State v. Hoyle

99 P.3d 1069, 140 Idaho 679

• Court: Idaho Supreme Court
• Decided: October 28, 2004
• Docket: 30084
• Status: Published

Opinions

KIDWELL, Justice.

This is an appeal from a denial of a Motion for Judgment of Acquittal after a jury trial where the district court ruled a mistrial as to Count B, racketeering. The judgment of the district court is affirmed.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Richard W. Hoyle (Hoyle), the Appellant, owned and operated Hoyle & Associates Insurance, Inc. (Hoyle Insurance), in Boise since 1979. Hoyle Insurance was very successful. On January 1, 1996, Hoyle sold Hoyle Insurance to First Security Insurance (FSI), which continued to operate as Hoyle Insurance. After the sale, FSI employed Hoyle as Vice President and Sales Manager. Before and after the sale, Hoyle directed certain employees to make accounting entries regarding customer accounts, and to prepare and submit certain insurance applications, including loss run reports.

On June 12, 1997, Hoyle was indicted on eight felony counts which charged him with racketeering in connection with his insurance agency. The charge under I.C. § 18-7804 was predicated upon 165 alleged criminal acts, but after amendments and elimination at trial, the jury was left to consider just Counts A, E, and only 30 allegedly predicate acts under Count B. On June 11, 1999, the jury found Hoyle not guilty on Counts A and E and 23 predicate acts under Count B. The jury could not reach a unanimous verdict on the seven remaining acts under Count B and Hoyle moved for a mistrial. The court dismissed and entered judgment of acquittal on Counts A and E and dismissed the 23 predicate acts on which the jury agreed. Hoyle then filed a Motion of Acquittal on Count B and the state filed a Motion for New Trial on Count B. On August 11, 1999, the district court ruled the jury had not entered a verdict on Count B or the seven predicate acts on which it could not agree, and denied Hoyle’s Motion for Acquittal and granted the Motion for A New Trial.

On August 17, 2000, the state informed the court that it would not proceed to retrial on Count B because a second prosecution was filed, Case No. H0000795 (Case 795). Case 795 charged Hoyle with five of the seven predicate acts, but did not charge Hoyle with racketeering. The state informed the court that it would move to amend the indictment in Case 795. If the district court granted the motion, the state offered to dismiss the instant case. Hoyle then moved for a mistrial.

On September 11, 2000, the date of retrial for Count B, the state again informed the district court that it would not proceed with the instant case and prosecution of Count B. Hoyle argued that he was ready to proceed to trial. Hoyle stated that if the state were not going to proceed, he would renew his Motion for Judgment of Acquittal. The state responded that it intended to consolidate the instant case and Case 795. Thereafter, the instant case was dismissed without prejudice. Hoyle timely appealed to the Court of Appeals. The Court of Appeals affirmed the district court. Hoyle timely appeals to this Court.

II.

STANDARD OF REVIEW

“Findings of fact cannot be set aside on appeal unless they are clearly erroneous, i.e., not supported by substantial, competent evidence.” Kohring v. Robertson, 137 Idaho 94, 99, 44 P.3d 1149, 1154 (2002) (citing Savage Lateral Ditch Water Users Ass’n v. Pulley, 125 Idaho 237, 241-42, 869 P.2d 554, 558-59 (1993)). Legal questions are subject to de novo review by this Court. Doolittle v. Meridian Joint Sch. Dist., 128 Idaho 805, 811, 919 P.2d 334, 340 (1996); see Iron Eagle Dev., L.L.C. v. Quality Design Sys., Inc., 138 Idaho 487, 491, 65 P.3d 509, 513 (2003). The applicable standard of review for sufficiency of the evidence for a motion for judgment of acquittal is at issue in this appeal; therefore, it is discussed in the analysis section.

III.

