Vol. 82, No. 5, May 2009
Right to Counsel of Choice – Substitution of Privately Retained Counsel – Sentencing – Consideration of Unproven and Acquitted Charges at Sentencing
State v. Prineas, 2009 WI App 28 (filed 4 Feb. 2009) (ordered published 25 March 2009)
The defendant, Prineas, was charged with six counts of second-degree sexual assault, all involving the same victim, for conduct that occurred at a fraternity party. The jury convicted him on two of the charges and acquitted him on the other four. A crucial issue on appeal was whether the circuit court erroneously denied the defendant’s request to replace his privately retained counsel.
Approximately one week before the trial date, Prineas filed a motion asking the court’s permission for withdrawal of his attorney, substitution of counsel, and a continuance of the trial date. Prineas had consulted a different attorney and paid a retainer to that attorney conditioned on the substitution of counsel and postponement of the trial. The court held a hearing on the motion two days later. The state advised the court that the victim and her family did not want the trial delayed because the victim wanted the case to “be done so she could get on with her life.” The court stated that it would not grant a continuance so close to the trial date unless Prineas or his counsel could “give [the court] some extraordinary reason other than just a simple desire to change [attorneys] at this late date.” Because no explanation was offered and because the newly retained attorney could not be ready for the trial on the scheduled date, the court denied the motion (see ¶ 4).
In a decision authored by Judge Snyder, the court of appeals concluded that the circuit court “properly balanced Prineas’ request against the public’s interest in the prompt and efficient administration of justice. See [State v.] Lomax, 146 Wis. 2d at 360. Several factors weigh in favor of the court’s exercise of its discretion, for example: Prineas did not specify the length of delay that would be required; he did not dispute his current counsel’s ability to try the case; the court considered the inconvenience to the court and the concerns of the victim; and Prineas provided no reason for substitution and the accompanying delay. See id.; see also State v. Wedgeworth, 100 Wis. 2d 514, 521, 302 N.W.2d 810 (1981) (court may assume that if there is a compelling reason existing why counsel cannot provide adequate representation it would have been mentioned)” (¶ 24). The court noted that under the Sixth Amendment, a defendant has only a presumptive right to employ his or her chosen counsel (see ¶ 14). It also distinguished this case from a recent Seventh Circuit decision on the same issue. See Carlson v. Jess, 526 F.3d 1018 (7th Cir. 2008).
Among other issues in the case was whether the circuit court erroneously considered unproven and acquitted charges at sentencing. The defendant argued that the circuit court’s consideration of an accusation that was never formally charged (involving another woman at the same party) and of one of the charges as to which the jury acquitted him was a violation of his right to due process. The appellate court disagreed with this contention. “In Wisconsin, a sentencing court may consider uncharged and unproven offenses and facts related to offenses for which the defendant has been acquitted. Sentencing courts are obliged to acquire full knowledge of the character and behavior pattern of the defendant before imposing sentence” (¶ 28) (internal quotes and citations omitted). “When the circuit court weighed the uncharged accusation that Prineas engaged in sexually inappropriate behavior toward another woman at the same [fraternity] party ... and when it referred to the conduct underlying the acquitted charge, the court fulfilled its obligation to consider Prineas’ character and behavior patterns before imposing sentence” (id.).
Restitution – “Victim” of Crime Considered at Sentencing – Restitution for Loss of Employee Productivity
State v. Vanbeek, 2009 WI App 37 (filed 11 Feb. 2009) (ordered published 25 March 2009)
The defendant was convicted of violating Wis. Stat. section 947.015 by intentionally conveying a false threat “to destroy any property by the means of explosives.” According to the criminal complaint a note containing a bomb threat was found in a lunch room at a public high school at approximately 10:15 a.m. As a result, the school district evacuated the building and moved students to off-campus sites, losing four and one-half hours of instructional time. The defendant admitted writing the threat.
The disposition of this case included an order that the defendant pay restitution to the school district, including $15,796.89 attributable to the salaries and benefits of the school’s teachers and staff during the evacuation. On appeal the defendant argued that the circuit court did not have the authority to require payment of restitution to the school district because the district was not the direct victim of a crime considered at sentencing within the meaning of the restitution statute. See Wis. Stat. § 973.20(5)(a). The defendant further argued that the district did not suffer a pecuniary loss as a result of his conduct.
