Mann v. Levin (2003-394); 177 Vt. 261; 861 A.2d 1138
2004 VT 100
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
2004 VT 100
Bette Mann and Kelley Mann Supreme Court
On Appeal from
v. Lamoille Superior Court
Diane Levin June Term, 2004
Edward J. Cashman, J.
Heather Rider Hammond and Robert F. O'Neill of Gravel and Shea, Burlington,
Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington, for
PRESENT: Amestoy, C.J., (FN1) Dooley, (FN2) Johnson, Skoglund and Reiber, JJ.
¶ 1. REIBER, J. In this appeal, we consider whether the trial
court erred in interpreting the terms of a restrictive covenant that
limited the "height" of any building on defendant Diane Levin's property to
that of a neighboring farmhouse. The trial court found that the covenant
was intended as a scenic easement, and thus, it restricted buildings from
exceeding the absolute elevation, or "ridge line," of the farmhouse.
Because Levin's building exceeded the ridge line by approximately seven
feet, the court granted permanent injunctive relief to plaintiffs Bette and
Kelly Mann, and ordered Levin to reduce the height of her building. Levin
appealed, arguing that the court erred in interpreting the covenant. We
¶ 2. Levin and the Manns own real property in Jeffersonville,
Vermont. The property is located along Route 108, and it is surrounded by
the mountain range that includes the Smuggler's Notch ski area and Mt.
Mansfield. Levin acquired title to her property as follows. In 1994,
Thomas Kontos subdivided property that he owned in Jeffersonville into
three parcels, Parcel 1A, 1B, and 1C. In December 1994, he sold Parcel 1A,
and a right of first refusal in Parcel 1B, to Levin and her then-husband,
Doug Walker. The deed contained numerous restrictions, including the
following covenant at issue in this appeal:
The 7.8 acre parcel [(Parcel 1A)] and the 3.2 acre parcel [(Parcel
1B)] retained by the Grantors herein shall both be restricted for
commercial or residential or light farming. Any building must be
limited to height no greater than the adjoining farmhouse (2 ½
stories). Specifically, steel-sided warehouse-type facilities are
excluded, along with mobile homes.
It is undisputed that the "adjoining farmhouse" referred to in the deed is
the Mannsview Inn, a bed and breakfast owned and operated by the Manns.
¶ 3. In March 1999, Levin and Walker divorced, and they divided
Parcel 1A into two lots. Walker retained approximately 3.05 acres, and
quit-claimed the remaining 4.89 acres to Levin. Levin's quit-claim deed
contained the building height restriction. In September 1999, Levin and
Walker exercised their option to purchase Parcel 1B. Within "ten minutes"
after purchasing the lot, Levin and Walker sold it to Demars Properties.
In December 2001, after a failed development attempt, Demars Properties
sold Parcel 1B to the Manns. Parcel 1B adjoins Walker's portion of Parcel
1A, which in turn adjoins Levin's property. The grade of Levin's property
is at a higher elevation than that of the Inn.
¶ 4. In the summer of 2001, Levin excavated her lot. She stripped
the top soil and brought in numerous loads of fill. In August 2002, she
began construction of a building. During the construction process, she
showed the Manns several drawings of her proposed building, and assured
them that her building would comply with the height restriction in the
deed. However, while Levin's building was being framed, and particularly
after the roof trusses were added, Walker and the Manns became increasingly
concerned that Levin's building would violate the height restriction. In
October 2002, Mrs. Mann wrote Levin a letter expressing her concerns, as
did Walker. Levin responded to Mrs. Mann by letter, asserting that her
home complied with the restrictive covenant.
¶ 5. In December 2002, the Manns filed suit against Levin, alleging
that she had violated the terms of the restrictive covenant, and seeking
permanent injunctive relief. Levin filed a counterclaim, alleging that she
had not violated the covenant, and that the Manns' claims were made solely
to interfere with the construction on her lot. On December 11, 2002, the
court held a hearing on the Manns' motion for a temporary restraining order
and preliminary injunction. The court concluded that the covenant appeared
to be ambiguous, and it ordered Levin not to increase the present height of
her building pending a trial on the merits.
