In re Estate of Radford , 297 Neb. 748 ( 2017 )


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    www.nebraska.gov/apps-courts-epub/
    09/29/2017 09:10 AM CDT
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    IN RE ESTATE OF RADFORD
    Cite as 
    297 Neb. 748
    In   re Estate of Sheila Foxley R adford, deceased.
    Provident Trust Company et al., appellees,
    v. M ary R adford, appellant.
    ___ N.W.2d ___
    Filed September 15, 2017.   No. S-16-415.
    1.	 Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law, for which an appellate court has an obligation to reach
    an independent conclusion irrespective of the decision made by the
    court below.
    2.	 Trusts: Equity: Appeal and Error. Absent an equity question, an
    appellate court reviews trust administration matters for error appear-
    ing on the record; but where an equity question is presented, appellate
    review of that issue is de novo on the record.
    3.	 Evidence: Appeal and Error. In a review de novo on the record, an
    appellate court reappraises the evidence as presented by the record and
    reaches its own independent conclusions on the matters at issue. When
    evidence is in conflict, the appellate court considers and may give
    weight to the fact that the trial judge heard and observed the witnesses
    and accepted one version of the facts rather than another.
    4.	 Judgments: Records: Appeal and Error. Meaningful appellate review
    requires a record that elucidates the factors contributing to the lower
    court’s decision.
    5.	 Evidence: Records: Pleadings: Appeal and Error. An appellate record
    typically contains the bill of exceptions, used to present factual evidence
    to an appellate court, and the transcript, used to present pleadings and
    orders of the case to the appellate court.
    6.	 Evidence: Records: Appeal and Error. A bill of exceptions is the only
    vehicle for bringing evidence before an appellate court; evidence which
    is not made a part of the bill of exceptions may not be considered.
    7.	 Trial: Testimony: Evidence. At a hearing, testimony must be under
    oath and documents must be admitted into evidence before being con-
    sidered by the trial court.
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    IN RE ESTATE OF RADFORD
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    8.	 Trial: Stipulations: Judgments: Time. While no particular form of
    stipulation is required when made orally in open court, except that it be
    noted in the minutes, its terms must be definite and certain in order to
    render the proper basis for a judicial decision.
    9.	 Pleadings: Evidence: Waiver. Judicial admissions and stipulations
    constitute a substitute for evidence, thereby waiving or dispensing with
    the need to produce evidence by conceding for the purpose of litigation
    that a proposition of fact is true.
    10.	 Pleadings: Evidence. Judicial admissions must be unequivocal, deliber-
    ate, and clear, and not the product of mistake or inadvertence.
    11.	 Pleadings: Intent. An admission does not extend beyond the intend-
    ment of the admission as clearly disclosed by its context.
    12.	 Judicial Notice: Evidence. Judicial notice of an adjudicative fact is a
    species of evidence.
    13.	 Judicial Notice: Records: Appeal and Error. Papers requested to
    be judicially noticed must be marked, identified, and made a part of
    the record. Testimony must be transcribed, properly certified, marked,
    and made a part of the record. The trial court’s ruling should state and
    describe what it is the court is judicially noticing. Otherwise, a meaning-
    ful review of its decision is impossible.
    14.	 Judicial Notice: Rules of the Supreme Court: Evidence. A court will
    take judicial notice of its own records. However, under Neb. Evid. R.
    201(2), 
    Neb. Rev. Stat. § 27-201
    (2) (Reissue 2016), judicially noticing
    its own proceedings and judgment is proper only where the same matters
    have already been considered and determined.
    15.	 Pleadings: Evidence: Records: Presumptions. In the absence of a bill
    of exceptions, an appellate court presumes that any issue of fact raised
    by the pleadings received support from the evidence.
    16.	 Records: Pleadings: Appeal and Error. When a transcript, containing
    the pleadings and order in question, is sufficient to present the issue for
    appellate disposition, a bill of exceptions is unnecessary to preserve an
    alleged error of law regarding the proceedings under review.
    17.	 Pleadings: Proof. Pleadings alone are not proof but mere allegations of
    what the parties expect the evidence to show.
    18.	 Pleadings: Trial: Evidence. Pleadings and their attachments which
    are not properly admitted into evidence cannot be considered by the
    trial court.
