SUMMARY

January 16, 2020

2020COA10

No. 18CA2098, Spiremedia v. Wozniak — Civil Procedure —

Default — District Court Practice Standards — Default 

Judgments

A division of the court of appeals considers whether, when a 

district court denies a motion for default judgment for failure to 

comply with C.R.C.P. 55 and 121, section 1–14, the court is 

required to explain the basis for its denial. The division concludes 

that Rule 121, section 1-14(2), requires the court to provide the 

parties with a sufficient explanation to afford the moving party an 

opportunity to identify and correct the deficiency, if it can.

The appellant filed two motions for default judgment, both of 

which the district court denied for not complying with the 

requirements listed in Rule 121, section 1-14. When it denied both 

motions, the district court did not provide any explanation as to 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
how the motions failed to satisfy section 1-14. Further, when the 

court denied the second motion for default judgment, it also 

dismissed the case for violation of the court’s delay reduction order. 

After reviewing the second motion, the division concludes that 

the motions were deficient. However, the division also concludes 

that the district court was obligated to provide an explanation as to 

how the motions failed to meet the requirements of Rule 121, 

section 1-14. Under Rule 121, section 1-14(2), when a court 

reviews a motion for default judgment, “[i]f further documentation, 

proof or hearing is required, the court shall so notify the moving 

party.” The division concludes that, under this rule, a court is 

obligated to provide some explanation of how a motion for default 

judgment is deficient such that a party can identify and attempt to 

correct the deficiencies before the case is dismissed. 

Because the district court didn’t adequately articulate its basis 

for denying the motion for default judgment before dismissing the 

case, the division reverses the judgment and remands the case for 

further proceedings
COLORADO COURT OF APPEALS 2020COA10

Court of Appeals No. 18CA2098

City and County of Denver District Court No. 18CV30504

Honorable Brian R. Whitney, Judge

Spiremedia Inc., d/b/a Spire Digital,

Plaintiff-Appellant,

v.

Timothy Richard Wozniak, a/k/a Timmy Wozniak,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division VI

Opinion by JUDGE WELLING

Terry and Berger, JJ., concur

Announced January 16, 2020

Bighorn Legal, Jonathan Hagn, Englewood, Colorado, for Plaintiff-Appellant

No Appearance for Defendant-Appellee
1

¶ 1 Spiremedia Inc. appeals the district court’s order denying its

motion for default judgment and dismissing the case for violation of 

the district court’s delay reduction order (DRO).

¶ 2 This case raises an issue of first impression: What is a court 

required to tell a party when it denies a motion for default judgment 

pursuant to C.R.C.P. 55(b) and 121, section 1-14, and dismisses a 

case for failure to comply with the rules? We conclude that a court 

is required to identify the deficiencies in the motion that supports

its decision, particularly before taking the extraordinary step of 

dismissing the case. Such an explanation provides a party an 

opportunity to remedy the deficiencies in its motion. Because the 

court here didn’t adequately articulate its basis for denying the 

motion for default judgment before dismissing the case, we reverse 

the judgment and remand the case for further proceedings.

I. Background

¶ 3 On February 8, 2018, Spiremedia filed its complaint against 

Timothy Richard Wozniak for breach of contract and treble damages 

for a dishonored check pursuant to section 13–21–109(2), C.R.S. 

2019. Four days later, the district court issued a DRO, stating that 

“application for entry of default under C.R.C.P. 55(a) must be filed 
2

within 14 days after default has occurred. . . . Motions for entry of 

default judgment must comply with C.R.C.P. 121, § 1-14.” The 

DRO also warned (in bold and all capital letters) that “IF AN 

ATTORNEY OR PRO SE PARTY FAILS TO COMPLY WITH THIS 

ORDER, THE COURT MAY DISMISS THE CASE WITHOUT 

PREJUDICE.” 

¶ 4 On May 8, 2018, Spiremedia filed an affidavit of service 

attesting that Wozniak was served outside of Colorado on May 6, 

2018. (Under C.R.C.P. 12(a)(2), a defendant served outside of 

Colorado has thirty-five days from the date of service to file an 

answer or other initial response.) Thus, Wozniak had until June 

10, 2018, to respond to the complaint. By June 15, 2018, however, 

Wozniak had not filed any responsive pleadings or motion to 

dismiss, so Spiremedia filed a motion for default judgment under 

C.R.C.P. 55.

