George E. Failing Co, Appellant V. Cascade Drilling Inc., Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
NO. 69627-1-1	GEORGE E. FAILING COMPANY,
dba GEFCO, a division of Blue Tee
Corp., a Delaware corporation,
Appellant,
v.
DIVISION ONE
UNPUBLISHED OPINION
CASCADE DRILLING, INC., a
Washington corporation,
Respondent,
HUB CITY, INC., a Delaware
corporation,
Defendant.
I—3 	iS-CZ
FILED: 	February 18, 2014 -n
m
CO
CO
Leach, 	C.J. 	— George 	E. 	Failing 	Company, 	dba Gefco, 	appeals 	thir
amount of attorney fees and costs awarded to it by the trial court. 	Gefco sued
Cascade Drilling Inc. to recover payment for drilling equipment sold on credit.
Cascade asserted counterclaims related to other equipment that it purchased
from 	Gefco 	in a 	separate transaction. 	Later, 	it voluntarily dismissed 	these
counterclaims with prejudice. 	Based on a credit agreement that allowed Gefco to
recover its "cost of collecting this account if it becomes past due including, but
not limited to, reasonable attorney fees," the trial court awarded Gefco only those
fees and costs related to its debt collection, but not the fees it incurred defending
n n"( .

NO. 69627-1 / 2
against Cascade's counterclaims. 	Gefco claims that Washington law entitles it to
recover all of its costs and fees because Cascade pleaded its counterclaims as
an affirmative defense, which Gefco needed to defeat to recover in this collection
action. 	Gefco also alleges that Oklahoma law entitles it to recover all of its costs
and fees. 	Because Cascade's counterclaims were permissive and Gefco did not
raise Oklahoma law properly, we affirm.
FACTS
Gefco is a 	division of Blue Tee Corp., a 	Delaware corporation, which
manufactures 	and 	sells 	drilling 	equipment. 	Cascade 	is 	a 	Washington
corporation.
In September 1999, Cascade signed a credit agreement with Gefco to
facilitate its purchase of drilling equipment on account. 	This agreement stated, "If
this thirty day account is opened, I agree .. . [t]o pay attorney's fees in the event
that 	collection 	efforts 	become 	necessary" 	and 	"APPLICANT 	AGREES 	TO
ASSUME LIABILITY FOR PROMPT PAYMENT, LATE CHARGES, IF BILLED,
AND GEFCO'S COST OF COLLECTING THIS ACCOUNT IF 	IT 	BECOMES
PAST DUE INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEY
FEES."
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NO. 69627-1 / 3
On September 26, 2008, Cascade ordered from Gefco a PTO and pump
drive (PTO box) for a drilling rig. 	Gefco's invoice for this PTO box contained a
choice-of-law provision:
[A]ll. .. transactions 	between 	GEFCO 	and 	purchasers 	of 	its
products shall be governed by the laws of the State of Oklahoma,
subject to 	preempting federal 	law. 	It is 	agreed 	that exclusive
jurisdiction 	and 	venue for 	any legal 	action 	between the 	parties
arising out of or relating to this order shall be in the District Court for
Garfield 	County, 	Oklahoma, or, 	in cases where federal diversity
jurisdiction is available, in the United States District Court for the
Western 	District 	of 	Oklahoma, 	situated 	in 	Oklahoma 	City,
Oklahoma.
In July 2009, Gefco filed this lawsuit against Cascade to recover payment
for the PTO box, alleging 	breach of contract and quantum meruit. 	Its complaint
contained 	no jurisdiction or venue allegations. 	Cascade's 	answer asserted
affirmative 	defenses 	and 	counterclaims, 	including 	the 	following 	affirmative
defense: 	"Plaintiff is indebted to Defendant for non-conforming and otherwise
defective 	goods 	sold 	to 	Cascade 	Drilling, 	Inc. 	- 	California, 	a 	California
corporation that was merged into Defendant effective January 1, 2009, which
debt is in excess of any amounts alleged by Plaintiff to be owing in connection
with the [PTO box]." 	Cascade sought an offset for allegedly defective equipment
purchased from Gefco in March and April 2008.
