DOUG GRANT, INC., Richard Andersen, Judy L. Bintliff, Lynn V. Bohsen, Thomas M. Bolick, Michael Bonn, Roland Bryant, Sr., Eugene Clauser, Elmer Conover, Scott Conover, Joseph Curran, Dino D‘Andrea, Mark F. D‘Andrea, Warren Davenport, Frank Delia, Karen Dwyer, Dennis F. Foreman, Rosemarie Francis, Stephen Freel, Stavros Georgiou, Kenneth Gross, Adib Hannah, G. Hassan Hattina, Leroy N. Jordan, Roman Kern, Richard H. Kessel, Scott Klee, Jeffrey S. Krah, Kathleen E. Lane-Bourgeois, Thomas J. Lotito, Jr., James MacElroy, Martin Malter, Stanley P. McAnally, Anne T. McGowan-Novak, Eugene L. Miserendino, Daniel G. Nauroth, Matthew S. Pellenberg, Daniel Pilone, Stephen F. Pinciotti, Robert E. Prout, Martin Rose, Lynn Rufo, Vincent Salek, Arlen Schwerin, Joseph Scioscia, William F. Strauss, Douglas G. Telman, Aino Tomson, Ants Tomson, Thomas Tomson, Linwood C. Uphouse, Dolores Valancy, Andrew R. Vardzal, Jr., Grant Douglas Von Reiman, Kenneth J. Warner, Steven Watters, Paul V. Yannessa, Doug Grant College of Winning Blackjack, Inc., Sigma Research, Inc., Beta Management, Inc., Favorable Situations Only Inc., t/a Doug Grant Institute of Winning Blackjack, Jan C. Muszynski, Linda Tompson, Appellants, v. GREATE BAY CASINO CORPORATION, Greate Bay Hotel and Casino t/a Sands Hotel and Casino, Sands Hotel and Casino, Hilton Hotels Corporation, GNOC Corp. t/a “Atlantic City Hilton,” Atlantic City Hilton, Bally‘S Park Place, Inc. t/a “Bally‘S Park Place,” Bally‘s Park Place, ITT Corporation, ITT Corporation NV, Caesar‘s World, Inc. a/k/a “Caesar‘s World, Claridge Hotel & Casino Corp., Claridge at Park Place, Inc., Harrah‘s Entertainment, Inc., Marina Associates d/b/a “Harrah‘s Casino Hotel“, Harrah‘s Casino Hotel, Sun International North America Inc., Sun International Hotels Ltd., Resorts International Hotel, Inc., Resorts Casino Hotel, Showboat, Inc., Showboat, Aztar Corporation, Adamar of New Jersey, Inc., (formerly Trop World Casino and Entertainment Resort) t/a Tropicana Casino and Resort, Tropicana Casino and Resort, Trump Hotels & Casino Resorts, Inc., Trump Hotels & Casino Resorts Holdings, L.P., Trump Atlantic City Associates, Trump Plaza Associates, L.P., Trump Plaza Associates, Trump Plaza Hotel and Casino, Trump Taj Mahal Associates, Trump Taj Mahal Casino Resort, The Trump Organization, Inc., Trump‘s Castle Associates, L.P., Trump Castle Associates, Trump Marina Casino Hotel Resort, formerly Trump‘s Castle Casino Resort, John Does 1-100, Griffin Investigations, International Casino Surveillance Network, L.P., Surveillance Information Network, John Does 101-200, F. Michael Daily, Esq., Quinlan, Dunne, Daily & Higgins, Ellen Barney Balint, Meranze & Katz, Caplan & Luber, Lloyd S. Markind, Esq., Richard L. Caplan, Esq., Sharon Morgan, Esq., Michele Davis, Esq.
No. 98-5291
United States Court of Appeals, Third Circuit
Argued Oct. 5, 2000. Filed Nov. 2, 2000.
232 F.3d 173
Frederick H. Kraus, Sands Hotel & Casino, Atlantic City, NJ, Attorney for Appellees Greate Bay Casino, Greate Bay Hotel and Sands Hotel and Casino.
Adam N. Saravay (argued), Tompkins, McGuire, Wachenfeld & Barry, LLP, Newark, NJ, Attorneys for the Trump Casino Appellees and Co-Counsel for the Remaining Casino Appellees and Griffin Investigations.
