[Cite as Janssen v. Fluent Solar, L.L.C. , 2024

- Ohio

- 1697.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Anita Janssen

, :

Plaintiff

- Appellee, : No. 23AP

- 507 (C.P.C. No. 23CV

- 99)

v. : (REGULAR CALENDAR) Fluent Solar, LLC

, :

Defendant

- Appellant. :

D E C I S I O N

Rendered on May 2 , 2024

On brief: Kohl & Cook Law Firm

, Jacob R. Dattilo

, Timothy J. Cook , and Sean M. Kohl

, for appellee.

On brief: Mac Murray & Schuster

, LLP

, Helen Mac Murray

, and Erica Hollar

, for appellant.

APPEAL from the Franklin County Court of Common Pleas

MENTEL, P. J.

{¶ 1} Defendant

- appellant, Fluent Solar, LLC (“Fluent Solar”)

, appeals from a

July 21, 2023 decision and entry of the Franklin County Court of Common Pleas denying

its motion to compel arbitration and to stay proceedings pending arbitration. For the

reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} This matter originates from a contract between plaintiff

- appellee, Anita

Janssen

, and Fluent Solar for the installation of solar panels. As part of the contract, the

parties resolved to address any claims under the agreement with the American Arbitration

Association (“AAA”). ( Jan. 5, 2023 Compl.

, Ex. A at 5 .) According to Janssen

, a dispute

arose when Fluent Solar failed to install the panels in a workmanlike manner resulting in

damage to her home.23 AP

- 507 2

{¶ 3} On September 12, 2022, Janssen filed her claim and demand for arbitration

with AAA. (Jan. 5, 2023 Compl.

, Ex. C.) The demand for arbitration was filed against

Fluent Solar and was addressed to its statutory agent, “ Corporation Service Company

( ‘ CSC ’ ) , 3366 Riverside Dr., Suite 103

. ” ( Jan. 5, 2023 Compl.

, Ex. C .) On September 26,

2022, prior counsel for Fluent Solar , Justin James, emailed Janssen’s counsel indicating

that he was “retained to represent Fluent in Ms. Janssen’s arbitration demand .” (Jun e 29,

2023 Janssen ’s Memo Contra, Ex. C.) James requested Janssen’s counsel “send all future

correspondence s to [him] ” and asked if a case number had been assigned to the matter.

(Jun e 29, 2023 Janssen ’s Memo Contra, Ex. C.) Janssen ’s counsel replied

, writing that

while a demand was filed, AAA had not yet assigned a case number

. (Jun e 29, 2023

Janssen ’s Memo Contra, Ex. C.)

{¶ 4} By letter dated October 10, 2022, AAA notified Fluent Solar that Janssen had

filed a demand for arbitration

, and that she had paid her portion of the filing fee

. AAA

noted “ [s]o that the filing requirements are complete, the business is requested to submit

filing fees of $300, the expedited consumer clause review fee of $250 and its arbitrator’s

compensation deposit of $2,500 totaling $3,050 ” no later than October 24, 2022

. (Emphasis omitted .) (Jun e 29 , 2023 Janssen ’s Memo Contra., Ex. D.) The letter was

addressed to Fluent Solar’s statutory agent, CSC. By way of letter dated October 25, 2022,

AAA notified Fluent Solar that it had not received the requisite filing fees by the October

24 , 2022 deadline, and it had until November 8, 2022 to remit payment

. (Jun e 29, 2023

Janssen ’s Memo Contra., Ex. E.) AAA cautioned that if it failed to pay by the revised

deadline

, AAA could decline to arbitrate the claim and , pursuant to its Consumer

Arbitration Rules, the parties could submit their dispute to the appropriate court for

resolution

. On October 28, 2022, James emailed Janssen’s attorney inquiring about the

natu re of the claim and the alleged monetary damages. Janssen’s counsel provided the

requested information that same day. ( Jun e 29, 2023 Janssen ’s Memo Contra., Ex. C.) By

way of letter dated November 16, 2022, AAA advised Fluent Solar that, based on its failure

to pay the required fees, AAA declined to arb it rate the case and either party may bring its

claim to the appropriate court

. (Jun e 29, 2023 Janssen Memo Contra., Ex. F.) 1

1 AAA authenticated the three letters as business records. ( Jun e 29, 2023 Janssen ’s Memo Contra., Ex. G .)23 AP

- 507 3

{¶ 5} On January 5, 2023, Janssen filed a complaint in the Franklin County Court

of Common Pleas. Janssen asserted causes of action for violation of the Ohio Consumer