    19.	 Records: Pleadings. An application and its attachments are not evi-
    dence, and the allegations therein remain controverted facts until proved
    by evidence incorporated in the bill of exceptions.
    20.	 Records: Appeal and Error. It is incumbent upon the appellant to
    present a record supporting the errors assigned; absent such a record,
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    IN RE ESTATE OF RADFORD
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    an appellate court will affirm the lower court’s decision regarding
    those errors.
    21.	 Records: New Trial: Appeal and Error. When a record is deficient
    through no fault of the appellant, an appellate court will remand for a
    new trial if the deficiency in the record prevents the court from pro-
    viding the appellant meaningful appellate review of the assignments
    of error.
    22.	 Evidence: Proof: Presumptions: Appeal and Error. When, on appeal,
    an appellant argues that the evidence is insufficient on a point for which
    the appellee bore the burden of proof, an appellate court will not pre-
    sume there was evidence before the lower court, when the filed bill of
    exceptions indicates that no evidence was offered.
    Appeal from the County Court for Douglas County:
    Stephanie R. H ansen, Judge. Reversed and remanded for fur-
    ther proceedings.
    Richard A. DeWitt and Steven G. Ranum, of Croker, Huck,
    Kasher, DeWitt, Anderson & Gonderinger, L.L.C., for appellant.
    Jeffrey J. Blumel and Kelsey M. Weiler, of Abrahams,
    Kaslow & Cassman, L.L.P., for appellee Brigid Radford.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Funke, J.
    I. NATURE OF CASE
    Mary Radford appeals from a county court order concern-
    ing the distribution of the Sheila Foxley Radford Trust (Trust).
    Applying 
    Neb. Rev. Stat. § 30-2350
     (Reissue 2016), the court
    ruled that a gift from Sheila Foxley Radford to Mary, which
    preceded the Trust’s restatement but was acknowledged by
    Mary as an inheritance in a contemporaneous writing, was in
    satisfaction of Mary’s inheritance from the Trust.
    We find that the county court had insufficient evidence
    upon which it could base its findings. Accordingly, we
    reverse, and remand for a new hearing on the trustee’s motion
    for direction.
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    IN RE ESTATE OF RADFORD
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    II. FACTS
    In November 2015, Provident Trust Company, trustee for
    the Trust, filed an application for direction asking whether the
    doctrine of ademption by satisfaction applied to Sheila’s gift to
    Mary, which it alleged Mary had contemporaneously acknowl-
    edged as an inheritance under § 30-2350. Attached to the appli-
    cation were copies of the Trust document, Sheila’s will, and
    Mary’s handwritten note.
    The trustee set forth the following factual allegations in
    the application. On May 30, 2007, Mary signed a handwritten
    note stating: “This letter acknowledges that Sheila Radford,
    also known as ‘mom’, is affording me $200,000 for pur-
    chase of a home and is recognized by me as inheritance. I
    sign here recognizing that this is true.” On June 11, Sheila
    wire-transferred $200,000 from her bank account to a title
    company, stating, “re: Mary Radford.” Then, on April 6,
    2010, Sheila updated her will and amended and restated the
    Trust. Sheila’s will contained a “pour-over” provision for
    the Trust. The Trust’s residuary was to be distributed among
    Sheila’s four children upon her death: one-half to appellee,
    Brigid Radford, and one-sixth each to Mary, William Radford,
    and Christopher Radford. However, the Trust’s restatement
    made no mention of the gift to Mary. Sheila passed away on
    October 5, 2014.
    At hearings on the case, the trustee did not appear, but was
    represented by legal counsel. Mary appeared telephonically as
    a self-represented litigant. Neither party submitted any exhib-
    its, no witnesses were sworn, nor was any testimony adduced.
    Instead, counsel asked the court “to take judicial notice of
    the record,” to which the court responded that it would “take
    judicial notice of the record.” Further, the trustee’s counsel
    made several statements which summarized the issues pre-
    sented by the application, relevant legal authority, and the
    facts. Counsel’s statements included the following: On May
    30, 2007, Mary signed a handwritten note “basically” stat-
    ing: “Sheila Radford, also known as ‘Mom,’ is affording me
    $200,000 for purchase of a home and is recognized by me as
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    an inheritance. I sign here recognizing this as true.” Counsel
    further stated, “There was a wire transfer. Money was given
    at that time. So, that actually happened.” When discussing
    the issue of ademption by satisfaction, counsel stated that “if
    she’d already gotten that $200,000,” then the court would
    “take it away.” Counsel stated that 3 years later, the will and
    Trust were “done” and that Sheila’s will contained a “pour-
    over” provision for the Trust. The Trust’s residuary was to
    be distributed among Sheila’s four children upon her death:
    one-half to Brigid, and one-sixth each to Mary, William, and
    Christopher.
