### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60568

SANDI HATHCOTE VAUGHAN, Plaintiff-Appellant
v. CARLOCK NISSAN OF TUPELO, INCORPORATED; CORBETT HILL, Defendants-Appellees

Appeal from the United States District Court for the Northern District of Mississippi

Before DeMOSS, DENNIS, and PRADO, Circuit Judges. PER CURIAM: * Sandi Vaughan (“Vaughan”) argues that after she reported allegedly illegal activity at Carlock Nissan of Tupelo (“Carlock”), the car dealership where Vaughan worked, she was terminated in v i o l ation of the illegal-acts e xception to Mississippi’s at-will employment doctrine. She further argues that Corbett Hill (“Hill”), a supervisor at Carlock, t ortiously interfered w ith her employment at the dealership. She appeals the district court’s grant of summary judgment U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D February4, 2014 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-60568 Document: 00512521493 Page: 1 Date Filed: 02/04/2014No. 12-60568

in favor of both C a rlock and Hill. For th e reasons that f ollow, we AFFIRM in part and REVERSE and REMAND in part. BACKGROUND Vaughan was employed by Carlock to assist salespersons with contacting potential customers. On April 2, 2009, Vaughan contacted Ni s s a n USA (“Nissan”), C arlock’s corporate parent, to report concerns she had about certain practices at the dealership. U sing a pseudonym, Vaughan r eported that Carlock had: (1) e mployed a “clean sweep” program u nder whic h c u s t o m ers could pay between $400 and $800 to p urchase a car w ith a s ponsor a nd “repair” their credit within four to six months even though the customer’s c redit w as never repaired in the four-to-six-month time frame and the sponsor remained liable for the car loan; (2) advertised and sold one car as h aving an air conditioner when it did not; (3) changed certain financial documents to include additional charges to which the customers h ad not agreed, inc l uding “gap insurance” and extended warranties, a nd altered interest rates; and (4) advertised large prize giveaways that Carlock either never awarded or awarded only as “small” p rizes with little to no monetary value. Followi n g Vau gh an ’ s r e p o rt , seven Carlock employees were fired. On June 1 1 , 2 0 0 9, Vaughan contacted Nissan again t o complain that Hill k new of th e complained-of activities but had not been fired. On June 15, 2009, Hill learned of Vaughan’s complaints and fired Vaughan. The parties do not dispute that Vaughan’s reporting o f Carlock’s practices to Nissan factored into Hill’s decision to terminate her. Vaughan brought suit against Carlock and H ill, claiming that she was unlawfully t erminated under Mississippi’s illegal-acts exception to its at-will employment doctrine a nd a sserting tortious i n terference with e mployment. Carlock and Hill moved for s ummary judgment. The district granted summary j u d g m e nt f

o r the defendants, observing th at, to satisfy the illegal-acts exceptio n , 2 Case: 12-60568 Document: 00512521493 Page: 2 Date Filed: 02/04/2014No. 12-60568

Vaughan was required t o p rove t h a t t h a t c onduct she r e ported was in fact illegal. The c ourt determined that Vaughan had failed to properly support her

a s sertions that Carlock’s and Hill’s alleged acts and o missions constitut e d ac tu al illegal conduct under the illegal-acts e xception or that Hill fired her in bad faith. Vaughan timely appealed. STANDARD OF REVIEW We review the grant or denial o f a motion for summary de novo . Smith v. Am. Family Life Ass u r . Co . of Columbus , 584 F.3d 212, 215 (5th Cir. 2009). Summary judgment is appropr i ate only if there is no genuine issue a s to any material fact a nd the moving p a r t y i s e ntitled to judgment as a matter of law. F E D

. R. C I V

. P. 56(a). “[A] party seeking summary judgment

. . . bears the initial responsibility of informing the district court of the basis f o r i t s motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact .” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). The burden then shifts t o “the n onmoving party to go beyond the pleadings and b y her o wn affi d a v i t s , o r by the ‘depositions, answers to interrogatories, and admissions on file,’ d e signate ‘specific facts showing that there is a genuine issue for trial.’” I d. at 324; see F E D

. R. C I V

. P. 56(c)(1). “If a party fails to properly support an assertion of fact

. . . as required b y Rule 56(c), the court may[]

. . . grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it.” F E D

. R. C I V

. P. 56(e)(3). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences f rom th e facts are jury functio n s , not those of a judge, whether he is ruling o n a motion f or summary judgment or for a directed verdict.” Anderson v. Li b erty Lobby, Inc. , 477 U.S. 242, 255 (1986). Thus, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id.