ANALYSIS

A. Hoyle’s Appeal Is Moot With Regards To His Suppression Challenge, But Not His Prosecutorial Challenge.

An issue is not moot if it constitutes an “actual or justiciable controversy.” Idaho Sch. For Equal Educ. Opportunity v. Idaho State Bd. Of Educ., 128 Idaho 276, 281-82, 912 P.2d 644, 649-50 (1996). Justiciable issues are controversies that are real and substantial and can be concluded through the grant of relief by a court. Id. Idaho law parallels the United States Supreme Court in that mootness applies not only to a dead issue, but also when the appellant lacks a legal interest in the outcome. Murphy v. Hunt, 455 U.S. 478, 481-82, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353, 356-57 (1982); Bradshaw v. State, 120 Idaho 429, 432, 816 P.2d 986, 989 (1991). Thus, this Court cannot hear and resolve an issue that “presents no justiciable controversy and a judicial determination will have no practical effect on the outcome.” Idaho Sch. For Equal Educ. Opportunity, 128 Idaho at 281, 912 P.2d at 649.

A mootness exception exists where the challenged conduct is of such a limited duration as to prohibit full litigation prior to termination of the conduct. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350, 352-53 (1975). Moreover, the complainant could be expected to engage in the same conduct. Id. Therefore, the mootness doctrine is limited by the “capable of repetition, yet evading review” exception. Mallery v. Lewis, 106 Idaho 227, 234, 678 P.2d 19, 26 (1983). A second exception looks to the justiciability of an issue that, although now appears dead, impacts the general public. Idaho Sch. For Equal Educ. Opportunity, 128 Idaho at 284, 912 P.2d at 652; Bradshaw v. State, 120 Idaho 429, 432, 816 P.2d 986, 989 (1991). A third exception exists when the challenger continues to face an impact from the same dead issue. Adams v. Killeen, 115 Idaho 1034, 1035, 772 P.2d 241, 242 (Ct.App.1989).

1. Suppression Challenge

Hoyle argued to the Court of Appeals that the warrants used to search his personal and real estate office located within Hoyle’s Insurance offices were overbroad and vague. The Court of Appeals properly determined that issue was moot and affirmed the district court because: (1) the instant case was dismissed; (2) Hoyle was acquitted of Counts A and E and most of the predicate acts to Count B; and (3) Hoyle was neither convicted nor acquitted on the remaining seven Acts of Count B, or Count B itself. Therefore, the district court is affirmed because there remains no justiciable controversy.

2. Prosecutorial Authority Challenge

Hoyle argues that Deputy Attorney General Dennis Charney prosecuted independently of the Ada County Prosecutor and thereby exceeded his statutory duties in violation of I.C. § 67-1401 and violated Mr. Hoyle’s state and federal constitutional rights to due process and equal protection. However, the Court of Appeals properly determined that the issue of the Attorney General’s conduct is no longer justiciable, so any determination has no effect and is moot.

B. The District Court Did Not Err In Denying Hoyle’s Motion For Acquittal Based On The Verdict Form.

In its decision, the Court of Appeals noted that if Hoyle’s Motion for Judgment of Acquittal should have been granted by the district court, double jeopardy bars Hoyle’s subsequent prosecution in Case 795 because the predicate acts at issue constitute lesser-included offenses of racketeering as charged in Count B. Sivak v. State, 112 Idaho 197, 210-15, 731 P.2d 192, 205-10 (1986). As such, Hoyle’s challenge is justiciable under the “collateral legal consequences” exception. Russell v. Fortney, 111 Idaho 181, 183, 722 P.2d 490, 492 (Ct.App.1986).

The issue is whether the district court properly granted a mistrial. A district court’s decision to declare a mistrial is discretionary. United States v. Cawley, 630 F.2d 1345, 1349 (9th Cir.1980); State v. Lee, 131 Idaho 600, 605-07, 961 P.2d 1203, 1208-10 (Ct.App.1998). A deadlocked jury presents a “manifest necessity” justifying a mistrial declaration. State v. Sharp, 104 Idaho 691, 693, 662 P.2d 1135, 1137 (1983). The Court of Appeals properly held that the district court did not abuse its discretion in declaring a mistrial because the jury did not return a unanimous verdict on Count B or the seven predicate acts. Therefore, we hold the district court did not abuse its discretion in declaring a mistrial because the jury failed to return a unanimous verdict.

