Filed 04/06/20 by Cler k of Supreme Court



### IN THE SUPREME COURT STATE OF NORTH DAKOTA

2020 ND 75

Tarryl Joyce, individually, and as Special

Administrator of the Esta te of Vera Mitchell, aka Vera Delores (Kilen) Jo yce, aka Vera Delores Joyce, aka Vera Delores Kilen, aka Vera K. Mitchell, aka Vera J. Mitchell, aka Vera Joyce Mitchell and aka Vera D. Mitchell, and First International Bank & Trust, Personal Represen tative of the Estate of Vera Mitchell Plaintiffs and Appellants

v. Steven R. Joyce, De fendant and Appellee

No. 20190224

Appeal from the District Court of Mo untrail County, North Central Judicial District, the Honorable Ri chard L. Hagar, Judge.

AFFIRMED.

Opinion of the Court byVandeWalle, Justice.

Dan D. Plambeck (argued) , and Peter E. Karlsson (o n brief), Moorhead, MN, for plaintiff and appellant Tarryl Joyce.

Timothy G. Richard (on brief), Fargo, ND, for plaintiff and appellant First International Bank & Trust.

Brian W. Hankla, Minot, ND, for defendant and appellee.1 Joyce v. Joyce

No. 20190224

VandeWalle, Justice.

Tarryl Joyce appealed from a distri ct court judgment granting Steven Joyce’s motion for dismissal of Tarryl Jo yce’s claims against him for actions he took while acting as Vera Mitche ll’s attorney-in-fa ct. We affirm.

I

This litigation involves a dispute over mineral inte rests located in Mountrail County and other property owne d by Vera Mitche ll and her estate. On October 10, 2006, Mitchell executed a durable power of attorney appointing her son, Steven Joyce, as attorney-in- fact. Mitchell executed a last will and testament the same day. In 2008, due to dementia and declin ing mental health, Steven Joyce moved Mitchell from an assi sted living facility in Grand Forks, North Dakota, to a memory care facility in Carrolton , Texas, near his home.

On September 16, 2011, Steven Joyc e, as Mitchell’s attorney-in-fact, executed and recorded a quit claim deed transferring all of Mitchell’s mineral
interests to himself. Steven Joyce also wrote se veral checks to himself and others and made purchases using Mitche ll’s Wells Fargo checking account as Mitchell’s attorney-in-fact. Additiona lly, Tarryl Joyce alleges Steven Joyce made investments and purchased pr operty using Mitchell’s assets.

Vera Mitchell died on December 19, 2017. Tarryl Joyce was appointed by the district court for Mountrail County as special administrator of Mitchell’s estate. Tarryl Joyce reques ted an accounting from St even Joyce of Mitchell’s assets, specifically includ ing Mitchell’s mineral intere sts. Steven Joyce told Tarryl Joyce that he had sold Mitchell’ s mineral interests and that Mitchell’s assets were depleted due to costs incurred for Mitchell’s stay at the memory care facility.

In March 2018, Tarryl Joyce commen ced suit against Steven Joyce claiming the quit claim deed transfe rring Mitchell’s mine ral interests to Steven Joyce was invalid, Tarryl Joyce was entitled to an accounting of2 Mitchell’s estate from Steven Joyce, an d Steven Joyce breached his duty of trust and loyalty. Steven Joyce answered and counterclaimed. In October 2018, Tarryl Joyce moved to amend her compla int to assert a cl aim for exemplary damages and for partial summary judgment. Tarryl Joyce’s appointment as special administrator was terminated due to conflicts of interest. First
International Bank & Trust was appointed to be the personal representative of Mitchell’s estate.

On November 20, 2018, the parties attended mediation and reached a settlement agreement. The settlement agreement read in its entirety:

The parties agree that the matter entitled Tarryl Joyce individually and First Internatio nal Bank & Trust as Personal Representative of the Estate of Ve ra Mitchell, plaintiffs, v. Steven R. Joyce, defendant, is sett led on the follo wing basis:

a. The defendant shall pay to Tari Joyce the sum of $600,000 in accordance wi th the payment schedule below. Defendant shall co nvey to Tari Joyce an undivided one-half interest in all minera l interests.

b. This settlement is a full and complete re solution of all of the issues between th e parties in this action.

c. This settlement is a bi nding agreement between the parties. The terms of th e settlement shall be kept confidential by the parties.

d. It is understood by the pa rties that the mediator has no duty to protect their in terests; further, that the agreement may adversely a ffect their rights; and the parties should consult an attorney before signing this agreement, if they are un certain of their rights. The parties understand that ce rtain additional mutually acceptable documents shall be required.

