UNILOC 2017 LLC v. GOOGLE LLC

United States Court of Appeals

for the Federal Circuit

______________________

UNILOC 2017 LLC,

Plaintiff-Appellant

GOOGLE LLC,

Defendant-Appellee

______________________

2021-1498, 2021-1500, 2021-1501, 2021-1502, 2021-1503,

2021-1504, 2021-1505, 2021-1506, 2021-1507, 2021-1508,

2021-1509

______________________

Appeals from the United States District Court for the

Northern District of California in Nos. 4:20-cv-04355-YGR,

4:20-cv-05330-YGR, 4:20-cv-05333-YGR, 4:20-cv-05334-

YGR, 4:20-cv-05339-YGR, 4:20-cv-05341-YGR, 4:20-cv-

05342-YGR, 4:20-cv-05343-YGR, 4:20-cv-05344-YGR, 4:20-

cv-05345-YGR, 4:20-cv-05346-YGR, Judge Yvonne Gonza-

lez Rogers.

______________________

Decided: November 4, 2022

______________________

JEFFREY A. LAMKEN, MoloLamken LLP, Washington,

DC, argued for plaintiff-appellant. Also represented by

KENNETH E. NOTTER, III, LUCAS M. WALKER; JORDAN RICE,

Chicago, IL; AARON JACOBS, Prince Lobel Tye LLP, Boston,

MA.

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UNILOC 2017 LLC v. GOOGLE LLC

DAN L. BAGATELL, Perkins Coie LLP, Hanover, NH, ar-

gued for defendant-appellee. Also represented by ANDREW

DUFRESNE, SOPEN B. SHAH, Madison, WI; ELIZABETH

BRANN, Paul Hastings LLP, San Diego, CA; ROBERT

UNIKEL, Chicago, IL.

______________________

Before LOURIE, DYK, and HUGHES, Circuit Judges.

DYK, Circuit Judge.

Uniloc 2017 LLC (“Uniloc 2017”) brought multiple pa-

tent infringement suits against Google LLC in the Eastern

District of Texas. Uniloc 2017 alleged that various Google

products infringed a variety of patents directed to innova-

tions in multimedia content delivery (Nos. 6,628,712,

6,952,450, 7,012,960, and 8,407,609), IT security

(Nos. 8,949,954 and 9,564,952), high-resolution imaging

(No. 6,349,154), network connectivity (No. 8,194,632),

video conferencing (No. 6,473,114), and image and text

searching (Nos. 6,253,201 and 6,366,908). Those suits

were later transferred to the Northern District of Califor-

nia. Google moved to dismiss the actions, alleging

Uniloc 2017 lacked standing, and thus the court lacked

subject matter jurisdiction. Google’s theory was that

Uniloc 2017 lacked standing because it lacked the right to

exclude, its predecessors having granted Fortress Credit

Co. LLC a license and an unfettered right to sublicense to

the asserted patents as part of a financing arrangement.

Uniloc 2017 argued that its predecessors had not

granted such a license to Fortress and, even if they had, the

license would not eliminate Uniloc 2017’s standing.

Uniloc 2017 further argued that, in any event, any license

had been eliminated by a Termination Agreement executed

between Uniloc 2017’s predecessors and Fortress before

these suits commenced. The district court granted Google’s

motion to dismiss, finding that a license had been granted;

that the license survived the Termination Agreement; and

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UNILOC 2017 LLC v. GOOGLE LLC

that Uniloc 2017 therefore lacked standing. We hold that

the district court erred in interpreting the Termination

Agreement and in concluding there was no subject matter

jurisdiction. We reverse and remand.

BACKGROUND

In two related appeals,

we today determine that

Uniloc 2017 is collaterally estopped from arguing both that

Uniloc 2017’s predecessors had not licensed Fortress and

that Fortress’s license did not deprive Uniloc 2017 of stand-

ing. Uniloc USA, Inc. v. Motorola Mobility LLC, -- F. 4th -

- (Fed. Cir. 2022). This case presents a different issue:

Whether the Termination Agreement terminated For-

tress’s license, and thereby restored Uniloc 2017’s standing

to sue, an issue as to which there is no claim of collateral

estoppel.

