Barfield v. Kershaw County Sheriff's Office

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1198
KENNETH MICHAEL BARFIELD,
Plaintiff - Appellant,
v.
KERSHAW COUNTY SHERIFF’S OFFICE; AARON THREATT,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Terry L. Wooten, District Judge.
(3:13-cv-03569-TLW)
Submitted: July 14, 2015 Decided: January 7, 2016
Before MOTZ, KEENAN, and DIAZ, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
Joshua S. Kendrick, KENDRICK & LEONARD, P.C., Greenville, South
Carolina, for Appellant. H. Thomas Morgan, Jr., DUPOSE-
ROBINSON, PC, Camden, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Michael Barfield appeals the district court’s grant
of summary judgment in favor of the municipal defendants, Deputy
Aaron Threatt and the Kershaw County Sheriff’s Office. For the
following reasons, we affirm the district court’s grant of
summary judgment on Barfield’s claims for illegal seizure and
false imprisonment, in violation of 42 U.S.C. § 1983 and the
South Carolina Tort Claims Act (“SCTCA”), S.C. Code Ann. § 15-
78-10 et seq., respectively, but reverse the grant of summary
judgment on his claims for excessive force and battery, in
violation of 42 U.S.C § 1983 and the SCTCA, respectively. We
remand those claims for trial.
I.
A.
There is no love lost between Kenneth Michael Barfield and
his neighbors, the Kellys, who have a nine-year history of
filing complaints against one another with the local police in
Kershaw County, South Carolina. On November 26, 2011, Ms. Kelly
called Kershaw County 911 dispatch, complaining that Barfield
was making loud noises in his yard. Aaron Threatt, a deputy
with Kershaw County Sheriff’s Office (“KCSO,” and together with
Threatt, “Appellees”), responded to the scene. Upon arrival,
Threatt spoke with Kelly. She told him Barfield was disturbing
2
her household by “yelling and cussing, raising cane.” J.A. 97.
Threatt did not see or hear Barfield yelling, but he remained in
the area to investigate further. Finding no disturbance,
Threatt left.
Later that evening, Kelly again called 911 dispatch and
spoke with Threatt directly. She complained that Barfield was
making loud noises in his yard and disturbing her household.
Threatt drove his patrol car toward Barfield’s home and
approached with his lights off and windows down. He parked his
patrol car a few hundred yards away from the home, near the end
of Barfield’s driveway, and turned off the ignition. Threatt
and Barfield offer different accounts of what happened next.
According to Threatt, he heard someone yelling in
Barfield’s backyard 1 and thought he recognized the voice as
Barfield’s. Threatt drove closer to the Barfield residence, got
out of his car, and walked around the property, knocking on the
house’s doors and windows in an attempt to locate Barfield.
While walking the property, Threatt requested that central
dispatch call Barfield’s home. When Barfield exited his home,
Threatt observed he had blood-shot eyes and was fully dressed,
1The “back” of the Barfield home faces the street so that
the backyard stood between Threatt’s patrol car and the house,
and the “front” of the Barfield home faces the opposite
direction, overlooking a pond. There is a shed-like structure
that sits between the house and the street in the backyard,
which obstructed Threatt’s view.
3
slurring his speech, and smelling of alcohol. Threatt arrested
Barfield for disorderly conduct. Threatt handcuffed Barfield,
who then refused to get in the patrol car. At some point,
Barfield fell to the ground and complained of chest pain.
Threatt called for paramedics, who checked Barfield’s vital
signs and found them to be normal. When asked if he wanted to
go to the hospital for medical treatment, Barfield refused.
Threatt subsequently put Barfield in handcuffs using two sets,
which makes it more comfortable for the restrained person.
Threatt double locked the cuffs so they would not get tighter
around Barfield’s wrists and checked the cuffs for fit. He then
transported Barfield to the Kershaw County Detention Center.
After removing the handcuffs at the detention center, Threatt
observed some redness on Barfield’s wrist area but no blood or
bruising.