1. $15,000 by Dec 1, 2018 2. $35,000 upon dismissal of the Civil Action 3. $200,000 on or before Jan 15, 2019.3 4. $50,000 per year fo r 7 years beginning January 15, 2020 and continuingon the 15th day of each January thereafteruntil January 15, 2026. 5. 2018 suspended royalt y payments shall be paid to Tari Joyce 6. All payments shall be secured by 2nd mortgage against Defendant’s house and Defendant’s one- half interest in the mineral interests.

The settlement agreement was dated an d was signed by Tarryl Joyce and Steven Joyce and their attorneys.

Soon after the parties agreed to th e settlement, Tarryl Joyce’s attorney contacted a Texas attorney about obta ining a second mort gage on Steven Joyce’s home as security. T he Texas attorney informed Tarryl Joyce’s attorney that a second mortgage against Steven Joyce’s home would be unenforceable
under Texas law. After le arning the second mortgage may be invalid under Texas law, Tarryl Joyce’s attorney sent an email to Steven Joyce’s attorney informing him of the issue. Steven Joyce’ s attorney replied byletter expressing Steven Joyce’s willingne ss to perform the obligat ions set forth in the settlement agreement. Th e letter further stated:

[T]o the extent the above items ma y not be accepted or resolved, the Settlement Agreement signed at the time of the mediation does provide that the settlement was a full and complete resolution of all of the issues between the part ies and that the settlement was a binding agreement, and it would be Steve’s intent to enforce the terms of the Settlem ent Agreement signed by the parties.

Tarryl Joyce’s attorney re plied by stating there was no binding settlement agreement because an essential term of the agreement—the second mortgage—was unenforceable.

Because Steven Joyce believed the parties had reached a valid and enforceable settlement, he moved the dist rict court for an “Entry of Order for Judgment of Dismissal.” In her answ er brief, Tarryl Joyce argued the settlement agreement was unenforceable because th e second mortgage was
invalid under Texas law. Tarryl Joyce’s argument was based on the4 information she received from the Texas attorney. Tarryl Joyce also stated she made Steven Joyce and hi s attorney aware of the si tuation and the parties were involved in ong oing negotiations.

On March 26, 2019, the di strict court ordered the calendar control clerk
to schedule and notice a motion hearing “at which time the Court [would] hear oral arguments on Steven’s Motion for Entry of Order for Judgment of Dismissal; Tarryl’s Motion for Parti al Summary Judgment; and Tarryl’s Motion to Amend Complaint. ” Neither party requested a hearing, and after the court required a hearing, neither party requested to introduc e evidence at the hearing.

A hearing was held on May 5, 2019. The three pending motions were argued by each party’s resp ective attorney. Besides havi ng been told by a Texas attorney that the second mortgage wa s invalid under Texas law, Tarryl Joyce provided no additional ev idence that the second mo rtgage was invalid under Texas law and did not cite or provide th e court with the applicable provisions of Texas law. The only ev idence Tarryl Joyc e provided indicating the second mortgage was a material term of the se ttlement agreement was that the second mortgage was specifically negotiat ed. Tarryl Joyce did not present any
evidence of the value of the second mort gage, the value of the mineral interests
that also acted as securi ty, or the extent of the negotiations involving the second mortgage. In additi on to arguing the case should not be dismissed
because the settlement was not a binding agreement, Tarryl Joyce questioned the procedural posture of Steven Joyce’s motion for dismissal.

No briefs were requested by the cour t nor did the partie s request to file briefs after the May 5 heari ng. Having been presented with no evidence other than conclusory, hea rsay statements from a Texas attorney that the second mortgage was invalid under Texas l aw, the court found the settlement agreement to be a binding contract. On May 23, the district court issued an order granting Steven Joyce’s motion to dismiss and entered judgment.