¶ 5 On July 11, 2018, the district court denied Spiremedia’s 

motion for default judgment, stating only: “A motion for default 

judgment must comport with the requirements of C.R.C.P. 121, § 1-

14. The Motion as filed does not do so, and is therefore presented 

in an improper format. Accordingly, the Motion is DENIED.” The 
3

court did not provide any explanation of those purported 

deficiencies. 

¶ 6 Two days later, Spiremedia, apparently uncertain was

deficienct about its first motion — but suspecting it may have been 

a failure to include an affidavit stating Wozniak is not a minor, 

incompetent, or a servicemember, see C.R.C.P. 121, § 1-14(1)(c) —

refiled the motion for default judgment, this time adding what it 

referred to as an “affidavit equivalent” pursuant to the Uniform 

Unsworn Declarations Act (UUDA), § 13–27–104(1), C.R.S. 2019,

averring compliance with C.R.C.P. 121, section 1-14(1)(c). 

¶ 7 On September 10, 2018, the district court ruled on 

Spiremedia’s second motion for default judgment as follows: 

Plaintiff previously filed a motion for default 

judgment on June 15, 2018. That motion was 

denied for failure to comport with the 

requirements of C.R.C.P. 121 § 1-14. The 

current Motion is substantially identical to 

that motion, with the addition of a[n]

unnotarized affidavit regarding Defendant’s 

servicemember status. Thus, as with the prior 

motion, this Motion does not comport with 

C.R.C.P. 121 § 1-14, and is therefore presented 

in an improper format. Accordingly, the 

Motion is DENIED. Furthermore, because 

Plaintiff has twice filed the Motion in an 

improper format, Plaintiff is in violation of this 
4

Court’s Delay Reduction Order. The action is 

accordingly DISMISSED. 

We will refer to this order as the Dismissal Order. 

¶ 8 On September 19, 2018, Spiremedia filed a motion for 

reconsideration of the Dismissal Order. It asserted that, after a 

review of the requirements for a motion for default judgment listed 

in C.R.C.P. 121, section 1-14, it was “unable to discern any 

substantive defect in the papers already filed with the Court.” And

it told the court that, even if there was a defect, the court “has still 

never notified [Spiremedia] as to what ‘further documentation, 

proof, or hearing is required’ to resolve the Motion . . . .” (Quoting 

C.R.C.P. 121, § 1-14(2).) Thus, Spiremedia contended, the district 

court should vacate its order dismissing the case and either enter 

default judgment in its favor or “notify [Spiremedia] and its counsel 

as to the specific defect(s) with the Motion [for default judgment] 

under C.R.C.P. 121[,] § 1-14.” 

¶ 9 On October 11, 2018, the district court denied Spiremedia’s

motion to reconsider. In its order, the district court said, without 

further explanation, that “[t]he supporting documents for both prior 
5

motions were wholly incomplete for the purposes of default 

judgment, sworn or not.” 

II. Analysis

¶ 10 Spiremedia appeals both the Dismissal Order and the order 

denying its motion for reconsideration, raising two contentions. 

First, it asserts that the district court erred by denying its second 

motion for default judgment because it complied with C.R.C.P. 121,

section 1-14. Second, Spiremedia asserts that, even if its second 

motion for default judgment was deficient, the district court erred 

by failing to notify Spiremedia as to what further documentation or 

proof was required for the motion to comply with the rules. While 

we disagree with Spiremedia’s first contention — that its second 

motion for default judgment complied with C.R.C.P. 121, section 1-

14 — we are persuaded by its second contention. Accordingly, we

reverse the Dismissal Order and remand the case with instructions 

for the court to provide further explanation for the denial of the 

motion such that Spiremedia may, if possible, remedy the 

deficiencies. 
6

A. Appellate Jurisdiction

¶ 11 Before reaching Spiremedia’s contentions, we must first 

consider our jurisdiction over this appeal, on our own accord if 

necessary. See Allison v. Engel, 2017 COA 43, ¶ 22 (“We must 

determine independently our jurisdiction over an appeal, nostra 

sponte if necessary.” (first citing People v. S.X.G., 2012 CO 5, ¶ 9; 

then citing Meridian Ranch Metro. Dist. v. Colo. Ground Water 

Comm’n, 240 P.3d 382, 385 (Colo. App. 2009))). At issue in this 

appeal are both finality and timeliness. We address each in turn. 

