Filed 9/20/23 Ashlynn Marketing Group v. Keryo CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ASHLYNN MARKETING GROUP, 

INC. et al.,

Plaintiffs and Respondents,

v.

NAZAR KERYO,

Defendant and Appellant.

 D081029

 (Super. Ct. No. 37-2022-

00006413-CU-BC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

John S. Meyer, Judge. Affirmed.

Farivar Law Firm, Fahim Farivar, Brian Ning, and Catherine Jung for 

Defendant and Appellant.

Caldarelli Hejmanowski Page & Leer, Marisa Janine-Page, and 

William J. Caldarelli for Plaintiffs and Respondents.

Ashlynn Marketing Group, Inc. (Ashlynn Marketing), Wasem Saliman, 

and Lina Saliman (Ashlynn Marketing and the Salimans collectively referred 

to as Plaintiffs) brought suit against SRSupplements, Inc. (SRS), Nazar 
2

Keryo, and Raed Matti for various causes of actions based on alleged business 

wrongdoings.1 Plaintiffs averred a breach of contract against Nazar only, 

claiming that he breached the subject contract by violating certain 

noncompetition and nonsolicitation provisions.

The subject contract contained an arbitration clause. Nazar moved to 

compel arbitration as to all claims against him. The superior court denied 

the motion, finding that the third party litigation exception under Code of 

Civil Procedure2 section 1281.2, subdivision (c) applied.

Nazar appeals the superior court’s order, contending the court erred in

applying the third party litigation exception to deny his motion to compel 

arbitration. In addition, he claims the court abused its discretion by denying 

the motion to compel arbitration rather than staying the litigation to allow 

Nazar and Plaintiffs to arbitrate their dispute. We reject these contentions 

and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Ashlynn Marketing is a California corporation engaged in the 

manufacture, sale, and distribution of vaping and nutritional products, 

including kratom products. The Salimans are the present owners of Ashlynn 

Marketing. Previously, the Salimans jointly owned Ashlynn Marketing with 

the Keryos. However, Nazar indicated that he wanted to retire and withdraw 

from the business.

1 Although not a party in this action, Nazar’s wife, Wansa, played a role 

in the factual underpinnings of the dispute before us. Thus, to avoid 

confusion, we refer to Nazar Keryo and Wansa Keryo by their first names 

when necessary. 

2 Statutory references are to the Code of Civil Procedure unless 

otherwise specified. 
3

In July 2020, the Salimans and the Keryos entered into a stock 

purchase agreement (Agreement) whereby the Salimans agreed to pay the 

Keryos $2.5 million to acquire the Keryos’ entire equity interest in Ashlynn 

Marketing. The Agreement included noncompete and nonsolicitation 

provisions that prohibited the Keryos from directly or indirectly 

manufacturing, distributing, or selling certain products (including kratom 

and cannabidol (CBD)), within a defined geographic area, for a period of 20 

years from the execution of the Agreement. However, after the Agreement 

was signed, Nazar began competing against Ashlynn Marketing in the 

kratom and CBD markets.

In August 2021, the Salimans and the Keryos engaged in a mediation 

after a dispute arose regarding Nazar’s alleged violation of his obligations 

under the noncompetition and nonsolicitation provisions of the Agreement.3 

That mediation proved successful, as the Salimans entered into a Stipulation 

for Settlement (Settlement) that, among other provisions, modified the period 

in which the Keryos would not compete with Ashlynn Marketing.4 

Nonetheless, Nazar allegedly continued to compete against Ashlynn

Marketing in violation of the Settlement.

On February 17, 2022, Plaintiffs filed suit against Nazar, Matti, and 

SRS, alleging causes of action for breach of contract (against Nazar only), 

breach of the implied covenant of good faith and fair dealing (against Nazar 

only), unfair business practices (Bus. & Prof. Code, § 17200) (against all 

3 The Agreement contained specified dispute resolution procedures, 

including mediation and arbitration.

