Ponderosa Fire District v. Coconino County , 235 Ariz. 597 ( 2014 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
PONDEROSA FIRE DISTRICT, a political subdivision of the State of
Arizona; UTILITY SOURCE, L.L.C., an Arizona limited liability company;
TOWNHOMES AT FLAGSTAFF MEADOWS HOMEOWNERS
ASSOCIATION, an Arizona non-profit corporation; FLAGSTAFF
MEADOWS PROPERTY OWNERS’ ASSOCIATION, an Arizona non-
profit corporation; THE FLAGSTAFF MEADOWS UNIT 3
HOMEOWNERS ASSOCIATION, an Arizona non-profit corporation; and
BELLEMONT 276 L.L.C., an Arizona limited liability company,
Plaintiffs/Appellees,
v.
COCONINO COUNTY, ARIZONA, a political subdivision of the State of
Arizona; COCONINO COUNTY BOARD OF SUPERVISORS, the duly
elected governing board of Coconino County, Arizona; COCONINO
COUNTY COMMUNITY DEVELOPMENT, a department of Coconino
County, Defendants/Appellants.
No. 1 CA-CV 13-0545
FILED 08-28-2014
Appeal from the Superior Court in Coconino County
S0300CV201200366
The Honorable Dan R. Slayton, Judge
REVERSED AND REMANDED
COUNSEL
Freeman Huber Law PLLC, Flagstaff
By Shelton L. Freeman and Matthew J. Mansfield
Counsel for Plaintiffs/Appellees
Gammage & Burnham PLC, Phoenix
By Cameron C. Artigue and Christopher L. Hering
Counsel for Defendants/Appellants
Mangum Wall Stoops & Warden PLLC, Flagstaff
By Michelle D’Andrea
Counsel for Amicus Curiae City of Flagstaff
Maricopa County Attorney’s Office, Phoenix
By Wayne J. Peck
Counsel for Amicus Curiae Maricopa County
Holloway Odegard & Kelly PC, Phoenix
By Ellen M. Van Riper
Counsel for Amicus Curiae League of Arizona Cities and Towns
OPINION
Judge Andrew W. Gould delivered the opinion of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maurice Portley joined.
G O U L D, Judge:
¶1 We are asked to decide whether Coconino County, Arizona,
the Coconino County Board of Supervisors (“Board”), and the Coconino
County Community Development Department (collectively “the County”)
have the discretion to call performance bonds posted by a developer to
ensure completion of subdivision improvements pursuant to Arizona
Revised Statute (“A.R.S.”) section 11-821(C) and Coconino County
Subdivision Ordinance No. 82-3 (“Ordinance”), section 4.14(A)(2) (May 3,
1982). We hold that A.R.S. § 11-821(C) and Ordinance § 4.14(A)(2) allow
the County to exercise discretion in deciding when, and under what
circumstances, it may call the performance bonds. Accordingly, we reverse
the trial court’s judgment.
FACTS AND PROCEDURAL HISTORY
¶2 Empire Residential Construction, L.P. (“Empire”) subdivided
land and developed Flagstaff Meadows, a residential community, in
Coconino County. The subdivision consists of three Units; Units 1 and 2
contain completed single-family homes and townhomes. In 2006, Empire
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applied to the Coconino County Planning and Zoning Commission to
develop Unit 3 into a residential community for single-family homes and
multiple-family residences. The Board voted unanimously to approve
Empire’s application.
¶3 On October 17, 2006, the Board issued a resolution approving
Empire’s proposed Unit 3 preliminary plat, including the requirement that:
In accordance with Section 4.14 of the Subdivision Ordinance,
all improvements must be completed prior to submittal of a
final plat or a cash deposit, letter of credit, performance bond,
or other acceptable financial security shall be required for the
costs of any improvements and construction not completed,
plus a 10% contingency. This includes, but is not limited to,
all roadways, drainage structures, utilities, traffic control
signs, street identification signs, fencing, park improvements,
pedestrian trails, and landscaping.
Based on the Board’s resolution, in October 2007, Empire acquired four
subdivision bonds totaling $4,396,241.32. The bonds consisted of
$3,364,428.10 for subdivision improvements, $196,998.22 for emergency
evacuation route improvements, $660,000.00 for fire station additions, and
$174,815.00 for landscaping improvements. The Board approved the final
plat in October 2007.
