Reply — Roesch v. Roesch

im

Se mn Coun tl Pn

fi Lr us]

In the Supreme Court 9°

OF THE

United States

Ocroper Term, 1978

No, 78-1020

Heten F, Rogscn,

Petitioner,

VS.

WiutuM R,. Rogscn,

Respondent.

PETITIONER'S REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Lawrence H, Srorrer

Attorney at Law

465 California Street, Suite 400

San Francisco, California 94104

Telephone: (415) 434-0600

Attorney for Petitioner

Of Counsel:

Vicroria J, De Gorr

Attorney at Law

1916 Los Angeles Avenue

Berkeley, California 94707

Telephone: (415) 524-1840

BOWNE.-PERNAU WALSH © 1045 BANSOME BT, © BF. CA Ball! © (415) 061-7808

SUBJECT INDEX

Page

I

Respondent has not refuted that this case is important

A,

B,

Respondent does not even discuss the federal question

presented 7 are Are Re ees

As the federal question was decided by the court of

appeal, it is conclusively presumed to have been prop-

erly raised ree 7

Il,

Respondent has failed to demonstrate that the case was cor-

rectly decided by the court of appeal

A,

B,

C,

Respondent is in error as to the meaning of the Addison

Decision |

Respondent admits that petitioner's interpretation of

the Constitution is correct and that this case presents

an important constitutional question ae

Petitioner was substantially damaged

Il,

The erroneous characterization of this case by respondent

further demonstrates the necessity for full and complete

briefing after the granting of the writ

Conclusion

to

BI

ii

TABLE OF AUTHORITIES CITED

Cases

Page

Addison v. Addison 62 Cal.2d 558, 43 Cal.Rptr. 97, 399 P.2d

ia eA iin p Aa ie A A it SA es Sin Aa i 5, 10

Commonwealth ex. rel. Platt v. Platt 333 A.2d 29 (Penn.

EE oii i ae Ny “og

Estin v. Estin 334 U.S. 541 (1948) ........................ 9

Jenkins v. Georgia 418 U.S. 153 (1974) .................... 4

OCALA Star-Banner Co. v. Damron 401 U.S. 295 (1971) .... 4

Raley v. Ohio 360 U.S. 423 (1959) ....................... 5

Vanderbilt v. Vanderbilt 354 U.S. 416 (1957) ............... 9

Ward vy. Village of Monroeville 409 U.S.57................ 4,5

Watson v. Watson 364 A.2d 431 (Penn. Sup.Ct. 1976) ...... 6

W HYY, Inc. v. Borough of Glassboro 393 U.S. 117 ( 1968 ) 5

Constitutions

United States Constitution:

Fourteenth Amendment

Article IV, Section 2 ................. AE ph eS

In the Supreme Court

OF THE

United States

Ocroser TERM, 1978

No. 78-1020

Heten F. Roescn,

Petitioner,

vs.

Win R. Rogscx,

Respondent.

PETITIONER’S REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

This reply brief is submitted in further support of Helen

F’. Roesch’s Petition for Writ of Certiorari and in response

to “Brief of Respondent Opposing Petition for a Writ of

Certiorari” served on January 24, 1979. The very argu-

ments urged by respondent in opposition to the granting

of a writ of certiorari underscore the importance of the

issue presented for review, the error of the decision of the

California Court of Appeal of which review is sought, and

the propriety of and need for review by this court.

2

I.

RESPONDENT HAS NOT REFUTED THAT THIS CASE

IS IMPORTANT.

In support of respondent’s contention that this is not an

appropriate case for exercising Supreme Court jurisdic-

tion, respondent makes two arguments both of which are

totally devoid of merit.

A. Respondent Does Not Even Discuss The Federal

Question Presented.

