..udfi I tir Mrr::ALb bi

STATE OF WASHIMGTO.

20IMAPR2I AH Ih 36

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DAMON TULIP,

Appellant,

v.

SERVICE CORPORATION

INTERNATIONAL, SCI FUNERAL AND

CEMETERY PURCHASING

COOPERATIVE, INC., SCI WESTERN

MARKET SUPPORT CENTER, L.P.

a/k/a SCI WESTERN MARKET

SUPPORT CENTER, INC., SCI

WASHINGTON FUNERAL SERVICES,

INC., GREENWOOD MEMORIAL

PARK CEMETERY & FUNERAL

HOME, JANE D. JONES, THOMAS

RYAN,

Respondents.

No. 69306-9-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: April 21, 2014

Schindler, J. — Damon Tulip filed a petition to compel arbitration of his state law

wage claims after the class action wage claim lawsuits were dismissed and over three

and one-half years after his employment ended. The court dismissed his petition to

compel with prejudice. We affirm.

FACTS

Service Corporation International (SCI) owns funeral homes nationwide. In

September 2004, SCI Washington Funeral Services Inc. hired Damon Tulip to work at
No. 69306-9-1/2

Greenwood Memorial Park Cemetery and Funeral Home in Renton as a Family Service

Counselor and Community Service Counselor. Tulip signed a "Principles of

Employment" agreement (Agreement). The Agreement states that all disputes relating

to any aspect of Tulip's employment with SCI shall be resolved through binding

arbitration, and any claim must be presented in writing "within one year of the date the

claiming party knew or should have known of the facts giving rise to the claim."

The Agreement states, in pertinent part:

1. Matters Subject To Arbitration. Employee and the Company agree

that, except for the matters identified in Section 2 below and except as

otherwise provided by law, all disputes relating to any aspect of

Employee's employment with the Company shall be resolved by binding

arbitration. This includes, but is not limited to, any claims against the

Company, its affiliates or their respective officers, directors, employees, or

agents for breach of contract, wrongful discharge, defamation,

misrepresentation, and emotional distress, as well as any disputes

pertaining to the meaning or effect of this Agreement. The arbitration shall

be conducted in accordance with the procedures attached hereto as

Exhibit "A." This agreement to arbitrate shall cover disputes arising both

before and after the execution of this document, except to the extent that

any litigation has already been filed as of the date hereof.

2. Exclusions. It is expressly agreed and understood that this

Agreement shall not govern the following: (1) any claims brought under

federal discrimination laws (including TitleVII of the Civil Rights Act) or

any otherfederal laws administered bythe Equal Employment Opportunity

Commission, (2) claims for workers' compensation or unemployment

benefits, or (3) claims brought to enforce any noncompetition or

confidentiality agreement which may exist between the parties.

3. Notification/Timeliness Of Claims. Any claim which either party has

against the other, other than a claim based on employment discrimination,

must be presented in writing bv the claiming party to the other within one

year of the date the claiming party knew or should have known of the facts

giving rise to the claim. Otherwise, the claim shall be deemed waived and

forever barred even ifthere is a federal or state statute of limitations which

would have given more time to pursue the claim.. . .

NOTICE TO EMPLOYEE: BY SIGNING THIS AGREEMENT, YOU

ARE AGREEING TO HAVE ANY AND ALL DISPUTES BETWEEN YOU

AND YOUR COMPANY (EXCEPT THOSE SPECIFICALLY EXCLUDED

IN SECTION 2 ABOVE AND THOSE OTHERWISE EXCLUDED BY
No. 69306-9-1/3

APPLICABLE LAW, IF ANY) DECIDED BY BINDING ARBITRATION AND

YOU ARE WAIVING YOUR RIGHT TO A JURY OR COURT TRIALTM

Tulip worked at SCI until September 2007.

In December 2007, a former SCI employee on behalf of a national class of SCI

employees, including Tulip, filed a lawsuit in California state court against SCI, Bryant,

et al. v. Service Corp. International, et al.. No. RG 07359593 (Alameda County Super.

Ct.).2 The class action lawsuit alleged wage claims under state law. SCI removed the

lawsuit to the United States District Court for the Northern District of California, Bryant,

et al. v. Service Corp. International, et al.. No. 3:08-cv-01190-SI (2008).

