Appellant-defendant Ecorp, Inc., d/b/a Earthco (Earthco) appeals the trial courts grant of partial summary judgment in favor of appellee-plaintiff Robert Rooksby. Specifically, Earthco contends that a genuine issue of material fact exists regarding whether a corporate recapitalization program was completed.
The facts most favorable to Earthco indicate that Rooksby began working as an independent consultant for Earthco in 1996. To take advantage of certain tax credits, Earthco began developing facilities to create a solid synthetic fuel from coal finds. Record at 317, 318. In general, Rooksbys work for Earthco involved designing systems that would reclaim the finds and discovering multiple sites for the facilities. R. at 317.
According to the first agreement between the parties, Rooksby was to provide consulting services for a specific processing plant in Utah. On February 3, 1997, Earthco and Rooksby entered into a second agreement, wherein Rooksby assumed responsibility for identifying and introducing coal sites into the Earthco recovery program. In return for each coal site Rooksby identified and introduced, Earthco agreed to pay him $50,000. On March 10, 1997, Earthco and Rooksby entered into a third agreement, wherein Earthco retained Rooksby to serve as Senior Coal Consultant. Pursuant to the March 10, 1997 agreement, Earthco agreed to pay Rooksby a monthly consulting fee of $7000.
The monthly salary for this position shall be Fifteen Thousand Dollars commencing on July 1, 1998 and shall be increased by five percent (5%) on each annual anniversary thereafter. The present payments of Seven Thousand ($7,000.00) per month will be continued until a corporate recapitalization program is completed. Immediately thereafter, the accrued but unpaid portion of the base salary and the remaining site bonus payments will be made to Rooksby.
R. at 28-29 (emphasis supplied). The undisputed facts demonstrate that the term present payments refers to the $7000 monthly fee Rooksby was receiving pursuant to the March 10, 1997 agreement. R. at 125. Additionally, the term site bonus payments refers to the $135,000 in site bonuses, which Rooksby had earned as Earthcos consultant but were not paid to him as of the date of the contract. R. at 345-46.
On April 15, 1999, Rooksby presented a written demand for his unpaid salary and unpaid site bonuses, totaling $221,500. The unpaid salary amounted to $86,500, while unpaid site bonuses totaled $135,000. Rooksby calculated the salary owed him as the full $15,000 monthly salary that had accrued over nine and one-half months according to the January 6, 1999 employment agreement. From July 1, 1998, until February 28, 1999, Earthco had paid Rooksby $7000 per month. Thus, he demanded the additional $8000 per month over eight months that had accrued according to the employment agreement. And, because Earthco paid Rooksby no monthly salary for March or April 1999, he demanded an additional $22,500. See footnote R. at 150.
Following Earthcos refusal to pay, Rooksby filed a complaint against Earthco in July 1999, for the $86,500 in unpaid salary. Rooksby also sought to enforce an employees lien he filed against Earthco in accordance with Ind. Code § 32-8-24-1. See footnote Rooksby later filed two amended complaints. In his final amended complaint, Rooksby demanded both the unpaid salary and unpaid site bonuses in Count I of the complaint. In Counts II, III, and IV of the final amended complaint, Rooksby claimed continuing breach of contract, conversion, and constructive fraud, respectively.
On October 18, 1999, Rooksby moved for partial summary judgment, contending that Earthco was in continuing breach of the employment contract by failing to pay wages and benefits as they came due. Therefore, he requested a total of $404,250 for damages accrued through September 30, 1999. The day after Rooksby filed his motion for partial summary judgment, Earthco sold four of its coal facilities for a total of $11 million. Money from this sale was placed in an escrow account to pay Earthco creditors. Earthco did not receive any of the $11 million directly.
Our standard of review of a partial summary judgment is the same as it was for the trial court: whether there is a genuine issue of material fact and whether the moving party was entitled to judgment as a matter of law. See Ind. Trial Rule 56(C). All evidence must be construed in favor of the opposing party, and all doubts as to the existence of a material fact must be resolved against the moving party. Bailey v. Manors Group, 642 N.E.2d 249, 252 (Ind. Ct. App. 1994), trans. denied. When reviewing a motion for partial summary judgment, if there are no factual disputes, the courts task is to apply the relevant law to the undisputed facts. Speedway Intl Trucks, Inc. v. Rosselle, 648 N.E.2d 1161, 1162 (Ind. 1995).
Earthco contends that the trial court erred in granting partial summary judgment because of the existence of a genuine issue of material fact. More specifically, Earthco contends that the unpaid salary and site bonuses are only payable upon the completion of a corporate recapitalization program in accordance with the parties agreement. According to Earthco, a corporate recapitalization program has not been completed. In contrast, Rooksby urges that sale of the four coal sites and subsequent payment of creditors marked the completion of a corporate recapitalization program, making due his unpaid salary and site bonuses.
Addressing the parties contentions, we note that the primary purpose in contract construction is to ascertain and give effect to the parties mutual intent. Hutchinson, Shockey, Erley & Co. v. Evansville-Vanderburgh County Bldg. Auth., 644 N.E.2d 1228, 1231 (Ind. 1994). When a court is asked to interpret an agreement, it is necessary for the court to examine the parties intent when they wrote the agreement. Kelly v. Smith, 611 N.E.2d 118, 121 (Ind. 1993). Absent ambiguity, the terms of a contract will be given their plain and ordinary meaning. George Uzelac & Assocs., Inc. v. Guzik, 663 N.E.2d 238, 240 (Ind. Ct. App. 1996), trans. denied. The terms of a contract are not considered ambiguous because the parties dispute the proper interpretation of the terms. Id.
An ambiguity exists only where reasonable people could come to different conclusions about the contracts meaning. Ruff v. Charter Behavioral Health Sys. of Northwest Indiana, Inc., 699 N.E.2d 1171, 1176 (Ind. Ct. App. 1998), trans. denied. If a contract is ambiguous solely because of the language used in the contract and not because of extrinsic facts, then its construction is purely a question of law for the courts. Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1133 (Ind. 1995). However, where a contract is ambiguous and the meaning may need to be determined by extrinsic evidence, then such a construction is a matter for the factfinder. Id. Our sister states apply this general rule when dealing with technical words or terms of art used in contracts. See Les-Bil, Inc. v. Gen. Waterworks Corp., 511 S.W.2d 166, 169 (Ark. 1974) ([W]hen a technical term is used in a sense other than the ordinary meaning of the word[,] testimony is admissible to explain the meaning of the term and the question may be submitted to the trier of fact to determine in what sense the term was used.); Timberline Equip. Co. v. St. Paul Fire and Marine Ins. Co., 576 P.2d 1244, 1246 (Or. 1978) ([I]f language of the contract is ambiguous, or if technical words, local phrases or terms of art are used and evidence is properly admitted showing meaning, the question becomes one of fact.); Brown v. Poston, 269 P.2d 967, 969 (Wash. 1954) (The subject matter of the contract was technical in nature, and many of the terms and drawings included in the plans and specifications could not be interpreted intelligently without reference to testimony to explain them.); see also 17A Am. Jur. 2d Contracts § 363, at 385-86 (1991) (collecting cases under heading Technical words).
In examining Rooksbys employment contract, no clear meaning of recapitalization emerges from the documents four corners. The parties have not cited any Indiana case law or statute defining recapitalization, nor has our research uncovered any. The term has appeared in at least two U.S. Supreme Court decisions applying the antecedent to 26 U.S.C. § 368, which lists certain corporate transactions exempt from taxation. In Helvering v. Southwest Consolidated Corp., the Court defined recapitalization as a reshuffling of a capital structure within the framework of an existing corporation. 315 U.S. 194, 202 (1942). The Court has also defined recapitalization as a new form of the previous participation in the enterprise, involving no change of substance of rights and relations of the interested parties one to another or to the corporate assets. Bazley v. Commissioner of Internal Revenue, 331 U.S. 737, 740 (1947). However, the Bazley court carefully avoided fashioning an abstract definition of recapitalization. Instead, it defined the term within the context of the Internal Revenue Code provision at hand. Id. at 741.
Likewise, state courts dealing with the term recapitalization in contracts are careful to define the term in the context of the parties intent. In a Delaware decision, the supreme court addressed a stock certificate provision granting preferred shareholders a beneficial adjustment in their stock after recapitalization. Wood v. Coastal States Gas Corp., 401 A.2d 932, 939 (Del. 1979). The Coastal court acknowledged that the circumstances of that case may have fit under the general definition of recapitalization, which is, a fundamental realignment of relationships amongst a companys securities or a reshuffling of the capital structure. Id. (citing Helvering, 315 U.S. 194). However, the stock certificate provision contemplated more specific circumstances as a recapitalization that would trigger the beneficial adjustment. Id. (noting that the general definition of recapitalization was not the test, rather [t]he critical question concerns what [wa]s said in the contract); see also Shoffner v. Woodward, 394 S.E.2d 921, 924 (Ga. Ct. App. 1990) ([W]e will not attempt an abstract definition of recapitalization, but will ascertain the meaning of the term in the context in which it is used and in accordance with the parties intention.).
Turning to the facts of the instant case, Earthco maintains that a recapitalization involves an arrangement whereby stock, bonds, or other securities of a corporation are adjusted as to type, amount, income or priority, or as a realignment of the capital structure in the framework of an existing corporation. Appellants brief at 12 (citing Blacks Law Dictionary (5th ed. 1983)). According to Scott, Earthcos president, the sale of the four facilities was an asset sale that did not involve any new injection of capital or new shareholders, did not involve any adjustment as to the type, amount, income, or priority of Earthcos stock, and did not involve any realignment of the capital structure within Earthco. Appellants brief at 14.
