23 Fla. L. Weekly Supp. 712a

Online Reference: FLWSUPP 2307SANBInsurance — Personal injury protection — Standing — Assignment — No merit to medical provider’s argument that insurer did not have right to challenge standing based on assignment to which it is not in privity — Trial court did not err in requiring provider to attach assignment to its complaint when ruling on motion to dismiss for lack of standing based on assignment — Trial court erred in determining that document that assigned benefits to provider but did not contain language assigning right to sue was not valid assignment

ORTHOPEDIC SPECIALIST OF SW FLORIDA, PA., a/a/o ANN M. SANBORN, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 20th Judicial Circuit (Appellate) in and for Lee County. Case No. 14-42 AP. L.T. Case No. 14-1613 SC. Opinion issued November 10, 2015. Appeal from the County Court for Lee County; Maria E. Gonzalez, Judge. Counsel: Chad A. Barr, Maitland, for Appellant. Aaron W. Proulx, Tampa, for Appellee.

(PER CURIAM.) The Appellant (“Orthopedic Specialists/Plaintiff”), as assignee of Ann M. Sanborn, appeals an order by the County Court in and for Lee County, in its small claims capacity, that granted Appellee’s (“State Farm/Defendant”) motion to dismiss. We have jurisdiction pursuant to Fla. R. App. P. 9.030(c)(1). The essential question on appeal is whether the insured individual in fact assigned her rights to benefits under her insurance plan, so as to allow Appellant standing to sue for alleged unpaid medical bills. For the reasons stated below, the Court answers this question in the affirmative and holds that a valid, enforceable assignment exists.

BACKGROUND

In 2014, Appellant filed suit against Appellee in the small claims court in and for Lee County. In its suit, Orthopedic Specialists claimed that Ms. Sanborn had assigned her rights to benefits under the insurance policy to Appellant and that Appellee had failed to properly pay medical expenses and other benefits under Florida’s No-Fault Statute and under the medical payments portion of the insurance policy. State Farm moved to dismiss the case in July of 2014, arguing that Appellant’s purported assignment of benefits was not actually an assignment and did not vest Appellant with the insured’s right to sue; instead, it only served as a direction to have the insurer pay a debt; therefore, it argued that Appellant lacked standing to sue. The Trial Court held a hearing on the motion to dismiss, after which the Trial Court granted the motion without prejudice for Appellant to file an amended complaint that attached the assignment of benefits and any other documents upon which the claim was based.

An amended complaint was filed in October of 2014, and Appellee again moved to dismiss the complaint based on lack of standing. A hearing was held on the motion to dismiss in December of 2014, after which the Trial Court reserved ruling. Subsequent to the hearing, the Trial Court entered an order holding that the purported assignment of benefits did not include an assignment of the right to maintain a cause of action, and, therefore, was not an assignment of benefits, but, instead, a direction to pay. The Trial Court then found that Appellant lacked standing to sue Appellee, and the case was dismissed. Appellant then appealed.

ARGUMENT

In its initial brief, Appellant argues four points. First, Appellant argues that Appellee does not have standing to contest the assignment, because Appellee was not a party to the agreement and the only parties who may challenge the validity of the assignment document are the medical provider (assignee) or the insured (assignor), not the insurance company. Second, Orthopedic Specialists contends that the Trial Court erred in granting the motion to dismiss, because lack of standing is an affirmative defense and should have been raised in an answer to the complaint, not in a motion to dismiss. Third, Appellant claims that the Trial Court erred in requiring it to attach a copy of the purported assignment to its amended statement of claim, because it was not a document upon which its claim depended and Appellee never requested that it be attached. Lastly, Appellant asserts that the Trial Court erred in finding, as a matter of law, that the purported assignment was neither an actual assignment nor an equitable assignment, and that Appellant did not have standing to sue Appellee.

