Small Claims Court

                                                                                 Claim No: 326212 and 326213

                   IN THE SMALL CLAIMS COURT OF NOVA SCOTIA

Cite as: Dyke v. Skinner, 2010 NSSM 49

BETWEEN:

                                                 KENTON A. DYKE

                                                                                                                     Claimant

                                                          - and -

                                            NANCY MARIE SKINNER

                                                                                                              Defendant

                                        REASONS FOR DECISION

BEFORE

Eric K. Slone, Adjudicator

Hearing held at Halifax, Nova Scotia on May 10 and 13, 2010

Decision rendered on July 27, 2010

APPEARANCES

For the Claimant              self-represented 

For the Defendant Terry Degen

Counsel

BY THE COURT:

Introduction

1                    I have before me two claims with an identical counterclaim in each of them, arising out of a domestic relationship between Mr. Dyke and Ms. Skinner.

2                    The cases incidentally raise two important issues for this Court.  One issue is to what extent is it appropriate to ask this Court to perform a virtual audit of the financial dealings between parties over the entire course of their relationship, particularly where they appear to have integrated their personal finances to a degree rarely seen, even in the case of married couples. 

3                    The second question is whether the financial relationship can be said to have given rise to multiple claims that would support more than one action, or whether that is impermissible “claim splitting” contrary to section 12 of the Small Claims Court Act, which reads:

13 A claim may not be divided into two or more claims for the purpose of bringing it within the jurisdiction of the Court.

Background Facts and Comments

4                    The Claimant and Defendant commenced their four-year cohabitation by purchasing a house together in July of 2003.  The Defendant had four children by two prior relationships.  She was self-employed as a real estate agent.  The Claimant was employed with NavCan at the time.  Both of the Claimant and Defendant owned prior homes which they sold in order to buy the new house together.  They took title as joint tenants.  They both contributed (in somewhat unequal measure) to the down payment of some $52,500.00, and jointly took on a mortgage of approximately $150,000.00.

5                    At some point very early in the relationship they began banking through a joint bank account and had several lines of credit and credit cards for which they were jointly responsible.  As indicated above, this was a degree of financial integration that is unusual in the case of unmarried couples, and a faster move into integration than is often observed even with married couples.

6                    The only inference that one can draw from the facts is that the parties were highly committed to the relationship and saw little, if any, value in preserving a measure of financial independence or distance.

7                    Both parties testified that there were never any explicit discussions about how property and debt would be divided in the event of a separation.  This is consistent with their rush to financial integration and the fact that there was no cohabitation agreement entered into, or even discussed.

8                    It is the experience of this Adjudicator that many ordinary people fail to appreciate the distinction that the law makes between married and unmarried couples.  They mistakenly believe that unmarried people, once they have cohabited for a set period of time of one or two years in accordance with some aspect of the “common law,” enter into a regime of shared or community property identical to marriage.  This is, of course, far from true, or perhaps more accurately, far from automatic. 

9                    Had the parties legally married, their circumstances would have to be determined within the exclusive jurisdiction of the Supreme Court under the guiding principles of the Matrimonial Property Act and the abundant jurisprudence applying and interpreting that legislation. 

10                Unmarried couples are simply not covered by that Act.  Their relationship is governed by common law principles, one of the most basic is that - in the absence of an agreement to the contrary - property belongs in law to the party that holds title to it or can establish that he or she purchased it.  Other principles which may have a bearing on entitlement include concepts such as unjust enrichment and resulting trusts, which in some cases (and often by tortuous means) bring the property division for an unmarried couple in line with what married couples are entitled to as of right.

11                This case presents almost an opposite situation to the one most commonly seen with unmarried couples.  The Claimant here is keenly aware that there are no statutory provisions which would dictate a presumptive sharing of property and debt.  Instead, he proposes that the Court take measure of each party’s financial contribution to the relationship, both by way of initial capital injection into the purchase of the house, and by way of income over the years, and that such measure would dictate (in part) what each is entitled to take upon the dissolution of the relationship.

12                 Essentially, the Claimant has performed a near-forensic accounting covering the entire history of the relationship and has concluded that he has been unfairly shortchanged.  Aware as he is that there is a $25,000.00 monetary limit on claims, he has brought two claims totalling approximately $36,000.00, focussing on several specific financial transactions which he says represent separate breaches of contract, or instances of unjust enrichment.  However, the underpinning for both claims is the theory that he has entitlements mathematically connected to his financial contributions to the relationship, which contributions he has attempted to value down to the last dollar.