4 The Stipulation modified the dispute resolution procedure set forth in 

the Agreement to delete the mediation requirement. The Agreement’s 

arbitration provision otherwise remained unchanged.
4

defendants), inducing breach of contract (against Matti and SRS only), 

interference with contract (against Matti and SRS only), and conspiracy to 

defraud (against all defendants). The gravamen of Plaintiffs’ complaint is 

that Nazar, Matti, and SRS are working together to improperly compete 

against Ashlynn Marketing by manufacturing, marketing, distributing, and 

selling kratom products as well as soliciting Ashlynn Marketing’s customers 

through a wrongfully obtained customer list.

Matti and SRS filed a joint answer to the complaint. That answer did 

not allege that the complaint was subject to arbitration.5 

The same day that Matti and SRS filed their answer, Nazar filed a 

motion to compel arbitration regarding all claims alleged against him.6 In 

opposing the motion, Plaintiffs argued the matter should proceed in superior 

court under the third party litigation exception pursuant to section 1281.2, 

subdivision (c). In support of their opposition, Plaintiffs submitted evidence 

5 Matti and SRS are represented by the same counsel. Nazar is 

represented by separate counsel.

6 Nazar also submitted an ex parte application for an order staying all 

further proceedings in the instant matter pending determination of the 

motion to compel arbitration. The superior court granted the application in 

part, staying all discovery propounded on Nazar as well as any third party 

subpoenas relating to him. However, the court allowed all other discovery 

propounded by or to the other parties in the action, including discovery aimed 

at third parties, to proceed on a limited basis “so long as they do not seek 

discovery of documents and/or information relating to the underlying dispute 

between [Nazar] and Plaintiffs.” Subsequently, in response to an ex parte 

application filed by Plaintiffs, the court modified its order to allow Plaintiffs 

to “pursue discovery from other, non-arbitrable defendants (Matti and SRS), 

and from third-parties, so long as such discovery is relevant to Plaintiffs’ 

claims against Matti and SRS, even if such discovery may also touch in some 

way upon or relate to [Nazar].”
5

that they asked Matti and SRS to arbitrate the dispute multiple times, but 

Matti and SRS would not agree to do so.

The superior court denied the motion to compel arbitration on the 

ground that the third party litigation exception applied. In doing so, the 

court discussed its options under section 1281.2, including denying the 

motion to compel arbitration, staying the arbitration pending disposition of 

nonarbitrable claims in the court, and staying the litigation pending 

completion of the arbitration, and opted to deny the motion outright. To this 

end, the court explained:

“The complaint is based on allegations that [Nazar] and 

Matti jointly conspired to form SRS to compete with 

Ashlynn [Marketing] in violation of the non-compete/nonsolicitation provision. [Nazar] argues the claims against 

SRS and Matti are ‘derivative’ and depend on the existence 

of his breach, and therefore staying the litigation is the 

better approach. However, the stay [Nazar] proposes would 

not solve the problem. For example, assuming the 

arbitrator concluded that [Nazar] did breach the 

agreement, that same issue would still need to be 

relitigated in court where a jury could find no such breach 

ever occurred. The claims and issues raised by the 

complaint are simply too inextricably mixed, and the 

possibility of conflicting rulings cannot reasonably be 

avoided by a stay. A stay would also be inefficient and 

inconsistent with the other policy underlying section 

1281.2- avoiding duplication of efforts. The entire case 

should be resolved in a single forum, and given SRS and 

Matti’s refusal to stipulate to arbitration, the only available 

forum is court, where litigation against those two 

defendants has already been underway for months.”

Nazar timely appealed.

DISCUSSION

“California law reflects a strong public policy in favor of arbitration as a 

relatively quick and inexpensive method for resolving disputes. [Citation.]
6

To further that policy, section 1281.2 requires a trial court to enforce a 

written arbitration agreement unless one of three limited exceptions applies. 

[Citation.] Those statutory exceptions arise where (1) a party waives the

right to arbitration; (2) grounds exist for revoking the arbitration agreement; 

and (3) pending litigation with a third party creates the possibility of 

conflicting rulings on common factual or legal issues. (§ 1281.2, 

subds. (a)-(c).)” (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 

Cal.App.4th 959, 967 (Acquire II).) Here, we are concerned with the third 

statutory exception.

