Original
Wordprocessor Version (NOTE: This decision was approved by the court for publication.)
This case can also be found at 371 N.J. Super. 304, 853 A.2d 270.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0003-03T2
DRISCOLL CONSTRUCTION CO., INC.,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY,
DEPARTMENT OF TRANSPORTATION,
On appeal from Superior Court of New Jersey, Law Division, Burlington County, L-1194-03.
Paul A. Logan argued the cause for appellant (Powell, Trachtman, Logan, Carrle &
Lombardo, attorneys; Mr. Logan, on the brief).
Thomas H. Shar, Deputy Attorney General argued the cause for respondent (Peter C.
Harvey, Attorney General, attorney; Patrick DeAlmeida, Deputy Attorney General, of counsel; Mr. Shar,
on the brief).
The opinion of the court was delivered by
S.L. REISNER, J.A.D.
This contract dispute involves lane closures during the construction of noise barriers along
Routes 295 and 76 in Camden and Burlington Counties. Appellant Driscoll Construction Co.,
Inc. (Driscoll), the successful bidder on the noise barrier project, contends that the
contract permitted permanent lane closures, the use of concrete barriers that remain in
place throughout the project. Respondent New Jersey Department of Transportation (DOT), which contracted
for the work to be performed, asserts that the contract only permitted the
use of temporary lane closures, the use of signs and cones that are
removed and replaced daily. Because DOT refused to permit the use of permanent
lane closures, Driscoll performed the contract using temporary lane closures and then sued
DOT for over $3,000,000, the extra cost of using temporary lane closures.
Before any discovery was conducted, the trial judge granted summary judgment in favor
of DOT, holding that the contract unambiguously prohibited the use of permanent lane
closures. On appeal, Driscoll asserts that the trial judge erred in granting summary
judgment to DOT, because the contract was ambiguous. We agree and therefore reverse
and remand for further proceedings.
I
On June 11, 1996, Driscoll entered into a $35,635,000 contract with DOT to
design and build noise barriers along Route I-76, from Route 676 to Route
295, and along Route I-295, from Route 76 to Route 73, in Camden
and Burlington Counties. As a "modified design-build project," portions of the project were
designed by DOT before entering into the contract and other portions of the
design were assigned to the winning bidder, Driscoll, including the traffic control plans.
After the contract was signed, Driscoll prepared the traffic control plans, describing how
the traffic and construction would "coexist" throughout the construction project.
There are two methods of separating moving traffic from construction workers and equipment,
permanent lane closures and temporary lane closures. Permanent lane closures refer to the
placement of concrete barriers between traffic and the construction area. The concrete barriers
remain in place until the work in the specific area is completed; the
barriers are not removed at the end of each day’s work. The alternative
is temporary lane closures, using plastic cones, barrels, and arrow boards. Temporary lane
closure materials are placed on the highway at the start of each workday
and are removed at the end of each workday. Temporary lane closures increase
the cost of the project, since they require significant time each day placing
and removing traffic control devices, and in mobilizing and demobilizing equipment and material
in and out of the work area.
In this case, the pre-bid written materials furnished by DOT included several references
to traffic control. Section 110 of the Supplemental Specification states: 110.01 Maintaining and protecting traffic. When vehicular or pedestrian traffic or both are to be maintained withIN the
scope of the project, the contractor shall design and implement the traffic control
plan and carry out the work to provide for the safe and convenient
passage of such traffic.
When the construction involves improvement of an existing roadway, the roadway shall
be kept open to traffic unless otherwise approved by the project administrator.
. . . .
