                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit Rule 206
                               File Name: 12a0322p.06

              UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                           X
                      Plaintiff-Appellant, -
 TEXTILEATHER CORPORATION,
                                            -
          v.                                -
                                            -
                                                        No. 10-3634

                                            ,
                                             >
                     Defendant-Appellee. N
 GENCORP INC.,


                   Appeal from the United States District Court
                    for the Northern District of Ohio at Toledo.
                   No. 08-00171—Jack Zouhary, District Judge.
                              Argued: March 2, 2012
                     Decided and Filed: September 11, 2012
              Before: SILER, ROGERS, and WHITE, Circuit Judges.

                               _________________

                                    COUNSEL
ARGUED: Louis E. Tosi, SHUMAKER, LOOP & KENDRICK, LLP, Toledo, Ohio,
for Appellant. Robert S. Walker, JONES DAY, Cleveland, Ohio, for Appellee.
ON BRIEF: Louis E. Tosi, Joseph S. Simpson, SHUMAKER, LOOP & KENDRICK,
LLP, Toledo, Ohio, Michael J. O’Callaghan, SHUMAKER, LOOP & KENDRICK,
LLP, Columbus, Ohio, for Appellant. Robert S. Walker, Matthew P. Silversten, JONES
DAY, Cleveland, Ohio, for Appellee.
                               _________________

                                    OPINION
                               _________________

       SILER, Circuit Judge. Textileather Corporation, which purchased a vinyl-
manufacturing facility with hazardous waste management units (“RCRA units”) from
GenCorp Inc., appeals from the district court’s grant of summary judgment to GenCorp
in this breach-of-contract and Comprehensive Environmental Response, Compensation
and Liability Act (“CERCLA”) action. We AFFIRM IN PART, REVERSE IN PART,



                                         1
No. 10-3634        Textileather Corp. v. GenCorp                                        Page 2


and REMAND the case to the district court for further proceedings consistent with this
opinion.

                                             I.

       GenCorp owned and operated a vinyl-manufacturing facility from the mid-1950s
to 1990, including the operation of several RCRA units, which reclaimed solvent waste.
Under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et
seq., GenCorp was obligated to obtain permits to operate these units.

       In 1989, GenCorp entered into negotiations to sell the vinyl-manufacturing
facility to Textileather. In order to address allocation of each side’s liabilities, the
parties jointly hired an environmental consulting firm. GenCorp applied for, but had not
received, all of the required RCRA permits at the time of its agreement with
Textileather.

       The negotiations culminated in an Asset Purchase Agreement (“APA”), which
specified, in relevant part, GenCorp’s retained liabilities, and contained a provision
requiring each party to indemnify and defend against their retained liabilities. Section
9.1.1 of the APA, titled “Retained Liabilities,” provides the following:

       Seller will retain responsibility for:

               (a) all liabilities, if any, to third persons in respect of the
       substances, conditions and other matters which are included on the
       Chemicals List in Section 9.1.6, . . . whenever such liabilities may arise,
       and by whatever third persons may assert such liabilities, specifically
       including (A) fines, penalties, judgments, awards, settlements, losses,
       damages, costs, fees (including attorneys’ and consultants’ fees),
       expenses and disbursements, (B) defense and other responses to any
       administrative or judicial action (including claims, notice letters,
       complaints and other assertions of liability) instituted by any third person
       concerning any such liability, and (C) financial responsibility for
       (i) cleanup costs and injunctive relief, including any removal, remedial
       or other response actions, and natural resource damages, and (ii) any
       other compliance or remedial measures. . . . and
                (b) all liabilities, if any, to third persons (including the types of
       liabilities identified in (a)(A)-(C) above) in respect of any substance,
No. 10-3634        Textileather Corp. v. GenCorp                                     Page 3


       condition or other matter related to the off-site management (including
       handling, storage, treatment, recycling, transportation or disposal) of any
       material after June 14, 1954 and prior to the Closing at any off-site
       property.