In September 2009, Gefco filed a reply asserting 11 affirmative defenses
to Cascade's counterclaims, including the following:

NO. 69627-1 / 4
Cascade's and/or Cascade California's claims are barred by the
Terms and Conditions of Sale applicable to each of its purchases
from GEFCO, which set forth the sole and exclusive remedies of
the purchaser of the products manufactured by GEFCO. 	Pertinent
Terms and Conditions include but are not limited to ... . Cascade's
and/or Cascade California's claims are barred to the extent they are
not cognizable under Oklahoma law.
Gefco also alleged, "Cascade's and/or Cascade California's claims are frivolous
and are being advanced without reasonable cause, and thus, defendants should
be allowed to recover their attorney's fees pursuant to RCW 4.84.185."
In June 2010, Cascade filed an amended answer, affirmative defenses,
and counterclaims. 	In July 2010, Gefco filed a 	reply to Cascade's amended
pleading, asserting affirmative defenses similar to those in its 2009 reply.
On August 17, 2012, Cascade moved to voluntarily dismiss with prejudice
its counterclaims against Gefco. 	On September 10, 2012, Gefco moved for
summary judgment on 	its collection action and 	requested "attorney fees and
costs incurred 	herein." 	Gefco cited only Washington law in this motion. 	In
opposition to Gefco's motion for summary judgment, Cascade stated that it "has
now 	paid 	Gefco 	in full for 	the 	invoice 	that 	was 	the 	basis 	of 	its 	collection
action.. . . Remaining for consideration on the collection action is the award of
attorney fees and costs for collection efforts." 	Cascade argued that because its
counterclaims were permissive, "Gefco is only entitled to reasonable attorney's
fees and costs incurred prosecuting the collection action, and it is not entitled to
fees and costs incurred defending the counterclaims of Cascade."
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NO. 69627-1 / 5
On 	October 1, 2012, 	Gefco filed 	a 	separate 	motion for 	an 	award 	of
reasonable attorney fees. 	On October 3, 2012, Gefco filed a reply in support of
its motion for summary judgment. 	In both of these pleadings, Gefco cited both
Washington 	and 	Oklahoma 	law 	in support 	of 	its 	request for 	all costs 	and
reasonable 	attorney 	fees 	incurred 	in 	litigating 	the 	lawsuit, 	including 	those
incurred 	in defending 	against Cascade's counterclaims. 	Cascade 	moved to
strike this reply on the basis that it "raise[d] for the first time two new grounds for
attorney's fees, neither of which was mentioned in Gefco's moving papers."
On October 5, 2012, following a hearing, the trial court "grant[ed] Gefco's
motion for summary judgment on the debt collection action, but this issue is moot
because the debt has been paid. 	The only remaining issue on the debt collection
action is the award of attorney's fees and costs." The court stated in its order,
The 	court 	finds 	that 	the 	attorney-fee 	provision 	in 	the
Commercial Credit Agreement between Gefco and Cascade limited
Gefco's recovery of attorney's fees to "collection efforts."
Accordingly, 	this 	court 	finds 	that 	because 	Cascade's
counterclaims were permissive to the collection action, Gefco is not
entitled 	to 	attorney's 	fees 	and 	costs 	for 	defending 	against
Cascade's counterclaims. 	Gefco is only entitled to reasonable fees
and costs for its collection action.
The court also stated, "The court did not consider arguments under Oklahoma
law because they were raised for the first time in Reply."
On October 18, Cascade filed a response opposing Gefco's October 1
motion for reasonable attorney fees and costs, claiming, "Gefco's request for
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NO. 69627-1 / 6
attorney fees was already determined by this Court on October 5, 2012. 	The
Court 	denied 	its 	request 	and 	determined 	attorney 	fees 	were 	limited 	to 	its
collection action." Additionally, Cascade contended, "By arguing Washington law
throughout this case and in support of its argument for an award of attorney fees,
[Gefco] has waived any arguments to apply Oklahoma law."