John M. Donnelly (argued), Levine, Staller, Sklar, Chan, Brodsky, & Donnelly, P.A., Atlantic City, NJ, Attorneys for Casino Appellees (other than the Trump Casino Defendants) and Griffin Investigations.
BEFORE: NYGAARD, GREENBERG and COWEN, Circuit Judges.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this court on appeal from an order entered on May 1, 1998, partially dismissing this action pursuant to
The individual appellants are blackjack players who have frequented Atlantic City casinos operated by the casino appellees. Of the 60 individual appellants, all but six have developed card-counting skills for playing blackjack enabling them to reduce or eliminate the normal odds in favor of the casinos and, indeed, to turn the odds in their favor. The corporate appellants are associated with appellant Doug Grant, Inc., a New Jersey corporation, whose predecessor corporations operated card-counting schools and mock casinos established by the appellant, Doug Grant, a renowned card-counter. Doug Grant, Inc. also provided the training for several cooperative player groups, including many of the appellants here, who pooled their financial resources and agreed to share their blackjack winnings.
A. The Play of Blackjack, Card-Counting and Shuffling-At-Will and Other Countermeasures
The gravamen of appellants’ complaint is that the casinos have taken counter-
It is necessary for us partially to describe how blackjack games are run in order to put appellants’ allegations in context. Blackjack is played with decks containing 52 cards of four suits (hearts, diamonds, clubs and spades) with each suit containing 13 cards (Ace, King, Queen, Jack, 10, 9, 8, 7, 6, 5, 4, 3, 2). See
Once the player has inserted the cutting card, the dealer takes all the cards in front of the cutting card and places them at the back of the stack. See
Once play has commenced the dealer deals the cards to the players in a series of hands until the dealer reaches the cutting card. When the dealer reaches the cutting card, the dealer repeats the shuffling process and cutting procedures described above. See
A blackjack player‘s object is to reach as close as possible to a total card value of 21 without exceeding that value. A player exceeding 21 loses regardless of the dealer‘s subsequently acquired hand. Persons in the casino industry and card-counters have come to recognize that, in a player‘s endeavor to reach a value as close as possible to 21, certain cards are more favorable to the player and certain cards are more favorable to the dealer. In particular, appellants assert that the Ace, King, Queen, Jack and Ten are favorable to a player, but the 6, 5, 4, 3, and 2 are favorable to the dealer and thus to the house. The 7, 8, and 9 are said to be neutral. At any point during the play, the cards in a shoe can contain more player-favorable cards or more dealer-favorable cards. When there
Card-counters attempt to “count cards” to determine whether and when a shoe is player-favorable. They then vary their bets, i.e., betting high when the shoe is player-favorable and low when the shoe is dealer-favorable to increase their chances of having a winning round of play. Bets are placed before each individual round of blackjack, usually within established minimum and maximum limits for the table. According to the appellants, successful card-counting contains several basic elements including the assignment of a point value to each card, maintaining a running total of those points during play, betting strategies, playing strategies, money management, a sufficient bankroll, and “the intangible ability to consistently apply these interrelated strategies under fast-paced casino conditions.” See app. at 24.
For maximum advantage, card-counters need to be able to view, through the rounds of play, as many of the cards in the shoe as possible. The greater number of cards they are able to view, the easier it is for them to determine to whom the remaining cards in the shoe are favorable. For this reason, card-counters prefer that the dealer place the cutting card toward the end of the shoe, leaving a small number of cards behind the cutting-card and increasing the overall number of cards in play. Card-counters also prefer to have the entire shoe of cards played. If the dealer reshuffles prior to reaching the cutting card, then the card-counters’ opportunity to bet high on a shoe with a remainder of mostly player-favorable cards is impaired.
The casinos, on the other hand, prefer to decrease the card-counters’ opportunity to bet high on a player-favorable shoe. Therefore, it is in their interest to decrease the card-counters’ chances of determining whether a shoe is player-favorable by playing with fewer cards in the shoe, i.e., placing the cutting card as far from the back of the stack as permitted by the CCC regulations. It is also in the casinos’ interest to reshuffle prior to reaching the cutting card when the remaining cards in a shoe are player-favorable. These practices, however, come at a cost to the casino as the more often the dealer goes through the meticulous shuffling process, the shorter the actual time of play and thus the smaller the casino‘s profits.