The Claims and Counterclaims

13                Claim 326212 on its face seeks $11,095.00 (plus interest, costs and general damages) representing:

“[R]eturn of my portion of purchase price of vehicle .... [and] reimbursement of MasterCard payment [as] I paid $5,895.03 in business expenses that the defendant had charged.”

14                Claim 326213 seeks $25,000.00 (plus interest and costs) as:

“money taken from bank account ... The defendant took $25,884.41 to pay for her business expenses.  July 11, 2007 the defendant ended the relationship and refused to return my money.  The defendant received $32,000.00 in the next six weeks and another $17,000.00 by year end.”

15                The Defence and Counterclaim in both actions is basically the same. The Defendant objects to the claim splitting, and alleges that the claim arises from an overall agreement to live together and share all income and expenses.  By way of counterclaim the Defendant seeks a division of funds held in trust from the sale of the home, a division of the deficit in a line of credit and an amount equal to the cost of a returned engagement ring.

16                Additional facts that bear upon the claims are these:

Claim 326212 - the car

17                The Defendant had a leased vehicle that was mostly used for her business.  This vehicle was semi-retired toward the end of the lease because it had excess kilometres which could have resulted in a penalty owing to the leasing company.  When the lease was up, the parties came to believe through their research that the vehicle was worth more than the buy-out price, and decided to buy it with an eventual profitable sale in mind.  It was put in the Defendant’s name, and purchased with money borrowed on a line of credit.  By the time of the relationship split some months later, the car was still in their possession, and was simply taken by the Defendant.  Some time later she did sell it, and retained the proceeds.

18                The only way that the Defendant could justify keeping this vehicle (or the sale proceeds) for herself would be to say that she held both the legal title and the entire beneficial interest.  That beneficial interest would have to derive from something other than the source of funds used to purchase it, because it is uncontested that joint funds were used.

19                The Defendant’s position appears to be that this was just one of many items of give and take that occurred when the relationship ended.

20                Despite what I have already said, and may say further below about the financial intermingling that went on with these parties, this appears to be one of those instances where the Claimant can establish a joint interest in the vehicle and can justly complain that his interest has been ignored.

21                The evidence was that the sum of $8,722.00 was paid to buy out the lease.  Some months after the separation, the car was sold for an amount that the Defendant believes was $5,600.00.  I can find no justification for the Defendant failing to account to the Claimant for at least one half of what she sold the car for, namely $2,800.00.  I say “at least” because there is an argument to be made that the vehicle depreciated in the months after separation, but I am not willing to speculate about that and simply find that the Claimant is entitled to a credit of $2,800.00.  I also say “at least” because the Claimant actually says he should be entitled to 66.1% of this amount on a theory that I will address, and reject, below.

22                Put another way, the Defendant should have taken responsibility for paying down $5,600.00 in joint debt when she sold the vehicle, because the Claimant had a clear interest in that vehicle.  There is no evidence that the Claimant ever agreed, upon the separation or otherwise, that the Defendant could simply keep that car and cash in its value for herself.

Claim 326212 - the MasterCard payment

23                This portion of the claim refers to $5,895.03 that the Defendant allegedly borrowed on a joint MasterCard for expenses associated with her real estate business.  The Claimant says that the Defendant agreed to reimburse this amount. The Claimant says that he paid off the debt out of moneys that he eventually received from a settlement of a wrongful dismissal claim arising from the termination of his employment with NavCan.

24                This claim is more difficult to tease out of the web of financial dealings.  Some further background is important.

25                The parties operated most of their finances through a joint account.  While he was working, the Claimant had his income deposited directly into that account.  The Defendant was a self-employed real estate agent, who (until near the end of the relationship) used that same joint account as her business account.  Business expenses were paid out of it.  When real estate commissions were received, they went into that account.  All household expenses, except for those paid on credit, were made from that account.  When it came time to pay credit cards or lines of credit, the payments were made out of the joint account with little or no consideration of how that debt had been incurred, or on whose behalf.

26                To further complicate matters, when the Claimant lost his job he was obliged to cash in some RRSP’s to help the family survive financially, and this money appears to have been directed into the joint account.  When in 2007 he finally settled his wrongful dismissal claim against his Employer, several large deposits were made into that same account.  The settlement was for about $60,000.00, although there was (I believe) some form of withholding tax applied.

