-: SJC-13507,
Business Interiors Floor Covering Business Trust
v. Graycor Construction Company.
-: Okay. Attorney Lysiak?
-: Madam Chief Justice, and may it please the court.
Matt Lysiak for Graycor Construction Company, Incorporated.
Just a brief introduction in terms of this case.
This involves a large construction project
at what was called the Hub on Causeway,
which is at the North Station.
It's a large construction project at the North Station.
This involved a construction project,
which Graycor Construction was the general contractor
and was tasked to build the theater at this facility
for an original contract price of 18-
-: [Justice Wendlandt] Counsel, I'm sorry to interrupt you.
-: Yes.
-: I know I'm familiar with the facts.
I think my colleagues are as well.
Can I ask you just to sort of dive into the argument
and maybe start with your argument about the lien?
-: Absolutely, Your Honor.
So, well, the first argument being,
and what we're essentially here for,
is to talk about the impossibility defense
that Graycor has put forward.
-: When did Graycor put that forward?
-: So Graycor essentially put that forward in the opposition
to Business Interior's summary judgment motion,
which was filed in June of 2022, and-
-: When did the case get started?
-: The case actually got started in 2020,
in September of 2020.
-: So the first time you mentioned it was two years later?
-: Yes, Your Honor. In the opposition.
-: So tell me why it's not waived.
-: So there's a few reasons
why we believe it's not waived, Your Honor.
First off, although it wasn't mentioned
in the affirmative defenses,
and I do believe that that was a clerical error on our part,
this motion, these cases-
-: Is that a doctrine of- -: Clerical error?
-: Yeah, I mean, I guess what do you mean by clerical error
and how does that fit within our jurisprudence of waiver?
-: So, Your Honor, so it doesn't fit
within your jurisprudence.
I'm simply explaining how it occurred.
So there are several cases that were consolidated
in the trial court.
Several of them, the majority of them,
had frustration of purpose,
affirmative defenses that were alleged.
This matter was put forth
at the end of those consolidated cases.
I believe it was the fifth in line.
And it simply did not contain an affirmative defense.
However, there's a number of arguments
that we'd like to make
in terms of why we feel that it is not waived.
First off, the cases in which the appellee cites
regarding the affirmative defenses
and whether those are waived,
if they're not made at the time of an answer,
those are generally not allowed
because they are presented at the time of trial.
Here there's that summary judgment.
We are arguing
that there's gonna be additional potential discovery
that would need to be done if this is allowed to go forward
at the trial court.
And then Rule 15(a) allows for amendments to pleadings
to be made freely with leave of court.
So we would suggest that Business Interiors was also,
did know about this particular affirmative defense,
namely because there was other subcontractors
that had filed cases in the consolidated actions.
There were the affirmative defenses
that were put forth there.
There was additionally a summary judgment
with one of the subcontractors in which-
-: Any cases in which a related case
preserves an affirmative defense
that wasn't brought up in that case?
Anything you could cite to where we have approved that
or the appeals courts approve that?
-: In which there was at the summary judgment level?
-: Just any time in which you've failed
to bring up an affirmative defense,
but because there's a case involving another subcontractor,
or another, you know, somewhat related case,
that preserves the affirmative defense?
-: No, Your Honor.
There isn't anything on point regarding consolidated cases.
Although, again, I would point out
that the cases that are cited in the appellee's brief,
again, are all cases of which the defense has made
right at the time of trial.
So with that, and additionally, Your Honor,
in terms of the discovery that was presented,
the defenses that were made
are essentially impossibility defenses,
effectively that the contract could not be completed.
Also, although the words "frustration of purpose,"
"impossibility," are not mentioned
in the affirmative defense,
our arguments are that the contract could not be completed
as they were made.
So, and this effectively goes back to-
-: And did that argument include reference to the pandemic?
-: It did not, Your Honor. -: Did not. Okay.
-: It did not.
But again, the idea is that essentially there's an aspect
of the contract that needed to be approved by an entity,
this being Pacific Theatres,
which was not able to approve these invoices and payments
at that applications for payment,
and the reason for that was because of the pandemic.
-: Well, you could have raised that
when the request for payments were made, right?
-: So, Your Honor, so essentially at the time
in which these payment applications were made,
which was in March and May of 2000,
excuse me, March and April of 2020,
the pandemic had started. -: Right.
