John Paul DeJORIA, Plaintiff-Appellee v. MAGHREB PETROLEUM EXPLORATION, S.A.; Mideast Fund for Morocco, Limited, Defendants-Appellants.
No. 14-51022.
United States Court of Appeals, Fifth Circuit.
Sept. 30, 2015.
373
IV.
As the majority opinion observes, the Supreme Court has held that the standard for reasonable suspicion “is considerably less than proof of wrongdoing by a preponderance of the evidence.” Navarette, 134 S.Ct. at 1687 (internal quotation marks omitted). Whatever this minimal probability is, however, it must be established through the officer‘s articulation of facts particular to the individual defendant stopped. Because the majority opinion allows for reasonable suspicion in the absence of such particularized facts and relies on the district court‘s sua sponte probability determination and independent speculation about the road in question, I respectfully dissent.
Brian John Hurst (argued), Nicholas O‘Brian Kennedy, Eugenie Rogers, Baker & McKenzie, L.L.P., Dallas, TX, John Charles Carsey, Minton, Burton, Foster & Collins, P.C., Craig T. Enoch, Melissa Lorber, Attorney, Enoch Kever, P.L.L.C., Austin, TX, Michael A. Pollard, Esq., Baker & McKenzie, L.L.P., Chicago, IL, for Plaintiff-Appellee.
Geoffrey L. Harrison, Esq. (argued), John Pierre Lahad, Kenneth E. McNeil, Susman Godfrey, L.L.P., Houston, TX, for Defendants-Appellants.
Anthony Hotchkiss Anikeeff, Patrick Risdon Hanes, Joseph Ray Pope, Williams Mullen, P.C., Richmond, VA, for Amicus Curiae Meriem Bensaleha, in her capacity as President of la Confederation Generale des Entreprises du Maroc.
Monica F. Oathout, Vorys, Sater, Seymour & Pease, L.L.P., Roger B. Greenberg, James Christian Marrow, Schwartz, Junell, Greenberg & Oathout, L.L.P., Houston, TX, for Amicus Curiae Taeib F. Assi-Fihri, in his capacity as Counselor to the King of Morocco and Former Minister of Foreign Affairs for the Kingdom of Morocco.
Richard Phillips Hogan, Jr., Hogan & Hogan, Houston, TX, for Amicus Curiae Moroccan Bankers’ Association.
Amal Laassel, Orlando, FL, for Amicus Curiae Moroccan American Business Alliance.
Before STEWART, Chief Judge, and BARKSDALE and PRADO, Circuit Judges.
CARL E. STEWART, Chief Judge:
This appeal arises from the district court‘s grant of Plaintiff-Appellee‘s motion for non-recognition of a Moroccan judgment under Texas‘s Uniform Foreign Country Money-Judgment Recognition Act (the “Texas Recognition Act” or “Act“). The district court determined that Morocco‘s judicial system failed to provide impartial tribunals and procedures compatible with due process as required by the Texas Recognition Act and that the Moroccan judgment was thus unenforceable domestically. Because we conclude Plaintiff-Appellee has not met his burden under the Act, we REVERSE.
I.
John Paul DeJoria (“DeJoria“) was a major investor in an American company called Skidmore Energy, Inc. (“Skidmore“), which was engaged in oil exploration and technology projects in Morocco. In pursuit of its goals, Skidmore formed and capitalized a Moroccan corporation, Lone Star Energy Corporation (“Lone Star“) (now Maghreb Petroleum Exploration, S.A., or “MPE“). Corporations established under Moroccan law are required to have a “local” shareholder. For Lone Star, that local shareholder was Mediholding, S.A., owned by Prince Moulay Abdallah Alaoui, a first cousin of the Moroccan King, King Mohammed VI.
In March 2000, Lone Star entered into an “Investment Agreement” obligating it to invest in hydrocarbon exploration in Morocco. King Mohammed assured DeJoria
On August 20, 2000, King Mohammed gave a nationally televised speech to announce the discovery of “copious and high-quality oil” in Morocco. Three days later, then-Moroccan Minister of Energy Youssef Tahiri, accompanied by DeJoria and DeJoria‘s business partner Michael Gustin, traveled to the site and held a press conference claiming that the discovered oil reserves would fulfill Morocco‘s energy needs for decades. Moroccans celebrated this significant news, as the King‘s announcement was the only stimulus likely to revive Morocco‘s sluggish economy. The Moroccan stock market soared.
