Payphone Connection Plus, Inc. v. Wagners Chef, LLC

PAYPHONE CONNECTION * NO. 2019-CA-0181
PLUS, INC.
*
VERSUS COURT OF APPEAL
*
WAGNERS CHEF, LLC FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2015-02580, DIVISION “E-16”
Honorable Kern A. Reese, Judge
******
Judge Daniel L. Dysart
******
(Court composed of Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Tiffany
G. Chase)

Christopher J. Davidson
John A. E. Davidson
DAVIDSON & DAVIDSON, APLC
2901 Independence Street, Suite 201
Metairie, LA 70006
COUNSEL FOR PLAINTIFF/APPELLEE

Jimmy A. Castex, Jr.
CASTEX ESNARD, L.L.C.
829 Baronne Street
New Orleans, LA 70113
COUNSEL FOR DEFENDANT/APPELLANT

VACATED AND REMANDED

JULY 31, 2019

This appeal is taken from a trial court judgment confirming a default

judgment in favor of plaintiff-appellee, Payphone Connection Plus, Inc.

(“Payphone”), and against the defendants, Jadallah Saed and Shadia Hamideh.

After reviewing the record and applicable law, we find that Payphone failed to

sustain its burden of proof for confirmation of the default judgment. Accordingly,

we vacate the trial court judgment and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On March 20, 2015, Payphone filed a Petition against Wagners Chef, LLC

(“Wagners”) for an alleged breach of contract.1 According to the Petition,

Payphone entered into a fifteen-year contract, a “Placement Agreement,” with

Wagners on November 18, 2013, which gave Payphone the exclusive right to

install and operate an automated teller machine (“ATM”) on the property located at

1
Wagners also conducts business as “Louisa Express.”

1

4301 Louisa Street in New Orleans.2 Payphone then installed an ATM at the site,

although the installation date is not specified.

The Petition alleges that Wagners breached the contract in June or July,

2014, by installing another ATM at the Louisa Street location. Wagners is alleged

to have further breached the contract in October, 2014 by unplugging Payphone’s

ATM machine. Payphone sought the removal of the unauthorized ATM machine

by letter to Wagners dated October 8, 2014; however, Wagners neither removed

the ATM machine nor reconnected Payphone’s ATM machine. As a result,

Payphone allegedly lost revenues.3

Service of the Petition was made on Wagners, though its registered agent,

Jadallah Saed, on April 8, 2015.

On May 19, 2015, Payphone filed a Motion for Preliminary Default which

was granted the same day. Payphone then moved to set a trial to confirm the

preliminary default on July 21, 2015; in response, the trial court set a trial for

August 26, 2015. Before the trial occurred, however, Wagners appeared in the

case and filed an Answer on August 4, 2015.

2
The Placement agreement lists Payphone as “Payphone/ATM Connection Plus (ATMs),” a
different name than the plaintiff in this action. We assume that they are the same entity, as no
exception as to the capacity of Payphone has been raised.
3
The Petition also alleges that Payphone entered into a fifteen-year Placement Agreement with
Louisa Express on November 18, 2013 providing Payphone with the exclusive right to install
and operate an ATM at Louisa Express, a convenience store located at 4301 Louisa Street in
New Orleans. The Petition then recites the same allegations against Louisa Express as those
made against Wagners. Attached to the Petition are copies of the two Placement Agreements
dated November 13, 2014. They are identical with the exception that one is between
“Payphone/ATM Connection Plus (ATMs)” and “Wagner Chef,” while the other is between
“Payphone/ATM Connection Plus (ATMs)” and “Wagner Chef, LLC dba Louisa Express.” The
record does not reflect the reason for two identical contracts for the same location; it is clear,
though, that only one location with one ATM is at issue.
In this opinion, we sometimes refer to the Placement Agreements as “the contracts.”

2

Wagners then moved, on October 31, 2016, for leave of court to file a

Reconventional Demand (against Payphone) and a Third Party Demand (against

Nidal Jaber, who is alleged to be the owner of 33.33% of Wagners’ units; and

Suzanne Wimsatt, who is alleged to be Payphone’s president and owner). While

the trial court set a hearing on Wagners’ motion for leave to file the reconventional

demand and third party demand for January 20, 2017, the record does not reflect a

ruling on that motion.

