                                         COURT OF APPEALS OF VIRGINIA
PUBLISHED
            Present: Judges Kelsey, McCullough and Senior Judge Haley
            Argued at Salem, Virginia

            WILLIAM SCOTT INGRAM
                                                                               OPINION BY
            v.     Record No. 1385-12-3                                   JUDGE D. ARTHUR KELSEY
                                                                               APRIL 23, 2013
            COMMONWEALTH OF VIRGINIA

                            FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                                         Joseph W. Milam, Jr., Judge

                              James C. Martin (Martin & Martin, on briefs), for appellant.

                              Karen A. Taylor, Special Counsel (Kenneth T. Cuccinelli, II,
                              Attorney General; Rita W. Beale, Deputy Attorney General;
                              Allyson K. Tysinger, Senior Assistant Attorney General and
                              Chief, on brief), for appellee.

                   William Scott Ingram appeals an order entered pursuant to Code § 37.2-1101, which

            required him to undergo psychiatric and medical treatment against his will. On appeal, Ingram

            claims the circuit court should have impanelled a jury to decide his case and, in any event,

            should not have authorized a course of treatment that violated his basic beliefs. We find

            Ingram’s sufficiency argument moot and reject his jury trial argument.

                                                             I.

                   In 1995, Ingram was found not guilty of malicious wounding by reason of insanity.

            Since that time, he has been a patient in state psychiatric facilities. Doctors have diagnosed

            Ingram with various psychiatric conditions (bipolar type schizoaffective disorder, narcissistic

            and antisocial personality disorder, and polysubstance dependence), as well as several medical

            conditions (hyperthyroidism, acid reflux, gastroid reflux, vitamin D deficiency, a hiatal hernia,

            and a benign prostate hypertrophy).

                   In 2009, Ingram’s treating psychiatrist filed a petition seeking court-ordered treatment

            pursuant to Code § 37.2-1101. The general district court issued an order requiring treatment for
180 days. After the circuit court affirmed the ruling in a de novo hearing, Ingram appealed to us,

claiming the evidence was insufficient as a matter of law to justify the order. Because the 180-

day order had expired before the appeal was heard, we dismissed the case as moot. Ingram v.

Commonwealth, No. 2436-09-3, 2010 Va. App. LEXIS 254 (June 22, 2010) (unpublished).

       In 2012, Ingram’s treating psychiatrist again petitioned for court-ordered treatment of

Ingram. The general district court granted the petition and Ingram again appealed, seeking a de

novo hearing in circuit court. This time, Ingram demanded that the case be decided by a jury.

The circuit court denied the request for a jury, conducted an evidentiary hearing, and granted the

petition for court-ordered treatment. The circuit court’s 180-day order expired under its own

terms on January 19, 2013 — shortly before the matter was heard by us. The Commonwealth

made a motion seeking to dismiss the appeal as moot.

                                                 II.
                          A. MOOTNESS — EXPIRED 180-DAY ORDER

       We first address whether this case is moot, now that the most recent 180-day treatment

order has expired under its own terms. The circuit court entered the order pursuant to Code

§ 37.2-1101(A), which authorizes

               treatment for a mental or physical disorder on behalf of an adult
               person, in accordance with this section, if [the judge or special
               justice] finds upon clear and convincing evidence that (i) the
               person is either incapable of making an informed decision on his
               own behalf or is incapable of communicating such a decision due
               to a physical or mental disorder and (ii) the proposed treatment is
               in the best interest of the person.

See also Code § 37.2-1101(G) (listing additional necessary findings). The statute directs the

court not to issue a treatment order if it “is proven by a preponderance of the evidence to be

contrary to the person’s religious beliefs or basic values or to specific preferences stated by the

person before becoming incapable of making an informed decision, unless the treatment is

                                                -2-
necessary to prevent death or a serious irreversible condition.” Code § 37.2-1101(G)(4). The

duration of such orders may vary, but one authorizing the “[a]dministration of antipsychotic

medication” cannot exceed 180 days. Code § 37.2-1102(3).

       On appeal, Ingram challenges the treatment order on two grounds: First, he claims he

had a constitutional and statutory right to a jury trial. Second, he contends the circuit court

should have concluded that his “religious beliefs or basic values,” Code § 37.2-1101(G)(4),

forbade the recommended treatment. The Commonwealth argues that both issues are moot now

that the circuit court order has expired.