¶ 6. In February 2003, the court held a trial, and made findings
on the record. The court found that the covenant was a scenic easement,
and the uncontradicted evidence established that "height" referred to the
ridge line of the Inn. The court explained that the parenthetical
reference to "2 ½ stories" was intended to identify the particular
farmhouse to which the deed referred. Although the court found that Levin
had attempted to frustrate the covenant, it could not establish the extent
to which her building exceeded the Inn's ridge line because the parties'
experts, apparently using the same mathematical formula, had reached
different results. To prevent future disputes, the court ordered the
evidence to remain open so that the ridge line height could be conclusively
established. The parties later submitted a joint expert report in which
the experts agreed that Levin's building exceeded the Inn's ridge line by
¶ 7. On April 30, 2003, the court held an additional factual
hearing, and closed the evidence. At the hearing, the court rejected
Levin's argument that her violation of the covenant was de minimis, or that
a balancing of the relative hardships weighed in her favor. In response to
the Manns' request, the court indicated that it would be agreeable to an
order requiring Levin to present it with a compliance plan within thirty
days, and to comply with the height restriction within sixty days after the
plan was filed. The court stated that it was prepared to order Levin to
vacate the building until she complied with the restriction, and it would
impose a fine of $500 per day for noncompliance.
¶ 8. In July 2003, the court issued a written order granting the
Manns' request for a permanent injunction. The court reiterated its
earlier finding that the height restriction in the deed referred to the
ridge line of the Inn. Because the evidence showed that Levin's building
exceeded the ridge line by 6.7 feet, the court found that she had violated
the restrictive covenant. The court noted that Levin had not contested the
existence of the deed restriction or its applicability to her property in
any of the underlying hearings. It thus rejected her assertion, raised for
the first time in her proposed findings, that the Manns lacked standing to
enforce the covenant under the doctrine of merger. The court also rejected
Levin's argument that the Manns were barred from enforcing the covenant
under the doctrine of equitable estoppel. The court explained that Levin
had received repeated advice that her home, then under construction, would
exceed the height restriction.
¶ 9. The court ordered Levin to present it with a plan for reducing
the ridge line elevation of her home no later than August 1, 2003, and to
comply with the height restriction by September 1, 2003. The court stated
that if Levin failed to comply with any of these deadlines, she would have
to immediately vacate the premises and pay $500 per day until compliance
was reached. The court granted Levin's request for a temporary stay of its
order, and this appeal followed.
¶ 10. On appeal, Levin argues that the court erred in finding that
her building violated the terms of the restrictive covenant. Specifically,
she argues that: (1) the Manns lacked standing to enforce the covenant
under the doctrine of merger; (2) the court erred in concluding that the
covenant was ambiguous; (3) alternatively, even if the covenant is
ambiguous, the court erred in finding that the parties intended to limit
the height of any building to the ridge line of the Inn; (4) the doctrines
of equitable estoppel and laches prevent the Manns from enforcing the
restriction; (5) the court failed to balance the hardships before granting
injunctive relief; and (6) the court improperly imposed onerous prospective
¶ 11. We first address Levin's assertion that the Manns lack
standing to enforce the terms of the covenant under the doctrine of merger.
Levin maintains that as of September 1999, she and her ex-husband held
title to both Parcel 1A and 1B, which benefitted from and were burdened by
the height restriction. According to Levin, because there is no evidence
that the height restriction was intended to continue in force beyond this
merger of title, the height restriction was extinguished and it therefore
cannot be enforced by the Manns. See Albright v. Fish, 136 Vt. 387, 395,
394 A.2d 1117, 1121 (1978) (discussing doctrine of merger).
¶ 12. Levin waived this argument by failing to fairly present it to
the trial court. See Bull v. Pinkham Eng'g Assocs., 170 Vt. 450, 459, 752 A.2d 26, 33 (2000) ("Contentions not raised or fairly presented to the
trial court are not preserved for appeal."). Contrary to Levin's
assertion, she did not preserve this argument by pleading "lack of
standing" as an affirmative defense in her answer to the Manns' complaint.
She did not argue that the doctrine of merger applied during any of the
underlying factual hearings. Indeed, her attorney stated at trial that no
merger of title had occurred. As the trial court explained, each side
presented their case with the concession that the deed restriction formed
the controlling issue. We therefore conclude that Levin waived this
argument, and we do not address it.
