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ADVANCE SHEET HEADNOTE June 25, 2018

No. 17SA248, In re Rains—Rule 59(d)—Proper Grounds for New Trial.

In this case, the supreme court considers whether a trial court abused its

discretion when it granted a new trial after a jury found that the defendants, two pilots,

were not negligent during a near collision that resulted in one plane crashing and

killing all five passengers on board. The court concludes that the trial court’s stated

reasons did not meet the grounds enumerated in Rule 59(d) and that a trial court may

not grant a new trial for reasons other than those enumerated in Rule 59(d). Thus, this

court holds that the trial court abused its discretion in granting a new trial. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

Supreme Court Case No. 17SA248 Original Proceeding Pursuant to C.A.R. 21 Weld County District Court Case No. 15CV30227 Honorable Todd L. Taylor, Judge

In Re Plaintiffs: Wilson Henry Rains, natural father and heir of Tori Rains-Wedan, deceased; and Bjorn John Wedan, natural father and heir of Austin Wedan, Hunter Wedan, and Mason Wedan, deceased, v. Defendants: Douglas H. Barber, personal representative of the Estate of Oliver Ezard Frascona; the Estate of Oliver Ezard Frascona, a/k/a Oliver E. Frascona, a/k/a Oliver Frascona; the Real Estate School, a Colorado LLC; and Joseph B. Lechtanski.

Rule Made Absolute en banc June 25, 2018 Attorneys for Plaintiffs: Katzman Lampert, PLLC Bruce A. Lampert Broomfield, Colorado

Attorneys for Defendants Douglas H. Barber, the Estate of Oliver Ezard Frascona, and the Real Estate School: Godfrey Johnson, P.C. Brett Godfrey Karen J. Porter Englewood, Colorado

No appearance on behalf of Joseph B. Lechtanski. JUSTICE BOATRIGHT delivered the Opinion of the Court.

2 ¶1 In this original proceeding, we determine whether the trial court abused its

discretion in granting the plaintiffs’ motion for a new trial after a jury found that the

defendants, two pilots, were not negligent during a near collision that resulted in one

plane crashing and killing all five passengers on board. To resolve this issue, we

address two underlying questions: first, whether the trial court’s stated reasons for

granting a new trial met the requirements of C.R.C.P. 59(d), and second, if not, whether

a trial court may nevertheless grant a new trial for a reason other than those

enumerated in Rule 59(d). We answer both questions in the negative and accordingly

hold that the trial court abused its discretion in granting a new trial. We therefore make

our rule to show cause absolute and remand for further proceedings.

I. Facts and Procedural History

¶2 This case is a civil action brought against Defendants Oliver Frascona, deceased,

and Joseph Lechtanski to determine their liability as the two pilots involved in a plane

crash that occurred at Erie Municipal Airport. Erie Municipal Airport is uncontrolled,

which means it does not have a control tower to monitor inbound and outbound air

traffic and ground operations. Instead, pilots themselves must alert other nearby pilots

of their departures and arrivals.

¶3 On the day of the crash, Frascona was piloting an inbound plane to Runway 33.

He had four passengers on board: Tori Rains-Wedan and her three sons. At the same

time that Frascona was attempting to land on Runway 33, Lechtanski was attempting to

take off from Runway 15. Runway 33 and Runway 15 are two separate ends of the

same strip of an asphalt runway. Consequently, Lechtanski was taking off head-on into

3 Frascona’s attempted landing. The two planes nearly collided mid-air. To avoid the

collision, Lechtanski veered right, and Frascona attempted a “go-around,” which is an

aborted landing maneuver where a pilot overflies the runway at a safe distance and

then turns to join the traffic pattern for another attempted landing. In attempting this

maneuver, Frascona’s plane stalled and crashed, killing everyone on board. Lechtanski

safely recovered after the near collision. The plaintiffs, the heirs of Rains-Wedan and

her three sons, brought an action against Frascona’s estate and Lechtanski, alleging that

one or both of them was responsible for the crash.1

¶4 At the trial, three expert witnesses testified.2 During cross-examination of

Frascona’s expert, Douglas Stimpson, the plaintiffs asked what percentage of fault he

would apportion to each of the defendants. Frascona objected, arguing that the

question called for a legal conclusion, was outside the scope of Stimpson’s expertise,

and usurped the role of the jury. The trial court sustained the objection, preventing

Stimpson from answering.