Earthco has presented a genuine issue of material fact, that is, the parties intent in agreeing to pay Rooksbys accrued salary and site bonuses after a recapitalization program had been completed. Given the technical nature of the term used, reasonable people could arrive at different conclusions about the meaning of recapitalization in Rooksbys employment contract. In other words, an ambiguity exists in the employment contract that can only be resolved in light of extrinsic evidence. As such, the trial court should have employed [r]ules of contract construction and extrinsic evidence . . . to determine and give effect to the parties reasonable expectations. See Fresh Cut, 650 N.E.2d at 1133. Therefore, under these circumstances, resolution of the issue was inappropriate for summary judgment. See id.
Judgment reversed and remanded for further proceedings consistent with this opinion.
SHARPNACK, C.J., and SULLIVAN, J., concur.
Footnote: Rooksby tendered the demand letter on April 15, 1999. Presumably, he demanded one and one-half months salary for March and the first fifteen days in April.
for all work and labor done and performed by the employees for the corporation, from the date of the employees employment by the corporation. A lien under this section shall lie prior to any and all liens created or acquired subsequent to the date of the employment of the employees by the corporation, except as otherwise provided in this chapter.
Footnote: On March 21, 2001, Earthco filed a motion requesting permission from this court to file a motion for relief from judgment pursuant to Ind. Trial Rule 60(B). To the extent that such motion is not mooted by this opinion, Earthco may file the motion with the trial court.


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Law Web: When land should not be treated as agricultural land even if revenue record shows that it is agricultural land?
In the present case, security interest was created in respect of several parcels of land, which were meant to be a part of single unit i.e. the five star hotel in Goa. Some parcels of land now claimed as agricultural land were apparently purchased by the debtor from agriculturists and are entered as agricultural lands in the revenue records. The debtor applied to the revenue authorities for the conversion of these lands to non-agricultural lands which is pending till date due to policy decision.
We agree that the determination of the character of land, according to the purpose for which it is meant or set apart and can be used, is a matter which ought to be determined on the facts of each particular case. What is really required to be shown is the connection with an agricultural purpose and user and not the mere possibility of user of land, by some possible future owner or possessor, for an agricultural purpose. It is not the mere potentiality, which will only affect its valuation as part of "assets", but its actual condition and intended user which has to be seen for purposes of exemption from wealth-tax. One of the objects of the exemption seemed to be to encourage cultivation or actual utilisation of land for agricultural purposes. If there is neither anything in its condition, nor anything in evidence to indicate the intention of its owners or possessors, so as to connect it with an agricultural purpose, the land could not be "agricultural land" for the purposes of earning an exemption under the Act. Entries in revenue records are, however, good prima facie evidence.
We suppose that something or other can be, and often is, grown on any vacant land, but that would not necessarily make it agricultural land for our purposes. To give an example the possibility of cultivating, or even the actual cultivation of, what is essentially a building site in the heart of a town would not make it agricultural land. It is the purpose for which it is held that determines its character and the existence of a few coconut trees or a vegetable patch on the land cannot alter the fact that it is held for purposes of building and not for purposes of agriculture.
In any event, having regard to the character of the land and the purpose for which it is set apart, we are of the view that the land in question is not an agricultural land. The High Court mis-directed itself in holding that the land was an agricultural land merely because it stood as such in the revenue entries, even though the application made for such conversation lies pending till date.
ITC Limited Vs. Blue Coast Hotels Ltd. and Ors.
2. The auction purchaser ITC Ltd. is before us in the appeals arising out of SLP (C) Nos. 10215-10217/2016. The sale of a five star luxury hotel property purchased in a public auction was set aside by an order1 of the Bombay High Court in favour of the debtor Blue Coast Hotels Ltd.
Industrial Financial Corporation of India (IFCI), [filed appeals arising out of SLP (C) Nos. 10196-10198/2016 in this Court], the secured creditor (hereinafter referred to as 'the creditor'), in the capacity of a financial institution entered into a corporate loan agreement2 with Blue Coast Hotels (hereinafter referred to as 'the debtor') for a sum of Rs. 150 crores. The agreement included a creation of a special mortgage to secure the corporate loan. The mortgaged property comprised of the whole of the debtor's hotel property-including the agricultural land on which the debtor was to develop villas. The debtor defaulted in repayment of the loan and the debtor's account became a Non-Performing Asset (NPA)3.
4. Several notices intimating default in payment of the total outstanding amount of Rs. 133.18 crores were sent by the creditor to the debtor. Upon failure to remit the overdue amount despite the notices, a notice4 Under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the Act") was sent by the creditor calling upon the debtor to pay the amount overdue within a period of 60 days.
10. On 04.09.2013, the creditor published a Notice of Sale by Public Auction in the newspaper fixing the date of auction as 09.10.2013 at a reserve price of Rs. 403 crores. In view of this, the debtor sent a letter12 to the creditor undertaking that it will pay all outstanding installments by 31.12.2013 and that the sale of assets be deferred upto the aforesaid date. The debtor further stated that they shall not proceed in respect of their Securitization Application13 before the DRT. In pursuance of it, the creditor deferred the sale by issuing a public notice on 08.10.2013 and granted the debtor an opportunity to clear the loan, however, the creditor extended repayment only by 15-20 days.
(ii) That a portion of the land mortgaged by the debtor as security interest consisted of agricultural land to which the provisions of the Act do not apply. The land, therefore, could not have been recovered.
(iii) The proceedings Under Section 14 were initiated by the creditor who was not a secured creditor after having sold the property in auction to the auction purchaser.
20. The Security Interest (Enforcement) Rules, 2002 (hereinafter referred to as 'the Rules') framed under the Act19 elaborate on the manner in which the representation of the borrower is required to be dealt with. Section 13 (4) enables any creditor to enforce any security interest without the intervention of a court or tribunal. The procedure prescribed is that after classifying the debt as a non-performing asset, the creditor may, by a notice in writing require the debtor/borrower to discharge his liabilities within 60 days. On receipt of a notice, the borrower may make a representation or raise any objection. The creditor is then bound to consider the representation or objection. If the creditor comes to the conclusion that the representation is not acceptable or tenable, the creditor is required to communicate the reasons for the non-acceptance of the representation/objection within fifteen days. Where the borrower fails to discharge his liability in full, the creditor may take any of the actions Under Sub-section (4) which include the taking over of possession of the secured assets et cetera.
21. Rule 3A of the Rules requires the authorized officer who is an officer specified by the Board of Directors of the secured creditor to consider the representation and modify the notice of demand if satisfied of the need to do so in that regard. If the authorized officer comes to the conclusion that such representation or objection is not tenable or acceptable, he must communicate the reasons for non-acceptance of the representation or objection within fifteen days.
45. ...The purpose of serving a notice upon the borrower Under Sub-section (2) of Section 13 of the Act is, that a reply may be submitted by the borrower explaining the reasons as to why measures may or may not be taken Under Sub-section (4) of Section 13 in case of non-compliance with notice within 60 days. The creditor must apply its mind to the objections raised in reply to such notice and an internal mechanism must be particularly evolved to consider such objections raised in the reply to the notice. There may be some meaningful consideration of the objections raised rather than to ritually reject them and proceed to take drastic measures Under Sub-section (4) of Section 13 of the Act. Once such a duty is envisaged on the part of the creditor it would only be conducive to the principles of fairness on the part of the banks and financial institutions in dealing with their borrowers to apprise them of the reason for not accepting the objections or points raised in reply to the notice served upon them before proceeding to take measures Under Sub-section (4) of Section 13. Such reasons, overruling the objections of the borrower, must also be communicated to the borrower by the secured creditor. It will only be in fulfillment of a requirement of reasonableness and fairness in the dealings of institutional financing which is so important from the point of view of the economy of the country and would serve the purpose in the growth of a healthy economy. It would certainly provide guidance to the secured debtors in general in conducting the affairs in a manner that they may not be found defaulting and being made liable for the unsavoury steps contained Under Sub-section (4) of Section 13. At the same time, more importantly, we must make it clear unequivocally that communication of the reasons for not accepting the objections taken by the secured borrower may not be taken to give occasion to resort to such proceedings which are not permissible under the provisions of the Act. But communication of reasons not to accept the objections of the borrower, would certainly be for the purpose of his knowledge which would be a step forward towards his right to know as to why his objections have not been accepted by the secured creditor who intends to resort to harsh steps of taking over the management/business of viz. secured assets without intervention of the court. Such a person in respect of whom steps Under Section 13(4) of the Act are likely to be taken cannot be denied the right to know the reason of non-acceptance and of his objections. It is true, as per the provisions under the Act, he may not be entitled to challenge the reasons communicated or the likely action of the secured creditor at that point of time unless his right to approach the Debts Recovery Tribunal as provided Under Section 17 of the Act matures on any measure having been taken Under Sub-section (4) of Section 13 of the Act.
26. There is no doubt that if a reply with reasons is an integral and indispensable part of the statutory scheme, the Courts would not excuse a departure from it. But, on the other hand, if the reply is merely a direction and not of substance to the scheme, the non-compliance may be excused.
"For ascertaining the real intention of the Legislature, the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the noncompliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered".
28. We find the language of Sub-section (3A) to be clearly impulsive. It states that the secured creditor "shall consider such representation or objection and further, if such representation or objection is not acceptable or tenable, he shall communicate the reasons for non-acceptance" thereof. We see no reason to marginalize or dilute the impact of the use of the imperative 'shall' by reading it as 'may'. The word 'shall' invariably raises a presumption that the particular provision is imperative22.
