David O'Shields v. Piedmont Glass

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

David O'Shields, Appellant,

v.

Piedmont Glass & Mirror Company, Inc., Julie Taylor,
David Taylor, and Carolina Storefront Systems, Inc.,
Respondents.

Appellate Case No. 2020-000161

Appeal From Cherokee County
J. Mark Hayes, II, Circuit Court Judge

Unpublished Opinion No. 2023-UP-256
Heard June 7, 2023 – Filed June 28, 2023

REVERSED AND REMANDED

Chelsea R. Rikard, of A Business Law Firm, LLC, of
Spartanburg, for Appellant.

Joseph L.V. Johnson, of Saint-Amand, Thompson &
Mathis, LLC, of Gaffney, for Respondents.

PER CURIAM: In this action against Piedmont Glass & Mirror Co., Inc.
(Piedmont), Julie Taylor, David Taylor, and Carolina Storefront Systems, Inc.
(collectively, Respondents), David Lynn O'Shields (Lynn) appeals, arguing the
circuit court erred in (1) applying the Statute of Frauds to find he was not a partner
or shareholder; (2) failing to find Respondents were equitably estopped from
asserting the Statute of Frauds; (3) applying a statute of limitations; (4) failing to
find he was oppressed as a shareholder; and (5) failing to find Carolina Storefront
was a successor corporation of Piedmont. 1 We reverse and remand.

FACTS

This case involves a dispute between Lynn, and his sister and her husband, Julie
and David Taylor. Lynn testified at a bench trial that in the early 1990s, he was
working at Cone Mills Carlisle Finishing when Julie asked him to work for her at
Piedmont. According to Lynn, Julie told him that if he worked for her at a reduced
salary for a year, he would be a 50% owner in Piedmont. Lynn admitted the 1995
agreement he made with Julie was verbal. Lynn's wife, Sarah, testified she was
present when Julie asked Lynn, for the second or third time, to go into business
with her for a 50% ownership share. Lynn and Julie's brother, Mark, who also
worked for Piedmont, testified Julie asked him into her office "to explain to [him]
why [she] chose Lynn to be [her] business partner instead of [Mark]." Mark
testified Julie told him that her deal with Lynn was if he ran the commercial glass
business for a year, he would be a 50% owner of the business.

Lynn testified he agreed to Julie's offer, and his income dropped from $34,000 per
year at Cone Mills to approximately $11,000 per year at Piedmont. 2 Lynn began
working for Piedmont in mid-1995 and worked exclusively for Piedmont
beginning in 1996. Lynn claimed he contributed a truck and many tools for
Piedmont's use at the job sites.

1
Lynn alleged causes of action for the following: an accounting, conversion, ultra
vires, conflict of interest transactions, breach of fiduciary duties, preference,
judicial dissolution of corporation, civil conspiracy, negligent misrepresentation,
violation of the South Carolina Unpaid Wages Act, violation of the South Carolina
Workers' Compensation Act, negligence and gross negligence, negligent
supervision, fraudulent transfer, and appointment of a court receiver. In an earlier
order, the circuit court denied Respondents' motion for summary judgment except
for the dismissal and grant of summary judgment on Lynn's workers' compensation
and wage claims.
2
Lynn admitted he received some cash payments during this period that he did not
report on his tax return; however, he did not recall any amounts.
The December 10, 1998, Minutes of Organizational Meeting of Shareholders lists
Lynn, Julie, and David as being present at the meeting, the election of Julie as
president and David as secretary, the unanimous approval of the adoption of a
Shareholder Management Agreement, and the subscription of shares of stock as
follows: 400 to Julie, 400 to Lynn, and 200 to David. The Minutes also provided
that the shareholders approved a motion that the subscriptions for shares in the
company were conditioned "upon payment." Lynn testified he attended the
meeting and was named vice president.

