Tom Lundeen v. Canadian Pacific RR ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1918
___________
Tom Lundeen, individually; Nanette *
Lundeen, and as parents and natural *
guardians of Molly Lundeen, a minor, *
and Michael Lundeen, *
*
Plaintiffs - Appellees, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
Appeals from the United States
No. 05-1920 District Court for the
___________ District of Minnesota.
John Salling, individually; Lorenda *
Poissant Salling, individually, and on *
behalf of, and as parent and natural *
guardian of Sebastian Poissant, a minor,
*
*
Plaintiffs - Appellees, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1922
___________
Dion Darveaux, individually, on behalf *
of, and as parent and natural guardian *
of Kendall Darveaux, a minor; Brenda *
Darveaux, individually, on behalf of, *
and as a parent and natural guardian of*
Kendall Darveaux, a minor, *
*
Plaintiffs - Appellees, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1923
___________
Larry Schafer, individually, and on *
behalf of, and as parent and natural *
guardian of Jenna Schafer, a minor; *
Tami Schafer, individually, and on *
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behalf of, and as parent and natural *
guardian of Jenna Schafer, a minor, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1924
___________
Gerald Wickman *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1925
___________
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Charles Swenson; Sandra Swenson, *
*
Plaintiffs - Appellees, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1926
___________
Rebecca Behnkie, individually, and on *
behalf of, and as parent and natural *
guardian of Nathaniel Behnkie, a *
minor, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
-4-
___________
No. 05-1927
___________
Marilyn Carlson, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1928
___________
Larry Crabbe; Carol Crabbe, *
*
Plaintiffs - Appellees, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
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___________
No. 05-1929
___________
Wilfred Dahly; Geraldine Dahly, *
*
Plaintiffs - Appellees, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1930
___________
Denise Duchsherer; Leo Duchsherer; *
Joshua Duchsherer, *
*
Plaintiffs - Appellees, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
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___________
No. 05-1931
___________
Judy Deutsch, individually, and on *
behalf of, and as natural guardian of *
Tyrone Deutsch, a minor, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1932
___________
Jo Ann Flick, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
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___________
No. 05-1933
___________
Leo Gleason, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1934
___________
Charlotte Goerndt, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
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___________
No. 05-1935
___________
Mary Beth Gross, individually, and on *
behalf of, and as parent and natural *
guardian of Brett Gross, a minor, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1936
___________
Darla M. Just, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
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___________
No. 05-1937
___________
Irene Clore Korgel, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1938
___________
Richard McBride; Linda McBride, *
*
Plaintiffs - Appellees, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
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___________
No. 05-1939
___________
Richard Muhlbradt, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1940
___________
Lonnie Shigley, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
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___________
No. 05-1941
___________
Bobby Smith; Mary Smith, *
*
Plaintiffs - Appellees, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1942
___________
Rachelle Todosichuk, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
-12-
___________
No. 05-1943
___________
Shelly Hingst, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1944
___________
Nathan Freeman, individually, and on *
behalf of, and as parents and natural *
guardians of Ashlyn Freeman, a minor; *
Nicole Freeman, individually, and on *
behalf of, and as parents and natural *
guardians of Ashlyn Freeman, a minor *
*
Plaintiffs - Appellees, *
*
v. * .
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
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Defendants - Appellants. *
___________
No. 05-1945
___________
Doug Weltzin, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1946
___________
Melissa Todd, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
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___________
No. 05-1947
___________
Ray Lakoduk, *
*
Plaintiff - Appellee , *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1948
___________
Trent Westmeyer; Randi Lou *
Westmeyer, *
*
Plaintiffs - Appellees, *
*
v. * .
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
-15-
___________
No. 05-1949
___________
Leroy Slorby, *
*
Plaintiff - Appellee, *
*
v. *
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
___________
No. 05-1950
___________
Mark Nisbet; Sandra Nisbet, *
*
Plaintiffs - Appellees, *
*
v. * .
*
Canadian Pacific Railway Company; *
Canadian Pacific Ltd, Sued as Canadian *
Pacific Limited; Canadian Pacific *
Railway Limited; Soo Line Railroad *
Company, *
*
Defendants - Appellants. *
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___________
Submitted: October 14, 2005
Filed: May 16, 2006
___________
Before BYE, BEAM, and SMITH, Circuit Judges.