Barfield tells a different story. He contends that he went
to sleep late that night and was awakened by “[s]omeone
beat[ing] about [his] house.” J.A. 109. The phone rang shortly
thereafter, and Barfield’s wife answered. The caller,
Barfield’s father, told her the police had called his home and
asked him to step outside, but when he went outside no one was
there. In the meantime, Barfield walked through the house to
investigate the source of the commotion. Barfield eventually
stepped out onto his wrap-around porch, wearing shorts and a t-
4
shirt, and walked through the porch toward Threatt’s patrol car.
He stepped off the porch, and while he was walking toward the
vehicle, he was “bulldogged from behind” 2 by Threatt. Id. at
111. Barfield characterizes the encounter as “violent.”
Appellant’s Br. 13–14. His wife corroborates his version of the
events and testified that Threatt came out from behind a tree
beside the Barfields’ porch and “hit [Barfield] like a football
player.” J.A. 121.
B.
Barfield was tried in state court on the disorderly conduct
offense, but the judge dismissed the case, finding that because
Threatt did not observe Barfield yelling in the yard, Threatt
lacked proper grounds to make a warrantless arrest.
Barfield then filed a complaint in the Kershaw County Court
of Common Pleas alleging three causes of action under 42 U.S.C.
§ 1983 against Threatt and KCSO, including illegal seizure,
excessive force, and failure to provide necessary medical
attention. Barfield also alleged common law claims for battery,
false imprisonment, and negligent hiring and retention against
KCSO under the South Carolina Tort Claims Act (“SCTCA”), S.C.
2
“Bulldogging” is a rodeo term, meaning “to throw (a steer)
by seizing the horns and twisting the neck.” Bulldog, Merriam-
Webster Dictionary (2015), http://www.merriam-
webster.com/dictionary/bulldog (saved as ECF opinion
attachment). We understand Barfield to mean that Threatt
tackled him to the ground. See J.A. 87.
5
Code Ann. § 15-78-10 et seq. Appellees removed the case to
federal court.
In the district court, Barfield entered a stipulation
dismissing all claims against KCSO except for the SCTCA battery
and false imprisonment claims, and all claims against Threatt
except for the § 1983 illegal seizure and excessive force
claims. Appellees moved for summary judgment on all claims,
with Threatt asserting qualified immunity and KCSO asserting
sovereign immunity.
The magistrate judge issued a Report and Recommendation
recommending the grant of summary judgment on all claims. With
respect to the § 1983 illegal seizure and SCTCA false
imprisonment claims, the magistrate judge found (1) Threatt had
probable cause to make a warrantless arrest of Barfield,
(2) Barfield did not proffer evidence of unnecessary force, and
(3) there was no genuine dispute as to any material fact. More
specifically, the magistrate judge found Barfield did not
present evidence to dispute that Threatt heard someone he
believed to be Barfield yelling from the Barfield property.
Thus, even if Barfield had not been yelling, the facts and
circumstances within Threatt’s knowledge—the Kelly complaint and
a yelling voice that sounded like Barfield—were sufficient to
support Threatt’s decision to arrest Barfield for disorderly
conduct.
6
Regarding the § 1983 excessive force and SCTCA battery
claims, the magistrate judge found that Threatt used reasonable
force in effecting Barfield’s arrest and, therefore, that KCSO
was not liable for battery under the SCTCA. The judge rejected
KCSO’s sovereign immunity defense, and finding no constitutional
injury, it did not further address Threatt’s qualified immunity
defense. Taking Barfield’s version of the facts as true, the
magistrate judge found the record was devoid of evidence that
tackling Barfield was unreasonable given that Threatt and
central dispatch unsuccessfully tried to contact Barfield and
that when Threatt saw Barfield, Barfield was fully dressed and
walking toward the patrol car. Because Barfield refused medical
treatment and the EMS response showed Barfield’s vitals were
normal, the magistrate judge concluded Barfield suffered
minimal, if any, injury. Thus, the judge found insufficient
evidence for a reasonable juror to conclude Threatt used
excessive force, and finding no unlawful force, the judge found
Barfield could not maintain his battery claim and recommended
the grant of summary judgment in favor of of Appellees.