On appeal, Tarryl Joyce argues there exists a mutual mistake of fact between the parties as to the validity of the seco nd mortgage requiring5 rescission of the settlement agreement. Tarryl Joyce further argues the district court erred in holding a hearing when neither part y requested a hearing, and erred by declining to inform itself on Texas la w and by not requesting the parties inform the court on Texas law. Tarryl Joyce al so argues St even Joyce’s motion for dismissal was procedurally improper in a number of ways.

II

Tarryl Joyce argues that the district court erred by holding a hearing and granting Steven Joyce’ s motion to dismiss, wh ich Tarryl Joyce contends was improperly noticed, improperly served, and procedurally defective.

A

Tarryl Joyce contends the district co urt erred by holding a hearing when no party requested a hear ing. Under N.D.R.Ct. 3.2(b): “After reviewing the parties’ submissions, the court may re quire oral argument and may allow or require evidence on a motion .” A plain reading of Rule 3.2(b) allows the district court to require a hearin g be held even if no party requests a hearing. See
Anton v. Anton , 442 N.W.2d 445, 446 (N.D. 1989) (interpreting previous
version of Rule 3.2 contai ning substantively similar language as the current version of Rule 3.2). A dist rict court’s decision whethe r to require a hearing is discretionary, which we review for an abuse of discretion. See State v. Krous

, 2004 ND 136, ¶ 10, 681 N.W.2d 822.

In opposing Steven Joyce’s motion to dismiss, Tarryl Joyce argues the settlement agreement was unenforceable because of the parties’ mutually
mistaken belief that a material term of the settlement ag reement was valid. Provided with Tarryl Joyce’ s opposition to Steven Jo yce’s motion to dismiss and her reasons for opposing the motion , the district cour t did not abuse its discretion by requiring a hearing.

B

Tarryl Joyce argues Steven Joyce’s motion to dismiss was improperly
noticed because he did not file and serve a reply brief. Under N.D.R.Ct. 3.2(a)(2), “The moving part y may serve and file a repl y brief within seven days6 after service of the answer brief.” Tarry l Joyce concedes that Steven Joyce was under no obligation under Rule 3.2(a)(2 ) to file and serve a reply brief. However, Tarryl Joyce contends that be cause Steven Joyce did not file and serve a reply brief, she was “unfairly surprised” at the May 5 hearing that Steven Joyce rebutted her argument conc erning the validity of the second mortgage in the sett lement agreement.

Prior to the hearing, the parties’ attorneys had exchanged letters concerning the validity of the second mortgage under Texas law. After Tarryl Joyce’s attorney initially raised the issu e of the validity of the second mortgage, Steven Joyce’s attorney se nt a reply letter stating “the settlement was a full and complete resolution of all of the issues between the pa rties and that the settlement was a binding agreement”; “it wo uld be Steve’s intent to enforce the terms of the Settlement Ag reement signed by the pa rties”; and Steven Joyce was willing to perform his ob ligations set forth in th e settlement agreement. Steven Joyce did not withdraw his motion to dismiss after the validity of the second mortgage had become an issue or after the parties had discussed the issue. Rather, he maintained that the settlement agreem ent was valid and enforceable. Tarryl Joyce was provided sufficient notice that Steven Joyce believed the settlement ag reement was a valid, final, and enforceable agreement. Tarryl Joyce was not “unfairly surprised” or prejudiced by Steven Joyce’s decision not to file and serve a reply brief, which he was under no obligation to do.

III

We next consider whether the district court was required to inform itself of Texas law or erred by not requesting counsels’ aid in obta ining the applicable Texas law. To address Tarryl Joyce’s ar guments, we must interpret N.D.C.C. § 31-10-03, the controlling au thority on the issue, in light of its intended purpose. Interpretation of statutes is a question of law, which we review de novo on appeal. State v. Chacano , 2012 ND 113, ¶ 10, 817 N.W.2d 369 (citing
State v. Ebertz , 2010 ND 79, ¶ 8, 782 N.W.2d 350).

Under N.D.C.C. § 31-10-03:7 Every court of this state shall take judicial notice of the common law and statutes of every state, territory, an d other jurisdiction of the United States. Such court may in form itself of the laws in such manner as it may deem proper an d may call upon counsel to aid it in obtaining such information. The determ ination of such laws shall be made by the court and not by the jury and shall be reviewable.

