Velez-Cortes v. Awning Windows, Inc.

United States Court of Appeals
For the First Circuit

No. 03-2277

MINERVA VÉLEZ A/K/A
MINERVA VÉLEZ-CORTES
A/K/A MINERVA VÉLEZ-CORTEZ,

Plaintiff, Appellee,

v.

AWNING WINDOWS, INC. AND ESTATE OF ISMAEL NIEVES-VALLE,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.

Arturo Luciano Delgado for appellants.
Celina Romany, with whom Juan M. Frontera and Celina Romany
Law Offices were on brief, for appellee.

July 9, 2004
 SELYA, Circuit Judge. This appeal tells a cautionary

tale of the risks run by parties who adopt a laissez-faire attitude

toward court-imposed deadlines. The defendants in this case —

Awning Windows, Inc. (AWI) and the Estate of Ismael Nieves-Valle

(the Estate) — acted in that fashion. The district court, after

patiently granting several extensions and issuing pointed warnings,

finally decided that enough was enough. It held the defendants to

the deadlines previously announced, denied certain of their motions

for noncompliance with the court's scheduling order, disregarded

the defendants' tardy opposition to a motion for partial summary

judgment, took the proffer of plaintiff-appellee Minerva Vélez-

Cortes (Vélez) as true, and resolved the issue of liability in

Vélez's favor. A jury thereafter awarded Vélez nearly three-

quarters of a million dollars in damages. The defendants appeal.

Discerning no semblance of error, we affirm.

I. TRAVEL OF THE CASE

Vélez began work for a company owned by Ismael Nieves-

Valle (Nieves) in 1987. In time, Vélez and Nieves became

romantically entangled. Vélez claims that after she broke off

their adulterous affair, she was sexually harassed. She further

claims that, in March 2000, this harassment culminated in her

dismissal.

On March 26, 2002, Vélez commenced an employment

discrimination action against AWI and Nieves in Puerto Rico's

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federal district court.1 Her complaint invoked 42 U.S.C. §§ 2000e

to 2000e-16 (Title VII) and a plethora of Puerto Rican

discrimination statutes. See, e.g., 29 P.R. Laws Ann. §§ 146, 155-

155l. Pretrial discovery revealed a dalliance gone sour and, on

the plaintiff's account, an ensuing campaign of harassment leading

to her discharge.

As this appeal turns largely on the travel and procedural

history of the case, we eschew any further discussion of the facts

at this point. Instead, we set out a procedural chronology (each

date refers to the time when the filing in question was entered on

the district court's docket).

1. March 26, 2002. The plaintiff instituted
the action.

2. April 30, 2002. The plaintiff moved for
the entry of default, see Fed. R. Civ. P.
55(a), because the defendants failed to answer
or otherwise plead within the allotted twenty-
day period.

3. May 3, 2002. The district court ordered
the defendants to show cause, on or before May
15, why a default should not be entered.

4. May 22, 2002. The plaintiff renewed her
motion for entry of default, noting that
neither defendant had responded to the show-
cause order.

5. May 31, 2002. The district court
defaulted both defendants.

1
Nieves owned several companies. During the relevant time
frame, Vélez worked for two of them. These companies merged in
2002 to form AWI.

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6. June 6, 2002. Citing Nieves's sudden
death in a helicopter accident on May 25, AWI
asked the district court to set aside the
default and afford the defendants forty-five
additional days within which to answer the
complaint.

7. June 24, 2002. The district court granted
the plaintiff's request to substitute the
Estate in Nieves's stead as a party defendant.
See Fed. R. Civ. P. 25(a)(1). The court also
granted AWI's request to set aside the default
and ordered the defendants to answer or
otherwise plead by July 19. The court warned
that failure to comply "on or before the
aforementioned date SHALL result in the Court
re-entering default and proceeding with a
Damages Hearing."

8. July 11, 2002. The defendants answered
the plaintiff's complaint. Discovery then
ensued.

9. November 15, 2002. The plaintiff moved
for partial summary judgment on the issue of
liability.

10. December 2, 2002. The defendants'
opposition to the motion for partial summary
judgment was due, but none was filed.

11. December 5, 2002. The district court
granted the defendants until December 13 to
submit their opposition.

12. December 13, 2002. Instead of filing
their opposition by the extended deadline, the
defendants moved for a further extension.

