Wheeling Jesuit University, Inc. v. Kathryn A. Voorhees, Jason Fuller, Jessica Wrobleski, Peter Ehni, Andrew Staron, Amy Criniti Phillips, Nancy Bressler, and John W. Whitehead III

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
Fall 2024 Term
October 15, 2024
_____________________ released at 3:00 p.m.
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
No. 23-ICA-324 OF WEST VIRGINIA
No. 23-ICA-383
_____________________

WHEELING JESUIT UNIVERSITY, INC.,
Defendant Below, Petitioner,

v.

KATHRYN A. VOORHEES, JASON FULLER, JESSICA WROBLESKI,
PETER EHNI, ANDREW STARON, AMY CRINITI PHILLIPS,
NANCY BRESSLER, and JOHN W. WHITEHEAD III,
Plaintiffs Below, Respondents.

___________________________________________________________

Appeal from the Circuit Court of Ohio County
Honorable Ronald E. Wilson, Judge

Case No. CC-35-2019-C-218

AFFIRMED, IN PART,
REVERSED, IN PART, AND REMANDED

_________________________________________________________

Submitted: September 4, 2024
Filed: October 15, 2024

John R. Merinar, Jr., Esq. Walt Auvil, Esq.
Jeffrey M. Cropp, Esq. Kirk Auvil, Esq.
Steptoe & Johnson, PLLC The Employment Law Center, PLLC
Bridgeport, WV Parkersburg, WV
Counsel for Petitioner Counsel for Respondents
JUDGE LORENSEN delivered the Opinion of the Court.
LORENSEN, JUDGE:

Petitioner Wheeling Jesuit University, Inc. (“WJU”) appeals the January 20,

2023, and June 26, 2023, orders of the Circuit Court of Ohio County granting Respondents

Kathryn Voorhees, Jason Fuller, Jessica Wrobleski, Peter Ehni, Andrew Staron, Amy

Criniti Phillips, Nancy Bressler, and John W. Whitehead III’s (collectively “Respondents”)

second motion for summary judgment and itemized statement of damages. On August 15,

2023, the circuit court entered its Final Judgment Order memorializing its findings from

the two previous orders.

Respondents were either tenured or tenure-track faculty members at WJU.

On March 28, 2019, Respondents were notified that their employment would not be

renewed for the 2019-2020 academic year due to a declaration of financial exigency made

by the WJU board of trustees. In its order granting summary judgment, the circuit court

held that WJU breached Respondents’ employment contracts and violated the West

Virginia Wage Payment and Collection Act (“WPCA”). The circuit court awarded

damages for unpaid wages plus liquidated damages pursuant to the WPCA.

Upon review, we find that the circuit court erred when it granted summary

judgment as to the tenure-track Respondents’ breach of contract claim, but affirm the

circuit court’s grant of summary judgment as to the tenured Respondents. We further find

that the WPCA does not apply to Respondents and reverse and remand for entry of an order

recalculating damages to consider mitigation as to three of the four tenured Respondents,

1
including Respondents Wrobleski, Ehni, and Whitehead. With respect to Respondent

Voorhees’ mitigation of damages, we remand for the circuit court to consider whether WJU

met its burden pursuant to Rodriguez v. Consolidation Coal Co., 206 W. Va. 317, 327, 524

S.E.2d 672, 682 (1999) (citation omitted) and reverse and remand to the circuit court for

further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Respondents are all former faculty members of WJU. In or around February

of 2018, Respondents were issued Notices of Reappointment for the 2018-2019 academic

year. Pursuant to these notices, four of the Respondents, Fuller, Staron, Phillips, and

Bressler (the “tenure-track Respondents”) were reappointed to tenure-track positions in

their probationary period. The remaining four Respondents, Voorhees, Wrobleski, Ehni,

and Whitehead (the “tenured Respondents”) were appointed to tenured positions.

Approximately a year later, on March 28, 2019, each of the eight

Respondents received a notice of non-reappointment stating their employment was being

terminated at the end of the 2018-2019 academic year due to WJU’s financial exigency.