This Court has decided a limited numbe r of cases involving § 31-10-03. We have held that when a party offers no proof of the law of another state and does not ask the court to take judicial notice thereof, the law of other states will be presumed to be the same as the law of North Dakota. See State v. Red Arrow
Towbar Sales Co. , 298 N.W.2d 514, 516 (N.D. 1980); Schnoor v. Meinecke , 77 N.D. 96, 102, 40 N.W. 2d 803, 807-08 (1950); Haggard v. First Nat’l Bank of
Mandan , 72 N.D. 434, 444, 8 N.W.2d 5, 9 (1 942). Additionally, we have held a copy of the foreign law need not be in evidence before it is ju dicially noticed. City of Mandan v. Mertz , 399 N.W.2d 298, 299 (N.D. 1987); Walter v. N.D. State Highway Comm’r , 391 N.W.2d 155, 158 (N.D. 1986).

Section 31-10-03 is a modified version of the Uniform Judicial Notice of Foreign Law Act. North Dako ta Century Code provisio ns that are part of a
uniform statute “must be so construed as to effectuate its general purpose to
make uniform the law of th ose states which enact it.” N.D.C.C. § 1-02-13. The intended purpose of the Uniform Act was to eliminate the common law rule that foreign laws must be formally prov ed and could not be judicially noticed. C. T. Drechsler, Annotation, Uniform Judicial Not ice of Foreign Law Act , 23 A.L.R.2d 1437 § 1 (origina lly published in 1952). The Uniform Act includes provisions identical to thos e in § 31-10-03 stating that“[e]very court of this state shall take judicial notice of” the l aws of other states an d that “[t]he court may inform itself of such laws in such manner as it may deem proper, and the court may call upon counse l to aid it in obtain ing such information.” See Drechsler, supra , § 2. Because the applicable lang uage in § 31-10-03 is identical to the language of the Unif orm Act, we may look to th e decisions of other states that have adopted the Unif orm Act for guidance in ou r interpretation of § 31-
10-03.8 The question becomes whether § 31- 10-03 imposes an obligation on courts to take judicial noti ce of foreign laws on thei r own initiative. Other state courts interpreting the language of the Uniform Ac t have decided this precise question. “The general ru le seems to be that th e act merely removes the requirement of proving the foreign law bu t does not require the court to take judicial notice of foreign law suo moto.” 1 Drechsler, supra , § 10. In other words, the language in the Unifor m Act eliminates the need for the foreign law to be proven, but the foreign law must still be pleaded orpresented by the party relying on the foreign law. See id. (and cases cited ther ein); 29 Am. Jur. 2d Evidence § 117 (2020); 1 Clifford S. Fishman & Anne T. McKenna, Jones on Evidence § 2:74 (7th ed. 2 019); 2 Robert P. Moste ller et al., McCormick on Evidence § 335 (8th ed. 2020).

The decisions of other states are consistent with our decisions in Red
Arrow

, Schnoor , and Haggard . That is, unless pleaded or presented, § 31-10- 03 does not require courts to take judicial notice of foreign law on their own
initiative. As this Court has previously decided, foreign laws will be presumed
to be the same as the l aws of North Dakota unless a party asks the court to take judicial notice of the foreign law or unless proven otherwise. Such a rule
does not interfere with the intended purpose of § 31-10-03 and the Uniform Act, which is to eliminate the common law rule that foreign laws must be formally proven and may no t be judicially noticed.

How a party must request a court to ta ke judicial notice is a separate question. 2 As we have previously noted, No rth Dakota courts presume that foreign law is the same as the law of North Dakota when no proof of the foreign
law is offered and the court is not asked to take judicial notice of the foreign law. Other states have similarly decided cases. See Drechsler, supra , §§ 11-13 (and

1 “Suo moto” literally me ans “on its own motion.” See Asma T. Uddin, Free Speech and Public Order Exceptions: A Case for the U.S. Standard , 2015 BYU L. Rev. 727, 731 n.24 (2015).

2 Under N.D.C.C. § 31-10-04, which was also adopted from the Uniform Act, a party is required to give adverse parties notice either in the pleadings or otherwise that the foreign law will be presented to the court or that the court will be asked to take judi cial notice of the foreign law. Steven Joyce did not raise the issue of insufficient notice here, and the record indicates Steven Joyce had notice that Tarryl Joyce may have presented the foreign law to the court or asked the court to take judicial notice of the foreign law at the May 5 hearing.9 cases cited therein); 31A C. J.S. Evidence § 30 (2020). Based on our decisions in
Red Arrow

, Schnoor , and Haggard

, and the guidance offered by cases from other states, a party must plead or present th e foreign law by providing the authority to be relied upon, or a party must reques t the court take judicial notice of the foreign law. Without pleading or presen ting the foreign law or requesting the court take judicial notice of the foreign law, courts are not required to take judicial notice of the foreign law.