27                As observed, all of this represented a high degree of financial intermingling that created many difficulties, as the relationship deteriorated and eventually ended.

28                Moreover, from a tax and accounting standpoint it was far from ideal for the Defendant to be operating her business in this fashion.  Indeed, the Defendant’s accountant so advised her, and shortly before the parties separated she opened up a business account (in her sole name) and began to switch over some of her business dealings to that account.

29                In the weeks leading up to the end of the relationship, certain things occurred and events collided, that were arguably to the financial detriment of the Claimant and which certainly underlie his sense of grievance.

30                First of all, he finally received the bulk of his wrongful dismissal settlement which came in the form of two large cash deposits to the joint account in June of 2007.

31                Secondly, the Defendant was still in the early part of her business cycle.  Because real estate is a seasonal business, there are many more sales that occur in the spring and summer, with commissions lagging behind in the summer and fall.  During the winter and spring there are fewer commissions being received, while expenses are nonetheless being incurred.  In the case here, the evidence shows some commissions received in the months leading up to the separation, but much of the fruits of the Defendant’s labour would only be harvested and  enjoyed by the Defendant alone in the months after separation.

32                Thirdly, the switch-over of the Defendant’s business to her own account created a vessel into which resources could be poured.  In the weeks following the receipt of the money from the Claimant’s wrongful dismissal suit, ending mere days before the separation, the Defendant engaged in what can only be characterized as a self-interested depletion of the joint account. 

33                It is true that there were joint debts that needed to be retired appropriately from the available moneys, and it is also true that some commissions were coming into the account, but on the face of it I find that there are many payments and transfers made by the Defendant that cannot be so innocently explained.

34                The following larger transactions, extracted from the joint bank account statements covering the period from June to July 2007, raise questions in my mind:

35                On that same last day, July 16, 2007, the Claimant withdrew $14,000.00 in the form of a draft, which he says (and I accept) was an effort to salvage some money before it was all gone, which money he would need to start his independent life as the separation had just occurred and he could see all of the joint moneys being drained away.

36                I have no doubt that some of the payments and transfers set out above represent legitimate payments that were made in good faith.  It is undisputed that the parties had incurred debts and were probably living above their means.  It is also true that some commissions were being received.  Unfortunately, in her evidence the Defendant had a poor recollection of what some of these payments and transfers related to.  What I find troubling is that payments were being made sometimes more than once in a day, and often on successive days, and several times in the same month.  This pattern suggests that there was no discussion or agreement between the parties as to where the funds should be directed, and which debts to pay down.  It points to someone, namely the Defendant, systematically draining the account for both legitimate and questionable (selfish) purposes, and doing so in smaller amounts perhaps to deflect suspicion, or perhaps because this was simply - in her mind - a more palatable way of doing it.

37                There is little doubt that all of the “transfers” were moneys being directed into the Defendant’s business account.  The inference I draw is that the Defendant felt entitled to deflect all of her business income, at the very least, away from the joint account, while utilizing the NavCan settlement money to retire joint debts and pay living expenses.  And she did so in the knowledge that her income in the months following would be higher than it had been in the slower season.

38                I am not suggesting that the Defendant timed the separation to her financial advantage.  There were other events driving the separation.  But the impending separation clearly played a part in her financial decisions.  As I understand the evidence, things in the relationship came to a head involving issues between the Claimant and the Defendant’s older son.  Also there had already been a decision made to sell the house, which was too expensive to continue with, and the sale of that house - in part - helped to time the separation.  Even so, I find that the Defendant took advantage of the situation and sought to position herself favourably, at the expense of the Claimant.  The Claimant’s withdrawal of $14,000.00 was an effort to salvage what he could before it was all gone.

39                Having made such a finding, it is still challenging to find a way to redress such activity, both on the facts and within the competence and jurisdiction of this Court.

40                The claim for MasterCard payments of $5,895.03 appears to arise out of this series of transactions, although I confess that I am unable to tease it out of the bundle of transactions that were going on at the relevant time.  What I am inclined to find is that this payment, or payments, was part of the systematic effort of the Defendant to arrive at the date of separation with a more advantageous financial situation than might otherwise have been the case had the process been more orderly.