Ten months later, on August 28, 2017, Payphone filed a First Supplemental

and Amended Petition.4 This amended petition added Jadallah Saed and Shadia

Hamideh as defendants and amended the original petition by alleging that (1) an

affidavit of dissolution was filed with the Louisiana Secretary of State, dissolving

Wagners and because of this, Wagners is “no longer a juridical person or entity . . .

[and] all the assets and liabilities of the company flow to its members

individually”; and (2) Mr. Saed and Ms. Hamideh are married, and the assets of

Payphone are community property.

The record reflects attempts to serve the amended petition on Mr. Saed and

Ms. Shadia over the course of five days in September; those efforts were

unsuccessful. Thereafter, in response to a Motion to Appoint Private Process

Server, Crescent City Legal Process was appointed “process server of the First

Supplemental and Amended Petition” on September 26, 2017. On October 10,

4
The First Supplemental and Amended Petition was filed without first obtaining leave as
required by La. C.C.P. art. 1151, which provides, in pertinent part, that a “plaintiff may amend
his petition without leave of court at any time before the answer thereto is served . . . . Otherwise,
the petition . . . may be amended only by leave of court or by written consent of the adverse
party.”

3

2017, a person identified only as Tanya Craft filed an affidavit into the record

stating that she personally served the First Supplemental and Amended Petition on

Mr. Saed and Ms. Hamideh on October 1, 2017.5

Payphone then moved for another preliminary default on October 30, 2017,

which was granted on October 31, 2017. After a June 8, 2018 hearing to confirm

the preliminary default, the trial court entered a “Final Judgment” on the same date

against Mr. Saed and Ms. Hamideh in the amount of “Three Hundred Thousand

One Hundred Four Hundred Eighty-Two and 50/100 dollars,” along with

attorney’s fees of $8,222.55, legal interest from the date of judicial demand and all

costs of the proceedings.6

On August 10, 2018, Mr. Saed and Ms. Hamideh filed a motion to annul the

June 8, 2018 judgment on several bases.7 The motion was set for a hearing which

was continued twice and the current record does not reflect a ruling on the Motion.

Mr. Saed and Ms. Hamideh filed the instant appeal of the June 8, 2018 judgment

on August 13, 2018.8

In their appeal, Mr. Saed and Ms. Hamideh have raised three assignments of

error. Because we find merit to their second assignment of error which requires

5
The Affidavit makes no mention of the service of the original petition.
6
The trial court judgment is clearly ambiguous.
7
Mr. Saed and Ms. Hamideh filed a Petition to Annul Judgment was filed at the same time, out
of an abundance of caution.
8
This Court has jurisdiction of this appeal despite the pending motion/petition to annul
judgment, as La. C.C.P. art. 2005 provides, in pertinent part, that “[a] judgment may be annulled
prior to or pending an appeal therefrom, or after the delays for appealing have elapsed.”

4

the reversal of the trial court’s judgment, we address that issue, alone, and

pretermit a discussion of the remaining issues.9

Evidence/testimony at June 8, 2018 hearing

At the hearing to confirm the default judgment, the only testimony was that

adduced from Ms. Wimsatt, Payphone’s owner/operator. Ms. Wimsatt identified

the two Placement Agreements and indicated that, to her knowledge, they “are

both signed . . . by persons authorized to sign these agreements.” Ms. Wimsatt

then testified that the agreements gave Payphone the right to exclusive use of

ATMs at the location identified in the Agreements. According to Ms. Wimsatt, the

Agreements allowed for damages for anticipated revenue in case of a breach and in

this case, she prepared a calculation of anticipated revenue, offered into evidence,

which amounted to $296,039.05. She was not questioned about and gave no

explanation as to how she arrived at this figure.

Ms. Wimsatt then testified that the Payphone’s ATM machine, which had

been bolted to the floor of the store, was no longer on the premises and that she did

not know what had become of it. She was never notified that Payphone was in

breach of the Agreements. She indicated that the cost to replace the ATM

machine, and its accessories, was $5,543.