       We accept the first premise of the Commonwealth’s argument. A case becomes moot

“when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in

the outcome.” Chafin v. Chafin, 133 S. Ct. 1017, 1018 (2013) (quoting Already, LLC v. Nike,

Inc., 133 S. Ct. 721, 726 (2013)); see also Daily Press, Inc. v. Commonwealth, 285 Va. 447, 452,

___ S.E.2d ___, ___ (2013). “No matter how vehemently the parties continue to dispute the

lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute is no longer

embedded in any actual controversy about the plaintiffs’ particular legal rights.” Already, LLC,

133 S. Ct. at 727 (citation and internal quotation marks omitted). 1

       “‘Advisory opinions represent an attenuate exercise of judicial power,’ Va. State Police

v. Elliott, 48 Va. App. 551, 553, 633 S.E.2d 203, 204 (2006), one which we traditionally avoid in

all but the most extenuating circumstances.” Pilson v. Commonwealth, 52 Va. App. 442, 446,

663 S.E.2d 562, 564 (2008). Like many courts, however, we acknowledge “there may be narrow

circumstances in which a court may decide a case despite the absence of an actual, ongoing



       1
        It does not matter that the circuit court’s 180-day order expired after Ingram filed his
appeal. Even if a case is alive at the time of filing, “subsequent events can moot the claim.”
Pashby v. Delia, 709 F.3d 307, 316 (4th Cir. 2013) (citing Simmons v. United Mortg. & Loan
Inv., LLC, 634 F.3d 754, 763 (4th Cir. 2011)).
                                                  -3-
dispute — like when the underlying controversy is one capable of repetition, yet evading

review.” Elliott, 48 Va. App. at 554, 633 S.E.2d at 204.

       This exception to mootness should be used “sparingly” and usually only in cases that are

“short-lived by nature.” Daily Press, Inc., 285 Va. at 452, ___ S.E.2d at ___. Such “exceptional

situations” typically involve “disputes of abbreviated duration where the party seeking review

can make a reasonable showing that he will again be subjected to the alleged illegality.” Elliott,

48 Va. App. at 554, 633 S.E.2d at 204-05 (citations and internal quotation marks omitted).

Compare United States v. Juvenile Male, 131 S. Ct. 2860, 2865 (2011) (refusing to apply the

capable-of-repetition doctrine where 21-year-old defendant “will never again be subject to . . .

juvenile supervision”), with Turner v. Rogers, 131 S. Ct. 2507, 2515 (2011) (applying the

capable-of-repetition doctrine where “there is a more than reasonable likelihood that [defendant]

will again be subjected to the same action” (internal quotation marks omitted)).

       Only part of Ingram’s appeal passes this exacting standard. 2 His first argument claims a

right to a jury trial. Declared legally insane nearly twenty years ago, Ingram will likely be the

subject of future treatment petitions. Each one could introduce exactly the same jury issue. The

issue presents a question of law wholly unaffected by the specific facts surrounding any given

petition. And the issue would arise, as it already has, in a short-lived proceeding challenging a

judicial order that could easily expire before it is reviewed on appeal. Accord Washington v.

Harper, 494 U.S. 210, 219 (1990) (holding it “likely” that a state psychiatric center would “seek


       2
         During oral argument on appeal, counsel for the Commonwealth questioned whether an
appeal can be segmented between moot and non-moot issues. See Oral Argument Audio at
18:24 to 18:49. Settled law permits this appellate practice. See Powell v. McCormack, 395 U.S.
486, 497 (1969) (“[w]here one of the several issues presented becomes moot, the remaining live
issues supply the constitutional requirement of a case or controversy”); Bahnmiller v. Derwinski,
923 F.2d 1085, 1089 (4th Cir. 1991) (holding where “the case is moot except as to [a single]
question,” the “proper course of action is to dismiss the appeal in part . . . and decide the
remaining live issues on appeal”); accord Deakins v. Monaghan, 484 U.S. 193, 201 (1988);
Univ. of Tex. v. Camenisch, 451 U.S. 390, 393-94 (1981).
                                                -4-
to administer antipsychotic medications” to an inmate). Given these unusual circumstances, we

believe the jury trial issue presents an “exceptional” situation that is “capable of repetition, yet

evading review.” Elliott, 48 Va. App. at 554, 633 S.E.2d at 204.