On January 15, 2008, James Stickle and several other named plaintiffs acting on

behalf of a national class of SCI employees, sued SCI in federal court in Arizona

alleging violation ofthe Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. ch. 8,

Stickle, et al. v. SCI Western Market Support Center LP. et. al.. No. 2:08-cv-00083-

MHM (D. Ariz.).3 The lawsuit alleged SCI did not paythe class members for all hours

worked and did not pay overtime at one and one-half times the hourly wage. The suit

also alleged SCI required pre-approval for overtime pay, deducted meal break hours

from pay, and required employees to do "community work" without compensation.

Stickle sought damages in the amount of plaintiffs' unpaid wages. The court

1(Some emphasis added) (boldface omitted).

2The defendants in Bryant were SCI, SCI Funeral and Cemetery Purchasing Cooperative Inc.,

SCI Western Market Support CenterLP aka SCI Western Market Support CenterInc., Jane D. Jones,

Thomas Ryan, Gwen Petteway, and Curtis Briggs.

3The defendants in Stickle were SCI, SCI Western MarketSupport Center, SCI Eastern Market

Support Center, SCI Houston Market Support Center, SCI Funeral and Cemetery Purchasing Cooperative Inc., Jane D. Jones, Gwen Petteway, Thomas Ryan, Curtis Briggs, The SCI 401K

Retirement Savings Plan, and Julie Douglas. The plaintiffs also alleged claims under the Employee

Retirement Income Security Act, 29 U.S.C. ch. 18, and the Racketeer Influenced and Corrupt

Organizations Act, 18 U.S.C. ch. 96.
No. 69306-9-1/4

conditionally certified a class action on the FLSA claim and approximately 1,400 SCI

employees opted into the class action lawsuit.

On December 14, 2009, Tulip filed a "Consent to Become A Party Plaintiff' in the

Stickle lawsuit. The Consent to Become A Party Plaintiff states, in pertinent part:

I consent to become a "party plaintiff," named, or a representative

plaintiffin this action, seeking payment of unpaid wages under Federal or

State law, including overtime wages, and related relief against my

employer(s) including any individual(s) who may be considered my

employer(s), on behalf of myself and other former and current employees

of the employer(s). I am, or was employed by Alderwoods Group, Inc.

and/or Service Corporation International.

The parties in the Stickle suit engaged in lengthy discovery on class certification.

SCI propounded interrogatories and took approximately 60 depositions. In response to

the interrogatories, Tulip states he was not paid for all time worked because SCI

1. encourag[ed] or required] hourly employees to participate in

various community activities (church, Lion Club, Rotary

International, Chamber of Commerce, etc.) so as to increase

revenue for defendants but not compensating them on an hourly

basis for such time spent engaging in community work; . ..

2. encourag[ed] or required] hourly employees to work by selling preneeds policies after hours,. ..

3. encourag[ed] or required] hourly employees to take or teach

training mandated by defendants outside oftheir normal work

hours, ...

4. encourag[ed] or required] hourly employees to deduct a full meal

break from their work hours each day, even when such employees

either missed their lunch breaks, or were interrupted during their

lunch breaks,. . .

5. require[ed] pre-approv[al] from management for any overtime hours

worked, and refus[ed] to pay hourly employees for overtime hours

worked unless the overtime had been pre-approved by

defendants;. ..

6. refus[ed] to allow hourly employees to properly record all overtime

hours worked, . .. pressuring employees to underreport overtime

hours worked .. . ; and

7. fail[ed] to include all remuneration (such as bonuses and

commissions) when calculating the regular rate due to hourly

employees for payment for overtime hours worked.
No. 69306-9-1/5

After more than two and one-half years of litigation in the Bryant case, the parties

stipulated to dismiss the claims of the out-of-state class members, including Tulip. On

July 22, 2010, the court entered an order of dismissal of the claims of the out-of-state

plaintiffs without prejudice.

On October 5, 2010, Craig Emmick on behalf of a class of Washington

employees, including Tulip, filed a lawsuit against SCI in King CountySuperior Court,

Emmick. et al. v. Service Corp. International, et al.. No. 10-2-35204-0 SEA.4 The

Emmick lawsuit against SCI alleged state lawclaims and sought to recover unpaid

wages and unpaid overtime. SCI removed the Emmick lawsuit to the United States

District Court for the Western District of Washington, Emmick. et al. v. Service Corp.