The background of the present controversy is as fol-

lows. On December 30, 2014, Uniloc 2017’s predecessors,

Uniloc Luxembourg (“Uniloc Lux”) and Uniloc USA (to-

gether, “the Unilocs”), entered into a Revenue Sharing and

Note and Warrant Purchase Agreement (“RSA”) with For-

tress in connection with a loan Fortress made to the

Unilocs. The RSA stated:

[T]he [Unilocs] shall grant to [Fortress], for the

benefit of the Secured Parties, a non-exclusive, roy-

alty free, license (including the right to grant sub-

licenses) with respect to the Patents, which shall

be evidenced by, and reflected in, the Patent Li-

cense Agreement. [Fortress] and the Secured

The other appeals are Uniloc USA, Inc. v. Motorola

Mobility LLC, No. 21-1555, (Fed. Cir. 2022) and

Uniloc 2017 LLC v. Blackboard Inc., No. 21-1795 (Fed. Cir.

2022).

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UNILOC 2017 LLC v. GOOGLE LLC

Parties agree that [Fortress] shall only use such li-

cense following an Event of Default.

J.A. 593, § 2.8. In other words, Fortress would effectively

obtain a license if there was an Event of Default.

There were three enumerated Events of Default, one of

which was the failure “to perform or observe any of the cov-

enants or agreements contained in Article VI.” J.A. 602

§ 7.1.2. One such covenant was: “As of March 31, 2017 and

the last day of each fiscal quarter thereafter, the [Unilocs]

shall have received at least $20,000,000 in Actual Moneti-

zation Revenues during the four fiscal quarter period end-

ing on such date.” J.A. 596 § 6.2.2.

The contingent license referenced in the RSA was for-

mally granted in the Patent License Agreement (“License

Agreement”) that was executed between the Unilocs and

Fortress on December 30, 2014. The License Agreement

stated that the license was “non-exclusive, transferrable,

sub-licensable, divisible, irrevocable, fully paid-up, royalty-

free and worldwide.” J.A. 613, § 2.1.

Google argues that Fortress acquired a license because

the Unilocs committed an Event of Default by failing to

achieve the specified patent-monetization revenues. While

there appears to be no dispute that the revenue targets

were not achieved, Uniloc 2017 disputes that this was an

Event of Default because “Fortress did not regard Uniloc

as in default.” Appellant’s Opening Br. 53.

On May 3, 2018, the Unilocs and Fortress entered into

the Payoff and Termination Agreement (“Termination

Agreement”) to completely pay off all loan obligations aris-

ing from the RSA. The Termination Agreement stated that

“the Revenue Sharing Agreement . . . [and] the Patent Li-

cense Agreement . . . shall terminate.” J.A. 913, § 1(d)(i).

On that same day, Uniloc 2017 acquired all relevant pa-

tents from Uniloc Lux.

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UNILOC 2017 LLC v. GOOGLE LLC

In November and December of 2018, Uniloc 2017

filed

several patent infringement suits in the Eastern District of

Texas against Google, each alleging infringement of differ-

ent patents in its patent portfolio.

Each asserted patent

had been included in the License Agreement. In response,

Google filed motions to dismiss for lack of standing and im-

proper venue. The Eastern District of Texas agreed with

Google that venue was improper, and the cases at issue

were transferred to the Northern District of California. Af-

ter transfer, the court ordered that Google file a single mo-

tion to dismiss that would govern the transferred cases.

Google did so, and on December 22, 2020, the district court

granted Google’s motion and dismissed the Google cases for

lack of subject matter jurisdiction.

The district court found that Uniloc 2017

committed

at least one Event of Default sufficient to trigger Fortress’s

acquisition of the license. Having found that Fortress ac-

quired the license, the district court concluded that

Uniloc 2017 no longer had the right to exclude. Relying on

cases involving exclusive licensees, as opposed to patent

owners, the district court then concluded that a patent

plaintiff must have exclusionary rights in the patent to

have standing to sue for infringement and that a patent

In many of the suits, Uniloc 2017 filed its com-

plaint with Uniloc USA as a co-plaintiff. In each case

where this occurred, Uniloc USA was later dismissed from

the lawsuit.

Uniloc 2017 originally filed twelve such cases.

There are now only eleven before us because the twelfth

case was closed in September 2020 in accordance with stip-

ulations made by the parties.

For simplicity, we hereinafter sometimes refer to

both Uniloc 2017 and its predecessor entities as Uniloc

2017.