¶4 Empire began construction of the subdivision improvements
and, upon completion of the emergency evacuation route improvements,
the County released the corresponding $196,998.22 bond. However, before
it could complete the remaining subdivision improvements, Empire
declared bankruptcy and abandoned Unit 3. At the time Empire
abandoned Unit 3, the subdivision’s infrastructure was not finished; there
were no functional internal roads or utilities. In addition, no construction
of homes had begun, and no lots had been sold to consumers. The
remaining subdivision bonds totaled more than $4 million.
¶5 Following a series of trustee’s sales, Bellemont 276, L.L.C.
(“Bellemont”) eventually purchased Unit 3 in March 2011 with the intent of
constructing residences on the subdivided lots and selling them to the
public. Bellemont applied to the County for a building permit to begin
construction. Bellemont also requested the County call the outstanding
Unit 3 subdivision bonds. Over the next several months, the County
negotiated with Bellemont regarding the cost of finishing the Unit 3
improvements; during these negotiations, the County also sought to protect
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itself from the risk of potential litigation costs that might be incurred in
calling the bonds.
¶6 The negotiations did not produce an agreement and the
County ultimately passed a resolution not to call the bonds. In support of
this resolution the County found, among other things, that improvements
in Unit 3 were “essentially unconstructed,” “there [were] no current
residents suffering from lack of infrastructure,” “the public infrastructure
covered by the surety bonds is not needed to serve a substantial public
interest,” calling the bonds “would primarily benefit only the single current
owner of the subdivision property [Bellemont] rather than substantially
benefiting the general public or the neighborhood,” and that “litigation is
likely to result from a call . . . plac[ing] the County general fund at risk.”
¶7 Because there was no plan in place to complete the necessary
improvements/infrastructure, the County rejected Bellemont’s application
for a building permit. In response, Bellemont filed a complaint alleging that
it had acquired Unit 3 with the expectation the bonds would be called to
pay for the remaining improvements and infrastructure. Bellemont
requested declaratory relief, a writ of mandamus compelling the County to
call the bonds, and monetary damages.
¶8 Several parties joined Bellemont as plaintiffs in its complaint,
alleging their interests were also harmed by the County’s refusal to call the
bonds. Townhomes at Flagstaff Meadows Homeowners Association and
Flagstaff Meadows Property Owners’ Association (“HOAs”), representing
the adjacent lot owners of Units 1 and 2, complained about the undeveloped
status of Unit 3. The HOA’s argued they were being denied the right to live
in the “completed subdivision” represented in the public report each
resident received when purchasing their property. Ponderosa Fire District
(“Ponderosa”) asserted it was denied improvements to its fire station that
had been included in the Unit 3 final plat. Utility Source, L.L.C.
(“USource”) argued that its investment in the infrastructure of Flagstaff
Meadows as a whole could not be sustained without completion and
occupation of Unit 3 absent a substantial increase in fees for the property
owners in Units 1 and 2.
¶9 Appellees requested a hearing for the County to show cause
why Appellees were not entitled to declaratory and mandamus relief.1 At
1 Because Appellees’ complaint included a claim for monetary
damages under 42 U.S.C. § 1983, the County sought to remove the case to
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the hearing, Appellees sought a declaration from the court that the
County’s duty to call the bond was a mandatory, ministerial act, and, based
on this declaration, a writ of mandamus compelling the County to call the
bonds. Appellees argued the County lacked discretion to refuse to call the
bonds for Unit 3. Appellees conceded that the lots were all owned by
Bellemont, and none had been sold or committed to individual
homeowners. The County responded that it had the discretion to decide
whether to call the bonds. The County also objected, on procedural
grounds, to any grant of relief at the show cause hearing.
¶10 At the conclusion of the hearing, the court granted Appellees’
application and ordered the County to (1) adopt a resolution stating the
improvements were not finished and (2) send the resolution to the surety.
Based on the terms of the surety bonds, this order constituted an order
compelling the County to call the bonds.2
¶11 Following the hearing, the court issued a writ of mandamus
pursuant to A.R.S. § 12-2021, requiring the County to issue a resolution
calling the bonds. The County complied, passing a resolution calling the
bonds. After the court entered a judgment with Rule 54(b) language, the
County filed a timely notice of appeal.