WJU determined that it needed to make significant changes to its academic programs to

remain open to students. WJU completely eliminated certain academic programs, including

the English major, the Chemistry major, and the Theology major. Other programs,

including the Physics major, were reduced. Respondents’ positions were affected by the

cuts made to the WJU academic programs. WJU continued to pay Respondents their

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salaries and benefits through the end of the 2018-2019 academic year and their

appointments ended on August 31, 2019.

Respondents’ terms and conditions of employment were set forth in the

Wheeling Jesuit University Faculty Handbook (2/23/18) (“Faculty Handbook”).1 Pursuant

to the Faculty Handbook, tenured or tenure-track faculty members who are terminated

during the term of an appointment “not for cause” are entitled to receive a “terminal

appointment” for the following academic year. A terminal appointment entitles faculty

members to an extra academic year of employment. Whether the faculty member is asked

to teach during the terminal appointment is at the discretion of the President of WJU, but

if the faculty member chooses to decline such a request, the employment relationship is

severed.

Respondents filed the underlying action against WJU, arguing that WJU

breached their employment contracts by refusing to provide them with terminal

appointments for the 2019-2020 academic year. Respondents also argued that WJU

violated the WPCA because WJU’s refusal to grant them terminal appointments resulted

in unpaid wages for the 2019-2020 academic year. The parties filed cross motions for

summary judgment. In granting Respondents’ motion, the circuit court held that

1
WJU notes in its brief that WJU faculty have a role in drafting, revising, and
amending the Faculty Handbook.
3
Respondents were not terminated “for cause” because the definition of “for cause” in

Section 13.3 of the Faculty Handbook does not include financial exigency. The circuit court

also agreed with Respondents that WJU violated the WPCA when it refused to pay

Respondents’ wages for the terminal appointments. The circuit court granted Respondents’

Itemized Statement of Terminal Contract Damages, which awarded Respondents damages

for lost wages for the 2019-2020 academic year as well as liquidated damages. On August

15, 2023, the circuit court entered its Final Judgment Order, which memorialized its

holdings from the prior orders. It is from these orders that WJU now appeals.2

II. STANDARD OF REVIEW

The West Virginia Supreme Court of Appeals has long held that “‘“[a]

motion for summary judgment should be granted only when it is clear that there is no

genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify

the application of the law.” Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal

Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).’ Syllabus Point 1,

Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).” Syl. Pt. 1,

Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995). We review a circuit

2
WJU appealed the circuit court’s order granting Respondents’ motion for summary
judgment and order granting Respondents’ itemized statement of terminal contract
damages. The Court docketed this appeal as 23-ICA-324. Shortly thereafter, the circuit
court entered a Final Judgment Order pursuant to Rule 54(b) of the West Virginia Rules of
Civil Procedure, which WJU separately appealed. This appeal was docketed as 23-ICA-
383. This Court granted the parties’ joint motion to consolidate 23-ICA-324 and 23-ICA-
383 for the purposes of briefing, consideration, and decision.
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court’s ruling on a motion for summary judgment de novo. See Syl. Pt. 1, Painter v Peavy,

192 W. Va. 189, 451 S.E.2d 755 (1994). Further, “we apply a de novo standard of review to

[a] circuit court's interpretation of [a] contract.” Home Inspections of VA and WV, LLC v.

Hardin, 244 W. Va. 173, 176, 852 S.E.2d 240, 243 (2020).

III. DISCUSSION

WJU asserts four assignments of error on appeal. First, WJU argues that the

circuit court erred in granting summary judgment on Respondents’ breach of contract claim

regarding Respondents’ eligibility for terminal appointments as WJU’s state of financial

exigency was a “for cause” reason for termination. Second, WJU argues that the circuit

court erred when it granted summary judgment on Respondents’ WPCA claim because a

terminal appointment does not satisfy the definition of wages or accrued fringe benefits

under the WPCA.

WJU makes two alternative arguments in the event we determine that the

circuit court did not err in granting summary judgment. First, WJU argues that the circuit

court erred by failing to reduce Respondents’ damages by their interim earnings as required

by West Virginia Code § 55-7E-3(a) (2015). Second, WJU argues that the circuit court

erred in failing to reduce Respondent Voorhees’ damages because she did not engage in

reasonable diligence to find subsequent employment pursuant to West Virginia Code § 55-

7E-3(a).

