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Number 251201 Trujillo versus Amity Plaza.

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Please proceed.

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May it please the court.

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My name is Jessica McBride and I represent the plaintiff appellant, Katherine Trujillo.

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This case concerns the fundamental right of a tenant to be safe in their own home, a right protected by the Fair Housing Act.

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The district court granted summary judgment by adopting a dangerously narrow view of vicarious liability.

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One that effectively grants one free rate to housing providers so long as the perpetrator is a maintenance worker rather than a manager.

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We ask this court to reverse for three reasons.

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First, legal error.

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First what?

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Legal error.

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Okay.

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The court misapplied the aided in agency exception by requiring supervisory authority, contradicting the restatement second of agency, section 2192D, and 24 CFR, section 100.7B.

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Second, factual error.

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The record shows Martinez's agency relationship provided the unique access and color of authority he used to facilitate his assault.

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And third, procedural error.

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The court Sue Esponte grant of summary judgment in favor of Martinez violated federal rule of civil procedure 56F.

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On the agency, I know you'll deal with this in your own order, but I'm unclear.

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Did he have other assigned work in the building, or did he just have it in the area before the rape?

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I mean, I know he had access to some building.

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Was it the very building that the victim was living in, or was it a different building, but in the complex?

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My understanding is he had access to both buildings through the master key, but he was working in the other building in the complex.

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So he was working in the other building.

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And did he need work access to get to the building that the plaintiff was in or not?

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No, Your Honor.

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He didn't need special access.

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No, Your Honor.

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Anybody could have walked into that building.

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Correct.

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Thank you.

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Sure.

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The district court's primary legal error was the imposition of a supervisory requirement that exists nowhere in the law of agency or the Fair Housing Act.

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The district court may not have labeled its requirement managerial, but by holding that a maintenance worker access and uniform are insufficient to create a nexus, it created a rule where only management-level quid pro quo conduct triggers liability.

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That is a reversible departure from the FHA's broad remedial purpose in the plain language of the statute.

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Well, Counsel, let me stop you there.

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I appreciate you kind of couching that or your argument in

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the district court functionally made that rule?

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I mean, it did not state the rule that you're saying it imposed.

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Correct, Your Honor.

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He did not state that only managers can trigger liability for vicarious liability under the Federal Housing Act.

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However, his ruling imposed a requirement for quid pro quo conduct.

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Meaning what?

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How does that transfer to a managerial rule?

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Meaning that the district court found that if an employee of a housing authority did not have the ability to change the terms of a lease or to restrict management services or things like that, quid pro quo,

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authority because Mr. Martinez.

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Well, what's the quid?

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You're using that term again, so help me understand what the quid is.

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The quid is if you do not do these sexual favors for me or other things in response, I will not sell this apartment for you or I will not send out my maintenance worker to you.

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That is the quid pro quo.

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And under- Did you ever see that?

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Was that ever threatened?

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No, Your Honor.

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And that is our concern with the district court's order is that he never said that or threatened that.

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But the final rule, the HUD's final rule states that there's two types of housing discrimination.

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The first is section 100.600A1, which is quid pro quo discrimination.

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The second, A2, is hostile environment discrimination.

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And that's what occurred here in the district court

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did not analyze or consider that type of harassment in his order.

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Well, I've stopped you.

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So what test should be imposed, do you think?

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What legal test?

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Sure, Your Honor.

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It's a totality of the circumstances test.

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And it's under the restatement second of agency for the aided and agency exception.

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Well, the totality leading to what?

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Leading to the harassment.

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Well, don't you have to somehow connect the harasser with the victim in some way?

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Don't you have to come up with a test?

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You can't say, well, the totality.

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I mean, the totality as to what?

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What is the conclusion?

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The conclusion under both the aided in agency and totality of the circumstances, they work together.

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So aided in agency is that an agent can be liable for, sorry, the employer can be liable for the agent's conduct.

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The totality of the circumstances test is under the final rule, the HUD's final rule, for finding discrimination in housing.

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So it's based on pervasiveness of contact, severity of contact, things like that.

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So combining them together, did the employer's granting of access and authority

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and things like that allow him to pervasively or... But the employer didn't grant access.

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Anybody could have had access.

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You just said that.

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Sure, Your Honor, but this is different than a stranger off the street.

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This was an entire grooming process that occurred over months, and it was facilitated.

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You know, on the grooming, I expect there might have been some of that, but it seems to me that this relationship between the defendant and the victim had changed from one of a

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property owner to one of, she was trying to market some of her artwork through him.