29. There is nothing in the legislative scheme of Section 13(3A) which requires the Court to consider whether or not, the word 'shall' is to be treated as directory in the provision. As the Section stood originally, there was no provision for the above mentioned requirement of a debtor to make a representation or raise any objection to the notice issued by the creditor Under Section 13(2). As it was introduced via Sub-section (3A), it could not be the intention of the Parliament for the provision to be futile and for the discretion to ignore the objection/representation and proceed to take measures, be left with the creditor. There is a clear intendment to provide for a locus poenitentiae which requires an active consideration by the creditor and a reasoned order as to why the debtor's representation has not been accepted.
We agree with the view of this Court in this regard in Mardia Chemicals Ltd. v. Union of India MANU/SC/0323/2004 : (2004) 4 SCC 311 (para 45, 47, 77 and 80), Transcore v. Union of India MANU/SC/5319/2006 : (2008) 1 SCC 125 (para 24 and 25) and Keshavlal Khemchand & Sons (P) Ltd. v. Union of India MANU/SC/0073/2015 : (2015) 4 SCC 770 (para 19 and 61).
We also approve of the view of several High Courts in this regard23.
(iv) On the next day 21.06.2013, the debtor wrote a letter to the creditor seeking extension of time and enclosed six cheques for upfront payment of Rs. 33.16 crores without making any reference to the notice of taking over of possession. The cheques were dishonoured.
(v) On 04.09.2013, the creditor published a Notice of Sale by Public Auction in the newspaper fixing the date of auction as 09.10.2013 at a reserve price of Rs. 403 crores.
(vi) Following this the debtor sent a letter to the creditor on 19.09.2013 undertaking that it will repay all outstanding installments by 31.12.2013 and that the sale of assets be deferred up to the said date. The debtor further stated that it shall not proceed further in respect of their Securitization Application before the DRT.
(ix) On 25.11.2013, "A Letter of Undertaking" was given by the debtor accepting the Schedule given by the creditor on 29.10.2013 and also acknowledging the right of the creditor to sell the assets in case of default as per the above mentioned schedule.
33. From the above, it is clear that the creditor was induced by the debtor not to take action against them through assurances and promises. The creditor appeared to have entered into negotiations for the settlement of the dues and even accepted cheques in repayment much after the notice25 Under Section 13(2) and after the debtor's letter of representation26. Many opportunities were granted by the creditor to the debtor to repay the debt which were all met by proposals for extension of time. Eventually, the debtor even executed "A Letter of Undertaking27" acknowledging the right of IFCI to sell the assets in the case of default.
35. Much was sought to be made of the words "without prejudice" in the letter28 containing the undertaking that if the debt was not paid, the creditor could take over the secured assets. The submission on behalf of the debtor that the letter of undertaking was given in the course of negotiations and cannot be held to be an evidence of the acknowledgement of liability of the debtor, apart from being untenable in law, reiterates the attempt to evade liability and must be rejected. The submission that the letter was written without prejudice to the legal rights and remedies available under any law and therefore the acknowledgement or the undertaking has no legal effect must likewise be rejected. This letter is reminiscent of a letter that fell for consideration in Spencer's29 case as pointed out by Mr. Harish Salve, "as a Rule the debtor who writes such letters has no intention to bind himself further than is bound already, no intention of paying so long as he can avoid payment, and nothing before his mind but a desire, somehow or other, to gain time and avert pressure."
But when a statement is used as acknowledgement for the purpose of Section 29 (5), it is not being used as evidence of anything. The statement is not an evidence of an acknowledgement. It is the acknowledgement.
Here, the Respondent, Mr. Rashid was not offering any concession. On the contrary, he was seeking one in respect of an undisputed debt. Neither an offer of payment nor actual payment.
36. All in all, as the matter stands, the debtor did not repay the loan. The debtor managed to submit a letter purporting to be a representation, containing a proposal for reschedulement made much earlier to the creditor's notice and reserved a right to file a reply. Apparently, the debtor induced the creditor to enter into negotiations to ward off the reply and avoid the taking over of possession. The debtor ignored the symbolic possession taken over by the creditor and continued to negotiate and even gave six cheques which were dishonoured. The debtor then gave a final letter of undertaking agreeing that the creditor could take over possession of the assets if the debt was not repaid. All along, the debtor's response has been that of seeking extension of time to pay, with the usual unfulfilled promise of repayment. We see no reason why the debtor should not be stopped from questioning the taking over of possession, particularly since, neither the debt nor the liability is in dispute. The debt has not been repaid in fact, and the objection raised is merely on the ground that the taking of assets is illegal because the creditor failed to reply to the representation.
38. The purpose of enacting Section 31(i) and the meaning of the term "agricultural land" assume significance. This provision, like many others is intended to protect agricultural land held for agricultural purposes by agriculturists from the extraordinary provisions of this Act, which provides for enforcement of security interest without intervention of the Court. The plain intention of the provision is to exempt agricultural land from the provisions of the Act. In other words, the creditor cannot enforce any security interest created in his favour without intervention of the Court or Tribunal, if such security interest is in respect of agricultural land. The exemption thus protects agriculturists from losing their source of livelihood and income i.e. the agricultural land, under the drastic provision of the Act. It is also intended to deter the creation of security interest over agricultural land as defined in Section 2 (zf)31. Thus, security interest cannot be created in respect of property specified in Section 31.
The Borrower shall create mortgage on Exclusive basis on the 'Park Hyatt Goa Resort and Spa" Hotel Property admeasuring 1, 82, 225 Sq Mtrs with a built up area of 25182 Sq. Mtrs situated at 263 C, Arossim, Canasaulim Goa.
14....... Entry 45 of List I relates to "banking". Banking operations would inter alia, include accepting of loans and deposits, granting of loans and recovery of the debts due to the bank. There can be little doubt that under Entry 45 of List I, it is Parliament alone which can enact a law with regard to the conduct of business by the banks. Recovery of dues is an essential function of any banking institution. In exercise of its legislative power relating to banking, Parliament can provide the mechanism by which monies due to the banks and financial institutions can be recovered.
It would be quite an erroneous approach to the question to view such a statute not as an organic whole, but as a mere collection of sections, then disintegrate it into parts, examine under what heads of legislation those parts would severally fall, and by that process determine what portions thereof are intra vires, and what are not.
45. As noticed earlier, the creditor took over symbolic possession of the property on 20.06.2013. Thereupon, it transferred the property to the sole bidder ITC and issued a sale certificate for Rs. 515,44,01,000/- on 25.02.2015. On the same day, i.e., 25.02.2015, the creditor applied for taking physical possession of the secured assets Under Section 14 of the Act.
47. We find nothing in the provisions of the Act that renders taking over of symbolic possession illegal. This is a well-known device in law. In fact, this Court has, although in a different context, held in M.V.S. Manikayala Rao v. M. Narasimhaswami MANU/SC/0363/1965 : AIR 1966 SC 470 that the delivery of symbolic possession amounted to an interruption of adverse possession of a party and the period of limitation for the application of Article 144 of the Limitation Act would start from such date of the delivery.
48. The question, however, whether the creditor could maintain an application of possession Under Section 14 of the Act; even though it had taken over only symbolic possession before the sale of the property to the auction purchaser, depends on whether it remained a secured creditor after having done so.
Clause 2(L)34 includes debts or receivables and any right or interest in the security whether full or part underlying such debt or receivables or any beneficial interest in property vide (L)(i)(iv) & (v)35.
Sub-section (6) of Section 1336 posits that the transfer of the secured asset by the secured creditor shall vest in the transferee all the rights as if the transfer had been made by the owner of the secured asset.
The Section (Section 8) does not apply to court sales, for such sales effect a transfer by the operation of law. The principle of the Section was, however, applied in a case decided by Madras High Court where a debt for unpaid purchase money on a sale of land was attached and sold, and the auction purchaser was held entitled to the charge which the vendor had Under Section 55(4) (b) on the property in the hands of the buyer. The court, after observing that the present Section did not apply to court sales, said: The effect of applying Section 8 is to strengthen the sale certificate by transferring the lien along with it.
What is sold at a court sale is the right, title and interest of the judgment debtor, and the extent of that interest is a mixed question of fact and law to be decided according to the circumstances of each particular case, and depends upon what the court intended to sell, and the purchaser intended to buy.
50. In this case, the creditor did not have actual possession of the secured asset but only a constructive or symbolic possession. The transfer of the secured asset by the creditor therefore cannot be construed to be a complete transfer as contemplated by Section 8 of the Transfer of Property Act. The creditor nevertheless had a right to take actual possession of the secured assets and must therefore be held to be a secured creditor even after the limited transfer to the auction purchaser under the agreement39. Thus, the entire interest in the property not having been passed on to the creditor in the first place, the creditor in turn could not pass on the entire interest to the auction purchaser and thus remained a secured creditor in the Act.
19. Power of the High Court to be exercised Under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court Under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct."
.......Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy.
21State of U.P. v. Manbodhan Lal Shrivastava MANU/SC/0123/1957 : AIR 1957 SC 912, p. 918: 1958 SCR 533; State of U.P. v. Baburam, Upadhya MANU/SC/0312/1960 : AIR 1961 SC 751, p. 765: (1961) 2 SCR 679; Article 143 of the Constitution of India, In the matter of, supra, p. 769; State of Mysore v. V.K. Kangan MANU/SC/0429/1975 : AIR 1975 SC 2190, p. 2192: (1976) 2 SCC 895; Govindlal Chhaganlal Patel v. Agriculture Produce Market Committee MANU/SC/0125/1975 : AIR 1976 SC 263, p. 267: (1976) 1 SCC 369; Ganesh Prasad Sah Kesari v. Lakshmi Narayan, MANU/SC/0377/1985 : (1985) 3 SCC 53, pp. 59, 60: AIR 1985 SC 964; B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmik, MANU/SC/0783/1987 : (1987) 2 SCC 407, p. 415: AIR 1987 SC 1010; Owners and Parties interested in M.V. "Vali Pero" v. Fernandes Lopez MANU/SC/0395/1989 : AIR 1989 SC 2206, p. 2213: (1989) 4 SCC 671; State of M.P. v. Pradeep Kumar, MANU/SC/0566/2000 : (2000) 7 SCC 372, p. 377: (2000) 10 JT 349; Sarla Goel v. Krishanchand, MANU/SC/1131/2009 : (2009) 7 SCC 658 pp. 668, 669 para 30: (2009) 9 JT 21.