C. The District Court Did Not Err In Denying Hoyle’s Motion For Judgment Of Acquittal.

After the jury returned its verdict, Hoyle moved the district court for a judgment of acquittal from Count B pursuant to I.C.R. 29(c) because the juiy could not agree as to seven predicate acts. “If no verdict is returned the court may enter a judgment of acquittal.” I.C.R. 29(c). The district court denied Hoyle’s motion. The Court of Appeals stated “[w]hen we review the grant or denial for judgment of acquittal, we examine the record for sufficiency of the evidence ... the trial court must deny the motion if there is some evidence of guilt produced at trial.” State of Idaho v. Hoyle, 2003 Opinion No. 19 at 10; (quoting State v. Griffith, 127 Idaho 8, 11, 896 P.2d 334, 337 (1995)). Hoyle contends that the proper standard is whether there is substantial evidence upon which any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

When reviewing a decision on a motion for judgment of acquittal, older Idaho case law required evidence “sufficient to sustain a conviction of the offense.” State v. Greene, 100 Idaho 464, 466, 600 P.2d 140, 142 (1979); State v. Holder, 100 Idaho 129, 594 P.2d 639, 641, 642 (1979). More recently, this Court further explained that “[o]n review of the denial of a motion for judgment of acquittal, the appellate court ... determine[s] whether there is substantial evidence to support the challenged conviction.” State v. Merwin, 131 Idaho 642, 644, 962 P.2d 1026, 1029 (1998); State v. Rhode, 133 Idaho 459, , 988 P.2d 685, 687 (1999). Substantial evidence to support the challenged conviction is present when “a reasonable mind could conclude that the defendant’s guilt as to such material evidence of the offense was proven beyond a reasonable doubt.” State v. Grube, 126 Idaho 377, 386, 883 P.2d 1069, 1078 (1994); State v. Kuzmichev, 132 Idaho 536, 546, 976 P.2d 462, 472 (1999); State v. Bronnenberg, 124 Idaho 67, 71, 856 P.2d 104, 107 (Ct.App.1993); State v. Gonzalez, 134 Idaho 907, 909, 12 P.3d 382, 384 (Ct.App.2000); State v. Babb, 133 Idaho 890, 892, 994 P.2d 633, 635 (Ct.App.2000); State v. Hamilton, 129 Idaho 938, 942, 935 P.2d 201, 205 (Ct.App.1997); State v. Kopsa, 126 Idaho 512, 522, 887 P.2d 57, 67 (Ct.App.1994). Therefore, the weight of authority suggests the proper language to describe the standard for reviewing a motion for acquittal is whether there was substantial evidence upon which a trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The Griffith decision, upon which the Court of Appeals relied, applies a standard of review stating that “[t]he trial court must deny the motion [for judgment of acquittal] if there is some evidence of guilt produced at trial.” State v. Griffith, 127 Idaho 8, 11, 896 P.2d 334, 337 (1995). The “some evidence” language used by the Griffith Court is imprecise. Other than the Hoyle decision, the two cases that cite to Griffith do not adopt the “some evidence of guilt” language. In State v. Cheatham 134 Idaho 565, 6 P.3d 815 (2000), the Court cited Griffith for two propositions. First, “we examine the record for sufficiency of the evidence supporting the trial court’s determination .... Second, [w]e independently review the record to determine if there is no evidence upon which a guilty verdict could be based.” Id. at 569, 6 P.3d at 819. In other words, the Cheatham Court, by using the “sufficiency of the evidence” language, perhaps is using older terminology, but is nonetheless restating differently the same standard of review for motions for judgments of acquittals as the more recent cases have characterized as “substantial evidence.” Additionally, in State v. Morgan 134 Idaho 331, 1 P.3d 832 (Ct.App.2000), the Court of Appeals only cites Griffith for the proposition that “[a] motion for acquittal should only be granted where there is no evidence produced at trial to support the conviction.” Id. at 332, 1 P.3d at 833. Thus, Morgan also does not adopt the “some evidence of guilt” language; rather, the terminology used in Morgan is “[w]here a trial court’s findings of fact are supported by substantial and competent evidence upon which a reasonable trier of fact could find the essential elements of a crime established beyond a reasonable doubt, those findings will not be disturbed on appeal.” Id.