Barfield objected to the magistrate judge’s findings, and
Appellees filed no objections. Primarily, Barfield argued the
judge did not construe the facts and all permissible inferences
in his favor. The district court, however, found the magistrate
judge’s legal analysis and conclusions “accurate[],” accepted
7
the Report and Recommendation and adopted its reasoning,
overruled Barfield’s objections, and granted summary judgment in
favor of Appellees. Additionally, the district court
acknowledged there was a factual dispute as to whether Barfield
was yelling outside of his home, but concluded that the dispute
was relevant only to Barfield’s guilt or innocence—not to
whether Threatt had probable cause for the arrest.
This appeal followed.
II.
We review a grant of summary judgment de novo. Stevenson
v. City of Seat Pleasant, 743 F.3d 411, 416 (4th Cir. 2014).
Summary judgment is appropriate only when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
considering a summary judgment motion, we take as true all of
the nonmovant’s evidence and draw all justifiable inferences in
his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). But “[o]nly disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that
are irrelevant or unnecessary will not be counted.” Id. at 248.
8
Qualified immunity “balances two important interests—the
need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their
duties reasonably.” Smith v. Ray, 781 F.3d 95, 100 (4th Cir.
2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
Thus, the defense “protects officers who commit constitutional
violations but who, in light of clearly established law, could
reasonably believe that their actions were lawful.” Henry v.
Purnell, 652 F.3d 524, 531 (4th Cir. 2011).
To determine whether an officer is entitled to summary
judgment on the basis of qualified immunity, we follow a two-
step inquiry. It is within the court’s discretion to decide
which of the two prongs should be addressed first. Pearson, 555
U.S. at 236; Raub v. Campbell, 785 F.3d 876, 881 (4th Cir. 2015)
(providing the court may address the analysis “in ‘the
order . . . that will best facilitate the fair and efficient
disposition of each case” (alteration in original) (quoting
Pearson, 555 U.S. at 242)). In light of the circumstances here,
we follow the bifurcated procedure announced in Saucier v. Katz:
First we decide whether the facts alleged, when viewed in the
light most favorable to the party asserting injury, show the
officer’s conduct violated a constitutional right; if so, we
then determine whether the right was clearly established at the
9
time of the violation “such that a reasonable person would have
known that his conduct was unconstitutional,” Smith, 781 F.3d at
100. 533 U.S. 194, 201 (2001). Barfield’s § 1983 claims
survive summary judgment only if we answer both questions in the
affirmative. See Pearson, 555 U.S. at 232.
III.
A.
We may resolve Barfield’s § 1983 and SCTCA claims for
illegal seizure and false imprisonment together. First we
decide whether Barfield’s § 1983 allegations establish a
constitutional injury. Under the Fourth Amendment, the people
are “to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures . . . and no Warrants
shall issue, but upon probable cause.” U.S. Const., amdt. IV.
“In conformity with the rule at common law, a warrantless arrest
by a law officer is reasonable under the Fourth Amendment where
there is probable cause to believe that a criminal offense has
been or is being committed.” Devenpeck v. Alford, 543 U.S. 146,
152 (2004); see also United States v. Johnson, 599 F.3d 339, 346
(4th Cir. 2010). The same is true under South Carolina law.
See Cahaly v. Larosa, 796 F.3d 399, 409 (4th Cir. 2015)
(rejecting a false imprisonment claim and holding “[t]he
fundamental issue in determining the lawfulness of an arrest is
10
whether there was probable cause to make the arrest” (quoting
Law v. S.C. Dep’t of Corr., 629 S.E.2d 642, 651 (S.C. 2006))).
The standard for probable cause is objective; it exists when “at
the time the arrest occurs, the facts and circumstances within
the officer’s knowledge would warrant the belief of a prudent
person that the arrestee had committed or was committing an
offense.” Johnson, 599 F.3d at 346 (quoting United States v.
Manbeck, 744 F.2d 360, 376 (4th Cir. 1984)); see also Jones v.