There was one major problem: the oil reserves were not as plentiful as announced. The “rosy picture” of Moroccan energy independence did not materialize, damaging both the Moroccan government‘s credibility and, Lone Star‘s viability. As a result, the business relationship between MFM and Skidmore/DeJoria suffered. Lone Star replaced DeJoria and Gustin on Lone Star‘s Board of Directors.1 DeJoria has not been to Morocco since 2000 and claims that his life would have been endangered had he returned.
Unhappy with the return on its initial investment in Lone Star, MFM sued Skidmore, DeJoria, Gustin, and a number of other Skidmore officers in their individual capacities in Moroccan court. MFM asserted that Skidmore fraudulently induced its investment by misrepresenting Skidmore‘s actual investment in Lone Star. MPE later joined as a plaintiff in the suit and claimed that Skidmore‘s fraudulent misrepresentations deprived Lone Star of necessary capital. In response, Skidmore filed two quickly-dismissed lawsuits against MPE, MFM, and other parties in the United States.
After nearly seven years of considering MPE and MFM‘s suit, the Moroccan court ruled against DeJoria and Gustin but absolved five of their co-defendants—including Skidmore—of liability. The court entered judgment in favor of MPE and MFM for approximately $122.9 million.
DeJoria sued MPE and MFM in Texas state court, challenging domestic recognition of the Moroccan judgment under Sections
II.
Because federal jurisdiction in this case is based on diversity of citizenship, we apply Texas law regarding the recognition and enforcement of foreign judgments. Banque Libanaise Pour Le Commerce v. Khreich, 915 F.2d 1000, 1003 (5th Cir.1990) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). The enforcement of foreign judgments in Texas is governed by the Texas
A.
We first consider the standard of review applicable to the district court‘s recognition decision. This court has previously applied both de novo review and abuse of discretion to evaluate a district court‘s recognition decision. Compare Derr v. Swarek, 766 F.3d 430, 436 (5th Cir.2014) (recognizing inconsistency but applying abuse of discretion in Mississippi recognition case), with Sw. Livestock & Trucking Co. v. Ramon, 169 F.3d 317, 321 (5th Cir.1999) (applying de novo review under Texas Recognition Act). In Derr, we looked to Mississippi law in deciding that abuse of discretion review applied. 766 F.3d at 436 n. 2. Thus, we similarly look to Texas law to determine the applicable standard of review here.2
The Texas Recognition Act establishes three mandatory grounds and seven discretionary grounds for non-recognition of a foreign judgment. See Beluga Chartering B.V. v. Timber S.A., 294 S.W.3d 300, 304 (Tex.App.--Houston [14th Dist.] 2009). Whether the judgment debtor established that one of these non-recognition provisions applies is a question of law reviewed de novo.3 Reading & Bates Constr. Co. v. Baker Energy Res. Corp., 976 S.W.2d 702, 708 (Tex.App.-Houston [1st Dist.] 1998); see also Presley v. N.V. Masureel Veredeling, 370 S.W.3d 425, 432 (Tex.App.--Houston [1st Dist.] 2012) (“A trial court‘s enforcement of a foreign country judgment presents a question of law, and, thus, we review de novo a trial court‘s recognition of a foreign country judgment.“); Sanchez v. Palau, 317 S.W.3d 780, 785 (Tex.App.-Houston [1st Dist.] 2010). Accordingly, we review de novo the district court‘s decision not to recognize the foreign judgment.4
B.
In Texas, the recognition of foreign judgments is governed by the Texas Recognition Act.