Appellants allege that the casinos maintain card-counting teams and/or video and computer surveillance equipment to identify card-counters and inform the dealers of their participation in a blackjack game so that the dealers can take countermeasures against them. Appellants challenge these practices, claiming they violate the New Jersey “cheating games” section in the Casino Control Act,
Knowingly to deal, conduct, carry on, operate or expose for play any game or games played with cards which have in any manner been marked or tampered with, or placed in a condition, or operated in a manner, the result of which tends to deceive the public or tends to alter the normal random selection of characteristics or the normal chance of the game which could determine or alter the result of the game.
The appellants make several specific allegations to support their claims. See Doug Grant, 3 F.Supp.2d at 524-25. First, they argue that the card-counter identifying process fundamentally is flawed because it tends unfairly to misidentify non-card-counters as card-counters. They claim casinos define card-counters as (1) any patron who increases a bet during a player-favorable count, or (2) any patron who knows or is related to someone who has increased a bet during a player-favorable count. According to appellants,
Second, appellants claim that the casinos utilize what they term the “cheating-at-will” preferential shuffle and which, as codified by the CCC regulations, generally is known as the “shuffle-at-will.” A dealer reshuffling prior to reaching the cut-card marker shuffles-at-will. A casino will shuffle in this manner when its card-counting team determines that the shoe is player-favorable at a table where it suspects card-counters are playing. Appellants allege that the shuffle-at-will provides an extra 2% advantage to the casino, nearly double its normal chance of winning, and thus providing the casinos with a windfall of millions of dollars. Id. at 525. They also claim that a casino can shuffle-at-will abusively to the disadvantage of players who are not card-counters by shuffling-at-will even when its employees do not suspect that there is a card-counter playing at a table: Id.
Appellants recount specific instances in which individual appellants allegedly were subjected to shuffling-at-will by specific casinos throughout the past ten years. On some, but not all, of these occasions, the player reported the shuffle-at-will to the CCC and/or the New Jersey Department of Gaming Enforcement (“DGE“) official on-site at every casino. According to appellants, the casinos never have responded to such complaints by admitting to counting cards and shuffling during a player-favorable count. Id.
Appellants also allege that because they have been identified as card-counters, they are limited to one wager at a time, are refused cards, have bets pushed back, and are forced to bet below the original posted limit at the table. Id. Moreover, they allege that “shills” associated with the casinos sometimes occupy all seats at tables at which they wish to play. Id. The appellants allege that they have been treated in these adverse ways even though players who are not card-counters are not so treated.
Appellants also claim that the casinos have denied them hospitality “comps,” such as meals, after identifying them as card-counters. Id. Finally, appellants allege that they have been threatened, assaulted and stalked because of their suspected card-counter status. Id. They allege that they have been threatened in person while at the casinos by both known and unknown casino employees and that they have been threatened and sent pornographic materials over the Internet by unnamed John Does allegedly connected to the casinos. Id.
B. The Casino Control Act and CCC Regulations
The New Jersey Casino Control Act,
The regulations governing blackjack are exhaustive and set forth in great detail the rules for the conduct of the game. See
The CCC adopted many of its regulations authorizing countermeasures in response to the New Jersey Supreme Court‘s ruling in Uston, 89 N.J. 163, 445 A.2d 370, a case considering whether casinos have the authority to exclude card-counters from their premises. The court determined that casinos were not authorized to exclude card-counters, reasoning that the Act gave the CCC exclusive and plenary authority to set the rules and methods of play of casino games and that the CCC had not authorized the exclusion of card-counters as a countermeasure.3 The court suggested, however, that if the CCC wanted to approve measures to neutralize the card-counter threat, it might be able to exclude card-counters, provided that the regulation did not violate constitutional or statutory limits. Uston, 445 A.2d at 375-76.
Yet, prior to Uston, the CCC had codified a practice which the casinos used as a card-counter countermeasure even though the CCC did not promulgate it for that purpose. This regulation provides that: “[a] casino licensee, in its discretion” may permit a player to “wager on [more than] one box at a Blackjack table.”