    After her statements, the trustee’s attorney added, “I don’t
    think there was any dispute as to the facts of the order of
    things or anything like that, right, Mary?” Mary replied, “No,
    there isn’t.” Mary then told the court about conversations with
    Sheila shortly before her death regarding Sheila’s intent for the
    Trust’s devises.
    The court’s order stated: “At the hearing, the court was
    advised that the facts are not in dispute and the sole issue is to
    resolve a question of law.” Nevertheless, the order’s statement
    of facts was more comprehensive than what counsel presented
    at the hearing and was buttressed by the facts contained in
    the application.
    The court determined that § 30-2350 required it to con-
    sider Mary’s contemporaneous writing acknowledgment and
    disregard parol evidence concerning the gift or its effect.
    Accordingly, the court ruled that the gift was an advancement
    of inheritance under § 30-2350 and reduced Mary’s share of
    the residuary from the Trust accordingly. Under the court’s
    decision, Mary was not entitled to any distribution from the
    Trust because a one-sixth share of the residuary was less than
    $200,000. Mary appealed.
    III. ASSIGNMENTS OF ERROR
    Mary assigns, restated, that the court erred in (1) apply-
    ing § 30-2350 to a trust, (2) finding that the doctrine of
    ademption by satisfaction—whether under the common law or
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    § 30-2350—applies to a gift made before the execution of the
    trust instrument, (3) disregarding Sheila’s intent to give Mary
    a one-sixth interest in the Trust—as expressed in the plain lan-
    guage of the trust instrument; and (4) determining that Mary’s
    share of the Trust should be adeemed by the gift.
    IV. STANDARD OF REVIEW
    [1] Statutory interpretation presents a question of law, for
    which an appellate court has an obligation to reach an inde-
    pendent conclusion irrespective of the decision made by the
    court below.1
    [2,3] Absent an equity question, an appellate court reviews
    trust administration matters for error appearing on the record;
    but where an equity question is presented, appellate review of
    that issue is de novo on the record.2 In a review de novo on
    the record, an appellate court reappraises the evidence as pre-
    sented by the record and reaches its own independent conclu-
    sions on the matters at issue.3 When evidence is in conflict, the
    appellate court considers and may give weight to the fact that
    the trial judge heard and observed the witnesses and accepted
    one version of the facts rather than another.4
    V. ANALYSIS
    1. Insufficient Evidence Was Offered
    to Support Court’s Findings
    [4] Before assessing Mary’s assignments of error, it is
    necessary to determine the scope of the evidence set forth in
    the record. Generally, meaningful appellate review requires
    a record that elucidates the factors contributing to the lower
    court’s decision.5
    1
    Hargesheimer v. Gale, 
    294 Neb. 123
    , 
    881 N.W.2d 589
     (2016).
    2
    In re Robert L. McDowell Revocable Trust, 
    296 Neb. 565
    , 
    894 N.W.2d 810
    (2017).
    3
    Bergmeier v. Bergmeier, 
    296 Neb. 440
    , 
    894 N.W.2d 266
     (2017).
    4
    
    Id.
    5
    Hynes v. Good Samaritan Hosp., 
    285 Neb. 985
    , 
    830 N.W.2d 499
     (2013).
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    [5,6] An appellate record typically contains the bill of excep-
    tions, used to present factual evidence to an appellate court,
    and the transcript, used to present pleadings and orders of the
    case to the appellate court.6 A bill of exceptions is the only
    vehicle for bringing evidence before an appellate court; evi-
    dence which is not made a part of the bill of exceptions may
    not be considered.7
    [7] In the instant case, a bill of exceptions was prepared by
    the county court and was considered by us on appeal. The bill
    of exceptions shows that at the trial level, no exhibits were
    entered into evidence, nor did any witnesses testify under oath.