Appellee counters that it does have standing to challenge the legal meaning of the assignment clause, because it is not attempting to enforce a contract, rather simply establish the legal identity/meaning of the document. As it relates to Appellant’s argument that the motion to dismiss was an improper vehicle for challenging standing, Appellee counters that case law states that standing can be challenged via a motion to dismiss and also does not require standing to be raised as an affirmative defense. Furthermore, Appellee argues that Appellant never raised this argument below, and, therefore, did not preserve this argument for appeal. Concerning the Trial Court’s order directing the Appellant to attach a copy of the purported assignment to its amended complaint, Appellee acknowledges that Rule 1.130 does not require it, but also notes that it does not prohibit it, which means there is no rule preventing the Trial Court from requiring the attachment of the purported assignment. Moreover, Appellee claims that to the extent Appellant argued for an equitable assignment, case law strongly suggests that documents supporting this claim be attached to the complaint. Lastly, as to the legal sufficiency of the assignment, Appellee argues that without specifically assigning a right to sue, a mere assignment of benefits is insufficient to confer standing on the Appellant. Instead, Appellee contends that the assignment document represents merely a direction to pay, not an assignment of benefits.

ANALYSIS

Initially, the Court notes that “[t]o rule on a motion to dismiss, a court’s gaze is limited to the four corners of the complaint, including the attachments incorporated in it, and all well pleaded allegations are taken as true.” U.S. Project Mgmt., Inc. v. Parc Royale E. Dev., Inc., 861 So.2d 74, 76 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2481b]. Likewise, on appeal, “[i]n reviewing an order granting a motion to dismiss . . . [an appellate] court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true.” Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D97a].

“An assignment is defined as ‘a transfer or setting over of property or of some right or interest therein, from one person to another. It is the act by which one person transfers to another, or causes to vest in another, his right of property or interest therein.’ ” State Farm Fire and Cas. Co. v. Ray, 556 So. 2d 811, 812 (Fla. 5th DCA 1990) (citations omitted). An assignment can be either legal or equitable. “A legal assignment is a transfer or setting over of property, or of some right or interest in property, from one person to another; and unless in some way qualified, it is the transfer of the assignor’s whole interest in an estate, or chattel, or other thing.” 6 Am. Jur. 2d Assignments § 4 (2015). On the other hand, an equitable assignment is defined as follows:

[a]n equitable assignment is an assignment that gives the assignee a title which, though not cognizable at law, will be recognized and protected by equity. Thus, an equitable assignment is the transfer of a present interest that for one reason or another does not amount to a legal assignment, but which a court of equity will recognize and imply from the circumstances and because of the equities involved. An equitable assignment is an intention on one side to assign and an intention on the other to receive, if there is valuable consideration.

6 Am. Jur. 2d Assignments § 5 (2015). See also SourceTrack, LLC v. Ariba, Inc., 958 So. 2d 523, 526 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D1419a] (noting that “[a] court may find an equitable assignment where necessary to effectuate the parties’ plain intent or to avoid injustice.”).

Generally, Florida does not require any formal language in order to create a valid assignment of benefits; instead, it is the intent of the parties that controls whether an assignment exists. See Boulevard Nat. Bank of Miami v. Air Metal Industries, Inc., 176 So. 2d 94, 97-98 (Fla. 1965) (stating, “[f]ormal requisites of such an assignment are not prescribed by statute and it may be accomplished by parol, by instrument in writing, or other mode, such as delivery of evidences of the debt, as may demonstrate an intent to transfer and acceptance of it.”). See also McClure v. Century Estates, 96 Fla. 568, 583 (Fla. 1928) (noting that “ ‘[a]ny words or transactions which show an intention on the one side to assign, and an intention on the other to receive, if there is a valuable consideration, will operate as an effective equitable assignment.’ ”) (citation omitted); and Giles v. Sun Bank, N.A., 450 So. 2d 258, 260 (Fla. 5th DCA 1984) (noting that “[n]o particular words or form of instrument is necessary to effect an equitable assignment and any language, however informal, which shows an intention on one side to assign a right or chose in action and an intention on the other to receive, if there is a valuable consideration, will operate as an effective equitable assignment.”).