¶5 After the close of evidence, the trial court gave the jury relevant instructions on

the burden of proof; legal definitions of negligence; and, if appropriate, how to

apportion fault between the two pilots. The verdict form permitted the jury to find one,

both, or neither of the defendants negligent by asking, in separate “yes or no”

1 The plaintiffs also sued the Real Estate School, the owner of Frascona’s plane. We refer to Frascona’s estate and the Real Estate School collectively as “Frascona.” 2 Each defendant and the plaintiffs presented an expert witness. Plaintiffs’ expert, Donald Sommer, and Frascona’s expert, Douglas Stimpson, were both qualified in the fields of aviation accident reconstruction and piloting. Lechtanski’s expert, Warren DeHaan, was qualified in the fields of piloting and visual factors.

4 questions, whether each defendant was negligent. The verdict form then asked the jury

to apportion fault between the pilots and to assess damages, but only if it answered

“yes” to any of the preceding questions regarding negligence. The jury ultimately

returned a verdict in favor of both defendants, answering “no” as to whether

Lechtanski and Frascona were negligent. As a result of these answers, the jury left the

remainder of the verdict form blank in accordance with the instructions.

¶6 In response to the verdict, the plaintiffs filed a motion for a new trial under

Rule 59(d), arguing that the jury’s verdict was an irregularity that resulted in an unfair

trial and was also a miscarriage of justice.3 The trial court granted the motion, agreeing

that the jury’s verdict was a “miscarriage of justice.” The trial court also stated that the

jury misunderstood its role, and it pointed to the sustained objection to the question

about apportionment as a possible cause of the jury’s confusion.

¶7 The defendants filed a petition to this court to show cause, arguing that the

motion was improperly granted because the trial court failed to state legally sufficient

grounds for a new trial under Rule 59(d). We exercised our original jurisdiction under

C.A.R. 21 because a motion for a new trial, if improperly granted, would result in

hardship to the parties as they would be required to proceed with another trial before

3 The plaintiffs filed an earlier motion for a new trial that was initially deemed denied under Rule 59(j) because the trial court failed to rule on it within sixty-three days. But when the trial court realized it had not yet entered the judgment, and thus the time bar had not begun to run, it reversed course and ordered a new trial. The defendants then filed a petition to show cause to this court, arguing that a new trial was improper because the trial court still had not entered judgment. We vacated the trial court’s order granting a new trial and directed the trial court to enter judgment. After the trial court entered judgment, the plaintiffs swiftly filed another motion for a new trial, which this opinion addresses today.

5 the order granting that new trial could be challenged through the normal avenues of

appeal.

II.Standard of Review

¶8 We review a trial court’s order for a new trial for an abuse of discretion. Aspen

Skiing Co. v. Peer,

(Colo. 1991). A trial court abuses its discretion

when its ruling is “manifestly arbitrary, unreasonable, or unfair,” or when it misapplies

the law. Freedom Colo. Info., Inc. v. El Paso Cty. Sheriff’s Dep’t,

(Colo. 2008).

III.Analysis

¶9 To answer whether the trial court abused its discretion, we first look to whether

the trial court’s stated reasons for granting a new trial met the requirements of Rule

59(d). While the trial court did not explain how its reasoning fit within the grounds

enumerated in Rule 59(d), based on its order and the plaintiffs’ arguments, we focus our

analysis on Rule 59(d)(1): irregularity in the proceedings. In so doing, we conclude that

none of the trial court’s stated reasons constitutes an irregularity under Rule 59(d)(1).

¶10 We then decide whether a trial court may grant a new trial for a reason other

than those listed in Rule 59(d). More specifically, we consider whether a trial court may

grant a new trial when it deems the jury’s verdict to be a “miscarriage of justice,” as the

trial court did in this case. Because a “miscarriage of justice” is not one of the

enumerated grounds under Rule 59(d), we conclude that a trial court may not grant a

new trial for that reason alone. Accordingly, we hold that the trial court abused its

discretion in granting a new trial.

6 A. Grounds for a New Trial Under Rule 59(d)

1. Law

¶11 Rule 59 governs motions for post-trial relief, including motions for new trials.

