IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40820

TONI HOLLINGER; BERTHA JOHNSON; FERNANDO DELUNA; NORMA

HOLDER; SANDRA DUPLANT; PATRICIA RANDOLPH; PLAINTIFF CLASS;

ALL PLAINTIFFS,

Plaintiffs - Appellants

v.

HOME STATE MUTUAL INSURANCE COMPANY; OLD AMERICAN

COUNTY MUTUAL FIRE INSURANCE COMPANY; CONSUMERS COUNTY

MUTUAL INSURANCE COMPANY; SOUTHERN COUNTY MUTUAL

INSURANCE COMPANY; AFFIRMATIVE INSURANCE COMPANY;

AMERICAN CENTURY CASUALTY COMPANY; AMERICAN HALLMARK

INSURANCE COMPANY OF TEXAS; AMERICAN INTERNATIONAL

INSURANCE COMPANY; DIRECT GENERAL INSURANCE COMPANY;

DORINCO RE-INSURANCE COMPANY; FIRST ACCEPTANCE INSURANCE

COMPANY; GENERAL INSURANCE COMPANY OF AMERICA; IMPERIAL

FIRE AND CASUALTY INSURANCE COMPANY; INTEGON NATIONAL

INSURANCE COMPANY; MENDOTA INSURANCE COMPANY; MIDDLE

STATES INSURANCE COMPANY; NATIONAL GENERAL INSURANCE

COMPANY; REPUBLIC UNDERWRITERS INSURANCE COMPANY; TITAN

INDEMNITY COMPANY; TRANSATLANTIC RE-INSURANCE COMPANY;

UNITED AUTOMOBILE INSURANCE COMPANY; YOUNG AMERICA

INSURANCE COMPANY,

Defendants - Appellees

ODYSSEY AMERICA REINSURANCE CORPORATION,

Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Texas

United States Court of Appeals

Fifth Circuit

F I L E D

September 6, 2011

Lyle W. Cayce

Clerk

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No. 10-40820

Before REAVLEY, GARZA, and GRAVES, Circuit Judges.

PER CURIAM:

Plaintiffs, appellants and cross appellees Toni Hollinger, Bertha Johnson,

Fernando Deluna, Norma Holder, Sandra Duplant, and Patricia Randolph, as

class representatives (collectively “the Insured”), filed this class action case

alleging violations of the Texas Insurance Code. The Insured allege insurance

discrimination in the non-standard insurance market, which serves lower

income individuals and those drivers with less than ideal driving records.

The defendants and appellees are Home State County Mutual Insurance

Company (misnamed as “Home State Mutual Insurance Company”in the district

court), Old American County Mutual Fire Insurance Company, Consumers

County Mutual Insurance Company, Southern County Mutual Insurance

Company, Affirmative Insurance Company, American Century Casualty

Company, American Hallmark Insurance Company of Texas, American

International Insurance Company, Direct General Insurance Company, Dorinco

Re-insurance Company, First Acceptance Insurance Company, General

Insurance Company of America, Imperial Fire and Casualty Insurance

Company, Integon National Insurance Company, Mendota Insurance Company,

Middle States Insurance Company, National General Insurance Company,

Republic Underwriters Insurance Company, Titan Indemnity Company,

Transatlantic Re-Insurance Company, United Automobile Insurance Company

and Young America Insurance Company, as well as defendant, appellee and

cross appellant Odyssey America Reinsurance Company (collectively “the 1

Insurance Companies”).

The jurisdictional basis for the district court’s original jurisdiction was

diversity of citizenship pursuant to the Class Action Fairness Act (“CAFA”), 28

Under 5th Cir. R. 42(b), the cross-appeal of Odyssey America Reinsurance Company 1

was dismissed as of April 6, 2011, pursuant to the joint motion of the parties.

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U.S.C. § 1332(d). The Insurance Companies each moved to dismiss the case

based on the “local controversy” and “home state” mandatory abstention

provisions of CAFA, 28 U.S.C. § 1332(d)(4).

The litigants have asked this court to consider the following issues:

I. Whether the district court erred when it found that the Insurance

Companies proved, by a preponderance of the evidence, that at the time

the lawsuit was filed on August 17, 2009, more than two-thirds of the

members of the Insured classes were citizens of the United States or

permanent aliens, for purposes of determining mandatory abstention

pursuant to CAFA, 28 U.S.C. § 1332(d)(4).