Piedmont filed Articles of Incorporation on December 14, 1998, indicating the
existence of the corporation as of January 1, 1999. David was listed as the
registered agent. Lynn testified that although he was promised a 50% share in
Piedmont, a "lending establishment wanted [the Taylors] to have controlling
interest" in Piedmont, so the paperwork indicated Lynn owned 40%, Julie owned
40%, and David owned 20%. Lynn claimed the Taylors assured him that he still
owned 50%, despite the paperwork. The South Carolina Department of Revenue
(SCDOR) Business Tax Application, filed December 10, 1998, and signed by
David as the "Sec/Treas," also indicated the 40/40/20 ownership percentages. In
addition, all tax returns dated between 1999 and 2006 identified Lynn as a
shareholder. Lynn also signed corporate documents dated January 22, 2001, and
July 14, 2004, as the vice president. These and numerous other corporate
documents indicate Lynn is a shareholder. A stock transfer ledger reflects transfers
of 400 shares to Lynn, 400 shares to Julie, and 200 shares to David, all on January
1, 1999. 3

In 2007, Lynn fell off a ladder while working for Piedmont and broke his right heel
bone. He endured five surgeries before eventually having his foot amputated in
2013. At the time of the accident, Lynn's doctor recommended he not drive or
return to work for six months. When he attempted to return to work after six
months, Lynn was told he could work, but he would not be paid. Lynn filed a
workers' compensation claim. After Lynn's accident and effective "firing," he was
no longer provided notice of corporate meetings and was omitted as an owner from
the corporate records and tax returns.

A March 10, 2008 corporate resolution noted a dispute about Lynn's ownership and
stated "[a]ction [was] therefore taken by at minimum 60% of shareholders." A

3
Julie testified the signatures on the Stock Transfer Ledger were not in her or
David's handwriting. The ledger does not identify the names as signatures and
appears more as a list.
similar notation is included in an April 1, 2008 corporate resolution. On
September 10, 2009, David and Julie executed a corporate resolution to "cancel the
stock subscription issued to" Lynn. On March 15, 2011, while this action was
pending, David filed Articles of Incorporation for Carolina Storefront naming
himself as the only owner. All shares were issued to David. On August 1, 2011,
Julie and David executed a corporate resolution to approve the sale of Piedmont's
real and personal property to Carolina Storefront. The Piedmont assets were sold
to Carolina Storefront on October 31, 2011, for $5. Piedmont was dissolved on
February 22, 2013.

Julie testified she worked for Piedmont in the early 1990s for the previous owner,
Brian Currie. After a fire damaged the business, Julie purchased it from Currie.
Currie's corporation was dissolved on April 14, 1995. Julie claimed she asked
Lynn to work for her to grow the business. Soon thereafter, David also began
working for her. According to Julie, Lynn quit in anger on multiple occasions.
Julie testified that after Lynn's injury, Piedmont offered him the opportunity to
work in-house, but Lynn refused and "said he had to do what his doctor told him to
do . . . ." Julie admitted that during her deposition for the workers' compensation
action she testified Lynn was a partner, stating then, "somebody in his position . . .
shouldn't expect to be out of work for six months when there [were] plenty of
things he could do there being a partner of the company," and "I would expect an
adult who was a part owner of a company to have more interest in his company."
Her deposition testimony also reflected her statement that she did not know how
Lynn breached a duty to the corporation. Julie admitted Lynn brought tools to use
at work, but claimed all employees were required to provide their own tools. Julie
next admitted that in her deposition testimony, she confirmed the Business Tax
Application identifying Lynn as 40% owner was accurate. She also admitted she
signed the Shareholder Management Agreement that identified Lynn as a
shareholder.

David, a CPA, testified he began helping at Piedmont while still employed at
another job. He described his duties as "[taking] care of all accounting and
computer systems." He claimed he invested approximately $42,000 into Piedmont;
however, he admitted during cross-examination that the $42,000 was a loan despite
being recorded on the financial statements as capital. David testified Piedmont
purchased the building it was renting as indicated in the January 22, 2001,
resolution. According to David, tax liens against Piedmont of approximately
$500,000 led to the formation of Carolina Storefront. He testified that although
Carolina Storefront bought Piedmont's assets for $5, it had to pay off Piedmont's
liens, including $60,000 to SCDOR, and $17,000 in other liens, to get a loan and
mortgage.

Lynn testified he obtained a loan to finance the purchase of the building. He
claimed that when Piedmont was incorporated, David and Julie represented to him
that the bank required David to be an owner and Lynn had to pledge all of his
personal assets, including his home, car, and jewelry, as collateral for the loan.
Lynn testified he never had access to the corporate finances and David controlled
the "financial ends of it," although Lynn was aware of issues with Piedmont's
financial bookkeeping as early as 1999. Lynn also testified he suffered tremendous
financial loss due to his purported ouster as a shareholder by Julie and David.