Respondent first simply asserts that there is no signif-

icant federal question. (Brief in Opposition, page 6.) In

support of this assertion, respondent either misreads or

intentionally mischaracterizes the Court of Appeal decision

as possibly an exercise of comity or an interpretation of

statute. However, the decision is based on the federal

Constitution and this is apparent from the opinion (see

especially Appendix A to Petition, pages A-12 to A-14). In

particular, the Court of Appeal stated:

Thus, in Addison v. Addison, supra, 62 Cal.2d 558, the

court held that a 1961 enactment expanding the defini-

tion of community property could constitutionally be

applied in cases meeting two prerequisite conditions:

(1) both parties have changed their domicile to Cali-

fornia, and (2) subsequent to the change of domicile

the spouses sought in a California court legal altera-

tion of their marital status. Unless both of these condi-

tions exist, the interest of the State of California in the

status of the property of the spouses is insufficient to

justify reclassification without violating the due pro-

cess clause of the Fourteenth Amendment and the

privileges and immunities clause of article IV, section

3

2, of the federal Constitution. Additionally, reclassi-

fication based upon a mere change of domicile would

abridge the privileges and immunities clause of the

Fourteenth Amendment.

In the present case the parties lived in Pennsylvania

for virtually their entire married life. After their

separation, husband transferred his domicile to Cali-

fornia; wife and the parties’ minor son remained in

Pennsylvania. Under these facts, the interest of Cali-

fornia in the marital property of the parties is

minimal, while that of Pennsylvania is substantial.

Moreover, as a domiciliary of Pennsylvania, wife is

entitled to the protection of the laws of that state.

Application of California’s quasi-community property

statute was therefore improper. (Footnote omitted.)

The statement that “the interest of California in the

marital property of the parties is minimal, while that of

Pennsylvania is substantial” is the applicat.on to this case

of the court’s earlier holding that unless both parties

have changed their domicile to California and subsequently

sought legal alteration of their marital status in a Califor-

nia court, the interest of California in the property is in-

sufficient to justify reclassification without violating the

due process clause and the two privileges and immunities

clauses.

To the extent that respondent acknowledges that the

Court of Appeal decision was indeed based on the Con-

stitution, he makes no argument supported by any reasons

as to why this case might be insignificant or unimportant.

Instead, he simply states its insignificance as his conclu-

sion. He has ignored all of petitioner’s arguments includ-

ing the substantial bearing of this case on the ability of all

4

eight community property states to regulate marital prop-

erty in accordance with their public policy. (Petition, pages

16-17.) This aspect alone makes the federal constitutional

question in this case significant.

B. As The Federal Question Was Decided By The Court

Of Appeal, It Is Conclusively Presumed To Have

Been Properly Raised.

Respondent’s second argument is that petitioner failed

to raise the federal question properly below. (Brief in

Opposition, pages 6-7.) This, too, is incorrect. The trial

court decided the federal constitutional question in peti-

tioner’s favor. Respondent admits that he did not appeal

from this portion of the judgment. Petitioner, of course,

did not raise the constitutional question on appeal as it had

been decided in her favor by the trial court and respondent

had not appealed from the trial court’s determination.

Indeed, it was petitioner’s contention that respondent’s

argument on the federal question made to the Court of

Appeal was outside the legitimate scope of the appeal and

that respondent was bound by the unappealed trial court’s

decision in petitioner’s favor on the constitutional issue.

Petitioner was therefore rightfully surprised that the

Court of Appeal decision was based on the Constitution.

Nonetheless, it was the basis of the Court of Appeal

opinion. Therefore whether or not petitioner argued it

below becomes irrelevant. Where the lower court reaches

the federal question it is sufficient under Supreme Court

practice. Jenkins v. Georgia 418 U.S. 153, 157 (1974); see

also, OCALA Siar-Bamner Co. v. Damron 401 U.S. 295, 299,

note 3 (1971); Ward v. Village of Monroeville 409 U.S. 57,

5

61. There can be no question as to the proper presentation

of a federal claim when the state court passes on it. An

irrebuttable presumption is created that the federal ques-

tion was timely and properly raised. Raley v. Ohio 360

U.S. 423, 436 (1959); see also, W H Y Y, Inc. v. Borough of

Glassboro 393 U.S. 117, 119 (1968).

II.

RESPONDENT HAS FAILED TO DEMONSTRATE

THAT THE CASE WAS CORRECTLY DECIDED BY

THE COURT OF APPEAL.

The majority of respondent’s brief in opposition is de-

voted to the merits of this case. (Pages 7 to 16.) Petitioner,

of course, has not submitted a full brief on the merits as it

would be inappropriate to do so in a Petition of Writ of

Certiorari. It is precisely in order that the merits be briefed

that petitioner requests this court to grant the writ. How-

ever, petitioner will briefly answer respondent’s arguments

below.