In a decision authored by Judge Neubauer, the court of appeals affirmed. The court said that when “the conduct involved in the crime considered at sentencing is directed at government property, the owner of that property is entitled to restitution” (¶ 11). “[The defendant] conveyed a false threat to destroy school district property, which resulted in an evacuation and a direct loss to the school district. There is no doubt that the conduct involved in the crime considered at sentencing – conveying a threat to destroy school district property by means of explosives – was directed at the school district. [The defendant] left the bomb scare note on school district property and the note threatened to destroy school district property. ... Moreover, despite the fact that the threat to destroy property was false, the school district was clearly impacted as it resulted in the evacuation of the building and disrupted the delivery of school district services. We conclude that the school district was a direct victim of [the defendant’s] conduct” (¶¶ 12-13).
The court further concluded that the school district suffered a pecuniary loss as a result of the defendant’s crime. “During the four and one-half hours that the students and staff were evacuated from school district property as a result of [the defendant’s] bomb scare, the school district paid its employees, but received no services from them” (¶ 17). The court held that the district is entitled to restitution for that loss of employee productivity (see id.).
Trials – Right of the Defendant to Not Testify – Waiver of Right
State v. Jaramillo, 2009 WI App 39 (17 Feb. 2009) (ordered published 25 March 2009)
During his trial on a charge of armed robbery, the defendant testified in his own defense. He subsequently filed a postconviction motion in which he argued he did not knowingly and voluntarily waive his right not to testify. He contended that the circuit court should have conducted an on-the-record colloquy to ensure he understood he had the right not to testify. The circuit court denied the motion, holding that the issue had to be raised within the context of an ineffective-assistance-of-counsel claim.
In a decision authored by Judge Peterson, the court of appeals agreed with the defendant that the right not to testify is a fundamental right. The Wisconsin Supreme Court has concluded that a criminal defendant’s constitutional right to testify on his or her behalf is a fundamental right. See State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485. “It follows then that the constitutionally articulated corollary to the right to testify – the right not to testify – is fundamental as well” (¶ 10). Because the right not to testify is fundamental, a defendant’s waiver of this right must be knowing and voluntary (see ¶ 11).
In this case “the circuit court was obligated to determine at the postconviction hearing whether [the defendant] knowingly and voluntarily waived his right not to testify. This includes ascertaining whether the defendant knew about the right not to testify, the consequences of not testifying, and that this right could be exercised even if the defendant’s attorney counseled to the contrary. The fact that [the defendant] took the witness stand is not enough to demonstrate waiver of the right not to testify” (¶ 14) (citation omitted). Accordingly, the appellate court remanded the matter to the circuit court to determine whether the defendant knowingly and voluntarily waived his right not to testify (see ¶ 18). [Editors’ Note: The appellate court concluded that the trial judge erred in holding that the defendant’s argument had to be raised as an ineffective-assistance-of-counsel claim (see ¶ 2).]
The defendant argued that circuit courts must conduct a colloquy before a defendant testifies to determine whether he or she is knowingly and voluntarily waiving the right not to testify. The court of appeals declined to adopt this rule. Because the court of appeals does not possess the supervisory authority to promulgate such a rule of criminal practice and procedure (¶ 16), “[a] mandate that all courts in Wisconsin must conduct a colloquy to ensure a defendant knowingly and voluntarily waives the right not to testify must therefore come from the supreme court” (id.). Although the court of appeals cannot require such a colloquy, “we do recommend it as good practice” (¶ 17).
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Interpreters – Hearings
Strook v. Kedinger, 2009 WI App 31 (filed 18 Feb. 2009) (ordered published 25 March 2009)
This case is the seminal Wisconsin decision concerning interpreters for parties. A property dispute between two neighbors erupted into civil litigation. One of the parties, Kedinger, acted pro se. He asserted that he was hearing disabled and requested appointment of an interpreter. The circuit court scheduled a hearing on substantive issues, which Kedinger failed to attend, because he allegedly was told the court would not provide an interpreter. The judge dismissed his cross-claims and counterclaims. Kedinger appealed the outcome of this motion hearing.