On October 15, 2012, Gefco filed a motion for reconsideration, claiming,
The issue of whether Gefco is entitled to prevailing party
attorney 	fees 	pursuant 	to 	Oklahoma 	state 	law on 	Cascade's
counterclaims, as presented under a separate Motion for an Award
of Reasonable Attorney Fees and Costs (made in compliance with
CR 54(d)), should 	be considered separately and 	not as part of
Gefco's 	Motion 	for 	Summary 	Judgment 	as 	to 	Gefco's 	original
collection complaint against Cascade. 	Therefore, to the extent that
the October 5, 2012 Order resolving Gefco's summary judgment
motion forecloses on the ability of Gefco to collect attorney fees on.
its defense of Cascade's counterclaims under Oklahoma law, the
Order should be amended to limit its holding as to attorney fees to
be 	awarded 	on 	Gefco's 	original 	collections 	complaint 	against
Cascade. 	The Court should consider Gefco's claim for fees and
costs 	incurred 	for 	defending 	Cascade's 	counterclaim 	under
Oklahoma 	law 	pursuant 	to 	Gefco's 	pending 	CR 	54(d) 	motion
seeking an award of reasonable attorney fees and costs incurred in
defending Cascade's counterclaims.
The court denied this motion.
Gefco appeals.
STANDARD OF REVIEW
"We review whether the credit application entitles [a plaintiff] to recover
any attorney fees for defense of [a defendant's] counterclaims as an issue of law

NO. 69627-1 / 7
de novo."1 	We review the denial of a motion for reconsideration for abuse of
discretion.2 	A trial 	court 	abuses 	its discretion 	if its decision 	is 	manifestly
unreasonable or is based on untenable grounds.3
ANALYSIS
Gefco claims that it is "entitled to recover all of its attorney fees and costs
under Washington law, pursuant to its CreditAgreement with Cascade and RCW
4.84.330." 	Gefco alleges that the trial court's ruling "was erroneous, in that it
relied on a finding of fact and law that the counterclaims were 'permissive' as the
pivotal reason for denying fees and costs on the counterclaims." 	Gefco argues,
"The correct analysis is that Gefco is entitled to its fees and costs in defending
the 	counterclaims, 	because 	the 	core 	allegation—that the 	components 	were
defective—was asserted by Cascade both as a defense to the collection action
and as the basis for the counterclaims." We disagree.
RCW 4.84.330 entitles a party prevailing in an action to enforce a contract
containing an attorney fee provision to recover "reasonable attorneys' fees in
addition to costs and necessary disbursements." 	CR 13(b) defines a permissive
counterclaim as "any claim against an opposing party not arising out of the
1 Atlas Supply. Inc. v. Realm. Inc.. 170 Wn. App. 234, 237, 287 P.3d 606
(2012) (citing Ethridae v. Hwang, 105 Wn. App. 447, 460, 20 P.3d 958 (2001)).
2 Brinnon Grp. v. Jefferson County. 159 Wn. App. 446, 485, 245 P.3d 789
(2011) (citing Lilly v. Lynch, 88 Wn. App. 306, 321, 945 P.2d 727 (1997)).
3 State v. Emery, 161 Wn. App. 172, 190, 253 P.3d 413 (2011) (quoting
State v. Allen, 159Wn.2d 1, 10, 147 P.3d 581 (2006)).
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NO. 69627-1 / 8
transaction 	or occurrence that 	is the 	subject matter of the 	opposing 	party's
claim." 	"Permissive counterclaims 'do not affect, nor are they affected by, the
outcome' of the original claim."4 	In contrast, CR 13(a) defines a compulsory
counterclaim as one that "arises out of the transaction or occurrence that is the
subject matter of the opposing party's claim." 	A setoff is an affirmative defense
under CR 8(c).5
To support its claim, Gefco relies on Boeing Co. v. Sierracin Corp.6 and C;
C Bottlers, Ltd. v. J.M. Leasing, Inc.7 	Boeing is inapposite here because it did
not concern a collection action or an attorney fee provision in a contract; rather,
Boeing 	involved 	a 	claim for misappropriating trade 	secrets, 	and the 	parties
recovered fees under RCW 19.86.090 and RCW 19.108.040.8
Gefco argues that C-C Bottlers "required the court to turn away Cascade's
argument 	that the counterclaims 	were 	permissive 	and 	instead 	look 	to the
pleadings 	to 	determine 	whether 	Cascade's 	affirmative 	defense 	and 	the
counterclaims raised the same 	issues." 	Gefco misreads this 	case. 	In QzC
Bottlers, C-C Bottlers sued J.M. Leasing to collect delinquent promissory notes,
4 Atlas Supply, 170 Wn. App. at 238 (quoting C-C Bottlers. Ltd. v. J.M.
Leasing, Inc.. 78 Wn. App. 384, 387, 896 P.2d 1309 (1995)).