41                This feeds into the claim made in claim 326213.

Claim 326213- $25,000.00 (plus interest and costs)

money taken from bank account for business expenses

42                The Claimant has satisfied me that the Defendant withdrew or transferred money from the joint account to pay for business expenses, and to segregate funds from the joint account.  The former practice appears proper, as it was consistent with past practice, while the latter does not appear proper as it represented a shift in the previous practice.

43                For as long as the Defendant was receiving her business income in the joint account, it was clearly appropriate that she also pay the expenses associated with that income out of the same account.  However that might have occurred - through direct payments or the use of credit cards or lines of credit - the result is the same.

44                The objectionable aspect was that beginning in about June of 2007, she siphoned off lump payments to her business account, in amounts that appear to far exceed what she may have needed for the payment of expenses.  Furthermore, it is clear that the Defendant was working and earning commissions in the final months of the relationship, which commissions would (in the normal course) not be received until after the relationship had ended and which would never be credited to the relationship asset pool.

45                The Defendant did not provide the court with her personal bank statements or tax returns; in fact, there is no indication that the Claimant ever attempted to acquire them.  However, based on the available evidence, what these documents would almost certainly show is that upon separation the Defendant had a stockpile of money, and an absence of personal debt, and that she would begin receiving more in the way of commissions (accrued but not paid) soon after the separation.  She had a successful business and continuing income.  The Claimant, on the other hand, took the $14,000.00 which I have referred to, and was forced to live on that.  He had no job, as far as I am aware.

Other arguments and claims made

46                Although not explicitly forming part of his claim as filed, the Claimant argued that he should be compensated for the greater contribution which he made toward the purchase of the jointly owned home.  He also produced an accounting which showed that over the course of the four year relationship, he had brought in 66.1% of the income while the Defendant had brought in only 33.9%.  He was able to establish this through income tax returns for those years.  His argument appeared to be that this should entitle him to a greater share of certain assets, including the car which was purchased out of joint funds (or more accurately, joint debt).

47                The contributions to the down payment for the house were in a coincidentally similar proportion.  The Claimant appears to have supplied $34,000.00, while the Defendant supplied (in cash and by foregoing a commission) $16,250.00.  This proportion is approximately 2 to 1.

48                The Claimant argued that it would be an unjust enrichment for the Defendant to receive an equal portion of the equity in the home.  It should be noted that the amount remaining after the expenses of sale were less than the original down payment, in part because the parties had refinanced the mortgage at one point in order to pay down and consolidate some of their debt.  The amount as of April 2010 being held in trust, pending an agreement or court order, was $31,790.52.  That amount may have grown slightly in the interim.

49                There is also before me the issue raised directly in the counterclaim, concerning a $6,866.00 debt incurred to purchase a diamond ring.  Briefly, the facts are that well before the relationship soured, the parties went to an auction and became convinced that the purchase of a ring for this amount was a good financial investment, and that it was worth maybe double that or more, and could be sold at a profit.  It appears that they were duped and the ring is worth significantly less than what they paid for it.  At one point, when they learned of its true value, they decided that it could serve as an engagement ring.  When they broke up, the Defendant returned the ring and refused to have anything to do with the debt associated with it.  The Defendant in her counterclaim seeks to hold the Claimant responsible for the entire debt associated with the ring, essentially arguing that since the ring was a “gift” to her, she should not be responsible for the debt incurred to buy the ring.

50                Counsel for the Defendant conceded that there is one item owing by the Defendant to the Claimant, which is an amount of $5,089.00 that the Defendant explicitly borrowed from the Claimant to have business brochures printed up.  I will factor this item into my order below.

Discussion

51                Counsel for the Defendant argued generally that this couple made an agreement to share expenses and assets in a “joint venture” resembling a marriage, and that it would be wrong to go back and rewrite their arrangements as if they were something other than that.

52                I am not the first and will not likely be the last Adjudicator to remark that this court is poorly equipped to deal with all of the fallout from common law relationships.  The problem is two-fold:

a.                   We have restricted jurisdiction (currently $25,000.00) and

b.                  There is a lack of formal procedures, such as financial statements, disclosure and discovery, which would lead to a more orderly and accurate process.