1. Finality 

¶ 12 With some exceptions not relevant here, we have jurisdiction 

only over appeals from final judgments. § 13–4–102(1), C.R.S. 

2019; C.A.R. 1(a). Generally, “an order of dismissal without 

prejudice is not a final judgment” subject to appeal. SMLL, L.L.C. v. 

Daly, 128 P.3d 266, 268–69 (Colo. App. 2005).

¶ 13 The district court’s Dismissal Order was silent as to whether 

the case was being dismissed with or without prejudice. Under

C.R.C.P. 41(b)(3), “orders that do not so specify [whether the 

dismissal is with or without prejudice] shall be deemed motions for 

dismissal without prejudice . . . .” And, under C.R.C.P. 121, section 
7

1-10(5), which provides the steps required for dismissal of an action 

under C.R.C.P. 41(b), “[a]ny dismissal under this rule shall be 

without prejudice unless otherwise specified by the court.” 

(Emphasis added.) See also C.R.C.P. 41(b)(2) (requiring that orders 

of dismissal under this rule must comport with the requirements in 

C.R.C.P. 121, section 1-10). Further, the district court dismissed 

the case for noncompliance with the DRO, which provided that “if 

an attorney . . . fails to comply with this order, the court may 

dismiss the case without prejudice.” (Emphasis added.)

Accordingly, though the Dismissal Order itself is silent, we conclude 

that it dismissed the case without prejudice. 

¶ 14 Notwithstanding the general rule discussed above, a dismissal 

without prejudice is a final judgment if the statute of limitations 

period has expired or the dismissal otherwise results in prohibiting 

further proceedings. See SMLL, L.L.C., 128 P.3d at 268–69; see also 

Golden Lodge No. 13, I.O.O.F. v. Easley, 916 P.2d 666, 667 (Colo. 

App. 1996); Wyler/Pebble Creek Ranch v. Colo. Bd. of Assessment 

Appeals, 883 P.2d 597, 599 (Colo. App. 1994).

¶ 15 We conclude the Dismissal Order is a final, appealable order

because the statute of limitations has run. Spiremedia filed suit for 
8

breach of contract and treble damages under section 13–21–109(2). 

The latter claim has a statute of limitations of two years from the 

date the cause of action accrues. § 13–80–102(1)(k), C.R.S. 2019. 

In its complaint, Spiremedia alleged that the statutory violation

occurred on or around February 12, 2016, when Wozniak’s check 

was allegedly dishonored. Thus, the statute of limitations on 

Spiremedia’s statutory claim had run by February 12, 2018, just 

four days after the complaint was filed. And by the time the district 

court denied the motion for default judgment the second time and 

dismissed the action on September 10, 2018, the statute of 

limitations period for Spiremedia’s statutory claim had expired

nearly seven months earlier. Accordingly, the judgment was final 

for purposes of appeal. See, e.g., SMLL, L.L.C., 128 P.3d at 268–69. 

2. Timeliness 

¶ 16 Under Colorado Appellate Rule 4(a), a notice of appeal in a 

civil case must “be filed with the appellate court . . . within 49 days 

of the date of the entry of the judgment, decree, or order from which 

the party appeals.” However, the forty-nine-day period does not 

begin to run if a party timely files — that is, within fourteen days of 

the final judgment — a motion under C.R.C.P. 59. C.R.C.P. 
9

59(a)(3), (4); C.A.R. 4(a). If a party files a timely Rule 59 motion, the 

time to file a notice of appeal will begin to run once the district 

court enters an order either granting or denying the motion under 

C.R.C.P. 59, or, if the court does not rule within sixty-three days of 

the motion being filed, upon the expiration of the sixty-three-day 

period. C.R.C.P. 59(j); C.A.R. 4(a). 

¶ 17 Here, the court entered its Dismissal Order on September 10, 

2018. But the notice of appeal was not filed until November 5, 

2018 — fifty-six days after the entry of the Dismissal Order. This

appeal would be untimely under C.A.R. 4(a) as to the Dismissal 

Order unless the “motion for reconsideration” filed on September 

19, 2018, was a motion under Rule 59. That is where we turn next. 