¶ 13. Levin next argues that the court erred in finding the covenant
ambiguous. Relying on a dictionary definition of the word "height," Levin
asserts that the covenant plainly prohibits the measured height of her
building from exceeding the measured height of the Inn, regardless of the
respective elevations of the lots. Levin also argues that her building
complies with the "2 ½ story" requirement found in the deed.
¶ 14. When the meaning of a restriction in a deed is clear and
unambiguous, "there is no room for construction and the instrument must be
given effect according to its terms." Aiken v. Clark, 117 Vt. 391, 393, 92 A.2d 620, 621 (1952). The trial court must determine, as a matter of law,
whether an ambiguity exists. Isbrandtsen v. N. Branch Corp., 150 Vt. 575,
577, 556 A.2d 81, 83 (1988). In making this determination, the court may
consider the circumstances surrounding the making of an agreement. Id. at
579, 556 A.2d at 84. An ambiguity exists when "a writing in and of itself
supports a different interpretation from that which appears when it is read
in light of the surrounding circumstances, and both interpretations are
reasonable." Id.; see also Trs. of Net Realty Holding Trust v. AVCO Fin.
Servs. of Barre, Inc., 144 Vt. 243, 248, 476 A.2d 530, 533 (1984) ("A
provision in a contract is ambiguous only to the extent that reasonable
people could differ as to its interpretation."). The question of whether
an ambiguity exists is a question of law, which we review de novo. Kipp v.
Chips Estate, 169 Vt. 102, 107, 732 A.2d 127, 131 (1999).
¶ 15. The trial court did not err in finding the covenant ambiguous.
The covenant requires that "[a]ny building must be limited to height no
greater than the adjoining farmhouse (2 ½ stories)." The term "height" is
not defined, and it is subject to more than one reasonable interpretation.
While Levin relies on a dictionary definition to support her interpretation
of the term, the Manns point to a different definition that supports their
position. Moreover, notwithstanding Levin's argument to the contrary, it
is not apparent from the language of the covenant that the parenthetical
reference to "2 ½ stories" was intended to limit buildings to "2 ½
stories," regardless of height. Because we cannot say as a matter of law
what the parties intended to prohibit under the covenant, we agree with the
trial court that the covenant is ambiguous.
¶ 16. Assuming that the covenant is ambiguous, Levin next argues
that the court erred in ascertaining the parties' intent. She asserts
that, pursuant to the rules of deed construction, her interpretation of the
covenant must prevail. According to Levin, the covenant was intended to
limit buildings to the measured vertical height of the Inn, regardless of
the respective elevations of the properties. Levin maintains that the
trial court's error in ascertaining the parties' intent is illustrated by
the experts' difficulty in measuring the absolute elevation of her building
and the Inn. Finally, Levin asserts that, in determining the meaning of
the covenant, the court committed reversible error by excluding evidence
that demonstrated her ex-husband's bias and prejudice.
¶ 17. When a covenant is ambiguous, the question of what the parties
intended to prohibit is a question of fact to be determined on all the
evidence. Kipp, 169 Vt. at 107, 732 A.2d at 131. The court must "give
effect to the intention of the parties if it can be gathered from the
language used when interpreted in connection with, and in reference to, the
subject matter and purpose sought to be accomplished at the time the
instrument was executed." McDonough v. W.W. Snow Const. Co., 131 Vt. 436,
441, 306 A.2d 119, 122 (1973); see also Kipp, 169 Vt. at 105, 732 A.2d at
129 (same); Welch v. Barrows, 125 Vt. 500, 504, 218 A.2d 698, 702 (1966)
("The intention of the parties, not the language used is the dominating
factor, and the circumstances existing at the time of the execution of the
deed, the situation of the parties and the subject matter are to be
considered."). We review the trial court's findings of fact under the
clearly erroneous standard. Thus, we will uphold the court's factual
findings unless, taking the evidence in the light most favorable to the
prevailing party, and excluding the effect of modifying evidence, there is
no reasonable or credible evidence to support them. V.R.C.P. 52(a)(2);
N.A.S. Holdings, Inc. v. Pafundi, 169 Vt. 437, 438, 736 A.2d 780, 783
¶ 18. In this case, the trial court found that the parties intended
to create a scenic easement, and thus, the covenant restricted buildings
from exceeding the ridge line of the Inn. This finding is supported by
credible evidence in the record. At trial, Walker testified that the
height restriction had been added to the deed to increase the value of the
property, which had dramatic views of the surrounding mountain range.