Sales Practices Act (Count One); breach of contract (Count Two); breach of express

warranty (Count Three); and negligence (Count Four)

. Service was complete by certified

mail on January 11, 2023. On March 22, 2023, Fluent Solar filed a combined motion to

compel arbitration and to stay the case pending arbitration. A corrected motion was filed

on April 5, 2023

. After a brief extension of time to conduct discovery, Janssen filed a

memorandum in opposition on June 29, 2023. Fluent Solar did not file a reply brief.

{¶ 6} On July 21, 2023, the trial court issued a decision and entry in this matter

denying Fluent Solar’s motion to compel arbitration and to stay proceedings pending

arbitration. The trial court concluded that Fluent Solar had waived its right to arbitrat e the

claims asserted in Janssen’s complaint

. {¶ 7} Fluent Solar filed a timely appeal.

II. ASSIGNMENT OF ERROR

{¶ 8} Fluent Solar assign s the following as trial court error:

The trial court erred by finding that Fluent Solar, LLC waived its contractual right to arbitrate the claims asserted in this matter by Anita Janssen.

III. STANDARD OF REVIEW

{¶ 9} A trial court’s resolution whether to grant or deny a motion to compel

arbitration and stay proceedings pending arbitration turns on the nature of the issues in

the case. Hunter v. Rhino Shield

, 10th Dist. No. 15AP

- 172, 2015

- Ohio

- 4603, ¶ 17, citing

Pinnell v. Cugini & Cappoccia Builders

, Inc

., 10th Dist. No. 13AP

- 579, 2014

- Ohio

- 669,

¶ 17

. In cases involving whether a party waived its right to arbitrate, a n appellate court

considers a trial court ’ s judgment under an abuse of discretion standard of review because

the determination of the waiver issue requires a fact

- intensive analysis. Kevin O ’ Brien &

Assocs. Co.

, L.P.A. v. E

. Worthington

, LLC

, 10th Dist. No. 22AP

- 700
, 2023

- Ohio

- 3494,

¶ 11, citing Boggs v. Columbus Steel Castings Co.

, 10th Dist. No. 04AP

- 1239, 2005

- Ohio

4783, ¶ 5, citing Tinker v. Oldaker

, 10th Dist. No. 03AP

- 671, 2004

- Ohio

- 3316, ¶ 5; see

also Fravel v. Columbus Rehab. & Subacute Inst

., 10th Dist. No. 15AP

- 782, 2015

- Ohio

5125, ¶ 9
, citing Hunter at ¶ 17, citing Pinnell at ¶ 17 ; Morris v. Morris

, 189 Ohio App.3d

608, 2010

- Ohio

- 4750, ¶ 17 (10th Dist.)

. We will not reverse a trial court’s decision under23 AP

- 507 4

an abuse of discretion analysis absent a showing that the decision was arbitrary,

unreasonable, or unconscionable. Blakemore v. Blakemore

, 5 Ohio St. 3d 217, 219 (1983)

.

I V . LEGAL ANALYSIS

A. Appellant’s Sole Assignment of Error

{¶ 10} In Fluent Solar’s sole assignment of error, it argues the trial court abused its

discretion by finding that it waived its contractual right to arbitrate the claims asserted in

this matter

. {¶ 11} Ohio court s ha

ve long recognized that Ohio public policy favors a r bi tr ation

as an alternative means of dispute resolution

. Fries v. Greg G. Wright & Sons

, LLC , 1st

Dist. No. C

- 1608 18, 2018

- Ohio

- 3785, ¶ 18 , citing Schaefer v. Allstate Ins. Co. , 63 Ohio St.3d

708, 711

- 12 (1992); ABM Farms

, Inc. v. Woods , 81 Ohio St.3d 498, 500 (1998).