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And wasn't that the main part of the, I mean, the earlier things to fix things in the apartment was done.

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So wasn't this completely unrelated to the apartment?

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The only interest that the two of them had, other than his ulterior interest, of course, was

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the only interest she had was not related to being a tenant at all.

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Isn't that right?

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I understand your point, Your Honor, and I believe it's the point that the district court and the defense made in their arguments, but we disagree, because the relationship began with the targeted meeting that was mandated by the employer.

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So you mean once it begins with a tenant-landlord relationship, that controls

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forever after that?

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I don't agree with that, Your Honor.

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That's not the point we are trying to make.

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How does it end?

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It started that way, but you've already agreed that the current relationship was more of a commercial relationship.

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So if it wasn't destined to last forever because it began as a landlord-tenant relationship, what triggers the end of that?

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And how does it morph into a traditional, just normal commercial relationship?

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And I think that's the point under the totality of the circumstances.

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And in this circumstance, it started with the targeted meeting, and it continued still under his color of authority.

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In almost all of their meetings, if not all of them, he was wearing a uniform.

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In all of their contacts over the phone, he was using a work-provided cell phone.

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And he had a master key.

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And you can see that.

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But he didn't use the master key this time.

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His uniform didn't matter this time.

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Anybody had access to this apartment.

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She had it unlocked.

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So I just don't see any nexus to his work status and the access that led to the rape.

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I understand your point, Your Honor.

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I think in order to find that nexus, you need to look at Ms.

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Trujillo's testimony.

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And her testimony regarding the frequency and length of her meetings and phone calls with Martinez provides the most direct evidence of the aided nature of the harassment.

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She testified that she did not answer these calls out of personal interest, but because she was intimidated of him and scared of him,

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as a representative of her housing complex who possessed master keys to her home.

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And that's at volume three, pages 153 through 159.

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Thank you, go ahead with your, you've answered my questions, thanks.

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Okay.

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Under the HUD's 2016 final rule, a housing provider's agent holds a position of power and authority over a resident regardless of their specific duties.

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By requiring a specific work order at the exact moment of the rape,

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The district court ignored the reality that Martinez's agency status aided every step of his path to her door.

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And the district court's logic that implies that if an agent cannot evict you or withhold services from you, their harassment doesn't count unless it's quite pro quo.

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This is directly refuted by the final rule, which states that an agent's power exists regardless of the agent's duties.

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In addition,

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24 CFR section 100.400C2 provides that interference includes the loss of enjoyment of a dwelling.

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And 24 CFR section 100.600A1 and A2 explicitly and plainly outline that there are two types of harassment, one quid pro quo and one hostile environment.

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By definition, a hostile environment exists when unwelcome conduct is sufficiently severe or pervasive to create an intimidating or offensive living situation.

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A tenant who was raped in her bedroom by a man with a master key has suffered a total collapse of her housing security and ultimate interference with her privileges of residency, regardless of whether her lease remains intact.

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Council, can I ask you about what I'll frame as the trend in the law and the application of the exception here.

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And as your brief I think correctly notes, there's not Supreme Court or a lot of circuit law that applies

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the agency or aided by agency exception in the Fair Housing Act context.

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But Elleryth, which is not a FHA case, tells us the restatement is a good starting point.

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But my understanding is you quoted restatement second, but restatement third has removed the aided by agency exception from it because the trend from courts has been to be concerned about how expansive vicarious liability can become.

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So can you address

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how we should be thinking of this exception in the FHA context narrowly or broadly when it seems like the trend is it should be exceedingly narrow.

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Sure, Your Honor.

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Good question.

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I think liability should still be limited to cases where the agency relationship actually facilitated the harm.

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And when a landlord gives a predator a uniform, a paycheck, a company phone, and he used that company phone previously,

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to harass a coworker and then use that company phone again to harass Ms Trujillo.

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They have aided his ability to commit that harassment.

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Well, but in the Title VII context, Eldarith talks about proximity and regular contact with sort of a pool of persons that could become victims and how that may not be sufficient.

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So here, it would seem to me that access to the apartment is key.

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You're nodding your head, so I think you agree with that.

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But Judge Ebell asked, I think, a good point about sort of a nexus between that access and the facts here.

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I mean, if we're going to draw a line on access, it makes me a little uncomfortable to say it's whether or not the door is locked or not.

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But how can we draw a line as to where access then facilitates this conduct?