13. December 17, 2002. The district court
held an omnibus scheduling conference (the
OSC).

14. December 20, 2002. The court entered an
order that, inter alia, directed the
defendants to file (i) no later than January
7, 2003, answers to the plaintiff's

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interrogatories; (ii) no later than January
17, 2003, a legal memorandum, concerning the
"admissibility of hearsay and other evidence"
following a party's death prior to discovery;
and (iii) no later than January 17, 2003, a
memorandum detailing AWI's finances and the
Estate's assets. The court admonished that
the defendants' failure to comply with any of
these directives would "result in sanctions
including . . . elimination of all defenses
set forth in their answer to the complaint."

In tandem with these orders, the court
further extended the time for filing an
opposition to the plaintiff's motion for
partial summary judgment. The court fixed
February 20 as the due date for the
opposition, warned the defendants that "[n]o
extensions will be given," and advised them
that, should they "fail to file an opposition
on or before the aforementioned date the Court
SHALL consider Plaintiff's motion as
unopposed."

15. January 7, 2003. The defendants served
their answers to interrogatories.

16. January 15, 2003. The defendants filed a
motion to dismiss, alleging that the plaintiff
did not have a cause of action against Nieves
(and, therefore, could not sue the Estate)
because supervisors are not personally liable
under Title VII.

17. January 17, 2003. The defendants moved
for an extension of time, up to and including
February 4, 2003, within which to file the
hearsay memorandum and comply with the
remaining commands of the OSC. Although the
court took no immediate action on this motion,
the defendants failed to make the required
filings.

18. February 5, 2003. Citing the plaintiff's
delay in completing her deposition and answers
to interrogatories, the defendants moved to
extend the deadline for filing an opposition

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to the motion for partial summary judgment
from February 20 to February 28.

19. February 20, 2003. (This was the date
set by the district court for the filing of
the opposition to the motion for partial
summary judgment.) Although the court had not
yet ruled on their last previous motion for an
extension, the defendants asked for another
extension, this time to March 3, for the
filing of their opposition.

20. March 18, 2003. The defendants made
multiple submissions: (i) they finally filed
their opposition to the plaintiff's motion for
partial summary judgment; (ii) in the same
memorandum, doubling in brass as a motion to
dismiss, they claimed for the first time that
the plaintiff had failed to file a timely
administrative complaint with the Equal
Employment Opportunity Commission (the EEOC)
and that, as a consequence, her action should
be jettisoned for want of subject-matter
jurisdiction; and (iii) in a separate
memorandum, they addressed the district
court's hearsay concerns.

21. March 20, 2003. Faithful to its earlier
warning that no extensions of time would be
countenanced, the district court disregarded
the defendants' out-of-time filings, denied
their sundry extension requests, and deemed
the plaintiff's motion for partial summary
judgment unopposed. As a sanction for the
defendants' failure to comply with the court's
earlier order to submit both a legal
memorandum anent hearsay evidence (which had
been filed over two months late) and a
memorandum detailing the defendants' financial
resources (which had not been filed at all),
the court denied the defendants' motion to
dismiss the supervisory liability claim.

22. March 23, 2003. The district court
refused to dismiss the case for lack of
subject-matter jurisdiction.

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 23. March 25, 2003. The district court
handed down an opinion in which it granted the
plaintiff's motion for partial summary
judgment. See Vélez Cortes v. Nieves Valle,
253 F. Supp. 2d 206 (D.P.R. 2003). That
decision resolved the issue of liability.

24. July 22-24, 2003. The district court
convened a damages hearing before a jury and,
pursuant to the jury's verdict, entered final
judgment for the plaintiff in the sum of
$740,000.

25. August 15, 2003. The defendants filed a
timely notice of appeal.

II. DISCUSSION

The defendants' assignments of error can be grouped under

three headings: (i) errors concerning the lower court's entry of

partial summary judgment; (ii) errors concerning the lower court's

denial of the defendants' two motions to dismiss; and (iii) errors

pertaining to the lower court's issuance of an order for legal

memoranda anent hearsay evidence. We address each grouping in

turn.