DISCUSSION
¶12 The only claims involved in this appeal are Appellees’ claims
for declaratory and mandamus relief regarding the County’s discretion to
call the bonds. We are not asked to decide whether Appellees may bring
claims for monetary damages based on the County’s refusal to call the Unit
3 bonds. Moreover, this case only involves the County’s discretion to call
the subdivision bonds; it does not address the County’s discretion, if any,
the federal district court. Upon receipt of the County’s application for
removal, the district court accepted jurisdiction of claims five and six, the
claims for monetary damages, and remanded Appellees’ claims one
through four, the claims for declaratory and injunctive relief.
2 The surety bonds state: “Surety, upon receipt of a resolution of the
Obligee [County] indicating that the improvements have not been installed
or completed, will complete the improvements or pay to Obligee [County]
such amount up to the Principal amount of this bond which will allow the
Obligee [County] to complete the improvements.”
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to discharge, waive, or release the bonds or to use the bond monies for some
purpose other than completing the Unit 3 improvements.
I. Standard of Review
¶13 We review the construction of statutes and ordinances de
novo. State ex. rel. Montgomery v. Harris, 234 Ariz. 343, 344, ¶ 8, 322 P.3d
160, 161 (2014); Files v. Bernal, 200 Ariz. 64, 66, 22 P.3d 57, 59 (App. 2001).
II. Show Cause Hearing
¶14 The County argues the order to show cause procedure used
by Appellees was improper because it denied it a full and fair opportunity
to conduct discovery and present evidence. See Ariz. R. Civ. P. 6(d).
However, the County fails to identify what additional discovery or
evidence would have been helpful in opposing Appellees’ application for
declaratory and mandamus relief. Moreover, the issue presented at the
show cause hearing involved a pure issue of law concerning the
construction of A.R.S. § 11-821(C) and Ordinance § 4.14(A)(2). The record
reflects that the County was given an adequate opportunity to brief this
legal issue and present its arguments at the hearing.
III. Standing
¶15 Appellees lack standing to call the bonds or to make a claim
directly against the surety. Norton v. First Fed. Sav., 128 Ariz. 176, 180, 624
P.2d 854, 858 (1981). Appellees acknowledge that only the County, as the
obligee, may call the bonds. Id. However, Appellees are not suing the
surety or seeking to collect damages against the bonds. Rather, Appellees
are seeking, by means of combined declaratory and mandamus relief, to
compel the County to call the bonds.
¶16 Pursuant to A.R.S. § 12-1832, a party “whose rights, status, or
other legal relations are affected by a statute, municipal ordinance, contract
or franchise may have [a court] determine[] . . . any question of construction
. . . arising under” the statute or ordinance, “and obtain a declaration of [his]
rights, status or other legal relations thereunder.” Canyon Del Rio Investors,
L.L.C. v. City of Flagstaff, 227 Ariz. 336, 341, ¶ 18, 258 P.3d 154, 159 (App.
2011). “[A] justiciable controversy exists if there is an assertion of a right,
status, or legal relation in which the plaintiff has a definite interest and a
denial of it by the opposing party.” Keggi v. Northbrook Prop. & Cas. Ins. Co.,
199 Ariz. 43, 45, ¶ 10, 13 P.3d 785, 787 (App. 2000) (internal citation omitted).
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¶17 Section 12-1832 grants Appellees standing to pursue their
claim for declaratory relief. Appellees allege their interests are affected by
the County’s refusal to call the bonds based on A.R.S. § 11-821(C) and
Ordinance § 4.14(A)(2). Accordingly, Appellees properly seek a declaration
of their rights under the statute and Ordinance.
¶18 Appellees also seek mandamus relief. A writ of mandamus
allows a “party beneficially interested” in an action to compel a public
official or board “to perform an act imposed by law.” A.R.S. § 12-2021; Sears
v. Hull, 192 Ariz. 65, 68, ¶ 11, 961 P.2d 1013, 1016 (1998). The term “party
beneficially interested” is “applied liberally to promote the ends of justice.”
Barry v. Phx. Union High School, 67 Ariz. 384, 387, 197 P.2d 533, 534 (1948);
see Armer v. Superior Court, 112 Ariz. 478, 480, 543 P.2d 1107, 1109 (1975).