Walker stated that the parties had identified the Inn as the point over
which no building could be built. Walker testified that the parenthetical
reference to "2 ½ stories" was intended to identify the farmhouse to which
the deed referred, not to impose a story-based height restriction. Kontos,
the original grantor, testified that he had included the height restriction
at Levin and Walker's request to facilitate the sale of the property. He
understood the height restriction to refer to the ridge line of the Inn.
Like Walker, Kontos stated that the reference to "2 ½ stories" was intended
to identify the farmhouse to which the covenant referred. The evidence
thus supports the trial court's finding that the parties intended to limit
the height of all buildings to the ridge line of the Inn.
¶ 19. Levin relies on two rules of deed construction to support her
argument that the word "height" must be construed to mean the measured
vertical height of the Inn. First, she argues that because she was a
grantee of the deed that created the height restriction, the deed must be
construed in her favor. See Merritt v. Merritt, 146 Vt. 246, 250, 500 A.2d 534, 537 (1985) (when wording of deed is subject to equally reasonable
constructions, it must be construed against the grantor and in favor of the
grantee). We find this argument unavailing. Rules of construction are
subordinate aids used to discover the parties' intent. Latchis v. John,
117 Vt. 110, 112, 85 A.2d 575, 576 (1952). In this case, the only evidence
as to the parties' intent was that testified to by Kontos and Walker; Levin
testified that she could not remember having any discussions about the
height restriction. Levin's suggested interpretation of the covenant was
unreasonable, and the court did not err in rejecting it.
¶ 20. We similarly reject Levin's assertion that because
restrictive covenants are to be construed in favor of the free use of land,
her interpretation of the covenant must prevail. See Fassler v. Okemo
Mountain, Inc., 148 Vt. 538, 542, 536 A.2d 930, 932 (1987) ("When doubt
arises as to the extent of restrictive covenants, the rule applied is that
'restrictions will not be extended by implication to include anything not
clearly expressed, and doubts must be resolved in favor of the free use of
land.' ") (quoting Latchis, 117 Vt. at 113, 85 A.2d at 577). Levin argues
that the court violated this rule of construction by ordering her to reduce
the elevation of her home. We find this argument without merit. In
interpreting the restrictive covenant, the trial court did not apply the
height restriction by implication. Instead, the court found, based on the
uncontradicted evidence, that the parties had intended the word "height" to
impose an elevation-based restriction. The court did not "violate" this
rule of construction by ordering Levin to comply with the terms of the
restrictive covenant in her deed. The parties are bound by the terms of
¶ 21. We are equally unpersuaded by Levin's argument that the trial
court's error in ascertaining the parties' intent is illustrated by the
difficulty encountered in determining the absolute elevations of the
buildings. First, this argument is irrelevant to our review of the trial
court's findings of fact. See, e.g., Pafundi, 169 Vt. at 438, 736 A.2d at
783 (trial court's findings of fact will be upheld unless clearly
erroneous). Moreover, this argument is not supported by the record. The
record shows that any "difficulty" encountered by the experts was the
result of a mathematical error, which was later corrected. In their joint
report, both experts agreed that Levin's building exceeded the ridge line
of the Inn by 6.7 feet.
¶ 22. Finally, we reject Levin's argument that, in ascertaining the
parties' intent, the court committed reversible error by preventing her
attorney from inquiring into Walker's "patent bias, prejudice and
interest." Levin focuses on the court's exclusion of an October 2002
letter that Walker wrote to Levin. In the letter, Walker informed Levin
that her building exceeded the height restriction, and he stated that he
would sue her unless she either brought her home into compliance or paid
him $50,000. Levin argues that this letter reveals Walker's bias,
prejudice, and interest, and given the importance of Walker's credibility,
the court committed reversible error in excluding it. In support of her
argument, Levin relies on Raymond v. Rutland Railway, Light & Power Co., 90
Vt. 373, 378, 98 A. 909, 911 (1916) ("A party is entitled to find out the
full interest of a witness who testifies against him, and all the
circumstances calculated to create bias, prejudice, or zeal on the part of
such witness may be inquired into."), and Estate of Holton v. Ellis, 114
Vt. 471, 479, 49 A.2d 210, 217 (1946).