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I do think it needs to be a case-by-case basis.

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And in this case, a man in a uniform who wore a ski mask to commit a rape, I don't think that unlocked door would have stopped him.

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And he had the keys to be able to enter her apartment anyways.

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Your Honors, if I may reserve additional time unless you have other questions you'd like me to address.

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You may.

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Thank you.

[00:12:57] Speaker 04:
Good morning.

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May it please the Court, my name is Shannon Hurley and I have the privilege of representing Amity Plaza LLC and the Littleton Housing Authority doing business as South Metro Housing Options.

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I ask to reserve five minutes of my time for my co-counsel to address the claims brought against Mr. Martinez.

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Today, we ask the court affirm the district court's grant of summary judgment for three reasons.

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First, the district court properly interpreted that the aided by agency theory is based on common law tort principles.

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Second, there's no question of material fact to support a finding of vicarious liability under the aided by agency doctrine.

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And third, there's no question of material fact supporting a finding of direct liability for the housing defendants.

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Turning to point one,

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The district court properly interpreted the aided by agency doctrine as based on common law principles and strict liability is not appropriate.

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Plaintiff's argument effectively asked the court to hold the employers are strictly liable for misconduct of the employees in the housing context.

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Plaintiff contends that the lower court incorrectly concluded that the aided by agency theory only applies to supervisory level conduct, which is not the conclusion the court reached nor the requirement under the case law.

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With this argument, plaintiff is asking to expand the application of vicarious liability in the FHA context by arguing the existence of the employment relationship is enough to create a question of fact for the jury.

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The lower court took the undisputed facts and applied the limited case law in this context and appropriately rejected the argument when granting summary judgment.

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Furthermore, Supreme Court President and HUD regulations do not support adopting a more strict standard of the aided by agency doctrine.

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For example, in Elrith, a Title VII case that's often relied upon in the Fair Housing Act cases,

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noted that the aided by agency requires the existence of something more than the employment relationship itself because the aided by agency exception allows for the imposition of vicarious liability based on the agent's misuse of delegated authority.

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Similarly, in Meyer v. Holley, the Supreme Court overturned a Ninth Circuit opinion that made corporate owners and officers liable for the unlawful acts of their corporate employees because of the right to control.

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The Supreme Court expressly disagreed with the Ninth Circuit that the FHA extended traditional vicarious liability rules in this way.

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Well, Counsel, can I stop you there?

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Yes.

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I understand.

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Your argument is that basically your opposing counsel's arguing for any employment relationship is enough, basically.

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But I think they're arguing you gave the person

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master key a uniform and Superior access to to whatever Isn't that enough to put you over the edge under the awareness cell phone right?

[00:15:53] Speaker 04:
Sorry could you have phone yes under the the tape does a similar district court rulings of the core Pelfrey and Boswell and

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There has to be some connection with those, with the delegated authority that was actually used in the commission of the harassment.

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And here, the court correctly... Well, how about the phone?

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The phone, well, it was a work phone.

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The communications started with and was about his family, about his family problems and his art.

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There wasn't, the undisputed evidence wasn't that it was sexually harassing in nature, that it was similar to the communications in La Cour,

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which were initiated by plaintiff after the defendant in that case, the defendant employee had reached out to let the tenant know that their application had been approved.

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And so there has to be an actual connection between the use of the delegated authority and the actual harassment.

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Well, aren't they arguing that the phone calls just, it was part of a grooming process.

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I mean, start friendly and then

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go somewhere else with the relationship?

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I think that the plaintiffs didn't develop that there hasn't been a presentation of material fact that this was, in fact, grooming.

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There's no expert opinions or testimony on that for plaintiff to rely on that to create a dispute of material fact.

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And the focusing on the facts that aren't in dispute and that are supported by the record doesn't show that this was necessarily grooming, that Ms.

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Trujillo's own words was that there

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He used his friendship and faith to have a relationship with her.

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One fact that is missing from this case, which is really troublesome to me,

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is that Ms.

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Trujillo apparently never told Amity Plaza about this improper relationship until after the rape occurred, and never gave them notice.

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And yet now she's trying to hold them liable.

[00:18:01] Speaker 00:
Isn't there some obligation to tell a landlord?

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After the rape when the landlord knew about they said well, we'll move you to a different location.

[00:18:09] Speaker 00:
We'll change the keys But but you're holding your seat your client is seeking to hold them liable when they never were advised that there was a problem in the first place So it's it's like I guess it's an absolute liability that you're asserting here But is there any obligation to give them a chance to correct the problem?