International, et al.. No. 2:10-cv-02027-MJP (2010).

On April 25, 2011, the United States District Court for the District ofArizona

granted the motion to decertify the class action in Stickle and entered an order

dismissing "the claims of all opt-in plaintiffs," including Tulip.

On May 2, 2011, SCI filed a motion to dismiss the Emmick lawsuit. SCI argued

thatthe plaintiffs failed to state a claim for relief on a number ofgrounds including

preemption. While the motion to dismiss was pending, the Emmick plaintiffs voluntarily

dismissed their claims. The court entered the order of dismissal on May 17.

Two dayslater, Tulip sent SCI a "Demand for Arbitration" under the terms ofthe

Agreement of his claims for unpaid wages, overtime, and other compensation. SCI did

not respond to the demand for arbitration.

"The defendants in Emmick were SCI, SCI Funeral and Cemetery Purchasing Cooperative Inc.,

SCI Western Market Support Center Inc., SCI Washington Funeral Services Inc., Jane D. Jones, Gwen

Petteway, and Thomas Ryan.
No. 69306-9-1/6

On November 15, 2011, Tulip filed a "Petition to Compel Arbitration" in King

County Superior Court. Tulip sought to arbitrate claims "for unpaid overtime and other

wages and compensation" under state law.5 SCIfiled an answer asserting the claims

were time barred and Tulip waived his rightto arbitration by participating in the prior

litigation.

SCI filed a motion to dismiss arguing as a matter of law Tulip waived his right to

arbitrate and his claims were barred by the statute of limitations. Tulip filed a motion for

summary judgment arguing he was entitled to arbitration. Tulip argued that by

participating in the class action lawsuits, he did notwaive the right to arbitrate his state

law wage claims underthe Agreement. In opposition, SCI asserted the undisputed

facts established Tulip waived the right to arbitration by participating in the Bryant,

Stickle, and Emmick class action lawsuits. In support, SCI submitted his consent to

becomea party plaintiff in the Stickle lawsuit, the Stickle complaint and docket, Tulip's

answers to interrogatories in Stickle, and the complaint and docket in Emmick.

The court dismissed the Petition to Compel Arbitration with prejudice. Tulip

appeals.

ANALYSIS

Tulip argues the court erred by dismissing his petition to compel arbitration. We

review the decision on a motion to compel arbitration and summary judgment de novo.

5The petition stated that the "relevant statutes and regulations relating to Tulip's claims include"

RCW 49.12.020 (providing that it is unlawful to employ any person "at wages which are not adequate for

their maintenance"), RCW 49.48.010 (regarding authorized deductions and withholdings from pay), RCW

49.52.050 (providing that making false wage records is a misdemeanor), WAC 296-126-021 (regarding minimum wage calculation for employees receiving commission), WAC 296-126-025 (regarding

deductions from final wages), andWAC 296-126-092 (regarding meal and rest periods).

6
No. 69306-9-1/7

Hartley v. State. 103 Wn .2d 768, 774, 698 P.2d 77 (1985); Zuver v. Airtouch

Commc'ns, Inc., 153 Wn.2d 293, 302, 103 P.3d 753 (2004); CR 56(c). Waiver of the

right to arbitrate is governed by federal law. Kinsev v. Bradley, 53 Wn. App. 167, 169,

765 P.2d 1329 (1989). Under federal law, "the ultimate determination of waiver is

reviewed de novo, as a matter of law." Steele v. Lundgren. 85 Wn. App. 845, 850-51,

935P.2d671 (1997).

Waiver of the Right to Arbitrate

Section 2 of the Federal Arbitration Act, 9 U.S.C, is "a congressional declaration

of a liberal federal policy favoring arbitration agreements, notwithstanding any state

substantive or procedural policies to the contrary." Moses H. Cone Mem'l Hosp. v.

Mercury Constr. Corp.. 460 U.S. 1, 24, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983).