¶ 18 Spiremedia’s motion for reconsideration did not cite or 

otherwise reference C.R.C.P. 59, and C.R.C.P. 59 itself does not 

mention “motions to reconsider.” See Stone v. People, 895 P.2d 

1154, 1155 (Colo. App. 1995) (“A motion to reconsider is not 

specifically delineated in C.R.C.P. 59 . . . .”). But C.R.C.P. 121, 

section 1-15(11), does reference “motions to reconsider other than 

those governed by C.R.C.P. 59 or 60” (emphasis added), implying 

that motions to reconsider may also be recognized under Rules 59 
10

and 60. Further, divisions of this court have repeatedly held that

“[a] motion to reconsider may be treated as a post-trial motion 

under C.R.C.P. 59.” Bailey v. Airgas-Intermountain, Inc., 250 P.3d 

746, 752–53 (Colo. App. 2010) (citing In re Petition of Taylor, 134 

P.3d 579, 582 (Colo. App. 2006)). Additionally, the relief requested 

in Spiremedia’s motion to reconsider fits squarely within Rule 

59(a)(3) and (4) — to amend the findings and final judgment. 

Accordingly, we conclude that Spiremedia’s motion to reconsider 

was a timely Rule 59 motion. 

¶ 19 Therefore, Spiremedia’s time to appeal the Dismissal Order 

only began to run once the district court entered its order denying 

the motion for reconsideration on October 11, 2018. This order 

reset the deadline within which Spiremedia could appeal the 

Dismissal Order to the same date as the cut-off for appeal of the 

order denying the motion to reconsider — November 22, 2018. 

C.A.R. 4(a). Thus, Spiremedia’s notice of appeal filed on November 

5, 2018, was timely as to both orders. 

¶ 20 Satisfied that we have jurisdiction, we now turn to the merits 

of Spiremedia’s contentions. 
11

B. Merits 

¶ 21 We review a district court’s interpretation of the Colorado 

Rules of Civil Procedure de novo. City & Cty. of Broomfield v. 

Farmers Reservoir & Irrigation Co., 239 P.3d 1270, 1275 (Colo. 

2010) (first citing People v. Shell, 148 P.3d 162, 178 (Colo. 2006); 

then citing Leaffer v. Zarlengo, 44 P.3d 1072, 1078 n.6 (Colo. 2002); 

and then citing Isis Litigation, L.L.C. v. Svensk Filmindustri, 170 

P.3d 742, 744 (Colo. App. 2007)). We use “commonly understood 

and accepted meaning[s]” of words to interpret the language of the 

Rules. Id. 

¶ 22 Under C.R.C.P. 55(a), “[w]hen a party against whom a 

judgment for affirmative relief is sought has failed to plead or 

otherwise defend . . . and that fact is made to appear by affidavit or 

otherwise, the clerk shall enter his default.” The party entitled to 

default may then apply to the court for the entry of default 

judgment in its favor pursuant to C.R.C.P. 55(b). 

¶ 23 C.R.C.P. 121, section 1-14 lists the documents that a moving 

party must include with a motion for default judgment. C.R.C.P. 

121, § 1-14(1)(a)–(g). Under this rule, the moving party must 

provide the court with the following: 
12

(a) The original summons showing valid service 

on the particular defendant in accordance with 

Rule 4, C.R.C.P.

(b) An affidavit stating facts showing that 

venue of the action is proper. The affidavit 

may be executed by the attorney for the 

moving party. 

(c) An affidavit or affidavits establishing that 

the particular defendant is not a minor, an 

incapacitated person, an officer or agency of 

the State of Colorado, or in the military 

service. The affidavit must be executed by the 

attorney for the moving party on the basis of 

reasonable inquiry. 

(d) An affidavit or affidavits or exhibits 

establishing the amount of damages and 

interest, if any, for which judgment is being 

sought. The affidavit may not be executed by 

the attorney for the moving party. The 

affidavit must be executed by a person with 

knowledge of the damages and the basis 

therefor. 