In summation, the language used in Griffith to describe the standard of review for. a motion for judgment of acquittal is imprecise, justifying clarification by this Court. The proper description of the standard of review for a motion for judgment of acquittal under I.C.R. 29(c) is whether there was substantial evidence upon which a trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Applying this standard, each predicate act under Count B that the jury could not decide must be analyzed to determine whether the district court properly denied Hoyle’s motion for judgment of acquittal. “Where there is competent although conflicting evidence to sustain the verdict, this court cannot reweigh that evidence or disturb the verdict.” Merwin, 131 Idaho at 644-45, 962 P.2d at 1028-29. “In reviewing a motion for judgment of acquittal ... all reasonable inferences on appeal are taken in favor of the prosecution.” Kuzmichev, 132 Idaho at 545, 976 P.2d at 471; Grube, 126 Idaho at 386, 883 P.2d at 1078.

As the Court of Appeals discussed, the district court dismissed the instant case and the state has abandoned its prosecution for alleged Acts 9 and 62; as such, these Acts are moot and will not be analyzed.

The state charged Hoyle under Count B with racketeering under I.C. § 18-7804 which states, in relevant part:

(a) It is unlawful for any person who has received any proceeds derived directly or indirectly from a pattern of racketeering activity in which the person has participated, to use or invest, directly or indirectly, any part of the proceeds or the proceeds derived from the investment or use thereof in the acquisition of an interest in, or the establishment or operation of, any enterprise or real property.

Prosecution of a Racketeering charge requires a defendant to commit certain predicate acts. “ ‘Racketeering’ means any act which is chargeable or indictable under [certain] sections of the Idaho Code.” I.C. § 18-7803. Included are the predicate acts of larceny and insurance fraud, with which Hoyle was charged. I.C. § 18-7803(a)(2), (10). “ ‘Pattern of racketeering activity1 means engaging in at least two (2) incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated incidents____” I.C. § 18-7803(d). In short, as an initial inquiry, for Hoyle to be guilty of Count B racketeering, he must have committed at least two predicate criminal acts. The jury could not agree on seven predicate acts of grand theft and insurance fraud. Therefore, each predicate act must be analyzed.

1. Grand Theft Evidence

Theft is defined as: “(1) [a] person steals property and commits theft when, with intent to deprive another of property or to appropriate the same to himself, or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof. (2) Theft includes a wrongful taking, obtaining or withholding of another’s property, with the intent prescribed in subsection (1) of this section ...” I.C. § 18-2403(1) and (2). “A person is guilty of grand theft when he commits a theft as defined in this chapter and when: l.[t]he value of the property taken exceeds three hundred dollars.” I.C. § 18-2407(l)(b)(l). Predicate Act 10 charged Hoyle with grand theft of insurance premiums in an amount between $300 and $763.74 from the Community House, and Predicate Act 11 charged Hoyle with grand theft of insurance premiums from Bairds Dry Cleaners (Bairds) for an amount between $300 and $2650.

Regarding Act 10, as of January 31, 1997, the record reflects that Community House had a $683.67 credit balance on its account. Hoyle’s bookkeeper, Jill Equals, zeroed out this balance and transferred it to the commissions account upon written instructions from Hoyle. Hoyle committed a wrongful taking because the Community House was entitled to a credit on its account, but Hoyle instructed the credit be placed in his commissions account. A commission account represents income to Hoyle. With inferences drawn in favor of the prosecution, Hoyle transferred a credit valuing over $300, intending to deprive Community House and appropriate to himself, as evinced by placing the credit in his commissions account. Therefore, there is substantial and competent evidence that Hoyle committed grand theft for Predicate Act 10.

As to Act 11, the evidence in the record shows Bairds sent a double payment to Hoyle Insurance amounting to a credit of $2750. Hoyle Insurance sent back $100 to Bairds as a deductible waiver, leaving a credit to Bairds of $2650. Bairds’ premium payment of $2750 was a duplicate payment, and Jill Equals, the bookkeeper, informed Hoyle of this fact. Hoyle again directed the $2650 credit be transferred to his commissions account. As above, including inferences drawn in favor of the prosecution, Hoyle transferred a credit valuing over $300, intending to deprive Bairds, the lawful owner, and appropriated to himself, as evinced by placing the credit in his commissions account. Therefore, there is substantial and competent evidence that Hoyle committed grand theft for Predicate Act 11.