23Kiran Devi Bansal v. DGM SIDBI MANU/GJ/0305/2009 : AIR 2009 Guj 100 (DB)(para 9 and 10); Clarity Gold Pvt. Ltd. v. State Bank of India MANU/MH/0051/2011 : AIR 2011 Bom. 42 (DB)(para 11, 12 and 13); Vinay Container Services Pvt. Ltd. v. Axis Bank, MANU/MH/1778/2010 : 2011 (1) Mh. L.J. 882 (para 6); Krushna Chandra Sahoo v. Bank of India MANU/OR/0388/2008 : AIR 2009 Orissa 35 (para 6 and 7); Tensile Steel Ltd. and Anr. v. Punjab and Sind Bank and Ors. MANU/GJ/8188/2006 : AIR 2007 Guj 126 (para 21); M/s. Jayant Agencies v. Canara Bank and Ors., Jharkhand HC in WP (C) No. 4048 of 2010 (para 27, 28, 29, 32 and 33); M/s. Tetulia Coke Plant Pvt. Ltd. v. Bank of India MANU/JH/0686/2012 : AIR 2013 Jhar 12 (para 5, 9, 20, 22, 23 and 24); Mrs. Sunanda Kumari v. Standard Chartered Bank, MANU/KA/1014/2006 : (2007) 135 Comp Cases 604 (Kar) (para 5); Palash Mukherjee v. U.O.I., W.P. 9876 (W) of 2014 Calcutta High Court (para 1, 2 and 67); Jaideep Singh and Ors. v. Union of India and Anr., MANU/GH/0095/2008 : 2008 2 GLT (91) (para 25 and 28); Malabar Sand and Stones (Pvt.) Ltd. v. Catholic Syrian Bank Ltd. and Ors. MANU/KE/1577/2012 : AIR 2013 Ker 25 (para 7, 8, 9 and 10).
3613 (6) Any transfer of secured asset after taking possession thereof or take over of management Under Sub-section (4), by the secured creditor or by the manager on behalf of the secured creditor shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset.
38Abdul Aziz v. Appayasami MANU/PR/0043/1903 : (1904) ILR 27 Mad 131, 31 IA 1.

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Angeles v. Coast Eng'g Contractors, Inc.
EDWIN ANGELES et al., Plaintiffs and Appellants, v. COAST ENGINEERING CONTRACTORS, INC., Defendant and Respondent.
John L. Dodd & Associates, John L. Dodd, Benjamin Ekenes; Law Offices of timothy J. Donahue and Timothy J. Donahue for Plaintiffs and Appellants. Yoka & Smith, Christopher E. Faenza and Andy Mendoza for Defendant and Respondent.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00695045) OPINION Appeal from a judgment of the Superior Court of Orange County, David T. McEachen, Judge. Reversed. John L. Dodd & Associates, John L. Dodd, Benjamin Ekenes; Law Offices of timothy J. Donahue and Timothy J. Donahue for Plaintiffs and Appellants. Yoka & Smith, Christopher E. Faenza and Andy Mendoza for Defendant and Respondent.
This appeal involves the third lawsuit arising from plaintiff Edwin Angeles's August 2012 trip and fall at a gas station. The first action, Angeles et al. v. Berri Brothers Corporation et al. (Super. Ct. Orange, 2012, No. 30-2012-00595751); (case No. 751), was resolved by a settlement. In the second action, Angeles et al. v. Satwant Jhawar et al. (Super. Ct. Orange, 2013, No. 30-2013-00651259); (case No. 259), the trial court entered judgment in favor of defendant Coast Engineering Contractors, Inc. (Coast). It is the subject of our contemporaneous opinion in Angeles v. Coast Engineering Contractors, Inc. (April. 28, 2016, G051219) [nonpub. opn.]).
In this action, plaintiffs Edwin and Josephine Angeles, husband and wife, sued Coast and several others for negligence, negligence per se, loss of consortium, and unfair business practices. The trial court dismissed the action against Coast after sustaining its demurrer to the complaint without leave to amend. The court found the principles of res judicata and collateral estoppel barred this action because it was the third case "seek[ing] to vindicate the same primary right arising from [the] slip and fall accident."
Plaintiffs contend the trial court erred in so ruling. We agree. But because we also affirm the judgment in favor of Coast in the companion appeal, their victory in this case could be short-lived.
In case No. 751, plaintiffs sued several parties other than Coast for negligence, premises liability, and products liability. The negligence and premises liability counts alleged the named "defendants . . . owned, maintained, operated . . . and used [the] gas station," but "improperly configured, designed and laid out the business/parking lot so as to cause and contribute to plaintiff's injury and harm" when "Edwin Angeles tripped and fell . . . ." Plaintiffs further alleged that "[a]s a proximate . . . result" of the foregoing wrongful conduct and injury, "Josephine Angeles suffered a loss of consortium." In addition, they asserted two counts of products liability, alleging Edwin Angeles's injuries were caused by a defective air compressor and the filler caps on gasoline storage tanks. In December 2013, plaintiffs filed a request to dismiss case No. 751 with prejudice after the parties reached a settlement of the matter. The clerk entered the dismissal.
In case No. 259, plaintiffs initially sued several parties other than Coast, again seeking recovery for the August 2012 trip and fall based on causes of action for nuisance and premises liability. In addition, plaintiffs asserted causes of action for violations of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.; ADA) and the Unruh Civil Rights Act (Civ. Code, § 51; Unruh Act) based on Edwin Angeles's subsequent unsuccessful attempts to use the facilities at the gas station while confined to a wheelchair. Coast was later added as a defendant in place of a doe allegation.
The first amended complaint's premises liability count in case No. 259 alleged the defendants "owned and operated a gas station/business" on the property, but "improperly, unreasonably, unlawfully built, designed, maintained, set up, painted, constructed, striped, delineated, organized, inspected and monitored the property," such that it "caused and created a dangerous condition," resulting in Edwin Angeles's injuries when he "fell" while on the premises. The trial court sustained Coast's demurrer to the nuisance and premises liability causes of action without leave to amend. On the latter count, the court stated the amended complaint "attribute[d Angeles's] 8/22/12 physical injury to other defendants in their capacity as owners, operators, designers and the parties who constructed the facility and lot," "ha[d] not set forth any basis for [Coast's] liability, specifically why it would owe [Edwin Angeles] a duty," "nor . . . offered . . . that [they have] any such facts." Further, the court noted the present action asserted the same claim as in case No. 751, which had alleged the "land [was] owned, maintained and operated by other defendants." Subsequently, the court granted Coast's motion for summary judgment on the ADA and Unruh Act claims and entered a judgment for Coast.
Plaintiffs filed the present action against Coast and several other parties in December 2013. As noted, it stated causes of action for negligence, negligence per se, loss of consortium, and unfair business practices. All four counts are based on the August 2012 trip and fall accident. The complaint alleges the named defendants "possessed, owned and operated the business property where plaintiff [Edwin Angeles] was injured." "David Berri[,] . . . ordered by [the] authorities to reconfigure and correct the parking lot" on the premises, obtained plans and a building permit for the work, and had the plans approved by the local municipality. Hiring Coast "to do the work," Berri, "recklessly, negligently, improperly, unreasonably . . . ignored the architect['s] plans, and built a dangerous, defective configuration." He then "falsely reported to the city . . . that the construction had been completed in accordance with the approved plans." "As a proximate result of [the] negligent failure and refusal to follow the architect['s] plans and follow the [municipality's] requirements," and the "negligent, improper and unreasonable construction, building and remodeling, plaintiff [Edwin Angeles] fell and was injured."
Coast demurred to the complaint and supported it with a request for judicial notice of documents from the two prior lawsuits. Citing the dismissal with prejudice in case No. 751 and the order sustaining its demurrer to the premises liability cause of action without leave to amend in case No. 259, Coast argued res judicata and collateral estoppel barred the current action. The trial court agreed, sustained the demurrer without leave to amend, and entered a judgment dismissing the action against Coast.
Plaintiffs contend the trial court erred in sustaining Coast's demurrer and entering judgment in its favor. Concerning case No. 751, they claim Coast cannot rely on the dismissal of that action because Coast was not a party to the lawsuit. Further, since the dismissal resulted from a settlement, plaintiffs argue Coast cannot employ the doctrine of collateral estoppel to bar relitigation of the issues raised in case No. 751. As for case No. 259, plaintiffs argue both res judicata and collateral estoppel are inapplicable because there is no final judgment.
Taking case No. 259 first, it resulted in a judgment for Coast after the trial court sustained a demurrer to the premises liability and nuisance causes of action without leave to amend and granted Coast summary judgment on the ADA and Unruh Act counts. Because a dismissal entered after the granting of a summary judgment motion "is the result of a determination that there is no triable issue of fact and that plaintiff does not have a good cause of action upon the merits," the "judgment may operate as res judicata." (Martens v. Winder (1961) 191 Cal.App.2d 143, 151.) However, as noted that judgment is the subject of the companion appeal and consequently not final. "A judgment or order may be final in nature, but it does not become res judicata until it is final in the other sense of being free from direct attack. Hence, while an appeal is pending . . . the judgment is not conclusive." (7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 364, p. 986; People ex rel. Gow v. Mitchell Brothers' Santa Ana Theater (1980) 101 Cal.App.3d 296, 306.) Thus, the trial court could not rely on it to conclude this case was subject to dismissal based on either claim or issue preclusion.