The party seeking to avoid recognition of a foreign judgment has the burden of establishing one of these statutory grounds for non-recognition. Presley, 370 S.W.3d at 432; see also Diamond Offshore (Bermuda), Ltd. v. Haaksman, 355 S.W.3d 842, 845 (Tex.App.-Houston [14th Dist.] 2011) (“Unless the judgment debtor satisfies its burden of proof by establishing one or more of the specific grounds for nonrecognition, the court is required to recognize the foreign judgment.“). DeJoria asserts, as mandatory grounds for non-recognition of the Moroccan judgment, that the Moroccan judicial system does not provide due process and that the Moroccan court lacked personal jurisdiction. DeJoria also asserts, as a discretionary ground for non-recognition, that the Moroccan judgment should not be recognized because Moroccan courts do not recognize Texas judgments.
C.
DeJoria contends that the Moroccan judgment is unenforceable because the Moroccan judicial system does not meet due process standards. Under the Texas Recognition Act, a foreign judgment is not conclusive and is thus unenforceable if “the judgment was rendered under a system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.”
The court‘s inquiry under Section
To justify non-recognition of the Moroccan judgment, DeJoria argues that Morocco‘s judiciary is made up of judges beholden to the King and therefore lacks independence. Under the Moroccan Constitution, Morocco is an executive monarchy headed by a King who serves as the supreme leader. As described in a 2003 World Bank publication (the “World Bank Report“), the King has the final authority over the appointment of judges. A United States Agency for International Development report (the “USAID Report“)6 observes that the Moroccan judicial system is “permeable to political influence” and that judges are “vulnerable to political retribution.” State Department Country Reports also question the independence of the Moroccan judiciary. For example, the 2009 State Department Country Report explains that “in practice the judiciary ... was not fully independent and was subject to influence, particularly in sensitive cases.” Moroccan courts also battle a public perception of ineffectiveness. In 2012, nearly 1,000 Moroccan judges protested for “greater independence for the judiciary.” Though this evidence led the district court to find that Morocco‘s judicial system was not compatible with the requirements of due process, we conclude that it does not present the entire picture.7
Azzedine Kabbaj, a Moroccan attorney who has been practicing for thirty-five years, testified that Moroccan judges must pass an admissions test and complete two years of judge-specific training. Kabbaj noted that the Moroccan system “places great emphasis” on providing “actual notice” of lawsuits to defendants, allows for numerous challenges to the appointments of experts, and gives defendants a de novo appeal after an initial judgment. Abed Awad, an adjunct professor at Rutgers Universi-
The Texas Recognition Act does not require that the foreign judicial system be perfect. Instead, a judgment debtor must meet the high burden of showing that the foreign judicial system as a whole is so lacking in impartial tribunals or procedures compatible with due process so as to justify routine non-recognition of the foreign judgments. See Turner, 303 F.3d at 330. DeJoria has not met this burden. Based on the evidence in the record, we cannot agree that the Moroccan judicial system lacks sufficient independence such that fair litigation in Morocco is impossible.9 The due process requirement is not “intended to bar the enforcement of all judgments of any foreign legal system that does not conform its procedural doctrines to the latest twist and turn of our courts.” Ashenden, 233 F.3d at 476. Thus, the record here does not establish that any judgment rendered by a Moroccan court is to be disregarded as a matter of course.
Even under DeJoria‘s characterization, the Moroccan judicial system would still contrast sharply with the judicial systems of foreign countries that have failed to meet due process standards. For example, in Bank Melli Iran v. Pahlavi, the Ninth Circuit refused to enforce an Iranian judgment and concluded that the Iranian judicial system did not comport with due process standards. 58 F.3d 1406, 1411-13 (9th Cir.1995). The court relied on official reports advising Americans against traveling to Iran during the relevant time period and identifying Iran as an official state sponsor of terror. Id. at 1411. Further, the court noted that Iranian trials were private, politicized proceedings, and recognized that the Iranian government itself did not “believe in the
Similarly, in Bridgeway Corp. v. Citibank, the Second Circuit declined to recognize a Liberian judgment rendered during the Liberian Civil War. 201 F.3d 134, 144 (2d Cir.2000). There, the court observed that, during the relevant time period, “Liberia‘s judicial system was in a state of disarray and the provisions of the Constitution concerning the judiciary were no longer followed.” Id. at 138. Further, official State Department Country Reports noted that the Liberian judicial system—already marred by “corruption and incompetent handling of cases“—completely “collapsed” following the outbreak of fighting. Id. Because the court concluded that there was “sufficiently powerful and uncontradicted documentary evidence describing the chaos within the Liberian judicial system during the period of interest,” it refused to enforce the Liberian judgment. Id. at 141-42.