II. Whether the district court erred when it found that the Insurance

Companies proved, by a preponderance of the evidence, that at the time

the lawsuit was filed on August 17, 2009, more than two-thirds of the

members of the Insured classes were domiciled in and citizens of Texas,

for the purposes of determining mandatory abstention pursuant to CAFA,

28 U.S.C. § 1332(d)(4).

This court finds no reversible error. We AFFIRM.

I. ESSENTIAL BACKGROUND

The Insured’s operative complaint defines their proposed class as:

All persons who purchased an automobile insurance

policy in Texas of [one of the County Mutual insurance 2

companies] and whose policies were in effect on or after

August 17, 2007 up to the date of judgment, specifically

excluding all federal district and magistrate judges of

the Eastern District of Texas and members of their

immediate families, Class Counsel and the directors,

officers, and the employees of the defendants . . .

The County Mutuals are: Home State County Mutual Insurance Company, Old

2

American County Mutual Fire Insurance Company, Consumers County Mutual Insurance

Company and Southern County Mutual Insurance Company.

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The Insured allege that various County Mutuals have violated the antidiscrimination provisions of Section 544.052 of the Texas Insurance Code, by

charging certain consumers higher policy fees on their automobile insurance

than they charged other consumers, when those consumers were of the same

class and hazard. The Insured also allege that the Reinsurers , which the 3

Insured define as the Insurance Companies other than the County Mutuals,

have participated in and permitted such violations of the Texas Insurance Code. 

The Insured assert diversity subject matter jurisdiction pursuant to CAFA, 28

U.S.C. § 1332(d)(2). The Insurance Companies prevailed at the trial court on

motions to dismiss on the grounds that CAFA’s “local controversy” and “home

state” exceptions required the district courtto abstain from jurisdiction pursuant

to 28 U.S.C. § 1332(d)(4), which is the crux of this case.4

II. STANDARD OF REVIEW

“This court reviews legal issues de novo.” Harris v. Trustmark Nat'l Bank,

287 Fed. Appx. 283, 293 (5th Cir. 2008). This court reviews the district court’s

factual findings as to the citizenship of parties for clear error. Preston v. Tenet

Healthsystem Medical Memorial Center, Inc. (“Preston I”), 485 F.3d 793, 795

The Reinsurers are: Affirmative Insurance Company, American Century Casualty 3

Company, American Hallmark Insurance Company of Texas, American International

Insurance Company, Direct General Insurance Company, Dorinco Re-Insurance Company,

First Acceptance Insurance Company, General Insurance Company of America, Imperial Fire

and Casualty Insurance Company, Integon National Insurance Company, Mendota Insurance

Company, MiddleStates Insurance Company, National General Insurance Company, Republic

Underwriters Insurance Company, Titan Indemnity Company, Transatlantic Re-Insurance

Company, United Automobile Insurance Company, Young America Insurance Company and

Odyssey America Reinsurance Company.

All of the Insurance Companies (save and except for Consumers County Mutual 4

Insurance Company (“Consumers”)) do not challenge subject matter jurisdiction based on the

required $5,000,000 jurisdictional amount in controversy embodied in 28 U.S.C. § 1332(d)(2). 

Only Consumers challenged whether the jurisdictional amount was met, and based on

circumstances applicable to it alone, Consumers prevailed on that issue at the district court.

On appeal to this court, the Insured do not challenge the dismissal of Consumers on the basis

of the jurisdictional amount.

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(2007) (citing Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996)). The standard of

review is whether the district court clearly erred in making its decisions with

respect to the citizenship of the members of the plaintiff class. Preston, supra,

485 F.3d at 796. Clear error exists when “although there may be evidence to

support it, the reviewing court on the entire [record] is left with the definite and

firm conviction that a mistake has been committed.” Id. at 796-97; Campos v.

City of Baytown, Tex., 840 F.2d 1240, 1243 (5 th Cir. 1988) (citing Anderson v. th

City of Bessemer, N.C., 470 U.S. 564, 573 (1985); see also Sheffield v. Itawamba

County Bd. of Supervisors, 439 F.2d 35 (5th Cir. 1971) (motion to dismiss class

action). This court also recognizes “the inherent power of the court to protect its

jurisdiction and judgments and to control its docket." Farguson v. MBank

Houston, N.A., 808 F.2d 358, 360 (5th Cir. 1986). 