Accordingly, a party opposing arbitration bears a " 'heavy burden'" to show waiver of

the right to arbitrate. Steele. 85 Wn. App. at 852 (quoting Fisher v. A.G. Becker Paribas

Incorporation, 791 F.2d 691, 694 (9th Cir.1986)).

To establish waiver of the right to arbitration, the party opposing arbitration must

prove (1) knowledge of an existing right to compel arbitration, (2) acts inconsistent with

that right, and (3) prejudiceto the party opposing arbitration. Kinsev, 53 Wn. App. at

169 (citing Letizia v. Prudential Bache Sec. Inc., 802 F.2d 1185, 1187 (9th Cir.1986)).

" 'The waiver determination necessarily depends upon the facts of the particular case

and is not susceptible to bright line rules.'" Steele, 85 Wn. App. at 853 (quoting Cotton

v. Slone. 4 F.3d 176, 179 (2d Cir.1993)).

Tulip contends SCI did not meet its heavy burden ofshowing he waived his right

to arbitration. Tulip contends the state law wage claimsare different than the federal
No. 69306-9-1/8

law wage claims asserted in Stickle, and his limited participation in the class action

litigation was not inconsistent with his right to arbitration. SCI argues that Tulip's

attempt to compel arbitration is an improper attempt to relitigate the same claims and

seek the same relief he sought in the prior unsuccessful class actions. SCI argues Tulip

acted inconsistently with the right to arbitrate under the Agreement by participating in

Bryant, Stickle, and Emmick and waiting more than three and one-half years after he

stopped working for SCI in September 2007 to request arbitration.

1. Knowledge

There is no dispute that Tulip signed the agreement to arbitrate in September

2004. "One is presumed to know and understand the contents of documents one

signs." Kinsev, 53 Wn. App. at 171 (citing O'Neel v. Nat'l Ass'n of Sec. Dealers. Inc.,

667 F.2d 804 (9th Cir. 1982)).6 We conclude Tulip was aware of his rightto arbitrate

when he signed the Agreement in September 2004.

2. Acts Inconsistent with Arbitration

SCI argues that the undisputed facts establish Tulip acted inconsistently with the

right to arbitrate underthe terms ofthe Agreement by participating in Bryant, Stickle,

and Emmick. Tulip claims he did not act inconsistently with the right to arbitrate his

state law claims because Stickle involved only federal law wage claims brought under

the FLSA, and because his participation in Stickle was limited. Whether a party acts

inconsistently with the right to arbitrate is a fact-specific inquiry. Steele, 85 Wn. App. at

853.

6Tulip arguesfor the first time in his reply brief that he was nevergiven a copy of his arbitration

agreement. Wedo not consider an argument made for the first time in a reply brief. Cowiche Canyon

Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (issue raised for the first time in a

reply brief istoo late towarrant consideration). Further, Tulip presented no evidence to support this

assertion.

8
No. 69306-9-1/9

SCI contends the record establishes that there is no difference between the

claims Tulip unsuccessfully litigated in Bryant. Stickle, and Emmick, and the claims he

now seeks to arbitrate. Tulip claims Washington law is more protective and the FLSA

wage claims asserted in Stickle are legally and factually distinct from the state law wage

claims he seeks to arbitrate.

Tulip's demand for arbitration sought to arbitrate claims "for unpaid overtime and

other wages and compensation." The overtime provisions of the FLSA and the

Washington Minimum Wage Act (MWA), chapter 49.46 RCW, are nearly identical.

Compare RCW 49.46.130(1) (providing that except as otherwise provided, an employer

must pay his employees "one and one-half times the regular rate at which he or she is

employed" for "a work week longer than forty hours") wjth 29 U.S.C. § 207 (providing

that except as otherwise provided, any employer must pay his employees "one and onehalf times the regular rate at which he is employed" for "a workweek longer than forty

hours"). See also Anfinson v. FedEx Ground Package Svs.. Inc., 174 Wn.2d 851, 871,

281 P.3d 289 (2012) (noting MWA is "patterned after the FLSA").7

7The federal cases Tulip relies on are distinguishable. None of these cases involve a plaintiff

attempting to arbitrate state law claims despite already having litigated federal law claims arising out of

the same facts and requesting the same relief. See MicroStrateav. Inc. v. Lauricia, 268 F.3d 244, 250

(4th Cir. 2001) (employer did notwaive itsright to arbitrate its employee'sdiscrimination claim by litigating

an unrelated trade secrets claim in a previous action); Doctor'sAssocs.. Inc. v. Distajo, 107 F.3d 126,133

(2nd Cir. 1997) (franchisor did notwaive arbitration of breachof contract claim by litigating eviction action

where claims did not involve the same "core facts"); Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324,

327 (5th Cir. 1999)(participation in prior litigation of nonarbitrable claims did notwaive arbitration).