“ ‘Arbitration is favored because it provides the parties thereto with a relatively expeditious

and economical means of resolving a dispute.’ ” Kelm v. Kelm , 68 Ohio St.3d 26, 29 (1993),

quoting Schaefer at 708, 712. R.C. 2711.01 directs that an arbitration provision in a written

contract “ ‘shall be valid, irrevocable, and enforceable, except upon grounds that exist at

law or in equity for the revocation of any contract.’ ” Crosscut Capital

, LLC v. DeWitt , 10th

Dist. No. 20AP

- 222, 2021

- Ohio

- 1827, ¶ 11 , quoting R.C. 2711.01(A) ; Hayes v. Oakridge

Home , 122 Ohio St.3d 63, 2009

- Ohio

- 2054, ¶ 16. R.C. 2711.02(B) provides :
If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreem ent in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement, provided the applicant for the stay is not in default in proceeding wi th arbitration.

{¶ 12} Thus

, a party wishing to enforce an arbitration agreement may seek a stay of

litigation in favor of arbitration. Such orders that grant or den y a stay of trial pending

arbitration constitute a final order and “may be reviewed, affirmed, modified, or reversed

on appeal pursuant to the Rules of Appellate Procedure and, to the extent not in conflict

with those rules, Chapter 2505. of the Revised Code.” R.C. 2711.02(C).

{¶ 13} However, t he right to arbitrat e , much like any other contractual right, may

be waived. Pinnell at ¶ 17; Dispatch Printing Co. v. Recovery Ltd. Partnership

, 10th Dist.

No. 10AP

- 353, 2011

- Ohio

- 80, ¶ 19. To be sure, a determination that a contractual right23 AP

- 507 5

to arbitrate has been waived should not be done so lightly. Fravel at ¶ 9, citing Morris at

¶ 18

. A party asserting that a contractual arbitration provision was waived must establish

that the waiving party knew of the existing right to arbitrate and, based on the totality of

the circumstances, acted inconsistent with that right. Kevin O ’ Brien & Assocs

. at ¶ 31,

citing Stoner v. Salon Lofts

, L.L.C.

, 10th Dist. No. 13AP

- 437, 2014

- Ohio

- 796, ¶ 16, quoting

Dispatch Printing Co. at ¶ 21, citing Murtha v. Ravines of McNaughton Condo. Assn

.,
10th Dist. No. 09AP

- 709, 2010

- Ohio

- 1325, ¶ 21 ; Blackburn v. Citifinancial

, Inc.

, 10th

Dist. No. 05AP

- 733, 2007

- Ohio

- 1463, ¶ 17; Hunter at ¶ 16. To determine whether the

totality of circumstances supports a finding of waiver

, a reviewing court may consider such

factors as: “ (1) whether the party seeking arbitration invoked the court ’ s jurisdiction by

filing a complaint or claim without first requesting a stay; (2) the delay, if any, by the party

seeking arbitration to request a stay; (3) the extent to which the party seeking arbitration

has participated in the litigation; and (4) whether prior inconsistent acts by the party

seeking arbitration would prejudice the non

- moving party. ” ( F urther citation s omitted.)

Kevin O ’ Brien & Assocs. at ¶ 31 ; see also Crosscut Capital

, LLC at ¶ 13

. {¶ 14} Appellant argues there is no basis to find that it knowingly waived its right to

arbitrate

. (Appellant’s Brief at 15.) A ppellant cites our decision in Tinker supposedly for

the proposition that “[u]nless the court determines with a high degree of certainty that the

parties knowingly waived their contractual rights to arbitrate, an agreement to arbitrate

should be enforced.” (Emphasis sic.) (Appellant’s Brief at 14.)

{¶ 15} After a careful review of the record, it is apparent that Fluent Solar knew of

the arbitration provision as well as its right to arbitrate

. The agreement is a standard form

contract titled, “Solar Energy System Purchase Agreement

. ” (Jan. 5, 2023 Compl., Ex. A .)