The court of appeals reversed in a decision written by Chief Judge Brown. It observed that this is “a ‘chicken or the egg’ case. [W]hen a person who must appear in court at a substantive proceeding, seeks an accommodation because of physical disability, and self-identifies in as reasonable a time as possible before the hearing, should circuit courts who believe they need more information before deciding whether and what accommodation to give, make a factual determination before the date of the substantive court hearing, either by informal means or by a formal hearing with notice to the person alleging a disability? Or, may the circuit courts maintain silence about the accommodation request and decide the accommodation request at the substantive hearing? We hold that, as a matter of common sense, fairness and due process, the answer is the former. We reverse because the circuit court in this case used the latter and that latter process prejudicially affected the disabled person’s right to a fair hearing. We also reverse for other, correlative reasons” (¶ 1).
The process for appointing interpreters is set forth in case law (Wis. Stat. § 885.38) and in the Americans with Disabilities Act (ADA). The circuit court’s primary error occurred when it failed to set the matter for a hearing on Kedinger’s need for an interpreter (see ¶ 19). “Once Kedinger properly notified the court that he needed an interpreter, [case law] and the ADA required the court to act on that request – either by obtaining an interpreter or setting a hearing date so that the need for an interpreter could be determined. Since there is no record showing that a hearing to determine the need for an interpreter was on the docket, we must reverse on that ground alone” (¶ 21).
“We also hold that the circuit court’s apparent intention to hear the interpreter issue and the substantive issue simultaneously, was an improper exercise of discretion. The court forms emanating from the Fond du Lac courts, like the forms in all or practically all the circuits in this state, ask parties to contact the court if they need an accommodation due to disability. The whole purpose behind this inquiry is to foster self-identification of those who have disabilities and need an accommodation. It allows the courts to determine the need for an accommodation in an orderly and efficient manner and to make whatever factual inquiry is necessary. If an accommodation is found to be necessary, it allows the courts to have everything in place before the date of the substantive proceeding. Otherwise, if the accommodation hearing takes place on the same day and same time as the substantive hearing, the court runs the risk that the hearing will have to be postponed should it be determined that an accommodation is needed. It simply makes no sense, from a judicial efficiency standpoint, to have the accommodation hearing on the same day as the substantive hearing if the disabled person has self-identified and asked for an accommodation beforehand” (¶ 23).
The court also looked at the issue through the “lens of the disabled person. If the hearing on whether to provide an accommodation is scheduled at the time of the substantive hearing itself, we place the allegedly disabled person between the proverbial ‘rock and the hard place.’ One can only imagine the fear and confusion that a person with a disability might have if required to appear at an important proceeding to determine liberty or property interests not knowing whether the requested accommodation is going to be granted. Courts are public entities that must be accessible to all. We must assure that, if a person is disabled and needs an accommodation to have access to the courts, then that disabled person should not have to worry about access issues when preparing for the substantive hearing. To do otherwise is no way to conduct judicial business. The hearing on the accommodation should precede the substantive hearing” (¶ 25).
“After reading the record thoroughly, we are satisfied that the circuit court’s comments appear to show how denial of a sign language interpreter was a foregone conclusion even had Kedinger appeared. The court recounted its belief, almost all of it from hearsay, that Kedinger ‘picks and chooses his deficit,’ that his own doctor explained how passing written notes back and forth would suffice and that the court ‘intended to probably do that,’ and that Kedinger was capable of ‘normal conversation’ in any event. From the record, it appears to this court that the circuit court had already made up its mind that there would be no interpreter and that the court would proceed by passing written notes back and forth. We are also mindful that adjourning the matter so as to obtain an interpreter would have thwarted the whole purpose behind the circuit court’s notice for the hearing, which was to hear and decide this matter before the court’s medical leave began” (¶ 26).
The court remanded the case for a determination of Kedinger’s capabilities and the form of communication that would best accommodate his needs. The opinion discusses the limits of lip reading and written notes (see ¶¶ 27, 29). “But whatever his capabilities are, the circuit court must be cognizant not only of our statutes and case law, but also the ADA and, pursuant to the ADA, must give ‘primary consideration’ to Kedinger’s preferred method of communication. If Kedinger’s first language is English and he reads English well, perhaps the accommodation of a realtime reporter might be amenable to both Kedinger and the court – after considering the resources available and comparing the costs of each accommodation” (¶ 31).