A. The Motion for Partial Summary Judgment.

The defendants' principal complaint is that the district

court erred in granting the plaintiff's motion for partial summary

judgment without considering their late-filed opposition. On the

defendants' view of the proceedings, the trial judge's decision to

commit the case to a fast-track schedule caused him to turn a blind

eye to the defendants' pressing need for additional time to conduct

discovery and muster their opposition.

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 We agree with the defendants that trial courts should

refrain from entertaining summary judgment motions until after the

parties have had a sufficient opportunity to conduct necessary

discovery. See Carmona v. Toledo, 215 F.3d 124, 132-33, 135-36

(1st Cir. 2000); Berkovitz v. Home Box Office, Inc., 89 F.3d 24,

29-30 (1st Cir. 1996). It follows that when a party moves for

summary judgment, the opposing party must be afforded a fair chance

to obtain and synthesize available information before being

required to file an opposition. Our cases make it pellucid,

however, that this prophylactic rule is not self-executing. A

party who legitimately requires more time to oppose a motion for

summary judgment has a corollary responsibility to make the court

aware of its plight.

Typically, this is accomplished by way of either a Rule

56(f) motion or its functional equivalent.2 See Vargas-Ruiz v.

Golden Arch Dev., Inc., 368 F.3d 1, 3-4 (1st Cir. 2004); Corrada

2
The rule provides that:

Should it appear from the affidavits of a
party opposing the motion that the party
cannot for reasons stated present by affidavit
facts essential to justify the party's
opposition, the court may refuse the
application for judgment or may order a
continuance to permit affidavits to be
obtained or depositions to be taken or
discovery to be had or may make such other
order as is just.

Fed. R. Civ. P. 56(f).

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Betances v. Sea-Land Serv., Inc., 248 F.3d 40, 44 (1st Cir. 2001).

The record on appeal contains nothing of the sort: the defendants

neither invoked nor substantially complied with Rule 56(f). To

benefit from the protections of Rule 56(f), a litigant ordinarily

must furnish the nisi prius court with a timely statement — if not

by affidavit, then in some other authoritative manner — that (i)

explains his or her current inability to adduce the facts essential

to filing an opposition, (ii) provides a plausible basis for

believing that the sought-after facts can be assembled within a

reasonable time, and (iii) indicates how those facts would

influence the outcome of the pending summary judgment motion. See

Vargas-Ruiz, 368 F.3d at 4; Paterson-Leitch Co. v. Mass. Mun.

Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988). Such a

litigant also must have exercised "due diligence both in pursuing

discovery before the summary judgment initiative surfaces and in

pursuing an extension of time thereafter." Resolution Trust Corp.

v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994).

The defendants' motions to extend time, filed on February

5 and February 20, do not satisfy these criteria.3 Neither motion

identifies a single sought-after fact. Neither motion indicates

whether the desired information can be gathered within a reasonable

3
We note that these motions, collectively, sought to extend
the time for filing the defendants' opposition to March 3, 2003.
In point of fact, the opposition was not filed until March 18,
2003.

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interval. And neither motion relates how that information, if

unearthed, would influence the outcome of the pending summary

judgment motion.

What the February motions do attempt to provide are

reasons why an extension should be granted. The defendants

attribute their predicament to a week-long delay in the taking of

the plaintiff's deposition, a week-long delay in the plaintiff's

service of answers to interrogatories, and defense counsel's

professed "need" to travel to Florida "in matters regarding to

[sic] our legal profession." These are more excuses than reasons.

The deposition was completed a full two weeks before the court-

appointed deadline for filing an opposition, and the plaintiff

answered the interrogatories in approximately the same time frame.

Last — but far from least — the fact that counsel may have bitten

off more than he could chew does not exempt him from meeting court-

appointed deadlines. See Mendez v. Banco Popular, 900 F.2d 4, 6-7

(1st Cir. 1990) (collecting cases); see also Pinero Schroeder v.

FNMA, 574 F.2d 1117, 1118 (1st Cir. 1978) (per curiam) ("Most

attorneys are busy most of the time and they must organize their

work so as to be able to meet the time requirements of matters they

are handling or suffer the consequences.").