The third party litigation exception, which is codified at section 1281.2, 

subdivision (c), may apply if the following conditions are met: (1) “[a] party to 

the arbitration agreement is also a party to a pending court action or special 

proceeding with a third party”; (2) the third party action “aris[es] out of the 

same transaction or series of related transactions”; and (3) “there is a 

possibility of conflicting rulings on a common issue of law or fact.” (§ 1281.2, 

subd. (c).) “If all three of these conditions are satisfied, then section 

1281.2[, subdivision] (c) grants a trial court discretion to either deny or stay 

arbitration despite an agreement to arbitrate the dispute. [Citation.] 

Specifically, section 1281.2 identifies four options from which the court may 

choose: (1) ‘refuse to enforce the arbitration agreement and . . . order 

intervention or joinder of all parties in a single action or special proceeding’; 

(2) ‘order intervention or joinder as to all or only certain issues’; (3) ‘order 

arbitration among the parties who have agreed to arbitration and stay the 

pending court action or special proceeding pending the outcome of the 

arbitration proceeding’; and (4) ‘stay arbitration pending the outcome of the 

court action or special proceeding.’ (§ 1281.2.)” (Acquire II, supra, 213 

Cal.App.4th at pp. 967-968.)
7

A superior court does not have discretion to deny a motion to compel or 

to stay arbitration unless all three of section 1281.2, subdivision (c)’s 

conditions have been satisfied. (Acquire II, supra, 213 Cal.App.4th at p. 968.) 

“When section 1281.2[, subdivision] (c) applies, ‘the trial court’s discretionary 

decision as to whether to stay or deny arbitration is subject to review for 

abuse.’ [Citations.] The trial court’s decision whether section 

1281.2[, subdivision] (c) applies, however, is reviewed under either the 

substantial evidence standard or the de novo standard. If the court based its 

decision on a legal determination, then we adopt the de novo standard. 

[Citations.] If the court based its decision on a factual determination, then 

we adopt the substantial evidence standard of review. [Citation.] Whether 

there are conflicting issues arising out of related transactions is a factual 

determination subject to review under the substantial evidence standard.” 

(Id. at pp. 971-972.)

Here, Nazar raises two primary challenges. First, he claims the 

superior court erred in determining that the third party exception applies. 

Second, in the alternative, he argues that even if the third party exception 

applies, the court abused its discretion by denying the motion to compel 

arbitration instead of staying the court action while allowing the arbitration 

between Plaintiffs and Nazar to proceed. We address each contention in 

turn.

Nazar does not dispute that the second condition of the third party 

exception under section 1281.2, subdivision (c) was satisfied. Indeed, Nazar 

acknowledges that Plaintiffs’ “claims against Matti and [SRS] are 

intertwined with and inherently dependent on their claims against [Nazar] 

(unfair business practice, inducing breach of contract, interference with 

contract, and conspiracy to defraud).” 
8

Additionally, Nazar appears to offer, at most, a superficial challenge to 

the superior court’s finding that inconsistent rulings were possible if the 

arbitration were to proceed. To this end, he faults the court for “ignoring its 

own power and obligation to confirm or vacate the arbitrator’s award” under 

section 1286 in concluding that the arbitrator’s ruling on whether Nazar 

breached the Agreement could conflict with the jury’s finding on the same 

issue. Yet, section 1286 merely states: “If a petition or response under this 

chapter is duly served and filed, the court shall conform the award as made, 

whether rendered in this state, or another state, unless in accordance with 

this chapter it corrects the award and confirms it as corrected, vacates the 

award or dismisses the proceedings.” It does not address the potential of 

conflicting rulings, and Nazar offers no explanation how section 1286

supports his position here.7 In this sense, he has not carried his burden on 

appeal regarding this issue.