The allowable hours of work for this project are as follows: * Route I-76 NB/SB * Route I-295 NB/SB single lane or ramp closure 9/16 until 5/14 MONDAY THRU THURSDAY 9:00 AM – 3:30 PM 7:00 PM – 6:00 AM THE FOLLOWING DAY
FRIDAY 9:00 AM – 2:00 PM
9:00 PM – 6:00 AM MONDAY
5/
15 NTIL 9/15
MONDAY THRU THURSDAY 9:00 AM – 3:30 PM 7:00 PM – 6:00 AM THE FOLLOWING DAY
FRIDAY 9:00 AM – 2:00 PM
MULTIPLE LANE CLOSURES (MUST PROVIDE MINIMUM OF ONE LANE OPEN IN EACH DIRECTION)
MONDAY THRU THURSDAY 11:00 PM – 6:00 AM THE FOLLOWING DAY
FRIDAY 12:00 PM – 10:00 AM SATURDAY
SATURDAY 7:00 PM – 12:00 NOON SUNDAY
SUNDAY 6:00 PM – 6:00 AM monday SHOULDER CLOSURES ARE PERMITTED ANY TIME OF DAY. DUE TO TRAFFIC SITUATIONS GENERATED BY EVENTS OR ACTIVITIES AT VETERANS STADIUM (INCLUDING
PHILLIES GAMES, EAGLES GAMES AND CONCERTS), THERE MAY BE OCCASIONS FOR WHICH NON-PERMANENT
LANE CLOSURES WILL NOT BE PERMITTED. THE WORK HOURS THE CONTRACTOR MAY BE
RESTRICTED WILL BE DEPENDENT ON THE TIMING OF THE EVENTS. THERE MAY BE OTHER OCCASIONS FOR WHICH THE CONTRACTOR MAY BE ASKED TO
STOP WORK AND WILL NOT BE PERMITTED TO REDUCE THE NUMBER OF LANES
AVAILABLE TO TRAFFIC. WORK WHICH WILL INTERFERE WITH TRAFFIC WILL NOT BE PERMITTED,
BUT WORK WITHIN ALL PERMANENT LANE CLOSURES WILL BE PERMITTED AT ALL TIMES. wHEN DETERMINING HIS BID PRICES AND ESTIMATING THE NUMBER OF CALENDAR DAYS TO
SUBSTANTIALLY COMPLETE THE PROJECT, THE CONTRACTOR SHALL ASSUME HE WILL BE PERMITTED TO
REDUCE THE NUMBER OF LANES AVAILABLE TO TRAFFIC AS SHOWN IN THE PLANS.
THE CONTRACTOR SHALL NOT CONSIDER LOSS OF TIME DUE TO WORK STOPPAGES AS
A RESULT OF EVENTS AT VETERANS STADIUM OR OTHER OCCURRENCES. IF THE CONTRACTORS
SCHEDULE OF WORKING HOURS IS RESTRICTED DUE TO THESE UNFORESEEN TRAFFIC OCCURRENCES, HE
WILL BE GRANTED AN APPROPRIATE EXTENSION OF TIME FOR THE WORK WHICH COULD
NOT BE COMPLETED OUTSIDE THE PERMANENT LANE CLOSURES. pLEASE NOTE THAT LANE CLOSURES WILL NOT BE PERMITTED AFTER NOON OF THE
DAY BEFORE, DURING AND UNTIL NOON OF THE DAY AFTER THE FOLLOWING HOLIDAYS
OR HOLIDAY WEEKEND PERIODS: NEW YEAR’S DAY, PRESIDENT’S DAY, GOOD FRIDAY, MEMORIAL DAY,
INDEPENDENCE DAY, LABOR DAY, THANKSGIVING, AND CHRISTMAS. lANE CLOSURES WILL NOT BE PERMITTED
ON ELECTION DAY BETWEEN THE HOURS OF
9 AM AND 8 PM. . . . . a PENALTY IN ACCORDANCE WITH THE SCHEDULE BELOW WILL BE ASSESSED AGAINST THE
CONTRACTOR IF THE LANE CLOSURES ARE NOT PLACED OR REMOVED IN ACCORDANCE WITH
THE SPECIFIED TIMES. TIME FRAMEOCCUPANCY CHARGE PER LANE 1 – 15 MINUTES $2000 + 200/MINUTE 16 – 30 MINUTES $5000 + 333/MINUTE 31 – 45 MINUTES $10000 + 666/MINUTE 46 MINUTES OR LONGER $20000 + 1000/MINUTE THE following NOTE SHALL BE PLACED ON THE FIRST SHEET OF THE TRAFFIC
CONTROL PLANS. THE CONTRACTOR SHALL NOTIFY THE PROJECT ADMINISTRATOR A MINIMUM OF 72 HOURS PRIOR
TO THE START/COMPLETION OF ANY STAGE OF THE PROJECT. aLL TRAFFIC RESTRICTIONS, INCLUDING
LANE WIDTH AND REDUCTIONS, LANE CLOSURES AND DETOURS ARE SUBJECT TO APPROVAL OF
THE PROJECT ADMINISTRATOR, THE REGIONAL TRAFFIC ENGINEER, AND THE BUREAU OF TRAFFIC OPERATIONS
SOUTH. The specifications did not specifically prohibit the use of permanent lane closures. Nor
did the conceptual plans detail intended lane closures, either temporary or permanent. According
to Driscoll, as part of its due diligence investigation, it reviewed DOT’s contract
with another contractor, Crisdel Group, Inc. (Crisdel), for roadway reconstruction within substantially the
same sections of the highway involved in the Driscoll noise barrier project. The
Crisdel traffic control specifications were identical to the traffic control specifications for the
Driscoll noise barrier project. The traffic control plans designed by DOT based on
those pre-bid specifications required permanent lane closures in completing the contract. Based on
the specification language and review of the Crisdel contract, Driscoll interpreted Section 110.01
to permit the use of permanent lane closures. Driscoll based its bid price
and timetable to complete the work upon traffic controls utilizing permanent lane closures.