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A. Breach of contract claims

WJU argues that the circuit court erred when it applied Section 7.5 instead of

Section 7.4 of the Faculty Handbook to the tenure-track Respondents and found that WJU

had breached Respondents’ employment contracts.3 WJU argues that neither the tenured

nor tenure-track faculty members were eligible for terminal appointments because WJU

had declared that it was in a state of financial exigency. We will address tenure-track and

tenured faculty separately below.

“A valid written instrument which expresses the intent of the parties in plain and

unambiguous language is not subject to judicial construction or interpretation but will be

applied and enforced according to such intent.” Syl. Pt. 3, Miller v. WesBanco Bank, Inc.,

245 W. Va. 363, 859 S.E.2d 306 (2021) (quoting Syl. Pt. 1, Sally-Mike Properties v.

Yokum, 175 W. Va. 296, 332 S.E.2d 597 (1985)). “If language in a contract is found to be

plain and unambiguous, such language should be applied according to such meaning.”

Fraternal Ord. of Police, Lodge No. 69 v. City of Fairmont, 196 W. Va. 97, 101, 468 S.E.2d

712, 716 (1996).

3
The parties do not dispute that the Faculty Handbook formed the basis and defined
the terms of a contract in this case. See Keener v. Clay County Development Corp., 247 W.
Va. 341, 353, 880 S.E.2d 63, 75 (2022).
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1. Tenure-track faculty

WJU argues that this Court should apply Section 7.4, not Section 7.5 of the

Faculty Handbook, to tenure-track faculty. Section 7.4 specifically relates to the non-

renewal of a tenure-track appointment in probation at the end of a term. In full, Section 7.4

states:

7.4 Non-Renewal of a Multi-Year Appointment, a Non-Tenure-Track
Appointment, or a Tenure-Track Appointment in Probation at End of
Term

Tenure-track faculty appointments in probation and non-
tenure track faculty appointments may not be renewed at
expiration of the appointment period based upon financial
exigency (legal term); change in University mission or needs;
program termination, reduction, or redirection; a faculty
member’s inability to perform or lack of performance of the
essential functions or fundamental job duties of his position;
mental or physical disability; failure to comply with University
policies; conviction of a felony; or moral turpitude, as
determined by the Administration. (emphasis added)

In contrast, Section 7.5 relates to termination during the term for tenured or

non-tenure-track faculty members. In full, Section 7.5 states:

7.5 Termination of a Tenured Appointment or of a Non-Tenure-Track
Appointment During the Term

A tenure appointment or non-tenure track appointment
during term may be terminated because of financial
exigency (legal term); change in University mission or needs;
program termination, reduction, or redirection; a faculty
member’s inability to perform or lack of performance of the
essential functions or fundamental job duties of his position;

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mental or physical disability; failure to comply with University
policies; conviction of a felony; or moral turpitude. Revocation
of an appointment during the term because of professional
incompetence (for cause) is termed dismissal. In the case of the
termination of a faculty member for any of these
circumstances, the President, CAO and appropriate Chair must
meet to review, discuss, and recommend termination to the
Board of Trustees which will make the final decision. A faculty
member who has been terminated has the right to appeal
through the Due Process Procedures in Section 13.

Tenured or tenure-track faculty members whose
appointments are terminated (not for cause), are given a
terminal appointment for the next academic year. At the
discretion of the President, a faculty member may or may not
be asked to teach during the terminal appointment. If the
faculty member is offered the opportunity to teach, and
chooses not to do so, the employment relationship is severed.
(emphasis added)

The parties dispute whether the second paragraph of Section 7.5 applies to

tenure-track faculty members whose appointments were not renewed for the next academic

year. WJU argues that Section 7.5 contemplates an appointment’s termination during the

term and does not apply here because Respondents remained employed for the entire

current appointment (the 2018-2019 academic year). On the other hand, Respondents argue

that the plain language of Section 7.5 requires that all tenured or tenure-track faculty are

entitled to terminal appointments upon termination.

Here, the tenure-track faculty members were given notice on March 28,

2019, that their appointments were not to be renewed for a new term (the 2019-2020

academic year), but they were permitted to complete the remainder of their current

8
appointment term. Under the plain language of the Faculty Handbook, their appointments

were not terminated during the term as contemplated in Section 7.5. Instead, tenure-track

Respondents’ appointments were simply not renewed, as provided for in Section 7.4.