Homeowner’s Insurance – Exclusion – Watercraft
Sass v. Acuity, 2009 WI App 32 (filed 25 Feb. 2009) (ordered published 25 March 2009)
Sass, a passenger in a vehicle towing a boat, was injured when the boat came loose from its trailer and struck the vehicle’s cab. The driver, Johnson, carried both an automobile liability policy and a homeowner’s insurance policy with Acuity. The insurer paid out on the automobile policy but denied coverage under the homeowner’s policy. The circuit court later granted summary judgment in Acuity’s favor, ruling that Sass was barred from receiving benefits under the “watercraft rider” in the homeowner’s policy.
The court of appeals affirmed in a decision written by Judge Anderson. The interpretation of watercraft liability endorsements was an issue of first impression in Wisconsin, and few cases exist in other jurisdictions. Sass unsuccessfully advanced four contentions: 1) The accident arose out of the “use” of Johnson’s boat. 2) The watercraft coverage applied because the accident occurred during the “loading or unloading” of the boat. 3) A reasonable insured would have expected coverage for such injuries. 4) “Acuity’s reliance on the words ‘[a]ll other provisions of this policy apply’ as an exclusion from coverage is not valid, because the phrase is both vague and contextually ambiguous” (¶ 12).
As to the first contention, “When a boat is being towed on a trailer, the towing vehicle is in use, as is the trailer itself. The boat itself, considering its nature, is not. It constitutes cargo upon the trailer at that time” (¶ 25). As to the second, “The ordinary and reasonable construction of the ‘loading and unloading’ language of the watercraft form is to provide coverage for the loading and unloading of the boat with persons or objects, not the loading or unloading of the boat onto or off of another vehicle” (¶ 30). Nor could Sass contend that coverage extended to the loading or unloading of the boat onto the trailer, because Acuity’s motor vehicle exclusion excluded coverage for both the motor vehicle and the trailer (see ¶ 31). On the final two contentions, the court adopted the circuit court’s reasoning.
Chief Judge Brown concurred but disagreed with the majority’s “conclusion that ‘loading and unloading,’ as that term appears in Acuity’s ‘Watercraft Liability’ attachment to this homeowner’s policy, means ‘the loading and unloading of the boat with persons or objects.’ Majority, ¶ 30. Rather, I agree with Acuity that the reasonable person in the position of the insured would believe that this term means being ‘actively engaged’ in the actual loading and unloading of the boat. Therefore, the policy covers the process of transferring a boat onto or off of a vehicle, a trailer, a flat bed, a dry dock station or something similar” (¶ 36).
UM Coverage – Hit and Run
Zarder v. Humana Ins. Co., 2009 WI App 34 (filed 18 Feb. 2009) (ordered published 25 March 2009)
Zarder was riding a bike that was struck by a car that cut a corner short. The car stopped about 100 feet away. Three males got out of the car, and one of them asked if Zarder was okay. When Zarder said yes, they drove off without providing or offering to provide any identifying information. Zarder, however, had in fact suffered serious injuries that later came to light. The driver was never identified. When Zarder’s parents claimed coverage under their own uninsured motorist (UM) coverage, asserting that the accident was a hit-and-run by an unidentified vehicle, the insurer denied coverage. A circuit court later rejected the argument of the insurer (Acuity) that because the vehicle stopped and the operator inquired into the boy’s well-being, the accident was not a hit-and-run.
The court of appeals granted leave to appeal this important and novel issue, and it affirmed the circuit court in a decision authored by Chief Judge Brown. “What does run mean when an insurance policy covers ‘hit-and-run’ as part of an uninsured motorist provision and the policy does not define the term? Does run mean to flee without stopping, or does it mean leaving the scene without providing identifying information even if the driver stopped to see if there was any injury? We hold that the latter definition controls and affirm the circuit court” (¶ 1).
The court rejected Acuity’s “main argument” that the issue had been decided in Hayne v. Progressive Northern Insurance Co., 115 Wis. 2d 68, 339 N.W.2d 588 (1983). “We conclude that Hayne’s definition of ‘run’ as a ‘fleeing from the scene of an accident’ is dicta that begged the question. The facts in Hayne did not present an issue as to whether the unidentified vehicle ‘ran’ from the scene. Instead, the issue presented was whether the term ‘hit’ in ‘hit-and-run’ includes accidents without any physical contact. We conclude that Hayne discussed ‘run’ in passing only because that term was part of the phrase ‘hit-and-run.’ Therefore, Hayne’s mention of ‘run’ is uninformative dicta and not controlling” (¶ 14).