Ms. Wimsatt was then questioned about Wagners’ status as evidenced by the

following colloquy:

9
The assignments of error have been listed as follows: (1) “The district court erred in granting
the default judgment because plaintiff did not establish service of the original petition on Saed
and Hamideh”; (2) “The district court erred in granting the default judgment because plaintiff did
not establish a prima facie case for judgment against Saed and Hamideh”; and (3) “The district
court erred in granting the default judgment because allegations upon which the default judgment
were predicated had been previously denied by Wagners Chef in its answer to the original
petition.”

5

Q Now, after the suit was filed, and we do
have a copy of it, did Wagners Chef go into
voluntary dissolution?

A Yes, sometime after the suit.

Q And that’s attached as Exhibit 3, is it not?

A Yes. 10

Exhibit 3 appears to be a document from the Secretary of the State of

Louisiana with an “Affidavit to Dissolve Limited Liability Company” indicating

that “Wagners Chef, LLC is no longer doing business, owes no debts and owns no

immovable property” and “is dissolved by filing this affidavit with the Secretary of

State, executed by the member(s), or organizer(s) if no membership interests have

been issued, attesting to such facts.” The “member” of Wagners is listed as Mr.

Saed.

Ms. Wimsatt was next questioned about Mr. Saed’s marital status and

testified that “throughout the entire time,” he was married to “co-defendant,” Ms.

Hamideh.

At the conclusion of the trial, Ms. Wimsatt indicated that she was seeking

judgment in the amount of Payphone’s lost profits, the value of the ATM machine,

attorney’s fees and costs.

Standard of Review

The standard of review of the confirmation of a default judgment “‘is

restricted solely to determining whether the record contains sufficient evidence to

support a prima facie case.’” Parker v. Schneider, 14-0232, p. 2 (La. App. 4 Cir.

10/1/14), 151 So.3d 679, 681 (quoting McIntyre v. Sussman, 10-1281, p. 5 (La.

10
Exhibit 3 is marked as “Evidence of Dissolution,” while Exhibits 1 and 2 are marked as the
two Placement Agreements. The only other exhibit, Exhibit 4, is marked as “Calculation of Lost
Revenue.”

6

App. 4 Cir. 10/26/11), 76 So.3d 1257, 1261). “This determination is a factual one

governed by the manifest error standard of review.” Id., p. 3, 151 So.3d at 681

(quoting Arias v. Stolthaven New Orleans, LLC, 08-1111, p. 5 (La.5/5/09), 9 So.3d

815, 818). Thus, we review this matter to determine whether the trial court’s

“finding of fact . . . is clearly wrong in light of the record reviewed in its entirety.”

Hamilton v. Burns, 2016-0107, p. 4 (La. App. 4 Cir. 9/28/16), 202 So.3d 1177,

1180 (quoting Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874 So.2d

90, 98).

Default Judgments

Louisiana Code of Civil Procedure Article 1701 governs default judgments

and provides, in pertinent part, that, when “a defendant in the principal or

incidental demand fails to answer or file other pleadings within the time prescribed

by law or by the court, a preliminary default may be entered against him.” La.

C.C.P. art. 1701 A. Thereafter, a preliminary default is to be confirmed only “by

proof of the demand that is sufficient to establish a prima facie case and that is

admitted on the record prior to the entry of a final default judgment.” La. C.C.P.

art. 1702 A.

The Louisiana Supreme Court reiterated the legal basis for obtaining a

default judgment in Arias v. Stolthaven New Orleans, L.L.C., 08-1111, p. 7 (La.

5/5/09), 9 So.3d 815, 820 (footnote omitted):

Confirmation of a default judgment is similar to a trial
and requires, with admissible evidence, “proof of the
demand sufficient to establish a prima facie case.” La.
C.C.P. art. 1702(A); Power Marketing Direct[, Inc. v.
Foster, 05-2023, p. 10 (La.9/6/06), 938 So.2d 662, 670];
[Frank L. Maraist, Louisiana Civil Law Treatise: Civil
Procedure § 12.3, at 452-53 (2d ed.2008)]. The elements
of a prima facie case are established with competent
evidence, as fully as though each of the allegations in the

7

petition were denied by the defendant. Sessions &
Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258 (La.
1993); Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.
1989). In other words, the plaintiff must present
competent evidence that convinces the court that it is
probable that he would prevail at trial on the merits.
Thibodeaux, 538 So.2d at 1004. A plaintiff seeking to
confirm a default must prove both the existence and the
validity of his claim. A default judgment cannot be
different in kind from what is demanded in the petition
and the amount of damages must be proven to be
properly due. La. C.C.P. art. 1703.