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UNILOC 2017 LLC v. GOOGLE LLC

owner does not have such rights if another party can li-

cense the patent to the alleged infringer. It followed that

Uniloc 2017 lacked standing.

The district court also found that the Termination

Agreement did not eliminate Fortress’s license because,

under New York law, the fact that the license was “irrevo-

cable” under the terms of the License Agreement unambig-

uously meant that the license survived termination

because an “irrevocable” license is “not revocable for any

reason.” J.A. 15–19 (emphasis in original).

Uniloc 2017 appealed. We have jurisdiction under 28

U.S.C. § 1295(a)(1). We review a dismissal for lack of sub-

ject matter jurisdiction de novo. Microsoft Corp. v. GeoTag,

Inc., 817 F.3d 1305, 1311 (Fed. Cir. 2016).

DISCUSSION

In light of our decisions today in the two related ap-

peals, Uniloc USA, Inc. v. Motorola Mobility LLC, 21-1555

(Fed. Cir. 2022) and Uniloc 2017 LLC v. Blackboard Inc.,

21-1795 (Fed. Cir. 2022),

the sole issue here is whether the

Termination Agreement eliminated any license Fortress

had under the RSA and License Agreement. If the license

was eliminated, the parties agree that Uniloc 2017 has

standing in this case.

This dispute is one of contract interpretation. We re-

view a district court’s contract interpretation de novo. Sev-

enson Env’t Servs., Inc. v. Shaw Env’t, Inc., 477 F.3d 1361,

In these two decisions, we hold that, as a matter of

collateral estoppel from the earlier Apple case

(Uniloc USA, Inc. v. Apple Inc., No. C 18-00358 WHA, 2020

WL 7122617 (N.D. Cal. Dec. 4, 2020)), Fortress acquired a

license to the asserted patents and this license deprived

Uniloc 2017 of standing.

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UNILOC 2017 LLC v. GOOGLE LLC

1364–65 (Fed. Cir. 2007). Both parties agree that New

York contract law governs the interpretation of the termi-

nation issue. We therefore apply New York contract law.

See Lamle v. Mattel, Inc., 394 F.3d 1355, 1359 (Fed. Cir.

2005); Plastronics Socket Partners, Ltd. v. Hwang, 2022

WL 108948, at *2 (Fed. Cir. Jan. 12, 2022).

“A court’s fundamental objective in interpreting a con-

tract is to determine the parties’ intent from the language

employed and to fulfill their reasonable expectations.”

Harmony Rockaway, LLC v. Gelwan, 160 N.Y.S.3d 294,

296 (App. Div. 2021) (citing Gilbane Bldg. Co./TDX Constr.

Corp. v. St. Paul Fire & Marine Ins. Co., 97 N.E.3d 711,

712-13 (N.Y. 2018)). “[W]here the terms of a contract are

clear and unambiguous, the intent of the parties must be

found within the four corners of the contract, giving a prac-

tical interpretation to the language employed and reading

the contract as a whole.” Tomhannock, LLC v. Roustabout

Res., LLC, 128 N.E.3d 674, 675 (N.Y. 2019) (citation omit-

ted). “A contract is unambiguous if the language it uses

has a definite and precise meaning, unattended by danger

of misconception in the purport of the [agreement] itself,

and concerning which there is no reasonable basis for a

The RSA contains a choice-of-law provision select-

ing New York state law; the Termination Agreement con-

tains a choice-of-law provision selecting Delaware state

law; and the License Agreement contains no specific choice-

of-law provision. The district court seemed to conclude that

the RSA’s choice-of-law provision governed the License

Agreement and that the key terms here appear in the Li-

cense Agreement and not the Termination Agreement.

Whether the parties are correct as to the application of

New York law, we see no difference here between New

York, Delaware, Federal Circuit, and general contract law

principles.

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UNILOC 2017 LLC v. GOOGLE LLC

difference of opinion.” Greenfield v. Philles Recs., Inc., 780

N.E.2d 166, 170–71 (N.Y. 2002) (alteration in original) (ci-

tation and internal quotation marks omitted).