Further, our cases have repeatedly stated that a court's waiverdetermination is based on the facts and

circumstances of individual cases, not on bright line rules. See Steele, 85 Wn. App. at 853; Hill v. Garda

CL Nw.. Inc.. 169 Wn. App. 685, 691, 281 P.3d 334 (2012) reversed on other grounds by 179 Wn.2d 47,

308 P.3d 635 (2013). Tulip also citestwo federal cases for the proposition that litigating a class action is

not inconsistent with later arbitration of state law claims. Beauperthuv v. 24 Hour Fitness USA. Inc., No.

06-715 SC, 2011 WL 6014438, at *5 (N.D. Cal. Dec. 2. 2011V Manskerv. Farmers Ins. Co. ofWash., No.

C10-0511JLR, 2010 WL 3699847, at *3 (W.D. Wash. Sept. 14, 2010). Neither case addresses waiver of

arbitration.

9
No. 69306-9-1/10

The FLSA and state law wage claims depend on the same facts and seek the

same relief: unpaid overtime and other wages. Both claims relate to Tulip's

employment with SCI from September 2004 to September 2007. Both claims allege

failure to pay overtime wages, regular wages, and wages for missed break and meal

times. The complaint in Stickle alleged that SCI violated the FLSA by failing to pay its

employees for all hours worked and did not pay time and one-half for overtime hours.

In the alternative, Tulip argues that even ifthe federal and state law wage claims

are not factually and legally distinct, he did not act inconsistently with his right to

arbitrate by participating in the class actions because his participation was limited. SCI

argues the three and one-half-year delay in seeking arbitration and hisinvolvement in

the class actions in federal court demonstrate that Tulip did not intend to arbitrate his

claims.

"Waiver occurs when a party seeking arbitration substantially participates in

litigation to a point inconsistent with an intent to arbitrate and this participation results in

prejudice to the opposing party." Morewitz v. W. ofEngland Ship Owners Mut. Prot. &

Indem. Ass'n, 62 F.3d 1356, 1366 (11th Cir.1995). "A party substantially invokes the

litigation machinery when ... it files a lawsuit on arbitrable claims." Lewallen v. Green

Tree Servicing. LLC, 487 F.3d 1085, 1090 (8th Cir. 2007).

Here, Tulip substantially invoked the litigation machinery. The record establishes

Tulip soughtto resolve his wage claims in court rather than seek nonjudicial resolution

through arbitration. Further, Tulip's consent to be a named plaintiff specifically states he

was "seeking payment of unpaid wages under Federal and State law."

10
No. 69306-9-1/11

Tulip elected to litigate his wage claims, selecting federal court as his first-choice

forum. Tulip affirmatively chose to litigate his wage claims by opting in as a plaintiff to

an FLSA class action, stating, "I consent to become a 'party plaintiff,' named, or

representative plaintiff in this action, seeking payment of unpaid wages under Federal or

State law, including overtime wages, and related relief." Tulip remained a party in

Sticklefor one and one-half years, engaging in discovery and failing to raise the right to

arbitrate. Tulip first made his demand for arbitration two days after the plaintiffs in

Emmickvoluntarily dismissed their wage claims. Tulip's decision to bring claims in

federal court and to resort to arbitration only after dismissal of his claims is inconsistent

with arbitration. Parlerv. KFC Corp.. 529 F. Supp. 2d 1009, 1015 (D. Minn. 2008);

Welborn Clinic v. Medouist. Inc., 301 F.3d 634, 637 (7th Cir. 2002) ("[W]e do not want

parties to forum shop, taking a case to the courts and then, if things go poorly there,

abandoning theirsuit in favor of arbitration."). Further, the fact that Tulip did not

demand SCI participate in arbitration until May 2011 provides some evidence thatTulip

elected litigation. River House Dev.. Inc. v. Integrus Architecture, PS, 167Wn. App.