Notably, “[e]xcept where a writing is required by statute, an assignment may be oral and proven by parol evidence.” Progressive Exp. Ins. Co. v. McGrath Community Chiropractic, 913 So. 2d 1281, 1288 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2622b] (Davis, J., concurring). A review of Florida’s No Fault Law, indicates that a written memorization of the assignment is required. Pursuant to § 627.736(5)(a), Fla. Stat.,

A physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment if the insured receiving such treatment or his or her guardian has countersigned the properly completed invoice, bill, or claim form approved by the office upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian. . .

(emphasis added). See also McGrath, at 1288 (Davis, J., concurring) (noting that § 627.736(5)(a) appears to require some form of writing to effectuate an assignment). Case law indicates that the above italicized portion of § 627.736(5)(a) represents an enforceable assignment. See Hartford Ins. Co. of Southeast v. St. Mary’s Hosp., Inc., 771 So. 2d 1210, 1212 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2523a] (noting that the insured “did not countersign an invoice, bill or claim form, as required for an enforceable assignment pursuant to Florida’s No Fault laws, section 627.736(5)(a), Florida Statutes (1999), nor did he sign any other written assignment of right to benefits.”). Accordingly, in PIP cases, an assignment of benefits can be done in two ways: (1) if the insured signs a completed invoice, bill, or claim form approved by the office upon which such charges are to be paid, or (2) a written assignment of right to benefits. In both instances, therefore, the assignment must be in writing.

In order for a medical provider to sue an insurance company for PIP benefits, “the insured must assign his or her right to such benefits under the policy to the medical provider;” therefore, “the assignment of PIP benefits is not merely a condition precedent to maintain an action on a claim held by the person or entity who filed the lawsuit,” but “it is the basis of the claimant’s standing to invoke the processes of the court in the first place.” Progressive Exp. Ins. Co. v. McGrath Community Chiropractic, 913 So. 2d 1281, 1285 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2622b]. Furthermore, “[i]f the insured has assigned benefits to the medical provider, the insured has no standing to bring an action against the insurer.” Id. Notably, “only the insured or the medical provider ‘owns’ the cause of action against the insurer at any one time;” therefore, “the one that owns the claim must bring the action if an action is to be brought.” Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So. 2d 469, 470 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D702a]. Accordingly, at issue here is whether or not Appellant “owns” the causes of action by means of assignment. If so, then it has standing, if not, then the Trial Court was correct in granting the motion to dismiss.

In the case at bar, the purported assignment language at issue here reads as follows:

I authorize the physicians at Orthopedic Specialist to release any information concerning my care to my insurance company. I hereby assign all insurance benefits to which I am entitled including, but not limited to, Personal Injury Protection (PIP) and/or Medicare benefits to Orthopedic Specialists of SWF, in exchange for medical treatment and/or medical services rendered to the undersigned by the aforementioned Doctors. I also understand that payment is due at the time of each visit and I am fully financially responsible; as my insurance is a contract between my insurance company and me. I also authorize the release of information to any agency necessary for payment on my account. I authorize Orthopedic Specialists to release records to any physicians and/or medical facility that they may deem pertinent to my case.

(Emphasis added).

As it relates to Appellant’s argument that Appellee lacked standing to challenge the purported assignment document, this claim conflates an attack on the validity of the contract and Appellant’s standing. Although the two do overlap here, they are not part and parcel the same, and since standing is determined by a valid assignment in these cases, Appellee had the right to challenge Appellant’s standing, which is different than Appellee bringing a cause of action based upon a contract to which Appellee was not in privity.