As in the companion cases decided today, we conclude

that, as a matter of collateral estoppel, the License Agree-

ment between the Unilocs and Fortress granted Fortress a

“non-exclusive, transferrable, sub-licensable, divisible, ir-

revocable, fully paid-up, royalty-free and worldwide li-

cense” to a portfolio of the Uniloc patents, including those

at issue in this case. J.A. 613, § 2.1. However, the Unilocs

and Fortress terminated the License Agreement and RSA

on May 3, 2018, by the Termination Agreement. The Ter-

mination Agreement stated that the RSA and License

Agreement “shall terminate and shall be of no further force

or effect without any further documentation or action and

without liability to any party hereto, and the rights of each

of the applicable parties under the applicable agreement

shall terminate.” J.A. 913, § 1(d)(i). The question is

whether the license (including the right to sublicense) sur-

vived the Termination Agreement.

The language of the Termination Agreement is on its

face sufficient to eliminate Fortress’s license. Quite

simply, the Termination Agreement states that the License

Agreement and rights under that agreement “shall termi-

nate.” The entire purpose of the License Agreement was to

grant and govern the grant of a license to Fortress. There-

fore, by terminating the License Agreement and rights un-

der that agreement, the Termination Agreement would

appear to terminate Fortress’s license.

The district court, in rejecting the conclusion that

would seem to flow from the broad language of the Termi-

nation Agreement, held that, under New York law, the Ter-

mination Agreement did not terminate the license because

the license was stated to be “irrevocable.” J.A. 17–18. On

its face the License Agreement describes the license as

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UNILOC 2017 LLC v. GOOGLE LLC

“irrevocable.” But this does not suggest the license is irrev-

ocable by mutual agreement. The term “irrevocable” in its

context clearly refers to the license’s being “irrevocable” by

the licensor.

Under the relevant case law, the term “irrevocable”

does not suggest that the license could not be eliminated by

mutual agreement. Cases construing the term “irrevoca-

ble” agree that the term means only that the irrevocable

thing cannot be unilaterally revoked by the party that

granted the benefit. See In re Zimmerman (Cohen), 139

N.E. 764, 766 (N.Y. 1923) (“The word ‘irrevocable,’ here

used, means that the contract to arbitrate cannot be re-

voked at the will of one party to it . . . . It does not mean

that the agreement to arbitrate is irrevocable by the mu-

tual agreement or consent of the parties.”); Silverstein v.

United Cerebral Palsy Ass’n, 232 N.Y.S.2d 968, 970-71

(App. Div. 1962) (“[L]ike any contract, the irrevocable offer

may only be modified, released or rescinded by agreement

of the parties. It cannot be unilaterally withdrawn, re-

voked or rescinded by the offeror.” (citations omitted)); Bar-

clays Bank D.C.O. v. Mercantile Nat’l Bank, 481 F.2d 1224,

1238 (5th Cir. 1973) (noting that the grantor of an irrevo-

cable letter of credit “could not modify the irrevocable

credit without [the grantee’s] consent”); In re Huntington,

ADV 11-4015, 2013 WL 6098405, at *8 (B.A.P. 9th Cir. Oct.

29, 2013) (noting that an irrevocable assignment cannot be

revoked by one party, but can be revoked by mutual con-

sent of all parties); Carbonneau v. Lague, Inc., 352 A.2d

694, 696 (Vt. 1976) (concluding that an irrevocable license

was terminated by a voluntary agreement between all par-

ties).

The district court cited a Federal Circuit case

where the patent owner sued the sublicensee for patent in-

fringement, claiming that the exclusive license agreement

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UNILOC 2017 LLC v. GOOGLE LLC

The cases cited by the district court are not to the con-

trary. They involved one party’s unilateral attempt to re-

voke a license and, in each of those cases, the court simply

found that, if a license is “irrevocable,” the granting party

cannot unilaterally take back the license. See Nano-Pro-

prietary, Inc. v. Canon, Inc., 537 F.3d 394, 400 (5th Cir.

2008) (applying New York law and concluding that, alt-

hough termination is a usual remedy for breach of contract,

the non-breaching party could not terminate the contract

upon breach because the non-breaching party granted an

irrevocable license, meaning a license that is “impossible to

retract or revoke” and “committed beyond recall”); State St.

Glob. Advisors Tr. Co. v. Visbal, 431 F. Supp. 3d 322, 357

(S.D.N.Y. 2020) (similar); Cafferty v. Scotti Bros. Recs.,

Inc., 969 F. Supp. 193, 198 (S.D.N.Y. 1997) (similar); In re

Provider Meds, L.L.C., 907 F.3d 845, 856 (5th Cir. 2018)

(applying New York law and explaining that an irrevocable

license “may not be revoked for any reason [by the granting

party], even a breach by the other side”).