City of Columbia, 389 S.E.2d 662, 663 (S.C. 1990).
The district court properly found no Fourth Amendment
violation and no genuine dispute of material fact presenting an
issue for trial. The factual dispute here—whether Threatt heard
Barfield yelling in his yard—is relevant only to Barfield’s
guilt or innocence on the disorderly conduct offense. Taking
Barfield’s version of the facts as true, and construing all
permissible inferences in his favor, Barfield did not present
any evidence to dispute probable cause. The fact that, as the
Barfields contend, they were asleep when Threatt believed he
heard Barfield yelling, does not give rise to the reasonable
inference that no one was yelling. Barfield has never
maintained, until this appeal, that there was no one yelling.
Moreover, he cannot argue both that he was asleep and also that
he heard no yelling. Thus, even assuming Barfield was not
yelling, Threatt had probable cause to make a warrantless
11
arrest: at the time of the arrest, Threatt knew Barfield was
alleged to have been yelling in his backyard and Threatt claims
to have heard yelling in Barfield’s backyard. Threatt also
believed, based on prior interactions, the yelling voice
belonged to Barfield. Together, this knowledge warranted
Threatt’s objectively reasonable belief that Barfield was
breaching the peace, making the warrantless arrest lawful.
Appellees were therefore entitled to summary judgment as a
matter of law on Barfield’s § 1983 and SCTCA claims for illegal
seizure and false imprisonment. 3
B.
We may similarly resolve Barfield’s § 1983 and SCTCA claims
for excessive force and battery together. When an excessive
force claim arises in the context of an arrest, we analyze
whether the force used to effect the seizure was reasonable
under the Fourth Amendment. Graham v. Connor, 490 U.S. 386,
394-95 (1989). Here, too, the reasonableness inquiry is
objective: “the question is whether the officer[]’[s] actions
are ‘objectively reasonable’ in light of the facts and
circumstances confronting [him].” Id. at 397. The Supreme
3
Because we find that the facts alleged, if proven, do not
show that Threatt violated Barfield’s Fourth Amendment rights,
we do not reach the second prong of the qualified immunity
inquiry on the illegal seizure claim. Abney v. Coe, 493 F.3d
412, 415 (4th Cir. 2007) (“If [an officer] did not violate any
right, he is hardly in need of any immunity and the analysis
ends right then and there.”).
12
Court in Graham instructed courts to consider the following
factors when analyzing the reasonableness of the force applied:
(1) “the severity of the crime at issue,” (2) “whether the
suspect poses an immediate threat to the safety of the
officer[],” and (3) “whether he is actively resisting arrest or
attempting to evade arrest by flight.” Id. at 396. The
officer’s use of force “must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Wilson v. Flynn, 429 F.3d 465, 468 (4th
Cir. 2005) (quoting Graham, 490 U.S. at 396). “Ultimately, the
question to be decided is ‘whether the totality of the
circumstances justifie[s] a particular sort of . . . seizure.”
Smith, 781 F.3d at 101 (alteration and omission in original)
(quoting Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)).
Under South Carolina law, battery is defined as the “actual
infliction of any unlawful, unauthorized violence on the person
of another, irrespective of its degree.” Jones v. Winn-Dixie
Greenville, Inc., 456 S.E.2d 429, 432 (S.C. Ct. App. 1995).
Moreover, when a Sheriff’s deputy uses “force greater than is
reasonably necessary under the circumstances” the governmental
agency may be liable for battery. See Roberts v. City of Forest
Acres, 902 F. Supp. 662, 671–72 & n.2 (D.S.C. 1995). In turn,
13
in the case of a viable excessive force claim under § 1983,
Barfield’s SCTCA battery claim against the KCSO also survives. 4
1.
As with the illegal seizure and false imprisonment claims,
we first determine whether the facts alleged, when viewed in
favor of Barfield, show Threatt violated a constitutional right.