Although the second paragraph of Section 7.5 states that “[t]enured or tenure-track faculty

members whose appointments are terminated (not for cause), are given a terminal

appointment for the next academic year,” Section 7.4 of the Faculty Handbook, which

governs the nonrenewal of tenure-track faculty appointments in probation, does not include

a similar provision providing terminal appointments. As the tenure-track Respondents’

appointments were not renewed under Section 7.4, Section 7.5 did not apply to them, and

they were not entitled to terminal appointments. The second paragraph in Section 7.5 of

the Faculty Handbook would only be applicable to the tenure-track faculty members if their

appointments had been terminated prior to the end of the academic year appointment,

which they were not. Accordingly, we reverse the circuit court’s holding that WJU

breached the tenure-track Respondents’ employment contracts by failing to grant them

terminal appointments for the 2019-2020 academic year.

2. Tenured faculty

In contrast to the tenure-track Respondents above, the tenured Respondents

were entitled under the Faculty Handbook to continuous appointments (as opposed to year-

by-year appointments in the case of tenure-track faculty) in their respective departments.

“Tenure” is defined in Section 6.4.4 of the Faculty Handbook as:

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6.4.4 Tenure

Tenure means the right to continuous appointments as a
ranked member of a particular department or program
within a particular department until the faculty member
dies, retires, resigns or is dismissed for adequate cause or
lack of institutional need as indicated in Sections 7.5, 7.6,
7.7, or 7.8 of this Handbook. The Tenure appointment is
normally for full-time service but, by mutual agreement, it may
specify a reduced load. (emphasis added)

Section 6.4.4 specifically permits WJU to dismiss tenured faculty based on

financial exigency, as indicated in Section 7.5. “Financial exigency” is defined as:

7.6 Financial Exigency

“Financial Exigency” (a legal term) is defined as the critical,
pressing, or urgent need on the part of the University to reorder
its monetary expenditures in such a way as to remedy and
relieve the state of urgency within the University created by its
inability to meet its annual monetary expenditures with
sufficient revenue to prevent a sustained loss of funds and/or
abandonment of its stated institutional mission.

Financial Exigency must be declared by the Board of Trustees.
Reasons for declaring financial exigency must be given in
writing to those Faculty Council members who agree to sign
an NDA. The Faculty Council may tell the Faculty that they
(as members of Council) agree or disagree with the necessary
measures.

Unlike with the tenure-track Respondents, WJU does not dispute that it

terminated the tenured Respondents’ appointments pursuant to Section 7.5. Instead, WJU

contends that financial exigency is a for-cause reason for termination of tenured faculty

and thus, the tenured faculty here are not entitled to terminal appointments. We disagree.

Section 13.3 of the Faculty Handbook states, in part:

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13.3 Dismissal and Suspension

Individual faculty members who have tenure or whose term of
appointment has not expired may be dismissed for cause. “For
cause,” includes poor teaching performance, negligence in
the performance of duty, repeated failure to meet the
express written policies of the institution, moral turpitude,
professional, financial or ethical dishonesty, conviction of a
felony, or loss of licensure/certification. [sic] (emphasis
added)

Here, WJU was permitted to terminate tenured faculty due to financial

exigency per Section 7.5, but financial exigency is not a “for cause” reason for dismissal

that would preclude the tenured Respondents from receiving terminal appointments. Thus,

WJU breached the tenured Respondents’ employment contracts by failing to provide them

terminal appointments for the 2019-2020 academic year.

B. West Virginia Wage Payment and Collection Act

In our discussion above, we concluded that the tenured Respondents are

entitled to terminal appointments per their employment agreement. Whether the tenured

Respondents are entitled to the civil penalty provisions of the WPCA due to WJU’s failure

to honor the terminal contracts depends on whether terminal appointments constitute

“wages” or “fringe benefits” per the WPCA. The WPCA states: “[i]f a person, firm, or

corporation fails to pay an employee wages as required under this section, the person, firm,

or corporation, in addition to the amount which was unpaid when due, is liable to the

employee for two times that unpaid amount as liquidated damages.” (emphasis added).