2. Insurance Fraud Evidence

Hoyle was also charged with insurance fraud pursuant to I.C. § 41-293(l)(c) in Predicate Acts 108, 115 and 118 for the submission of allegedly materially false applications for insurance, upon which the jury could not agree. The form of insurance fraud as charged to Hoyle is defined as “[a]ny insurance agent or other person who with intent to defraud or deceive and insurer presents or causes to be presented to or by an insurer, a purported insurer or agent, a materially false or altered application of insurance.” I.C. § 41-293(l)(c).

Act 108 involved an insurance application comprised of Sta-Bax, Harry’s Dry Dock & Winter Sports (Harry’s Dry Dock), and Sports Marina, Inc. The properties that were applying for insurance were misrepresented to the insurer by way of the applicant’s loss history. As determined by the Court of Appeals, Karen Boyd, a Hoyle Insurance marketer, obtained premium quotes and processed applications as well as policy changes. Hoyle requested Boyd to submit an application for Harry’s Dry Dock. Boyd asked Hoyle to review the application and for his permission to order loss runs from the client’s prior insurers. These loss runs concerned American States Insurance Company (American States). American States previously refused to renew the client’s policy due to a claim against the policy for a boat storage facility loss. In writing, Hoyle instructed Boyd to submit the client’s application using the Sports Marina name to American States, without disclosing Harry’s Dry Dock on the insurance application. Further, Hoyle told Boyd that Harry’s Dry Dock would be added to the Sports Marina policy after it was issued and after American States moved its operation to Seattle. This way the Salt Lake City underwriter who had sent the nonrenewal notice would be avoided.

Hoyle intentionally attempted to hide the loss history associated with Harry’s Dry Dock by submitting an insurance application in a false name and failing to disclose all parties that were seeking insurance. Therefore, these misrepresentations amount to a violation of I.C. § 41-293(l)(c) resulting in substantial and competent evidence that Hoyle committed insurance fraud for Predicate Act 108.

Regarding Act 115, Boyd prepared and submitted an insurance application to Kemper on behalf of Stiforp. Hoyle directed Boyd to pull the loss reports prepared by American States Insurance for Larsen of Idaho (Larsen), which showed no losses, and do one similar to it. Based upon these instructions, Boyd took loss reports prepared by American States for Larsens, massaged them, and submitted them to Kemper, representing them to be Stiforp’s loss runs from American States. Hoyle contends there is neither evidence in the trial record that Stiforp had any losses which were kept from the insurance company, nor did he possess an intent to deceive. Further, there is nothing inherently criminal in Hoyle’s instruction to Boyd, unless Stiforp itself had experienced a loss which was being hidden. Nevertheless, during this time, Hoyle Insurance had Stiforp’s loss runs from Mattei & Associates. Hoyle Insurance did not send these reports to Kemper; rather, the doctored loss runs were sent. Because the actual loss runs could have been sent, but Hoyle chose to send the doctored loss runs, the evidence suggests Hoyle had the intent to defraud or deceive. Therefore, there is substantial and competent evidence that Hoyle committed insurance fraud for Predicate Act 115.

Lastly, Predicate Act 118 alleged that Hoyle instructed Boyd to include three vehicles belonging to Today’s Child, formerly owned by Ron LaFever, but currently owned by Jerry and Julie Heinrichs, to an existing policy for LaFever Roofing (LaFever). Thus, the representation to insurers was that Today’s Child’s vehicles belonged to LaFever. The record shows the coverage for the three Today’s Child vehicles had been removed from the LaFever policy with Ohio Casualty. Hoyle Insurance submitted an application in October 1995 for Today’s Child seeking coverage for those vehicles using incorrect owners. Then, Hoyle instructed Boyd, effective November 1, 1995, to add the vehicles back onto the LaFever policy. Thereafter, Boyd sent a facsimile to the underwriter falsely stating the vehicles were mistakenly deleted from the LaFever policy.