Section 9.1.4, titled “Indemnification,” provides the following:

                Seller will indemnify and defend Purchaser with respect to the
       liabilities retained by Seller as provided in Sections 9.1.1 and 9.1.2
       above; provided that Purchaser promptly gives Seller notice of any
       claims or actions, transmits to Seller copies of all documents and papers
       received by or served on Purchaser in connection therewith, permits
       Seller to control the defense thereof, and (at its own expense) fully
       cooperates with Seller in the defense thereof. Purchaser will indemnify
       and defend Seller with respect to the liabilities assumed by Purchaser as
       provided in 9.1.3 above; provided that Seller promptly gives Purchaser
       notice of any claims or actions, transmits to Seller copies of all
       documents and papers received by or served on Seller in connection
       therewith, permits Purchaser to control the defense thereof, and (at its
       own expense) fully cooperates with Purchaser in the defense thereof.

The parties entered the APA on May 30, 1990, and Textileather became the owner of the
vinyl-manufacturing facility on June 4, 1990.

       Six months after the purchase, Textileather decided to discontinue use of the
RCRA units. Textileather began the closure process required by Ohio Administrative
Code § 3745-66. However, during Textileather’s efforts to close the RCRA units, the
Ohio Environmental Protection Agency (“OEPA”) issued several Notices of Deficiency.
These notices led to an extended period of negotiations between OEPA and Textileather.
The Notices of Deficiency required Textileather to complete a detailed soil-sampling
analysis, as well as follow OEPA-developed, site-specific clean-up standards and
implement a ground-water-monitoring program. For a more detailed account of the
interactions between Textileather and OEPA, see Textileather v. Korleski, Nos. 06AP-
955, 06AP-956, 2007 WL 2306968 (Ohio Ct. App. Aug. 14, 2007).

       In 2001, OEPA approved a closure plan submitted by Textileather. In its letter
regarding the approved closure plan, OEPA noted that compliance with this approved
plan was expected and would be monitored. Textileather appealed portions of the
No. 10-3634        Textileather Corp. v. GenCorp                                  Page 4


approved plan. The Ohio Tenth District Court of Appeals affirmed the plan in part and
reversed in part with instructions to OEPA to approve a plan consistent with its holding.
OEPA has not yet issued a new plan. Throughout the course of the RCRA closure
proceedings, including the negotiation of various plans and appeal of the approved plan,
Textileather notified GenCorp that it believed, pursuant to the APA, GenCorp was
obligated to indemnify and defend Textileather in these proceedings.

       Textileather brought this action to recover the costs it incurred in the RCRA
closure proceedings. Textileather and GenCorp filed cross-motions for summary
judgment, and the district court granted GenCorp’s motion and denied Textileather’s
motion. In particular, the district court held the APA to be unambiguous and determined
that, under the terms of the APA, OEPA did not constitute a “third party” and
Textileather’s RCRA closure proceedings with OEPA did not constitute a “claim or
action.”

                                           II.

       We review a grant of summary judgment de novo, construing the evidence and
drawing all reasonable inferences in favor of the nonmoving party. Hirsch v. CSX
Transp., Inc., 656 F.3d 359, 362 (6th Cir. 2011).

A. Breach of Contract Claim

       Textileather agues that the district court erred in its interpretation of the APA
because that agreement requires GenCorp to defend and indemnify Textileather for the
RCRA closure proceedings.         We agree that, under the APA, GenCorp bears
responsibility.

       Per the terms of the APA, Ohio law governs the dispute. Under this law, contract
interpretation is a question of law for determination by the court. Savedoff v. Access
Grp., Inc., 524 F.3d 754, 763 (6th Cir. 2008); Saunders v. Mortensen, 801 N.E.2d 452,
454 (Ohio 2004). Ohio courts examine contracts in order to determine the intent of the
parties, which is presumed to reside in the language of the agreement. Savedoff,
524 F.3d at 763. We must apply the plain language of the contract unless that language
No. 10-3634        Textileather Corp. v. GenCorp                                   Page 5


is ambiguous. Id. “[C]ommon words appearing in a written instrument will be given
their ordinary meaning unless manifest absurdity results[] or unless some other meaning
is clearly evidenced from the face or overall contents of the instrument.” Foster Wheeler
Enviresponse, Inc. v. Franklin Cnty. Convention Facilities Auth., 678 N.E.2d 519, 526
(Ohio 1997) (quoting Alexander v. Buckeye Pipe Line Co., 374 N.E.2d 146, 150 (Ohio
1978), superseded by statute on other grounds). “[A] writing, or writings executed as
part of the same transaction, will be read as a whole, and the intent of each part will be
gathered from a consideration of the whole.” Id.