On appeal, Google concedes that “irrevocable” could

not mean that the contracting parties were powerless to

it had with the sublicensor (the Master Agreement) was

unilaterally terminated by the patent owner and thus the

sublicensor’s sublicenses were terminated. See Fraunho-

fer-Gesellschaft zur Förderung der Angewandten For-

schung E.V. v. Sirius XM Radio Inc., 940 F.3d 1372, 1378–

82 (Fed. Cir. 2019). In the Master Agreement, the patent

owner had granted the sublicensor an irrevocable license

with the right to sublicense, but we held that, because of

various provisions in the agreement, the Master Agree-

ment was ambiguous as to whether the sublicensee’s rights

survived the termination of the Master Agreement. Id. at

1381. That case did not suggest that an “irrevocable” li-

cense could not be terminated by mutual agreement.

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UNILOC 2017 LLC v. GOOGLE LLC

mutually terminate the license. Google now states: “Google

does not argue . . . that Fortress and Uniloc [2017] were

powerless to bilaterally rescind Fortress’s sublicensing

rights under the [License Agreement].” Appellee’s Resp.

Br. 34 (citation omitted). In short, the use of the word “ir-

revocable” does not prevent termination by mutual agree-

ment.

However, Google relies on other language in the Li-

cense Agreement (not relied on by the district court) to ar-

gue that Fortress’s license survived. The License

Agreement states that “[a]ny rights . . . which by their na-

ture survive and continue after any expiration or termina-

tion of this Agreement will survive and continue and will

bind the Parties . . . until such rights are extinguished.”

J.A. 614, § 6. Google argues that the Termination Agree-

ment, despite its broad language, should not be read to

undo the survival provisions of the License Agreement, and

that Fortress’s license is a right that would “by [its] nature”

survive the termination of the License Agreement, in part

because the agreement refers to the license as irrevocable.

In the Termination Agreement’s section on mutual re-

lease, the Agreement does recognize that some provisions

of the Released Agreements survive. See J.A. 915, § 2(b)

(“[T]he forgoing release shall not apply to . . . any provision

of any Released Agreement that survives the termination

of such Released Agreement in accordance with its

terms . . . .”). Further, cases support the proposition that

where an original contract states that a provision will sur-

vive the termination of that contract, it is fair to assume

that, absent explicit agreement, the provision will survive

the original contract’s termination. See Dabney-Johnston

Oil Corp. v. Walden, 52 P.2d 237, 245 (Cal. 1935) (noting

that a provision that applied to “any subsequent lease” sur-

vived after the termination of the existing lease contract);

Layne Christensen Co. v. Bro-Tech Corp., 836 F. Supp. 2d

1203, 1230 (D. Kan. 2011) (noting that a provision that

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UNILOC 2017 LLC v. GOOGLE LLC

applied “during the [contract] Term and thereafter” sur-

vived termination because the parties plainly contracted

for the provision to be applicable after the agreement

ceased to be in force). The Termination Agreement here is

best construed not to eliminate “rights . . . which by their

nature survive” termination.

However, the license here is not a right “which by [its]

nature survive[s]” termination. As we have discussed ear-

lier, the use of the term “irrevocable” does not itself suggest

the license survived a mutual agreement to terminate. The

phrase “rights . . . which by their nature survive” must re-

fer to something in the nature of the right that makes it

survive. In other words, there must be something inherent

in the right such that it survives. Interpreting similar lan-

guage in other agreements in the context of determining

which rights survive contract expiration, courts have found

that rights or contract provisions that by their nature sur-

vive termination include those related to what remedies

are available in case of breach occurring during the term of

the contract or dispute resolution mechanisms concerning

such breach. See Litton Fin. Printing Div. v. N.L.R.B., 501

U.S. 190, 204 (1991) (“arbitration . . . of matters and dis-

putes arising out of the relation governed by contract”);

Koch v. Compucredit Corp., 543 F.3d 460, 466 (8th Cir.

2008) (obligation to arbitrate “matters and disputes arising

out of the relation governed by contract” (quoting Litton

Fin. Printing Div., 501 U.S. at 204)); Webb Candy, Inc. v.