After Uston, the CCC held a series of hearings on the issue of card-counters and decided to enact regulations authorizing the casinos to use certain measures to neutralize the potential negative effect card-counters could have on their financial viability. See Campione, 714 A.2d at 305. The new regulations, which the New Jersey Supreme Court urged the CCC to consider in lieu of allowing the casinos to exclude card-counters, balanced the statutory goals of casino viability and fair odds to all players. See
Several of these countermeasures involved the manner by which casinos could
(a) Immediately prior to commencement of play, after any round of play as may be determined by the casino licensee and after each shoe of cards is dealt, the dealer shall shuffle the cards so that they are randomly intermixed.
(h) A reshuffle of the cards in the shoe shall take place after the cutting card is reached in the shoe ... except that:
- The casino licensee may determine after each round of play that the cards should be reshuffled;
- When the ‘Bart Carter Shuffle’ is utilized a reshuffle shall take place after the cards in the discard rack exceed approximately one deck in number.
The CCC also has approved the use of a device known as the continuous shuffling shoe. In place of the dealing and shuffling requirements set forth in
The shuffling regulations, particularly the most commonly used shuffle-at-will, have enabled the casinos to lessen the card-counters’ ability to determine whether cards remaining in the shoe are player-favorable. As we already have noted, when the cards are reshuffled continuously or prior to the dealer reaching the cutting-card in the shoe, card-counters lose their potential advantage over the casinos because they no longer can increase their bets, secure in the knowledge that their chance of receiving player-favorable cards has been increased.
The CCC also authorized one non-shuffling countermeasure after the Uston decision—an increase in the number of decks casinos are allowed to use in blackjack play. See
After the CCC authorized these initial countermeasures, in 1991 it approved another regulation which provides that:
[A] casino licensee may at any time change the permissible minimum or maximum wager at a table game, without notifying the Commission of such change, upon posting a sign at the gaming table advising patrons of the new permissible minimum or maximum wager and announcing the change to patrons who are at the table.
(b) A casino licensee may offer:
- Different maximum wagers at one gaming table for each permissible wager in an authorized game; and
- Different maximum wagers at different gaming tables for each permissible wager in an authorized game.
(c) A casino licensee shall provide notice of the minimum and maximum wagers in effect at each gaming table, and any changes thereto, in accordance with
N.J.A.C. 19:47-8.3 .(d) Notwithstanding (c) above, a casino licensee may, in its discretion, permit a player to wager below the established minimum wager or above the established maximum wager at a gaming table.
(e) Any wager accepted by a dealer which is in excess of the established maximum permitted wager at that gaming table shall be paid or lost in its entirety in accordance with the rules of the game, notwithstanding that the wager exceeded the current table maximum or was lower than the current table maximum.
The New Jersey courts seem not to doubt the legality of the CCC-authorized countermeasures. In particular, the trial court in Campione recognized that the practice of “shuffling at will,” the central concern in this case identified by the district court, is authorized by CCC regulation, see
II. JURISDICTION
The complaint in this action alleged violations of the United States Constitution,
III. STANDARD OF REVIEW
Our review of a district court‘s order of dismissal of a complaint pursuant to
IV. DISCUSSION
A. RICO Claims
Appellants’ first count alleges claims for racketeering under federal RICO,
The district court believed that the primary purported predicate act on which appellants relied is the shuffling of cards when the count is favorable to the players.4 The complaint alleges that use of the “shuffling-at-will” countermeasure constitutes a predicate act of racketeering because it violates the criminal casino “cheating” statute,
(a) Immediately prior to commencement of play, after any round of play as may be determined by the casino licensee and after each shoe of cards is dealt, the dealer shall shuffle the cards so that they are randomly intermixed.
(h) A reshuffle of the cards in the shoe shall take place after the cutting card is reached in the shoe as provided in
N.J.A.C. 19:47-2.6(l) except that:
- The casino licensee may determine after each round of play that the cards shall be reshuffled.
The regulatory history makes clear that the CCC is fully aware of and allows the practice of shuffling-at-will when there is a player-favorable count as a countermeasure against card-counters. When the CCC published the proposed regulation to allow the casinos to shuffle-at-will, it noted that the casinos might shuffle when the count is favorable and that this practice might affect the odds of the game:
The economic impact of this proposed amendment would vary depending on when in fact the cards were shuffled. For example, if the cards were always shuffled after the first round of play regardless of the point count, then the casino advantage against the basic strategy player and average player would probably remain the same with the advantage enjoyed by the card counter being decreased. If the cards, however, were only shuffled in positive point count situations and not in negative point count situations, the casino advantage against all types of players would increase.