Pahlavi and Bridgeway thus exemplify how a foreign judicial system can be so fundamentally flawed as to offend basic notions of fairness.10 Unlike the Iranian system in Pahlavi, there is simply no indication that it would be impossible for an American to receive due process or impartial tribunals in Morocco. In further contrast with Pahlavi, there is no record evidence of a demonstrable anti-American sentiment in Morocco; in fact, American law firms do business in Morocco.11 While the judgment debtor in Pahlavi could not have retained representation in Iran, Skidmore—a co-defendant in the Moroccan case—did briefly retain Moroccan attorney Azzedine Kettani until a conflict of interest forced his withdrawal. One expert opined that it is “not at all uncommon” for Moroccan attorneys to represent unpopular figures in Moroccan courts. Bridgeway presents an even more stark contrast. Morocco‘s judicial system is not in a state of complete collapse, and there is no evidence that Moroccan courts or the Moroccan government routinely disregard constitutional provisions or the rule of law. Because Morocco‘s judicial system is not in such a dire situation, it does not present the unusual case of a foreign judicial system that “offend[s] against basic fairness.” Turner, 303 F.3d at 330 (internal quotations omitted).
The Texas Recognition Act‘s due process standard requires only that the foreign proceedings be fundamentally fair
D.
As alternative grounds for non-recognition, DeJoria asserts that Morocco does not recognize judgments rendered by Texas courts and that the Moroccan court lacked personal jurisdiction.12 Although the district court did not reach these arguments, its judgment may be affirmed “on any grounds supported by the record.” Sobranes Recovery Pool I, LLC v. Todd & Hughes Constr. Corp., 509 F.3d 216, 221 (5th Cir.2007) (quoting Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir.1992)). Therefore, we address these arguments in turn.
1.
Under the Texas Recognition Act, a court may refuse to enforce a foreign judgment if “it is established that the foreign country in which the judgment was rendered does not recognize judgments rendered in this state that, but for the fact that they are rendered in this state, conform to the definition of ‘foreign country judgment.‘”
In Khreich, we affirmed the district court‘s refusal to recognize an Abu Dhabi judgment for lack of reciprocity. 915 F.2d at 1006. There, the party seeking non-recognition provided the affidavit of an American attorney practicing in Abu Dhabi. Id. at 1005. This testimony provided that no Abu Dhabi courts had previously enforced United States judgments, that there had been no attempts to enforce United States judgments in Abu Dhabi courts, that Abu Dhabi courts preferred to resolve disputes under local law, and that it was doubtful that Abu Dhabi courts would exercise their discretion to actually enforce an American judgment. Id. at 1005-06. The only contrary testimony offered was a translation of Abu Dhabi law relating to recognition of foreign judgments. Id. We concluded that this evi-
DeJoria contends that his showing on lack of reciprocity is “at least as strong” as the showing we found sufficient in Khreich. This argument, however, fails to consider MPE and MFM‘s rebuttal evidence. In contrast with the minimal showing in Khreich, MPE and MFM have identified the relevant statutory provisions under Moroccan law and offered expert testimony that Moroccan courts would recognize American judgments and have routinely recognized other foreign judgments. Thus, MPE and MFM have done more than merely point to a “translation of [Moroccan] law” or simply identify a relevant statutory provision. See Khreich, 915 F.2d at 1005-06; see also Karim v. Finch Shipping Co., 265 F.3d 258, 272 (5th Cir.2001) (finding that, in the context of determining foreign law, the party seeking recognition in Khreich “did not call any expert witnesses” and provided only “a copy of a statute and general materials“).