III. ANALYSIS

A. Class Action Fairness Act

CAFA greatly expands federal jurisdiction over interstate class action 5

lawsuits. In re Katrina Canal Litig. Breaches, 524 F.3d 700, 711 n. 47 (5th

Cir.2008); Preston v. Tenet Healthsys. Mem'l Med. Ctr., Inc. (“Preston II”), 485

F.3d 804, 810 (5th Cir.2007); Werner v. KPMG, L.L.P., 415 F.Supp.2d 688, 691

(S.D.Tex.2006). CAFA accords subject matter jurisdiction for certain

cases with at least minimal diversity of citizenship:

(2) The district courts shall have original

jurisdiction of any civil action in which the

matter in controversy exceeds the sum or value of

$5,000,000, exclusive of interest and costs, and is

a class action in which–

“Because interstate class actions typically involve more people, more money, and more 5

interstate commerce ramifications than any other type of lawsuit, [Congress] firmly believes

that such cases properly belong in federal court.” S. REP. NO. 109-14, at 4 (2005), as

reprinted in 2005 U.S.C.C.A.N. 3, 5.

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(A) any member of a class of plaintiffs is a citizen

of a State different from any defendant;

(B) any member of a class of plaintiffs is a foreign

state or a citizen or subject of a foreign state and

any defendant is a citizen of a State; or

(C) any member of a class of plaintiffs is a citizen

of a State and any defendant is a foreign state or

a citizen or subject of a foreign state. 28 U.S.C. §

1332(d)(2).

Accordingly, CAFA grants the federal courts original jurisdiction

to hear interstate class actions where: (1) the proposed class contains

more than 100 members; (2) minimal diversity exists between the

parties (i.e., at least one plaintiff and one defendant are from different

states); (3) the amount in controversy exceeds $5,000,000; and (4) the

primarydefendants arenot states, state officials, or other governmental

entities. 28 U.S.C. § 1332(d)(2), (5); see also In re Katrina Canal Litig.

Breaches, supra, 524 F.3d at 706; Preston II, supra, 485 F.3d at 810; Werner,

supra, 415 F.Supp.2d at 691. 

B. “Local Controversy” and “Home State” Exceptions to CAFA

Indeed, the law is not complete without its exceptions. CAFA requires

federal courts to decline jurisdiction over a proposed class action if either of the

following narrow exceptions is proven by a preponderance of the evidence: (1)

the local controversy exception, 28 U.S.C. § 1332(d)(4)(A); or (2) the home state

exception, 28 U.S.C. § 1332(d)(4)(B). The CAFA mandatory abstention

provisions are "designed to draw a delicate balance between making a federal

forum available to genuinely national litigation and allowing the state courts to

retain cases when the controversy is strongly linked to that state." Hart v.

FedEx Ground Package Sys., Inc., 457 F.3d 675, 682 (7th Cir. 2006). 

(1) “Local Controversy” Mandatory Abstention

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Pursuant to the “local controversy” mandatory abstention provision of

CAFA, the district court “shall decline to exercise jurisdiction”:

(i) over a class action in which-

(I) greater than two-thirds of the members of all

proposed plaintiff classes in the aggregate are citizens

of the State in which the action was originally filed;

(II) at least 1 defendant is a defendant-

(aa) from whom significant relief is sought by members

of the plaintiff class;

(bb) whose alleged conduct forms a significant basis for

the claims asserted by the proposed plaintiff class; and

(cc) who is a citizen of the State in which the action was

originally filed; and

(III) principal injuries resulting from the alleged

conduct or any related conduct of each defendant were

incurred in the State in which the action was originally

filed; and

(ii) during the 3-year period preceding the filing of that

class action, no other class action has been filed

asserting the same or similar factual allegations

against any of the defendants on behalf of the same or

other persons. 28 U.S.C. § 1332(d)(4)(A).