“ ‘In order to demonstrate error, an appellant must supply the 

reviewing court with some cogent argument supported by legal analysis and 

citation to the record.’ [Citation.] Although we exercise our discretion to 

consider arguments for which we can discern a legal or factual basis in the 

briefs, there are many instances when no such basis is apparent. ‘We are not 

obliged to make other arguments for [appellant] [citation], nor are we obliged 

to speculate about which issues counsel intend to raise.’ [Citations.] We may 

and do ‘disregard conclusory arguments that are not supported by pertinent 

legal authority or fail to disclose the reasoning by which the appellant 

7 To the extent Nazar is implying that the superior court has broad 

discretion to vacate an arbitration award to avoid conflicting rulings with an 

ongoing superior court case, he is mistaken. Generally, a superior court may 

only vacate an arbitration award under specific circumstances. (See 

§§ 1286.2, 1286.4.) 
9

reached the conclusions he wants us to adopt.’ [Citation.]” (United Grand 

Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.)

Here, Nazar does not sufficiently develop his assertion that the 

superior court erred in concluding there was the possibility of conflicting 

rulings on a common issue of law or fact.8 “The absence of cogent legal 

argument or citation to authority allows this court to treat the contentions as 

waived.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 

830.)9

In contrast to his treatment of the second and third conditions of the 

third party litigation exception under section 1281.2, subdivision (c), Nazar 

8 Also, we are not persuaded by Nazar’s assertion that there is no need to 

be concerned about conflicting rulings because the arbitrator’s decisions 

regarding a breach of the Agreement and/or Settlement “should have a res 

judicata effect” on Plaintiffs’ claims against Matti and SRS. He provides no 

authority to support this assertion; thus, he has waived this argument on 

appeal. (See In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at 

p. 830.) Moreover, Nazar ignores the unfairness of applying an arbitrator’s 

finding of breach of contract on Matti and SRS without those two defendants 

being given the opportunity to defend themselves in superior court on that 

very issue. Such a situation is exactly the circumstance the third party 

litigation exception is meant to avoid. (Cf. Acquire II, supra, 213 Cal.App.4th 

at p. 968.)

9 Nazar also claims the superior court erred in finding the third party 

exception applicable because its ruling was “partly based on its evidentiary 

findings on a combination of [Plaintiffs’] allegations and their discovery 

already performed in this [c]ase.” Additionally, he argues the court played a 

role in creating the possibility of conflicting rulings by allowing Plaintiffs to 

take discovery against Matti and SRS. Neither of these arguments is 

supported by any relevant legal authority. We thus find them waived. (See 

In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.) Further, 

we see no issue with a superior court considering the evidence submitted in 

support of or in opposition to a motion to compel arbitration when it bears on 

the possibility of conflicting rulings between an arbitration and the 

underlying superior court action. 
10

focuses most of his brief on the first condition—that Plaintiffs, as signatories 

to an arbitration agreement, are also parties to a pending court action with a 

third party. Specifically, Nazar argues the superior court erred in 

determining that Matti and SRS were third parties. We disagree.

For purposes of section 1281.2, subdivision (c), a third party is one who 

is neither bound by nor entitled to enforce the arbitration agreement. 

(Thomas v. Westlake (2012) 204 Cal.App.4th 605, 612.) Here, there is no 

evidence or argument in the record that either Matti or SRS signed the 

Agreement or the Settlement. Indeed, it is undisputed that the only 

signatories were Plaintiffs and Nazar. Nonetheless, Nazar insists the court 

erred in considering Matti and SRS third parties for purposes of his motion to 

compel arbitration.

Here, Nazar claims: “The trial court’s primary issue was its failure to 

consider the third-party litigation exception in the posture of a signatory 

attempting to enforce his explicit arbitration right.” In this sense, Nazar 

contends that the trial court did not appropriately contemplate the fact that 

he, as a signatory to a valid arbitration agreement, was seeking to arbitrate 

against other signatories. This argument borders on nonsensical. 

Section 1281.2, subdivision (c) often arises under circumstances, like the one 

here, where a party to an arbitration agreement is seeking to enforce 

provisions against other signatories but non-signatories are also parties to 

the underlying lawsuit. (See Cronus Investments, Inc. v. Concierge Services

(2005) 35 Cal.4th 376, 393 (Cronus) [“Section 1281.2(c) addresses the peculiar 

situation that arises when a controversy also affects claims by or against 

other parties not bound by the arbitration agreement”].) Thus, 

section 1281.2, subdivision (c) allows a court discretion not to enforce an 

arbitration agreement under certain enumerated circumstances. (Cronus, at 
11

p. 393; § 1281.2, subd.(c).) It logically follows that a court would determine 

whether section 1281.2, subdivision (c) applies when a party petitions to 

compel arbitration under a valid arbitration provision. This is precisely what 

happened below.