Turning to the policy’s language, Acuity argued that run means “to flee without stopping” (¶ 16). The policy did not define hit-and-run, a term that the court found to be ambiguous based on various dictionary definitions. The interpretation favorable to the insured holds that “the ‘run’ of a ‘hit-and-run’ occurs when the driver leaves the accident scene without providing identifying information, even though the driver stopped to see if there was injury” (¶ 23). In the alternative, the court reached the same result by applying the omnibus statute (Wis. Stat. § 632.32(4)). This conclusion flowed from the legislative history of section 632.32(4), the provisions of the hit-and-run statute (Wis. Stat. § 346.67), and the principle of construing statutes to avoid surplusage (see ¶ 28).
Judge Snyder dissented
“[b]ecause the supreme court defined the term ‘run’ as used in the Omnibus Clause phrase ‘hit and run,’ and because only the supreme court can withdraw language from or otherwise modify its own holding” (¶ 46).
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30-day Notice – Depreciation
BCR Trucking LLC v. PACCAR Inc., 2009 WI App 36 (filed 5 Feb. 2009) (ordered published 25 March 2009)
BCR Trucking purchased a truck from PACCAR in July 2004. In June 2006 BCR sent PACCAR a lemon law notice under Wis. Stat. section 218.0171 seeking a comparable replacement vehicle. PACCAR received the notice on June 2 and on June 27 notified BCR that it would replace the vehicle. On June 30, BCR agreed that the proposed replacement vehicle was an “acceptable” replacement but did not take possession of it. On July 5, after 30 days from the notice had passed, BCR requested any documents that PACCAR would require to complete the vehicle exchange. BCR was unable to obtain any documents from PACCAR but obtained them from the dealership two days later. BCR refused to sign them, asserting that they violated the state’s lemon law. The next day, PACCAR agreed to waive signing of the documents and reiterated that the new truck was available to BCR. BCR did not take possession of the proffered replacement vehicle but instead filed suit. The circuit court ruled that PACCAR had complied with the lemon law and ordered BCR to return the original truck, in exchange for which BCR would receive its original purchase price less depreciation from the time PACCAR first offered the replacement, plus five percent interest for that time period.
The court of appeals affirmed in a decision authored by Judge Dykman. In several prior cases, “the manufacturer refused to provide the consumer with a remedy within the statutory thirty-day period unless the consumer signed a prohibited document, and the thirty days then passed without the manufacturer providing the requested refund. Here, the requested relief was a comparable vehicle, and it is undisputed that PACCAR did make a comparable vehicle available to BCR within the thirty-day time frame. Apart from what transpired after the thirty-day time period, a topic we address below, there is no evidence that PACCAR required the signing of a prohibited document” (¶ 17). When BCR objected to the documents, PACCAR waived their signing. “Accordingly, even if we look at the events after the time-period passed, it does not support a finding that BCR was required to sign prohibited documents in order to obtain the replacement vehicle” (¶ 18).
Finally, the circuit court properly awarded BCR its original purchase price less depreciation. “The problem with BCR’s argument is that the trial court found that there was no violation of the Lemon Law, and thus the relief it afforded BCR could not have been for a violation of the Lemon Law. After the trial court concluded that PACCAR did not violate the Lemon Law, BCR moved the court for a judgment in its favor based on the parties’ agreement that the original truck was, in fact, a lemon. PACCAR then voluntarily agreed to refund the price BCR paid for the truck, but requested a deduction in the amount the lemon truck depreciated from the time BCR could have picked up the replacement truck” (¶ 20). In sum, the circuit court did not “rewrite” the lemon law; instead, it imposed an equitable remedy that the court of appeals declined to upset (see ¶ 21).
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Eviction – Emergency Assistance Stays
McQuestion v. Crawford, 2009 WI App 35 (filed 10 Feb. 2009) (ordered published 25 March 2009)
The defendant, Crawford, appealed from an eviction judgment lifting an emergency assistance stay and requiring him to move from the premises owned by the plaintiff, McQuestion. The defendant contended that pursuant to Wis. Stat. section 799.40(4), the circuit court did not have the authority to lift an emergency assistance stay after he was found eligible for emergency assistance (see Wis. Stat. § 49.138) because the statute requires the court to stay the eviction action “until the tenant receives the emergency assistance,” no matter how long it takes the tenant to find suitable housing (see ¶ 1).