The defendants now try to rectify some of their earlier

omissions. In this court, they attribute the need for a further

extension to a motley of events, including Nieves's untimely

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demise, a switch in counsel resulting from his death, and the fact

that the plaintiff's attorneys closed their offices for two weeks.

These importunings are too little and too late. A party who seeks

to be relieved from a court-appointed deadline has an obligation,

at a bare minimum, to present his arguments for relief to the

ordering court. An unexcused failure to do so constitutes a

waiver. See McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st

Cir. 1991) (explaining that matters not raised squarely in the

district court cannot be raised for the first time on appeal).

Here, moreover, the defendants' proffered reasons are

less than compelling. Nieves died on May 25, 2002 — almost nine

months before the due date for the defendants' opposition. The

switch in counsel occurred in that same time frame — and in any

event, a party's decision to discharge one lawyer and retain

another does not serve as a free pass to ignore court-appointed

deadlines. Finally, the relevance of the office closing is less

than obvious, and the defendants do nothing to enlighten us.

To cinch matters, it would strain credulity to

characterize the defendants' pretrial discovery efforts in this

case as duly diligent. As the chronology indicates, see supra Part

I, the defendants dragged their feet from the very inception of the

action. They had ample time to conduct discovery (roughly one year

elapsed between the start of suit and the entry of partial summary

judgment). By the same token, they had ample time to prepare an

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opposition (the court allowed them over three months from the date

the plaintiff filed her motion for partial summary judgment and

approximately two months from the date of the OSC). In the

ordinary course, a party protesting what he believes to be a

gadarene rush to judgment in the face of delayed discovery must

have offered to the district court a credible and convincing

explanation for his inability to obtain the necessary information

within the time allotted. See Vargas-Ruiz, 368 F.3d at 5. The

defendants' explanations fall far short.

Appellate review of a district court's case-management

decisions is solely for abuse of discretion. Rosario-Diaz v.

Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998); C.B. Trucking, Inc. v.

Waste Mgmt., 137 F.3d 41, 44 (1st Cir. 1998). Given the

circumstances at hand, the district court plainly did not abuse its

discretion in proceeding, when it did, to decide the motion for

partial summary judgment. After all:

Rules are rules — and the parties must play by
them. In the final analysis, the judicial
process depends heavily on the judge's
credibility. To ensure such credibility, a
district judge must often be firm in managing
crowded dockets and demanding adherence to
announced deadlines. If he or she sets a
reasonable due date, parties should not be
allowed casually to flout it or painlessly to
escape the foreseeable consequences of
noncompliance.

Mendez, 900 F.2d at 7.

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 The defendants have a fallback position: they claim that

genuine issues of material fact existed in the record and that the

plaintiff was not entitled to a liability finding as a matter of

law. We review the merits of the entry of partial summary judgment

de novo. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.

1990). Our response will be brief.

Because the defendants failed to file an opposition to

the motion for partial summary judgment by the court-appointed

deadline (February 20, 2003), the district judge was entitled to

consider the motion as unopposed and to disregard a subsequently

filed opposition. See Mendez, 900 F.2d at 7-8 (collecting cases).

In the same vein, the court was obliged to take the plaintiff's

statement of uncontested facts as true. See D.P.R.R. 311.12; see

also Euromodas, Inc. v. Zanella, Ltd., 368 F.3d 11, 14-15 (1st Cir.

2004).

That does not mean, however, that summary judgment should

automatically follow. Even when faced with an unopposed motion for

summary judgment, a court still has the obligation to test the

undisputed facts in the crucible of the applicable law in order to

ascertain whether judgment is warranted. See Mendez, 900 F.2d at

7; see also Fed. R. Civ. P. 56(e) (instructing that if the adverse

party fails to respond, "summary judgment, if appropriate, shall be

entered") (emphasis supplied). The district court fully understood

this nuance. It proceeded to align the undisputed facts and apply

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the proper adjudicative rules for sexual harassment claims to those

facts. We need not dwell on the court's resulting handiwork.