C.R.C.P. 59(a)(1). Rule 59(d) lists six distinct grounds for a new trial:

(1) Any irregularity in the proceedings by which any party was prevented from having a fair trial; (2) Misconduct of the jury; (3) Accident or surprise, which ordinary prudence could not have guarded against; (4) Newly discovered evidence, material for the party making the application which that party could not, with reasonable diligence, have discovered and produced at the trial; (5) Excessive or inadequate damages; or (6) Error in law.

(Formatting altered.) The trial court here did not explain how its reasoning for granting

a new trial—the jury’s verdict, possible jury confusion, and a sustained objection—fit

into the grounds provided in Rule 59(d). The plaintiffs’ original motion for a new trial

referenced Rule 59(d)(1) (irregularity in the proceedings resulting in an unfair trial),

Rule 59(d)(5) (excessive or inadequate damages), and Rule 59(d)(6) (error in law). But

the parties’ arguments before us focus solely on Rule 59(d)(1). In addition, the trial

court’s order did not suggest reliance on any other ground in Rule 59(d). Accordingly,

we focus our analysis on Rule 59(d)(1).

¶12 Our appellate courts have never defined what constitutes an irregularity in the

proceedings under Rule 59(d)(1) and have addressed specific instances of alleged

irregularities on only limited occasions. In Blecker v. Kofoed,

(Colo.

1986), we held that “the district court’s analysis of the evidence under an incorrect

allocation of the burden of proof,” which shifted the burden and thus affected the

outcome of the hearing, constituted an irregularity warranting a new hearing.

7 Similarly, in First National Bank of Canon City v. Campbell,

, 916–17 (Colo.

1979), we concluded that the omission of a necessary jury instruction constituted an

irregularity under Rule 59(d)(1).

¶13 In contrast, in Acierno by & through Acierno v. Garyfallou,

, 42–44,

, 469–72, the court of appeals affirmed a trial court’s order

denying a motion for new trial under Rule 59(d)(1) when among other alleged

irregularities, defense counsel misstated the law and made improper comments about

runaway juries, and two witnesses gave trial testimony that differed from their

depositions.4 As to the attorney misconduct, the court of appeals concluded that it did

not result in prejudice sufficient to warrant a new trial because the jury was repeatedly

instructed on the proper standard of law, the trial court admonished defense counsel in

front of the jury for his improper remarks, and the court instructed the jury to disregard

them.

at ¶¶ 30–35, 409 P.3d at 469–70. As to the witness testimony, the court of

appeals noted that “changes in witnesses’ testimony are not unusual” and that the

plaintiff impeached those witnesses such that the jury could make an informed

determination on credibility. See id. at ¶ 44,

(internal quotation marks

omitted). Therefore, the court concluded that these changes in testimony “did not

constitute an irregularity that was sufficiently prejudicial to warrant a new trial.”

4 Though the court of appeals analyzed the first two irregularities in the context of affirming the trial court’s denial of a mistrial, the court also stated that “[f]or the same reasons, we conclude that the trial court did not abuse its discretion in denying [plaintiff’s] request for a new trial on those grounds.” Acierno, ¶ 40,

.

8 ¶14 As demonstrated by the above, our courts have found an irregularity warranting

a new trial under Rule 59(d)(1) only for improper occurrences at trial that either affected

or likely affected the outcome—for example, a court shifting the burden of proof and

improper jury instructions. But we have declined to find an irregularity resulting in an

unfair trial for less significant discrepancies such as non-prejudicial attorney

misconduct or changes in witness testimony. Thus, we can discern from the above

cases that an irregularity warranting a new trial under Rule 59(d)(1) is an improper

occurrence during the trial that affected or likely affected the outcome. With this

understanding in mind, we now turn to the trial court’s reasons for granting a new trial.