    We have previously recognized, in other matters, that at a
    hearing, “‘testimony must be under oath and documents must
    be admitted into evidence before being considered’” by the
    trial court.8
    However, the trial court’s statement at the hearing, that it
    would “take judicial notice of the record,” and its statement in
    its order, that it was “advised that the facts are not in dispute,”
    suggest that the court relied on substitutes for exhibit evidence.
    Accordingly, we must consider whether the bill of exceptions
    elucidates any substitute evidence which contributed to the
    lower court’s decision either through judicial notice or as a
    result of a stipulation or admission by the parties. Absent a
    complete bill of exceptions, we must determine whether the
    transcript is sufficient to support the court’s judgment.
    (a) Parties Neither Stipulated to Nor Admitted
    Facts That Would Have Obviated Need
    for Evidence in This Case
    [8] Neb. Ct. R. § 6-1404 permits parties to make infor-
    mal oral stipulations in open court during trial without the
    6
    See City of Lincoln v. Nebraska Pub. Power Dist., 
    9 Neb. App. 465
    , 
    614 N.W.2d 359
     (2000).
    7
    In re Estate of Panec, 
    291 Neb. 46
    , 
    864 N.W.2d 219
     (2015).
    8
    Richards v. McClure, 
    290 Neb. 124
    , 132, 
    858 N.W.2d 841
    , 848 (2015),
    quoting Mahmood v. Mahmud, 
    279 Neb. 390
    , 
    778 N.W.2d 426
     (2010).
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    requirement of reducing the stipulation to a writing signed
    by the parties or counsel for the parties. “While no particu-
    lar form of stipulation is required when made orally in open
    court, except that it be noted in the minutes, its terms must be
    definite and certain in order to render the proper basis for a
    judicial decision.”9
    In regard to stipulations to factual issues, we have stated:
    “An express waiver, made in court or preparatory to trial,
    by the party or his attorney, conceding for the purposes
    of the trial the truth of some alleged fact, has the effect
    of a confessory pleading, in that the fact is thereafter to
    be taken for granted; so that the one party need offer no
    evidence to prove it, and the other is not allowed to dis-
    prove it. This is what is commonly termed a solemn—i. e.
    ceremonial or formal—or judicial admission, or stipula-
    tion. It is, in truth, a substitute for evidence, in that it does
    away with the need for evidence.”10
    [9-11] As recognized above, a judicial admission is a for-
    mal act done in the course of judicial proceedings which is
    a substitute for evidence, thereby waiving or dispensing with
    the production of evidence by conceding for the purpose of
    litigation that the proposition of fact alleged by the opponent
    is true.11 Similar to a stipulation, judicial admissions must
    be unequivocal, deliberate, and clear, and not the product of
    mistake or inadvertence.12 Additionally, an admission does not
    9
    73 Am. Jur. 2d Stipulations § 2 at 532 (2012), citing All Star Const. Co.,
    Inc. v. Koehn, 
    741 N.W.2d 736
     (S.D. 2007), and State v. Parra, 
    122 Wash. 2d 590
    , 
    859 P.2d 1231
     (1993).
    10
    LeBarron v. City of Harvard, 
    129 Neb. 460
    , 468-69, 
    262 N.W. 26
    , 31
    (1935). See 9 John Henry Wigmore, Evidence in Trials at Common Law
    § 2588 (James H. Chadbourn rev. 4th ed. 1981). See, also, Watkins v. Lake
    Charles Memorial Hosp., 
    144 So. 3d 944
     (La. 2014).
    11
    Reicheneker v. Reicheneker, 
    264 Neb. 682
    , 
    651 N.W.2d 224
     (2002);
    Sempek v. Sempek, 
    198 Neb. 300
    , 
    252 N.W.2d 284
     (1977).
    12
    City of Ashland v. Ashland Salvage, 
    271 Neb. 362
    , 
    711 N.W.2d 861
    (2006).
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    extend beyond the intendment of the admission as clearly dis-
    closed by its context.13
    At the conclusion of the trustee’s attorney’s summary of the
    facts, issues, and law, she stated, “I don’t think there was any
    dispute as to the facts of the order of things or anything like
    that, right, Mary?” Mary replied, “No, there isn’t.” While the
    parties may have agreed that there was no dispute as to the
    facts of the case, we cannot view the parties’ act of agreeing
    that no dispute existed as a substitute for evidence.