[00:18:31] Speaker 04:
under the

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24 CFR 100.7B.

[00:18:40] Speaker 04:
Candidly, I don't think there is a requirement that they have actual notice.

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They could have constructive notice or that this aided by agency.

[00:18:47] Speaker 00:
So it's an absolute liability is what you're arguing.

[00:18:50] Speaker 04:
I'm not arguing that it's absolute liability.

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I'm arguing that there has to be a nexus between the harassment and the employment relationship.

[00:19:00] Speaker 04:
that I'm arguing that plaintiff contends that there's absolute liability when there is an employer-employee relationship.

[00:19:05] Speaker 00:
That they don't need any notice or any opportunity to step in and correct the problem.

[00:19:12] Speaker 00:
Even though the plaintiff knew that, I mean, she knew that this had been morphing into a bit of a personal relationship even before the rape, I think.

[00:19:21] Speaker 00:
I mean, she had tried to sell artwork through him and they had met in his car and so forth.

[00:19:28] Speaker 04:
I think that goes to illustrate that this was a mutual relationship, that he wasn't using his employment to facilitate his conduct and facilitating any alleged harassment of plaintiff, and that that's the distinguishment of where there isn't a nexus between his employment and the actual harassment that was alleged the May 3rd, 2021 sexual assault.

[00:19:52] Speaker 05:
Council, can I ask you about the Nexus?

[00:19:53] Speaker 05:
Do we know from the record whether Mr. Martinez could access apartment units without notice or permission of the tenants?

[00:20:01] Speaker 04:
That was not developed in the record, Your Honor.

[00:20:04] Speaker 05:
So what if in this case, the morning of the sexual assault, Mr. Rio had locked her door and Mr. Martinez then used his master key to enter?

[00:20:13] Speaker 05:
Would Amity Plaza then be vicariously liable?

[00:20:16] Speaker 04:
I think at that point then we are looking at he was aided by his having the keys and access to her apartment.

[00:20:23] Speaker 04:
And so then you're looking at a situation where under the aided by agency exception, Amity Plaza could be found liable.

[00:20:30] Speaker 05:
OK, so the line drawing exercise here, if you will, depends on whether the door is locked?

[00:20:36] Speaker 04:
I don't think it's as simple as the door is locked, but whether or not the tools of employment were used to gain access to the plaintiff in that case.

[00:20:45] Speaker 00:
Well, even if the door was locked, I presume he would have knocked first and she would have still opened it.

[00:20:52] Speaker 04:
So there's, there is an evidence that he knocked prior to entering or that's a fact in dispute.

[00:20:57] Speaker 04:
But they were on the phone throughout the day, the morning leading up to him coming over to her apartment.

[00:21:03] Speaker 04:
He said he was coming over and had warned her that he was coming over and she still left the door unlocked.

[00:21:14] Speaker 00:
I can see why this might be a relevant fact in terms of her ability individually to sue him, but I don't see how that increases or creates any culpability on behalf of the landlord.

[00:21:31] Speaker 04:
I mean, I think that is where Amity Plaza and South Metro Housing Options finds that there's not an opportunity to rectify any poor behavior if they don't have notice of that, but I think

[00:21:45] Speaker 04:
Looking at the agency case law, our hands are tied with that if he used his tools of employment as a vehicle by which to perpetuate his harassment, even if they didn't have notice, then they could potentially be liable for that.

[00:22:01] Speaker 04:
But that's ultimately a question for the jury.

[00:22:04] Speaker 05:
Counsel, both parties this morning have cited to us the HUD regulations.

[00:22:09] Speaker 05:
But how much weight should we give to HUD's interpretation of common law principles?

[00:22:13] Speaker 04:
Well, since the Loper decision that the court shouldn't be giving deference to the HUD regulations because it's an agency regulation and that they should look at the statutory construction and looking at that, the backdrop is common law tort and vicarious liability principles.

[00:22:38] Speaker 04:
And looking at that, there has to be something more than an employer, just a simple employer,

[00:22:43] Speaker 04:
employee relationship and that justifies the position that the defendants are taking.

[00:22:49] Speaker 04:
And Your Honor, I'm just at the end of my time.

[00:22:52] Speaker 04:
We ask that the court affirm the district court's ruling on summary judgment and remand this with further proceedings consistent with it.

[00:22:59] Speaker 04:
Thank you.

[00:23:02] Speaker 00:
Good for you.