A. Respondent Is In Error As To The Meaning Of The

Addison Decision.

Respondent devotes approximately six pages to the Cali-

fornia Supreme Court decision in Addison v. Addison 62

Cal.2d 558, 43 Cal.Rptr. 97, 399 P.2d 897 (1965). (Brief in

Opposition pages 8 to 14.) As discussed in the Petition, the

Addison decision and the development of the constitutional

issue in this case in California state courts prior to the

present decision supports petitioner herein. (Petition,

pages 11 to 14.) However, since respondent has dealt with

Addison totally out of its California context, petitioner

has attached hereto as Appendix A and incorporates herein

6

by this reference, a section of her petition for rehearing

filed in the Court of Appeal which briefly explains the de-

velopment of this body of constitutional law in California

which was set back almost 50 years by the Court of Appeal’s

decision herein.

B. Respondent Admits That Petitioner’s Interpreta-

tion Of The Constitution Is Correct And That This

Case Presents An Important Constitutional Question.

Respondent’s discussion of the Fourteenth Amendment

due process clause (Brief in Opposition, pages 14-15)

could have been written by petitioner. Respondent acknowl-

edges that a balancing test is applicable to determine

whether the state’s inherent police power has been properly

used by the legislature to protect the safety, moral health

and general well being of the people. Respondent, however,

seems to forget that it is California legislation which peti-

tioner seeks to have applied. It can be struck down only

if it is unconstitutional and not merely because other states

such as Pennsylvania view community property or quasi-

community property concepts as outrageous.*

Respondent’s Fourteenth Amendment privileges and im-

munities discussion (Brief in Opposition, page 15) raises

an additional important federal question, namely, whether

‘Subsequent events further demonstrate the irreconcilable dif-

ferences een the totality of California and Pennsylvania law

rendering piecemeal application as here unjustifiable. (See Petition,

pages 6-8, 11, 13-14.) Pennsylvania does not permit alimony or

speusal support to be awarded to a wife after a final divorce. As a

result, Pennsylvania also refuses to give full faith and credit to

other States’ decrees for support after divorce. Commonwealth ex.

rel. Platt v. Platt 333 A.2d 29, 30-31 (Penn. Sup. Ct. 1974); Watson

v. Watson 364 A.2d 431, 433 (Penn. Sup. Ct. 1976). Petitioner is

therefore confronted with unique and severe enforcement problems,

7

the California legislation is perhaps unconstitutional be-

cause it interferes with the constitutional right to travel.

Respondent’s Article IV, section 2, privileges and immu-

nities argument is a total non-sequitur. Petitioner has

requested this court to decide the constitutional issue and

then to remand this case to the Court of Appeal to apply

California law to the property issues on the merits. (See

Petition, pages 10 and 11, fns. 4 and 5.)

C. Petitioner Was Substantially Damaged.

Respondent contends that petitioner was not damaged

because she was awarded more than a Pennsylvania court

would give her. (Brief in Opposition, pages 4-5 and 16-17.)

Respondent’s references in his Statement of the Case to

prior actions filed and abandoned by petitioner in Pennsyl-

vania have nothing to do with the legal issues in this case.

As explained in the petition, it was and is petitioner’s

contention that she was entitled to approximately a million

dollars more in property than the trial court awarded her.

(Petition, pages 10 and 11, fns. 4 and 5.) It was because of

the Court of Appeal’s erroneous application of the Consti-

tution that it did not consider petitioner’s claims of error

regarding application of California law on the property

division. Respondent further misses the point that a Penn-

sylvania court would have protected petitioner by refusing

to allow respondent to terminate the marriage.

8

ITI.

THE ERRONEOUS CHARACTERIZATION OF THIS

CASE BY RESPONDENT FURTHER DEMON.

STRATES THE NECESSITY FOR FULL AND COM-

PLETE BRIEFING AFTER THE GRANTING OF THE

WRIT.

Respondent’s Brief in Opposition throughout also con-

tains arguments and factual points which are either

irrelevant or misleading. It attributes to petitioner certain

arguments not advanced by her petition and mischaracter-

izes the record and the result of the Court of Appeal.

Petitioner has demonstrated above that respondent has

failed to refute the importance of this case and has failed

to demonstrate that it was decided correctly or that she

was not damaged. In this section, petitioner will now briefly

correct the most egregious of respondent’s other errors and

inaccuracies.