Turning to case No. 751, we agree Coast cannot rely on either claim preclusion or issue preclusion to support the trial court's judgment in this appeal. Plaintiffs dismissed case No. 751 with prejudice after they reached a settlement with the defendants in that action. Contrary to plaintiffs' argument, "A dismissal with prejudice following a settlement constitutes a final judgment on the merits. 'A dismissal with prejudice is the modern name for a common law retraxit. [Citation.] . . . Dismissal with prejudice is determinative of the issues in the action and precludes the dismissing party from litigating those issues again.'" (Estate of Redfield (2011) 193 Cal.App.4th 1526, 1533; Boeken v. Phillip Morris USA, Inc., supra, 48 Cal.4th at p. 793 ["for purposes of applying the doctrine of res judicata, . . . a dismissal with prejudice is the equivalent of a final judgment on the merits, barring the entire cause of action"].) But Coast was not a party to case No. 751 and thus cannot rely on the dismissal to bar the current action.
Coast cites cases supporting its claim that collateral estoppel applies in this context. They involved situations where there had been a trial in the prior action that resulted in a finding preclusive of an issue raised in the subsequent lawsuit. Coast also contends David Berri, Coast's president "was a party to all three lawsuits." But there is no evidence in the record indicating Coast is the alter ego of Berri and furthermore, for purposes of collateral estoppel, "'Only the party against whom the doctrine is invoked must be bound by the prior proceeding.'" (DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at p. 825.) The parties sought to be bound by collateral estoppel in this case are plaintiffs.
We realize that in Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, the court held collateral estoppel applied to bar relitigation of issues raised in a related action dismissed with prejudice after a settlement between the parties. But we find it to be distinguishable because it involved litigation between the same parties under circumstances more akin to claim preclusion than issue preclusion.
Thus, the trial court erred in relying on the principles of res judicata and collateral estoppel to sustain Coast's demurrer without leave to amend. However, we note plaintiffs' victory in this appeal will bring them little solace. Upon the issuance of the remittitur in the companion appeal (case No. 259), there will be a final judgment upon which Coast could rely to justify dismissal on the basis of res judicata.
The judgment is reversed. The matter is remanded to the superior court for further proceedings. Appellants shall recover their costs on appeal.
RYLAARSDAM, ACTING P. J. WE CONCUR: MOORE, J. IKOLA, J.


STATE of Minnesota, Respondent, v. Charles Ray WILSON, Appellant.
*243 Susan J. Andrews, St. Paul, for appellant.
Hubert H. Humphrey, III, State Attorney General, St. Paul, Susan Gaertner, Ramsey County Attorney, St. Paul, for respondent.
Defendant appeals from his conviction for two counts of first-degree murder and two counts of felony murder in the killings of Elaine Furey and Alfred Stafki. Three issues are presented on this direct appeal: (1) Whether defendant was so mentally ill or deficient at the time of committing the murders that he did not know the nature of his act or that it was wrong; (2) whether the trial court erred in sentencing defendant to two consecutive life terms; and (3) whether the trial court erred when it formally adjudicated defendant guilty of all four counts of first-degree murder when there were only two victims.
We vacate the two felony murder convictions and otherwise affirm the trial court.
Defendant is an 11-year Navy veteran who was discharged from the service due to obesity on October 2, 1991. He came directly to St. Paul to look for work as a blood lab technician, the position he held while in the Navy. Unable to find work, he lived on his Navy termination pay and unemployment compensation, supplemented by occasional loans from family members.
On December 14, 1992, defendant left his apartment and drove to the vicinity of the Flower Hut, a florist shop located on Rice Street in St. Paul. At approximately 1:00 p.m., he parked his car on Winnipeg Street and, after selling some used books and visiting a pet store, entered the Flower Hut. He browsed in the Flower Hut for approximately five minutes, noting that the sole employee, Elaine Furey, was an "elderly female," and then went to a nearby furniture store.
After visiting the furniture store, defendant returned to his car, drove it around the block, and parked it in the alley behind the Flower Hut. Before reentering the Flower Hut, he took a 12" Buck hunting knife from his gym bag and hid the knife on his person. He entered the store through the rear entrance and Furey, surprised, asked him what he was doing. He took out his knife, forced her face down on the floor, and stabbed her repeatedly in the back, neck, and head. Defendant later claimed that before he stabbed her he heard thoughts, voices, and feelings that she did not deserve to live. According to the medical examiner's report, defendant stabbed Furey nineteen times, severing her cervical spinal cord. Defendant claimed that Furey's last words were "I forgive you." After stabbing Furey to death, defendant removed a cigarette case from her hand and went to the front counter, where he tried unsuccessfully to open the cash register.
At that point, Alfred Stafki, a 74-year-old delivery man, entered that store and asked, "Where is the gal [Furey]?" Defendant said he did not know. Stafki, apparently thinking she was out back, went to the cooler and began picking up boxes of flowers. Defendant walked towards the front door and, seeing only Stafki's van outside, came up behind Stafki and stabbed him. Defendant then forced him face down on the floor and, according to the medical examiner's report, stabbed him repeatedly in the back, neck, and head. Defendant claims that Stafki's last words were "Bless you."
Defendant then took the keys lying next to the cash register, locked the front door, and turned off the lights. However, before leaving the store, he took Stafki's wallet from the victim's left pocket and unplugged the cash register, carrying it to the rear of the store. He covered the cash register with a coat and a pair of pants he found in the store, and left through the back door, locking it on his way out. He put the cash register in the back of his car and promptly returned to his apartment.
He then took the cash register, wallet, and cigarette case into his apartment and counted the money taken: $10 to $15 from the cash register, $30 to $40 from Stafki's wallet, and $4 to $5 from Furey's cigarette case. He took apart the cash register, carefully *244 cleaning it and other items taken from the crime scene in bleach. He then hid the items in a box in the common area of the laundry room in his apartment building. He also washed the clothes he wore during the crime twice in bleach. He described himself in his police statement as being "totally distraught" and wanting to "wash away the guilt." He threw the clothes away in the trash dumpster located behind his apartment building.
Defendant read about the killings in the St. Paul Pioneer Press the following day. He claims to have spent the three days after the killing in terrible mental anguish, and contacted a minister to act as a mediator between him and the victims' families. On or about December 28, 1992, he sold his car, claiming that he no longer needed it because he planned to turn himself in in a few days.
On December 31, 1992, defendant went to the Veterans Administration Hospital in Minneapolis and confessed to the murders to a social worker, a psychiatrist, and two St. Paul police officers. He gave detailed statements concerning the murders and robbery to the police on that day and on the following day, January 1, 1993. On January 20, 1993, defendant was indicted on two counts of first-degree murder and two counts of felony murder. On March 29, 1993, after withdrawing his motion for a contested hearing on the issue of his competency to stand trial, he notified the state that he intended to rely on the defense of not guilty by reason of mental illness.
The facts of the guilt phase of the bifurcated trial were stipulated to and submitted to the trial court, which found defendant guilty of two counts of first-degree murder and two counts of felony murder for the deaths of Alfred Stafki and Elaine Furey. Defendant waived his right to a jury trial during the insanity phase. The defense presented expert testimony from one psychiatrist who concluded that defendant did not understand that killing Elaine Furey and Alfred Stafki was wrong when he did so and that, therefore, he was legally insane. The state offered expert testimony from two forensic psychiatrists and a neuropsychologist, all of whom concluded that defendant was not legally insane at the time he committed the murders. The court found that defendant should not be excused from criminal responsibility by reason of mental illness. We affirm.
In order to be excused from criminal responsibility, a defendant must demonstrate that "at the time of committing the alleged criminal act [she or he] was laboring under such a defect of reason, from [mental illness or deficiency] as not to know the nature of the act, or that it was wrong." Minn.Stat. § 611.026 (1994) (the M'Naghten rule). The defendant bears the burden of showing by a preponderance of the evidence that he was mentally ill at the time of the crime. DeMars v. State, 352 N.W.2d 13, 16 (Minn.1984). Both expert and lay testimony is admissible on this issue. State v. Schneider, 402 N.W.2d 779, 784 (Minn.1987). In determining whether a defendant has met his burden, the fact-finder may consider evidence that relates to cognition, volition, and capacity to control behavior. State v. Rawland, 294 Minn. 17, 46, 199 N.W.2d 774, 790 (1972).
This court has consistently held that the issue of legal mental illness is a question for the fact-finder to resolve. See State v. Brom, 463 N.W.2d 758, 764 (Minn.1990), cert. denied, 499 U.S. 940, 111 S. Ct. 1398, 113 L. Ed. 2d 453 (1991); Rawland, 294 Minn. at 45, 199 N.W.2d at 789. This court has also granted broad deference to the fact-finder in determining the appropriate weight to assign expert psychiatric testimony. See DeMars, 352 N.W.2d at 16.
Defendant claimed at trial that he demonstrated his legal mental illness by a preponderance of the evidence and that his convictions should therefore be reversed. The experts were divided on the question of the type and severity of mental illness. One of defendant's two expert witnesses testified that defendant was suffering from the major mental illness of paranoid schizophrenia, based on defendant's reported voices (auditory hallucinations) which compelled him to kill. By contrast, defendant's other expert witness, as well as the state's three expert witnesses, concluded that defendant suffered *245 some sort of personality disorder, but not paranoid schizophrenia, and that he showed no signs of delusions or hallucinations.