¶19 An action for mandamus “does not lie if the public officer is
not specifically required by law to perform the act.” Board of Educ. v.
Scottsdale Educ. Ass’n, 109 Ariz. 342, 344, 509 P.2d 612, 614 (1973). A
mandamus action may only be brought if the statutory duty imposed on
the public official or board is purely “ministerial.” El Paso Natural Gas Co.
v. State, 123 Ariz. 219, 221, 599 P.2d 175, 177 (1979). A ministerial duty is
one that specifically describes the manner of performance and “leaves
nothing to the discretion” of the public official or board. Id. In contrast, “if
an action of a public officer is discretionary that discretion may not be
controlled by mandamus.” Collins v. Krucker, 56 Ariz. 6, 13, 104 P.2d 176,
179 (1940).
¶20 Appellees claim they are “beneficially interested” in the
County’s refusal to call the bonds, because the bond monies are necessary
to finish the Unit 3 improvements. However, we need not decide the issue
of Appellees’ standing to bring a mandamus action, because even if we
assume Appellees have standing, mandamus relief is not appropriate in
this case.
IV. Construction of A.R.S. § 11-821(C)
¶21 We begin our analysis with A.R.S. § 11-821(C). Section 11-
821(C) provides, in relevant part, that subdivision regulations adopted by
a county board of supervisors:
. . . shall require the posting of performance bonds, assurances
or such other security as may be appropriate and necessary to
ensure the installation of required street, sewer, electric and
water utilities, drainage, flood control and improvements
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meeting established minimum standards of design and
construction.
¶22 Appellees argue that the County’s interpretation of
Ordinance § 4.14(A)(2) contravenes the plain language of A.R.S. § 11-
821(C). When there is a conflict between a statute and an ordinance, the
statute controls. Thomas and King, Inc. v. City of Phx., 208 Ariz. 203, 207, ¶ 11,
92 P.3d 429, 433 (App. 2004); see City of Tempe v. Outdoor Sys., Inc., 201 Ariz.
106, 109, ¶ 9, 32 P.3d 31, 34 (App. 2001) (“When an ordinance regulates an
area that is also regulated by state statute, the ordinance may parallel the
statute or even reach beyond the parameters of the statute so long as the
ordinance does not conflict with the statute.”).
¶23 Bellemont interprets the language in A.R.S. § 11-821(C) as
stating that once a bond has been posted, the final plat approved, and the
original developer defaults, the obligation to construct and pay for
improvements is transferred from the original developer to the County.3
According to Bellemont, to interpret the statute otherwise renders the bond
requirement meaningless and allows the County to abandon unfinished
subdivisions. We disagree.
¶24 In construing a statute, we look to the plain language of the
statute, giving effect to every word and phrase, and assigning to each word
its plain and common meaning. Bilke v. State, 206 Ariz. 462, 464, ¶ 11, 80
P.3d 269, 271 (2003); Cochise Cnty. v. Broken Arrow Baptist Church, 161 Ariz.
406, 409, 778 P.2d 1302, 1305 (App. 1989). If a statute’s language is clear and
unambiguous, we apply it without resorting to other methods of statutory
interpretation, unless doing so would lead to impossible or absurd results.
Harris, 234 Ariz. at 345, ¶ 13, 322 P.3d at 162; Bilke, 206 Ariz. at 464, ¶ 11, 80
P.3d at 269; State v. Flores, 160 Ariz. 235, 239, 772 P.2d 589, 593 (App. 1989).
If a statute’s language is ambiguous, we attempt to determine the legislative
intent by interpreting the statute as a whole, considering its place in the
relevant statutory scheme, as well as the statute’s “subject matter, historical
background, effects and consequences, and spirit and purpose.” Harris, 234
3 In support of this argument, Bellemont states that upon approval of
the final plat, ownership of the streets and rights of way in Unit 3 was
transferred to the County. We disagree. Although the County approved
the streets in the final plat, this action did not transfer ownership of the
streets to the County; ownership is not transferred to the County until it
determines the streets are “fully completed” in accordance with the final
plat. A.R.S. § 11-822(C); West v. Sundance Dev. Co., 169 Ariz. 579, 583, 821
P.2d 240, 244. (App. 1991)
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Ariz. at 345, ¶ 13, 322 P.3d at 162 (internal citations omitted); see CSA 13-101
Loop, LLC, v. Loop 101, LLC, 233 Ariz. 355, 360-61, ¶¶ 14-17, 312 P.3d 1121,
1126-27 (App. 2013).