3 Case: 12-60568 Document: 00512521493 Page: 3 Date Filed: 02/04/2014No. 12-60568 DISCUSSION I. Because this i s a diversity suit, w e apply state substantive law, in this
case, the law of Mississippi. See Krieser v. Hobbs , 166 F.3d 7 36, 739 (5th Cir. 1999). M ississippi is an at-will employment stat e , m eaning that an employee
may generally b e terminated with or w ithout j u s t i f i c ation. See Buchanan v. A meristar Casino Vicksburg, Inc. , 852 S o. 2d 25, 26 (Miss. 2003). In M cA r n v . Allied Bruce-Terminix Co. , however, the Mississippi Supreme Court c reated an exception to this rule based on public policy, which became known as the illegalacts exception and which provides that a n e m p l o y ee may recover damages for wrongful termination when he or she ( 1) refuses t o participate in an illegal act

or (2) reports an illegal act, a nd this forms the basis for termination. 626 So. 2d 603, 607 (Miss. 1993). “Applicability of the e xception d oes not require th a t a c rime has already been committed but it does require that the a c t s complained o f w arrant the imposition of criminal penalties, as opposed t o mere civil penalties.” Hammons

v. Fleetwood Homes of Miss., Inc. , 9 07 So. 2 d 357, 3 60 (Miss. App. 2004) (citation omitted) (citing Howell v. Operations M gmt. Int’l, I

nc. , 161 F. Supp. 2 d 713, 719 (N.D. Miss. 2 001); P

aracelsus Health Care C orp. v. Willard , 754 So. 2d 437, 443 (M i s s. 1999)). However, Mississippi law provides that, t o s ucceed under t h e illegal-act exception, a terminated employee must have r eported conduct that is actually illegal. See Wheeler v. BL Dev. Corp. , 4 15 F.3d 3 99, 401 ( 5th C ir. 2005). A t erminated employee’s “attempt t o equate an employee’s ‘good faith e ffort ’ in reporting illegal activity, which i s protected under the common law exception, with a good faith belief that illegal activity is taking p l ace is misplaced.” Id. In other words, “[a] plaintiff’s subjecti v e belief that the acts r eported were illegal does n ot satisfy McArn ; instead, the alleged act must a ctually be i llegal.”

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McGrath v. Empire Inv. Holdings, LLC, No. 1:11-CV-209-A-S, 2013 WL 85205, at *4 (N.D. Miss. Jan. 7, 2013) (citing Wheeler , 415 F.3d at 403). Carlock argued before the district c ourt that there w as n o genuine issue of m aterial fact that the c onduct Vaughan reported was not in fact illegal under Mississippi law. Therefore, in the c ontext of summary judgment, Va ughan was required to “go beyond the pleadi n g s and by her own affidavits, or by the ‘depositions, answers to i nterrogatories, and admissions o n file,’ designate ‘specific facts showing that there is a genuine issue f or trial,’” Celotex , 477 U.S. at 324, and establish that the activities she reported were actually illegal. Vaughan argues that she reported conduct that was actually ill e g a l a n d thus that she was protected from termination under McArn

. Specifically, Vaughan asserts that Carlock violated Mississippi law prohibiting (1) larceny, (2) uttering a forgery, (3) fraud by mail, and (4) false pretense. In the absence of adverse countervail i n g e vidence i n the record, Vaughan’s belief that the activities w e r e criminal and her mere c onclusory assertions that the activities

were actually illegal, however, does not satisfy McArn ’ s standard. Accordingly, and as discussed more fully below, we affirm the district court ’ s gr ant of summary judgment on these claims. A. Mississippi’s grand larceny statute states that “ [e]very person who shall be convicted of taking and carrying away, feloniously, the personal property of another, of the v alue of Five H undred Dollars ($500.00) or m ore, shall be guilty of grand larceny.” M I S S