14 N.J. Reg. 470 (May 17, 1982).
Appellants appear to take issue with the propriety of the shuffle-at-will regulation. But even assuming that in this action we should entertain a challenge to the regulation, we perceive nothing illegal in it.5 In any event, even if the regulation is an improper exercise of the CCC‘s authority, a conclusion that we reject, a casino following it before its invalidation hardly could be subject to RICO liability for that conduct. In our view, a casino does not commit a predicate RICO act when it engages in conduct the CCC expressly permits.
We are disturbed that appellants have couched their arguments in dramatic hyperbole obfuscating the real issues. Indeed, we are satisfied that the appellants have mischaracterized the facts. For instance, appellants characterize the use of the shuffle-at-will as “secretly removing cards from a blackjack game in progress.” See br. at 30. But the reshuffle is hardly secret as the dealer does it openly in the view of the players. Moreover, a dealer reshuffling does not remove cards from the deck. Rather, the reshuffle simply places the cards in a different random order for the next hands.
Appellants further allege that the shuffle-at-will is a RICO criminal predicate act because it has a tendency to alter the normal random chance of the game. See br. at 32-39. What appellants fail to realize, however, is that the normal random chance of the game is defined pursuant to
[T]he normal chance and random character of any casino game is necessarily defined and determined by the rules governing the conduct of the game. Since the Commission has the statutory authority to initially establish the rules of the game,
N.J.S.A. §§ 5:12-100e and70f , and primary jurisdiction to resolve any issues concerning interpretation of the Act and the rules promulgated thereunder, ... it is absurd to allege that practices approved by the Commission as being consistent with its rules constitute ‘cheating’ under section 115 of the Act.
31 N.J. Reg. 556 (Feb. 16, 1999). While appellants may wish to have the CCC rethink the scope of the shuffle-at-will regulation, we are satisfied that after being stripped of its conclusory legal dressing, there is no allegation in the complaint regarding reshuffling sufficient to support a RICO claim against the casino defendants.
Appellants’ other alleged predicate acts are similarly insufficient to support a RICO claim. The alleged violations of criminal statutes regarding unlawful debt collection,
Furthermore, appellants, although mentioning the use of “shills” in their complaint, have not made any allegations that the casinos violate the statutory prohibition of the use of “shills,” i.e., persons who induce potential patrons to enter a casino or induce them to play any game. See
In their brief, appellants further assert that the CCC stated in an administrative proceeding that it would be deceptive for casinos actively to solicit a player to count cards in its casino without letting the player know that countermeasures will be used against those suspected of counting cards. See br. at 11, 25. Appellants, however, fail to cite the full text of the CCC‘s statement, which concluded:
[T]he Commission does not believe that any of the exhibits submitted by the commenters come even close to supporting an allegation of active solicitation of card counter play by a casino licensee.
31 N.J. Reg. 556 (Feb. 6, 1999). Thus, appellants’ reference to the CCC‘s statement adds nothing to their allegation that the casinos’ use of shills constitutes a RICO act.
Appellants also assert that it is deceptive for the casinos to fail to provide players with a complete text of the rules
The appellants also allege that it is impermissible for the casinos to require one player‘s wager to be less than that of other players at the same table. See br. at 40 (citing
Appellants next argue that the casinos’ failure to obtain prior approval for the countermeasures they implement constitutes a predicate act. See br. at 40-41. Yet appellants also recognize that the CCC has determined that the casinos do not need prior approval to implement the measures. See id. at 41. While the appellants note that that ruling is being challenged on appeal, it will be time enough for a federal court to consider the RICO implications if and when the CCC determines that the casinos’ practices are illegal and the casinos do not comply prospectively with the CCC‘s determinations.