       The same cannot be said for Ingram’s challenge to the sufficiency of the evidence

supporting the now-expired order. In the circuit court, Ingram testified the treatment violated his

“personal beliefs” and “basic values” protected by Code § 37.2-1101(G)(4). Appellant’s Br. at

15. Ingram said he had “fallen away” from his former religious views (which he had professed

in his earlier case) and now plays in a “rock band” that, he explained, is “sort of like a religion to

me.” App. at 77. As his counsel conceded on appeal, the facts of this case are quite different

from those in Ingram’s earlier appeal. See Oral Argument Audio at 5:55 to 6:01. And the facts

are likely “going to change” if the circuit court enters future treatment orders. Id. at 2:31 to 2:33.

       Given the indeterminate nature of the facts underlying Ingram’s sufficiency argument, we

have no confidence that a later appeal would present an analogous fact pattern justifying a ruling

on the now-expired treatment order. Although a sufficiency argument of some kind may be

capable of repetition in a later appeal, it likely will not be on the same grounds as those asserted

in the present appeal. For this reason, it would be imprudent for us to address the sufficiency

issue under the capable-of-repetition, yet-evading-review doctrine. 3

                                      B. JURY TRIAL RIGHT

       Code § 37.2-1101(A) empowers a “circuit court or district court judge or special justice”

to issue involuntary treatment orders. Subsection G requires “the court” to make specific

findings prior to issuing the order. Subsection H makes clear that “the court” should determine


       3
          That said, we will consider a request by Ingram in any future appeal to expedite
appellate review so as to minimize the possibility that a treatment order will expire before we
have the opportunity to review a sufficiency challenge. Ingram may also seek a stay pending
appeal if the circumstances warrant it. See Code § 8.01-676.1(J).
                                                -5-
the scope of the treatment covered by the order. Code § 37.2-1102 similarly authorizes “the

court” to order certain actions under specific conditions. The statutory scheme assigns the

decisionmaking duties entirely to the court and makes no allowance for jury trials on any issue. 4

       For two reasons, Ingram claims he nonetheless had the right to a jury in the circuit court:

(i) Code § 37.2-1101’s bench trial procedure violates federal and state constitutional law

guarantees of a right to a jury trial, and (ii) Code § 8.01-336(D) provides a statutory right to have

a jury decide a plea in equity. We find neither ground supports Ingram’s argument.

                   (i) FEDERAL & STATE CONSTITUTIONAL RIGHTS TO A JURY

       The Fourteenth Amendment to the United States Constitution provides that no state shall

“deprive any person of life, liberty, or property, without due process of law.” Ingram correctly

claims his right to object to involuntary treatment implicates a liberty interest and thus entitled

him to procedural due process. See Sell v. United States, 539 U.S. 166, 178-79 (2003)

(discussing Riggins v. Nevada, 504 U.S. 127, 134 (1992); Harper, 494 U.S. at 221). 5

       Although due process provides a battery of pre-deprivation procedural safeguards, it does

not uniformly include — either expressly or implicitly — a right to trial by jury. See McKeiver

v. Pennsylvania, 403 U.S. 528, 545 (1971) (“[T]rial by jury in the juvenile court’s adjudicative

stage is not a constitutional requirement” of due process.); see also United States v. Sahhar, 917

F.2d 1197, 1207 (9th Cir. 1990) (“McKeiver held that trial by jury is neither a necessary element

of the fundamental fairness guaranteed by the due process clause, nor an essential component of




       4
         By contrast, a person subject to an involuntary admission under Title 37.2, Ch. 8, Art. 5
of the Code has a statutory right to a jury in the circuit court on de novo appeal. Code
§ 37.2-821(B).
       5
         Ingram does not assert, and thus we do not address, whether any alleged substantive due
process right precludes the involuntary treatment ordered by the circuit court. He argues only
that procedural due process principles guarantee a right to a jury trial.
                                               -6-
accurate factfinding.”); United States v. Hill, 538 F.2d 1072, 1075 (4th Cir. 1976). To be sure,

procedural due process does not even require “a judicial decisionmaker” to authorize

“involuntary treatment.” Harper, 494 U.S. at 228. Thus, neither the Due Process Clause of the

Fourteenth Amendment nor its analogue in the Virginia Constitution 6 guarantees Ingram the

right to a jury trial in an involuntary treatment proceeding.