. C O D E AN N

. § 9 7-1 7

- 4 1

. Mississippi’s petit larceny statute is violated when property valued u nder $500 has been stolen. Id. § 97-17-43. Vaughan’s o pening brief states o n l y that “[s]tealing is illegal under Mississippi law.” She does not identify what property was stolen or that it was done with the requisite i n t e n t

. More fundamentally, she failed to make this

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argument below. Before the district court, Vaugh a n d id not cite either Mississippi’s grand larceny statute or the state’s p e tit larceny statute. Nor did she discuss any authority a pplying e ither statute to explain how the conduct she reported was in fact a violation of Mississippi l aw. “Arguments not raised in the district court cannot be asserted for the first t i m e o n a p peal.” Greenberg v. Crossroads Sys., I

n c. , 364 F.3d 657, 669 (5th Cir. 2004). Accordingly, we decline to address Vaughan’s assertion that she reported larceny. B. Mississ i p p i ’ s prohibition on uttering a forgery is embodied in section 97-21-59 of the Mississippi code, which provides: Every person who shall be convicted of having uttered or published as true, a nd with i ntent t o defra u d , a ny forged, altered, or cou n t e r f e i t instrument, or any counterfeit gold or s ilver coin, th e forgery, altering, or counterfeiting of which i s d e c lared b y th e provisions of this chapter to be an offense, k n owing such instrument or coin to be forged, altered, or c ounterfeited, s hall s uffer th e punishment herein provided for forgery. M I S S

. C O D E AN N

. § 97-21-59. In context of this appeal, Carlock e mploy e e s committed the crime o f uttering a forgery if they (1) pub l ished as true, (2) a for g e d or altered document, (3) knowing that the document was forged or altered, and (4) had the intent to defraud. See id. Vaughan asserts that Carlock employees committed the crime of uttering

a forgery when they altered financial documents to include extended warranties and “gap” i nsurance coverage when the customer h ad not requested these things and by increasing the i nterest rate to more th an what the c ustomer had agreed to at the time of s ale. Vaugh a n , h o wever, has failed to adduce adverse countervailing evidence to show that there is a g enuine dispu t e a s t o any material fact, offering instead only unsubstantiated assertions that documents

were altered and failing to p rovide evidence that any particular d ocument was altered with the intent to defraud Carlock customers, as r equired by Mississippi

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law. In particular, Vaughan does not specify which d o c u ments were altered. Furthermore, and possibly because she was not part of the sales process between Carlock a nd its customers, Vaughn did not adduce evidence, as required under Rule 5 6(c), that she witnessed the sales transactions and th erefore could testify

as to the parties’ communications and actions that c ulminated in the illegal acts that Carlock employees allegedly committed. Accordingly, she l a cks first-hand knowledge of what customers agreed to and what the financial documents particular to each transaction ultimately provided. She h as therefore failed to demonstrate a g e nuine issue o f material f act that she reported conduct that was actually illegal under Mississippi law governing uttering a forgery, and thus summary judgment in Carlock’s favor, as permitted by Rule 56(e), w as appropriate. C. The Mississippi mail-fraud s tatute prohibits certain a ctions intentionally taken for pecuniary a dv antage “by means of false o r fraudulent pretenses, representations, o r promises.” M I S S

. C O D E

. AN N

. § 97-19-83(1). Va u gh a n asserts that Carlock committed f raud when it advertised, via U.S. m ail, that customers could win certain prizes, includi n g a n ew car if the key that was mailed to the
p otential customer unlocked the car in question. Vaughan reported that n o Carlock e mployee ever handed out any prize or, if s omeone did, the prizes were small and of little monetary value, exceeded by the shipping and handling fees prize recipients were required to pay. Carlock, however, presented evidence that the winning key was p laced in t h e m a i l a nd that the dealership could not guarantee that the recipient would actually present it and claim the prize. M oreover, Vaughan does not cite any authority providing that giving a prize that has little to no monetary value runs afoul of Mississippi’s m ail-fraud s tatute. Further, b ecause Vaughan has failed to show by adducing appropriate adverse c o untervailing evidence that Carlock