After reviewing the record in its entirety, we find that testimony and

evidence offered at the hearing to confirm the default judgment was woefully

inadequate to establish a prima facie case against Mr. Saed and Ms. Hamideh. As

the Arias Court made clear, at the confirmation of a default judgment, “the rules of

evidence generally apply.” Id., pp. 7-8, 9 So.3d at 820. That is,:

[t]he plaintiff must follow the rules of evidence even
though there is no opponent. “Because at a default
confirmation there is no objecting party, to prevent
reversal on appeal, both plaintiff and the trial judge
should be vigilant to assure that the judgment rests on
admissible evidence” that establishes a prima facie case.
George W. Pugh, Robert Force, Gerald A. Rault, Jr., &
Kerry Triche, Handbook on Louisiana Evidence Law 677
(2007). Thus, inadmissible evidence, except as
specifically provided by law, may not support a default
judgment even though it was not objected to because the
defendant was not present. 19 Frank L. Maraist, Civil
Law Treatise: Evidence and Proof § 1.1, at 5 (2d
ed.2007).

Id., p. 8, 9 So.3d at 820.

DISCUSSION

The “elements of a breach of contract claim are the existence of a contract,

the party’s breach thereof, and resulting damages.” 1100 S. Jefferson Davis

Parkway, LLC v. Williams, 14-1326, p. 5 (La. App. 4 Cir. 5/20/15), 165 So.3d

1211, 1216, writ denied, 15-1449 (La. 10/9/15), 178 So.3d 1005. It is well-settled

8

that “[t]he party claiming the rights under the contract bears the burden of proof.”

Id.

As concerns the first element of a breach of contract case, even assuming

that the Placement Agreements are valid contracts and were authenticated by Ms.

Wimsatt, when she identified them at the hearing as the “placement agreements

[she] made at the location of the defendants,”11 a review of these documents

indicate that the parties to the agreements are Payphone and Wagners/Wagners

“dba Louisa Express.” The person listed as the signatory for Wagners is Nidal

Jaber, who, while identified in the third party demand, is not a party to this action

(as there is no indication that the third party demand was entered into the record)

and has never been made a direct defendant in this action. Neither Mr. Saed nor

Ms. Hamideh is a signatory to the contracts.

While in her testimony Ms. Wimsatt agreed that the “agreements are both

signed, to [her] knowledge, by persons authorized to sign” them and that they were

signed by the “management members,” there is nothing in the record

demonstrating that the fact of Mr. Jaber’s authority to sign the contracts is within

Ms. Wimsatt’s knowledge.12 Moreover, in Wagners’ Answer filed into the record,

Wagners directly and specifically “dispute[d] the validity and enforceability of

11
Notably, Ms. Wimsatt was not asked anything further about the contracts themselves or
whether she signed them; for purposes of this opinion, we assume that the signatures on the
contracts are hers.
12
Payphone argues in its brief that “[t]he defendants attempt to attack Ms. Wimsatt as lacking
any personal knowledge to testify. However, this objection is improperly made for the first time
on appeal,” citing Hall v. Folger Coffee Co., 02-0920 (La. App. 4 Cir. 10/1/03); 857 So.2d 1234,
writ denied, 03-1756 (La. 10/17/03); 855 So2d 762, and writ denied, 03-3416 (La. 6/25/04), 876
So.2d 827. This argument is without merit. As the Supreme Court noted, “inadmissible
evidence, except as specifically provided by law, may not support a default judgment even
though it was not objected to because the defendant was not present.” Arias, 08-1111, p. 8, 9
So.3d at 820.

9

the” contracts.13 Ms. Wimsatt’s testimony in no way establishes that the contracts

are valid and enforceable and that issue was not resolved at the default

confirmation hearing.