Nazar also insists the superior court erred in concluding that Matti and 

SRS were third parties because the court’s finding that Matti and SRS 

refused to arbitrate is not supported by substantial evidence. In support of 

his position, Nazar points to a joinder Matti and SRS filed wherein they 

requested the court grant the motion to compel arbitration as to Nazar and 

Plaintiffs only and to stay the superior court action as to them pending the 

outcome of the arbitration. Here, it appears Nazar is confusing a willingness 

to arbitrate a dispute with an inclination to allow other parties to arbitrate 

their dispute. Below, the trial court found that “SRS and Matti have 

steadfastly refused to arbitrate, as made particularly apparent by their 

separate counsel during oral argument.” That finding was supported by an 

abundance of evidence in the record. For example, Plaintiffs offered a 

declaration from their attorney as well as correspondence showing the 

unsuccessful efforts Plaintiffs undertook to persuade Matti and SRS to agree 

to arbitrate Plaintiffs’ claims against them.

In fact, in the joinder on which Nazar relies here, Matti and SRS 

vigorously argued that they were not signatories to any arbitration 

agreement and should not be compelled to arbitrate Plaintiffs’ claim against 

them. Clearly, the trial court’s finding that Matti and SRS have refused to 

arbitrate is supported by substantial evidence.

Next, Nazar maintains that estoppel undermines the trial court’s 

conclusion that Matti and SRS were third parties. Accordingly, relying on 

Rowe v. Excline (2007) 153 Cal.App.4th 1276 (Rowe), Nazar contends “a party 
12

may be estopped from asserting he is a third party where he also seeks to 

receive the benefits of an arbitrable agreement against that non-signatory.” 

That argument is inapplicable here as is Rowe. In that case, individual 

nonsignatory defendants were allowed to require arbitration against a 

signatory plaintiff, but the plaintiff had sued the nonsignatory defendants as 

alter egos to a corporate signatory on causes of action directly based on a 

contract and sought recovery under contract terms. (See id. at pp. 1279-

1281.) No analogous factual scenario exists before us. The instant action 

does not concern Matti and SRS trying to enforce an arbitration agreement 

against Plaintiffs. 

Nevertheless, Nazar insists the rationale of Rowe and estoppel should 

apply here with equal force: “[I]f estoppel would operate to prevent a plaintiff 

from disclaiming a third party’s benefit to an arbitration agreement due to 

plaintiff’s acts impleading them and making claims arising from that 

agreement, then that plaintiff must also be estopped to disclaim the 

arbitration agreement with this counter-signatory under the same 

circumstances.” We find this argument unpersuasive. Plaintiffs are not 

attempting to disclaim the subject arbitration provision. In fact, they 

attempted to get all defendants in the underlying lawsuit to arbitrate the 

dispute. However, Matti and SRS consistently refused to do so. So, the 

instant action consists of Plaintiffs, who are parties to an arbitration 

agreement, suing a signatory defendant and two nonsignatory defendants. 

Thus, the instant matter here presents the “peculiar situation” that 

section 1281.2, subdivision (c) covers. (See Cronus, supra, 35 Cal.4th at 

p. 393.) Nothing in Rowe or the principle of estoppel changes the nature of 

the case before us. Again, this is not a case, like Rowe, where nonsignatory 
13

defendants are seeking to enforce an arbitration agreement against a 

signatory plaintiff.

Finally, Nazar claims the trial court erred in determining Matti and 

SRS are third parties because the operative complaint contains allegations, 

on information and belief, that each of the named defendants were the 

“principal, partner, member, agent, employer, representative, and/or 

employee of the others, and was acting within the scope of said agency and/or 

employment, and was aware of and ratified the acts of the others.” Nazar 

argues these agency allegations “constitute judicial admissions and should be 

taken as true for purposes of the” motion to compel arbitration. This 

argument, however, appears to be based on another misapplication of Rowe. 