The question then becomes in what manner and to what extent a court
must inform itself of fore ign law after a party has pl eaded or presented foreign law or requested the court ta ke judicial notice of fore ign law. Section 31-10-03 states a court “may inform itself of th e laws in such manner as it may deem proper and may call upon c ounsel to aid it in obtain ing such information.” The plain language of th e statute gives the court wide discretion in how it informs itself of the foreign law, to what extent it informs itse lf of the foreign law, and
whether it seeks counsel’s assistance in obtaining the foreig n law. A court may rely on the authority provided to it by the parties, or a court may rely on any additional authority it deems prop er to obtain the foreign law. See Drechsler,

supra , § 14 (and cases cited therein). Bu t no matter how the court chooses to
inform itself of the fore ign law, once a party has pleaded or presented the foreign law or asked the court to take judi cial notice of the foreign law, it is the court’s duty to inform it self of the foreign law. See Revlett v. Louisville & N. R.
Co. , 51 N.E.2d 95, 98 (Ind. App. 1943). If the court de termines the information presented by the parties is incomplete or inadequate, the court may call upon
counsel to assist it in ob taining the foreign law. Furt hermore, consistent with the purpose of § 31-10-03 and the Unifor m Act, a party may present the foreign law to the court, and a cour t may take judicial notice of the foreign law, without the foreign law being in evidence or without the foreign law being submitted
in conformance with the rules of evidence. Mertz , 399 N.W.2d at 299; Walter

, 391 N.W.2d at 158; Drechsler, supra , § 15(b).

Tarryl Joyce argues “the District Co urt made no appa rent effort to determine the law of Texas concerning th e issue before dismi ssing the action,” and “the Court should have, at a minimu m, requested the parties to submit
briefs on the issue of Texas law and mo rtgages before making its decision.”10 Under § 31-10-03, the district court was under no obligat ion to apprise itself of Texas law. Rather, it was Tarryl Joyce’ s obligation to pres ent the applicable Texas law to the court. Tarryl Joyce’s co unsel simply inform ed the court that a Texas attorney informed him the second mortgage was invalid under Texas law. Tarryl Joyce did not pl ead or present the applicabl e Texas law to the court and did not request the cour t take judicial notice of the applicable Texas law. Our review of the entire record of the proceedings below indicates the applicable provisions of Texas law were not once cited or otherwise provided to
the district court. Becaus e Tarryl Joyce did not bring the applicable Texas law
to the attention of the cour t, the court did not err by declining to, on its own, delve into whether the second mortga ge was invalid unde r Texas law. And given the scant information Tarryl Joyce provided to the co urt on the Texas law, and the fact that she did not ask th e court to take judi cial notice of the Texas law, the district court did not err by declining to requ est counsels’ aid in obtaining the app licable Texas law.

Tarryl Joyce contends she did no t believe she could present the applicable Texas law to the court at the May 5 hearing because the court ordered a hearing at which time it would hear “oral argument,” and she believed the applicable pr ovision of Texas law was “evidence.” But, as previously discussed, the fo reign law need not be in evidence be fore it may be judicially noticed, and a party presenti ng foreign law to the court under the statute need not do so in conformitywith the rules of evidence.

Because Tarryl Joyce did not plead or present the applicable Texas law to the court, and did not request the cour t take judicial notice of the applicable Texas law, the district court did not err by declining to info rm itself of Texas law. For the same reasons, the district court did not err by declining to request
counsels’ aid in obta ining the applicable Texas law.