-: At that time, Pacific Theatres had stopped operating,
so there was essentially no way that-
-: Statute contemplates
that if there's a request for payment,
you'd explain why you're not making payment, right?
-: Right.
So the statute basically asked for an explanation
based on the contract.
Well, why that you can't make it.
And you have to make that with a good faith certification,
although that's not truly determined at this point
in Massachusetts what that is.
-: You could have said,
"I'm not making payment because under the contract
you don't get paid till I get paid."
-: That could have been said, Your Honor.
However, what I would suggest that
is that ultimately to make that determination,
we need contact from Pacific.
They're the ones that make that determination.
So the Prompt Pay Act really doesn't address this situation,
where there are payments-
-: I thought the Prompt Pay Act basically says
anything to the contrary and the contract is void.
-: Anything listed-
-: You can't contract your way
out of the Prompt Pay Act, essentially.
-: That's correct, Your Honor.
So you can't have pay if paid clauses essentially.
-: And how is this not one of those clauses
that's voided by the Prompt Payment Act?
-: So the issue here is that it is not so much the payment
that comes from the owner down to the general contractor.
It is the approval of the work
that was actually not performed.
So here, in order to get any payment from the owner,
this being the tenant, Pacific, down to Graycor,
and then subsequently down to the subcontractors,
Pacific needs to actually review the work,
review the invoices submitted by the contractors,
and then actually give payment, remit payment.
-: Right, so it sounds like I have to get paid
in order to pay you, which is exactly the kind of provision
that the Prompt Payment Act was designed to void.
-: What I would suggest, Your Honor,
is that in this case,
the Prompt Pay Act really doesn't address a situation
where the general contractor
can't actually approve of the work.
So there is a distinct difference here.
So, you know, as opposed to we'd say the Tachi case,
in which you had an owner and the contractor,
in which the owner would approve of the work
and then actually would remit payment,
here there's another level.
So essentially the contract
is between the subcontractor and the contractor.
The contractor pays,
but ultimately, in order for them to do that,
they need to have the work approved.
-: Isn't that very common in construction,
and doesn't, I guess I don't understand your argument
that the Prompt Payment Act doesn't address the issue
when it specifically talks about tiers of contracts.
-: So it- -: Can you just explain that?
-: Yeah, sure.
So the Prompt Pay Act, it doesn't just exclude,
or it doesn't just include contracts,
it includes subcontractors as well.
So obviously here a subcontractor can make a Prompt Pay Act
against the contractor.
But in terms of the level of approval,
the Prompt Pay Act doesn't state
that the approval needs to be done by another entity, right?
So the Prompt Pay Act actually talks
about the contracting party.
Here it would be Graycor.
So the Prompt Pay Act in and of itself
is what I would describe as is somewhat flawed
in that respect.
It doesn't actually address these situations
where you have these separate entities
that are proving of work
when they're not the actual contracting entity
with the person that's bringing,
or the entity that's bringing the Prompt Pay Act claim.
So again, this is-
-: So I just have a...
There's just two issues that I have
with the position that you're needing to take on appeal,
and that's the following.
The first is that you never told BI
that this was your argument in rejecting.
You just neither accepted
nor rejected their application for payment.
And under the Prompt Pay Act, it seems like that means
that you need to flow the money to the subcontractor.
And then the second is
I think what you were currently addressing,
which is that I don't understand how this is not an end run
around the provision of the Prompt Pay Act
that says, "I get paid and then you get paid."
Those kind of provisions are void.
-: So what I would say to that is that essentially,
as you noted, that this does happen
in construction contracts.
The issue here is that it would cause chaos.
So effectively you would have situations
where Graycor would have to reject payment
and tell Business Interiors that they had rejected payment
with or without the actual consent or without any knowledge
from, say, Pacific.
Pacific has done nothing to actually approve of the work
-: That's because of the pandemic, though, right?
-: So in this case it's the result of pandemic. Yes.
-: But just so I'm gonna ask you the question,
I didn't know if you answered it or not,
that every construction contract
that requires approval of work,
someone has to sign off on work.
So how can the sign off be a way
to get out from another Prompt Pay Act?
-: Well, so, Your Honor, I think this, again,
the Prompt Pay Act doesn't address necessarily
what's going on here.
There is $32,000 in this amount that is now due
according to the trial court.