“Congress crafted CAFA to exclude only a narrow category of truly

localized controversies, and the exceptions provide a statutory vehicle for the

district courts to ferret out the controversy that uniquely affects a particular

locality to the exclusion of all others.” Preston II, 485 F.3d at 823 (citing Evans

v. Walter Indus., Inc., 449 F.3d 1159 (11th Cir. 2006)) (internal quotes omitted). 

(2) “Home State” Mandatory Abstention

CAFA’s “home state” mandatory abstention provision states:

(4) A district court shall decline to exercise jurisdiction

under paragraph (2) [over a class action in which]--

(B) two-thirds or more of the members of all proposed

plaintiff classes in the aggregate, and the primary

defendants, are citizens of the State in which the action

was originally filed. 28 U.S.C. § 1332(d)(4)(B). 

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In other words, the home state mandatory abstention provision prevents

a federal district court from exercising subject matter jurisdiction when “twothirds or more of the members of all proposed plaintiff classes in the aggregate,

and the primary defendants, are citizens of the State in which the action was

originally filed.” 28 U.S.C. § 1332(d)(4)(B). 

C. Burden of Proof and Evidentiary Standard under CAFA

Jurisdictional determinations “should be made largely on the basis of

readily available information.” S. REP. NO. 109-14, at 44; accord Abrego Abrego

v. The Dow Chem. Co., 443 F.3d 676, 692 (9th Cir.2006); Hirschbach v. NVE

Bank, 496 F.Supp.2d 451, 460 (D.N.J.2007). “The court has wide, but not

unfettered, discretion to determine what evidence to use in making its

determination of jurisdiction.” Coury, supra, 85 F.3d at 249; accord Preston II,

485 F.3d at 817; see, e.g., Preston v. Tenet Healthsys. Mem'l Med. Ctr., Inc., 463

F.Supp.2d 583, 592-93 (E.D.La.2006) (district court ordered the defendants to

produce additional evidence regarding the citizenship of the putative class). 

This court has held that the party objecting to CAFA jurisdiction must 6

prove that the CAFA exceptions to federal jurisdiction divests the district court

of subject matter jurisdiction. Preston II, supra, 485 F.3d at 813-14; see also

Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1024 (9th Cir. 2007); Frazier v.

Pioneer Ams. LLC, 455 F.3d 542, 546 (5th Cir. 2006). Here, the Insurance

Companies bore the burden of proof as to each element of the “local controversy”

and “home state” mandatory abstention provisions of CAFA. See, e.g., Preston

II, 485 F.3d at 813. Since both of the two mandatory abstention provisions

In the present instance, the Insured originally filed their complaint in federal court, 6

so the Insurance Companies did not file motions to remand to state court like in Preston II,

but instead, the Insurance Companies filed motions to dismiss. Nevertheless, the same

reasoning applies. Although a motion to remand to state court and a motion to dismiss are

not the same, the net result here is the same – the removal of the case from federal court on

the theory that it is a “local controversy” or “home state” in nature.

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require proof, by a preponderance of the evidence, that two-thirds or more of the

members of the proposed class are citizens of the state where the action is filed,

the dispositive issue here is whether the Insurance Companies proved the “twothirds element” of the CAFA mandatory abstention provisions by a

preponderance of the evidence. See 28 U.S.C. § 1332(d)(4)(A)(i)(I); 28 U.S.C. §

1332(d)(4)(B). 

D. Proving Citizenship: Residence and Intention to Remain

“In determining diversity jurisdiction, the state where

someone establishes his domicile serves a dual function

as his state of citizenship. A person’s state of domicile

presumptively continues unless rebutted with sufficient

evidence of change. Domicile requires the

demonstration of two factors: residence and the

intention to remain.” Preston I, 485 F.3d at 797-98

(internal cites omitted). 

Evidence of a person's place of residence, however, is prima facie proof of

his domicile. Preston I, 485 F.3d at 799 (citing Stine, 213 F.2d at 448); Martin,

548 F.Supp.2d at 273 n. 22. Furthermore, once established, “[a] person's state

of domicile presumptively continues unless rebutted with sufficient evidence of

change.” Preston I, 485 F.3d 798; see also Acridge, 334 F.3d at 448.