Further, Moroccan law specifically allows for the recognition of foreign judgments.13 Article 430 of the Morocco Code of Civil Procedure provides that, in order to enforce a foreign judgment, a Moroccan court “shall determine the judgment is genuine and that the foreign court that issued the judgment had jurisdiction, and shall verify that no part of the judgment violates Moroccan public policy.” On its face, Article 430 seems to answer the reciprocity question; however, DeJoria insists that it is uncertain whether Article 430 would actually allow recognition of a United States judgment. DeJoria‘s expert, Kettani, observed “that there is no certainty as to how ... the statutory criteria of ‘public order’ ... would be used in practice to deny enforcement.” Such speculation is insufficient to justify non-enforcement. The statutory criteria for non-enforcement under Article 430, lack of jurisdiction and violation of public policy, are no different than three of the grounds for non-recognition under the Texas Recognition Act. See
DeJoria asserts that MPE and MFM cannot demonstrate reciprocity because “Morocco never has [recognized a Texas judgment], and what it might do in the future is sheer speculation.” The Texas Recognition Act, however, gives the court discretion to not recognize a judgment if “it is established that the foreign country in which the judgment was rendered does not recognize judgments rendered in [Texas] that, but for the fact that they are rendered in [Texas], conform to the definition of ‘foreign country judgment.‘”
We conclude that DeJoria has not established, as required by the Texas Recognition Act, that Morocco would refuse to recognize an otherwise enforceable foreign judgment simply because it was rendered in Texas.
2.
Under the Texas Recognition Act, a court cannot enforce a foreign judgment if the foreign court did not have personal jurisdiction over the defendant.
a.
We turn first to service of process, which is “simply the physical means by which ... jurisdiction is asserted.” Id. We apply Moroccan law to determine whether service of process was proper. See, e.g., Naves v. Nat‘l W. Life Ins. Co., No. 03-08-00525-CV, 2009 WL 2900755, at *2 (Tex.App.-Austin 2009) (evaluating service of process under Brazilian law). One expert explained that service of process under Moroccan law is proper if it is carried out through “means that ensure the recipient receives actual notice.” There is no dispute that DeJoria had actual notice of the Moroccan lawsuit. DeJoria, however, argues that service could not be proper under Moroccan law until Morocco became a signatory to the Hague Convention in 2011. Article 37 of the Morocco Code of Civil Procedure, which was in effect at the time of the suit, provides: “If the recipient resides in a foreign country, [the notification of the suit must be] transmitted through the hierarchy to be sent through the diplomatic channel, subject to the provisions of the diplomatic conventions.” Because there was no convention or treaty governing service on a foreign defendant, DeJoria contends there was no statutory means to ensure actual notice and that this situation “falls squarely” within the Seventh Circuit‘s decision in Koster v. Auto-mark Industries, Inc., 640 F.2d 77 (7th Cir.1981).
In Koster, the Seventh Circuit, in dicta, explained that the Dutch statute governing service of process did not require that service on a foreign defendant be made by certified mail or any other reasonable means; instead, the method of service was left up to the discretion of the Dutch Department of Foreign Affairs. 640 F.2d at 81 n. 3. The court determined that this method of service violated due process. Id. Because DeJoria received actual notice, we conclude that his reliance on Koster is misplaced. The Koster court noted that the issue of service was of “particular significance” because the defendant claimed it never received notice of the foreign lawsuit. Id. In contrast, DeJoria received a copy of the Moroccan lawsuit, even though the process server‘s access to DeJoria‘s property was allegedly obtained deceptively. DeJoria assumed that the documents were “related to the Moroccan lawsuit” and turned them over to his attorneys. In addition, Skidmore filed an anti-suit injunction against the Moroccan lawsuit and included an affidavit from DeJoria. Though DeJoria disputes whether service was technically proper, it is evident from the record that DeJoria had actual notice of the Moroccan lawsuit.
Regardless, foreign courts are not required to adopt “every jot and tittle of American due process.” Ashenden, 233 F.3d at 478. Instead, only “the bare minimum requirements” of notice must be met. Int‘l Transactions, Ltd. v. Embotelladora Agral Regiomontana, SA de CV, 347 F.3d 589, 594 (5th Cir.2003). The Supreme Court has emphasized that a basic requirement of due process is “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Thus, while due process requires only “reasonably calculated” notice, DeJoria had actual notice of the Moroccan lawsuit, which “more than satisfie[s]” his due process rights and meets the bare minimum requirements of notice sufficient to enforce a judgment. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 272, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010); see also Int‘l Transactions, Ltd., 347 F.3d at 594; Ma v. Cont‘l Bank N.A., 905 F.2d 1073, 1076 (7th Cir.1990) (“[N]ot all of the technical requirements of service are sufficient grounds for a collateral attack. Service is designed to produce knowledge....“).
b.