That was actually asked for by the owner.
So essentially what the trial court's saying
is that that Graycor is on the hook
for essentially a portion of this money owed
that they had nothing to do with actually requesting.
It was simply passed through Graycor, went to the owner. So-
-: Do you have an indemnification provision with the owner?
I mean, there's ways that a general contractor
can cover themselves, right?
-: There is, Your Honor, but not in this case.
So in terms of-
-: So there were ways to cover yourself
for the eventuality of the owner
going directly to the subcontractor,
but Graycor chose not to employ any of those mechanisms.
-: At the time in which this occurred,
Pacific wasn't doing anything, so in-
-: Don't you say...
I'm a little confused.
I thought the contract has a provision for this,
that the owner requests a change order, right?
Isn't that in the contract? I thought you were arguing...
-: It is, Your Honor. It's in Section 5.4 of the con-
-: So it was contemplated by the parties,
that the owner would make a direct change order request,
right?
-: Yes, Your Honor.
But the idea was is that if-
-: And the contract didn't say,
"And the owner will directly pay for this," right?
-: No, it didn't. There's no provision within that.
So essentially what would happen
is that it would come from Pacific, the owner,
down to Graycor.
They would filter the information down
to the particular subcontractor that was doing the work,
and then-
-: This is normal, right?
I mean, that happens all the time in construction contracts.
Doesn't the owner see something going on
in a large construction project
and ask for, you know, some kind of change,
and it increases the value of the contract? (chuckles)
-: Yes, of course, Your Honor.
But again, in the terms of the Prompt Pay Act,
in terms of approving that work, taking the invoice,
looking at what the specific work that's being done,
whether it's appropriately priced out,
whether the work was complete,
that, at least for $32,000 worth of that work,
went directly to the owner.
But the trial court is essentially saying
that Graycor now is on the hook for that.
And we believe, at least for that amount-
-: I take it you directed the sub to do the work, right?
-: Only to the extent that it was delivered information
from Pacific to Graycor to the sub.
-: But I guess pertinent to a claim
that we're gonna ask other counsel about,
you're on the hook that the PPA requires the payment to go.
But as far as ultimately this just basically shows
who is gonna bear the initial burden, right?
Because you still have a lawsuit at the end of the day.
-: Yes. I mean, yes, your Honor.
So- -: Right.
-: The PPA is basically telling the subs
that you're not gonna be starved out.
The GC's gonna take the hit, and then we'll litigate.
-: That is correct, Your Honor.
But again, you know, in this situation,
I think the PPA unfairly puts the onus on Graycor,
the general contractor. -: Go to the legislature,
and tell them that, not us.
-: Understood, Your Honor.
-: Okay. Any other questions?
-: No, thank you, Chief.
-: Counsel, can you kindly please walk us through
your understanding of what would've occurred
if Graycor had, within the time period, lodged the objection
and said, "We received your request for payment.
Unfortunately, we can't do that right now
because the work has not yet been approved,
and our reading of the contract is
that we cannot pay you until it's been approved by Pacific.
We've been trying to reach out to them.
They have not been responsive."
Can you walk us through your understanding
of under the contract, what would've then taken place?
-: Nothing, Your Honor.
We would be in the exact same place.
Essentially they would've submitted,
they would've submitted the objection.
-: I'm sorry, Counsel, to interrupt,
but isn't there a dispute resolution requirement
under the PPA?
-: A dispute resolution? -: Right.
Once there is an application and then you reject it,
it must go to a dispute resolution.
The whole point is to not allow the cash flow to stop,
that there is timeframes
during which the cash flow will stop.
-: Yes, but that doesn't-
-: So when you say nothing will happen
in response to Justice Dewar's question,
I don't understand that.
-: So what I, and maybe that was unartfully framed,
but what I'm saying is that essentially
the subcontractor can bring
another breach of contract claim,
whether it's under the Prompt Pay Act or not.
So if we reject the claim,
and then at a certain point
Business interiors brings it as breach of contract,
we're still in violation of the contract.
We still didn't pay, even though we gave a rejection.
It's still in violation.
They did the work. It was not paid for.
We submitted an application,
or excuse me, we submitted a rejection,
but ultimately they could still bring a claim against us
for breach of contract, regardless of the PPA.
-: Okay. Thank you very much. -: Thank you.