As the agreement was provided by Fluent Solar

, it is highly doubtful it was not aware of

their own arbitration provision. Moreover, based on prior counsel’s September 26, 2022

email, Fluent Solar was aware of the arbitration provision as well as Janssen’s arbitration

demand. Fluent Solar’s claim that a n arbitration provision should be enforced “[ u ] nless a

court determines with a high degree of certainty that the parties knowingly waived their

contractual rights to arbitrate” is in no way supported by our decision in Tinker

. (Emphasis

omitted .) (App ellant’s Brief at 14 .) The Tinker court wrote that, when resolving whether a

party has waived arbitration, a court considers whether, “(1) the waiving party knew of the23 AP

- 507 6

existing right to arbitrate; and (2) the totality of the circumstances demonstrate the party

acted inconsistently with the known right.” Tinker at ¶ 19. The phrase concerning whether

a party “ knew of the existing right ” refers to a party’s knowledge of the arbitrat ion provision

, not, as Fluent Solar claims, a knowing waiver of said right. See

, e.g. , Dispatch Printing Co.

at ¶ 22 (concluding “first prong (i.e., awareness of the arbitration clause) to be beyond

dispute as appellants had repeatedly cited over the years portions of the agreement

. ”) ;
Lovano v. Setjo

, LLC

, 8th Dist. No. 111666, 2023

- Ohio

- 461, ¶ 1 8 ( finding the “subject

arbitration agreement is part of the contract that [appellant] unilaterally prepares and

presents to its customer in its sale and financing of motor vehicles. Accordingly, [appellant]

was well aware that any dispute regarding the transaction was covered by the arbitration

agreement. ” )

. Fluent Solar’s attempt to distort the above test to require a knowing waiver

,
instead of a party’s knowledge of a n existing right to arbitrat e , is disingenuou s at best

. The

question becomes whether Fluent Solar

, based on the totality of the circumstances, waived

the ability to arbitrate by acting inconsistent with th at right.

{¶ 16} T here are several factors the trial court cited in support of its determination

that Fluent Solar act ed inconsistent with its right to arbitrate

. Most notably

, the trial court

found Fluent Solar was aware of the demand for arbitration through service on its statutory

agent, CSC

. The trial court went on to note that

, despite multiple letters from AAA

, Fluent

Solar failed to pay the required fees to AAA to administer th e dispute

. While Fluent Solar

asserts it was not aware of the claim, the trial court concluded that the demand and letters

from AAA were properly served on CSC

. As cited by the trial court, per R.C. 1706.09 (A)

, a
foreign limited liability company must conti nuously maintain in this state an agent for

service of process on the company. “Any legal process, notice, or demand required or

permitted by law to be served upon a limited liability company may be served upon the

company * * * [b] y delivering a copy of the process, notice, or demand to the address of the

agent in this state as contained in the records of the secretary of state .” R.C.

1706.09(H)(1)(a). “ ‘When the Civil Rules on service are followed, there is a presumption

of proper service.’ ” Howard v. Mgt. & Training Corp. , 10th Dist. No. 21AP

- 283 , 2022

-

Ohio

- 4071, ¶ 13, quoting Rogers v. United Presidential Life Ins. Co. , 36 Ohio App.3d 126,

128 (10th Dist.1987). T he tr ial court c ited these provisions to support its determination

that Fluent Solar was on notice of the arbitration demand through service o n CSC.23 AP

- 507 7

{¶ 17} Upon review, we find the trial court’s examination under the totality of the

circumstances analysis reasonable

. There is no dispute that CSC is the statutory agent for

Fluent Solar in Ohio. (Jun e 29 , 2023 Memo Contra, Ex. B, Jared Hunsaker Dep. at 10 , 21 .)

The issue appears to be a failure in procedure between CSC and Fluent Solar as to the timely

production of correspondence

. Indeed, Jared Hunsaker, C hief L egal O fficer and Vice

President of Human Resources

, acknowledged as much during his deposition testimony

stating that Fluent Solar has had issues receiving mail from CSC. (Jun e 29 , 2023 Memo

Contra, Ex. B, Jared Hunsaker Dep. at 17, 21.) “And we don’t get a lot of mail from [CSC].

We get some, but there’s definitely a lot we don’t get that I find out about later. So

, I would

say that’s the general course of business. But

, there’s definitely some mistakes that are

happening where we’re not getting, you know, all the mail that they should be sending to

us.” (Jun e 29 , 2023 Memo Contra, Ex. B, Jared Hunsaker Dep. at 21.)