See Bickford v. City of Seattle, 104 Wn. App. 809, 813, 17 P.3d 1240
(2001).
6 108 Wn.2d 38, 738 P.2d 665 (1987).
778 Wn. App. 384, 896 P.2d 1309 (1995).
8 Boeing, 108 Wn.2d at 64.
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NO. 69627-1 / 9
which 	provided for recovery of costs and fees for collection.9 	J.M. 	Leasing
counterclaimed, alleging securities fraud.10 	The trial court ruled in favor of C-C
Bottlers on summary judgment and awarded 	it fees for the entire 	litigation,
concluding 	that 	the 	counterclaims 	were 	"'substantially 	interwoven 	and
inseparable'" from C-C Bottlers's actions on the notes.11 	The court of appeals
disagreed, 	explaining that J.M. 	Leasing's securities fraud 	claims did 	not and
would 	not 	affect 	the 	outcome 	of the 	promissory 	note 	claims.12 	The 	court
reasoned, "Their objective was the equitable remedy of setoff, in the event [C-C
Bottlers] recovered on the notes. 	They did not avoid the obligation represented
by the notes and therefore are not defenses; they are independent and unrelated
claims asserted permissively."13 	The court of appeals held that a party could not
recover 	attorney 	fees 	for 	successfully 	defending 	against 	its 	opponent's
permissive counterclaims.14 	The court concluded, "'[T]he prevailing party should
be awarded attorney fees only for the legal work completed on the portion of the
claim permitting such an award', [sic] because while collateral claims may well be
9 C-C Bottlers, 78 Wn. App. at 386.
10 C-C Bottlers, 78 Wn. App. at 386.
11 C-C Bottlers, 78 Wn. App. at 386-87.
12 C-C Bottlers. 78 Wn. App. at 387.
13 C-C Bottlers, 78 Wn. App. at 388.
14 C-C Bottlers. 78 Wn. App. at 390.
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NO. 69627-1/10
related to the contract claim and therefore conveniently tried together, they need
not be resolved in order to decide the primary claim."15
Here, 	Gefco 	states that Cascade 	claimed the PTO 	box that was the
subject of the collection action was defective. 	Cascade disputes this. 	At the trial
court's hearing on Gefco's motion for summary judgment, Cascade's counsel
stated, "None of the shafts that failed in this case for which our counterclaims are
based arise from or relate to the brand new 30K box that was ordered and not
paid for. 	For that reason, they are entirely permissive counterclaims." 	The trial
court disagreed with Gefco, concluding, "[W]e're talking about different pieces of
equipment that allegedly failed versus the one that was not paid for. 	And from
that point of view, I think that really illustrates how these are counterclaims and
not affirmative defenses." 	Nothing in the record indicates that Cascade claimed
the PTO that was the subject of the collection action was defective.
The trial court explained in its summary judgment order why Cascade's
counterclaims were permissive: 	"Cascade's counterclaims did not arise out of
the debt collection action. Cascade's counterclaims did not affect, nor were they
affected by, the outcome of the debt collection." 	Gefco does not contend that
15 C-C Bottlers, 78 Wn. App. at 389 (alteration in original) (quoting King
County v. Sguire Inv. Co., 59 Wn. App. 888, 897, 801 	P.2d 1022 (1990)); cf
Atlas 	Supply, 	170 Wn. 	App. 	at 237 (awarding 	attorney fees 	under a credit
application 	provision 	providing 	for 	"costs of collection" for defending 	against
compulsory counterclaims). -10-

NO. 69627-1/11
Cascade's 	counterclaims 	were 	compulsory. 	The 	credit 	agreement 	limited
recovery 	to 	"collection 	efforts" 	and 	the 	"cost of collecting 	this 	account 	if it
becomes past due." 	Ruling on the tort allegations and permitting a setoff would
not allow Cascade to avoid its obligation to pay the amount owed in the collection
action. 	Proving its entitlement to money due under the invoice did not require
Gefco to defeat claims arising out of other, separate transactions. 	Because the
trial court properly declined to award Gefco its costs and attorney fees incurred in
defending against Cascade's permissive counterclaims, we reject Gefco's claim
that it is entitled to all litigation costs under Washington law.