The district court analyzed Barfield’s allegations of excessive
force and battery and found Barfield presented insufficient
evidence to dispute the reasonableness of Threatt’s actions. We
disagree. Threatt and Barfield present wildly disparate
accounts of the arrest, putting in dispute the material facts at
issue regarding the necessity of force used in arresting
Barfield. Thus, taking Barfield’s account as true for purposes
of summary judgment and the first prong of qualified immunity,
Threatt, without provocation, hid behind a tree and “bulldogged”
Barfield from behind when he stepped off the porch. 5
4 KCSO did not object to the magistrate judge’s rejection of
the sovereign immunity defense, and the district court found no
error in the magistrate judge’s reasoning. Moreover, KCSO did
not argue sovereign immunity on appeal to this court. Thus,
KCSO waived that defense on appeal. See 28 U.S.C. § 636(b)(1);
Thomas v. Arn, 474 U.S. 140, 142 (1985); Wright v. Collins, 766
F.2d 841, 845 (4th Cir. 1985). In any case, we agree with the
district court’s rejection of KCSO’s sovereign immunity defense.
5 The district court reasoned that the conduct leading to
Barfield’s arrest—referring to evidence that Barfield “was
yelling, cursing, and using alcohol”—justified the force Threatt
used to restrain him. See J.A. 150–51. However, only Threatt’s
version of events presents such evidence. See id. To the
14
We cannot say that Threatt’s actions were objectively
reasonable in light of the circumstances presented. The first
Graham factor, the severity of the suspected crime, weighs in
favor of Barfield. Barfield was a misdemeanor suspect, believed
to have been breaching the peace by yelling on his private
property—a “nonviolent misdemeanor offense [that] was not of the
type that would give an officer any reason to believe that
[Barfield] was a potentially dangerous individual.” Smith, 781
F.3d at 102; see also Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir.
2008) (finding the first factor weighs in favor of the
plaintiff, who was arrested for driving while intoxicated,
because the offense “does not present a risk of danger to the
arresting officer that is presented when an officer confronts a
suspect engaged in an offense like robbery or assault”).
The second and third Graham factors also favor Barfield.
Drawing all permissible inferences in his favor, nothing in the
record supports the conclusion that he posed either a safety or
flight risk, or that he was actively resisting or evading
arrest. Indeed, “[t]here never has been any suggestion that
[Barfield] was armed or that [Threatt] suspected he might be,”
extent the district court took Threatt’s version of events as
true in ruling on summary judgment, this was error. See Smith,
781 F.3d at 103 (noting that Supreme Court precedent instructs
courts to draw inferences in favor of the plaintiff when the
officer’s testimony regarding his perceptions of the arrest is
contradicted by other evidence in the record).
15
Rowland v. Perry, 41 F.3d 167, 174 (4th Cir. 1994), or that
Barfield otherwise threatened the deputy, see Henry, 652 F.3d at
533. Although Barfield was walking in the direction of the
police car when Threatt tackled him, that action, alone, does
not present an immediate safety concern. See Deorle v.
Rutherford, 272 f.3d 1272, 1282–83 (9th Cir. 2001) (finding
suspect’s walking on his own property in direction of police,
even while holding a can or bottle, insufficient to justify
force deployed). Moreover, Barfield’s walking toward the police
car implies the opposite of a flight risk or an attempt to evade
arrest, particularly when Threatt had not announced himself or
otherwise attempted to arrest Barfield before tackling him.
Indeed, tackling Barfield was Threatt’s first and only means of
effecting the arrest. Finally, despite Barfield’s lack of
injury, Barfield and his wife’s corroborating testimony supports
his characterization of the arrest as violent. 6
6
The district court rejected Barfield’s characterizations
of Threatt’s conduct as being “violent [in] nature,” finding
that Barfield “introduced no evidence indicating that the force
Threatt used was anything other than ‘a good-faith effort to
maintain or restore discipline.’” J.A. 150 (citing Wilkins v.
Gaddy, 559 U.S. 34, 40 (2010)). This standard, however, is
applied when an excessive force claim is alleged under the
Eighth Amendment. Although we have found that “[t]he extent of
the plaintiff’s injury is also a relevant consideration” under
the Fourth Amendment to evaluate the reasonableness of the force
used in effecting an arrest, Jones v. Buchanan, 325 F.3d 520,
527 (4th Cir. 2003), injury is not a dispositive factor.