Appellant’s complaint alleged that Appellant had standing because of a valid assignment, Appellee and the Lower Court did not view the attached assignment as a valid assignment; therefore, they viewed the document as contradicting the allegations of the complaint. Notably, as the Second DCA noted in BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D369a]:

When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. See, e.g., Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So.2d 399, 401 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D1914b] (“Where complaint allegations are contradicted by exhibits attached to the complaint, the plain meaning of the exhibits control[s] and may be the basis for a motion to dismiss.”); Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So.2d 1157, 1159 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2149a]; Harry Pepper & Assocs., Inc. v. Lasseter, 247 So.2d 736, 736-37 (Fla. 3d DCA 1971) (holding that when there is an inconsistency between the allegations of material fact in a complaint and attachments to the complaint, the differing allegations “have the effect of neutralizing each allegation as against the other, thus rendering the pleading objectionable”). Because the exhibit to U.S. Bank’s complaint conflicts with its allegations concerning standing and the exhibit does not show that U.S. Bank has standing to foreclose the mortgage, U.S. Bank did not establish its entitlement to foreclose the mortgage as a matter of law.

In mortgage foreclosure cases, the plaintiff must prove that it had standing to foreclose when the complaint was filed, and such standing can be established by either an assignment or an equitable transfer of the mortgage prior to the complaint being filed. Vidal v. Liquidation Props., Inc., 104 So. 3d 1274, 1276 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D116a]. Such a challenge can be accomplished via a motion to dismiss even if not alleged as an affirmative defense. Cutler v. U.S. Bank Nat. Ass’n., 109 So. 3d 224 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D2251a]. See also McLagan v. Federal Home Loan Mortg. Corp., 145 So. 3d 943, 945 (Fla. 2d DCA 2014) [39 Fla. L. Weekly D1777b] (noting that the issue of standing may be raised by motion rather than by pleading an affirmative defense). Just as defendants in foreclosures cases move to dismiss plaintiffs for lack of standing due to a lack of evidence of ownership of the note, so to can defendants in PIP cases challenge whether a plaintiff “owns” the PIP benefits in question. Indeed, as previously noted above, the Second DCA has stated “the assignment of PIP benefits is not merely a condition precedent to maintain an action on a claim held by the person or entity who filed the lawsuit,” but “it is the basis of the claimant’s standing to invoke the processes of the court in the first place.” McGrath, at 1285. Accordingly, Appellee had standing to challenge the validity of the assignment.

To the extent Appellant argues that it was erroneously forced to attach the assignment to its complaint by the County Court, although “[i]n ruling on a motion to dismiss, a trial court is limited to the four corners of the complaint and its incorporated attachments[,]. . .where the terms of a legal document are impliedly incorporated by reference into the complaint, the trial court may consider the contents of the document in ruling on a motion to dismiss.” One Call Property Services Inc. v. Security First Ins. Co., 165 So. 3d 749, 752 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1196a]. See also Veal v. Voyager Prop. & Case. Ins. Co., 51 So. 3d 1246, 1249 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D164a] (rejecting argument that the trial court erred by considering the contents of a settlement agreement that was attached to a motion to dismiss and noting the following: “[I]n this case, the complaint refers to the settlement agreement, and in fact, Veal’s standing to bring suit is premised on the terms of that agreement. Accordingly, since the complaint impliedly incorporates the terms of the agreement by reference, the trial court was entitled to review the terms of that agreement to determine the nature of the claim being alleged.”). In One Call Property Services, the Fourth DCA noted as follows:

Here, the trial court did not err in considering the contents of the insurance policy that was filed in connection with the insurer’s motion to dismiss. The complaint refers to the policy, and One Call’s standing to bring suit is premised on an assignment of the policy. Accordingly, because the complaint impliedly incorporates the policy by reference, the trial court was entitled to review the policy in ruling on the motion to dismiss.

One Call, at 752. Accordingly, the Trial Court did not commit reversible error by requiring Appellant to attach the purported assignment to its complaint.