By their inaction, the defendants allowed the plaintiff

to configure the summary judgment record. Confronted with a set of

facts that pointed unerringly in one direction, the district court

did its duty. "We have long proclaimed that when a lower court

produces a comprehensive, well-reasoned decision, an appellate

court should refrain from writing at length to no other end than to

hear its own words resonate." Lawton v. State Mut. Life Ins. Co.,

101 F.3d 218, 220 (1st Cir. 1996). That principle pertains here.

On the merits, therefore, we affirm the district court's entry of

partial summary judgment for substantially the reasons elucidated

in the district court's erudite rescript. See Vélez Cortes v.

Nieves Valle, 253 F. Supp. 2d 206, 212-15 (D.P.R. 2003).

B. The Motions to Dismiss.

The district court denied both of the defendants' motions

to dismiss in the course of sanctioning them for their

noncompliance with the OSC order. A disgruntled litigant bears a

heavy burden in attempting to challenge the imposition of a

sanction arising out of the violation of a case-management order.

See United States v. One 1987 BMW 325, 985 F.2d 655, 657 (1st Cir.

1993). Appellate review of such orders is for abuse of discretion.

Rosario-Diaz, 140 F.3d at 315. An abuse of discretion presents

itself "when a material factor deserving significant weight is

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ignored, when an improper factor is relied upon, or when all proper

and no improper factors are assessed, but the court makes a serious

mistake in weighing them." Indep. Oil & Chem. Workers of Quincy,

Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.

1988).

Where, as here, a trial court is faced with flagrant

disregard of a pretrial order, the court is authorized, either upon

motion or sua sponte, to "make such orders with regard thereto as

are just." Fed. R. Civ. P. 16(f). Rule 16(f) incorporates by

reference the compendium of remedies listed in Fed. R. Civ. P. 37.

That compendium includes "[a]n order refusing to allow the

disobedient party to support or oppose designated claims or

defenses." Fed. R. Civ. P. 37(b)(2)(B). The trial judge in this

case acted under the authority granted by this rule. The

defendants contend that, in doing so, he ignored two material

factors deserving significant weight and, thus, abused his

discretion. See Indep. Oil & Chem. Workers, 864 F.2d at 929.

First, the defendants insist that they substantially

complied with the requirements of the OSC order. Their insistence

is belied by the record. In the first place, the financial

disclosure required by the court's order was never made.4 In the

4
While it may be true that the defendants furnished some sort
of financial statement to the plaintiff on December 6, 2002 (prior
to the OSC), the district court obviously believed that more was
required. The defendants must have understood this; after all,
they abjured any objection when the court entered the December 20

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second place, the defendants concede that the hearsay memorandum

was not filed until March 18, 2003 — two months after the deadline

mandated by the district court's scheduling order. That this

belated filing occurred before the district court ruled on the

motions to dismiss makes no dispositive difference.

The defendants' second argument is that the calendar

established under the scheduling order was too rigorous. We

already have dealt with the essence of this argument. See supra

Part II(A). To that, we add what the chronology makes apparent:

that the able trial judge bent over backwards to allow a reasonable

time for completion of pretrial matters. The record makes manifest

that the defendants' cavalier disregard of court-appointed

deadlines, not the district court's intransigence, led to their

downfall. Given the district court's largesse and its explicit

warnings about the consequences of noncompliance, the court most

assuredly did not abuse its discretion in hewing to its timetable.

In an effort to alter this conclusion, the defendants

point out that the March 18 motion to dismiss implicated the

court's subject-matter jurisdiction.5 They then note that a

order mandating fuller financial disclosure. Their present
contention is, therefore, waived. See Reilly v. United States, 863
F.2d 149, 159 (1st Cir. 1988) (explaining that a failure seasonably
to object to a procedural order bars an appeal predicated thereon).
5
The other motion to dismiss, filed January 15, 2003, need not
concern us. That motion asserted that the claim against the Estate
should be dismissed because the law does not provide for
supervisory liability. While that may be true of Title VII,

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federal court's subject-matter jurisdiction may not be waived.

Bennett v. City of Holyoke, 362 F.3d 1, 7-8 (1st Cir. 2004). It

follows, they say, that federal courts are precluded from

sanctioning litigants by refusing to consider their motions to

dismiss for lack of subject-matter jurisdiction.