John Freeman testified as an expert in "the field of proper conduct by business
managers in factual settings involving business governance decisions and stock
issuance actions." Freeman concluded Lynn and Julie entered into a "handshake
partnership," and that Lynn's "buy-in" was his sweat equity. Freeman based his
findings on the unlikelihood of Lynn taking a lower-paying position absent any
incentive and on Julie's admissions during the workers' compensation proceeding
that Lynn was an owner in Piedmont. Freeman explained the partnership interest
"morphed into" a corporate interest. He also considered Lynn's contribution of a
truck and equipment to the company. He relied on the corporate documents
reflecting Lynn as a shareholder and Lynn being required to guarantee a loan and
pledge personal assets to secure the company's building. Freeman also relied on
the SCDOR and IRS filings that listed Lynn as a 40% owner. According to
Freeman, the original partnership agreement was not required to be in writing.
Freeman also testified regarding stockholder oppression and successor
corporations, concluding this was a classic case of a minority shareholder being
frozen out of his shareholder interest, and Carolina Storefront was a "succession"
company to Piedmont.

Geoffrey Handel, who was qualified as an expert in forensic accounting, tax
preparation, and fraud examinations, testified Piedmont's corporate documents
indicated there were three owners. Handel testified regarding Piedmont's
inappropriate finances 4 and concluded the sale of Piedmont's building to Carolina
Storefront was not an arms-length transaction.

4
Handel testified there were many personal items paid for by the corporation
throughout the years of Piedmont's existence.
By order filed June 4, 2019, the circuit court dismissed the case with prejudice
based on the expiration of the statute of limitations and on the Statute of Frauds. In
its order, the court initially found Lynn failed to prove he was a shareholder. The
court next found the oral agreement, if it existed, could not be judicially enforced
because the Shareholder Agreement provided that shares were conditioned "upon
payment," and Lynn admitted he never paid for his shares. The court also noted
Piedmont was incorporated in 1998 and Lynn did not file this action until 2007. It
found Lynn was barred by the statute of limitations because although Lynn
claimed a 50% ownership, he had reason to know the documents indicated he had a
40% ownership, and he took no action. The court stated all causes of action other
than the negligent misrepresentation claim were dependent on Lynn's status as a
shareholder, and Lynn could not meet every element of a negligent
misrepresentation claim. The court found it was "wrong" of the defendants to have
exposed Lynn to the debt liability and listed him on tax returns as a shareholder
while claiming he was not a shareholder. The court stated, "Does a lack of
sophistication justify the [Respondents'] conduct when the evidence more-likely-
than-not establishes that all the parties felt that [Lynn] had a vested interest in the
business? It does not." However, the court ultimately found Lynn did not present
evidence of "specific damages or injury" and failed to meet his burden of proving
any of his claims. Lynn moved for reconsideration, including requesting rulings
on the issues of equitable estoppel, partial performance, oppression, and successor
liability. The court denied the motion, finding that as to the issues not ruled upon,
its findings that Lynn failed to prove he was a shareholder and the bar of the statute
of limitations were dispositive. This appeal follows.

STANDARD OF REVIEW

Although Lynn alleged both legal and equitable claims, we find the crux of his
complaint arises from his position as a shareholder in Piedmont. Thus, we review
this as an action in equity. See Straight v. Goss, 383 S.C. 180, 191, 678 S.E.2d
443, 449 (Ct. App. 2009) ("[A]n action for stockholder oppression[] is one in
equity."). "In actions in equity[,] . . . the appellate court may view the evidence to
determine the facts in accordance with its own view of the preponderance of the
evidence . . . ." Florence Cnty. Sch. Dist. No. 2 v. Interkal, Inc., 348 S.C. 446, 450,
559 S.E.2d 866, 868 (Ct. App. 2002).