Driscoll was awarded the contract and thereafter submitted traffic control plans utilizing permanent
lane closures. On October 2, 1996, DOT rejected the proposed traffic control plans,
contending that the specifications did not permit the use of permanent lane closures,
except shoulder closures, and only temporary lane closures were permitted. DOT requested that
Driscoll resubmit traffic control plans which did not include permanent lane closures.
On October 4, 1996 Driscoll submitted a notice of claim to DOT, charging
that the specification allowed permanent lane closures and DOT’s rejection of the proposed
permanent lane closures was a "change of character" under the contract. On October
10, 1996, DOT replied to Driscoll’s notice of claim, asserting that the specification
excluded permanent lane closures and denying that its rejection of the proposed permanent
lane closures was a change of character under the contract.
Driscoll proceeded to construct the noise barriers, using temporary lane closures. On September
6, 2001, Driscoll supplemented its October 4, 1996 notice of claim by including
the total additional cost, $3,199,968.02, allegedly resulting from performing the contract without permanent
lane closures. DOT again denied the claim in a letter dated April 2,
2002.
Driscoll filed a complaint on April 25, 2003, seeking a judgment of $3,279,613.95
to compensate for extra costs of using temporary lane closures. DOT filed a
motion for summary judgment. Driscoll filed a responsive cross-motion for summary judgment. The
trial judge issued a written tentative disposition on July 24, 2003:
The language in the Supplemental Specification is clear on its face. The general
requirement is that the highway must be open to traffic, and closure is
only permitted when approved by the project administrator . . . . Furthermore,
the Supplemental Specification clearly details when Driscoll is to work and when lanes
may be closed. It is true that the Contractor will design the plan,
but the Supplemental Specification also states that the roadway shall be kept open
to traffic unless otherwise approved by the project administrator. Additionally, there are other
clauses which establish that preference to keep traffic flowing and avoid permanent lane
closures. For example, the first paragraph of the Supplemental Certification states that the
traffic control plans are to be designed to provide the safe and convenient
passage of such traffic. Also, the Supplemental Specification states that Driscoll is not
to work during events at Veterans Stadium, and other occasions. The Supplemental Specification
even sets forth a penalty for not opening the roads during the times
set forth in the Specification. No where in the Supplemental Specification does it
state that Driscoll can unilaterally close the roads. Rather, the Supplemental Specification read
as a whole as well as line by line indicate that DOT’s intent
was not to allow for unnecessary road closures.
Driscoll maintains that the contract can be reasonably interpreted to allow Driscoll to
utilize permanent lane closures in performing work of the project. In support of
this contention Driscoll cites to a clause in the Supplemental Specification that allows
for the shoulder closures. The court finds that clause allowing for shoulder closures
does not also allow for permanent lane closures. Driscoll also maintains that the
contract allowed for permanent lane closures because a separate contract between DOT and
Crisdel Group, Inc. (Crisdel) allowed for permanent lane closures. However, the Crisdel contract
has no bearing on this contract because here the terms of the contract
are unambiguous and clear – Driscoll cannot unilaterally close the roads and every effort
will be made to keep the traffic flowing. Furthermore, as to the Crisdel
contract, Driscoll was not a party to the Crisdel contract, the scope of
the contract was different than the work in the Driscoll contract because Crisdel
performed reconstruction work on the roadway whereas Driscoll erected noise barriers off travel
lanes and along the side of the shoulder, and most importantly, no reference
to the Crisdel contract was made in the DOT-Driscoll contract at issue.