       The Sixth Amendment to the United States Constitution guarantees a jury trial in “all

criminal prosecutions.” It tracks Article III’s command that the “trial of all crimes, except in

cases of impeachment, shall be by jury.” U.S. CONST. art. III, § 2. Despite its literal scope, the

Sixth Amendment’s right to a jury does not apply to criminal offenses presumed to be petty

because they could not result in more than six months incarceration. See Lewis v. United States,

518 U.S. 322, 326 (1996); Duncan v. Louisiana, 391 U.S. 145, 159 (1968). The constitutional

right to a jury does not apply in Ingram’s case because his was not a criminal proceeding and,

even if it were, it could not have resulted in more than six months of incarceration.

       The Seventh Amendment to the United States Constitution guarantees a right to a jury

trial in “suits at common law” where more than twenty dollars is in dispute. This provision of

the Federal Bill of Rights, however, has never been applied to state courts. See McDonald v.

Chicago, 130 S. Ct. 3020, 3035 n.13 (2010); Minneapolis & St. Louis R. Co. v. Bombolis, 241

U.S. 211, 217 (1916). Thus, the only constitutional right to a civil jury in Virginia courts arises,

if at all, under Article I, § 11 of the Virginia Constitution. See also Code § 8.01-336(A).

       The right to a jury trial under the Virginia Constitution does not apply “to those

proceedings in which there was no right to jury trial when the Constitution was adopted.”



       6
        “Because the due process protections afforded under the Constitution of Virginia are
co-extensive with those of the federal constitution, the same analysis will apply to both.”
Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005); see also Caprino v.
Commonwealth, 53 Va. App. 181, 185 n.1, 670 S.E.2d 36, 38 n.1 (2008).
                                                -7-
Stanardsville Volunteer Fire Co. v. Berry, 229 Va. 578, 583, 331 S.E.2d 466, 469 (1985) (citing

Bowman v. Va. State Entomologist, 128 Va. 351, 372, 105 S.E. 141, 148 (1920)). 7 Put another

way, the “constitutional right to a civil jury is as extensive as the common law right in 1776.”

W. Hamilton Bryson, Virginia Civil Procedure 431 (3d ed. 1997) (footnote omitted). “Since the

constitutional guarantee of jury trial in civil cases attaches only to common law actions as they

existed in 1776, statutes creating a new cause of action need not provide for trial by jury.” 1

A.E. Dick Howard, Commentaries on the Constitution of Virginia 247-48 (1974) (footnote

omitted).

       The involuntary treatment petition filed against Ingram pursuant to Code § 37.2-1101

bears none of the characteristics of what we think of as a traditional common law proceeding.

See Chauffeurs, Teamsters and Helpers Local No. 391 v. Terry, 494 U.S. 558, 570 (1990)

(“Generally, an action for money damages was ‘the traditional form of relief offered in the courts

of law.’” (quoting Curtis v. Loether, 415 U.S. 189, 196 (1974))); Dan B. Dobbs, Remedies § 1.1,

at 3 (1973) (“The damages remedy was a legal remedy, and the injunction and most other

coercive remedies were equitable.”). The petition does not seek compensatory or punitive

damages, attempt to adjust the rights and liabilities of antagonistic litigants, or request

retrospective relief of any kind. A petition under Code § 37.2-1101, therefore, looks nothing like

the classical common law cause of action for damages.