{¶ 18} Fluent Solar argues “ the trial court ignore d the rebuttable presumption that

Fluent was aware of the arbitration demand based on the fact it was sent to the stat utory

agent

, [CSC]

. ” (Appellant’s Brief at 11.) We disagree. The trial court extensively examined

the issue of notice in its July 2023 decision

. Based on the letters from AAA, as well as

supporting documentation and deposition testimony, we agree with the trial court’s

determination that Fluent Solar was on notice of the arbitration demand through CSC.

While James’ affidavit states that he did not receive any correspondence from AAA, Fluent

Solar fails to address whether its statutory agent received such documents. Had Fluent

Solar selected a better statutory agent, or more importantly, had a better procedure in place

for receiving correspondence at the statutory agent’s address, the mishandling of the letters

from AAA could have been avoided. See John W. Judge Co. v. United States Freig ht

, LLC

,

2 d Dist. No. 27708, 2018

- Ohio

- 2658, ¶ 28. Moreover, it is apparent from James’ email

communication with Janssen’s counsel that he was aware a demand for arbitration had

been filed. Yet , Hunsaker testified that he did not find anything through email that prior

counsel had contacted AAA. (Jun e 29 , 2023 Memo Contra, Ex. B, Jared Hunsaker Dep. at

15.)

{¶ 19} Fluent Solar also contends there was no delay in its request to arbitrate as

prior counsel “ contact ed Appellee’s counsel immediately after receiving a copy of what

appeared to be an unfiled demand for arbitration.” (Appellant’s Brief at 16.) Fluent Solar23 AP

- 507 8

then places the blame on opposing counsel positing that it is their duty to “communicate

with opposing party’s attorney once they know that the party is represented.” (Appellant’s

Brief at 17.) We find these arguments regarding opposing counsel’s duty to communicate

to be without merit. T he issue in this case is not communication between the parties but

Fluent Solar’s failure to communicate with AAA concerning the demand for arbitration.

N othing relieves Fluent Solar’s counsel of its responsibility to f ollow up with AAA as to

potential arbitration demands

. Lovano at ¶ 19 (“Whether [ d efendant] received or did not

receive subsequent documentation from the AAA or communication from the [plaintiff ’s ]

attorney did not excuse [ d efendant] from its duty to follow up on the matter.”). Fluent Solar

also argues that it made contact with Janssen’s counsel with “ what appeared to be an

unfiled demand for arbitration.” (Appellant’s Brief at 16.) Fluent Solar’s contention that

the demand for arbitration was unfiled is directly contradicted by Hunsaker’s deposition

testimony that prior counsel was on notice that the arbitrat ion demand had been filed.

[ JANSSEN ’S COUNSEL] : And Mr. James did say that Timothy Cook let him
know th e arbitration demand was filed with the AAA; correct?

[HUNSAKER] : Yeah

. He said filed with the AAA.

(Jun e 29 , 2023 Memo Contra, Ex. B, Jared Hunsaker Dep. at 2 6 .) Hunsaker even
acknowledged that opposing counsel has no influence on its communications with AAA

stating , “[opposing counsel] could definitely let you know if, you know, the AAA sends them

notice or updates them on the case. But, * * * they wouldn’t have any influence on what the

AAA does.” (Jun e 29 , 2023 Memo Contra, Ex. B, Jared Hunsaker Dep. at 25

- 26 .)

{¶ 20} Appellant asserts two additional arguments for the first time in this appe al

. First, Fluent Solar argues that per the contract, Janssen was required to provide notice not

to CSC but “to the person identified in this Agreement at the addresses set forth in this

Agreement or such other addresses as either party may specify in writing.” (Appellant’s

Brief at 18.) Fluent Solar contends under the contract, Janssen was re quired to send notice

or the demand for arbitration to its Utah address. (Appellant’s Brief at 18.) Second, Fluent

Solar argues that Janssen was required to pay all the filing fees per the terms of the contract.