[00:23:03] Speaker 00:
You're one of the few people that honors their split time.

[00:23:11] Speaker 03:
Good morning.

[00:23:12] Speaker 03:
May it please the court?

[00:23:14] Speaker 03:
My name is Caitlin Shadakovsky and I have the privilege of representing defendant Appellee Frank Martinez.

[00:23:20] Speaker 03:
We ask this court to affirm the entry of summary judgment in favor of Mr. Martinez as there are no disputes of material fact that would support Ms.

[00:23:27] Speaker 03:
Trujillo's direct FHA claim against Mr. Martinez that was not resolved by the housing defendant's motion.

[00:23:34] Speaker 03:
The law permits district courts at the summary judgment phase to resolve matters suesponte.

[00:23:40] Speaker 03:
The district court did so here, and although Ms.

[00:23:43] Speaker 03:
Trujillo was not given advance notice, she has shown no prejudice.

[00:23:47] Speaker 03:
The grant of summary judgment was appropriate and should not be reversed on appeal.

[00:23:52] Speaker 03:
Ms.

[00:23:52] Speaker 03:
Trujillo presented all of her evidence on the FHA claims and has failed to identify any evidence or arguments that she would have presented to the district court had she received advance notice and an opportunity to respond before the motion was granted as to Mr. Martinez.

[00:24:09] Speaker 03:
Indeed, the district court's determination was based on issues identical to those raised by the housing defendants.

[00:24:15] Speaker 03:
So Ms.

[00:24:16] Speaker 03:
Trujillo was given the opportunity to respond to those arguments and present any evidence undermining the district court's ruling.

[00:24:23] Speaker 03:
The allegations of wrongdoing against Mr. Martinez would have to be established as a violation of the FHA to support a claim of vicarious liability against the housing defendants.

[00:24:34] Speaker 03:
The district court specifically identified all alleged facts of wrongdoing by Mr. Martinez and determined that there is no nexus between his employment as a maintenance employee and the alleged harassment.

[00:24:45] Speaker 03:
Those findings were sufficient to determine there was no underlying violation of the FHA for which it could hold the housing defendants vicariously responsible.

[00:24:57] Speaker 03:
There is no evidence or allegation that Mr. Martinez exercised any authority in his role to take advantage of or pressure Ms.

[00:25:03] Speaker 03:
Trujillo.

[00:25:04] Speaker 03:
I would like to add that these are only allegations of harassment and there has been no finding of rape.

[00:25:11] Speaker 03:
There were no criminal charges brought and Mr. Martinez testified that he believed this to be a mutual friendship.

[00:25:19] Speaker 03:
Mr. Martinez worked as a maintenance technician.

[00:25:21] Speaker 03:
He had no authority to identify potential tenants or set terms of housing.

[00:25:25] Speaker 03:
What might be expected in the FHA context would be uninvited use of keys to access the unit or refusal to perform requested repairs.

[00:25:34] Speaker 03:
There is no such allegation or evidence here.

[00:25:38] Speaker 03:
Mr. Martinez did not visit Ms.

[00:25:40] Speaker 03:
Trujillo under the guise of making repairs or even a maintenance stop.

[00:25:44] Speaker 03:
He communicated that he wanted to visit her on a personal reason and advised that he had accepted another position before he visited her on May 3rd, 2021.

[00:25:54] Speaker 03:
There is no reasonable basis for Mr. Hio to believe that Mr. Martinez used his role as a maintenance technician to commit the wrongdoing.

[00:26:03] Speaker 03:
There would be no purpose for the aided in agency exception if all that is required is an introduction between the tenant and an alleged harasser by virtue of the employment relationship.

[00:26:14] Speaker 03:
That would be more like a but for and strict liability test.

[00:26:18] Speaker 03:
Ms.

[00:26:19] Speaker 03:
Trujillo has not shown any prejudice for the dismissal other than the inability to prosecute her claim.

[00:26:26] Speaker 03:
There can be no prejudice when Ms.

[00:26:27] Speaker 03:
Trujillo had no other evidence or alternate legal theories to marshal.

[00:26:32] Speaker 03:
Ms.

[00:26:32] Speaker 03:
Trujillo made no arguments to the district court or to this court regarding the additional evidence she would have it considered with regard to direct liability against Mr. Martinez under the FHA.

[00:26:44] Speaker 03:
On appeal, Ms.

[00:26:44] Speaker 03:
Trujillo argued for the first time that her arguments as to Mr. Martinez's liability are the same as those arguments that she made as to the housing defendants.