IV

Tarryl Joyce argues the district co urt erred in finding the settlement agreement between the part ies to be a binding cont ract and dismissing her claims based on there being a settlem ent agreement in pl ace. Tarryl Joyce alleges the parties were mu tually mistaken as to th e validity of the second11 mortgage and the settlemen t agreement was not intend ed as a final settlement agreement. Whether a contract is intended to be a co mplete, final, and binding agreement is a question of fact, which we review under th e clearly erroneous
standard. Lenthe Invs., Inc. v. Serv. Oil, Inc. , 2001 ND 187, ¶ 7, 636 N.W.2d 189. “[A] finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record,
we are left with a defini te and firm conviction a mistake has been made.” Id. (quoting Lonesome Dove Petroleum, Inc. v. Nelson , 2000 ND 104, ¶ 15, 611 N.W.2d 154).

Tarryl Joyce contends the settlement agreement was not intended as a final settlement agreement because of the handwritten provision in the agreement stating, “The pa rties understand that cert ain additional mutually acceptable documents shall be required.” However, the agreement also states: “This settlement is a full an d complete resolution of all of the issues between the parties in this acti on”; “This settlement is a binding agreement between the parties”; and cautions the partie s “the agreement may adversely affect their rights.” Tarryl Joyce provided no explanation to the district court why the handwritten provision requiring additional docu ments was significant or required the denial of Steven Joyc e’s motion. Additionally, Tarryl Joyce provided no evidence that the parties did not intend the agreement to be a complete, final, and binding agreement. The only evidence provided by Tarryl Joyce was conclusory, hearsay statement s from a Texas attorney who informed her attorney that the se cond mortgage was invalid under Texas law. There being no evidence providedby Tarryl Joyce to the co ntrary, the district court found the settlement agreemen t was a complete, final, and binding contract.

Tarryl Joyce also argues the settl ement agreement is unenforceable because of a mutually mistaken belief between the partie s that a material provision in the agreemen t—the second mortgage—was valid. In addition to providing no evidence that the second mortgage was invalid under Texas law, Tarryl Joyce provided no ev idence that the second mortgage was a material provision of the settlement agreement besides claiming th e second mortgage was specifically negotiated. She provided no evidence of the value of the second mortgage or the value of the mineral in terests that acted as security. Without12 knowing the value of the second mortgage or the mineral interests acting as security, or the extent of the negotiations for the seco nd mortgage, the district court was not provided with sufficient evidence to de termine the materiality of the second mortgage. Steven Joyce’s attorney informed Tarryl Joyce’s attorney by letter that he believed the settlement was a binding agreement, and it was Steven Joyce’s intent to enforce the agre ement. Being advised of Steven Joyce’s position, Tarryl Joyce should have requested an evid entiary hearing to prove the materiality of the second mortgage in addition to provid ing the court with the applicable Texas law.

Because Tarryl Joyce offered no eviden ce in support of her arguments,
all the district court was left with to rely on was a copy of the settlement agreement that was filed with Steven Joyce’s moti on for dismissal. The agreement explicitly states it was a full and complete resolution of all of the issues between the parties and was a bi nding agreement betw een the parties. The handwritten provision requiring additional docu ments did not state what documents were required and did not ma ke the agreement co ntingent on the procurement of the additi onal documents. Having to rely solely on the agreement, without any ev idence offered by Tarry l Joyce to support her position, the district court found th e settlement agreement was a binding
contract. The district cour t’s findings of fact ar e not clearly erroneous.

We decline to address whether th ere was a mutual mistake of fact 3 between the parties. Whether a mistake of fact or law exists is a question of fact, which we review un der the clearly erroneous standard of review. In re Matthew Larson Tr. Agreement , 2013 ND 85, ¶ 9, 831 N.W.2d 388; see also In re Estate of Vaage , 2016 ND 32, ¶ 28, 875 N.W.2d 527 (“Reformation on the basis of fraud or mistake is a question of fact subject to the clearly erroneous standard of review.”). Because Tarryl Joyce presen ted no evidence to the district court that the second mortgage was invalid under Texas law, we are

3 “Mistake of foreign laws is a mistake of fact.” N.D.C.C. § 9-03-15.13 not left with a definite and firm conviction the district court erred in not finding the presence of a mutu al mistake of fact.

V

The parties’ addition al arguments are eith er without merit or unnecessary to our de cision, and we decline to address them.

VI

The judgment is affirmed.

Gerald W. VandeWalle Daniel J. Crothers Jerod E. Tufte Carol Ronning Kapsner, S.J. Jon J. Jensen, C.J.

The Honorable Carol Ronning Kapsner, S. J., sitting in place of McEvers, J., disqualified.