    Mary’s response was not definite or clear as to what the
    facts in the case were. Though she agreed that the facts and
    the order of events in the case were not disputed, she did not
    say she agreed that counsel’s statement of the facts was com-
    plete and accurate or that such statement of the facts should
    stand in lieu of evidence in the case. In fact, Mary attempted
    to provide additional facts to the court. Therefore, we do not
    read Mary’s acknowledgment to be a stipulation that counsel’s
    statement of the facts would act as a substitute for exhibit
    evidence or that she was making an admission as to the truth
    of such facts.
    Further, counsel’s statements themselves were not definite
    or clear on the facts in the case and the context suggests that
    it was not to be in lieu of actual evidence. Near the beginning
    of her statements, counsel requested the court to take judicial
    notice of the record taken. Before and after doing so, counsel
    requested the court to look at the various documents which
    she was discussing. Overall, the attorney’s summation of the
    facts was brief and omitted important details alleged in the
    application. Accordingly, counsel’s statements of the facts were
    neither clear nor definite. Instead, the context suggests that
    she intended the court to rely on documents judicially noticed,
    rather than her statements alone. Therefore, the statements by
    counsel and Mary set forth in the bill of exceptions did not
    13
    
    Id.
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    establish a substitute for evidence that obviated the need for
    actual evidence.
    (b) No Evidence Was Incorporated Into
    Bill of Exceptions Through
    Judicial Notice
    [12] Judicial notice of an adjudicative fact “‘is a species
    of evidence.’”14 Under Neb. Evid. R. 201(2), 
    Neb. Rev. Stat. § 27-201
    (2) (Reissue 2016), a court may take judicial notice
    of adjudicative facts that are not subject to reasonable dispute,
    because they are either (1) generally known within the territo-
    rial jurisdiction of the trial court or (2) capable of accurate
    and ready determination by resort to sources whose accuracy
    cannot reasonably be questioned.15 When neither of the alter-
    native tests is satisfied, judicial notice of an adjudicative fact
    is improper.16
    [13] We have stated that care should be taken by a court to
    identify the fact it is noticing and its justification for doing
    so.17 Specifically,
    “‘[p]apers requested to be [judicially] noticed must
    be marked, identified, and made a part of the record.
    Testimony must be transcribed, properly certified,
    marked and made a part of the record. [The t]rial court’s
    ruling . . . should state and describe what it is the court
    is judicially noticing. Otherwise, a meaningful review [of
    its decision] is impossible.’”18
    14
    Wolgamott v. Abramson, 
    253 Neb. 350
    , 356, 
    570 N.W.2d 818
    , 823 (1997).
    15
    See 
    id.
     See, also, Strunk v. Chromy-Strunk, 
    270 Neb. 917
    , 
    708 N.W.2d 821
    (2006).
    16
    Gottsch v. Bank of Stapleton, 
    235 Neb. 816
    , 
    458 N.W.2d 443
     (1990).
    17
    Strunk, 
    supra note 15
    .
    18
    Everson v. O’Kane, 
    11 Neb. App. 74
    , 79, 
    643 N.W.2d 396
    , 401 (2002),
    quoting In re Interest of C.K., L.K., and G.K., 
    240 Neb. 700
    , 
    484 N.W.2d 68
     (1992). See, also, Strunk, 
    supra note 15
    .
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    [14] Generally, a court will take judicial notice of its own
    records.19 However, in In re Interest of N.M. and J.M.,20 we
    recognized that “judicially notic[ing] ‘its own proceedings
    and judgment [is proper only] where the same matters have
    already been considered and determined.’” There, on a motion
    to terminate parental rights, the court took judicial notice of
    exhibits from previous review hearings. However, during the
    previous hearings, one of the parents was without counsel.
    Further, the facts set forth in the exhibits were not information
    generally known within the jurisdiction or capable of being
    accurately and readily determined. Accordingly, we reasoned
    that the facts contained in such reports had not been con-
    sidered and determined, but, instead, remained controverted.
    Therefore, we held that the court erred in taking judicial
    notice of the reports, despite being part of the court’s record.21
    We note that In re Interest of N.M. and J.M. demonstrates
    why it is important that a court mark, identify, and make each
    document it notices part of the record so that we may review
    the admissibility of each noticed document.