       7
          See also Bowman, 128 Va. at 372, 105 S.E. at 148 (“It has been long well settled that
neither the State nor Federal Constitution guarantees or preserves the right of trial by jury except
in those cases where it existed when these Constitutions were adopted.”); accord Isbell v.
Commercial Inv. Assocs., 273 Va. 605, 617-18, 644 S.E.2d 72, 78 (2007) (reaffirming holding of
Bethel Inv. Co. v. City of Hampton, 272 Va. 765, 636 S.E.2d 466 (2006), that Va. Const., art. I,
§ 11 “is not applicable to proceedings in which there was no right to jury trial when the
Constitution was adopted”); Martin P. Burks, Common Law and Statutory Pleading and Practice
§ 270, at 480 (1952) (The Virginia constitutional right to a jury in civil cases, Judge Burks
explained, “is not applicable to that class of cases where no jury was allowed at the time the
provision was first adopted.” (footnote omitted)).
                                                 -8-
       That said, in the common law — as in most everything else — appearances can be

deceiving. Though wholly unrelated to claims for monetary damages, the ancient common law

writ of “de idiota inquirendo” authorized juries to “inquire whether a man be an idiot or not”

and, if so, to transfer “the profits of his lands and the custody of his person” to the king or his

designee. 1 William Blackstone, Commentaries on the Law of England *303. A similar writ

could be issued against a “non compos mentis,” described in the common law as a mere “lunatic”

who “by disease, grief, or other accident, hath lost the use of his reason” yet still has “lucid

intervals.” Id. at *304.

       These common law writs, however, have little in common with a Code § 37.2-1101

proceeding. Code § 37.2-1101 appears to be a novelty of statutory law, seeking only to

administer medical treatment (albeit involuntarily) to an individual suffering from a serious

mental or physical disorder. 8 Unlike the common law writs, Code § 37.2-1101 does not attempt

to affect the property rights of a patient or place him indeterminately in the custody of the state.

Instead, Code § 37.2-1101 represents a uniquely modern application of the parens patriae duty

of the state to protect those “incapable of making an informed decision” by attempting to

ameliorate their illnesses in a manner consistent with the needs of society balanced with the

deeply held religious or basic values of the individual.




       8
          We do not discuss the common law writ of habeas corpus because it did not historically
(and does not now) entitle the petitioner or respondent to a trial by jury. See 8 James W. Moore
et al., Moore’s Federal Practice § 38.33[11], at 38-148 (3d ed. 2013) (“Neither the petitioner nor
the respondent has a constitutional or statutory right to jury trial in a habeas corpus proceeding.
There was no common law right of jury trial in habeas corpus proceedings, so there is no such
right preserved by the Seventh Amendment.”); Paul D. Halliday, Habeas Corpus: From England
to Empire 7 (2010) (noting the “core principle” of habeas corpus is “that the judge judges” and
the “central fact of habeas corpus” is “that a judge should hear the sighs of all prisoners”); id. at
74 (describing the “king’s nearly divine power to command the bodies of his subjects . . .
through his judges using habeas corpus”).
                                                 -9-
        For us to conclude that Code § 37.2-1101 unconstitutionally deprived Ingram of his

common law right to a jury, we would need far better analogies than these two writs. As has

been have often said, Virginia courts “must resolve ‘any reasonable doubt regarding a statute’s

constitutionality in favor of its validity.’” Montgomery Cnty. v. Va. Dep’t of Rail and Pub.

Transp., 282 Va. 422, 435, 719 S.E.2d 294, 300 (2011) (citation omitted). The presumption of

constitutionality is “one of the strongest known to the law.” Boyd v. Cnty. of Henrico, 42

Va. App. 495, 507, 592 S.E.2d 768, 774 (2004) (en banc) (citation omitted). “To doubt is to

affirm.” Laurels of Bon Air v. Med. Facilities, 51 Va. App. 583, 597-98, 659 S.E.2d 561, 569

(2008) (citation omitted). Given the absence of any persuasive showing of a common law

antecedent to Code § 37.2-1101, we hold the circuit court did not violate Article I, § 11 of the

Virginia Constitution by refusing to impanel a jury to decide Ingram’s case.