1. Third Person

       We begin by addressing whether OEPA is a “third person.” Section 9.1.1 of the
APA defines GenCorp’s retained liabilities as limited to those owed to “third persons.”
The district court reasoned that “the parties cannot provide, nor has the Court found, any
case holding that a regulatory obligation incurred by a party’s own business decision is
the same as a third-party claim or action.” In considering this issue, the district court
explained that OEPA could act as a third party if “OEPA demands Textileather clean-up,
but Textileather refuses, and . . . OEPA then hires a contractor to come in and do the
clean-up. In this situation, . . . OEPA would be a ‘third person’ contemplated by the
APA who may attempt to sue Textileather to recover its costs.” Because Textileather
complied with OEPA’s orders instead of disregarding them, the district court found only
first-party regulatory obligations in this case, which it did not view as covered by the
APA.

       We interpret the phrase “third person” differently. To ascertain the common
meanings of terms or phrases not defined in the language of contracts, Ohio courts
routinely turn to dictionaries. See, e.g., United Ohio Ins. Co. v. Brooks, No. 12-11-04,
2012 WL 1099821, at *4 (Ohio Ct. App. Apr. 2, 2012) (slip copy) (citing Merriam
Webster’s Collegiate Dictionary and Black’s Law Dictionary); Ohio Valley Associated
Builders & Contractors v. Rapier Elec., Inc., 947 N.E.2d 1261, 1265 (Ohio Ct. App.
2011). The APA does not define the phrase “third person,” but it is commonly
understood to refer to a person or entity who is not a party to an interaction or
No. 10-3634         Textileather Corp. v. GenCorp                                     Page 6


agreement. See, e.g., Oxford English Dictionary (2002) (“[a]dditional to and distinct
from two others already known or mentioned”); Webster’s Third New International
Dictionary (2002) (“someone or something that is neither the speaker or writer of the
utterance in which they occur nor the one to whom that utterance is addressed”); The
Random House College Dictionary (1980) (“anything or anyone other than himself or
the one or ones to whom he is speaking”). OEPA was not a party to the APA, so it fairly
falls under the common meaning of “third person.”

        The remainder of the APA presents further evidence that OEPA should be
considered a “third person.” Section 9.1.1 provides examples of the types of third-party
liabilities retained by GenCorp, and those include fines, penalties, responses to
administrative actions, and financial responsibility for compliance and remedial
measures. The examples reflect various forms of liability that governmental agencies,
such as OEPA, could require Textileather to incur. Thus, the phrase “third person” must
be broad enough to cover entities to whom the aforementioned examples of liability
could be owed because the use of these examples illustrates that the parties intended the
coverage of Section 9.1.1 to include them.

        Additionally, Anderson Development Co. v. Travelers Indemnity Co., 49 F.3d
1128 (6th Cir. 1995), is instructive. In that case, a panel of this court explained that,
under Michigan law, existing environmental nuisances constitute third-party liabilities.
The EPA warned the plaintiff that failure to comply with potentially responsible party
(PRP) notices would result in the plaintiff’s being liable for all costs associated with
removal or remedial action and all other necessary costs incurred in cleaning up the
location. Id. at 1130. Subsequently, the EPA determined that a clean-up would be
required. Id. The plaintiff cooperated voluntarily. Id. at 1134. The plaintiff had a
liability insurance policy and notified its insurer of this claim, but the insurer refused to
defend or cover the matter. Id. at 1130. The plaintiff then filed suit against its insurer,
seeking a declaration that its liability insurance policies covered all the costs of defense
and indemnification resulting from the EPA negotiations and environmental clean-up.
Id. The district court granted the defendant’s motion for summary judgment because it
No. 10-3634         Textileather Corp. v. GenCorp                                   Page 7


found that the letter and consent decree were not a lawsuit and that environmental clean-
up costs were not damages. Id. On appeal, we held that when the EPA mandated a
clean-up, it constituted a third-party liability. Id. at 1134.