___________
BYE, Circuit Judge.
Canadian Pacific Railway Company (CP Rail) appeals the district court’s
orders allowing the Lundeens to amend their complaint and remanding the case to
state court. We reverse and remand.
I
This action was originally filed by the Lundeens against CP Rail in Minnesota
state court. They sued for personal injuries and property damages suffered as a result
of a CP Rail freight train derailment in North Dakota. CP Rail removed to the United
States District Court for the District of Minnesota based on federal question
jurisdiction. The Lundeens amended their complaint in an attempt to remove the
federal question. The district court declined to exercise its discretionary jurisdiction
over what it construed to be remaining state law claims and remanded to state court.
CP Rail appealed, challenging the order allowing the Lundeens to amend their
complaint and the remand as improper forum shopping. Regardless of the merits of
the forum-shopping argument, we note the amended complaint continues to claim,
among other things, CP Rail negligently inspected their tracks as shown by failing to
comply with the rules and regulations of the Federal Railroad Administration (FRA),
and we thus hold the district court continues to have jurisdiction through complete
preemption of the state law claim of negligent inspection.
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II
A question of subject-matter jurisdiction may be raised sua sponte at any time.
Long v. Area Manager, Bureau of Reclamation, 236 F.3d 910, 916 (8th Cir. 2001)
(citation omitted). Generally, a plaintiff can avoid removal to federal court by
alleging only state law claims. Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d
536, 542 (8th Cir. 1996) (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987)). However, there are exceptions to this general rule. One basis for removal
is federal question jurisdiction. See 28 U.S.C. § 1441. A federal question is raised
in “those cases in which a well-pleaded complaint establishes either that federal law
creates the cause of action or that the plaintiff’s right to relief necessarily depends on
resolution of a substantial question of federal law.” Franchise Tax Bd. v. Constr.
Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983) (emphasis added). Additionally
“complete” preemption is an exception to the well-pleaded complaint rule and, unlike
preemption as a defense, is a basis for federal jurisdiction. Gaming Corp., 88 F.3d at
543.
Congressional intent is the “ultimate touchstone” guiding preemption analysis.
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45 (1987) (citations omitted). “If the
statute contains an express preemption clause, then the statutory construction should
center on its plain meaning as the best evidence of Congress’s preemptive intent.”
Peters v. Union Pac. R.R., 80 F.3d 257, 261 (8th Cir. 1996). Here, the Lundeens
assert in part CP Rail negligently inspected railroad tracks, so we look to the Federal
Railroad Safety Act (FRSA), 49 U.S.C. § 20101 et. seq., and the extent to which
relevant regulations adopted pursuant to it address negligent track inspection.
The preemptive effect of the FRSA is specified in 49 U.S.C. § 201061:
1
Although the current version of the FRSA’s preemption clause is worded
slightly differently from the original version, we have noted the two versions are
“identical in substance.” Cearley v. Gen. Am. Transp. Corp., 186 F.3d 887, 890 n.5
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Laws, regulations, and orders related to railroad safety and laws,
regulations, and orders related to railroad security shall be nationally
uniform to the extent practicable. A State may adopt or continue in force
a law, regulation, or order related to railroad safety or security until the
Secretary of Transportation (with respect to railroad safety matters), or
the Secretary of Homeland Security (with respect to railroad security
matters), prescribes a regulation or issues an order covering the subject
matter of the State requirement. A State may adopt or continue in force
an additional or more stringent law, regulation, or order related to
railroad safety or security when the law, regulation, or order--
(1) is necessary to eliminate or reduce an essentially local safety or
security hazard;
(2) is not incompatible with a law, regulation, or order of the United
States Government; and
(3) does not unreasonably burden interstate commerce.