-: Okay, Attorney Forgione.
-: So, good morning, Your Honor.
It's Andrew Dennington
for the appellee Business Interior Floor Covering Trust.
-: I'm sorry. (chuckling) Thanks.
-: Making the switch. -: Oh, it's my fault.
-: So this court should affirm the judgment below
because the motion judge correctly entered summary judgment
in favor of Business Interiors.
I first want to pick up on some of the points
that the panel raised in the colloquy
with the appellant's counsel.
First, it is indeed the case
that the affirmative defense
of impossibility/impracticability was waived
because it was not pled in the answer.
And I think the court should consider
what's the purpose of that rule in Rule 8,
that affirmative defenses have to be pleaded.
The purpose is to provide notice to the plaintiff
so that the plaintiff can-
-: Could they have amended their pleading?
-: Yes, they could have. -: Okay.
-: And they didn't.
-: And so when is the end date
that they can amend their pleading?
-: There is no prescribed end date, because-
-: So why can't they do it now?
-: Well, that would be, in my view, highly prejudicial to-
-: So can you explain that?
What is the legal test for when somebody can amend?
-: The legal test.
Leave shall be freely given under Rule 15,
except if the trial court were to find
that it would be unduly prejudicial to the plaintiff.
And here it would have been,
because during the discovery phase,
if you look at the request for admission there
at page 171 of the record,
you'll see that Business Interior served written discovery
to Graycor asking, "What was the basis? Why didn't you pay?"
And the response were they cited to the pay if pay clause
in the subcontract, which is overridden
by Section C of the PPA, which-
-: So they cited to 5.4?
-: Correct.
So we had no notice that they were relying
on a COVID-based impossibility defense
until after discovery had closed
when we received their summary judgment opposition.
That was prejudicial
in that if we had received earlier notice,
we could have, for example, fleshed out,
"Well, what evidence do you have of your own
that you, of your own financial condition..."
At the end of the day, it's, I think, irrelevant,
because, you know, even if there wasn't a PPA,
this still would not have been a defense
that generated a triable issue,
because one of the essential elements of impossibility
is that the defendant has to show that its own performance,
in this case, inability to pay, that it was unable to pay.
And there's nothing in the summary judgment record
where Graycor demonstrate it was impossible for us
to pay $127,000 to Business Interiors.
-: Can you walk me through the argument
that Section 5.4 is void under the PPA?
-: Yes.
So Section 5.4, it says:
"The subcontractor understands and agrees
that the contractor can only make payments
to the subcontractor for monies paid to the contractor
by the owner for the work.
Consequently, but subject
to any applicable statutory requirements
relating to payment, the subcontractor also understands
and agrees that the contractor's obligation
to pay the subcontractor is totally dependent
upon the contractor's receipt of such payment
for the work from the owner."
But then the PPA in Section 3 says,
"Every contract for construction
shall provide these conditions."
And then Section E provides that a pay if pay clause
is unenforceable unless a certain condition is satisfied."
And I think that's significant.
The legislature already contemplated a scenario
where a general contractor
would have difficulty making payment downstream
based on the financial condition of the upstream payer,
and the legislature decided
that there would be several conditions
that would need to be satisfied.
The first of those is that the upstream payer
had to be insolvent or become insolvent
within 90 days of receipt of the submission
of the application for payment,
and that simply didn't happen here.
Pacific ultimately did file for bankruptcy,
but the reason why Graycor never attempted
to, you know, prove up this exception
was because it didn't file for bankruptcy until June 2021,
so that's well past 90 days past the last
of the three payment applications in question.
So, you know, I think this illustrates
that it's a situation where the legislature in 2010,
after a very, you know, has a carefully crafted scheme,
and there is a kind of escape valve
to the reject or pay rule
if you can meet certain conditions,
and they just weren't satisfied here.
-: Sorry, can you please answer the question
that I posed to the other side,
which is what is your understanding
of what would've occurred if Graycor had-
-: Yes.
-: within the time promptly said,
"Sorry, we can't pay you yet
because the work has not been approved"
-: What it would've done
is it would've accelerated this case, all right.
And one of the purposes of the PPA,
it's not just to ensure a prompt payment of invoices,
but also a prompt resolution of disputes, right?
So if that was indeed the defense,
"I'm gonna raise a COVID-based impossibility defense."