2. Application

¶15 Rather than articulate specific errors or irregularities that occurred at trial, it

appears that the trial court took issue with the jury’s verdict, assumed the jury must

have been confused to produce such a verdict, and then traced the jury’s “confusion”

back to a sustained objection to a question about apportionment of fault. Reviewing

this reasoning, we first conclude that there is no evidence of jury confusion in the

record. We then decide whether the trial court’s remaining reasons for granting a new

trial qualify as irregularities under Rule 59(d)(1). We conclude that they do not. As a

result, we conclude that the trial court’s stated reasons for granting a new trial do not

meet the requirements of Rule 59(d).

a. Jury Confusion

¶16 Because it disagreed with the jury’s verdict, the trial court found that the jury

was confused or did not understand its role: “In hindsight, the jury did not understand

9 its role . . . . I am convinced that the jury did not fully comprehend or fully consider the

evidence before it.” However, we conclude that there is no evidence in the record of the

jury misunderstanding its role. To the contrary, the record demonstrates that the jury

was given instructions thoroughly informing it of its role, the plaintiffs’ attorney

frequently commented to the jury about its responsibilities, 5 and the jury properly filled

out the verdict form. Because there is nothing in the record to indicate jury confusion,

and because of the well-settled principle that we assume jurors follow the instructions

given, see, e.g., People v. Flockhart,

,

, we cannot

conclude that the jury was confused.

¶17 The jury was tasked with deciding whether the plaintiffs presented sufficient

evidence that one or both of the defendants was the negligent cause of the crash. In so

doing, the jury had three options: It could conclude that one defendant was at fault,

both defendants were at fault, or neither defendant was at fault. These options are clear

from the jury instructions and the plaintiffs’ attorney’s arguments.

¶18 For example, Jury Instruction No. 8 states that the jury could find for the

plaintiffs only if the plaintiffs proved the required elements by a preponderance of the

evidence:

For the plaintiffs . . . to recover on their claims of negligence, you must find that all of the following have been proved by a preponderance of the evidence: 1. The plaintiffs have losses; 2. The defendant or defendants were negligent; and

5The defendants’ attorneys may have also commented on the jury’s role, but that is not reflected in the partial record provided to us.

10 3. The defendant’s or defendants’ negligence was a cause of the plaintiffs’ losses. If you find that any one or more of these three statements has not been proved, then your verdict must be for the defendant.

In addition, Jury Instruction No. 11 demonstrates that the jury could find negligence on

behalf of both Frascona and Lechtanski:

More than one person may be responsible for causing an injury or loss. If you find that Oliver Frascona was negligent and that his negligence caused losses to the plaintiffs, it is not a defense that some third person’s negligence might also have been a cause of the losses.

If you find that Joseph Lechtanski was negligent and that his negligence caused losses to the plaintiffs, it is not a defense that some third person’s negligence might also have been a cause of the losses.

Further, Jury Instruction No. 17 illustrates that the jury could apportion fault between

each defendant if it found that both defendants were negligent:

If you find that the plaintiffs had damages and that the plaintiffs’ damages were caused by the negligence of both defendants, then you must determine to what extent the negligence of each contributed to the damages of the plaintiff, expressed as a percentage of 100 percent.

The plaintiffs’ closing argument also directed the jury to decide whether this “was

one-pilot negligence, two-pilot negligence, or the combined actions of both of them.”

The attorney also stated, “if both of them caused the crash, you need to apportion

liability between the two.”

¶19 Finally, the verdict form demonstrates that the jury understood all of its

instructions and was not confused. The jury answered “no” to both questions asking

whether Frascona or Lechtanski were negligent. Then, the jury followed the

instructions to stop there and did not answer the subsequent questions on

11 apportionment. All six jurors then signed the verdict form, indicating that they all

agreed on the verdict.

¶20 As a result, we conclude there is no evidence of jury confusion in the record

provided by the parties, and therefore, under these facts, jury confusion was not an

irregularity under Rule 59(d)(1).

b. Sustained Objection

¶21 When plaintiffs’ counsel asked Frascona’s expert, Stimpson, what degree of fault

he would assign to each defendant, the trial court sustained an objection from defense

counsel, preventing an answer. In its post-trial order, the trial court reversed course,

concluding it had unduly limited cross-examination by sustaining the objection: “[I]f I

had allowed this question to be asked on cross-examination, the jury may have better

understood the issues it needed to resolve.” This conclusion is not supported by the

record provided to this court. As discussed above, the jury was made well aware of the

issues it needed to resolve.

¶22 In addition, the error, if any, was not as severe as those previously found to be

irregularities, which affected the outcome or likely affected the outcome. Improper

shifting of the burden of proof and the omission of a necessary jury instruction both

concern a material event in the proceedings that is not isolated or fleeting, and thus

warrant a new trial. See Blecker,

; Campbell, 599 P.2d at 916–17. In fact,

the proceeding in Blecker, where the court applied the incorrect burden of proof, would

have turned out in the petitioner’s favor rather than against him had the irregularity not

occurred.