Accordingly, Defendant’s motion for summary judgment is granted and Plaintiff’s cross motion for
summary judgment is denied.
Following oral argument, the judge rendered an opinion granting DOT’s motion for summary
judgment for the same reasons detailed in the tentative disposition, concluding:
I’m satisfied that the supplemental specification made it clear enough . . .
that it was well within the purview of the Department of Transportation to
not allow permanent lane closure. The overriding philosophy behind all of this was
to keep the traffic going as much as possible . . . .
[T]he defendant’s motion which was filed first for summary judgment is granted and
the cross-motion is denied.
Driscoll appealed.
II
Summary judgment is appropriately granted if "the competent evidential materials presented, when viewed
in the light most favorable to the non-moving party, are sufficient to permit
a rational factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520,
540 (1995). On appeal, this court
reviews the trial court’s decision de novo,
"applying the same legal standard as the trial court under R. 4:46-2(c)." Turner
v. Wong,
363 N.J. Super. 186, 198-99 (App. Div. 2003) (citing Antheunisse v.
Tiffany,
229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied,
115 N.J. 59 (1989)).
In this case, the dispositive question was whether the contract prohibited the use
of permanent lane closures. The trial judge concluded in her tentative disposition, "[t]he
language in the Supplemental Specification is clear on its face . . .
establish[ing] [the] preference to keep traffic flowing and avoid permanent lane closures." The
judge modified her findings in her oral opinion granting DOT’s motion for summary
judgment, holding, "I’m satisfied that the supplemental specification made it
clear enough .
. . that it was well within the purview of the Department of
Transportation to not allow permanent lane closure." (emphasis added). Based on our review
of the record, we conclude the contract was ambiguous on its face and
that the case was not ripe for summary judgment.
When interpreting a contract, the court’s goal is to ascertain the "intention of
the parties to the contract as revealed by the language used, taken as
an entirety; and, in the quest for intention, the situation of the parties,
the attendant circumstances, and the objects they were thereby striving to attain .
. . . " Onderdonk v. Presbyterian Homes of N.J.,
85 N.J. 171,
184 (1981)(quoting Atl. N. Airlines, Inc. v. Schwimmer,
12 N.J. 293, 301 (1953)).
The interpretation or construction of a contract is usually a legal question for
the court, "suitable for a decision on a motion for summary judgment." Spaulding
Composites Co., Inc. v. Liberty Mut. Ins. Co.,
346 N.J. Super. 167, 173
(App. Div. 2001), rev’d on other grounds sub nom., Spaulding Composites Co., Inc.
v. Aetna Cas. Ins. Co,
176 N.J. 25 (2003), cert. denied, ___ U.S.
___,
124 S. Ct. 1061,
157 L. Ed.2d 953 (2004); see alsoBosshard v. Hackensack Univ. Med. Ctr.,
345 N.J. Super. 78, 92 (App. Div.
2001) ("
The interpretation of the terms of a contract are decided by the
court as a matter of law unless the meaning is both unclear and
dependent on conflicting testimony.")
. However, "where there is uncertainty, ambiguity or the need
for parol evidence in aid of interpretation, then the doubtful provision should be
left to the jury." Great Atl. & Pac. Tea Co., Inc. v. Checchio,
335 N.J. Super. 495, 502 (App. Div. 2000) (citing Michaels v. Brookchester, Inc.,
26 N.J. 379, 387 (1958); Garden State Bldg. v. First Fid. Bank,
305 N.J. Super. 510, 525 (App. Div. 1997), certif. denied,
153 N.J. 50 (1998)).
Since this case involves a contract claim against the State, it would be
tried without a jury, N.J.S.A. 59:13-4, however, the principle is the same; the
judge acts as trier of fact as well as deciding issues of law
and cannot grant summary judgment where material facts are in dispute.