You know, those types of arguments
generally have not been very successful.
I think it would've accelerated
Business Interiors filing suit.
Filing suit earlier would serve the purpose of the statute:
let's resolve these disputes sooner rather than later.
And the fact that Graycor has asserted
this impossibility defense, you know,
for the first time after the close of discovery,
is running contrary to the purpose of the statute.
-: Speaking of acceleration, can you,
and I recognize that you note in a footnote in your brief
that the other side has not raised this issue,
but could you talk me through the propriety
of the 54(b) and separate final partial judgment
in this case where I think it's fair to say
there is quite a bit of interrelationship
between the remaining claims and this claim?
-: Yes.
So, you know, as the court is aware,
the appeals court in Tachi held
that to effectuate the purpose of the statute,
there's no just reason for delay in entering judgment
after there's been a violation due to the PPA.
So that's so that the-
-: I understand how it suits the statute's purposes,
but the Tachi case does not discuss the 54(b) standard
in any detail, so could you please address the standard
that our court has generally taken a rather dim view
of piecemeal appeals.
So could you explain how this would work?
Because now, of course, the case is gonna go back down
potentially for further litigation, correct?
-: Well, our...
Okay, answering, so there's kind of two questions there.
So if this judgment is affirmed, what our intention would be
is we don't need the rest of the claims.
We would stipulate to the dismissal of those claims,
and then we would ask, we would bring a motion,
a petition for award of our attorneys' fees
pursuant to Article 10.2 of the contract,
and then have one amended judgment after rescript
that included this judgment plus all the attorneys' fees
and then go off from there.
We wouldn't need, you know, claims
for a breach of implied contract.
We wouldn't need unjust enrichment claims against the...
Now then what would you do with the cross claims, right?
That, I think, really illustrates why it was appropriate
to enter separate and final judgment,
because if it has been determined as a matter of law
that Business Interiors is owed this money,
why should Business Interiors's ability to get a judgment
and execution and start to collect that money
wait until Graycor says,
"Wait, I wanna see if I can get the money back from..."
-: But surely you understand,
I'm not saying that it's this case,
but surely there will be situations
where someone requests payment under the statute,
the other side rejects,
or sorry, the other side untimely rejects, (chuckles)
but has a really good defense to payment.
And so in that situation, how is this all gonna unfold?
In that situation is it appropriate for the lower court
to enter a 54(b) judgment,
to have an immediate appeal
on the timeliness of the rejection
while we still have pending below all the good reasons
why actually they should not have to pay?
-: You know, it's difficult to answer a hypothetical
based on facts that we don't have in front of us,
but if I can just compare it
for example to the Tachi case, okay?
In the Tachi case, the owner vigorously protested,
"This is just unfair," right?
That I have meritorious counterclaims
back against the contractor.
For example, they alleged you've overbilled me,
you falsely submitted payment applications.
And to effectuate the intent that you have to,
as Justice Gaziano said,
you have to let let the money flow, right,
and then we'll fight about this later, right?
-: But there are lots of statutes
that have really important purposes
where we wanna get people money,
but Rule 54(b) still is a pretty stringent standard.
For example, the Wage Act.
Like everyone should be paid the money that they earn
and so forth.
So can you just,
can you speak really practically to the question,
which I think is the pertinent question under 54(b),
is there a way to understand the Prompt Pay Act claim here
as somehow not intertwined with the rest of it?
Because it's just a simple question
of did they meet the time standard or not.
I think it's complicated,
because it's essentially a breach of contract claim.
Correct? -: Yes.
-: So it's complicated to say
that there's a breach of contract claim
that is not intertwined
with the other breach of contract claims
of the same contract that the other side has.
Do you think
that there they can be sort of severed from each other
as not intertwined in an improper way vis-a-vis 54(b)?
-: Well, I can understand your point, Your Honor.
You know, there's, I think count one is breach of contract.
Count two is breach of implied contract.
All I can say is 'cause of practical matter
is that count one is the flagship claim,
and a lot of those other claims
are kind of pled in the alternative.
So for example, you know, it's common
that if there hadn't been a PPA-
-: I don't think that the issue really is about your claims.
It's about the counterclaims.
-: The cross claims. -: Yes.
-: Yes. So-
-: Right, and so given that the two are intertwined
with the contractual bases,
normally under 54(b), we wouldn't allow a judge
to enter separate and final judgment on one claim
that is implicated by a cross claim.