Here, the Insurance Companies moved to dismiss the Insured’ class action

based on the “local controversy” and “home state” mandatory abstention

exceptions to CAFA diversity jurisdiction pursuant to 28 U.S.C. § 1332(d)(4)(A)-

(B). The only elements at issues are whether “greater than two-thirds” (28

U.S.C. § 1332(d)(4)(A)(i)(I)) or “two-thirds or more” (28 U.S.C. § 1332(d)(4)(B))

of the members of all of the proposed Insured’s classes are citizens of Texas and

the United States.

1. Preponderance of the Evidence – Residence in Texas

United States census data is an appropriate and frequent subject of

judicial notice. See United States v. Esquivel, 88 F.3d 722, 726-27 (9th Cir.

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1996); see also Bennett v. Board of Commissioners for East Jefferson Levee

District, 2007 WL 2571942, *4-5 (E.D.La. 2007) (using United States Census

Bureau data in CAFA analysis); O’Toole v. Northrop Grumman Corp., 499 F.3d

1218, 1225 (10th Cir. 2007) (concluding that the failure to take judicial notice

was an abuse of discretion when the party opposing judicial notice did not

dispute its accuracy and did not request a hearing on the appropriateness of

judicial notice); In re Sprint Nextel Corp., 593 F.3d 669, 675-76 (7th Cir. 2010)

(surveys of a representative sample of the proposed class might be sufficient

evidence). Here, the district court took judicial notice that the relocation rate of

American citizens of all ages and races out of Texas was about 5.2% between

2007 and 2009 – the relevant time period. United States Census Bureau

Statistics / Estimates 2006-08 (excerpt), Appendix 3. In addition, a smaller

percentage of people move out of Texas than from any other state. See Pew

Research Center Report, American Mobility. Who Stays Put? Where's Home?

Social & Demographic Trends (December 17, 2008). Appendix 1, Appendix 2.

The Insurance Companies put forth further statistical support showing by

a preponderance of the evidence — i.e., that it is more likely than not — that

greater than two-thirds of the members of all proposed plaintiff classes in the

aggregate are citizens of Texas and of the United States. For example, more

than 99% of the automobiles that the County Mutuals insure are located in

Texas. Also, only about 11% of Texas residents are not United States citizens. 

Although the Insurance Companies’ statistics about Texas residents are not

specific to the Insured, these statistics are nonetheless probative, particularly

in the absence of any contrary showing by the Insured. Cf. Caruso, supra, 469

F. Supp. 2d at 368 (“Although there well may be proposed classes where detailed

proof of the two-thirds citizenship requirement is required, the Court finds that

common sense should prevail in this closed-end class involving people who, as

noted, hold an asset that is a measure of domicile, their home.”); see also Coury,

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supra, 85 F.3d at 251(noting that factors for determining domicile include

“places where the litigant . . . owns real and personal property”). 

Even more so, the anti-discrimination provision of the Texas Insurance

Code is the statutory basis for this action. Likewise, the Insured limit their

proposed class to “persons who purchased an automobile insurance policy in

Texas.” Indeed, the principal injuries resulting from the alleged conduct or any

related conduct of each of the Insurance Companies occurred in Texas.

Additionally, the County Mutuals are citizens of Texas and only issue

policies in Texas. The County Mutuals are the primary defendants, because all

putative class members, by definition, have claims against the County Mutuals,

and as the entities that issued the insurance policies, the County Mutuals have

a primary role in the alleged discrimination. A preponderance of the evidence

(statistical and otherwise) thus shows that the Insured’s proposed class were

domiciled in Texas at the time the complaint was filed.

2. Preponderance of the Evidence – Intention to Remain in Texas

The evidentiary standard for establishing citizenship and domicile at this

preliminary stage must be practical and reasonable:

The requisite showing under CAFA prompts this court

to reconcile congressional intent, our precedent for

determining citizenship, and judicial economy. Thus,

the evidentiary standard for establishing the domicile

of more than one hundred plaintiffs must be based on

practicality and reasonableness. Preston II, supra, 485

F.3d at 813.

Citizenship, for purposes of proving an exception to CAFA, must be

analyzed as of the date the complaint or amended complaint was filed. 28 U.S.C.

§ 1332(d)(7); Preston I, 485 F.3d at 798; Martin v. Lafon Nursing Facility, 548

F.Supp.2d 268, 271 (E.D.La.2008). 