53                The jurisdiction of this Court is not only restricted to $25,000.00, but as provided in the Small Claims Court Act, is limited to certain causes of action:

9 A person may make a claim under this Act

(a)  seeking a monetary award in respect of a matter or thing arising under a contract or a tort where the claim does not exceed twenty‑five thousand dollars inclusive of any claim for general damages but exclusive of interest;

(b)  notwithstanding subsection (1) of Section 5, for municipal rates and taxes, except those which constitute a lien on real property, where the claim does not exceed twenty‑five thousand dollars exclusive of interest;

(c)  requesting the delivery to the person of specific personal property where the personal property does not have a value in excess of twenty‑five thousand dollars; or

(d)  respecting a matter or thing authorized or directed by an Act of the Legislature to be determined pursuant to this Act.

54                Furthermore, the Act provides that:

13  A claim may not be divided into two or more claims for the purpose of bringing it within the jurisdiction of the Court.

55                The result of these provisions is that, for all intents and purposes, there must be a claim arising “under a contract or a tort where the claim does not exceed twenty‑five thousand dollars” and which “may not be divided into two or more claims for the purpose of bringing it within the jurisdiction of the Court.”

56                To narrow it down even further, there would not typically be many tort claims, so the claim will most often be contractual in nature.  One example of a tort claim might be fraud or unlawful conversion of property - i.e. taking something which belongs properly to the other party.

57                Perhaps anomalously, an additional type of claim has been recognized by the higher courts in recent years, which is that the Small Claims Court has jurisdiction over claims for “unjust enrichment.”  This cause of action has been recognized in several cases that do not fall neatly into a contractual framework.  Although I am not aware of any cases that have utilized this remedy as a way to adjust the financial position between common law couples, the argument is there to be made that this Court has the power to redress any perceived unjust enrichment arising out of a common law relationship.  Even so, unjust enrichment is not a “free for all” but is a particular inquiry that requires a court finding that there is no “juridical” (i.e. legally-based) reason for one party or the other to retain a particular financial benefit.  One of the juridical reasons that might be found is that there was a contract to that effect.  In other words, if the parties agreed to a certain financial arrangement, it would not be unjust enrichment for one party to retain the benefit of that agreement.

58                So in my opinion, the starting point is to look for a “contract” that captures the agreement between the couple as to how their finances will be handled.  This will often be an overall agreement, in which case only one claim may be raised concerning it.  In some cases, it may be that during the course of a relationship the parties entered into more than one agreement concerning specific items.

59                In my opinion, this couple established an overall contract to pool resources and share expenses in accordance with their ability to do so.  They took title to their home jointly, with right of survivorship.  There was no agreement to the effect that on separation there would be an inquiry into their respective contributions, and that one party or the other might receive more than the other.  It is clear that they believed that they would be together for a long time, and all of their existing assets and ongoing incomes were intermingled.  The inference that I draw is that they intended their circumstances to be very much like a marriage.  It would be inconsistent with that agreement to attempt to measure the income contributed to the relationship over the years, and use that measure to value their respective interest in assets or levels of responsibility for joint debts.

60                The Claimant supplied me with a Nova Scotia Supreme Court case which, he says, supports his claim to have the parties’ contributions to the joint asset (i.e. the home) traced and divided in accordance with their respective contributions.  In Smith v. Schaffner 2007 NSSC 210, Justice Warner discussed the principle of resulting trust in the context of a joint bank account.  He states at para 12 that the “inference in respect of contributions to a joint account is that they are held on a resulting trust for the contributor.”  The implication of such a principle is that, if nothing is specifically provided otherwise, the joint account belongs to the contributors in proportion to their respective contributions, and not (necessarily) equally.

61                The distinguishing feature of that case is that it deals with an “inference” or, more accurately, a presumption.  Presumptions are only a starting point, and an agreement to share assets and liabilities equally would rebut that presumption and replace it with an agreement.  This is precisely what I find has occurred in this case.

62                These are not unsophisticated people.  They are well educated, high achievers.  Had they intended otherwise, they could have organized their affairs very differently, such as by maintaining separate bank accounts, keeping the Defendant’s business separate from the personal accounts, holding title to the home in a way that made clear that they were not equal owners, keeping separate credit cards, etc.  As I have observed earlier, that is what many people do, even in marriages.

63                In the context of this overarching agreement, there is still the possibility that separate agreements on discrete issues were made, and enforcing such agreements would not offend the principle against claim splitting.  The Defendant’s concession that she borrowed money to pay for her brochures indicates that she accepts the principle.  In fact, even married people may enter into financial transactions that are not rolled into their matrimonial property arrangements.