¶25 In determining whether the County has discretion to call the
bonds under A.R.S. § 11-821(C), we are also guided by the principle that
counties, like cities, have no inherent powers; a county’s authority is limited
to those powers expressly or impliedly delegated to it by the state
constitution or statutes. Associated Dairy Prods. Co. v. Page, 68 Ariz. 393, 395,
206 P.2d 1041, 1043 (1949); Home Builders Assoc. of Cent. Ariz. v. City of
Maricopa, 215 Ariz. 146, 149, ¶ 5, 158 P.3d 869, 873 (App. 2007). Thus, in
performing its duties under A.R.S. § 11-821(C), the County possesses “all
powers that may be fairly implied from, and are necessary for, the complete
exercise of [its] express powers” under the statute. City of Phx. v. Phx. Civil
Serv. Bd., 169 Ariz. 256, 259, 818 P.2d 241, 244 (App. 1991).
¶26 The primary purpose of the bond posting requirement in
A.R.S. § 11-821(C) is to protect the public from bearing the costs of necessary
subdivision improvements by requiring the developer to install and pay for
such improvements. Norton, 128 Ariz. at 179, 624 P.2d at 857 (“Performance
bonds which insure the proper completion of street, sewer and water
utilities by subdivision developers protect the city from the necessity of
spending its citizens’ money to fulfill the developers’ responsibilities.”); see
West, 169 Ariz. at 583-84, 821 P.2d at 244-45 (noting that purpose of a
developer posting a bond under A.R.S. § 11-806.01(G), the predecessor
statute to A.R.S. § 11-821(C), was to ensure that the developer performed
its obligation to construct necessary subdivision improvements).
¶27 Bellemont concedes that developers have the obligation to
install required subdivision improvements. Bellemont asserts, however,
that there is currently no developer or subdivider to complete the
improvements for Unit 3. Bellemont claims that it is not a developer or
subdivider; rather, it is “just a county property owner.” Bellemont further
contends that Arizona law and the Ordinance place no requirement on it,
as a property owner, to complete the improvements simply because it owns
multiple lots in the subdivision.
¶28 We conclude Bellemont is a developer and subdivider for the
purposes of A.R.S. § 11-821(C) because it purchased Unit 3 with the intent
to construct residences on the lots and sell them to the public. The
Ordinance and relevant state statutes all define a subdivider as including
subsequent developers who seek to construct residences on subdivision lots
and sell them. Both section 2.1 of the Ordinance and A.R.S. § 32-2101(55)
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define a “subdivider” as anyone “who offers for sale or lease six or more
lots . . . or who causes land to be subdivided . . . or who undertakes to
develop a subdivision.” See Alaface v. Nat’l Inv. Co., 181 Ariz. 586, 592-93 &
n.2, 892 P.2d. 1375, 1381-82 & n.2 (App. 1995) (noting that definition of
“subdivider” under A.R.S. § 32-2101, includes subsequent developers who
were not the original subdividers).
¶29 With this statutory purpose in mind, we examine the
language of A.R.S. § 11-821(C). The statute provides that the County
regulations “shall” require the posting of a bond, assurance or other
security. A.R.S. § 11-821(C). Next, the statute mandates that the bond,
assurance or security posted by the developer must be “appropriate and
necessary” to “ensure” the installation of the “required” infrastructure.
¶30 When read together, all of these terms plainly require the
County to “ensure” that the amount of the bond posted by a developer is
sufficient to cover the cost of necessary subdivision improvements. The
statute does not, however, specify when a county is required to call a bond.
Where a statute is silent on an issue, “we will not read into [it] something
which is not within the express manifest intention of the Legislature as
gathered from the statute itself,” nor will we “inflate, expand, stretch or
extend the statute to matters not falling within its expressed provisions.”
See Martin v. Althoff, 27 Ariz. App. 588, 591, 557 P.2d 187, 190 (1976) (citation
omitted).