LAW/ANALYSIS
A. Shareholder Status, the Statute of Frauds, and Equitable Estoppel 5

Lynn initially argues the circuit court erred in finding he was not a shareholder.
He also argues the court erred in finding even if an agreement existed for him to
become a shareholder, the Statute of Frauds barred the agreement. Lynn next
argues the court erred in failing to find Respondents equitably estopped from
raising the Statute of Frauds. 6

We first find the circuit court erred in finding Lynn was not a shareholder in
Piedmont. Although the December 10, 1998 Minutes provided that subscriptions
for shares in the company were conditioned "upon payment," it was clear that
David also did not pay for his shares because he admitted during testimony that he
considered his $42,000 payment to be a loan. We find Respondents' failure to
otherwise enforce the agreement prevents them from enforcing it against Lynn.

Participants in close corporations and similar businesses
often fail to observe corporate formalities or specific
terms of shareholders' agreements. The close
relationships among the parties sometimes lead them to
depart from formalities that they have written down in
the past and that informality can sometimes create
problems in the use of share transfer restrictions and
buyout agreements. . . . At a later point when harmony
among the participants disappears and one side seeks to
enforce the provisions of a restriction, the earlier
informality may become an issue.

Courts sometimes have found that prior inconsistent
conduct causes the agreement to no longer be
enforceable, as where transfers have been permitted and
considerable time has passed.

***

Failure to trigger the procedures specified in the
agreement can lead to loss of that right . . . .

5
We combine Lynn's first and second arguments.
6
Lynn also argues the doctrine of partial performance entitled him to relief.
1 F. Hodge O'Neal, Robert B. Thompson & Harwell Wells, O'Neal and
Thompson's Close Corporations and LLCs: Law and Practice § 7:15 (3d ed.
2022). All of the documentary evidence indicates Lynn was a shareholder. In
addition, Julie referenced Lynn's status as an owner and/or partner in her
deposition testimony for the workers' compensation action. Even the circuit court
found "the evidence more-likely-than-not establishes that all the parties felt that
[Lynn] had a vested interest in the business." Based on our own view of the
preponderance of the evidence, we find Lynn was a shareholder; thus, we reverse
the circuit court on this issue.

We likewise reverse the circuit court on the issue of the Statute of Frauds because
we find Respondents were equitably estopped from asserting the Statute of Frauds
as a defense. 7 The Statute of Frauds provides that all agreements that cannot be
performed within one year shall be in writing and signed by the party to be
charged. S.C. Code Ann. § 32-3-10(5) (2007). In Springob, our supreme court
remanded the issue of whether the doctrine of equitable estoppel applied to prevent
the University from asserting the Statute of Frauds to avoid a contract between the
University and members of the University of South Carolina Gamecock Club. 407
S.C. at 497–98, 757 S.E.2d at 387–88. The court stated the following:

"[T]he doctrine of estoppel may be invoked to prevent a
party from asserting the statute of frauds." Collins Music
Co. v. Cook, 281 S.C. 580, 583, 316 S.E.2d 418, 420 (Ct.
App. 1984) (citing Florence Printing Co. v. Parnell, 178
S.C. 119, 127, 182 S.E. 313, 316 (1935)). The party
asserting estoppel "must show that he has suffered a
definite, substantial, detrimental change of position in

7
Because we find equitable estoppel bars the application of the Statute of Frauds
here, we need not reach whether the contract could be completed within one year
or whether the equitable doctrine of partial performance applies. See Springob v.
Univ. of S.C., 407 S.C. 490, 495–96, 757 S.E.2d 384, 387 (2014) ("If there is a
possibility that a contract might be performed within one year, the statute of frauds
is not a bar to enforcement of the contract."); Coker v. Richtex Corp., 261 S.C. 402,
406, 200 S.E.2d 231, 232 (1973) ("Our courts have long recognized the majority
rule that full performance by one side will take the entire contract out of
the one year clause of the statute of frauds."); Stackhouse v. Cook, 271 S.C. 518,
521, 248 S.E.2d 482, 483 (1978) (stating "sufficient part performance of a parol
contract for the conveyance of land will remove the contract from the statute of
frauds").
reliance on the contract, and that no remedy except
enforcement of the bargain is adequate to restore his
former position." Id. "It is not sufficient to show merely
that he has lost an expected benefit under the
contract." Id.

Springob, 407 S.C. at 497, 757 S.E.2d at 387–88.