Even if all the other expert witnesses agreed that defendant was a paranoid schizophrenic, this alone would not have required a finding by the trial court that he was mentally ill. See DeMars, 352 N.W.2d at 13 (holding evidence sufficient to support finding of sanity where sole expert witness testified that defendant was paranoid schizophrenic and in an "active psychotic state" at the time of killing). Moreover, this court has only reversed one murder conviction where a defendant suffered from both paranoid schizophrenia and delusions. See Rawland, 294 Minn. at 46-47, 199 N.W.2d at 790. However, in Rawland the long history of mental illness was extreme, and all four expert witnesses diagnosed the defendant with paranoid schizophrenia. Id. at 41-42, 199 N.W.2d at 788. In this case, defendant has never been committed to a mental hospital, had never reported hearing voices until he turned himself in to the police, and only one expert witness of the five who testified at trial concluded that he was suffering from paranoid schizophrenia at the time of the murders.
In any event, the ultimate issue is whether defendant has proved by the preponderance of the evidence that because of mental illness or mental deficiency, he did not know the nature of his act or that it was wrong.
Only one of defendant's two expert witnesses concluded that he was unable to make moral judgments of right or wrong at the time of the murders. By contrast, the state's three expert witnesses all testified that defendant knew what he was doing and that it was wrong. Defendant argues that lay testimony concerning his post-arrest statements establishes that voices told him to "kill them," and these statements shed further light on his mental illness. For example, defendant's sister testified that he told her on the day after his arrest that a voice told him to commit the murders and that he still heard voices telling him to kill people. Defendant also told the police on the day he turned himself in that he heard thoughts or voices telling him to "kill them." Defendant views these statements as the truest expressions of his mental state at the time the crimes were committed, because they were made before he had consulted with his attorneys or various psychiatrists.
The state presented evidence that defendant had never reported hearing voices prior to the Flower Hut murders. Indeed, when examined by one of the state's expert witnesses, defendant vehemently denied hearing voices, and was angry that the press had reported that he had heard voices at the time of the murders. Also, two witnesses saw him in their retail shops just prior to the murders and testified that he appeared completely normal.
Finally, circumstances surrounding the crime may shed light on defendant's mental state at the time of the murders. See State v. Jackman, 396 N.W.2d 24, 31 (Minn.1986) (holding that circumstances surrounding a shooting supported jury's determination that defendant was not legally insane); DeMars, 352 N.W.2d at 16 (holding that defendant's calmness several hours after he killed his mother and attempts to cover up his actions were sufficient to support determination that defendant was not legally insane); State v. Hoskins, 292 Minn. 111, 137, 193 N.W.2d 802, 819 (1972) (holding that circumstances surrounding shooting and arson were factors for jury to consider in determining whether defendant was legally insane).
Defendant contends that his conduct at the scene of the crime and shortly thereafter was bizarre and demonstrated his mental illness. Defendant's trial counsel highlighted several of these factors at trial: that he robbed a busy flower shop during the height of the Christmas season; that he robbed a store with little cash on hand; that he killed Elaine Furey rather than tying her up or locking her in the cooler; and that he took the cash register back to the apartment rather than opening it in the store and taking the money right away.
In response, the state argues that the details surrounding the crime demonstrate that defendant knew the nature of his act and that it was wrong. He visited several businesses that day, choosing one that had a secluded rear entrance and a lone female *246 employee. Prior to his return to the Flower Hut, he moved his car to a secluded back alley behind the store and parked it there. After parking, he removed a large Buck knife from his bag, concealed it on his person, entered the store, saw Furey, and killed her by stabbing her 19 times. He then went to the cash register and tried to open it to take the money inside. He stabbed Stafki to death because he was the only remaining witness, and removed the wallet from his dead body.
Defendant then locked the doors to the Flower Hut and turned out the lights before leaving. He took the cash register and covered it with old clothes so it could not be seen. Once at his apartment, relying on his Navy medical training as a blood lab technician, he washed several items, including the knife, cash register, and Stafki's wallet, in bleach to remove the blood. Also, he later sold the car used during the murders because he knew from the papers that witnesses had seen a car like his leaving the back of the Flower Hut on the day of the murders.
The trial court concluded that defendant's stealth, concealment of the weapon, return to the store when victim Furey was alone, cold-blooded conversation with Mr. Stafki, theft of the cash-register, wallet and case, cleaning of the knife, and sale of the car, speak louder than the testimony of either the defense or prosecution experts. They are the actions of a criminal, not an insane person.
In this case, there was ample testimony to justify the trial court's rejection of the evidence that defendant's mental illness prevented him from understanding the nature of his act and that it was wrong.
Defendant next contends that the trial court abused its discretion in imposing two of his four life sentences consecutively. He argues that even if this court concludes that he does not meet the M'Naghten test, his disturbed mental state at the time of the murders made him "less morally culpable than defendants who have no such excuse." Penry v. Lynaugh, 492 U.S. 302, 322, 109 S. Ct. 2934, 2949, 106 L. Ed. 2d 256 (1989) (holding that mental retardation was a mitigating factor to be considered by jurors in capital murder case). He urges this court to consider his mental illness as a mitigating factor under Minnesota Sentencing Guidelines II. D.2.a.(3). That sentencing guideline provides as a mitigating factor that "(t)he offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed." Id.
The decision to impose concurrent or consecutive multiple life sentences for first-degree murder falls within the discretion of the trial court. Minn.Stat. § 609.15 (1994). When reviewing the imposition of consecutive life sentences, this court considers whether consecutive sentences "are commensurate with culpability and not an exaggeration of defendant's criminality." Bangert v. State, 282 N.W.2d 540, 547 (Minn.1979). In making this determination, this court is guided by past sentences received by other offenders. See State v. Ouk, 516 N.W.2d 180, 186 (Minn. 1994) (affirming imposition of consecutive life sentences where defendant methodically shot each of four victims at close range where death was foreseeable result).
This court has consistently affirmed the imposition of consecutive life sentences where a defendant was convicted of multiple victim homicides. See State v. Jobe, 486 N.W.2d 407, 421 (Minn.1992) (stabbing two people to death, one being a two-and-one-half year old child); Brom, 463 N.W.2d at 765 (axing four people to death); State v. Olson, 291 N.W.2d 203, 208 (Minn.1980) (methodically burning three people to death); Bangert, 282 N.W.2d at 546-47 (shooting and killing two victims in their sleep).
Defendant cites two cases of this court in support of his argument that his mental illness is a mitigating factor which the trial court should have considered at sentencing. See State v. Hennum, 441 N.W.2d 793 (Minn. 1989); State v. Wall, 343 N.W.2d 22 (Minn. 1984).
In Hennum, the defendant had suffered years of physical and mental marital abuse at the hands of her husband. We held that these mitigating factors justified a downward *247 departure from the sentencing guidelines. 441 N.W.2d at 801. But this court cautioned that Hennum was "one of those rare cases in which we are justified in interfering with the trial court's decision not to downwardly depart." Id. Hennum is inapposite here because defendant can hardly argue that he suffered years of physical and mental marital abuse at the hands of his victims.
Defendant's reliance on Wall is similarly misplaced. In Wall, this court justified a downward departure in sentencing because the defendant had suffered for over 21 years from paranoia and schizophrenia, and had been institutionalized several times during this period for mental illness. Id. at 23-24. By contrast, defendant has never been hospitalized for mental illness, and the exact nature of his mental impairment, if any, remains medically unclear.
This court has emphasized that only extreme mental impairment justifies a mitigation of sentence. State v. Lee, 491 N.W.2d 895, 902 (Minn.1992). In Lee, mitigation was held improper because the experts overwhelmingly concluded that the defendant's mental condition did not deprive him of control over his actions. Id. Although the defendant was depressed, angry, and impulsive, this court held that he "did not suffer from an extreme mental impairment that would warrant different treatment at sentencing." Id. (emphasis in original).
In this case, the experts with one exception overwhelmingly concluded that defendant's mental condition did not deprive him of control over his actions. While defendant may have been depressed and angry at the world after his forced discharge from the Navy and subsequent failure to adapt to civilian life, he has failed to present sufficient evidence that he suffered such an extreme impairment to warrant the imposition of concurrent life sentences.
The trial court concluded that two consecutive life terms were appropriate for the brutal slayings of Elaine Furey and Alfred Stafki. Defendant has presented no ground on which to conclude that these two consecutive life sentences exaggerate either his culpability or his criminality.
We hold that the trial court did not abuse its sentencing discretion and affirm the sentences imposed.
Both defendant and the State argue that the trial court erred when it formally adjudicated him guilty of all four counts of first-degree murder when there were only two victims. We agree.
Under Minn.Stat. § 609.04 (1994), "[a] defendant cannot legally be convicted of two counts of first-degree murder where both convictions were for the same offense on the basis of the same act involving the same victim." State v. Ture, 353 N.W.2d 502, 517 (Minn.1984). This court has consistently applied this principle. See State v. Knowlton, 383 N.W.2d 665, 670 (Minn.1986); State v. LaTourelle, 343 N.W.2d 277, 283-84 (Minn. 1984).
Accordingly, defendant is entitled to vacation of the two felony murder convictions that were formally adjudicated under Minn. Stat. § 609.185(3) (1994). However, defendant is entitled only to have the formal adjudications vacated. He is not entitled to vacation of the findings of guilt reflected in the trial court's order dated May 3, 1994. See LaTourelle, 343 N.W.2d at 284.


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Doležal, J., Lanta, V., Mudrák, O. & Lepš, J. 2018. Seasonality promotes grassland diversity: Interactions with mowing, fertilization and removal of dominant species. J Ecol. 2018;00:1–13.
de Bello, F., Janeček, Š., Lepš, J., Doležal, J., Macková, J., Lanta, V. & Klimešová, J. 2012. Different plant trait scaling in dry versus wet Central European meadows. Journal of Vegetation Science 23: 709–720.