W. Va. Code § 21-5-4(e) (2022). The WPCA defines wages and fringe benefits as:

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The term “wages” means compensation for labor or
services rendered by an employee, whether the amount is
determined on a time, task, piece, commission, or other basis
of calculation. As used in § 21-5-4, § 21-5-5, § 21-5-8a, § 21-
5-10, and § 21-5-12 of this code, the term “wages” shall also
include then accrued fringe benefits capable of calculation
and payable directly to an employee.

W. Va. Code § 21-5-1(c) (2021) (emphasis added).

Respondents argue that this case is analogous to Miller v. St. Joseph

Recovery Cntr. LLC, 246 W. Va. 543, 874 S.E.2d 345 (2022). In Miller, our Supreme Court

of Appeals interpreted the definition of fringe benefits to include a severance package owed

pursuant to an employment contract. Id. The court reasoned that “[t]he severance package

was an inducement to procure an employee's services and represented a form of deferred

compensation for work performed during the employment.” Id. at 553, 874 S.E.2d at 355.

Moreover, the court emphasized the importance of the terms of the employment contract

when deciding when a fringe benefit vests. On this issue, the court held that “[t]he concept

of vesting is concerned with expressly enumerated conditions or requirements all of which

must be fulfilled or satisfied before a benefit becomes a presently enforceable right.” Id.

Thus, unless the employment contract expressly contains language to the contrary, a

severance package is considered a fringe benefit and subject to the WPCA. Id.

We find that Miller is distinguishable from the facts before us. Section 7.5 of

the Faculty Handbook states that “[a]t the discretion of the President, a faculty member

12
may or may not be asked to teach during the terminal appointment. If the faculty member

is offered the opportunity to teach, and chooses not to do so, the employment relationship

is severed.” (emphasis added). Here, terminal appointments do not constitute a fringe

benefit under West Virginia Code § 21-5-1(c) because terminal appointments contemplate

possible future wages for possible future services rendered by the employee. Rather, the

terminal appointment constitutes a conditional one-year term of employment where the

employment relationship is not severed unless a faculty member chooses not to provide

services during the term. Unlike in Miller where the severance package represented

deferred compensation for work the employee already rendered, here, the terminal

appointments contemplated future services that would never be rendered.4 The tenured

Respondents would only be paid pursuant to their terminal contracts if they performed the

services required to fulfill the appointments. Thus, the circuit court erred in finding that

terminal appointments constitute “wages” pursuant to the WPCA and in awarding

consequent liquidated damages.

C. Mitigation of damages

Next, we move to WJU’s two remaining assignments of error that were raised

in the alternative. First, WJU argues that the circuit court erred when it found that the

tenured Respondents had no duty to mitigate their damages and awarded them the full

4
The parties stipulated that no request to teach during the terminal appointment year
was made as to any Respondents.
13
amount of their salaries for the 2019-2020 academic year, plus liquidated damages, even

though all but one of the tenured Respondents found subsequent employment for the 2019-

2020 academic year.5

1. Tenured Faculty Who Mitigated

Pursuant to West Virginia Code § 55-7E-3(a):

In any employment law cause of action against a current or
former employer, regardless of whether the cause of action
arises from a statutory right created by the Legislature or a
cause of action arising under the common law of West
Virginia, the plaintiff has an affirmative duty to mitigate
past and future lost wages . . . Any award of back pay or front
pay by a commission, court or jury shall be reduced by the
amount of interim earnings or the amount earnable with
reasonable diligence by the plaintiff. It is the defendant's
burden to prove the lack of reasonable diligence. (emphasis
added)

Here, Respondents Wrobleski, Ehni, and Whitehead are all former

employees of WJU that have common law contract claims against WJU. Under those

claims, Respondents Wrobleski, Ehni, and Whitehead have sought, and were awarded by

the circuit court, back pay for the terminal appointments that WJU failed to award them.