To invoke the doctrine of equitable estoppel to prevent the application of the
statute of frauds, there must be competent proof of the existence of the oral
contract. Atl. Wholesale Co. v. Solondz, 283 S.C. 36, 40, 320 S.E.2d 720, 723 (Ct.
App. 1984) (quotations and citations omitted). Lynn testified to the existence of
the agreement and provided evidence from Sarah and Mark in support thereof.
There was evidence Lynn voluntarily reduced his salary to work for Piedmont and
expert evidence that a person is unlikely to do so absent a compelling reason.
Although Respondents presented contrary evidence, in our own view of the
preponderance of the evidence, we find it insufficient to dispute Lynn's claim of
the existence of the oral contract. See U.S. Bank Tr. Nat. Ass'n v. Bell, 385 S.C.
364, 375, 684 S.E.2d 199, 205 (Ct. App. 2009) (applying the appellate court's own
view of the preponderance of the evidence in an equitable action).

In Strickland v. Strickland, our supreme court explained that "[t]he essential
elements of equitable estoppel are divided between the estopped party and the
party claiming estoppel." 375 S.C. 76, 84, 650 S.E.2d 465, 470 (2007). The court
continued:

The elements of equitable estoppel as related to the party
being estopped are: (1) conduct which amounts to a false
representation, or conduct which is calculated to convey
the impression that the facts are otherwise than, and
inconsistent with, those which the party subsequently
attempts to assert; (2) the intention that such conduct
shall be acted upon by the other party; and (3) actual or
constructive knowledge of the real facts. The party
asserting estoppel must show: (1) lack of knowledge, and
the means of knowledge, of the truth as to the facts in
question; (2) reliance upon the conduct of the
party estopped; and (3) a prejudicial change of position in
reliance on the conduct of the party being estopped.
Id. at 84–85, 650 S.E.2d at 470. As to Respondents, we find the elements are met.
There is evidence Julie offered Lynn a 50% share in Piedmont if he came to work
for it for one year. However, she subsequently contended she merely hired him as
an employee. Julie knew Lynn was leaving a job for a reduced salary to work for
her, which she intended and expected of him. Yet according to her, she never
intended to make or consider Lynn a partner or shareholder. As to Lynn, we
likewise find the elements are met. Lynn testified he left his job to work for
Piedmont, was required to pledge personal assets, and brought his truck and tools
to Piedmont. We find these acts meet all three of the elements for the party
asserting estoppel. See State v. Hinojos, 393 S.C. 517, 523, 713 S.E.2d 351, 354
(Ct. App. 2011) ("In order to overcome statutory requirements that an agreement
be in writing, the party asserting estoppel must show that he suffered a definite,
substantial, detrimental change of position in reliance on such agreement and that
no remedy except enforcement of the bargain is adequate to restore his former
position." (quoting Player v. Chandler, 299 S.C. 101, 106, 382 S.E.2d 891, 894
(1989))); Mazloom v. Mazloom, 382 S.C. 307, 318–19, 675 S.E.2d 746, 752 (Ct.
App. 2009) (finding estoppel applied to brothers who challenged the plaintiff's
ownership in a corporation where the brothers signed documents representing the
plaintiff held a 25% ownership in a corporation with knowledge the plaintiff would
rely on it and the plaintiff did rely on it), aff'd, 392 S.C. 403, 709 S.E.2d 661
(2011).

B. Statute of Limitations

Lynn argues the circuit court erred in finding his action barred by the statute of
limitations. We agree.

Both parties argue this action is governed by the three-year statute of limitations
dictated by section 15-3-530 (2005) of the South Carolina Code. Respondents
additionally argue it is governed by the three-year statute of limitations in the
South Carolina Business Corporation Act. 8 The discovery rule applies under either
statute of limitations. See Rumpf v. Mass. Mut. Life Ins. Co., 357 S.C. 386, 394,
593 S.E.2d 183, 187 (Ct. App. 2004) ("In determining when a cause of action arose
under section 15-3-530, we apply the 'discovery rule.'"); § 33-8-420(e) (explaining
an action under this section must be commenced "within three years after the cause
of action has accrued, or within two years after the time when the cause of action is
discovered, or should reasonably have been discovered, whichever sooner occurs"
unless the "breaches of duty . . . have been concealed fraudulently").