        GenCorp’s efforts to distinguish Anderson are not persuasive. First, under Ohio
law, GenCorp stepped into the position of an insurer to the extent provided for in the
indemnity provision. See Allen v. Standard Oil Co., 443 N.E.2d 497, 499-500 (Ohio
1982) (involving an analogous indemnity provision). Thus, the fact that Anderson arises
in the insurance context has no substantive import. Second, Ohio courts consider PRP
notices to be claims of liability. See Prof’l Rental, Inc. v. Shelby Ins. Co., 599 N.E.2d
423, 430 (Ohio Ct. App. 1991).          For reasons detailed in the next section, this
determination brings PRP notices under the APA.

        Anderson substantiates our conclusion that OEPA is a third party in this case.
In both the case at bar and Anderson, a government agency demanded clean-up. In both
cases, the plaintiff sought indemnification based upon a prior contract. Unlike the
hypothetical situation suggested by the district court, neither plaintiff refused to comply
with the government agency; instead, each plaintiff chose to comply voluntarily. In
Anderson, the voluntary nature of the compliance did not change the EPA’s status as a
third party relative to the contract to indemnify and defend. 49 F.3d at 1134 (“Thus . . .
there was indeed liability to a third party–the EPA.”). Similarly, Textileather’s
compliance does not change OEPA’s status in this case. The contract’s use of the term
“third person” unambiguously includes administrative agencies, such as OEPA.

2. Demands for Liability

        Next, the OEPA closure proceedings constitute demands for liability addressed
by the APA. The first sentence of Section 9.1.4, the only sentence which discusses
GenCorp’s indemnity responsibilities, contains two clauses separated by a semicolon.
The first clause explains the liabilities for which GenCorp is obligated to indemnify and
defend. The second clause describes notice and filing requirements that Textileather
must meet in order for GenCorp to defend it. The clause explaining GenCorp’s
No. 10-3634            Textileather Corp. v. GenCorp                                               Page 8


obligation to indemnify defines that obligation by reference to Sections 9.1.1 and 9.1.2.1
The phrase “claims or actions” only appears in the subsequent clause which describes
the notice and filing requirements. Based on this structure, the phrase “claims or
actions” is best understood to refer back to the liabilities described in the previous
clause.

          But the term “liability” is not defined in the APA. However, liability is
commonly understood to mean a monetary obligation, “something disadvantageous,” or
“the state or quality of being liable.” The Random House Dictionary (2012); see The
American Heritage New Dictionary of Cultural Literacy (2005) (“[a]n obligation or
debt”); Oxford English Dictionary (1989) (“[t]he condition of being liable or answerable
by law or equity”). The final closure plan required Textileather to perform various
investigations and clean-ups. These measures and their inherent costs to Textileather
constitute something disadvantageous. Furthermore, the letter that OEPA wrote to
Textileather, which was attached to the approved closure plan, illustrates that
Textileather was legally responsible for compliance. In that letter, OEPA states:

          [c]ompliance with the approved closure plan . . . is expected. Ohio EPA
          will monitor such compliance. The director expressly reserves the right
          to take action . . . to enforce such compliance and to seek appropriate
          remedies in the event of noncompliance with the provisions and
          modifications of this approved closure plan. . . . You are hereby notified
          that this action of the director of the Environmental Protection Agency
          is final and may be appealed to the Environmental Review Appeals
          Commission pursuant to Ohio Revised Code Section 3745.04.

The plain language of the letter illustrates that OEPA considers this approval to be an
administrative action requiring compliance. Further, the fact that Textileather appealed
the closure plan demonstrates that the closure plan’s demands for liability were subject
to impartial oversight. Because the closure plan required Textileather to take certain
actions and thereby incur certain monetary obligations, it is appropriately considered a
demand for liability.


          1
          Section 9.1.1 applies to chemicals on the Chemicals List in Section 9.1.6, and there is no dispute
that some of the chemicals at issue in the closure proceedings are included on the Chemicals List.
No. 10-3634        Textileather Corp. v. GenCorp                                 Page 9


       The Notices of Deficiency are also liabilities covered by the APA. Notices of
Deficiency permit the director of OEPA to require a party to take certain actions. Ohio
Admin. Code § 3745-66-12(D)(4) (explaining that “[i]f the director does not approve the
plan he will provide the owner or operator with a detailed written statement of reasons
for the refusal and the owner or operator must modify the plan or submit a new plan for
approval within thirty days after receiving such written statement”). In this case, the
Notices of Deficiency required that, among other things, Textileather provide OEPA
with a detailed soil sampling analysis, follow OEPA-developed site-specific clean-up
standards, and implement a ground-water-monitoring program. Requiring Textileather
take these actions necessarily imposed monetary obligations on Textileather. Thus, it
is reasonable to consider these notices as demands for liability.