(e) If attorney fees are requested, an affidavit 

that the defendant agreed to pay attorney fees 

or that they are provided by statute; that they 

have been paid or incurred; and that they are 

reasonable. The attorney for the moving party 

may execute the affidavit setting forth those 

matters listed in or required by Colorado Rule 

of Professional Conduct 1.5. 

(f) If the action is on a promissory note, the 

original note shall be presented to the court in 

order that the court may make a notation of 

the judgment on the face of the note. If the 
13

note is to be withdrawn, a photocopy shall be 

substituted. 

(g) A proposed form of judgment . . . . 

C.R.C.P. 121, § 1-14(1); see also Tallman v. Aune, 2019 COA 12, 

¶ 22. 

¶ 24 If the district court finds, after reviewing the motion for 

default judgment, that “further documentation, proof or hearing is 

required, the court shall so notify the moving party.” C.R.C.P. 121, 

§ 1-14(2). 

1. Spiremedia’s Motions for Default Judgment Did Not Comply 

With C.R.C.P. 121, Section 1-14 

¶ 25 Spiremedia first asserts that the second motion for default 

judgment complied with the requirements of C.R.C.P. 121, section 

1-14. Spiremedia submitted its motion twice, with substantively 

the same documents except that the second motion included what 

it referred to as an “affidavit equivalent” pursuant to the UUDA 

attesting that Wozniak was not a minor, incompetent, or a 

servicemember to satisfy C.R.C.P. 121, section 1-14(1)(c). See § 13-

27-104(1). Although Spiremedia speculated that the district court 

took issue with this affidavit substitute (and accordingly denied the 

motion for noncompliance with the rule’s affidavit requirement), the 
14

district court’s order on the motion to reconsider seems to suggest 

some other defect because, in denying the motion to reconsider, the 

court said “both motions were wholly incomplete for the purposes of 

default judgment, sworn or not.” (Emphasis added.) 

¶ 26 Though, as we will discuss below, the district court’s 

articulated rationale is lacking, we agree with the district court that 

both of Spiremedia’s motions for default judgment were deficient. 

After a cursory review of both motions, we have found that, at a 

minimum, the attorney fees request is deficient. Spiremedia’s 

attorney fees request was listed as a lump sum of $1980.00 without 

“setting forth those matters listed in or required by Colorado Rule of 

Professional Conduct 1.5.” C.R.C.P. 121, § 1-14(1)(e). Further, the 

attorney fees request is unsupported by an affidavit of counsel. Id. 

On this basis alone, we must disagree with Spiremedia’s contention 

that its motions were “wholly compliant with C.R.C.P. 121, section 

1-14,” and we need not decide whether there are further 

deficiencies. Accordingly, the district court did not err by

concluding that the motions were deficient. 

¶ 27 But before we move on to the next issue, we address an issue

that is likely to arise on remand — namely, whether an unsworn 
15

declaration that complies with the UUDA satisfies section 1-14’s 

affidavit requirements. In its second motion for default judgment, 

Spiremedia included an unsworn declaration attesting to certain 

matters required to be addressed by Rule 121, section 1-14. The 

unsworn declaration was not an affidavit, but it did comply with the 

UUDA, § 13-27-104. Although whether perceived noncompliance 

with section 1-14’s affidavit requirement contributed to the district 

court’s denial of Spiremedia’s motion for default judgment is 

unclear, because this question is likely to arise on remand, we 

address the issue of whether compliance with the UUDA satisfies 

the affidavit requirement of Rule 121, section 1-14. We conclude 

that it does. The UUDA provides that “if a law of this state requires 

or permits use of a sworn declaration in a court proceeding, an 

unsworn declaration meeting the requirements of [the UUDA] has 

the same effect as a sworn declaration.” § 13-27-104(1). This 

provision is subject to five enumerated exceptions, none of which 

applies to the motion for default judgment in this case. See § 13-

27-104(2).

¶ 28 We now turn to the matter of how the district court explained 

its denials. 
16

2. The District Court Erred in Denying Spiremedia’s Motion for 

Default Judgment Twice Without Providing a Sufficient 

Rationale Such That Spiremedia Could Correct the Defects

¶ 29 Spiremedia’s second contention is that when a court denies a 

motion for default judgment, Rule 121, section 1-14(2) requires a 

court to explain how the motion was deficient and that the district 

court erred by failing to do so before dismissing the case. We agree.