Finally, as to the legal sufficiency of the assignment, Appellee contends that the language in the assignment indicates a direction to pay, and not an assignment. According to Appellee, a distinction exists between a “direction to pay” and an “assignment of benefits.” In support of this distinction, Appellee relies on Health Application Systems, Inc. v. Hartford Life and Acc. Ins. Co., 381 So. 2d 294 (Fla. 1st DCA 1980). In Hartford, the First DCA reasoned as follows:

We think it is clear, as argued by HRS, that the contractual provision whereby HAS was to receive 91/2% of the gross monthly premiums “received by PAID”, does not constitute an assignment. A mere agreement to pay a debt out of a designated fund does not operate as a legal or equitable assignment, since the assignor retains control over the subject matter. Miller v. Wells Fargo, 540 F.2d 548, 558 (2nd Cir. 1976). Such an agreement amounts only to a mere promise to pay, and does not meet the test of an intention on the part of the assignor to give, and of the assignee to receive, present ownership of the fund, Lone Star Cement Corp. v. Swartwout, 93 F.2d 767, 770 (4th Cir. 1938).

Id, at 297. Such a distinction existed in Hartford, because “a mere agreement to pay a debt out of a designated fund . . . does not operate as a legal or equitable assignment since the assignor retains control over the subject matter.” Giles v. Sun Bank, N.A., 450 So. 2d 258, 260-261 (Fla. 5th DCA 1984).

Essentially at issue here is whether a person has a right to sue to enforce their right to benefits when the assignment language includes only an assignment of benefits without any mention of an assignment of the right to sue. There does not appear to be any Florida District Court or Florida Supreme Court case law on this specific question; however, the circuit and county courts of Florida are split on this issue, with even some inter-circuit disagreements. Some circuits have required there to be language assigning a right to sue, not merely an assignment of benefits, in order for a medical provider to bring suit. See Bohica Orthopedics and Rehabilitative Medicine v. Progressive, 10 Fla. L. Weekly. Supp. 851b (Fla. 7th Cir. Ct. June 17, 2003) (finding the following language did not constitute an assignment: “I also hereby authorize payment of benefits due me directly to the physician for his services as described.”); Open MRI of Orlando, Inc. v. State Farm, 17 Fla. L. Weekly Supp. 731a (Fla. 9th Cir. Ct. April 16, 2010) (holding, without reciting the specific contract language, that the “assignment language simply assigns all benefits due under the policy, but fails to transfer to Open MRI the insured’s rights in her insurance contract,” and, therefore, did not confer standing to Open MRI); and Advanced Diagnostic Testing Inc. v. State Farm, 11 Fla. L. Weekly Supp. 964c (Fla. 11th Cir. Ct. August 17, 2004) (holding that language that stated “I hereby assign, transfer and convey to [the Provider] all of my rights, title and interest in and to medical expense reimbursement in whatever form . . .” constituted a valid assignment and not a direction to pay). Notably, Bohica included no language of assignment, unlike the case at bar, and Advanced Diagnostic does not specifically discuss whether an assignment of the right to sue for benefits exists if the language states the insured assigns his/her benefits; instead, it merely states that an assignment of rights is an assignment. Open MRI would seem to be analogous to the appeal at bar here, but the specific contract language was not included in the opinion.

On the other hand, the 13th Judicial Circuit has agreed with the Appellant’s position in Advanced Orthopedic Institute, Inc. v. Metropolitan Property and Casualty Insurance Company, 10 Fla. L. Weekly Supp. 160a (Fla. 13th Cir. Ct. Dec. 30, 2002). In that case, the assignment language was similar to that in the case at bar in that it did not include language assigning a right to sue, but rather stated “I hereby assign the benefits due under my policy, otherwise payable to me, but not to exceed the health care provider’s charges, to Chet J. Janecki, M.D,” while authorizing and directing “that payment for covered services may be made by my insurer to Chet J. Janecki, M.D.” The 13th Circuit concluded that the plain language of the document constituted an unqualified assignment. Likewise, the 17th Circuit found that an assignment of benefits, without language concerning an assignment of a right to sue, constituted a valid assignment to give a medical provider standing to sue. Allstate Insurance Company v. BMW Enterprises, Inc., 9 Fla. L. Weekly Supp. 95a (Fla. 17th Cir. Ct.). In that case, the matter proceeded to trial, and the 17th circuit determined that trial court’s presumption of correctness in its determination of the factual existence of an assignment was not overcome by evidence presented by Allstate. Notably, the 17th circuit stated that the insured’s “right to bring suit is conditioned on an entitlement to apply for PIP benefits for medical services and the equipment.” The Court finds this rationale persuasive, because if one can sue only if they have a right to benefits, and an insured assigns his or her rights to benefits to a medical provider, then an insured would not have the condition precedent to sue, because the insured no longer has a right to receive benefits. It would follow then, that whoever has the right to the benefits, has the right to sue for those benefits.