1. The supplemental brief which the Court of Appeal

denied petitioner leave to file did not contain constitutional

arguments, but involved property issues, the majority of

which were not considered by the Court of Appeal because

of its erroneous decision on the federal question. (Brief in

Opposition, pp. 2-3.) Petitioner sought leave to file this

brief after the Court of Appeal had granted a rehearing

and while the matter was pending. It then rendered a sec-

ond opinion which was virtually the same as the first opin-

ion, both of which decided the constitutional issue against

petitioner. Apparently the Court of Appeal felt no need to

permit a filing of a supplemental brief on the merits of the

state issues as it had no intention of reaching them given

its constitutional holding.

9

2. Respondent’s move to California was neither neces-

sary nor a “chance transfer”. (Brief in Opposition, pages 4

and 12-13.) He was President and Chairman of the Board

of Jones & Laughlin Steel Corporation in Pennsylvania.

He made a deliberate decision to leave this employment and

earefuliy negotiated a lucrative contract to become Chair-

man of the Board and Chief Executive Officer of Kaiser

Industries in California, earning more than $400,000 a year,

with a provision for income of $75,000 a year for ten years

after termination of his employment at Kaiser for any

reason including cause. Respondent did not come to Cali-

fornia as the result of a simple in-house transfer of a low

level employee, but by his own decision—that of a man who

could write his own ticket. Indeed, though not reflected in

the record, respondent has now returned to Pennsylvania

with his new wife, having obtained a no fault dissolution of

his marriage under California law.

3. Contrary to respondent’s assertions (Brief in Oppo-

sition, pages 4, 5 and 8 fn. 5), the adoption of petitioner’s

position would not allow a spouse to move to a community

property state and thereby automatically convert the other

spouse’s separate property into quasi-community property.

Indeed, this court’s decisions in Estin v. Estin 334 U.S. 541

(1948) and Vanderbilt v. Vanderbilt 354 U.S. 416 (1957)

establishing “divisible divorce” prohibit such a result. In

order to prevent the result suggested by respondent, the

spouse who does not move need only refuse to appear in the

new domicile and that court cannot divide the property.

In the present case, as in many similar fact situations

throughout the country, the acquiring spouse is the party

who moves, seeks to terminate the marriage and who should

10

be required to share his property with the other non-

acquiring spouse he left behind. Where the acquiring

spouse, as here, seeks the aid and protection of California

law, it should be applied if the non-acquiring spouse, as

here, voluntarily appears in the action. Indeed, under re-

spondent’s interpretation of the Constitution, quasi-com-

munity property law could be applied if petitioner had only

moved to California instead of just making a general ap-

pearance in California. It is petitioner’s further contention

that to refuse to apply California law to her because she is

not a domiciliary could itself be unconstitutional.

4. Even if the Addison decision were limited to its facts,

petitioner fits within these facts for the following reasons:

The grounds for dissolution of marriage in California are

irreconcilable differences. Respondent contends that peti-

tioner’s failure to come to California is the basis on which

he sought a dissolution. This necessarily occurred after

respondent came to California. Thus, the grounds which

gave rise to dissolution occurred after respondent had

moved to California.

Insofar as domicile is important to the determination

of the constitutional question, it is important only in order

to insure that California does not overreach by apply-

ing its law to a party with whom it has insufficient contact.

In the present case, respondent, the party who seeks to

avoid application of California law, himself was the party

who sought the application of California law and the

jurisdiction of its courts to dissolve his marriage. It would

thus ouly be the nondomiciliary petitioner whose rights

might need to be protected by a refusal to apply California

law. However, petitioner voluntarily agreed to appear in

11

California and that its law be applied. Respondent, the

resident and domiciliary of California, should not be heard

to complain of the application of California law.

5. The facts in this case are not “unusual”. (Brief in

Opposition, page 7.) It is precisely on the facts of this case

that the constitutional issue is commonly presented in our

mobile society. The spouse acquiring property in one state

left the state of the marital domicile and dissolved his

marriage in a community property state. The community

property state provides that on dissolution, the marital

property is to be divided equally or equitably between the

parties. Whether this strong public policy of the com-

munity property state may be constitutionally applied is

the very issue in this case.