On the one hand, Congress created the FRSA to ensure railroad safety would
be “nationally uniform to the extent practicable” and “‘[t]hese statutory provisions
evince . . . a ‘total preemptive intent.’’” Peters, 80 F.3d at 262 (quoting Nat’l Ass’n
of Regulatory Util. Comm’rs v. Coleman, 542 F.2d 11, 13 (3d Cir. 1976)). On the
other hand, the preemption provision is “‘employed within a provision that displays
considerable solicitude for state law in that its express pre-emption clause is both
prefaced and succeeded by express savings clauses.’” Chapman v. LabOne, 390 F.3d
620, 626-27 (8th Cir. 2004) (quoting CSX Transp. v. Easterwood, 507 U.S. 658, 665
(1993)).
This circuit has addressed complete preemption in the context of the FRSA on
two occasions: Chapman and Peters. In Peters we found complete preemption:
“Congress has expressly preempted state laws affecting railroad safety where the
Secretary of Transportation has promulgated regulations,” as confirmed by “[t]he
FRSA regulations explicitly set[ting] out a comprehensive administrative adjudication
system for handling certification disputes,” which “directly apply to Peters’ [state law]
(8th Cir. 1999).
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conversion claim.”2 390 F.3d at 262. Thus, we held, “[a]ny issue raised in this area
is a federal issue justifying removal.” Id. In Chapman, however, we found no
preemption as to common-law claims arising from alleged deficient performance in
the drug testing process because “the applicable statute and regulations concerning
drug testing do not establish an intent to preempt the substantive common law at
issue,” where the FRA’s drug testing regulations included an anti-waiver provision.3
2
The administrative adjudication is described as:
Pursuant to § 434, the Secretary of Transportation issued
preemptive regulations concerning engineer certification. Included in
these regulations is a specific, detailed scheme setting out dispute
resolution procedures. The regulations establish a review board to
consider petitions challenging a railroad’s denial of certification or
recertification, or revocation of certification. Any person denied
certification can petition the Locomotive Engineer Review Board
(Board) to determine whether the denial was improper. Any party
adversely affected by the Board’s decision has a right of appeal. This
“comprehensive remedial scheme . . . serves to confirm [the FRSA’s]
preemptive scope.”
Peters, 80 F.3d at 261 (quoting Rayner v. Smirl, 873 F.2d 60, 65 (4th Cir. 1989))
(citations omitted).
3
The anti-waiver provision reads:
An employee required to participate in body fluid testing . . . shall . . .
evidence consent to taking of samples . . . . The employee is not required
to execute any document or clause waiving rights that the employee
would otherwise have against the employer, and any such waiver is void.
The employee may not be required to waive liability with respect to
negligence on the part of any person participating in the collection,
handling, or analysis of the specimen or to indemnify any person for the
negligence of others.
Department of Transportation Alcohol/Drug Regulations, 54 Fed. Reg. 53,261 (Dec.
27, 1989); see also 49 C.F.R. 219.11(d) (1989).
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390 F.3d at 628-29. Because we found no preemption, we reasoned there was thus no
complete preemption. Id. at 629.4 We distinguished Peters by noting: “[u]nlike the
drug testing regulations, the rules at issue in Peters did not contain a provision that
could be construed as a savings clause through which the Secretary preserved state
common-law claims,” and in Peters “the comprehensive administrative adjudication
system for handling certification disputes . . . influenced our court’s complete
preemption analysis.” Id. at 628, 630.
Given that the FRSA preemption clauses are substantively identical in Peters
and Chapman, and our finding complete preemption in the former but not the latter
by distinguishing the regulations at issue in the cases, complete preemption turns first
on the Secretary of Transportation’s regulations “covering the subject matter of the
State Requirement” and then any given regulation’s solicitude for state law. See 49
U.S.C. § 20106. Again, for example, the drug-testing regulations at issue in Chapman
contained an anti-waiver provision which displayed a “solicitude for state common
law distinguish[ing it] . . . from the [regulations establishing a] comprehensive
4
We also noted the FRSA does not “provide[] a private right of action for a
person aggrieved by negligence in the analysis of a drug test, and the absence of an
alternative cause of action militates against a finding of complete preemption.” 390
F.3d at 629. However, our statement was dicta in light of our holding earlier in the
opinion there was no complete preemption because not even regular preemption lay.
Id. at 629. Compare Gaming Corp., 88 F.3d at 547, which stated:
The issue of whether complete preemption exists is separate from the
issue of whether a private remedy is created under a federal statute.