       Both of these demands are backed by OEPA’s legal authority. The director of
OEPA has the authority to issue Notices of Deficiency and to approve closure plans
under Ohio Administrative Code §§ 3745-66-11, 3745-66-12. Both of these rules were
promulgated pursuant to the authority granted to the director of the OEPA by Ohio
Revised Code Annotated § 3734.12. See Ohio Admin. Code §§ 3745-66-11, 3745-66-
12. Under Ohio Revised Code Annotated § 3734.13, the director of OEPA can request
that the Attorney General for the State of Ohio institute a civil action to enforce a
violation of Section 3734 or a violation of the rules adopted pursuant to the authority
given to the director in that chapter. Failure to comply with a closure plan can lead to
injunctive relief and civil penalties. E.g., State ex rel. Petro v. Mercomp, Inc.,
853 N.E.2d 1193, 1201-02 (Ohio Ct. App. 2006) (affirming a Court of Common Pleas
grant of summary judgment to the State of Ohio for claims that the defendant failed to
comply with an approved closure plan). Because the orders are backed by legal
authority, they are demands for liability.

       Construing demands for clean-up as a demand for liability is supported by Ohio
case law. Prof’l Rental, Inc., 599 N.E.2d at 427, provides insight into how Ohio Courts
would evaluate the communications at issue in this case. The court considered whether
a PRP notice imposes liability and determined that the PRP notice was not a lawsuit
No. 10-3634         Textileather Corp. v. GenCorp                                    Page 10


because it did not impose liability. Id. at 429-30. Rather, PRP notices require a further
step to impose liability. Id. However, the court found these notices to be a “claim” of
liability and demand for restitution because, unlike lawsuits, PRP notifications do not
compel clean-up. Thus, under Ohio law, the distinction between demanding and
enforcing a liability is whether a party is compelled to resolve it. Because of the
director’s ability to enforce Notices of Deficiency and approve closure plans with one
additional step, Ohio courts could reasonably consider these letters to be demands for
liability.

        The notices in this case are also covered by Section 9.1.1 of the APA. The list
of examples of GenCorp’s retained liability in Section 9.1.1(a) demonstrates that the
parties intended the term “liability” to be used broadly. The parties specifically stated
that GenCorp retained responsibility for “other responses to any administrative or
judicial action (including claims, notice letters, complaints and other assertions of
liability) instituted by any third person concerning any such liability.” The parenthetical
illustrates the breadth of the assertions of liability that the parties intended to include in
this contract. Because all of Textileather’s actions were taken in response to either
notice letters or other assertions of liability expressly stated in the APA, the
unambiguous interpretation of the APA is that its indemnity provisions included the
costs associated with these responses. Therefore, the costs at issue in this case were
unambiguously based on a third person’s demand for liability and are covered by the
plain language of Section 9.1.1.

        Last, GenCorp claims that this case should be dismissed under Section
9.1.1(a)(2)(B), which provides:

        [GenCorp] will have no responsibility or obligation in respect of: . . .
        (2) any substance, condition or other matter included on the Chemicals
        List in respect of which an action is first asserted after [the deal closed],
        to the extent that such action: . . . (b) is asserted directly because of
        actions taken by [Textileather] or its employees, except actions
        (including the filing of any report or document) that [Textileather] is
        legally obligated to take.
No. 10-3634        Textileather Corp. v. GenCorp                                   Page 11


GenCorp argues that OEPA’s orders should be considered “asserted directly because of
actions taken by” Textileather, and, therefore, liability for them was not retained by
GenCorp. Textileather responds, and we agree, that the liabilities at issue fall within the
exception to the exception. Under Section 9.1.1(2)(b) any action that Textileather is
legally obligated to take is excluded from this exception. Upon receipt of the final
volume of hazardous waste, Textileather was under a legal obligation to close the RCRA
units pursuant to an OEPA-approved closure plan. Ohio Admin. Code § 3745-66-13.
In order to secure an approved closure plan, Textileather drafted several closure plans.
OEPA issued various Notices of Deficiency until finally agreeing to the approved
closure plan. Textileather’s actions in response to the Notices of Deficiency and the
approved closure plan were legally required by OEPA. Thus, the liabilities at issue stem
from actions Textileather was legally obligated to take.