CONCLUSION

For the foregoing additional reasons, petitioner respect-

fully requests that a writ of certiorari issue to the Court of

Appeal of the State of California.

Respectfully submitted,

February 5, 1979 Lawrence H. SrorrTer

Attorney for Petitioner

Of Counsel

Victoria J. De Gorr

[Appendix Follows]

APPENDIX

s

APPENDIX A

THERE IS NO CONSTITUTIONAL IMPEDIMENT TO

THE APPLICATION OF CIVIL CODE SECTION 4803

IN THE PRESENT CASE.

In Estate of Thornton (1934) 1 Cal.2d 1, the Supreme

Court held unconstitutional the Legislature’s attempt to

turn property which spouses domiciled in California had

acquired while living in a common law jurisdiction, into

community property when they crossed the border into

California. The Thornton court based its decision on the

then California constitutional doctrine that any changes in

community property law that decreased the husband’s

right of dominion over the property disturbed his vested

rights and therefore could only apply to subsequent acquisi-

tions. (Id., at p. 3; Spreckels v. Spreckels (1897) 116 Cal.

339). The Thornton court stated:

“So long as we are bound by the holding that to limit

the right of one spouse by increasing the right of the

other in property acquired by their united labors, is

- the disturbance of a vested right, we entertain no doubt

of the application of at least two provisions of the

Fourteenth Amendment of the Constitution of the

United States. If the right of the husband, a citizen of

California, as to his separate property, is a vested one

and may not be impaired or taken by California law,

then to disturb in the same manner the same property

right of a citizen of another state, bringing his prop-

erty with him, is clearly to abridge the privileges and

immunities of the citizen. Again, to take the property

of “A” and transfer it to “B” because of his citizenship

and domicile, is also to take his property without due

process of law. This is true regardless of the place of

acquisition or the state of his residence.” (1 Cal.2d

at p. 5).

A-2

Professor Parbara Armstrong, the leading California

commentator on community property law, said of this

decision :

“In brief, the court felt bound by the often repeated

holding that the control of rights in both community

and separate property of spouses wao acquired prop-

erty while domiciled here, remain untouched by sub-

sequent statutory changes in such controls. The court

felt, therefore, that it could not thwart legislation that

reached a contrary conclusion as to property brought

into this state after being accumulated in a common

law state.” (“ ‘Prospective’ Application of Changes to

Community Control—Rule of Property or Constitu-

tional Necessity?,” Barbara N. Armstrong (1945) 33

Cal.L.Rev. 476, 503).

In commenting on the Thornton decision Herma Hill Kay

(then Herma Hill Schreter) recognized that it depended

upon Spreckels and urged that “these two impediments to

the reform of community property law in California may

be ended simultaneously in a proper case.” (Herma Hill

Schreter, “Quasi-Community Property’ in the Conflict of

Laws” (1962) 50 Cal.L.Rev. 206, 210-226, 225-226).

Twelve years later the Supreme Court, on the same

rationale, decided that because the rents, issues and profits

and property retained the same character as the property

itself, the husband’s power over them could not be dimin-

ished retroactively either. (Boyd v. Oser (1944) 23 Cal.2d

613). However, in this decision were planted the seeds of

change. In his concurring opinion Justice Traymor stated

that in his opinion the constitutional theory that statutes

changing the rights of husbands ard wives in community

property could have no retroactive application was un-

A-8

sound. (23 Cal.2d at pp. 623-624). This concurring opinion

was lauded by Professor Armstrong who wrote:

“The previous law review comment in 27 Cal.L.Rev. 49,

cited in Justice Traynor’s concurring opinion, persua-

sively argues the unsoundness of this constitutional

doctrine. The amplification of argument, which this

article involves, has seemed useful because of its great

importance and also, as this is a memorial issue of the

Review, because of Dean McMurray’s strong conviction

of its importance.” (Armstrong, Op.Cit., supra, 33 Cal.

L.Rev. at p. 376, fn. 1).

She continued by urging that “an early adoption by the

Supreme Court of the special concurring opinion rendered

in Boyd v. Oser would seem both logical and desirable.”

(33 Cal.L.Rev. at p. 405). Her theory was that so-called

“vested rights” could constitutionally be impaired by a

change in the law which was sufficiently necessary to pre-

serve the public welfare. (33 Cal.L.Rev. at pp. 395-396).