Based on our foregoing holding that terminal appointments are not a fringe benefit like the

severance package in Miller, West Virginia Code § 55-7E-3(a) requires that the tenured

Respondents mitigate their lost wages due to WJU’s breach. Our Legislature made it clear

5
WJU argues that all Respondents were required to mitigate their damages.
However, based on our finding above that there was no breach of contract with the tenure-
track Respondents, we address mitigation solely as it relates to the tenured Respondents.
14
that the “purpose of this article is to provide a framework for adequate and reasonable

compensation to those persons who have been subjected to an unlawful employment action,

but to ensure that compensation does not far exceed the goal of making a wronged

employee whole.” West Virginia Code § 55-7E-2(b). By not considering Respondents

Wrobleski, Ehni, and Whitehead’s actual mitigation, the circuit court’s calculation of

damages for three of the four tenured Respondents far exceeded the goal of West Virginia

Code § 55-7E-2 to make a wronged employee whole.6

The circuit court relied on Miller in holding “mitigation has no relevance to

wages already earned while [Respondents] were employed by [WJU].” Having found that

Miller and the WPCA are inapplicable to the facts before us, we hereby find West Virginia

Code § 55-7E-3(a) requires that the circuit court reduce the tenured Respondents’ back pay

by the amount of their interim earnings. Accordingly, we find that the circuit court erred in

failing to consider the interim earnings of Respondents Wrobleski, Ehni, and Whitehead

and reverse and remand for recalculation of damages.

6
As stated above, the tenured Respondents are not entitled to liquidated damages.
The circuit court’s significant damages award against WJU is due in large part to the
liquidated damages award, which was the tenured Respondents’ salary, plus two times their
salary in liquidated damages.
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2. Tenured Faculty Who Did Not Mitigate

Second, WJU argues that the circuit court erred when it failed to reduce

Respondent Voorhees’ damages because she did not engage in reasonable diligence to find

subsequent employment. West Virginia Code § 55-7E-3(a) imposes an affirmative duty to

mitigate any claim for past or future wages. See also Martinez v. Asplundh Tree Expert

Co., 239 W. Va. 612, 618, 803 S.E.2d 582, 588 (2017). On mitigation, the Supreme Court

of Appeals of West Virginia has held:

An employee, demanding damages for alleged breach of his
contract of employment, may rest his case upon proof of a valid
contract and its breach, the measure of his damages being the
contract price of his services. Mitigation of damages is an
affirmative defense, and its burden is entirely on the contract
breaker. This burden is not sustained by showing that the
injured party was offered employment, though similar to that
contracted, unless at a place reasonably convenient to him.

Syl., in part, Martin v. Bd. of Ed. of Lincoln Cnty., 120 W. Va. 621, 199 S.E. 887 (1938).

In the related context of employment discrimination claims, the Supreme Court has

explained that “[t]he defendant may satisfy his burden [on mitigation] only if he establishes

that: (1) there were substantially equivalent positions which were available; and (2) the

claimant failed to use reasonable care and diligence in seeking such positions.” Rodriguez

v. Consolidation Coal Co., 206 W. Va. 317, 327, 524 S.E.2d 672, 682 (1999) (citation

omitted). We find that Rodriguez provides relevant criteria for evaluating diligence in a

breach of employment contract case like the case at hand.

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As we concluded above, Respondent Voorhees properly established that she

had a valid breach of contract claim. Once established, the burden then shifted to WJU to

establish that there were substantially equivalent positions available, and that Respondent

failed to use reasonable care and diligence in seeking such positions and thereby failed in

her duty to mitigate. Respondent Voorhees testified that she applied for three positions

after she received her notice of non-reappointment: (1) a position at a wellness center; (2)

a position at a shop that sold artisans’ work; and (3) a position at a flower shop. She

admitted that she did not seek any employment in higher education and chose to retire after

receiving her notice of non-reappointment. She testified that she did not look for

employment within higher education because she felt that another position as a professor

of English was unlikely at age sixty-six. As stated above, the circuit court did not address

mitigation due to its finding that the WPCA applied. Thus, the circuit court did not address

whether WJU met its burden here. Accordingly, we remand this issue to allow the circuit

court to reconsider the mitigation issue concerning Respondent Voorhees.

IV. CONCLUSION

For the foregoing reasons, we affirm, in part, reverse, in part, and remand for

further proceedings consistent with this opinion.

Affirmed, in Part, Reversed, in Part, and Remanded.

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