More importantly, there was no documentary evidence or testimony

introduced at the hearing which connected Mr. Saed and Ms. Hamideh to the

contracts, or for that matter, to Wagners, other than the documents concerning the

dissolution of Wagners. Those documents, too, only identify Mr. Saed as a

“member” or “organizer” of Wagners. They, alone, do not support Payphone’s

contention that Mr. Saed or Ms. Hamideh is liable for Wagners’ debts.

Simply put, Payphone failed to allege a single basis of liability against Mr.

Saed and Ms. Hamideh, personally. As we previously noted, the amended petition

only alleges that “at all times herein,” Mr. Saed and Ms. Hamideh were married

and that the “assets of Wagners Chef are community property.” Neither is alleged

to have an ownership interest in Wagners, and there are no allegations consistent

with an attempt by Payphone to “pierce the corporate veil.”14 Notably, in a default

confirmation hearing, a “plaintiff is confined to the facts and the theories pled in

13
We note that, although Wagners made an appearance in this case by filing an Answer, the
record does not reflect that it was provided with any notice of the hearing on the default
judgment. Payphone’s contention that, “[t]he dissolution of a limited liability company vests all
obligations of the entity on its members for any debt or claim,” that this lawsuit is such a
“claim,” and therefore, Mr. Saed and Ms. Hamideh “stepped into the shoes of the company
accepting all responsibility for the claim” does not absolve it of its duty under La. C.C.P. art.
1312 to serve all parties. Article 1312 expressly provides, in pertinent part that, “[e]xcept as
otherwise provided in the second paragraph hereof, every pleading subsequent to the original
petition shall be served on the adverse party as provided by Article 1313 or 1314, whichever is
applicable.”
14
As the Louisiana Supreme Court explained, “as a general proposition, the law considers an
LLC and the member(s) comprising the LLC, as being wholly separate persons. See La. C.C. art.
24. However, in narrowly defined circumstances, when individual member(s) of a juridical
entity such as an LLC mismanage the entity or otherwise thwart the public policies justifying
treating the entity as a separate juridical person, the individual member(s) have been subjected to
personal liability for obligations for which the LLC would otherwise be solely liable. When
individual member(s) are held liable under such circumstances, it is said that the court is
‘piercing the corporate veil.’” Ogea v. Merritt, 13-1085, p. 6 (La. 12/10/13), 130 So.3d 888,
894-95 (footnote omitted).

10

his petition.” Hall, 02-0920, p. 12, 857 So.2d at 1244. Here, there is a complete

absence of facts or theories to support a default judgment against Mr. Saed and Ms.

Hamideh, and an absence of any evidence by which Mr. Saed and Ms. Hamideh

could be liable for a breach of the contracts at issue.

Our finding is consistent with our jurisprudence on this issue. In Mossy

Motors, Inc. v. Cameras Am., 02-1536, p. 1 (La. App. 4 Cir. 6/25/03), 851 So.2d

336, 338, for example, suit was brought against a camera surveillance company

and two individuals, each identified as “a principal and/or agent and/or officer” of

the company. A default judgment was entered against the company and the two

individuals for damages alleged to have occurred as a result of their failure to

properly monitor the plaintiff’s premises, which allowed an unlawful entry onto

the premises by persons who damaged vehicles and a fence. The Court first noted

that “[t]he allegations against the LLC on the face of the plaintiff’s petition create a

presumption against the individual liability of the individual defendants.” Id., p. 2,

851 So.2d at 338. Noting that the plaintiff “failed to allege or offer any proof to

support a finding of individual liability separate from that of the LLC,” the Court

found that it, therefore, failed to overcome the burden imposed on it to overcome

this presumption. Id.

Like the instant case, in Mossy Motors,

[t]he plaintiff offered no proof of any agreement between
itself and the individual defendants. The plaintiff offered
no proof of any duty owed by the individual defendants
to the plaintiff. There is nothing in the record to support
the decision of the trial court to cast the individual
defendants in judgment along with the LLC.

Id., p. 3, 851 So.2d at 339.

11

Similarly, in Louisiana Safety Ass'n of Timbermen-Self Insurers Fund v.