Subsequently, the Supreme Court in Addison v. Addison

accepted the reasoning of then Chief Justice Traynor’s

concurring opinion in Boyd v. Oser and the theory urged

by Professor Armstrong. (Addison v. Addison (1965) 62

Cal.2d 558). In upholding the constitutionality of Civil

Code section 4803, the Addison court also repudiated the

Thornton decision as follows:

“The constitutional doctrine announced in Estate of

Thornton, supra, has been questioned. Justice (now

Chief Justice) Traynor, in his concurring opinion in

Boyd v. Oser, 23 Cal.2d 613, had the following to say,

at p. 623:

‘The decision that existing statutes changing the

rights of husbands and wives in community property

A-4

can have no retroactive application have become a

rule of property in this state and should not now

be overruled. It is my opinion, however, that the

constitutional theory on which they are based is un-

sound, [Citations.] That theory has not become a

rule of property and should not invalidate future leg-

islation in this field intended by the Legislature to

operate retroactively.’

“The underlying theory of Thornton has also been

questioned by several legal authorities in this field.

(Armstrong, “Prospective” Application of Changes in

Community Property Control—Rule of Property or

Constitutional Necessity? (1945) 33 Cal.L.Rev. 476;

Schreter, “Quasi-Community Property” in the Conflict

of Laws (1962) 50 Cal.L.Rev. 206; Comment, Com-

munity and Separate Property; Constitutionality of

Legislation Decreasing Husband’s Power of Control

over Property Already Acquired (1938) 27 Cal.L.Rev.

49, 51-55; see also Comment (1927) 15 Cal.L.Rev.

399.)”

“Thus, the correctness of the rule of Thornton is open

to challenge.” (62 Cal.2d at pp. 565-566).

The Addison Court, however, was not required specifi-

eally to overrule Thornton because it was not controlling

in Addison. (62 Cal.2d at p. 566). Addison was heralded as

“a milestone in California Supreme Court history. It

makes the first hole in the wall of rigid doctrine which

stood unscarred since 1897 and which blocked the way of

orderly progress toward equitable property arrangements

for California spouses.” (Brigitte M. Bodenheimer, “Jus-

tice Peters’ Contribution to Family and Community Prop-

erty Law ” (1969) 57 Cal.L.Rev. 577, 577).

A-5

The next major step in the abolition of the antiquated,

inappropriate and unfair doctrines lingering from

Spreckels and Thornton was taken two years ago by the

California Supreme Court in In re the Marriage of Bou-

quet (1976) 16 Cal.3d 583. At issue in Bouquet was a 1971

amendment to Civil Code section 5118 which made the

earnings and accumulations of both spouses while living

apart their respective separate property. Under prior law,

only those of the wife were separate property while the

husband’s remained community property. The trial court

had held that only earnings and accumulations acquired

after the March 4, 1972, effective date of the amendment

could constitutionally be the husband’s separate property.

The Supreme Court reversed. It found that the Legisla-

ture had intended the statute to operate retroactively and

it held that retroactive application was not unconstitu-

tional.

The Bouquet Court acknowledged and recognized that

the husband’s earnings acquired prior to the effective date

of the statute would clearly have originally been classified

as community property in which the wife had gained sub-

stantial rights. The court also acknowledged and recog-

nized that the retroactive application of this change in the

law would deprive the wife of her vested right to her half

share of the income her husband had accumulated in that

period. Notwithstanding these facts, the court upheld

retroactive application of the amendment. (16 Cal.3d at

pp. 591-592). It did so by expanding the reasoning of the

Addison opinion and Professor Armstrong’s Law Review

article. (16 Cal.3d at pp. 593-594).

A-6

With Bouquet, the Supreme Court has finally made

clear once and for all that legislative enactments govern-

ing marital property are not to be frustrated by the ap-

plication of outdated constitutional doctrine. (16 Cal.3d

at pp. 593-594, esp. fn. 10). In the present case, therefore,

the court was in error in not simply applying Civil Code

section 4803 in accordance with its clear language which

dictates a finding that all of the parties’ marital assets

were quasi-community property. In light of the foregoing,

this court was therefore incorrect in having relied on

Thornton in any way and in having limited Addison to its

facts.