221, 239 n.4, 272 P.3d 289 (2012) ("While the ultimate issue oflimitations in arbitration

would have been for the arbitrator, the fact that River House had so far not filed a

demand was some evidence it had elected litigation.").

Parler is analogous. In Parler. a nationwide class of assistant managers at

Kentucky Fried Chicken (KFC) filed FLSA and state law wage claims against their

employer. Parler, 529 F. Supp. 2d at 1011. The court conditionally certified a national

class ofemployees. Approximately 1,000 employees opted into the FLSA class.

Parler, 529 F. Supp. 2d at 1011. The plaintiffs then asked the court to decertify the

11
No. 69306-9-1/12

single nationwide class, divide the class into several state-level FLSA classes, and

transfer those claims to federal district court. Parler, 529 F. Supp. 2d at 1011. The

court granted the motion to decertify but denied the motion to transfer. Parler. 529 F.

Supp. 2d at 1011.

Thereafter, over 300 employees sought to arbitrate their claims against KFC.

Parler, 529 F. Supp. 2d at 1011. KFC argued those plaintiffs waived their right to

arbitrate and the court agreed. Parler. 529 F. Supp. 2d at 1014. The court concluded

that the plaintiffs "substantially invoked the litigation machinery" by opting into the

national FLSA class and asking the court to transfer the claims to other courts rather

than to an arbitrator. Parler, 529 F. Supp. 2d at 1014. The court stated the plaintiffs

indicated their first-choice forum was a federal court and "[fjiling a case in federal court

and seeking arbitration only after the litigation goes badly is acting inconsistently with

the right to arbitrate." Parler, 529 F. Supp. 2d at 1014-15.

Based on the undisputed facts, we conclude Tulip's election to pursue potential

class actions in federal court is inconsistent with arbitration under the terms of the

Agreement.

3. Prejudice

SCI contends that the extent of litigation in federal court and Tulip's delay in

seeking arbitration established prejudiced. Tulip argues SCI did not establish that the

three and one-half-year delay and costs of discovery prejudiced SCI.

To determine whether the party opposing arbitration was prejudiced, the court

examines the extent of the delay, the degree of litigation preceding the motion to

compel arbitration, the resulting expenses, and other surrounding circumstances.

12
No. 69306-9-1/13

Steele. 85 Wn. App. at 858-59. Prejudice can be shown if a party does not demand

arbitration during pretrial proceedings and engages in inconsistent acts:

[Wjhen a party fails to demand arbitration during pretrial proceedings, and

in the meantime engages in pretrial activity inconsistent with an intent to

arbitrate, the party opposing a motion to compel arbitration may more

easily show its position has been compromised, i.e., prejudiced.

Kinsev. 53 Wn. App. at 170.

In Steele, this court identified two types of prejudice and held that an

unnecessary 10-month delay in bringing a demand for arbitration, coupled with

aggressive discovery, satisfied the prejudice requirement:

"Prejudice can be substantive, such as when a party loses a motion on the

merits and then attempts, in effect, to relitigate the issue by invoking

arbitration, or it can be found when a party too long postpones his

invocation of his contractual right to arbitration, and thereby causes his

adversary to incur unnecessary delay or expense."

Steele. 85 Wn. App. at 858-598 (quoting Kramer v. Hammond, 943 F.2d 176, 179 (2nd

Cir. 1991)).

Here, Tulip made no demand to arbitratefor over three and one-halfyears after

his employment ended and never asserted his right to arbitration in Bryant, Stickle, or

Emmick. Tulip demanded arbitration under the Agreement only after his claims were

dismissed in Bryant, Stickle, and Emmick. We conclude SCI met its burden to show the

8 (Emphasis omitted.)

13
No. 69306-9-1/14

delay in seeking arbitration prejudiced SCI.9

We affirm dismissal of the petition to compel arbitration.

WE CONCUR:

SjQsArrfQ** (cy9In a statement ofadditional authority, Tulip cites Biernacki v. Service Corp. International, 533

Fed. App'x 741 (9th Cir. 2013). Because Biernacki explicitly relies on California state law, not federal law, we do not address Biernacki.

14