In Joseph v. Unitrin, Inc. (“Unitrin”), 2008 WL 3822938, *1 (E.D.Tex.), the

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district court addressed whether a claim against insurers for cancellation of

insurance coverage for “dwellings, household goods, and wearing apparel” should

be remanded to state court. The class action plaintiffs in Unitrin, like the

Insurance Companies here, argued that the “local controversy exception”to class

action diversity jurisdiction, 28 U.S.C. § 1332(d)(4)(A), prevented the court from

exercising jurisdiction because greater than two-thirds of the proposed class

members were citizens of Texas. Unitrin, supra, at 2. The insurance companies

in Unitrin responded that the insured had failed to offer sufficient proof that

more than two-thirds of the proposed class members were Texas citizens. Id. 

In Unitrin, the court analyzed the evidence of citizenship and noted that

the proposed class was made up of Texas residents who are policyholders whose

policies were cancelled and there was no evidence of a “mass exodus of more

than one-third” of the proposed class from Texas during the applicable time

period. Id. The court also noted that one of the insurer defendants, like the

County Mutuals here, was limited by Texas law to writing homeowners

insurance only in Texas. Id. The court reasoned that “[b]ecause the putative

class members are alleged to be Texas residents, logic dictates that their homes,

and by extension, their domicile, remain in Texas.” Id. The court further noted

that because the policies cover both the residence and the household affects, “it

can be assumed that the members of the putative class own both real and

personal property in Texas.” Id. Ultimately, the court held that “[i]n light of

these factors and the discrete nature of the proposed class, [the class action

plaintiffs] need not produce additional evidence in order to demonstrate that

more than two-thirds of the potential plaintiffs are Texas citizens.” Id.

Like the class action plaintiffs in Unitrin, the Insurance Companies here

produced evidence of (1) insurance of personal property (motor vehicles – likely

garaged at the residence of the owner) located in Texas and (2) authority of

county mutual insurers under Texas law to write auto insurance only for

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vehicles located in Texas. See Tex. Ins. Code § 912.151 (“A county insurance

company that qualifies for statewide operation may write all lines of automobile

insurance.” (Emphasis added.).)

Additionally, the courts have acknowledged that where a proposed class

is discrete in nature, a common sense presumption should be utilized in

determining whether citizenship requirements have been met. See Bennett,

2007 WL 2571942, at *4; Caruso, 469 F.Supp.2d at 368. For example, in Caruso,

the plaintiffs soughtto represent a class that included all Louisiana homeowners

who had purchased homeowner's policies from one of six insurance companies

named as defendants to the action. Id. at 367. Because owning a home is an

indicium of a person's domicile, the court held that the plaintiff's own

characterizations of the class, particularly plaintiffs' assertions that they

represented a class of individuals covered by homeowner's policies for homes

located in Louisiana, created a reliable presumption that the class was

comprised of Louisiana citizens. Id.; Dunham v. Coffeyville Res., L.L.C., 2007

WL 3283774, at *3 (D.Kan. Nov.6, 2007) (finding that plaintiffs' characterization

of class as “residents, domiciliaries, and property owners of Coffeyville, Kansas”

demonstrated its local nature). 

The Insured, more likely than not (or by a preponderance of the evidence),

garaged their cars in Texas. Registering a motor vehicle and insuring it in Texas

is some evidence of an intent to remain in Texas – at least for a while. Unlike

owning a second home, a vehicle owner is more likely than not inclined to wait

until actual relocation to register and insure a vehicle. The Insured produced

no evidence that any potential class member intended to establish a domicile

outside of Texas. Based on the statistical evidence produced by the Insurance

Companies, the district court correctly concluded that two-thirds or more of the

Insured’s proposed class of insurance policy holders were citizens of Texas with

both residency and the intention to remain in Texas, by a preponderance of the

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evidence, at the time the Insured filed their complaint. 

IV. CONCLUSION

In summary, the underlying case presents questions of Texas state law

regarding insurance policies issued for automobiles in the state of Texas by

Texas County Mutuals to Texas citizens. The Insured’s case does not appear to

be national litigation, so the spirit and intent of CAFA are not fulfilled. This

court concludes that the district court properly applied the “local controversy”

and “home state” mandatory abstention provisions to CAFA diversity

jurisdiction. For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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