(Appellant’s Brief at 9 , 15 .) Upon review, any argument by Fluent Solar concerning the

notice provision under the contract was not raised in the April 5, 2023 motion to compel

.
Simi larly, while the filing fee provision , as part of the entire arbitration clause, was included23 AP

- 507 9

in the motion , any contention that Janssen was responsible for the entire filing fee is also

absent from the April 5, 2023 filing

. It is well settled that an appellant may not assert a new

argument for the first time on appeal. “A party who fails to raise an argument in the trial

court waives his or her right to raise the argument on appeal.” Harris v. Columbus , 10th

Dist. No. 15AP

- 792 , 2016

- Ohio

- 1036, ¶ 28, citing Niskanen v. Giant Eagle

, Inc. , 122 Ohio

St.3d 486, 2009

- Ohio

- 3626, ¶ 34

. As such, insofar as Fluent Solar attempts to assert

additional arguments in this appeal, those arguments are waived.

{¶ 21} Arguendo

, even if these arguments were preserved

, it is certainly reasonable

for the trial court to have found that Fluent Solar acted inconsistent with its right to

arbitrate

. While the contract refers to “notices under this [a] greement” and that it should

be sent “at the addresses set forth in this [a] greement or such other address as either party

may specify in writing

, ” the type of “ notice ” is not defined in the contract

. Similarly, no

address was provided under this particular section of the contract

. ( Jan. 5, 2023 Compl.,

Ex. A at 6

- 7 .) The absence of an address in the above provision is i n stark contrast to o ther

section s of the contract

, such as the “notice of cancel l ation ” and “ limited warrant y, ” which

include an address to deliver notice

. (Jan. 5, 2023 Compl., Ex. A at 2, 8, 14 .) Fluent Solar ’s

brief fails to adequately examine why it failed to make any efforts to communicate with AAA

when it was aware of Janssen’s demand or why CSC is not a viable alternative form of

notice. Fluent Solar has acknowledged CSC operated as its statutory agent in this case.

(Jun e 29 , 2023 Memo Contra, Ex. B, Jared Hunsaker Dep. at 10, 21.) A “statutory agent

, ”

by definition

, is “ [a]n agent designated by law to receive litigation documents and other

legal notice s for a nonresident corporation

. ” (Emphasis added.) Black ’ s L aw Dictionary

78 ( 10th E d. 2014)

. Given these facts, the trial court’s determination that service of the AAA

demand on the statutory agent, CSC, provided notice was reasonable and not an abuse of

discretion.

{¶ 22} As for the argument concerning filing fees, we are not persuaded that this

provision demonstrates Fluent Solar acted consistent with its right to arbitrate. First, there

is no evidence that Fluent Solar broached this issue with AAA or Janssen at any point. If

Fluent Solar, at the time the demand was filed, had concern s over its responsibility for the

filing fees it surely would have raised the issue with AAA or Janssen’s counsel.

Furthermore , e

ven if Janssen was responsible for the entirety of the filing fees

, Fluent Solar23 AP

- 507 10

still failed to pay AAA fees associated with the expediated consumer clause review fee and

its arbitrator’s compensation deposit

. {¶ 23} Finally, Fluent Solar argues it acted consistent with its right to arbitrate

because it did not file pleadings or various motions with the court but only sought to compel

arbitration. (Appellant’s Brief at 17.) Fluent Solar also contends that Janssen will suffer no

prejudice from staying the case and proceeding with arbitration. (Appellant’s Brief at 18.)

We find both arguments equally unavailing. While it is true that Fluent Solar did not file

pleadings or various motions with the court but only sough t to compel arbitration, they

failed to make any efforts with AAA to assert their right to arbitrate and ignored the

complaint for months until they ultimately filed the motion to arbitrate the claim.

Concerning the risk of prejudice, it is important to consider the timeline of events in this

case. The events at issue began in the fall of 2021. The initial demand for arbitration was

filed with AAA in September 2022. When Fluent Solar failed to pay the requisite fee s , Janssen filed her complaint on January 5, 2023. Fluent Solar waited months after the

complaint was filed before finally moving to compel arbitration and to stay proceedings

pending arbitration

. Jan ssen is no w several years removed from when the alleged damage s
took place

. Accordingly

, we agree with the trial court that any further delay in this case

would result in prejudice to t he nonmoving party, Janssen

. A ppellant’s sole assignment of

error is overruled

.

V. CONCLUSION

{¶ 24} Having overruled appellant ’ s sole assignment of error , we affirm t he

judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

JAMISON and BOGGS

, J J., concur.

_____________