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intended to defraud its customers by making f alse representations, she failed to demonstrate a genuine i ssue of material fact regarding whether she reported conduct that was actually illegal under the mail-fraud st a tute. Summary judgment , a s p e rmitted b y Rule 56(e), was therefore properly granted with respect to this claim. D. Mississippi’s false-pretense law provides: Every person, who w ith intent to che a t o r defraud another, shall designedly, by color of any false token o r writing, or by a nother false pretense, obtain the signature of any person to any w r i t t e n inst r u m e n t , or obtain from any person any money, personal property, or valuable thing, w ith a value o f Five Hundred Dollars ($500.00) or more, upon conviction thereof s hall b e guilty o f a felony and punished by imprisonment in the State Penitentiary n ot exceeding ten (10) years, and by a fine not exceeding Ten Thousand Dollars ($10,000.00). M I S S

. C O D E AN N

. § 9 7-19-39(2). “The gravamen of the offense of false pretenses is a false represen t a t i o n o f a past or existing fact, made by [the] accused with knowledge of its falsity a nd with intent to deceive, a r e l i ance thereon, and the obtaining of something of value thereby without compensation.” P atton v. State , 34 So. 3d 563, 573 (Miss. 2010). Vaughan reported that Carlock had agreed to “repair” a customer’s credit in the course of four to s ix months in exchange f or $400 to $ 800 and a “sponsor” to co-sign the car loan; a nd agreed that after the customer’s credit w as repaired, the sponsor wou l d be relieved of his or her liability for the l o an, the c ustomer would be solely responsible for it, and that the i n t e r e s t rate on the loan would be reduced. Vaughan alleged that the credit scores o f the customer s a vailing themselves of this “clean sweep” program were not r e paired, that the s ponsors remained liable for the car loans, and that the customers’ i nterest rates were not lowered. Vaughan also r eported that Carlock agreed to pay off one customer’s

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traded-in v ehicle but f ailed to do so. Finally, Vaughan alleged that o ne car had been advertised and sold as having air conditioning when in fact it did not. However, Vaughan did not properly support her assertions of these facts,

or address Carlock’s c ontrary assertions of fact, as r equired by Rule 56(c), and the district court p roperly granted summary judgment in favor of Carlock as p e r mitted under these circumstances by Rule 56(e). Although Vaughn argue s that Carlock “f

a l sely” represented that the p r ogram would repair customers’ credit scores, she points to no evidence that this was Carlock’s plan, intention,

or expectation when it contracted with a particular customer. Nor did Vaughn provide any support for her assertions that C arlock intentionally f a i l e d to pay off the d ebt on traded-in cars. The same is true of Vaughan’s allegation that one
car was falsely sold a s having air conditioning because Vaughn failed to support her assertion of fact that the car was represented t o have a i r c onditioning by Carlock with the i ntent to defraud the customer. In fact, Hill stat e d i n h is deposition that this w a s a n honest mistake that was later corrrected, and Vaughan failed t o a d d r e ss Hill’s contrary a ssertion as required by Rule 56(c). Because Vaugha n f

a i l e d to properly support or a ddress f acts constituting the elements of t h e crime of false pretenses, the district did n ot err in granting Carlock summary judgment on these issues. II. Vaughan asserts that Hill c o m m i tted the Mississippi tort of tortious interference with employment when he terminated her employment, allegedly in bad faith. Specifically, s he allege d that Hill knew that she had reported conduct t o N i s san and that he fired her b ecause of what she reported. Hill, in contrast, contends that although he was aware that Vaughan had c omplained to Nissan, he did not know that he was a subject of Vaughan’s complaints and thus c ould not have f