.

12 ¶23 But here, nothing in the record supports the conclusion that the sustained

objection affected the outcome of this case. This potential error is more analogous to

other alleged irregularities that our courts have disposed of such as non-prejudicial

misstatements of law or fact or changes in a witness’s testimony. Just as in Acierno,

¶ 32,

, where the jury was properly instructed on the law—thus curing

any harm from the attorney’s misstatement—the jury here had ample knowledge of its

role and the issues it needed to resolve and therefore did not need to hear the expert’s

apportionment of fault. Because of this, the sustained objection, even if erroneous, did

not constitute an irregularity resulting in an unfair trial under Rule 59(d)(1).

c. The Jury’s Verdict

¶24 Finally, the trial court expressed dissatisfaction with the jury’s verdict:

[T]he evidence does not support the jury’s verdict that neither pilot was negligent. The jury’s verdict is tantamount to a finding that the four passengers in Frascona’s airplane died as a result of circumstances outside of both pilots’ control. But no evidence was offered that would support this finding—and no party argued in favor of that result.

Based on the evidence presented at trial, the undisputed facts must result in a verdict implicating one or both pilots as the negligent cause of the crash. The finding of no liability as to both pilots is therefore a miscarriage of justice.

We are unaware of any case, and the parties point to none, that considers a jury’s

verdict to be an irregularity under Rule 59(d)(1). Indeed, it is unclear how the verdict

itself—the result of the trial—could qualify as an irregularity in the proceedings

depriving any party of a fair trial. Simply put, the verdict is not an error or occurrence

in the proceedings; it is the outcome of the proceedings. Although an improper verdict

13 may stem from an irregularity, the verdict itself cannot be an irregularity. While we

recognize the trial court’s frustration with the verdict, that reason alone is insufficient to

constitute an irregularity warranting a new trial. Additionally, as noted above, a

verdict of no negligence was one of the options available to the jury.

¶25 We therefore conclude that none of the trial court’s stated reasons for granting a

new trial constituted an irregularity under Rule 59(d)(1).

B. Grounds for a New Trial Outside Rule 59(d)

1. Law

¶26 We next address whether a trial court may grant a new trial for reasons other

than those stated in Rule 59(d). To decide this question, we begin with the text of

Rule 59. It provides that a party may file a motion for a new trial or a court may order a

new trial on its own initiative. C.R.C.P. 59(a), (c). When a party files a motion, it “shall

state the ground asserted.” C.R.C.P. 59(a). Similarly, when a trial court orders a new

trial on its own initiative, it “shall specify the grounds,” and those grounds are limited

to those “available to a party.” C.R.C.P. 59(c).

¶27 Based on this language in Rule 59(c), we held in Koch v. District Court,

(Colo. 1997), that a trial court abuses its discretion when it orders a new trial on its

own initiative and its stated reasons for doing so are not among those enumerated in

Rule 59(d). Because the same requirement to specify the grounds from Rule 59(d) exists

when a party files a motion for a new trial, we clarify today that a trial court also abuses

its discretion when it orders a new trial upon motion by a party and the court’s stated

reasons for doing so are not among those enumerated in Rule 59(d).

14 ¶28 We reach this conclusion for two reasons. First, we note that the grounds in Rule

59(d) are specific. There is no “catch-all” or discretionary ground available as there is in

other post-trial relief rules. See, e.g., C.R.C.P. 60(b)(5) (providing authority for a court

to “relieve a party . . . from a final judgment, order, or proceeding” for “any other

reason justifying relief from the operation of the judgment”). This demonstrates that

the grounds in Rule 59(d) are exclusive. Second, the rule makes clear that the only

means for a court to order a new trial are upon motion by a party or on its own

initiative, and the rule limits the grounds for either method to those listed in Rule 59(d).