¶ 23. The record shows that on cross-examination, Levin's attorney
provided Walker with a copy of his letter, and asked him about its
contents. When the Manns' attorney objected on relevancy grounds, Levin's
attorney asserted that the letter would show Walker's bias, and it would
also demonstrate the Manns' motive in bringing their suit. The court
questioned the relevancy of this line of inquiry. Additionally, the court
explained, it was unwilling to delve into the parties' divorce, and that
was where the evidence appeared to be leading.
¶ 24. The court did not abuse its discretion in excluding this
evidence. As we explained in Ellis,
[w]hile a reasonable opportunity to show in cross-examination that
a witness is unreliable, prejudiced, or biased is a matter of
right, and much latitude is to be allowed in this line, the extent
to which it shall be permitted to proceed rests largely in the
sound discretion of the trial court.
114 Vt. at 479, 49 A.2d at 217. In this case, the court was aware that
Walker's property, like the property owned by Levin and the Manns, was both
burdened and benefitted by the restrictive covenant. The court knew that
Walker and Levin were divorced, and that the divorce was contentious.
Indeed, Levin's attorney informed the court that Levin and Walker were
"still duking it out" in family court, and that he didn't see the value of
Walker's testimony because Walker had "a lot of axe to grind."
Additionally, Levin testified that Walker had threatened to sue her if she
did not abide by his wishes. The court acted within its discretion in
concluding that any evidence relating to the Manns' alleged "motive" in
bringing their suit, or any potential "bias" that the letter would have
revealed, was unhelpful to the resolution of the issue before it. In
addition, on the question of Walker's bias, we note that Walker's testimony
was consistent with that of Kontos, the original grantor. Levin, in
contrast, offered no evidence as to the parties' intent.
¶ 25. We turn next to Levin's assertion that the Manns should be
precluded from enforcing the restrictive covenant under the doctrines of
equitable estoppel and laches. According to Levin, the Manns waited until
her building was already constructed before advancing the position that
"height" meant elevation despite being "invited" to comment on the building
design earlier. Levin asserts that the Manns' delay in asserting their
position was unreasonable, given that she was proceeding with substantial,
expensive construction on her home.
¶ 26. Levin has not established that these equitable doctrines
should apply. First, Levin did not plead laches as an affirmative defense
in her answer to the Manns' complaint, nor did she raise this argument
during the underlying factual hearings. She raised this argument for the
first time in her proposed findings. The trial court did not address this
argument, and we conclude that it was waived. See Pinkham Eng'g Assocs.,
170 Vt. at 459, 752 A.2d at 33. In addition, on the merits, this argument
is not supported by the evidence. See Ransom v. Bebernitz, 172 Vt. 423,
433, 782 A.2d 1155, 1162 (2001) ("Laches is the failure to assert a right
for an unreasonable and unexplained period of time when the delay has been
prejudicial to the adverse party, rendering it inequitable to enforce the
right. The delay must be unexcused and prejudicial.") (internal quotation
marks and citation omitted). The record shows that the Manns immediately
informed Levin of their concerns when it became apparent to them that her
building would violate the covenant.
¶ 27. We find Levin's estoppel argument equally without merit. To
establish equitable estoppel, Levin needed to show that: (1) the Manns
knew the facts; (2) the Manns intended that their conduct be acted upon or
the conduct was such that Levin had a right to believe it was so intended;
(3) Levin was ignorant of the facts; and (4) Levin relied on the Manns'
conduct to her detriment. See Wesco, Inc. v. City of Montpelier, 169 Vt.
520, 524, 739 A.2d 1241, 1244-45 (1999) (listing the elements of equitable
estoppel). The trial court rejected Levin's estoppel argument after
finding that she had been repeatedly advised that her home, then under
construction, would exceed the height restriction. As discussed below,
this finding is supported by the evidence.
¶ 28. At trial, Mrs. Mann testified that she initially believed
Levin's representations that her building would not exceed the height
restriction because she had no reason to believe otherwise. When it became
apparent to Mrs. Mann that Levin's building would violate the covenant, she
immediately expressed her concerns to Levin. Walker also informed Levin of
his concerns during the construction process. While Levin argues that the
Manns were aware of her proposed method of measuring "height," the Manns
testified that they had never measured the vertical height of the Inn for
defendant. It is the role of the trial court, not this Court, to determine
the credibility of witnesses, and weigh the persuasiveness of the evidence.