                      (ii) STATUTORY RIGHT TO A JURY — PLEA IN EQUITY

        Ingram next turns to Code § 8.01-336(D), claiming the statute entitled him to have a jury

decide the narrow issue of whether the evidence proved by a preponderance that the

recommended treatment was contrary to his “religious beliefs or basic values or to specific

preferences stated by the person before becoming incapable of making an informed decision,” as

described in Code § 37.2-1101(G)(4). Titled “Trial by jury of plea in equity,” subsection D of

Code § 8.01-336 provides: “In any action in which a plea has been filed to an equitable claim,

and the allegations of such plea are denied by the plaintiff, either party may have the issue tried

by jury.” 9

        Though we question whether an involuntary treatment petition under Code § 37.2-1101 is

truly an “equitable claim” under Code § 8.01-336, we need not reach that issue because we find

        9
         When applicable, this provision (unlike an issue out of chancery under Code
§ 8.01-336(E)) mandates the use of a jury to decide the plea filed in an equity case. See
Stanardsville Volunteer Fire Co., 229 Va. at 586-87, 331 S.E.2d at 471-72.
                                              - 10 -
the plea-in-equity procedure inapplicable to this case. A plea in equity is a discrete form of

defensive pleading that does not directly address the merits of a complaint. Instead, the plea

raises “a single state of facts or circumstances (usually not disclosed or disclosed only in part by

the record) which, if proven, constitutes an absolute defense to the claim.” Nelms v. Nelms, 236

Va. 281, 289, 374 S.E.2d 4, 9 (1988); Bolling v. Gen. Motors Acceptance Corp., 204 Va. 4, 8,

129 S.E.2d 54, 56 (1963).

               Familiar illustrations of the use of a plea would be: The statute of
               limitations; absence of proper parties (where this does not appear
               from the bill itself); res judicata; usury; a release; an award;
               infancy; bankruptcy; denial of partnership; bona fide purchaser;
               denial of an essential jurisdictional fact alleged in the bill, etc.

Nelms, 236 Va. at 289, 374 S.E.2d at 9 (quoting E. Meade, Lile’s Equity Pleading and Practice

§ 199, at 114 (3d ed. 1952) (footnote omitted)). 10

       Ingram rightly acknowledges his burden of proving that the treatment contradicted his

“religious beliefs or basic values or . . . specific preferences stated by [him] before becoming

incapable of making an informed decision.” Code § 37.2-1101(G)(4). 11 But, even if he could

have proven this assertion, a separate burden would have then fallen upon the Commonwealth to




       10
          In the circuit court, Ingram filed a motion titled “Alternative Demand for Jury Trial
Upon Plea in Equity.” App. at 27. We assume for the sake of argument that, by doing so,
Ingram properly preserved this issue for appeal. Cf. Nelms, 236 Va. at 289, 374 S.E.2d at 9
(“The pleadings filed by [appellants], were not, in form, pleas as contemplated by § 8-213 [the
statutory predecessor of Code § 8.01-336(D)].” (quoting Bolling, 204 Va. at 7, 129 S.E.2d at 56);
Bryson, supra, at 273 (correctly noting that “the pleading must be a plea both in form and in
substance” (footnote omitted)).
       11
          As a general rule, “the proponent of an issue bears the burden of persuasion on the
factual premises for applying the rule.” Dixon v. United States, 548 U.S. 1, 8 (2006) (quoting
George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion
Practices in Criminal Cases, 77 Yale L.J. 880, 898 (1967-68)). This premise rests on the ancient
axiom that the burden of the proof “is incumbent upon the party who affirms a fact, not upon him
who denies it.” Digest of Justinian, Dig. 22.3.2, translated in 5 Samuel P. Scott, The Civil Law
224 (1932).
                                               - 11 -
show that the treatment was nonetheless “necessary to prevent death or a serious irreversible

condition.” Id. Invoking the statutory exception to involuntary treatment, therefore, involves

mixed questions with shifting burdens of proof — a situation very different from the traditional

plea in equity raising “a single state of facts or circumstances . . . which, if proven, constitutes an

absolute defense to the claim.” Nelms, 236 Va. at 289, 374 S.E.2d at 9.

       We thus conclude the plea-in-equity procedure recognized by Code § 8.01-336(D) did

not require the circuit court to impanel a jury to decide whether Ingram’s religious beliefs, basic

values, or specific preferences precluded the entry of a treatment order under Code

§ 37.2-1101(G)(4).

                                                    III.

       Because the expiration of the 180-day order mooted Ingram’s challenge to the sufficiency

of the evidence supporting the order, we offer no opinion on the subject. Ingram’s jury trial

demand survives the expiration of the order and, on that issue, we hold the circuit court did not

err in denying Ingram’s request for a jury trial.



                                                           Dismissed in part as moot, affirmed in part.




                                                - 12 -