Caterpillar Inc. v. Williams, 482 U.S. 386, 391 n.4, 96 L. Ed. 2d 318,
107 S. Ct. 2425 (1987). Complete preemption can sometimes lead to
dismissal of all claims in a case. Although courts may be reluctant to
conclude that Congress intended plaintiffs to be left without recourse,
see M. Nahas & Co., Inc. v. First National Bank of Hot Springs, 930
F.2d 608, 612 (8th Cir. 1991), the intent of Congress is what controls.
Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 45, 95 L. Ed. 2d 39,
107 S. Ct. 1549 (1987) (citations omitted).
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administrative adjudication system for handling certification disputes that influenced
our court’s complete preemption analysis in Peters.” 390 F.3d at 630.
In this case, the Lundeens bring claims based in part on negligent inspection of
railroad track. FRSA track inspection regulations lack the solicitude for state law
demonstrated by the anti-waiver clause in Chapman. This situation is more akin to
our discussion in In re Derailment Cases, 416 F.3d 787 (8th Cir. 2005), involving
inspection of railroad freight cars. We found preemption where:
The FRA has adopted regulations that require inspections of freight cars
at each location where they are placed in a train. Railroads must
designate inspectors who “have demonstrated to the railroad a
knowledge and ability to inspect railroad freight cars for compliance
with the [FRA regulations].” The FRA’s regulations specify that a
railroad may not place or continue in service a car that, inter alia, has a
defective coupler or a defective draft key retainer assembly.
The regulations also establish a “national railroad safety program”
intended “to promote safety in all areas of railroad operations in order to
reduce deaths, injuries and damage to property resulting from railroad
accidents.” Federal and state inspectors “determine the extent to which
the railroads, shippers, and manufacturers have fulfilled their obligations
with respect to inspection, maintenance, training, and supervision.”
Inspectors visit rail yards to ensure compliance with the regulations and
railroads face civil penalties for violations. . . .
. . . It is clear that the FRA’s regulations are intended to prevent
negligent inspection by setting forth minimum qualifications for
inspectors, specifying certain aspects of freight cars that must be
inspected, providing agency monitoring of the inspectors, and
establishing a civil enforcement regime. These intentions are buttressed
by the FRA’s inspection manual for federal and state inspectors.
Further, there is no indication that the FRA meant to leave open a state
tort cause of action to deter negligent inspection. . . . Accordingly, we
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conclude that Plaintiffs’ negligent inspection claims are preempted by
the FRA’s regulations.
In re Derailment Cases, 416 F.3d at 793-794 (citations and footnotes omitted). We
distinguished Chapman by noting the regulations there “specifically contemplate[d]
the existence of a common-law cause of action for negligence.” Id. at 794.
Similarly, federal regulations establish a specific inspection protocol including
how, 49 C.F.R. § 213.233(b), when, §§ 213.233(c) & .237(a)-(c), and by whom,
§§ 212.203, 213.7 & .233(a), track inspections must be conducted; the regulations
establish a national railroad safety program intended to promote safety in all areas of
railroad operations, § 212.101(a); federal and state inspectors determine the extent to
which the railroads, shippers, and manufacturers have fulfilled their obligations with
respect to, among other things, inspection, § 212.101(b)(1); and railroads face civil
penalties for violations, § 213 App. B. It is clear the FRA regulations are intended to
prevent negligent track inspection and there is no indication the FRA meant to leave
open a state law cause of action.
We note the FRSA’s preemption clause is employed within a provision that
displays considerable solicitude for state law in that its express preemption clause is
both prefaced and succeeded by express savings clauses, and we also note In re
Derailment was a conflict rather than complete preemption case. Nonetheless, where
we find the Lundeens’ negligent inspection claims preempted following the logic in
In Re Derailment and where it is both clear the regulations at issue are intended to
prevent negligent track inspection nationally and contain no savings clause (so there
is thus no indication the FRA meant to leave open a state law cause of action), absent
en banc review we are bound by our decision in Peters to find complete, jurisdictional,
preemption. The district court therefore has subject-matter jurisdiction in the instant
case and improperly remanded the case to state court.
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III
Based on the foregoing, this case is reversed and remanded for proceedings
consistent with this opinion.
______________________________
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