Gefco also 	asserts that 	its sale documents 	require the 	application of
Oklahoma law, which entitles itto recover all of its costs and reasonable attorney
fees. 	The trial court did not consider this argument or conduct a choice-of-law
analysis.16 	Gefco contends, "Oklahoma statutes provide that a prevailing party is
entitled to recover attorney fees in actions alleging nonpayment for the sale of
goods, breach of an express warranty, and negligent injury to property. 	See 12
Okla. 	Stat. 	Ann. 	§§ 936 	(sale 	of goods), 	939 	(express warranty), 	and 	940
(negligence)." 	We reject Gefco's claim because (1) Gefco did not plead and
16 We note that Gefco provides no evidence the provision in the invoice for
the PTO box stating that Oklahoma law governed the transaction was present in
the invoices for the purchase of the allegedly defective equipment. 	Thus, we can
only assume that the provision in the credit agreement in the record stating that
Oklahoma 	law governs 	the transaction 	was also 	present in 	any agreement
related to the allegedly defective equipment.
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NO. 69627-1/12
prove Oklahoma law in accordance with CR 9(k)(1), (2) Gefco waived its request
to apply Oklahoma law, (3) Gefco could not raise the issue of Oklahoma law for
the first time in its reply in support of its motion for summary judgment, and (4)
the cases that Gefco cites to support its arguments are unconvincing.
CR9(k)(1) states,
A party who intends to raise an issue concerning the law of a state,
territory, or other jurisdiction of the United States shall set forth in
his pleading facts which show that the law of another United States
jurisdiction may be applicable, or shall state in his pleading or serve
other 	reasonable written 	notice that the 	law of another 	United
States jurisdiction may be relied upon.
"[W]here a foreign law is an essential element to the cause of action or defense[,]
it must be pleaded and proved like any other fact."17 	Courts do not take judicial
notice of laws or statutes of other states.18 	The party seeking to apply foreign
law has the burden to establish with reasonable certainty the substance of the
foreign principles of law.19
In 	King v. 	Snohomish County.20 our Supreme Court held that a party
waives an affirmative defense if the assertion of the defense is either inconsistent
with the party's prior behavior or dilatory. 	The common law doctrine of waiver "is
17 State v. Collins. 69 Wash. 268, 273, 124 P. 903 (1912).
18 McDaniel v. Pressler. 3 Wash. 636, 639, 29 P. 209 (1892).
19 Prime Start Ltd. v. Maher Forest Prods.. Ltd., 442 F. Supp. 2d 1113,
1119-20 	(W.D. 	Wash. 	2006) 	(citing 	British 	Columbia 	Ministry 	of Health 	v.
Homewood, 93 Wn. App. 702, 709, 970 P.2d 381 (1999)).
20 	146 Wn.2d 420, 	424, 	47 	P.3d 	563 	(2002) 	(citing 	Lvbbert v. Grant
County, 141 Wn.2d 	29, 39, 1 P.3d 1124 (2000)).
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NO. 69627-1/13
designed to prevent a defendant from ambushing a plaintiff during litigation either
through delay in asserting a defense or misdirecting the plaintiff away from a
defense for tactical advantage."21
In King, the Kings timely filed their complaint but failed to comply with the
county's notice claim provisions. 	The county answered and raised 11 affirmative
defenses, including failure to comply with claim filing requirements.22 The parties
engaged in 45 months of litigation and discovery, with each party moving for
summary judgment on grounds not related to notice claim requirements. 	When
asked in an interrogatory what defenses it intended to raise, the county called the
question vague and referred to the list of defenses in its answer.23 	Four years
after the Kings filed their complaint, the county moved to dismiss for failure to
comply with the notice of claim statutes.24 The trial court denied this motion, and
the jury returned 	a verdict for the plaintiffs.25 	Our Supreme Court affirmed,
concluding that even though the county was not dilatory in asserting the defense
in its answer, 	by failing to raise this defense again until just before trial, the
county effectively ambushed the plaintiffs.26 	Accordingly, the county waived the
