits, in violation of an anti-fraud provision in the insurance contract
between Reyes and defendant.
A defense premised on an alleged violation of an anti-fraud provision in an
insurance policy constitutes an affirmative defense. Baker v Marshall, 323 Mich
App 590, 597-598; 919 NW2d 407 (2018). “In allegations of fraud [. . . ] the
circumstances constituting fraud [. . .] must be stated with particularity.” MCR
2.112(B)(1). Thus, it is insufficient simply to state that a plaintiff’s conduct had
been fraudulent. SE Mich Surg Hosp, 316 Mich App [at] 663. [Glasker-Davis, ___
Mich App at ___; slip op at 6.]
Being aware of this requirement, defendant moved to amend its affirmative defenses following the
close of its investigation into Reyes’ claim.
We conclude that the trial court abused its discretion by denying defendant’s motion to
amend its affirmative defenses to plead fraud with particularity on the basis that defendant’s
motion was untimely. “Delay, alone, does not warrant denial of a motion to amend.” Weymers v
Khera, 454 Mich 639, 650; 563 NW2d 647 (1997). A trial court must also find that delay was the
result of bad faith, or the opposing party suffered prejudice. Id. “ ‘Prejudice’ within the meaning
of MCR 2.118(C) does not mean the opposing party might lost on the merits or might incur some
additional costs; rather, it means the opposing party would suffer an inability to respond that the
party would not otherwise have suffered if the affirmative defense had been validly raised sooner.”
Glasker-Davis¸ ___ Mich App at ___; slip op at 5, citing Ostroth v Warren Regency, GP, LLC,
263 Mich App 1, 5; 687 NW2d 309 (2004); SE Mich Surg Hosp, 316 Mich App at 663-665; Stanke,
200 Mich app at 321-322.
In denying defendant’s motion to amend as untimely, the trial court did not make a finding
that defendant acted in bad faith; rather, the trial court found that defendant’s delay resulted in
prejudice to plaintiff. We cannot agree. In its original answer to the complaint, defendant did
assert a fraud defense, pleading:
Plaintiff’s patient has made statements which do not comport with known facts.
She has made, caused to be made, or submitted false statements in connection with
this claim that would, therefore, bar her from recovering benefits. If discovery
reveals any actionable fraud, [d]efendant will seek leave to amend its affirmative
defenses to state a fraud or rescission defense with more particularity.
-8-
Indeed, in its first responsive pleading, defendant provided plaintiff with reasonable notice that it
would be pursuing a fraud defense. Plaintiff claims that it suffered prejudice because the delayed
motion to amend affected its “ability to address [defendant’s] allegations of fraud during the course
of depositions of the parties which [defendant] alleges committed it.” However, not only was
plaintiff on notice that defendant would be perusing a fraud defense, but it had counsel present at
the depositions of Reyes and the other occupants of the Yukon. Notably, plaintiff does not claim
that the proposed amendment would prevent it from receiving a fair trial. Weymers, 454 Mich
at 659. We conclude that plaintiff has not claimed prejudice sufficient to deny defendant’s motion
for leave to amend, and the trial court abused its discretion by finding otherwise.
We also briefly note that plaintiff argues any amendment to defendant’s affirmative
defenses to plead fraud with particularity would be futile, in light of Haydaw v Farm Bureau Ins
Co, ___ Mich App ___; ___ NW2d ___ (2020) (Docket No. 345516), where this Court concluded
that a “fraud provision in a policy does not apply to statements made during the course of
litigation,” and Meemic Ins Co v Fortson, 506 Mich 287; 954 NW2d 115 (2020), where our
Supreme Court held that fraud defenses are now limited to what is covered in the no-fault act and
defenses available under common law. Plaintiff argues that this line of Michigan jurisprudence
establishes once a policy is in place, fraud committed by the insured no longer may be grounds for
rescinding the entire policy. Thus, defendant’s “request for leave is now undisputedly futile as the
defense it sought to employ is no longer available based upon the latest Supreme Court precedent.”
Plaintiff also submits that Williams v Farm Bureau Mut Ins Co, ___ Mich App ___; ___ NW2d
___ (2021) (Docket No. 349903) establishes the futility of any amendment to defendant’s
affirmative defenses, where this Court concluded: “Meemic held that antifraud provisions in no-
fault policies apply to fraud in the inducement but not to allegations of postprocurement fraud.
Accordingly, the policy provision on which [the] defendant and the trial court relied is ‘invalid
and unenforceable’ to the degree a no-fault insurer seeks to apply it to allegations of
postprocurement fraud in a claim under a mandatory coverage[.]” Williams, ___ Mich App at ___;
slip op at 7.
Plaintiff’s futility argument fails for two reasons. First, the line of cases on which plaintiff
relies is procedurally distinguishable from this case. In Haydaw, Meemic, and Williams, the
pleadings had been completed, and litigation had proceeded to the summary disposition phase.
Comparatively, in this case, the discovery period had not yet expired when defendant moved to
amend its affirmative defenses, and no motion for summary disposition had been filed by either
party. Second, this case is factually distinguishable from Haydaw, Meemic, and Williams, where
the insurers sought to rescind or void the subject insurance policies on the basis of allegations of
fraud on the part of the insured. Here, defendant has not sought to rescind its policy. Rather, it is
seeking to plead fraud with particularity in order to justify denial of claimed benefits. Unlike the
insurer in Williams, in this case, defendant claims that “the evidence concerning the accident,
injury and treatment . . . would be insufficient to qualify for PIP benefits.” Williams, ___ Mich
App ___; slip op at 2. Indeed, in Williams, this Court reiterated that “[a] fact-finder is free, and
has always been free, to conclude that some or all of plaintiff’s claimed benefits were properly
denied by defendant.” Williams, ___ Mich App at ___; slip op at 7.
-9-
We reverse, vacate the trial court’s February 10, 2020 order denying defendant’s motion
to amend its affirmative defenses to plead fraud with particularity, and remand for further
proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Jonathan Tukel
/s/ Kathleen Jansen
/s/ Thomas C. Cameron
-10-