Finally, DeJoria challenges his amenability to jurisdiction. “Amenability to jurisdiction means that a defendant is within the substantive reach of a forum‘s jurisdiction under applicable law.” DeMelo, 711 F.2d at 1264. Courts generally apply the standards of the rendering court to determine jurisdiction. See, e.g., Naves, 2009 WL 2900755, at *2 (applying Brazilian law to determine personal jurisdiction).
DeJoria argues that the Moroccan court lacked jurisdiction because no curator was appointed. Under Article 39 of the Morocco Code of Civil Procedure, “[i]n all cases where the domicile and residence of a party are unknown, the judge appoints, in the capacity as curator, an officer of the court to whom the summons is notified.” Expert testimony revealed that under Moroccan law, the failure to appoint a curator where required violates due process and can result in nullification of a judgment. However, expert testimony further clarified that a “Moroccan court would never appoint a curator for a defendant with a known address.” The Moroccan court was
Under Moroccan law, if the defendant is not domiciled in Morocco, jurisdiction is proper at the domicile or place of residence of the plaintiff. Article 27 of the Morocco Code of Civil Procedure provides: “If the defendant has no domicile or residence in Morocco, [a suit] may be brought before the court of the domicile or residence of the applicant or one of them if there are several.” Thus, jurisdiction was proper in Morocco, where MPE was domiciled.
Further, jurisdiction is proper even under the stricter requirements of American due process. “Texas courts may exercise personal jurisdiction over a nonresident if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of jurisdiction is consistent with federal and state constitutional due-process guarantees.” Moncrief Oil Int‘l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 149 (Tex.2013) (internal quotations omitted). “The long-arm statute allows the exercise of personal jurisdiction over a nonresident defendant who ‘commits a tort in whole or in part in this state.‘” Id. (quoting
Applying the Texas standard as if it were the standard applied by Moroccan courts, we conclude that Morocco obtained personal jurisdiction over DeJoria. “[A]llegations that a tort was committed in [the forum] satisfy [the] long-arm statute....” Id. at 149. Here, MPE and MFM alleged that DeJoria committed torts in Morocco related to his investment in Skidmore and its relationship with Lone Star. Specifically, MFM alleges that DeJoria made fraudulent misrepresentations regarding his investment in Lone Star, and MPE alleges that DeJoria‘s misrepresentations deprived it of necessary capital. These allegations are sufficient to satisfy the long-arm statute.
“A defendant establishes minimum contacts with a state when it ‘purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.‘” Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 (Tex.2009) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). DeJoria voluntarily started a Moroccan corporation to explore for oil reserves in Morocco through Lone Star. DeJoria‘s investment activity was in Morocco. DeJoria visited Morocco in connection with his relationship with Lone Star, including a visit to a drilling site with Morocco‘s then-Energy Minister. Nearly all of the alleged acts and omissions in the underlying case occurred in Morocco. DeJoria thus has sufficient, purposeful contacts with Morocco to render jurisdiction reasonable.
“In addition to minimum contacts, due process requires the exercise of personal jurisdiction to comply with traditional notions of fair play and substantial justice.” Moncrief Oil, 414 S.W.3d at 154. “If a nonresident has minimum contacts with the forum, rarely will the exercise of jurisdiction over the nonresident not comport with traditional notions of fair play and substantial justice.” Id. at 154-55. While litigation in Morocco would have
DeJoria has not established that the Moroccan court lacked personal jurisdiction, and non-recognition is thus not justified under Section
III.
For the foregoing reasons, the judgment of the district court is REVERSED and this matter is REMANDED for further proceedings consistent with this opinion.
CARL E. STEWART
CHIEF JUDGE