Lanta V., Klimesova J., , Martincova K., Janecek S., Dolezal J., Rosenthal J., Leps J., Klimes L. 2011. A test of the explanatory power of plant functional traits on the individual and population levels. Perspectives in Plant Ecology, Evolution and Systematics. 13: 189– 199.
Klimešová, J., Janeček, Š., Bartůšková, A., Lanta, V., Doležal, J. 2010. How is Regeneration of Plants after Mowing Affected by Shoot Size in Two Species-Rich Meadows with Different Water Supply? Folia Geobotanica 45: 225-238.
Janeček, Š., Lanta, V., Klimešová, Doležal, J. 2010. Effect of abandonment and plant classification on carbohydrate reserves of meadow plants. Plant Biology 13: 243-251.
Mach, J., Lanta, V., Bastl, M. 2009. The effect of mining and vegetation scarification on the survival and establishment of Pinus rotundata Link. and P. sylvestris L. in contrasting peat bog habitats. - Polish Journal of Ecology 57: 239-250.
Lanta, V., Lepš, J. 2009. How does surrounding vegetation affect the course of succession: A five-year container experiment. Journal of Vegetation Science, 20: 686-694.
Mach, J., Lanta, V., Bastl, M. 2009. The effect of mining and vegetation scarification on the survival and establishment of Pinus rotundata Link. and P. sylvestris L. in contrasting peat bog habitats. Polish Journal of Ecology 57: 239-250.
Lantová, P., Lanta, V. 2009. Food selection in Microtus arvalis: the role of plant functional traits. Ecological Research 24: 831-838.
Lanta, V., Lepš, J. 2009. How does surrounding vegetation affect the course of succession: A five-year container experiment. Journal of Vegetation Science 20: 686-694.
Lanta,V., Doležal,J., Lantová,P., Kelíšek, J., Mudrák, O. 2009. Effects of pasture management and fertilizer regimes on botanical changes in species-rich mountain calcareous grassland in Central Europe. Grass and Forage Science 64: 443-453.
Lanta, V., Janeček, Š., Doležal, J. 2008. Radial growth and ring formation process in clonal plant Eriophorum angustifolium on post-mined peatland in the Sumava Mts., Czech Republic. Annales Botanici Fennici 45: 44-54.
Cremieux, L., Bischoff, A., Šmilauerová, M., Lawson, C.S., Mortimer, S.R., Doležal, J., Lanta, V., Edwards, A.R., Brook A.J., Tscheulin, T., Macel, M., Lepš, J., Müller-Schärer, H., Steinger, T. 2008. Potential contribution of natural enemies to patterns of local adaptation in plants. New Phytologist 180: 524-533.
Lanta, V., Lepš, J. 2008. Effect of plant species richness on invasibility of experimental plant communities. Plant Ecology 198: 253-263.
Macel, M., Lawson, C.S., Mortimer, S.R., Šmilauerová, M., Bischoff, A., Crémieux, L., Doležal, J., Edwards, A.R., Lanta, V., Bezemer, T.M., Van der Putten, W.H., Igual, J.M., Rodriguez-Barrueco, C., Müller-Schärer, H., Steinger, T. 2007. Climate vs. soil factors in local adaptation of two common plant species. Ecology 88: 424-433.
Lanta, V. Lepš, J. 2007. Effects of species and functional group richness on production in two fertility environments: an experiment with communities of perennial plants. Acta Oecologica - International Journal of Ecology 32: 93-103.
Morin, X., Ameglio, T., Ahas, R., Kurz-Besson, C., Lanta, V., Lebourgeois, F., Miglietta, F., Chuine, I. 2007. Variation in cold hardiness and carbohydrate concentration from dormancy induction to bud burst among provenances of three European oak species. Tree Physiology 27: 817-825.
Lanta, V. 2007. Effect of slug grazing on biomass production of a plant community during a short-term biodiversity experiment. Acta Oecologica - International Journal of Ecology 32: 145-151.
Lanta, V., Lepš, J. 2006. Effect of functional group richness and species richness in manipulated productivity-diversity studies: a glasshouse pot experiment. Acta Oecologica - International Journal of Ecology 29: 85-96.
Bischoff, A., Cremieux, L., Šmilauerová, M., Lawson, C.S., Mortimer, S.R., Doležal, J., Lanta, V., Edwards, A.R., Brook, A.J., Macel, M., Lepš, J., Steinger, T., Müller-Schärer, H. 2006. Detecting local adaptation in widespread grassland species - the importance of scale and local plant community. Journal of Ecology 94: 1130-1142.
Lanta, V., Mach, J., Holcová, V. 2006. The effect of dam construction on the restoration succession of spruce mires in the Giant Mountains (Czech Republic). Annales Botanici Fennici 43: 260-268.
Lanta, V., Hazuková, I. 2005. Growth response of downy birch (Betula pubescens) to moisture treatment at a cut-over peat bog in the Sumava Mts., Czech Republic. Annales Botanici Fennicí 42: 247-256.
Lanta, V., Havránek, P., Ondřej, V. 2003. Morphometry analysis and seed germination of Amaranthus cruentus, A. retroflexus and their hybrid (A. x turicensis). Plant Soil and Environment 49: 364-369.

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FAA has released its proposal to overhaul 14 CFR Part 23, the key regulations that govern the certification standards for most general aviation aircraft.
You can read the entire proposed rule here (PDF). It will be published in the Federal Register on March 14, 2016, when the docket will open for public comment. Search for Docket No.: FAA-2015-1621; Notice No. 16-01.
The proposed regulations contain much detail for engineers and manufacturers. The following discussion, however, focuses on the general intent of the new rules and some key changes of particular interest to pilots and owners.
The Executive Summary provides background on the need for an overhaul of the certification standards and the FAA’s general intent in rewriting Part 23.
Part 23 of Title 14 of the Code of Federal Regulations (14 CFR) prescribes airworthiness standards for issuance and amendment of type certificates for airplanes with a passenger-seating configuration of 19 or less and a maximum certificated takeoff weight of 19,000 pounds or less. Airplanes certificated under part 23 are typically used for recreation, training, personal travel, and limited commercial applications.
The current part 23 airworthiness standards are largely prescriptive, meaning that they describe detailed design requirements, and are based on airplane designs from the 1950’s and 1960’s. As a result of this prescriptive framework, the FAA often requires a design approval applicant seeking to incorporate new or innovative technology to provide additional documentation that typically results in the FAA’s issuance of special conditions, exemptions, or equivalent level of safety (ELOS) findings. The FAA recognizes that these additional procedures and requirements are costly to the FAA and industry, act as barriers to certification, and discourage innovation. Therefore, to encourage the installation of new safety-enhancing technology and streamline the certification process, the FAA proposes replacing the prescriptive requirements found in the current part 23 with performance-based standards.
The part 23 regulations should not need to prescribe basic physical principles, sound engineering judgment, and common sense.
This proposal to revise part 23 has two principal components: establishing a performance-based regulatory regime and adding new certification standards for loss of control (LOC) and icing. Where the FAA proposes to establish new certification requirements, these requirements would be adopted within the same performance-based framework proposed for part 23 as a whole.
The intent of this NPRM is to reduce regulatory barriers by establishing a system based on safety-focused performance requirements and FAA acceptance—as a means of compliance—of consensus standards. FAA-accepted consensus standards would add clarity to the certification process and streamline FAA involvement in the development of means of compliance. Additionally, adopting performance standards would significantly reduce the complexity of part 23. Furthermore, the introduction of airplane certification levels based on risk (i.e., number of passengers) and performance (i.e., speed) would advance the FAA’s effort to introduce risk-based decision-making and better align with the FAA’s safety continuum philosophy. Together, the FAA believes these changes would allow the FAA to provide appropriate oversight based on the safety continuum and would restore a simple and cost effective certification process based on proven engineering practices.
Like many pilots and aircraft owners, I am most interested in how the proposed rules would affect my ability to upgrade my airplane and replace worn or obsolete parts and systems. Others hope that when the rules are adopted, manufacturers will offer new aircraft that include the latest technology at prices substantially below today’s levels.
The proposal offers a few tantalizing suggestions about how the new rules would affect the development and cost of components.
The FAA also proposes to revise part 21 to simplify the approval process for low-risk articles. Specifically, the FAA proposes amending § 21.9 to allow FAA-approved production of replacement and modification articles using methods not listed in § 21.9(a). This proposed change is intended to reduce constraints on the use of non-required, low risk articles, such as carbon monoxide detectors and weather display systems.
This provision seems to align with recent FAA policy statements governing the installation of electronic attitude indicators and angle-of-attack displays.
Examples of such [low-risk] articles include carbon monoxide detectors, weather display systems, clocks, small hand-held fire extinguishers, and flashlights. In many cases, these articles are “off-the-shelf” products. It is frequently difficult for a person to install these articles on a type-certificated aircraft because the level of design and production details necessary for these articles to meet the provisions of current § 21.9, as expected for more critical articles, are frequently unavailable.
The FAA is therefore proposing…to provide applicants with an alternative method to obtain FAA approval to produce replacement and modification articles. This proposed change would allow a production approval applicant to submit production information for a specific article, without requiring the producer of the article to obtain approval of the article’s design or approval of its quality system. The FAA intends to use the flexibility provided by this proposal to streamline the approval process for non-required safety enhancing equipment and other articles that pose little or no risk to aircraft occupants and the public. The FAA requests comments on this proposal, and particularly is interested in comments regarding whether the proposed change would safely facilitate retrofit of low risk articles and whether there are alternative methods to address the perceived retrofit barrier.
But other than mentioning the items above, the proposal lacks specifics about what “non-required, low-risk articles” means. I’d like more information about supplemental instruments and displays, such as engine and system monitors, backup flight instruments, and navigation displays. Will it be easier and cheaper to install such equipment in aircraft that were certified under the current rules? Will the new rules or forthcoming policy statements and advisory circulars expand the definition and description of the items in this category?