In approximately March 1997, Continental Western declined to provide an insurance quote for Today’s Child because it declined vehicle coverage for day care centers. Boyd inquired of Hoyle whether to submit the Today’s Child application to a different suitable carrier. Hoyle instructed Boyd to leave coverage for the vehicles on the LaFever policy with Ohio Casualty, but then change the policy to the Heinrichs’ name when Hoyle Insurance transferred the LaFever account to another carrier. Therefore, the record shows there is substantial and competent evidence that Hoyle committed insurance fraud for Predicate Act 118.

As explained above, the record reflects substantial and competent evidence upon which a trier of fact could have found the essential elements of both the grand larceny and insurance fraud crimes beyond a reasonable doubt, satisfying the pattern of racketeering element of the Count B racketeering charge. Moreover, the record reflects evidence of the other portion of a racketeering offense. Once a pattern of racketeering activity is established, it is unlawful “to use or invest, directly or indirectly, any part of the proceeds or the proceeds derived from the investment or use thereof in the acquisition of an interest in, or the establishment or operation of, any enterprise or real property.” I.C. § 18-7804.

Hoyle received an annual salary of $174,000 from FSI and/or Hoyle Insurance, plus commissions for his own sales, a non-competition payment of $25,000, and other payments. Also, the evidence reflects Hoyle used all or part of the proceeds from his “pattern of racketeering” to operate Hoyle Real Estate. Additionally, funds from Hoyle’s racketeering activities went back to the operation of Hoyle Insurance. Thus, Hoyle used the proceeds of his racketeering endeavors to fund Hoyle Real Estate, which is a real estate enterprise, and Hoyle Insurance. Therefore, the district court is affirmed because substantial and competent evidence exists in the record upon which a trier of fact could have found all the essential elements of Hoyle’s Count B racketeering charge.

In conclusion, we hold the proper phraseology for the standard of review for a motion for judgment of acquittal under I.C.R. 29(c) is whether there was substantial evidence upon which a trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Also, the record reflects substantial and competent evidence to satisfy all the elements of Hoyle’s Count B racketeering charge.

D. I.C. § 18-301 Does Not Apply To This Case.

Hoyle argues that Idaho’s “double jeopardy” statute, I.C. § 18-301, protects him against later prosecution. The Court of Appeals correctly determined that the statute was inapplicable because on February 13, 1995, it was repealed. The earliest of Hoyle’s conduct did not occur for several months after the statute was repealed.

E. This Court Declines To Adopt A Rule Which Requires The State To Bring All Related Charges In One Case.

Hoyle asks this Court to adopt a rule similar to California’s that requires a prosecutor to bring “all related charges at the time of the original filing.” Kellett v. Superior Court, 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206 (1966). However, Hoyle raised the issue for the first time in his reply brief to the Court of Appeals by asking the court to adopt the California rule. Hoyle admits that “the Court of Appeal [sic] did not reach the issue of trying all related charges in one proceeding.” Therefore, no Idaho court has ruled on Hoyle’s issue. To “raise an issue on appeal, the record must contain an adverse ruling to form the basis for assignment of error and this Court will not consider or review an issue raised for the first time on appeal.” Magnuson Prop. P’ship v. City of Coeur D’Alene, 133 Idaho 166, 170, 59 P.3d 971, 975 (2002). The issue of whether to adopt the rule that all related charges must be brought at one time is not properly before this Court and cannot thereby be decided on the merits.

IV.

CONCLUSION

We agree with the Court of Appeals’ reasoning in holding that Hoyle’s suppression and prosecutorial challenges are moot and in concluding the district court did not abuse its discretion in declaring a mistrial because the jury did not return a unanimous verdict. Also, the proper terminology describing the standard of review for a motion for judgment of acquittal under I.C.R. 29(c) is whether there was substantial and competent evidence upon which a trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We affirm the district court in denying Hoyle’s Motion for Acquittal for Count B racketeering because substantial and competent evidence exists in the record to satisfy all the elements of racketeering. Moreover, we adopt the Court of Appeals’ reasoning and conclusion and determine that I.C. § 18-301 is inapplicable. Lastly, the issue of whether to adopt a rule “that all related charges must be brought at one time” is not properly before this Court. The judgment of the district court is affirmed.

Justice SCHROEDER concurs.