The only alleged predicate acts that are not based on CCC regulations are the allegations of assaults, threats, and stalking-in-person and via the Internet. Appellants allege that one appellant was knocked off his seat on one occasion, that some appellants were followed around casinos, and that one appellant was grabbed by the arm while being escorted out of a casino. However, these minor altercations cannot be regarded as conduct egregious enough to serve as predicate acts sufficient to support what appellants apparently believe is massive litigation, in which, before trebling, they are seeking at least $347,532,800 in damages. See Doug Grant, 3 F.Supp.2d at 522 n. 1. Nor do the appellants’ claims of receiving anonymous pornographic, offensive and threatening messages over the Internet from John Doe defendants constitute predicate acts attributable to the appellees, as appellants put forth no basis for concluding or even alleging that anyone associated with the casinos sent the messages. Accordingly, we will affirm the order of the district court dismissing the state and federal RICO causes of action.
For the reasons we have set forth, we have reached the conclusion that appellants’ allegations that the casinos or any appellee has committed predicate RICO acts are completely insubstantial and border on the frivolous. In the circumstances, inasmuch as appellants have failed to allege any predicate act upon which to base a RICO claim, we need not determine conclusively whether appellants properly have pleaded injury to business or property as required for a RICO damages action. See
Unlike an ordinary RICO victim, in this case the allegedly injured plaintiffs, i.e., the players, can avoid any injury sim-
B. Leave to Amend
The appellants originally pleaded a cause of action under the New Jersey Consumer Fraud Act, but omitted that claim in their amended complaint. In the district court, and here, they have asked permission to amend their complaint to reinclude the Consumer Fraud Act claim. The district court denied appellants leave to amend because it found that the Consumer Fraud Act claim was completely without merit and it would be futile to amend the complaint to include a meritless claim. See Doug Grant, 3 F.Supp.2d at 536-37.
As noted by the district court, the New Jersey Supreme Court recently has held that the Consumer Fraud Act does not apply to a heavily regulated industry to the extent that application of the statute would create a “real possibility” of conflict between the Consumer Fraud Act, as administered by the Division of Consumer Affairs, and the regulatory schemes of other administrative bodies. See Lemelledo v. Beneficial Mgmt. Corp. of Am., 150 N.J. 255, 696 A.2d 546, 553 (1997). Thus, the Consumer Fraud Act is inapplicable where “the other source or sources of regulation deal specifically, concretely, and pervasively with the particular activity, implying a legislative intent not to subject parties to multiple regulations that, as applied, will work at cross-purposes.” Id. at 554.
Certainly the Casino Control Act evidences the New Jersey legislature‘s intent to vest in the CCC exclusive control of the regulation of casino gaming, including the content of related advertising. See
In reaching our result on this point, we emphasize that the goals of the Consumer Fraud and the Casino Control Acts are not entirely consistent. The Consumer Fraud Act is concerned with the protection of consumers. The Casino Control Act, however, has dual purposes that must be balanced—the protection of gambling patrons and the protection of the financial viability of the casino industry.
C. Dismissal Against John Does with Prejudice
The sixth count of the complaint alleges various state and federal statutory claims against John Does for sending offensive messages and alleged threats over the Internet. But while the appellants in the complaint sought relief against the casino appellees for these acts, see app. at 104, they failed to offer any link between the John Does and the casinos. Thus, the district court properly dismissed this aspect of the complaint, though it did so with prejudice. We conclude, however, that the dismissal should have been without prejudice, allowing appellants to bring a claim at a later time if they uncover sufficient facts to permit them to plead facts supporting a conclusion that the casinos were responsible for these acts. Accordingly, we will vacate the order dismissing the sixth count with prejudice to the extent that it included claims relating to the sending of the offensive messages and threats over the Internet, and with respect to that aspect of the order will remand the matter to the district court to modify the order so that it dismisses the count without prejudice.
D. Constitutional and Civil Rights Claims
Appellants’ sixth count also alleges violations of the Equal Protection Clause, the Due Process Clause, Article 1, paragraph 1 of the New Jersey Constitution, and
V. CONCLUSION
We have carefully considered all of appellants’ arguments, including those that we may not have addressed specifically, and have concluded that the district court properly dismissed this action with prejudice with respect to the counts of the complaint that it addressed, except that it should have dismissed count six without prejudice to the extent that the count related to sending offensive messages and threats over the Internet.8 Consequently, we will modify the order of dismissal to provide that count six partially is dismissed without prejudice, and we otherwise will affirm the order of dismissal with prejudice, and will affirm the order remanding the remaining aspects of the complaint to the Superior Court of New Jersey. We will remand the case to the district court to enter an order consistent with this opinion. Costs on this appeal will be taxed against appellants.