There, the appellate court concluded that the nonsignatory defendants were 

entitled to enforce the subject arbitration agreement against the signatory 

plaintiff because that plaintiff alleged that the nonsignatory defendants were 

the alter egos of the signatory defendant and were liable for breach of 

contact. (Rowe, supra, 153 Cal.App.4th at pp. 1284-1285.) Here, we have no 

such situation. Plaintiffs are not suing Matti and SRS for breach of contract. 

More importantly, neither Matti nor SRS are attempting to force Plaintiffs to 

arbitrate their claims against them. Rather, it is quite the opposite situation 

in that Matti and SRS have refused to submit the dispute to arbitration and 

both argued below that they “should not be forced to arbitrate as nonconsenting, non-signatories to the arbitration agreement.” Moreover, Matti 

and SRS did not “concede that they were the alter ego or agent of one 

another, and in fact, vehemently deny such accusations.”

We acknowledge that the operative complaint includes boilerplate 

agency allegations. However, these agency allegations have no bearing on 

the issue at hand. In a proceeding on a motion to compel arbitration, the 
14

superior “court sits as a trier of fact, weighing all the affidavits, declarations, 

and other documentary evidence, as well as oral testimony received at the 

court’s discretion to reach a final determination.” (Engalla v. Permanente 

Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) Here, evidence was 

submitted bearing on the issue of agency. For example, in opposing the 

motion to compel arbitration, Plaintiffs did not argue that Matti and/or SRS 

were the agents of Nazar. Indeed, they conceded a lack of agency by offering 

evidence that they asked Matti and SRS to arbitrate the dispute, but Matti 

and SRS declined to do so.10 Additionally, below, Matti and SRS submitted 

evidence and argument that they were not Nazar’s agents, did not sign the 

Agreement or Settlement, and did not agree to arbitrate the dispute. Against 

this backdrop, the complaint’s allegations do not trump the evidence before 

the superior court.

Again, we observe that the boilerplate agency allegations could be 

relevant under Rowe if Matti and SRS were seeking to enforce the subject 

arbitration provision against Plaintiffs. (See Rowe, supra, 153 Cal.App.4th at 

p. 1290.) But they are not. The context in which we find this case on appeal 

remains a defendant, who is a signatory to an arbitration agreement, seeking 

to arbitrate its dispute with signatory plaintiffs. The wrinkle here is that two 

of the other defendants in the underlying action are not parties to the 

arbitration agreement and refuse to arbitrate. They are third parties under 

section 1281.2, subdivision (c).

Having concluded that the superior court did not err in determining 

that the third party litigation exception applies, we next turn to Nazar’s 

claim that the superior court abused its discretion in electing to deny the 

10 If Plaintiffs had evidence that Matti and SRS were Nazar’s agents, they 

could have moved to compel arbitration rather than asking Matti and SRS to 

agree to arbitration. 
15

motion to compel arbitration and have the litigation proceed in superior 

court. “Under [the abuse of discretion] standard, ‘[t]he trial court’s 

“application of the law to the facts is reversible only if arbitrary and 

capricious.” [Citation.]’ ” (Cummings v. Dessel (2017) 13 Cal.App.5th 589, 

597.)

Nazar simply argues the court chose the wrong option under 

section 1281.2, subdivision (d). He therefore claims the court abused its 

discretion by “waiv[ing] [Nazar’s] arbitration right for the sake of 

convenience, rather than order[ing] a more equitable and reasonable order 

respecting each party’s rights.” Yet, he does not provide any cogent 

argument in support of his position. He merely insists there was a better 

way to ensure that his bargained for right to arbitrate was enforced. But the 

existence of a valid arbitration agreement does not eclipse section 1281.2, 

subdivision (c). Indeed, the entire reason that statutory provision exists is 

that, despite the public policy favoring arbitration, there are times where it 

can do more harm than good, such as when some parties must arbitrate while 

others litigate the same issues in court. And simply because the court had 

another option, it does not follow that the option it chose was an abuse of 

discretion. In short, Nazar has not demonstrated any abuse of discretion, 

and therefore the superior court’s order is affirmed.
16

DISPOSITION

The order is affirmed. Plaintiffs are entitled to their costs on appeal.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.