In this case, the specifications about the use of permanent lane closures were
ambiguous, and parol evidence was required to resolve the ambiguity. Portions of the
contract indicate that permanent lane closures are prohibited. The contract states that closure
is only permitted when approved by the project administrator. The contract details when
Driscoll is to work, when lanes may be closed, and when penalties may
be imposed for closing the roads during those times. Arguably, the gaps in
the permissible times for road closure exclude the use of permanent lane closures.
Other clauses indicate a preference for the "safe and convenient passage of []
traffic."
On the other hand, portions of the contract indicate that permanent lane closures
are not prohibited. The contract prohibits the use of "non-permanent lane closures" during
events at Veterans Stadium, suggesting that the use of permanent lane closures during
these times is permitted. The contract indicates that on other unspecified occasions Driscoll
is not permitted to interfere with traffic, "but work within all permanent lane
closures will be permitted at all times." Driscoll understood that this project-specific language
allowed the use of permanent lane closures.
DOT contends that "permanent lane closures" referred to shoulder closures. Driscoll produced evidence
that DOT’s assertion is contrary to the trade usage of the term "permanent
lane closures" in the road construction industry. Further, DOT’s interpretation conflicts with specific
references to "shoulder closures" in other parts of the contract.
Viewed in a light most favorable to Driscoll, the evidence is sufficient to
permit a rational factfinder to resolve the disputed issue in favor of Driscoll.
See, Brill, supra, 142 N.J. at 540; see alsoCity Check Cashing, Inc.
v. Mfr. Hanover Trust Co.,
166 N.J. 49, 64 (2001) (observing that summary
judgment is appropriate only when no fair-minded jury could reach a contrary conclusion).
A trial court should never decide on its merits a dispute on which
a rational jury could go either way. See, Gilhooley v. County of Union,
164 N.J. 533, 545-46 (2000). In this case, at least on the limited
record before the trial judge, a rational jury could decide the critical issue
either way.
DOT contends that the following excerpt from the Supplemental Specification is a "clear
provision . . . which authorizes only temporary lane closures":
When vehicular or pedestrian traffic or both are to be maintained within the
scope of the project, the contractor shall design and implement the traffic control
plan and carry out the work to provide for the safe and convenient
passage of such traffic.
When the construction involves improvement of an existing roadway, the roadway shall be
kept open to traffic unless otherwise approved by the project administrator.
We conclude that this statement is ambiguous. The term "lane closures" is omitted
altogether and the provision can be construed as simply providing guidelines to assist
Driscoll in drafting the traffic control plans.
Similarly, DOT cites the following language from the Supplementary Specifications as evidence that
permanent lane closures were prohibited: "When determining his bid prices and estimating the
number of calendar days to substantially complete the project, the contractor shall assume
he will be permitted to reduce the number of lanes available to traffic
as shown in the plans." Based on this provision, DOT asserts, "[t]here are
no permanent lane closures on the plans. Consequently, Driscoll had no right to
assume there were permanent lane closures when Driscoll calculated its bid prices, and
time and area available for work."
This argument is unpersuasive and illustrates the ambiguity of the specifications. This project-specific
provision does not inform a potential bidder whether DOT is referring to the
conceptual plans or the traffic control plans. Regardless, neither of the plans clarifies
the intent of the parties. DOT has represented to the court that the
conceptual plans (not provided in the record) do not reflect any road closures,
temporary or permanent. The traffic control plans were not even in existence at
the time of the specifications, as the winning bidder was to prepare the
traffic control plans as part of the design-build project.
Because she concluded that the contract was unambiguous, the trial judge refused to
consider a similar road construction contract between DOT and Crisdel, a project that
used permanent road closures. However, as we stated in Great Atl. & Pac.
Tea Co., Inc., supra, ambiguity is not a prerequisite to introducing circumstances surrounding
the contract:
When the meaning of an integrated contract is ambiguous, the surrounding circumstances may
be introduced for the purpose of elucidation. New York Sash & Door Co.,
Inc. v. National House & Farms Ass’n, Inc.
131 N.J.L. 466 (E. &
A. 1944). Even when the contract on its face is free from ambiguity,
evidence of the situation of the parties and the surrounding circumstances and conditions
is admissible in aid of interpretation. [Atl. N. Airlines Inc., supra, 12 N.J.
at 301-02.]