-: Normally you would not,
but here I think there is benefit
into having entry of separate and final judgment,
so that, as I said, the entity that's owed the money
can immediately collect the money
as it's entitled to under the statute.
And then what would be left of the cross claims
is essentially the general contractor chasing the owner.
-: So it's okay here in your case
to have separate and final judgment.
-: Yes, it is okay to have separate and final judgment.
-: What about the other cases? I think that's the point.
I mean, what's the rule you're asking us to...
What do you want us to say here?
That sometimes you can do it
because it looks like the cross claims aren't gonna work?
-: Well, you know, if I can use the question about,
for example, the Wage Act, you know,
as a reference point there,
you know, I think that this statute really emphasizes,
it has certain provisions
where you have to accept or reject within 22 days,
and then you have to pay within 45 days under approval.
It's a very, very detailed regimen.
And without having the Wage Act right in front of me,
I don't think there's-
-: Isn't the purpose of the PPA
to basically level the floor on the power disparity
between the GC and the sub? -: Yes.
-: So that there are subcontractors who become bankrupt
in projects when if they don't get paid,
they can't wait for the final litigation.
-: Absolutely, and I think,
now, fortunately that has not happened here,
but this really, the fact pattern we have before here
is really exactly what the statute was designed to prevent,
which is a subcontractor performs work,
sends the invoice to the general contractor,
and the general contractor just ignores it,
and then forces the sub to chase the general.
In the intervening time period,
the sub has to, you know, maybe out money for its suppliers,
it has to pay an attorney to chase the-
-: Can I ask a technical question?
-: Yes. -: We're gonna lose you,
and the definition of contract for construction.
A contract for which a lien may be established
under Sections 2 or 4 of Chapter 254,
that you couldn't get a lien here, right?
So I'm just, how do we make sense of that?
Is that just bad drafting by the legislature?
-: Well, I would say this.
I agree with the ASM brief
that what's intended there is it's intended
as a shorthand reference to the types of contracts
that are subject to the PPA, so-
-: It's a sort of a strange shorthand, isn't it?
-: I can understand the point Your Honor is making,
however, how I interpret it is
in the lien law there is this kind of verbose language
which defines what is construction.
It's for the alteration, repair, or something
of improvements to real property, et cetera.
So the legislature, instead of just copying and pasting
that, you know, language
and then having a longer definition
of contractor for construction,
it just imported the definition from the lien law,
and I guess it also, so that's my answer to your question.
-: They could have just written it, you know,
contract for construction sort of self-explanatory
in many ways.
-: Yes. This is indeed a contract for construction.
-: No, it's a contract for construction, certainly,
but it's not a contract for which a lien may be established
against the contractor, I mean against the GC, right?
'Cause they don't own the property.
-: So then, if I could, I see that I'm, I think, over time,
but just one last comment which relates to this argument.
This is another argument that was not properly preserved
because the fact which anchors this argument
is the lease termination.
The lease termination on the record at 433
was not part of the summary judgment record.
So the trial court could not have erred
in failing to consider this argument
that was based on a fact
which wasn't in the summary judgment record,
was just slipped into the back of the appendix
for the first time,
and is the subject of our unopposed motion to strike.
-: Argument is not something
that was made at summary judgment?
-: It was made for the first time in oral argument
on the summary judgment motion.
But there is nothing in the summary judgment record
about the lease termination.
Justice Kafker: Gotcha. Okay.
-: But, I'm sorry, Chief.
Is there, I'm sorry.
I thought that under Section 4 of the Lien Act,
you could, at the time you entered into the subcontract,
your client entered into the subcontract,
there could have been the lien established on the leasehold.
Is that incorrect? That's how I read it.
-: Well, what they could have filed,
they could have filed a notice of contract.
There's a series of steps:
notice of contract, statement of account,
and then ultimately you file an action to preserve the lien,
and that provides, you know, security
for a claim like this one.
So I also think that the-
-: But I guess given the fact that I think it was Pacific
was leasing the property, right?
Was a lien available to BI under Section 4?
-: I believe a lien was available to BI,
but they just didn't-
-: All it has to be is a contract
for which a lien may be established.
-: Correct. Correct. -: Okay.
-: And I see that I'm out of time, but thank Your Honors.