Based upon an analysis of the above case law and statutes, the Court finds that the language in the case at bar constitutes an assignment, because Appellant was assigned benefits, and “[a]n assignee may enforce payment or performance of an obligation due under the contract.” Superior Ins. Co. v. Libert, 776 So. 2d 360, 365 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D381a]. Accordingly, if an assignee may enforce payment or performance of a benefit owed under a contract, then an assignment of benefits does not require an additional assignment of a right to sue, because such right to enforce receipt of a benefit assigned is inherent in the assignment of the benefit. See also State v. Family Bank of Hallandale, 667 So. 2d 257, 259 (Fla. 3d DCA 1975) (noting that “[t]he assignee steps into the shoes of the assignor and is subject to all equities and defenses that could have been asserted against the assignor had the assignment not been made.”); McGrath, 913 So. 2d at 1285 (noting that “[f]or a medical provider to bring an action for PIP benefits, the insured must assign his or her right to such benefits under the policy to the medical provider); and Schuster v. Blue Cross and Blue Shield of Florida, Inc., 843 So. 2d 909, 912 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a] (holding that language authorizing the insurer to make payment directly to the providers, but stating that the insured would remain financially responsible for any amounts not paid created an unqualified assignment and eliminated the insured’s, Schuster, standing to sue Blue Cross Blue Shield). Notably, the Third DCA in Schuster specifically noted that “[u]nder Florida law, an insured may assign his rights to benefits under a contract of insurance,” and that “[t]he effect of such an assignment is to place the insured’s cause of action for such benefits in the provider.” Schuster, at 911-912 (citations omitted).

The proposition that one may sue to enforce an assigned benefit without some specific assignment of the right to sue is also supported by the Fifth DCA’s opinion in Ray, where it found that an arrangement between Ray and a hospital constituted an assignment of benefits, because “[n]ot only is the document entitled ‘Irrevocable Assignment of Benefits,’ it sets forth the transfer of any proceeds accruing to Ray from State Farm under the policy stemming from Ray’s accident and subsequent hospitalization,” and the parties stipulated prior to trial that the agreement was an irrevocable assignment. Ray, at 813. Although no such stipulation occurred here, based on the Fifth DCA’s decision in Libert, such stipulation is not determinative, as an assignee has the right to enforce performance of an obligation under the contract that has been assigned to him/her/it. To the extent Appellee argues that specific words are required to effectuate an assignment of the right to sue, as noted above, such is contrary to the law of this state, because no specific language is needed, rather it is the intent of the parties that controls. Boulevard Nat. Bank of Miami, at 97-98. Here, there is language that clearly states the insured assigned their rights to benefits under their insurance claims; therefore, as Appellant is assignee of the rights to those benefits, it has standing to enforce performance of that right and payment of those benefits. Libert, at 365. Accordingly, the Trial Court erred in determining Appellant lacked standing.

CONCLUSION

Due to the fact that the document in question states that the insured assigned her benefits to Appellant, and based on the principle that an assignee may enforce their right to their respective assignment, including payments owed, the Trial Court’s decision to grant the motion to dismiss is reversed, and the cause is remanded to proceed in accordance with this opinion. (J. PORTER, HARDT and FOSTER, JJ., concur.)