[00:26:54] Speaker 03:
Ms.

[00:26:54] Speaker 03:
Trujillo has no other arguments or evidence to present in support of this claim.

[00:27:00] Speaker 03:
For the same reason, summary judgment is appropriate on the housing defendants motion for summary judgment regarding vicarious liability, summary judgment is appropriate on Ms.

[00:27:08] Speaker 03:
Trujillo's direct liability claim against Mr. Martinez.

[00:27:12] Speaker 03:
The law supports the district court's grant of summary judgment in favor of Mr. Martinez.

[00:27:18] Speaker 03:
On behalf of Mr. Martinez, I ask that this court affirm the district court's order confirming the grant of summary judgment as to her claim against Mr. Trujillo, or against Mr. Martinez, and affirm the district court's discretionary decision to decline to exercise supplemental jurisdiction over the state law claim.

[00:27:36] Speaker 00:
I take it, I ask the other counsel this, was Martinez in

[00:27:41] Speaker 00:
Plaintiffs building for maintenance on the day of the rape or was he in a different building and then came over to her building because it was open With the remaining two seconds judge.

[00:27:54] Speaker 03:
I'd me I proceed.

[00:27:55] Speaker 03:
Thank you my understanding from the record your honor is that Mr. Martinez had responded to a maintenance call at a different building and he called in advance of entering her building before visiting her apartment Thank you.

[00:28:07] Speaker 03:
Thank you

[00:28:12] Speaker 02:
I'm going to try to go quick.

[00:28:15] Speaker 02:
Your Honors, this was more than just a simple employee relationship, and that's not what we're arguing.

[00:28:20] Speaker 02:
By granting Martinez the status as an official representative of the housing department, they provided him the architecture of his predation.

[00:28:27] Speaker 02:
His uniform functioned as a badge of trust that lowered Ms.

[00:28:30] Speaker 02:
Trujillo's guard.

[00:28:31] Speaker 02:
His master keys provided the physical access that rendered her bedroom door a fiction.

[00:28:37] Speaker 02:
And according to her testimony, it scared her and intimidated her.

[00:28:41] Speaker 02:
and his authorized job site presence and work phone ensured the constant and pervasive contact necessary to isolate and intimidate her.

[00:28:49] Speaker 02:
Under the aided in agency doctrine, the assault was not a detour from his duties.

[00:28:54] Speaker 02:
To argue that there is no nexus because the assault happened without a work order or use of the key is to ignore the entire path of that assault was paved by the employer's grant of authority, access, and professional credibility.

[00:29:08] Speaker 02:
As to the arguments to Mr. Martinez personally, a mutual friendship does not mean that someone shows up to your door in a ski mask and rapes you.

[00:29:20] Speaker 02:
He was not there for friendship or a personal call.

[00:29:23] Speaker 02:
When he called her seven times that morning with his personal or with his work provided cell phone, she told him not to come over.

[00:29:33] Speaker 02:
The additional arguments and facts that we would have presented had the district court not Sue Esponte granted summary judgment.

[00:29:39] Speaker 02:
While the MSJ response to the housing authority noted that Martinez spoke to Trujillo, full briefing would have used his deposition to show a calculated pattern of using his professional access to groom her.

[00:29:51] Speaker 02:
This includes the high frequency of random visits in his uniform, his phone calls, and his intentionally exploitation in the color of authority provided by Amity.

[00:30:01] Speaker 05:
Part of the presentation we just heard, though, was not just what happened in the district court, but what's missing, perhaps, from your brief here before this court.

[00:30:08] Speaker 05:
Meaning, I'm looking at it, I think, two paragraphs in your opening brief about why this Sue Sponte grant for Mr. Martinez was inappropriate.

[00:30:18] Speaker 05:
And as I read it, it's fully derivative of the other arguments of vicarious liability against Amity Plaza.

[00:30:23] Speaker 05:
So why isn't that correct?

[00:30:25] Speaker 02:
Your Honors, I believe the Court of Appeals is allowed to remand or reaffirm based on anything in the record.

[00:30:32] Speaker 02:
So there are additional facts in the record.

[00:30:35] Speaker 02:
I am over time.

[00:30:36] Speaker 02:
Thank you very much, Your Honors.

[00:30:37] Speaker 02:
Thank you.

[00:30:41] Speaker 01:
Thank you, counsel.

[00:30:43] Speaker 01:
You are excused.