Temlaco, Inc., 39,459 (La. App. 2 Cir. 4/28/05), 903 So.2d 492, a default judgment

was entered against a company and an officer/registered agent of the company in

which it was alleged that the company had failed to pay workers’ compensation

insurance premiums and other assessments in 2004. The suit contained allegations

against the officer far more detailed than those in the instant case; it was alleged

that the company’s “corporate charter had been revoked, that its assets had been

distributed to the shareholders and its corporate structure had been ignored, such

that [the officer] was personally liable for [the company’s] debts.” Id., p. 1, 903

So.2d at 494. In reversing a default judgment against the officer, the Second

Circuit noted that, in order “[t]o impose liability on a corporate officer or

shareholder, the plaintiff must also establish a prima facie case of individual

liability separate from that of the corporate defendant.” Id., p. 4, 903 So.2d at 495.

The Court then found that “[t]he plaintiff did not offer proof of any

agreement between itself and [the officer] as an individual, or provide proof of any

duty owed by [the officer] individually to plaintiff.” Id., p. 4, 903 So.2d at 495.

See also Wagenvoord Broad. Co. v. Blanchard, 255 So. 2d 635, 636 (La. App. 4th

Cir. 1971)(in a breach of contract suit, the trial court erred in granting a default

judgment against a defendant because the evidence supporting it was insufficient:

“[t]here [was] is no reference to him in the contract or in any documentary

evidence presented. He did not sign the contract” and “the only evidence which

could possibly be construed to hold [him] liable . . . [was] the testimony of general

manager that he thought [he was one of] ‘. . . two apparent principals from the

company.’”).

12

Based on the foregoing, we find that Payphone failed to establish a prima

facie case of a breach of contract by Mr. Saed and Ms. Hamideh.

Furthermore, a review of the record also demonstrates that Payphone also

failed to prove its damages. “The party bringing suit has the burden of proving any

damage suffered by it as a result of a breach of contract.” L & A Contracting Co.

v. Ram Indus. Coatings, Inc., 99-0354, p. 20 (La. App. 1 Cir. 6/23/00), 762 So.2d

1223, 1235. In a breach of contract case:

Actual damages arising from a breach of contract must be
proven; they cannot be merely speculative or conjectural.
. . . It must appear reasonably certain that the amount of
damages rest upon a certain basis. . . . The sufficiency of
proof of damages must be determined in relation to the
particular contract at issue and the circumstances
surrounding its breach. The question of the certainty of
proof of damages becomes a matter for decision in each
individual case. . . .

LeBlanc v. Gibbens Pools, Inc., 447 So.2d 1195, 1197 (La. App. 5th Cir. 1984),

quoting Hall v. Arkansas-Louisiana Gas Co., 368 So.2d 984, 991

(La.1979)(emphasis supplied).

Moreover, “a minimal degree of detail or specificity is required in fixing

damages.” Id. See also Safeguard Storage Properties, L.L.C. v. Donahue Favret

Contractors, Inc., 10-0673, p. 14 (La. App. 4 Cir. 3/31/11), 60 So.3d 110, 120,

quoting Wasco, Inc. v. Econ. Dev. Unit, Inc., 461 So.2d 1055, 1057 (La. App. 4th

Cir. 1984)(“Although the absence of independent corroborative evidence is not

always fatal, the lack of even a minimal degree of detail and specificity in the

plaintiff's testimony, regarding the issue of lost profits, would preclude recovery of

this item of damages.”).

In the instant matter, Ms. Wimsatt was asked whether she prepared a

“calculation of the anticipated revenue” resulting from the alleged breach of

13

contract. She replied in the affirmative, and indicated that the anticipated amount

was “[$]296,389.05,” the amount of lost profits for which she sought judgment.

Payphone’s counsel offered Exhibit 4 into the record, a document identified as

“Calculation of Lost Revenue.”

Ms. Wimsatt was asked no specific questions regarding Exhibit 4. No

explanation as to how she arrived at the sum was given, and she gave no “degree of

detail and specificity” as to the issue of lost profits. This certainly falls well below

the “minimal degree” required to support a lost profit claim. On this basis, too,

Payphone failed to establish a prima facie case.

Accordingly, we find that, based on the record before us, the trial court

manifestly erred in confirming the default judgment against Mr. Saed and Ms.

Hamideh.

CONCLUSION

For the reasons set forth more fully herein, we vacate the trial court’s

judgment and remand this matter for further proceedings.

VACATED AND REMANDED

14