¶ 30 Regardless of what deficiencies may be in a moving party’s 

motion for default judgment, under C.R.C.P. 121, section 1-14(2), 

“[i]f further documentation, proof or hearing is required, the court 

shall so notify the moving party.” To address Spiremedia’s 

contention, we must construe the meaning of “notify.”

¶ 31 C.R.C.P. 121, section 1-14 does not define “notify” or specify

what is required for the notice to be adequate. But the 2006 

comment to C.R.C.P. 121, section 1-14, explaining the rationale for 

adopting the practice standard, provides guidance. It explains that, 

before the addition of this provision, 

[o]ne faced with the task of attempting to 

obtain a default judgment usually found 

themselves making several trips to the 

courthouse, numerous phone calls[,] and 

redoing needed documents several times. The 

Practice Standard is designed to minimize both 

court and attorney time. 
17

(Emphasis added.)

¶ 32 The principal purpose of including granular detail in section 1-

14 is to streamline the process of obtaining a default judgment. 

Section 1-14 does so by providing direction to and imposing 

obligations on both the parties and the court. On the one hand, the 

detailed requirements enumerated in section 1-14(1)(a) through (g) 

provide counsel or a pro se party with a meticulous procedure for 

assembling and filing a compliant motion for default judgment. 

Still, as any judicial officer who has presided over a civil docket for 

even a short time knows all too well, these itemized requirements do 

not always result in perfect compliance. So, to achieve the 

efficiencies envisioned in the comment to section 1-14, subsection 

(2), also requires the court to “so notify” a party of the reason or 

reasons it is denying a noncompliant motion for default judgment —

not simply to notify the party of the fact of denial. And the need for 

an explanation is all the more acute when denial is accompanied by 

dismissal. Cf. Murray v. Bum Soo Kim, 2019 COA 163, ¶ 30 (Tow, 

J., specially concurring) (noting that when a district court 

summarily dismisses a case with little explanation of its rationale, 

“the chances of someone’s interests being adversely affected without 
18

recourse are substantially increased”); Koh v. Kumar, 207 P.3d 900, 

901–02 (Colo. App. 2009) (“A court errs when it sua sponte 

dismisses a complaint without providing the parties with thirty days 

written notice and an opportunity to show cause in writing why the 

action should not be dismissed.” (first citing C.R.C.P. 41(b)(2); then 

citing C.R.C.P. 121, § 1-10(2))).

¶ 33 We don’t envision the requirement that notice under 

subsection 1-14(2) include an explanation will impose an 

appreciable additional burden on the district courts beyond that 

already borne. After all, the district court is already tasked with 

assessing on its own whether a motion for default judgment 

complies with subsection 1-14(1). Subsection 1-14(2) requires that 

the district court take just one more step: inform the parties of the 

defect that led it to deny the motion. This step ensures that the 

moving party has sufficient information to remedy the issue without 

engaging in a potentially fruitless guessing exercise — one that 

serves only to frustrate both the court and the moving party. 

¶ 34 The bare-bones orders of the district court in this case

resulted in the frustrating problem that section 1-14 sought to 

avoid — the moving party was left guessing as to the deficiencies in 
19

its motions and it resubmitted documents in an (ultimately 

fruitless) attempt to finally get it right. Not only that, but the 

district court took the extraordinary step of dismissing the case 

with no mention of how Spiremedia went wrong. 

¶ 35 Because we conclude that the court erred by dismissing the 

case without notifying Spiremedia of (and affording it the 

opportunity to correct) the deficiencies in its second motion for 

default judgment, we need not reach the issue whether the court 

abused its discretion by denying the motion to reconsider. 

III. Conclusion

¶ 36 For the reasons set forth above, we reverse the judgment of 

dismissal, reinstate the complaint, and remand with instructions

for the district court to reconsider its denial of the motion for 

default judgment. If the court again denies the motion, it must 

explain why it does so — by citing to the subsection(s) of C.R.C.P. 

121, section 1-14(1) that the motion fails to satisfy — and give 

Spiremedia a reasonable opportunity to remedy any identified 

deficiencies, if it can.

JUDGE TERRY and JUDGE BERGER concur.