¶29 We recognize that language from prior cases seems to suggest otherwise, and

that the trial court and plaintiffs relied on this language. Specifically, the trial court

stated it had the authority to grant a new trial because the jury’s verdict was a

“miscarriage of justice.” This language comes from Steele v. Law,

(Colo. App. 2003). While understandable, the trial court’s reliance on this language is

misplaced. When the Steele court stated that the trial court should let a verdict stand

“unless the court determines there has been a miscarriage of justice,” see

it did not

create a catch-all exception to Rule 59(d). Instead, a complete reading of Steele reveals

that the trial court in that case was attempting to define inadequate damages—a proper

ground under Rule 59(d)(5):

Whether to grant a new trial for inadequate damages is within the discretion of the trial court, and its ruling will not be disturbed in the absence of abuse of discretion. If the court concludes that the verdict is contrary to the weight of the evidence, it may grant a new trial. However, unless the court determines there has been a miscarriage of justice, it should let the verdict stand.

15

(emphasis added) (citations omitted). Read in this context, the “miscarriage of

justice” phrase describes the magnitude of inadequacy for a damages verdict to warrant

a new trial under Rule 59(d)(5). It does not provide an independent ground for

ordering a new trial outside of Rule 59(d).

¶30 The trial court also quoted Roberts v. Consolidated Freightways Corp. of

Delaware,

(Colo. App. 1986), which stated that a judge may properly

grant a new trial where “it is convinced that the jury has not fully comprehended or

fairly considered the evidence before it.” This language comes from Denver Tramway

Co. v. Owens,

, 852 (Colo. 1894). Owens, issued before the enactment of the

Colorado Rules of Civil Procedure in 1941, did not consider how Rule 59(d) limits a trial

court’s discretion. Accordingly, this language is not relevant to our current analysis,

and to the extent Roberts conflicts with the current rule, we overrule it.

¶31 Finally, Burenheide v. Wall,

(Colo. 1955), cited by the

plaintiffs, states that a trial court may grant a new trial if the verdict is “against the

weight, sufficiency or preponderance of the evidence.” This case discussed a trial

court’s authority to direct a verdict under Rule 50 and contains only a limited mention

of Rule 59. But notably, the version of Rule 59 in existence at that time permitted a trial

court to grant a new trial for “insufficiency of the evidence.” C.R.C.P. 59(a)(6) (1941)

(repealed 1985). In 1985, that ground was removed and relocated under 59(e) as a

ground for granting a judgment notwithstanding the verdict when the evidence

requires it “as a matter of law.” C.R.C.P. 59(e)(1). Because Rule 59 no longer permits

16 trial courts to grant a new trial for insufficiency of the evidence, this language from

Wall is not applicable.

¶32 Because the language of Rule 59 requires trial courts to limit reasons for a new

trial to those enumerated in Rule 59(d), and because the cases suggesting otherwise are

either inapposite or no longer good law, we conclude that a trial court may not grant a

new trial for reasons other than those enumerated in Rule 59(d).

2. Application

¶33 The trial court’s assertion that the jury’s verdict was a “miscarriage of justice”

warranting a new trial was improper. A “miscarriage of justice” is not one of the

grounds enumerated in Rule 59(d). This is further supported by the fact that Rule 59(d)

was amended to remove “insufficiency of the evidence” from the grounds for a new

trial. Such a removal unmistakably illustrates that a trial court is not free to grant a new

trial solely because it disagrees with the jury’s verdict.6

¶34 This is not to say that the jury’s verdict cannot be an indication that a new trial is

necessary. It can, but an order granting such a new trial must be rooted in one of the

grounds enumerated in Rule 59(d). Such a connection does not exist here. And without

6 Instead, when the evidence is insufficient as a matter of law, the trial court may grant a judgment notwithstanding the verdict. C.R.C.P. 59(e)(1). The trial court itself indicated that requirement was not met here. It denied a previous motion filed by the plaintiffs for judgment notwithstanding the verdict, stating, “a genuine dispute exists as to whether each pilot’s actions was the proximate cause [of the crash]. It is therefore not proper to direct a verdict against either pilot at this stage.” The propriety of that ruling is not before us.

17 a connection to one of the enumerated grounds in Rule 59(d), the trial court’s

dissatisfaction with the jury’s verdict is not a proper ground for a new trial.

IV.Conclusion

¶35 The trial court’s stated reasons for granting a new trial did not meet the

requirements of Rule 59(d), and a trial court may not grant a new trial for a reason other

than those enumerated in Rule 59(d). Thus, the trial court abused its discretion in

granting a new trial. We therefore make our rule to show cause absolute and remand

the case for further proceedings in accord with this opinion.

18