    In this matter, the court should have identified what it con-
    sidered to be “the record” by individually marking and intro-
    ducing into evidence each document that it considered relevant
    and competent. Since these steps were not taken, no evidence
    has been preserved in the record for appellate review.
    (c) Transcript Was Insufficient to
    Support Court’s Judgment
    [15,16] In the absence of a bill of exceptions, an appellate
    court presumes that any issue of fact raised by the pleadings
    19
    See Rhodes v. Yates, 
    210 Neb. 14
    , 
    312 N.W.2d 680
     (1981).
    20
    In re Interest of N.M. and J.M., 
    240 Neb. 690
    , 699, 
    484 N.W.2d 77
    , 83
    (1992) (emphasis omitted). See § 27-201(2) (“[a] judicially noticed fact
    must be one not subject to reasonable dispute in that it is . . . (b) capable
    of accurate and ready determination by resort to sources whose accuracy
    cannot reasonably be questioned”).
    21
    Id.
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    received support from the evidence.22 When the transcript,
    containing the pleadings and order in question, is sufficient to
    present the issue for appellate disposition, a bill of exceptions
    is unnecessary to preserve an alleged error of law regarding
    the proceedings under review.23
    In this matter, we do have a bill of exceptions to consider,
    which indicates that no evidence was adduced through the
    testimony of sworn witnesses or exhibits received. As a result,
    the only information available for review are the pleadings, the
    attachments to the pleadings, and the court’s order.
    [17-19] We have previously held that the pleadings alone
    are not proof but mere allegations of what the parties expect
    the evidence to show.24 We have further held that pleadings
    and their attachments which were not properly admitted into
    evidence could not be considered by the trial court. An appli-
    cation is a form of pleading.25 Therefore, an application and
    its attachments are not evidence, and the allegations therein
    remain controverted facts until proved by evidence incorpo-
    rated in the bill of exceptions.
    Again, in this matter, the court received no evidence which
    would have proved the allegations of the trustee’s motion. As
    a result, the transcript before us is not sufficient to support the
    decision of the county court.
    2. M atter Must Be R emanded
    for New H earing
    [20,21] As a general proposition, it is incumbent upon the
    appellant to present a record supporting the errors assigned;
    absent such a record, an appellate court will affirm the lower
    court’s decision regarding those errors.26 However, when a
    22
    Stewart v. Heineman, 
    296 Neb. 262
    , 
    892 N.W.2d 542
     (2017).
    23
    Murphy v. Murphy, 
    237 Neb. 406
    , 
    466 N.W.2d 87
     (1991).
    24
    Wilson v. Wilson, 
    238 Neb. 219
    , 
    469 N.W.2d 750
     (1991).
    25
    See Richards, supra note 8.
    26
    Ginger Cove Common Area Co. v. Wiekhorst, 
    296 Neb. 416
    , 
    893 N.W.2d 467
     (2017).
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    record is deficient through no fault of the appellant, this gen-
    eral rule does not apply.27 Instead, we will remand for a new
    trial if the deficiency in the record prevents us from providing
    the appellant meaningful appellate review of the assignments
    of error.28
    [22] When, on appeal, an appellant argues that the evidence
    is insufficient on a point for which the appellee bore the bur-
    den of proof, we will not presume there was evidence before
    the lower court, when the filed bill of exceptions indicates that
    no evidence was offered.29
    The trustee was the moving party. As a result, the trustee
    possessed the burden to provide sufficient evidence for the
    court to consider when determining the motion. The trustee’s
    failure to elicit any evidence was through no fault of Mary.
    To affirm the lower court’s decision based upon the lack of
    evidence in the record would be tantamount to rewarding the
    trustee for failing to meet its burden. Therefore, the matter
    must be remanded for a new hearing to allow evidence to be
    properly considered by the county court.
    VI. CONCLUSION
    As a court of record, the county court erred in failing to cre-
    ate a record which contained the factors it relied on to reach
    its decision. As a result, upon our de novo review, we find that
    the county court had insufficient evidence upon which it could
    base its findings. Therefore, we reverse, and remand for a new
    hearing on the trustee’s motion for direction.
    R eversed and remanded for
    further proceedings.
    27
    Hynes, 
    supra note 5
    .
    28
    
    Id.
    29
    Stewart, 
    supra note 22
    .