8
S.C. Code Ann. § 33-8-420(e) (2006).
In Dean v. Ruscon Corp., our supreme court explained the discovery rule:

According to the discovery rule, the statute of limitations
begins to run when a cause of action reasonably ought to
have been discovered. The statute runs from the date the
injured party either knows or should have known by the
exercise of reasonable diligence that a cause of action
arises from the wrongful conduct. We have interpreted
the "exercise of reasonable diligence" to mean that the
injured party must act with some promptness where the
facts and circumstances of an injury place a reasonable
person of common knowledge and experience on notice
that a claim against another party might exist. Moreover,
the fact that the injured party may not comprehend the
full extent of the damage is immaterial.

321 S.C. 360, 363–64, 468 S.E.2d 645, 647 (1996) (internal citations omitted).
"[T]he discovery rule exists to avoid the harsh and unjust result of closing the
courtroom doors to a plaintiff whose 'blameless ignorance' resulted in a failure to
pursue a cause of action within the limitations period." Moriarty v. Garden
Sanctuary Church of God, 341 S.C. 320, 333, 534 S.E.2d 672, 678–79 (2000),
holding modified on other grounds by State v. Cherry, 361 S.C. 588, 606 S.E.2d
475 (2004). Although a statute of limitations "is intended to run against those who
are neglectful of their rights and who fail to exercise reasonable diligence in
enforcing their rights[,] . . . it is not the policy of the law to unjustly deprive an
injured person of a remedy." Id. at 333, 534 S.E.2d at 679. Conflicting evidence
as to the application of the discovery rule and the date a statute of limitations began
to run present questions of fact. Allwin v. Russ Cooper Assocs., 426 S.C. 1, 13,
825 S.E.2d 707, 713 (Ct. App. 2019).

Respondents argue because Lynn knew as early as December 1998—by executing
documents stating he owned 40% of the company— he was not a 50% owner, his
action was filed well beyond the expiration of the statute of limitations. Lynn
argues the circuit court erred in likewise finding him barred because he claimed a
50% rather than 40% share in Piedmont. Lynn argues the appropriate inquiry for
determining when the statute of limitations begins to run is when Lynn knew or
had reason to know that Respondents were denying he was an owner at all.
Lynn testified Respondents told him the reason the documentary evidence
indicated he only owned 40% of Piedmont was due to a requirement by the
corporation's lenders. At trial, Respondents presented no evidence to explain the
documents reflecting Lynn's 40% ownership rather than 50% because they denied
Lynn owned any of Piedmont. Lynn did not have actual notice of Respondents'
position until he returned to work after his injury in 2007, and he filed this action
in 2007. 9 Under our own view of the preponderance of the evidence, we find the
statute of limitations began to run when Lynn was told he could not return to work
for Piedmont for pay. See § 15-3-530(9) (explaining the three-year statute of
limitations in "an action against directors or stockholders . . . to recover a penalty
or forfeiture imposed or to enforce a liability created by law . . . [is] not considered
to have accrued until the discovery by the aggrieved party of the facts upon which
the penalty or forfeiture attached or the liability was created").

C. Oppression and Successor Corporation

Lynn argues the circuit court erred in failing to find he was oppressed as a
shareholder and in failing to find Carolina Storefront was a successor corporation
of Piedmont. In the court's order denying Lynn's motion for reconsideration, it
declined to rule on shareholder oppression and successor liability given its ruling
that Lynn was not a shareholder. Because we reverse the circuit court's findings on
Lynn's status as a shareholder and on the issues of the Statute of Frauds and the
statute of limitations, we remand the issues of oppression and successor
corporation.

CONCLUSION

We reverse the circuit court as to its findings on Lynn's status as a shareholder.
We also reverse the circuit court's order finding that Lynn was barred by the
Statute of Frauds because we find equitable estoppel applied. We likewise reverse
the circuit court's finding that Lynn was barred by the statute of limitations. We
remand the issues of shareholder oppression and successor corporation.

REVERSED and REMANDED.

9
We note that even the circuit court recognized Respondents' "act of denying
[Lynn's] injury claim and then firing [him] when he refused to do office or
customer[ ]service work during his period of work restriction was the original
domino that set off the events that have led to the present litigation . . . ."
THOMAS, MCDONALD, and HEWITT, JJ., concur.