Airplane Certification Level – A division used for the certification of airplanes that is associated directly with the number of passengers on the airplane. Airplane certification levels would be established to implement the agency’s concept of certificating airplanes using a process that recognizes a safety continuum.
Airplane Performance Level – Maximum airspeed divisions that are intended, along with airplane certification levels, to replace current weight and propulsion divisions used for the certification of airplanes. Current propulsion-based divisions assume that piston engine airplanes are slower than turbine-powered airplanes. Current weight-based divisions assume that heavier airplanes are more complex and would be more likely to be used in commercial passenger carriage than lighter airplanes. These assumptions are no longer valid. Airplane certification based on performance levels would apply regulatory standards appropriate to airplane’s performance and complexity.
Departure Resistant – For the purposes of this NPRM, departure resistant refers to stall characteristics that make it very difficult for the airplane to depart controlled flight. Most fatal stall or spin accidents start below 1000 feet above ground level and do not actually spin, but start a yawing and rolling maneuver to enter the spin called a post stall gyration. In these low-altitude accidents, the airplane typically hits the ground before completing one turn. Therefore, the important safety criterion is preventing the airplane from exhibiting stall characteristics that could result in a departure from controlled flight.
Entry-Level Airplane – A two or four-place airplane typically used for training, rental, and by flying clubs. Historically, most of these airplanes have four cylinder engines with less than 200 horsepower. These airplanes typically have fixed-gear and fixed-pitch propellers, but may also have retractable landing gear and constant speed propellers. Entry-level airplanes typically cannot be used to train pilots to meet the requirements to operate a complex aircraft, as that term is defined for airman certification purposes.
The differences between normal, utility, and acrobatic categories are currently very limited and primarily affect airframe structure requirements. Proposed part 23 would still allow a normal category airplane to be approved for aerobatics provided the airplane was certified to address the factors affecting safety for the defined limits for that kind of operation. Currently, the utility category provides airplanes additional margin for the more stringent inertial structural loads resulting from intended spins and the additional maneuvers stated in the requirements of the utility category in § 23.3(b). The FAA proposes that airplanes approved for spins be certificated to aerobatic standards. An airplane designed with traditional handling qualities and designed to allow spin training is more susceptible to inadvertent departure from controlled flight. The FAA believes that maintaining the current utility category for airplanes approved for spins and limited aerobatic maneuvers would negate the single largest safety gain expected from this rulemaking action—the significant reduction in inadvertent stall-related departures from controlled flight.
Proposed § 23.5 would apply certification in the normal category to airplanes with a passenger-seating configuration of 19 or less and a maximum certificated takeoff weight of 19,000 pounds or less. Proposed § 23.5 would also establish certification levels based on the passenger seating configuration and airplane performance levels based on speed…The FAA proposes replacing the current part 23 weight and propulsion divisions because they were based on assumptions that do not always fit the large diversity of airplane performance, complexity, technology, intended use, and seating capacity encompassed in today’s new airplane designs. Also, the current divisions may not be appropriate to address unforeseen designs of the future.
Level 1 – for airplanes with a maximum seating configuration of 0 to 1 passengers.
Level 2 – for airplanes with a maximum seating configuration of 2 to 6 passengers.
Level 3 – for airplanes with a maximum seating configuration of 7 to 9 passengers.
Level 4 – for airplanes with a maximum seating configuration of 10 to 19 passengers.
operating limit speed (VMO) ≤ 250 KCAS (or MMO ≤ 0.6).
High speed – for airplanes with a VC or VMO > 250 KCAS (or MMO > 0.6).
Proposed § 23.5(d) would identify a simple airplane as one with a certification level 1, a VC or VMO ≤ 250 KCAS (and MMO ≤ 0.6), and a VSO ≤ 45 KCAS, and approved only for VFR operations. The FAA proposes a simple airplane as equivalent to airplanes certificated under EASA’s current CS-VLA.
Note that the NPRM does not advocate elimination of the current LSA category.
The FAA considered allowing airplanes that meet the consensus standards applicable to the certification of special light-sport aircraft to be included in proposed part 23. However, the FAA decided that this would not be in the best interest of the GA community because it could result in the elimination of the special light-sport aircraft category. There are advantages in the certification of special light-sport aircraft, such as self-certification, that would not be available if the aircraft were type certificated under part 23. This proposal would instead enable a simpler path to part 23 certification for airplanes that meet the definition of a light-sport aircraft and wish to pursue a type of certificate for business reasons.
The proposed airworthiness standards would allow airplanes to be certificated at different airplane certification levels. For example, software integrity levels appropriate for a certification level 1 airplane may not be appropriate for a certification level 4 airplane. Additionally, the takeoff performance of an airplane might be evaluated differently for an airplane intended to be certificated at different airplane certification levels. An applicant seeking certification of a certification level 1 airplane with a takeoff distance of 200 feet, for example, would not need to establish the takeoff distance with the same degree of accuracy as would an applicant seeking certification of a certification level 4 high-speed airplane with a takeoff distance of 4,000 feet.
The FAA proposes moving away from the current stall characteristics and spin testing approach to address the largest cause of fatal accidents in small airplanes. Proposed § 23.215 in subpart B would omit the one turn/three second spin requirement for normal category airplanes, but it would increase the stall handling characteristics and stall warning requirements so the airplane would be substantially more resistant to stall-based departures than the current rules require…Accordingly, a new airplane would have to be approved for aerobatic loads as the normal category, even if an applicant only wanted to spin the airplane. Therefore, the FAA proposes to restrict certification of new airplanes for dual use, which can be done today using both the normal and utility categories. The FAA believes that if the airplane can spin for spin training, then the airplane can inadvertently stall and depart into a spin during normal operations. One of the FAA’s goals is to prevent inadvertent stalls, so allowing airplanes that are commonly used as rental airplanes to spin would defeat the goal. However, the FAA would consider accepting a dual-purpose airplane if the airplane manufacturer provided a system that could be changed mechanically or electronically from normal to aerobatic as a maintenance function rather than controlled by the pilot.
speed based stall warning requirements and requiring a clear and distinctive warning with sufficient warning margin for the pilot to prevent a stall. Historically, stall warning systems in part 23 airplanes have been simple, mechanical vanes that may or may not provide reasonable lead-time to prevent a stall. These systems also can provide false alerts when they are not needed, creating a nuisance. Furthermore, similar sounding warning horns that alert the pilot of other situations can result in the pilot either becoming used to the warning sounds or mistaking the stall warning for another warning such as the autopilot disconnect horn. The FAA believes removing the current prescriptive speed based stall warning from the rules would encourage the installation of better, more effective low speed awareness systems that may use angle of attack, a speed decay rate, or clear voice commands to alert the pilot.
The FAA proposal changes several key provisions governing the certification of multiengine aircraft, especially stall and Vmc standards.
Proposed § 23.200(c) would require all certification levels 1 and 2 multiengine airplanes that lack the performance to climb after a critical loss of thrust to stall before loss of directional control. This is a new requirement and it targets the high number of fatal accidents that occur after an engine failure in this class of airplane. Light multiengine airplanes that lack the performance to climb after the critical loss of thrust are especially susceptible to this type of accident. The Part 23 Reorganization ARC discussed and several members proposed that all multiengine airplanes have guaranteed climb performance after a critical loss of thrust.Ultimately, this approach was rejected, as it could impose a significant cost on the production of training airplanes. Furthermore, several members pointed out that the safety concern was not that the airplane could not climb on one engine, but rather that the airplane would depart controlled flight at low speeds above stall as a result of asymmetric thrust. The FAA agrees that loss of control caused by asymmetric thrust is the critical safety issue that should be addressed and the FAA believes that the proposed rule responds to this concern.
allowed to stall, the asymmetric thrust will still cause the airplane to lose directional control and likely depart controlled flight. The FAA agrees, but believes that pilots are typically more aware of their stall speeds than minimum control speed, especially during turns. Furthermore, these airplanes would be required to meet the proposed stall warning and stall characteristic requirements, which the FAA expects would provide additional safety margins beyond current requirements. Finally, the system that provides stall warning could also be designed to provide VMC warning.
Finally (for this discussion at least), the NPRM offers several common sense changes to certification requirements for takeoff and landing performance–and to the information and procedures that manufacturers provide to pilots.
landing distances to be executed consistently by pilots of average skill in atmospheric conditions expected to be encountered in service..The safety intent of the current rule is to ensure an average pilot can consistently get the same results as published in the Airplane Flight Manual (AFM). The FAA believes this requirement would ensure applicants either perform their performance tests in a conservative manner or add margins and procedures to the AFM performance section so an average pilot can achieve the same performance.
Garmin has published a useful document on the topic of the types of legs that appear in various instrument procedures.
For example, many departure procedures include fix-to-altitude legs.
GNS 400(W)/500(W) Series and GTN 6XX/7XX Series Instrument Procedure Leg Awareness (PDF) is a good summary of key types of legs that are used in DPs, STARs, and approaches, and it describes the features and limitations of the GNS and GTN units.
You can also find information on IAP legs in Chapter 6 of the Instrument Procedures Handbook.
FAA appears to have abandoned its plan to charge for online charts and data.
You can find the free digital products at the FAA website, here.
The FAA/ Aeronautical Information Services will implement updated IACC 8 Specifications to include all of the “Green Books” (the volumes that cover the lower 48 states, Puerto Rico and the U.S. Virgin Islands) with the March 31, 2016 editions. The major noticeable change will be the title change from Airport/Facility Directory to Chart Supplement U.S.
Airport/Facility Directory will still refer to the front section of the books where the airports, NAVAIDs, and weather devices are listed. Chart Supplement will refer to the entire volume.
Here’s an example of the new covers.