16
Because material facts are in dispute regarding the
reasonableness of Threatt’s use of force, and, if proven, the
facts alleged show that Threatt violated Barfield’s Fourth
Amendment rights, the district court erred in finding no
constitutional violation with regard to Barfield’s § 1983 claim
for excessive force and his SCTCA claim for battery. 7
2.
Having determined that Barfield’s allegations, if true,
establish a Fourth Amendment violation, we turn to whether
Barfield’s rights were “clearly established” at the time of the
violation. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Because “[q]ualified immunity shields an officer from suit
when []he makes a decision that, even if constitutionally
deficient, reasonably misapprehends the law governing the
circumstances . . . confronted,” we focus our inquiry on the
body of law at the time of the police conduct to determine
“whether the officer had fair notice that [the] conduct was
unlawful.” Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (citing
Saucier, 533 U.S. at 206). The clearly established inquiry
“must be undertaken in light of the specific context of the
case, not as a broad general proposition.” Id. (quoting Saucier,
7
Because KCSO is not entitled to immunity, the SCTCA
battery analysis ends with our conclusion that Barfield
presented sufficient evidence to show a genuine dispute of
material fact on that issue, and the grant of summary judgment
in favor of KCSO on that claim was erroneous.
17
533 U.S. at 201). But “[w]e do not require a case directly on
point” to find the requirement satisfied “so long as ‘existing
precedent [has] placed the statutory or constitutional question
beyond debate.’” Smith, 781 F.3d at 100 (alteration in
original) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083
(2011)). Ultimately, our clearly established determination is
based “on the simple fact [whether] the officer took a situation
where there obviously was no need for the use of any significant
force and yet took an unreasonably aggressive tack.” Id. at
104.
At the time of Threatt’s conduct, it was clearly
established in this more “particularized” sense that he was
violating Barfield’s Fourth Amendment rights. Saucier, 533 U.S.
at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). Although there is not a case directly on all fours
with the facts of this case, the law at the time of Threatt’s
conduct makes clear that in November 2011, a police officer’s
unprovoked tackling of a nonthreatening, nonresisting
misdemeanor suspect to effect his arrest violates the Fourth
Amendment. See Rowland, 41 F.3d at 172–74 (rejecting qualified
immunity where officer, unprovoked, attacked nonfleeing,
nondangerous misdemeanor suspect to subdue him); see also Smith,
781 F.3d at 104–06 (finding the same clearly established in
2006); accord Blankenhorn v. City of Orange, 485 F.3d 463, 481
18
(9th Cir. 2007) (finding it “clearly established” that tackling
a “relatively calm,” nonresistant misdemeanor suspect, without
first attempting a less violent means of arrest, violates the
suspect’s Fourth Amendment rights); Goodson v. City of Corpus
Christi, 202 F.3d 730, 733-34, 740 (5th Cir. 2000) (rejecting
qualified immunity when officers tackled nonfleeing citizen);
Landis v. Baker, 297 F. App’x 453, 464 (6th Cir. 2008) (finding
it clearly established that “forcefully tackling and pinning
down a suspect who was unarmed would constitute excessive
force”). As in Rowland, Threatt “took a situation where there
obviously was no need for the use of any significant force and
yet took an unreasonably aggressive tack.” Smith, 781 F.3d at
104. This objectively unreasonable application of force,
combined with the weakness of the Graham factors, puts the
“constitutional question beyond debate.” Id. at 100 (quoting
al-Kidd, 131 S. Ct. at 2083). As such, we have no trouble
finding the law clearly established at the time of Barfield’s
arrest. The district court thus erred in granting summary
judgment to Appellees on Barfield’s § 1983 and SCTCA claims for
excessive force and battery.
IV.
For the reasons stated, the judgment of the district court
is affirmed in part and reversed in part, and the case is
19
remanded for trial consistent with this opinion. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
20