ired Vaughan in bad faith. H ill, the moving party, has

a dduced record evidence—namely, his deposition—to d emonstrate wh a t h e
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c l a i m s i s the absence of a genuine issue of m aterial fact regarding whether he knew the contents of Vaughan’s complaints to Nissan and therefore could have terminated her in bad faith. Accordingly, it was incumbent on Vaughan to “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and a dmissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” C elotex , 477 U.S. at 324. We c onclude that Vau gh a n h as d one this. B ecause she h as d emonstrated the existence of a genuine issue of m aterial fact with respect to whether Hill terminated her in bad faith, summary judgment was not warranted. A. “One who intentiona l l y and i mproperly interferes with the performance of a contract between another and a third p erson by inducing or o therwise causing the third person not to perform the contract, is subject to liability to the other for pecuniary loss resulting to the other f rom the failure of the third person to perfor m the contract.” Shaw v . Burchfield , 481 So. 2d 247, 254-55 (Miss. 1985). To support her tortious i n terference with employment claim, Vaughan must establish that her terminati o n was (1) intentional and willful; (2) calculated to cause her damage; (3) done with the unlawful purpose of causing damage a nd loss, without right or justifiable cause on the part of the defendant;

a n d (4) resulted in actual damage a n d loss. M cClinton v . Delta Pride Catfish, Inc. , 792 So. 2d 968, 976 (Miss. 2001). The Mississippi Supreme Court has recognized that “a claim f or tortious interference with at-will contracts of employ ment i s viable in [Missisippi].” Levens v . Campbell , 733 So.2d 753, 760 (Miss. 1999). H owever, “one occupying

a position o f responsibility on behalf of another is privileged, within the scope of that responsibility a n d absent bad faith, t o interfere with his p rincipal’s contractual relationship with a third person.” Sh a w , 481 So. 2d at 255. Hill occupied a position of responsibility, acting on behalf o f Carlock, and thus was
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privileged to interfere with Vaughan’s employment unless he did so in bad faith

or outside the scope of his employment. See i d

. C onsequently, we must consider whether Vaughan has demonstrated a genuine issue o f material fact regarding whether Hill interfered with h er employment in bad f aith. Vaughan may satisfy this “bad faith exception” by showing that Hill acted with malice, in o ther words, that he terminat e d V a u gh an “ without right o r good cause .” Morrison v. Miss. Enter. for Tech. , 798 So. 2d 567, 575 (Miss. App. 2001). B. Vaughan presented evidence, in the form of h er affidavit, that on o r about April 2, 2009 she reported the conduct that she believed to be illegal to Nissan but, o ut of concern for her job, used a pseudonym to do so. R oughly three weeks later, seven C arlock e mployees, all of whom, a ccord i ng to Vaughan, were invo l v e d i n the r eported activities, w ere terminated. However, Hill was not among them. On or about April 30, 2009, Vaughan again c alled Nissan, stating, “you did not get them all,” and specifically named Hill. It seems that Vaughan again used a p seudonym. It was not until June 11, 2009, when Vaughan again called Nissan, that she identified herself. Four day later, she was terminated. She claims that on the day s he was fired, H ill told her that she had “no right to report these things to Nissan.” The evidence in the record also inclu d e s d eposition testimony from Hill stating that, at the time he terminated Vaughan, he knew that she had made a complaint of some sort to Nissan regarding Carlock. However, h e claimed that he did not know the contents of the complaint. He explained that h e f irst learned about Vaughan’s call to Nissan when somebody told him about it. That person had apparently r eceived some sort of report from Nissan. On learning of Vaughan’s c all to Nissan, H i l l c onfronted Vaughan a nd asked her if she had indeed complained t o Nissan, and, according t o Hill, she denied doing so. Hill said that he was lat e r h a n d e d “the actual complaint” a nd he again confronted

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Vaughan, at which point she confirmed that she had called Nissan. 1 Hill asserted that he never read the full complaint b ut i nstead, after receiving it, saw that it had Vaughan ’ s name at the v ery top and at that p o int, he purposefully stopped reading it and confronted Vaughan and t erminated her e mployment immediately. C. The district court determined that summary j udgment in H ill’s favor was warranted because Vaughan had failed to a dduce evidence that Hill knew that Vau gh a n h a d c o m p l ai n e d to Nissan specifically about him. However, Mi s s i s s ip p i law does not require this level of proof, and n either the district cou r t n o r Hill cited a n y case law in support o f that assertion. Rather, we conclude that Vaughan, relying on appropriate evidence as required by Rule 56(c), has created