Cabot v. Cabot, 166 Vt. 485, 497, 697 A.2d 644, 652 (1997). Levin failed
to demonstrate that the Manns should be estopped from enforcing the
covenant, and the court did not err in rejecting this argument.
¶ 29. Levin next argues that the court erred by failing to balance
the relative hardships before issuing an injunction that required her to
reduce the height of her home. She asserts that the equities in this case
clearly balance against the issuance of an injunction. This argument lacks
merit. Because this case involves the enforcement of a restrictive
covenant, no balancing of hardships was required. McDonough, 131 Vt. at
441, 306 A.2d at 122; Welch, 125 Vt. at 508-09, 218 A.2d at 705. As we
explained in McDonough, "[b]asic to the enforcement of restrictive
covenants is that they are enforceable through the equitable relief
afforded by an injunction. Because the court is enforcing an established
legal right, the relative hardships to the parties have no application to
the award of final relief to the plaintiff." 131 Vt. at 441, 306 A.2d at
122 (internal citations omitted).
¶ 30. Levin argues that McDonough is distinguishable because she
did not violate an "established legal right." She maintains that her
interpretation of the covenant was reasonable, and she did not ignore the
"clear terms" of the covenant in bad faith. Contrary to Levin's assertion,
however, the trial court found that she had attempted to frustrate the
terms of the covenant. More importantly, our holding in McDonough is not
limited to "bad faith" violations of restrictive covenants. As we
recognized in McDonough, one of the basic principles underlying the
enforcement of restrictive covenants is that "he who takes land with notice
of such a restriction will not in equity and good conscience be permitted
to act in violation of the restriction." Id. Like the defendants in
McDonough, Levin knew of the restrictive covenant in her deed, she knew of
her neighbors' concerns about the height of her building, and she acted at
her own risk in continuing construction without first obtaining a
resolution of the covenant's meaning. See id. at 444-45, 306 A.2d at 124.
Because Levin violated the restrictive covenant, the court was not required
to balance the hardships before granting injunctive relief to the Manns.
¶ 31. Finally, Levin asserts that the court erred by imposing
improperly onerous, prospective fines as part of its order. Levin
complains that the court did not conduct a hearing to discuss the
feasability of its permanent injunction, nor did it ascertain the
appropriateness of the fine and other penalty provisions. She argues that
none of the circumstances allowing for prospective, coercive fines, as set
forth in Vermont Women's Health Center v. Operation Rescue, 159 Vt. 141,
151, 617 A.2d 411, 417 (1992), are present in this case.
¶ 32. To the extent that this argument was adequately raised below,
we find it unpersuasive. In Vermont Women's Health Center, we recognized
that although purely prospective fines are not favored in Vermont, "civil
contempt fines may be imposed in appropriate circumstances either to
compensate complainants or as a coercive sanction." 159 Vt. at 151, 617 A.2d at 417. When a prospective fine is imposed as a coercive sanction,
the fine "must be purgeable - that is, capable of being avoided . . .
through adherence to the court's order. Further, the situation must be
such that it is easy to gauge the compliance or noncompliance with an
order." Id. (internal quotation marks and citation omitted). Both
requirements are met here. Levin can avoid the fines by complying with the
court's order, and the court's order is specific as to what it requires of
¶ 33. As of February 2003, Levin was aware that her building
violated the restrictive covenant. In April 2003, the court indicated that
it would order her to present it with a plan for complying with the
covenant, and that it would impose fines should she fail to do so. The
court imposed these requirements in its July 2003 order. Levin had ample
notice that she would need to develop a plan to reduce the height of her
building. Given Levin's attempt to frustrate the covenant, and her ongoing
violation of the covenant's terms, the court acted reasonably in ordering
Levin to timely comply with its order, and imposing prospective fines to
ensure Levin's compliance. We find no abuse of discretion.
FOR THE COURT:
FN1. Chief Justice Amestoy sat for oral argument but did not participate in
FN2. Justice Dooley sat for oral argument but did not participate in this