In a decision authored by Judge Curley, the court of appeals affirmed the circuit court. It concluded that “implicit in the statute’s mandate that a stay is required until the tenant receives the emergency assistance is a requirement that the tenant seek and find suitable permanent housing within a reasonable period of time” (¶ 13), “as determined by the judge under the circumstances in each individual case” (¶ 14).
A contrary holding could lead to absurd results. Said the court, “[an emergency assistance] group could prolong their stay in the property by either not looking for replacement housing or rejecting all available properties. To suggest that those found eligible for emergency assistance can remain indefinitely in housing from which they have been evicted could lead to serious abuse. In addition, should we adopt [defendant] Crawford’s interpretation, it would create the unfortunate consequence, for those found eligible for emergency assistance, of providing no incentive to look for suitable permanent housing within a reasonable period of time. As the trial court observed in refusing to accept this interpretation, ‘it could go on forever.’ Such an interpretation also runs counter to the legislative intent found in the eviction statutes that owners are entitled to possession of their property and can swiftly remove renters who have failed to pay the rent. See Wis. Stat. § 799.40(1)” (¶ 12) (citations omitted).
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Benefits for Loss of Earning Capacity – Reopening Award After Employer Rehires Worker Prohibited
Schreiber Foods Inc. v. Labor & Ind. Review Comm’n, 2009 WI App 40 (filed 10 Feb. 2009) (ordered published 25 March 2009)
Petitioner Schreiber Foods sought to reopen a worker’s compensation decision issued by the Labor and Industry Review Commission (LIRC). LIRC had awarded loss-of-earning-capacity benefits to an injured employee. Two years after the award was made, Schreiber rehired the employee and then sought to vacate the award because the employee was now working. LIRC concluded that the award was final and could not be vacated. Schreiber petitioned the circuit court for review. The circuit court reversed, and LIRC appealed.
In a decision authored by Judge Peterson, the court of appeals reversed the circuit court. It held that the award for the loss of earning capacity was final and could not be vacated under these circumstances (see ¶ 2). Said the court, “Once a permanent partial disability award is made, the worker’s compensation statutes provide only limited provision for reopening. For example, Wis. Stat. § 102.18(3) permits an [administrative law judge] to set aside, modify, or reverse an award within twenty-one days from the date of the order. Wis. Stat. § 102.18(4)(c) allows an award to be set aside, modified, or reversed because of a mistake or newly discovered evidence for up to a year after the date of the order. The statutes do not, however, provide for the reopening of an award two years after it was rendered in the event the employer rehires the employee” (¶ 18).
Exclusive Remedy – Motor Vehicle Exception
Kuehl v. Sentry Select Ins. Co., 2009 WI App 38 (filed 10 Feb. 2009) (ordered published 25 March 2009)
Kuehl, a manager at an automotive service center, was injured by the negligence of one of his mechanics, who failed to properly position a customer’s vehicle on a hoist. The vehicle’s back end tipped off the hoist and injured Kuehl, who brought suit under the commercial liability policy that covered the service center. The circuit court granted summary judgment to the insurer, Sentry, under the exclusive remedy provisions of the Worker’s Compensation Act.
The court of appeals affirmed in a decision authored by Judge Hoover. The Act’s exclusive remedy provision explicitly excepts “the right of an employee to bring action against ... a coemployee for negligent operation of a motor vehicle not owned or leased by the employer” (¶ 6). The phrase operation of a motor vehicle had been deemed ambiguous in several prior cases. On these facts the court held that the coemployee’s “placement of the vehicle on the hoist did not constitute negligent operation of a motor vehicle under Wis. Stat. § 102.03(2). We disagree with Kuehl’s assertion that the question is whether the operation of the vehicle was causal. The real issue is whether [the coemployee’s] actions constituted negligent ‘operation’ under the statute” (¶ 12). Here the alleged negligence was “the way the vehicle was positioned on the hoist; that negligence is independent of how the vehicle was operated” (¶ 13).
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