       For the foregoing reasons, as to this claim, we reverse the district court’s decision
granting summary judgment to GenCorp and instruct the district court to enter summary
judgment in favor of Textileather on the legal question of whether the retained liabilities
section applies. We remand this case to the district court for proceedings to determine
the appropriate allocation of costs and damages under the terms of that provision.

B. CERCLA Claim

       Textileather argues that the district court erred in finding that the contract’s
language was broad enough to include CERCLA liability. Parties may allocate
CERCLA liabilities in their contract. White Consol. Indus., Inc. v. Westinghouse Elec.
Corp., 179 F.3d 403, 409 (6th Cir. 1999) (citation omitted). Even when a contract was
written prior to the passage of CERCLA, we have found that contracts which used
sufficiently broad language could transfer CERCLA liability. Id. In White, we noted
that Ohio law did not address whether a contract written before CERCLA was enacted
could transfer CERCLA liability. Id. at 409-10. After examining other circuit court
precedent, we found that a contract allocates CERCLA liability when “it is either
specific enough to include CERCLA liability or general enough to include any and all
environmental liability.” Id. at 410 (collecting cases). At the time of this decision, no
No. 10-3634        Textileather Corp. v. GenCorp                                  Page 12


Ohio state court has decided what language is required to allocate CERCLA
responsibility, and we believe that Ohio courts would be persuaded that the language
required by White is sufficient to transfer CERCLA liability.

       We affirm the district court’s decision on this issue on that basis. The APA
provides that “[Textileather] will assume [GenCorp’s] liabilities in respect of any
substance or environmental conditions relating to the Business except those retained by
[GenCorp] provided in Sections 9.1.1 and 9.1.2.” But Section 9.1.1 is expressly limited
to liabilities to third persons. By the plain language of this provision, the APA allocates
all environmental liabilities, including CERCLA liability.

       Textileather argues that the district court is mistaken in its interpretation. It
claims that it only assumed liabilities relating to the “Business.” “Business” is a defined
term in the APA: “manufacturing automotive soft interior and other products.”
Textileather adds the phrase “conducted as of May 30, 1990” to that definition.
However, Textileather does not provide a citation for this additional phrase.

       There are two reasons why this argument is not persuasive. First, because it is
unclear where the “May 30, 1990” addition came from, there is no reason to assume that
it was the intent of both parties to define the term “Business” as only including the
events occurring after that date. Second, reading the APA as a whole provides further
support that all environmental liabilities, except those in Section 9.1.1, were assigned.
Unlike Sections 9.1.1(a), 9.1.2, and 9.1.3, Section 9.1.1(b) makes an explicit reference
to the time frame of GenCorp’s ownership. Had the parties intended to limit Section
9.1.3 as Textileather contends, it is reasonable to expect similar language to appear in
Section 9.1.3. For these reasons, Textileather’s first argument is not persuasive.

       Additionally, Textileather argues that we should look to other circuits and district
courts in order to hold that the contract does not allocate CERCLA liability. Textileather
cites various cases which involve a more limited transfer of liability and where the court
did not find that CERCLA liability was transferred. E.g., PMC, Inc. v. Sherwin-Williams
Co., 151 F.3d 610, 615 (7th Cir. 1998) (holding that due to the existence of a provision
which limited the hold-harmless provision, the contract did not extinguish CERCLA
No. 10-3634        Textileather Corp. v. GenCorp                                 Page 13


claims); Beazer E., Inc. v. Mead Corp., 34 F.3d 206, 216-19 (3d Cir. 1994) (construing
a more limited provision). Due to our holding in White and the broad and unambiguous
allocation of environmental liabilities in the APA, these cases do not justify overturning
the district court judgment. Therefore, the district court properly concluded that the
allocation and assumption of liability provisions apply to CERCLA claims as well.
GenCorp retained only those CERCLA liabilities covered by Sections 9.1.1 and 9.1.2.



                                           III.

       For the foregoing reasons, we AFFIRM IN PART, REVERSE IN PART, and
REMAND the case to the district court for further proceedings consistent with this
opinion.