Walmart Stores, Inc., No. 09-CV-2056, 2010 WL 2301461,

at *7 (D. Minn. June 7, 2010) (forum selection clause); Cott-

man Ave. PRP Grp. v. AMEC Foster Wheeler Env’t Infra-

structure Inc., 439 F. Supp. 3d 407, 436–37 (E.D. Pa. 2020)

(an indemnification provision for “‘any and all’ claims,

losses, damages, liability, costs or actions arising out of ‘or

resulting from’ Defendant’s negligence ‘in the performance’

of the work under the Contracts” (emphasis in original));

see also Attain, LLC v. Workday, Inc., 2018 WL 2688299, at

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UNILOC 2017 LLC v. GOOGLE LLC

*5 (E.D. Pa. June 4, 2018) (forum selection clause survived

contract termination).

To be sure, it is possible that “rights . . . that by their

nature survive” might also take account of instances of past

usage of a license or reliance interests as to future uses cre-

ated during the period of contract. For example, if Fortress

had utilized the license in the past to produce products or

had made future plans to produce a product utilizing the

license, the license might be a right that by its nature sur-

vives even as to future product production (an issue we

need not decide). However, there is no basis for believing

that the plain meaning of “rights . . . which by their nature

survive” encompasses a bare unexercised license.

Other contractual provisions in the License Agreement

support this conclusion. The License Agreement provides

that “[t]he Parties may terminate this Agreement at any

time by mutual written agreement executed by both Par-

ties provided that any sublicenses granted hereunder prior

to the termination of this Agreement shall survive accord-

ing to the respective terms and conditions of such subli-

censes.” J.A. 614, § 5.1. In recognizing the parties’

authority to terminate the License Agreement by “mutual

written agreement,” this provision provides for the survival

of only a very limited portion of Fortress’s license right.

This narrow exception for the survival of sublicenses

granted prior to termination suggests that not all license

rights would survive termination. See In re N.Y.C. Asbes-

tos Litig., 838 N.Y.S.2d 76, 80 (App. Div. 2007) (“[T]he [in-

demnification] provision’s narrow exclusion for liability

based upon Con Edison’s sole active negligence must

clearly be understood to mean that otherwise, where the

liability is not the result of the sole active negligence of Con

Edison, the indemnification provision remains applicable.”

(emphasis in original)).

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UNILOC 2017 LLC v. GOOGLE LLC

Finally, Google argues that the license survives the

Termination Agreement because the license can only be

terminated by curing or annulling the Event of Default.

According to the RSA, “[o]nce an Event of Default has oc-

curred, such Event of Default shall be deemed to exist and

be continuing for all purposes of this Agreement” until cer-

tain explicit cure or annulment criteria are met.

J.A. 603–

04, § 7.3. Unlike the License Agreement, the RSA does not

have a survival provision, and the quoted language does

not suggest that Events of Default survive termination or

that a license generated by an Event of Default would sur-

vive an agreement to terminate the license. Nothing in the

RSA prevented the Termination Agreement from eliminat-

ing a license generated by an Event of Default.

The RSA states:

Once an Event of Default has occurred, such Event

of Default shall be deemed to exist and be continu-

ing for all purposes of this Agreement until the ear-

lier of (x) Majority Purchasers shall have waived

such Event of Default in writing, (y) the Company

shall have cured such Event of Default to the Ma-

jority Purchasers’ reasonable satisfaction or the

Company or such Event of Default otherwise

ceases to exist, or (z) the Collateral Agent and the

Purchasers or Majority Purchasers (as required by

Section 9.4.1) have entered into an amendment to

this Agreement which by its express terms cures

such Event of Default, at which time such Event of

Default shall no longer be deemed to exist or to

have continued.

J.A. 603–04 § 7.3.

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UNILOC 2017 LLC v. GOOGLE LLC

In sum, the only reasonable interpretation of “rights

. . . which by their nature survive” is that those rights do

not include a bare unexercised license. Because the license

here did not survive termination, Fortress did not have the

ability to sublicense the patents at issue when Uniloc 2017

brought suit against Google. Under these circumstances,

Google agrees that Uniloc 2017 has standing. We therefore

reverse the district court and remand this case for further

proceedings consistent with this opinion.

REVERSED AND REMANDED

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