¶31 We conclude the County’s decision not to call the bonds at
this time was a proper exercise of its necessary and implied power under
A.R.S. § 11-821(C). The legislative purpose of the statute is to require
developers such as Bellemont to pay for the cost of subdivision
improvements. Here, the County determined that calling the bonds did not
serve this interest; rather, the County decided, in its discretion, to forego
calling the bonds and require Bellemont to pay for the cost of the Unit 3
improvements.
¶32 In support of this conclusion, we note that Bellemont’s
construction of A.R.S. § 11-821(C) would lead to absurd results. Under
Bellemont’s interpretation of the statute, whenever a developer abandons a
subdivision, a county has a mandatory duty to call the bond, regardless of
the circumstances. This leaves counties with an open-ended obligation to
finish all abandoned subdivision improvements, with no discretion to
consider any factors that may arise after the final plat is approved. For
example, counties would be required to call a bond and finish
improvements for a subdivision that may lay vacant for many years.
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Indeed, if the County was obligated to call the bonds and finish the Unit 3
improvements as Bellemont contends, then it was required to do so
immediately upon Empire’s default in 2008 – despite the fact that six years
later, the Unit 3 subdivision still remains vacant. This court is charged with
construing statutes to avoid such absurd results. Harris, 234 Ariz. at 345, ¶
13, 322 P.3d at 162; Bilke, 206 Ariz. at 464, ¶ 11, 80 P.3d at 269.
¶33 We therefore conclude the County exercised its discretion
under the statute by seeking to have Bellemont install the required
subdivision improvements rather than calling the bonds.
V. Construction of Ordinance Section 4.14(A)(2)
¶34 Ordinance § 4.14(A)(2) states the following regarding
subdivision performance bonds:
The Final Plat will be submitted to the Board for approval if
the construction and improvements have been accepted or if
a cash deposit or other financial arrangement acceptable to
the County have been made between the subdivider and the
Board. In the event the subdivider fails to perform within the
time allotted by the Board, then after reasonable notice to the
subdivider of the default, the County may do or have done all
work and charge subdivider’s deposit with all costs and expenses
incurred. (Emphasis added.)
¶35 The County argues that the use of the word “may,” rather
than “shall,” is permissive and implies discretion. Ordinance § 2.1.
Bellemont argues that the use of the word “may” limits the County’s
discretion to either call the bonds and finish the project itself, or use the
bond monies to hire others to complete the project; the language does not,
however, provide the County with the discretion to refuse to call the bonds.
¶36 We conclude Ordinance § 4.14(A)(2) allows the County to
exercise its discretion in calling the bonds. The use of the word “may” in
the Ordinance is a permissive term, and implies discretion. Section 2.1 of
the Ordinance states that for the purposes of the Ordinance, the “word
‘shall’ is mandatory; the word ‘may’ is permissive.” See Walter v. Wilkinson,
198 Ariz. 431, 432, ¶ 7, 10 P.3d 1218, 1219 (App. 2000) (holding that use of
the word “may” in a statute generally indicates permissive intent, while
“shall” generally indicates a mandatory provision).
¶37 Further, this construction is consistent with A.R.S. § 11-
821(C), which provides the County with discretion in deciding when, and
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under what circumstances, to call a bond. Supra, at ¶¶ 31-32. Finally, a
construction that provides the County with discretion to call bonds
promotes the purpose and intent of Coconino County in enacting the
Ordinance, which is “[t]o ensure that the costs of providing” subdivision
improvements “are borne fairly and equitably by the subdivider rather than
by property owners of the County at large.” Ordinance § 1.1. Supra, at ¶
26.
VI. Attorneys’ Fees
¶38 Because we reverse, Appellees’ request for attorneys’ fees on
appeal is denied. Appellees are not a prevailing party, and therefore are
not entitled to an award of fees pursuant to either A.R.S. § 12-2030(A) or the
private attorney general doctrine. See Arnold v. Ariz. Dept. of Health Servs.,
160 Ariz. 593, 609-10, 775 P.2d 521, 537-38 (1989).
CONCLUSION
¶39 For the reasons discussed above, we conclude the County
exercised its discretion under A.R.S. § 11-821(C) and Ordinance § 4.14(A)(2)
in refusing to call the Unit 3 bonds. As a consequence, the trial court erred
in issuing its mandamus order compelling the County to call the bonds. We
therefore reverse the trial court’s judgment, and remand this case to the trial
court for further proceedings consistent with this opinion.
:gsh
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