21 King, 146 Wn.2d at 424 (citing Lvbbert, 141 Wn.2d at 40).
22 King, 146 Wn.2d at 423.
23 King, 146 Wn.2d at 423.
24 King, 146 Wn.2d at 425.
25 King, 146 Wn.2d at 423.
26 King, 146 Wn.2d at 425.
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NO. 69627-1 /14
claim 	filing 	deficiencies 	as 	an 	affirmative 	defense 	by engaging in 	conduct
inconsistent with the defense.27
Here, in 	its reply and affirmative defenses to amended counterclaims,
Gefco alleged that the counterclaims were "barred to the extent they are not
cognizable under Oklahoma law." 	Gefco argued Oklahoma law at no point
between the time that it filed this reply in July 2010 and the time that it filed its
reply in support of its motion for summary judgment in 	October 2012, 	after
Cascade 	voluntarily dismissed 	its counterclaims. 	After over three years of
discovery and 	litigation, 	Gefco cited 	only Washington 	law in 	its summary
judgment motion. 	Gefco also cited no specific Oklahoma statute until October
2012. 	By failing to raise Oklahoma law until its reply in support of the motion for
summary judgment, Gefco effectively ambushed Cascade. 	Therefore, we hold
that Gefco did not properly plead and prove Oklahoma law and also waived any
claims under Oklahoma law.
As the trial court concluded, Gefco's claim also fails because "[i]t is well-
established that courts will not consider new arguments raised for the first time in
a 	reply 	brief."28 	As 	discussed 	above, 	Gefco 	argued 	only Washington 	law
27 King, 146 Wn.2d at 427.
28 Carver v. Gonzales, 	No. C06-1045, 2006 WL 3457222, at *3 (W.D.
Wash. Nov. 30, 2006) (citing Lentini v. Cal. Cent, for the Arts, Escondido, 370
F.3d 837, 843 n.6 (9th Cir. 2004)); see also Kirbv v. Citv of Tacoma, 124 Wn.
App. 454, 472, 98 P.3d 827 (2004) ("'A party who does not plead a cause of
action or theory of recovery cannot finesse the issue by later inserting the theory
-14-

NO. 69627-1/15
throughout the litigation and cited no specific Oklahoma statutes until filing its
reply in support of its motion for summary judgment, after Cascade dismissed its
counterclaims.
The cases that Gefco cites to 	support its assertions are inapplicable.
First, 	it 	cites 	Travelers 	Indemnity 	Co. 	v. 	Hans 	Linql 	Anlagenbau 	Und
Verfahrenstechnik 	GMBH 	& Co. 	KG.29 	which 	is 	unpublished 	and 	is 	not
precedential.30 	Gefco also cites Bovd Rosene &Associates v. Kansas Municipal
Gas 	Agency31 	for 	the 	proposition 	that 	"Oklahoma's 	loser-pays fee-shifting
statutes embody a substantive legislative policy choice." 	But in Bovd Rosene &
Associates, 	the 	Tenth 	Circuit explained, 	"[E]ven though 	attorney's 	fees 	are
into trial briefs and contending it was in the case all along.'" (quoting Dewey v.
Tacoma Sch. Dist. No. 10, 95 Wn. App. 18, 26, 974 P.2d 847 (1999))); Bell v.
Waudbv. 4 Wash. 743, 748, 31 P. 18 (1892) ("The office of a reply is to meet the
allegations of the answer, and cannot, in an ordinary case in any manner enlarge
the claim for relief as shown in the complaint.").
29189 F. App'x 782 (10th Cir. 2006).
30 GR 14.1(b) states,
A 	party 	may 	cite 	as 	an 	authority 	an 	opinion 	designated
'unpublished,' 	'not 	for 	publication,' 	'non-precedential,' 	'not
precedent,' or the like that has been issued by any court from a
jurisdiction other than Washington state, only if citation to that
opinion is permitted 	under 	the 	law of the 	jurisdiction 	of the
issuing court.
Under 10th Cir. R. 32.1, this unpublished decision is not precedential but may be
cited for its persuasive value.
31 174 F.3d 1115, 1125-26 (10th Cir. 1999).
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NO. 69627-1 /16
substantive for diversity purposes, they are not thereby necessarily substantive
under Oklahoma choice-of-law rules."32
For these reasons, the trial court properly declined to apply Oklahoma law.
CONCLUSION
Because the trial court properly declined to award attorney fees to Gefco
for defending against Cascade's permissive counterclaims and also properly
declined to apply Oklahoma law, we affirm.
WE CONCUR:
(hx, 	J.
32 Bovd Rosene & Assoc, 174 F.3d at 1118 (citation omitted).
-16-