a genuine issue of material f a c t r e g a r di ng whether Hill terminated her in bad faith—in o ther words, that Hill terminated Vau gh a n “ without right or good

cause”—which is all that Mississippi law r equires. See, e.g. , Morrison , 798 So. 2d at 575. It is undisputed that Vaughan’s reports to Nis s an were a factor in Hill’s decision to fire h e r (Hill explained as much in his deposition). Hill offered additional explanations for his decision, including cost cutting due to economic do w nturn , 2 th at Vau ghan complained to Nissan rather than raising her c oncerns with Hill first, 3 and tha t V a ughan, when first confronted about her call to

1 The record ref

lects that the com p laint Hill re ceived and the call log, d es cribing V aughan’s com plaints to N is s an, are d is tinct. For ins tance, the call log d oes not id e n t i f y Vaughan by nam e, w hereas H il l t e s t i f i e d that the com p laint he received w as a typ ew ritten d ocum ent f

rom N is s an w ith Vaughan’s nam e w ritten at the very top

.
2 H ill stated that only tw o em p loyees , Vaughan and her im m ed iate s up ervis or, J ef f Ad am s , w ere term inated due to f inancial reas ons . H e f urther t e s t i f

i e d that Ad am s w as s ubs equently rehired

.

3 Although H ill d es cribed a com p any p olicy d irecting em p loyees to rais e concerns f irs t w ith their im m ed iate s up ervis or and s econd w ith the com pany vice p res id ent ( H ill) , Vaughan 12 Case: 12-60568 Document: 00512521493 Page: 12 Date Filed: 02/04/2014No. 12-60568

Nissan, initially d enied it. Nevertheless, it is u n d i s p uted that Vaughan’s termination occurr e d four days after she c alled Nissan, identified herself, and specifically named Hill, as she ex p l a i n ed in h er affidavit. Furthermore, Vaughan specifically alleged in he r a f f i d avit that Hill, when terminating her, told her that she had “no right to report these things to Nissan.” Whet h e r to credit his alternative explanations—and, for that matter, whether to credit his assertion that he was unaware of the contents of Vaughan’s complaints because he did not r ead the document he was handed and that listed Vaughan’s name at th e t o p

—a s “ go o d c au s e s” withi n the meaning of Mississippi’s bad-faith exc e p ti o n involves credibility d etermi n ations inappropriate for summary judgment. See Reaves B rokerage C

o. v. Sunbe lt Fruit & Vegetable C o. , 336 F.3d 410, 412 (5th Cir. 2003) (noting that we “must review all of the evidence in the record, but make no credibility determinations or weigh any evidence”). “ I n r e viewing all the evidence, the court m ust disregar d all evidence favorable to the moving party that the j ury is not required to believe, and should give c redence to the evidence favoring the nonmoving party as well as evidence supporting the moving party that is uncontradicted and u nimpeached.” Id. at 413. Reading the record in the light most favorable to Vaughan, w e conclude that she has presented sufficient evidence to c reate a genuine issue of material fact with respect t o whether Hill fired her f

or exposing alleged l y i l l egal activities at the d ealership, which we think suffices as bad faith termination under Missis s i p pi law. Ultimately, of
course, it i s u p to the trier of fact to decide whose version of events should be believed.

tes tif ied that s he had never received a cop y of the em p loyee handbook

. F u r t h e r m o r e, Hill ad m itted that there w as no p olicy in the handbook p rohibiting em p loyees f rom calling N is s an d irectly. 13 Case: 12-60568 Document: 00512521493 Page: 13 Date Filed: 02/04/2014No. 12-60568 CONCLUSION For the foregoing reasons, we AFFIRM the district court’s grant of
summary j udgment in favor of Carlock w ith respect t o Vaughan’s claim that she satisfied Mississippi’s illegal-acts excepti o n . H o w ev e r , w e R EV E R S E th e di s trict court’s grant of summary judgment in favor o f Hi l l with r espect to Vaughan’s tortious interference with e mployment claim and REMAN D t he case to the district court for further proceedings not inconsistent with this opinion.

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