Disposition of claims

64                The agreement by the Defendant to the Claimant to repay the loan for the printing of brochures stands as one contract apart from the overall domestic relationship, and the Claimant is entitled to recover $5,089.00 from the Defendant.  Whether or not this should attract interest I will consider below.

65                The claim to half of the proceeds of the sale of the car is also allowable, on the basis that I find there was a specific agreement that joint assets would be used to purchase it and that the proceeds of an eventual sale would be split.  I reject the Defendant’s evidence that she was permitted to take this vehicle as part of the give and take on separation.  I find that the Claimant always maintained that he had an interest in the vehicle.  The Defendant owes the Claimant $2,800.00 for his share of the car.

66                All of the other claims by the Claimant arise from the overall domestic agreement.  I find that the Defendant breached that agreement when she started siphoning funds off to her private business account, or to pay debts that were purely personal.  All of this had the effect of impoverishing the joint pool, to her advantage.  To the extent that she was just paying business expenses, this was also to her advantage as she knew that they were separating and that substantial business income would be coming her way later in the year.

67                By the same token, the Claimant withdrew $14,000.00 which, while an understandable defensive action, was also an appropriation of what were joint assets.

68                Given the many unknowns concerning the financial machinations that went on in the final weeks before the separation, I can do no better than make an educated guess as to the extent to which the Defendant enriched herself at the expense of the Claimant by a combination of direct withdrawals from the joint account and failing to account for commissions that were earned but not received prior to separation.  Recognizing that the Claimant was able to salvage $14,000.00, and that much of the rest of the money went to pay joint debts, I find that the Defendant benefited unjustly in an amount of $10,000.00, and the Claimant should be due a further payment or credit of $5,000.00 representing his half interest in those funds.

69                In summary, then, I find that the Claimant is entitled to three payments or credits totalling $12,889.00:

a.                   $2,800.00 for the car;

b.                  $5,089.00 for the brochure;

c.                   $5,000.00 for overall unjust enrichment.

70                The counterclaim item relating to the ring is dismissed.  While the parties may have attempted to salvage something of their poor investment by re-characterizing the ring as a gift, I do not believe that they intended that the Claimant would therefore assume the associated debt upon an eventual separation.  At the time this was happening, they were fully enmeshed in their financial joint venture, and I find that this debt falls within the joint debts of the relationship.  Although the Claimant may have physical possession of the ring, this does not change anything as the ring is apparently of little value and is simply part of the rough division of personal property that occurred after the breakup.

71                The counterclaim also asks for a division of funds in trust, which is not really within my jurisdiction to order, except incidentally in the sense that by determining the claims and finding an amount owing by the Defendant to the Claimant, it should be possible to determine how those funds ought to be divided.

Interest and costs

72                In the exercise of my discretion, I am not inclined to award any prejudgment interest.  These parties’ finances were so intermingled and complicated, and it is simply unfortunate for both that it took so long to unravel.

73                In the matter of costs, I believe that the appropriate result is that the costs be equally shared, as both parties benefit from having this matter determined by a court.  Since there were two claims issued, I will allow the Claimant a further credit of $179.35.  It is as if they each issued a claim.

Result

74                The Claimant is entitled to judgment against the Defendant in the amount of $12,889.00 plus $179.35, for a grand total of $13,068.35.

75                It is up to the parties and the solicitors holding the trust funds to determine precisely how the final winding up of the parties’ financial affairs will work.  To be clear, I have not made any findings that would change the fact that there are still joint debts out there, and that the obligation to pay these debts remains joint and should presumably be shared 50-50, whether out of trust funds or not. 

76                If the Defendant notionally pays the Claimant $13,068.35 out of the trust funds, it would actually mean that he would receive $26,136.70, leaving $5,653.82 in trust for the parties jointly (which might be used to pay a joint debt).

77                If the Defendant chooses to pay this judgment directly to the Claimant, the trust funds would be jointly owned and not subject to any pending proceedings, and could be used to pay joint debts and otherwise divided 50-50.  Again, I leave it to the parties to work that out.

78                For the sake of convenience, and given that the Claimant’s recovery in this action is well within the $25,000.00 jurisdiction of this court, the claims will be consolidated within action 326212 and my order shall issue under the auspices of action 326212.

Eric K. Slone, Adjudicator