"The admission of evidence of extrinsic facts is not for the purpose of
changing the writing, but to secure light by which to measure its actual
significance. Such evidence is adducible only for the purpose of interpreting the writing
– not for the purpose of modifying or enlarging or curtailing its terms, but
to aid in determining the meaning of what has been said." Casriel v.
King,
2 N.J. 45 (1949).
Accordingly, whether the clause under consideration is regarded as clear and certain, or
ambiguous and uncertain, if the intention of the parties is not to be
gleaned from a reading of the instrument as a whole, the plaintiff should
have had the opportunity of presenting evidence of the facts and circumstances surrounding
the execution of the lease.
In this case, the trial judge erred in refusing to consider evidence of
the surrounding circumstances, the use of permanent road closures in a different DOT
construction contract employing identical traffic control language. For purposes of the summary judgment
motion, it was inconsequential whether the DOT-Driscoll contract was clear or ambiguous, and
irrelevant that Driscoll was not a party to the Crisdel contract, that the
scope of the Crisdel contract was different (Crisdel performed work on the roadway),
and that no reference to the Crisdel contract was made in the DOT-Driscoll
contract. Because a reasonable trier of fact might conclude that DOT’s prior practices
provided objective evidence of what the parties intended, Driscoll’s reliance upon the prior
practice based on identical language in the Crisdel contract should have been considered.
Other considerations also lead us to conclude that summary judgment was erroneously granted.
A trial court should not grant summary judgment when the matter is not
ripe for such consideration, such as when discovery has not yet been completed.
See, Salomon v. Eli Lilly & Co.,
98 N.J. 58 (1984). The court
should afford "every litigant who has a bona fide cause of action or
defense the opportunity for full exposure of his case." Oslacky v. Borough of
River Edge,
319 N.J. Super. 79, 87 (App. Div. 1999) (quoting Velantzas v.
Colgate-Palmolive Co. Inc.,
109 N.J. 189, 193 (1988)). In fairness to the trial
judge, s
ince both sides moved for summary judgment, "one may fairly assume that
the evidence was all there and the matter was ripe for adjudication." Morton
Int’l, Inc. v. Gen. Accident Ins. Co. of Am.,
266 N.J. Super. 300,
323 (App. Div. 1991), aff’d,
134 N.J. 1 (1993), cert. denied,
512 U.S. 1245,
114 S. Ct. 2764,
129 L. Ed.2d 878 (1994)
. However, "cross-motions
of summary judgment do not, of necessity, obviate a plenary trial on disputed
issues of fact." Ibid. (citing O’Keeffe v. Snyder,
83 N.J. 478, 487 (1980)).
In this case, no discovery had been exchanged at the time the motion
was filed. To the extent that evidence was not fully presented due to
the procedural infancy of the case, the motion for summary judgment was premature.
Moreover, where an ambiguity exists in the contract allowing at least two reasonable
alternative interpretations, the writing is strictly construed against the drafter. See, e.g., In
re Estate of Miller,
90 N.J. 210, 221 (1982).
Public authorities, who choose
contract terms when they invite contractors to bid on construction projects, are not
exempt from this doctrine. Terminal Constr. Corp. v. Bergen County Hackensack River Sanitary
Sewer Dist. Auth.,
18 N.J. 294, 302 (1955). In this case, on this
record, the contract appears to be ambiguous and must be construed against DOT.
For example, instead of using language that allowed for two reasonable alternative explanations,
DOT could have stated, "PERMANENT LANE CLOSURES ARE PROHIBITED AT ALL TIMES." DOT
did not explicitly express its purported intent to prohibit permanent lane closures.
We hasten to add that we are not deciding the underlying merits of
this dispute. After discovery is completed, there may prove to be no dispute
that, in the context of prevailing industry practice, the contract is not ambiguous.
Likewise, if there are conflicting proofs, the judge might reach that conclusion after
trial. However, on the undeveloped record before the trial court at the time
the motion was decided, giving Driscoll the benefit of all favorable inferences, the
contract appears ambiguous and summary judgment was inappropriate.
Reversed and remanded for further proceedings.