That proposition is true as far as it goes, but it does

not take the defendants very far. The March 18 motion was premised

on the plaintiff's supposed failure to file timely charges with the

EEOC. Over two decades ago, the Supreme Court held that "filing a

timely charge of discrimination with the EEOC is not a

jurisdictional prerequisite to suit in federal court, but a

requirement that, like a statute of limitations, is subject to

waiver, estoppel, and equitable tolling." Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 393 (1982). That the defendants

improperly classified this motion as raising a lack of subject-

matter jurisdiction does not change its real nature. Consequently,

the district court was free to consider the denial of the motion as

a sanction.

We summarize succinctly. On an appeal from an order

imposing sanctions for noncompliance with a case-management order,

we must defer to the trial court's informed assessment of the

judgment was entered in this case pursuant to 29 P.R. Laws Ann. §
146. This statute imposes liability on supervisors for acts of
sexual harassment. See Mejias Miranda v. BBII Acquis'n Corp., 120
F. Supp. 2d 157, 172 (D.P.R. 2000). Thus, any error in denying
that motion to dismiss was harmless.

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situation. See Rosario-Diaz, 140 F.3d at 315 ("[W]e acknowledge

the trial judge's special coign of vantage and give him a wide

berth to determine what sanction responds most aptly to a

particular infraction."); Legault v. Zambarano, 105 F.3d 24, 26

(1st Cir. 1997) (discussing "the importance of supporting a trial

court's decisions concerning sanctions"). Applying this

deferential standard of review, we discern no abuse of discretion

in the district court's decision to deny the motions to dismiss as

a sanction.

C. The Hearsay Memorandum.

The defendants expend considerable energy calumnizing the

district court's method of handling the potential hearsay evidence

issue in this case. They tell us that the court abused its

discretion when it (i) ordered a memorandum on the admissibility of

hearsay evidence too early in the proceedings, (ii) sanctioned the

defendants (by precluding the use of certain hearsay testimony) for

their failure seasonably to file the memorandum, and (iii) refused

to consider the memorandum when it was submitted by the defendants

two months late. These calumnies ring hollow.

If there is one abiding truth illustrated by the travel

of this case, see supra Part I, it is that the defendants would

have been better served expending their energies during discovery

and other pretrial proceedings rather than on appeal. The record

reflects that they arrived at the OSC unprepared to participate

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effectively in the proceedings. There is no indication that they

objected when the district court afforded them approximately one

month within which to file "a memorandum concerning the

admissibility of hearsay and other evidence in the occasion when a

party has died prior to having given a deposition and/or prior to

trial." Nor is any basis for an objection apparent. The January

17 deadline fixed by the court gave the defendants ample time

within which to research the hearsay issue. Yet January 17 came

and went without the filing of the requisite memorandum.

Courts are entitled — indeed, they should be encouraged

— to ask counsel for input on legal issues that seem likely to

arise in the course of trial. Here, the defendants squandered what

should have been a welcome opportunity to persuade the court that

hearsay evidence should be liberally admitted in view of Nieves's

demise. When a litigant fails to comply with a case-management

order, the court has substantial authority to impose a condign

sanction. See Tower Ventures, Inc. v. City of Westfield, 296 F.3d

43, 45-46 (1st Cir. 2002). We cannot say that the court below

abused its discretion when it precluded certain hearsay testimony

as a sanction for the defendants' protracted delay in submitting

the memorandum in question. See Fed. R. Civ. P. 16(f) (providing,

through reference to Rule 37(b)(2)(B), that a court may prohibit a

litigant "from introducing designated matters in evidence" as a

sanction for noncompliance with a scheduling order).

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III. CONCLUSION

To sum up, the record in the instant case is replete with

instances of the defendants' disregard of court orders. Even so,

the district court exhibited considerable patience in accommodating

the defendants' lapses. And when the court finally drew a line in

the sand, it gave the defendants explicit warning that further

procrastination would risk severe consequences. To accuse the

court of abusing its discretion because the defendants chose

struthiously to ignore this warning stands logic on its ear.

We need go no further. For the reasons alluded to above,

we uphold the entry of judgment for the plaintiff.

Affirmed.

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