No.
93-0140
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
MANAGEMENT COMPUTER SERVICES, INC.,
A WISCONSIN CORPORATION,
Plaintiff-Appellant-Cross
Respondent,
v. ERRATA
SHEET
HAWKINS, ASH, BAPTIE & CO.,
A WISCONSIN PARTNERSHIP,
HAWKINS, ASH, BAPTIE, INC.,
A WISCONSIN CORPORATION,
DAVID D BAPTIE, JAMES O. ASH,
R. ROY CAMPBELL, ROBERT J. DALEY,
WALTER L. LEIFELD, LARRY E. VANGEN
AND JACK E. WHITE,
Defendants-Counter
Claimants-Respondents-Cross
Appellants,
MANAGEMENT COMPUTER SERVICES, INC.,
Counter
Defendant-Appellant.
Marilyn L. Graves Clerk of Court of
Appeals 231 East, State
Capitol Madison, WI 53702 |
Peg Carlson Chief Staff
Attorney 119 Martin Luther
King Blvd. Madison, WI 53703 |
Court of Appeals
District I 633 W. Wisconsin
Ave., #1400 Milwaukee, WI 53203-1918 |
Court of Appeals
District II 2727 N. Grandview
Blvd. Waukesha, WI 53188-1672 |
Court of Appeals
District III 740 Third Street Wausau, WI 54403-5784 |
Court of Appeals
District IV 119 Martin Luther
King Blvd. Madison, WI 53703 |
Jennifer Krapf Administrative
Assistant 119 Martin Luther
King Blvd. Madison, WI 53703 |
Hon. Robert W.
Radcliffe La Crosse Co.
Courthouse 400 North Fourth
Street La Crosse WI 54601 |
Ferrel A. Deml Trial Court Clerk La Crosse Co.
Courthouse 400 North Fourth
Street La Crosse, WI 54601 (L.C.#89-CV-49) |
Thomas D. Bell and Matthew A. Biegert Doar, Drill &
Skow Box 69, 103 N.
Knowles Ave. New Richmond, WI
54017-0069 |
Daniel W.
Hildebrand and Steven J. Kirschner DeWitt, Ross &
Stevens 2 East Mifflin, Ste
600 Madison, WI
53703-2599 |
|
PLEASE
TAKE NOTICE that the attached pages 24 through 32 of the majority opinion and
the dissent are to be substituted for pages 24 through 33 of the majority
opinion and the dissent in the above-captioned opinion which was released on
August 31, 1995. (NOTE: This does not include the concurrence which
preceded the dissent in the original opinion.)
Dated this
5th day of December, 2006.
Fahrenberg, 96 Wis.2d at 233, 291 N.W.2d at 526.[1]
The high
ratios of the punitive damage award to the compensatory award for tort damages
and to the potential criminal fine lead us to conclude that the initial award
of $1,750,000 is unnecessary to serve the purposes of deterrence or punishment. The punitive award is almost twenty-seven
times the compensatory award of $65,000.
The punitive award must bear "a reasonable relationship to the
award of compensatory damages." Tucker
v. Marcus, 142 Wis.2d 425, 447, 418 N.W.2d 818, 826 (1988). Even with "due regard for the
discretion of the jury in assessing punitive damages," id.
at 447-48, 418 N.W.2d at 826, the award
does not bear a reasonable relationship to MCS's compensatory damages. The potential criminal penalty for
willfully, knowingly and without authorization copying computer programs where
the damages are greater than $2,500 is a fine not exceeding $10,000 or
imprisonment not exceeding five years, or both. Sections 943.70(2)(a) and (3)(b)3, and 939.50(3)(d), Stats.
The punitive damages award is 175 times the maximum fine.
We also
conclude that the reduced punitive award of $50,000 is insufficient to punish
HABCO and to deter others in the future from similar wrongdoing. The compensatory award is in a sense a
starting place, since punitive damages equal to compensatory damages are
reasonable. Dalton v. Meister,
52 Wis.2d 173, 181, 188 N.W.2d 494, 498 (1971). The $50,000 award by the trial court does not even match the
compensatory award for conversion, $65,000.
The high degree of outrageous conduct and maliciousness exhibited by
HABCO is such that a punitive award merely equal to the compensatory award
fails to serve the purposes of punishment and deterrence.
We reach
that conclusion because the record shows how easy it is to steal computer
programs, once possession of the physical software is obtained. One contemplating such a theft and watching
the development of the law might well consider that the ease of theft, the low
risk of detection and the potential profit are worth the cost if punitive
damages merely approximate the amount of compensatory damages. We should dissuade software thieves from
reaching that conclusion. In this age
of computers and the many uses to which they are put in almost every
professional, commercial, industrial and governmental context, deterrence of
others similarly situated is even more important than punishing the
wrongdoer. We conclude that a punitive
award only approximating MCS's compensatory damages is far too little.
To
accomplish the dual purposes of punishment and deterrence, we conclude that, as
a matter of law, reasonable punitive damages in this case are $650,000.[2] This amount is approximately ten times the
amount of the compensatory damages award, a far more reasonable relationship in
this case, and sixty-five times the maximum fine for computer theft. It better satisfies those purposes in the
case before us than does the $50,000 award the trial court directed in its
remittitur order. Accordingly, MCS
should be given the option of accepting judgment for $650,000 in punitive
damages, or having a new trial limited to the issue of the amount of punitive
damages.
We direct
the trial court to modify the judgment by decreasing the amount of the punitive
damages award to MCS from $1,750,000 to $650,000, exclusive of costs, unless
within twenty-one days from the date of remittitur, MCS files with the clerk of
the circuit court a notice in writing that the plaintiff elects to have a new
trial limited to the issue of the amount of punitive damages. If such notice is timely filed, the modified
judgment for $650,000 punitive damages shall stand reversed and a new trial had
on punitive damages.[3]
5.
ISSUES ON RETRIAL
The
trial court stated that the retrial if MCS elected it, included the issue
whether HABCO's conduct was outrageous.
The court erred. No reason
exists to retry the issue whether HABCO's conduct was outrageous. Liability for punitive damages has been
fixed. To retry that issue would
deprive MCS of a liability finding. The
amount HABCO must pay because of that liability is the only remaining issue. Evidence relevant to the degree of that
outrageousness may be presented by both MCS and HABCO, but the jury should be
instructed that as a matter of law HABCO's conduct was outrageous. The only question for the jury is the amount
of punitive damages, and it should consider the degree of outrageousness in
fixing that amount.
The trial
court apparently interpreted Badger Bearings, Inc. v. Drives &
Bearings, Inc., 111 Wis.2d 659, 331 N.W.2d 847 (Ct. App. 1983), as
holding that a trial court has unlimited discretion in fixing the scope of a
new trial. That was not our holding.
In Badger
Bearings, we said that the trial court might grant a partial new trial
when the error is confined to an issue which is "entirely separable"
from the others. We concluded that
"compensatory and punitive damages are separable and that justice would
not be served by mandating a new trial on all damages questions as the
invariable alternative to acceptance of a changed amount of punitive
damages." Id. at
673-74, 331 N.W.2d at 855.
Consequently,
because the liability of the respondents for punitive damages will not be an
issue, and that issue is separable from the amount of damages, the only issue
at the second trial will be the amount of the punitive damages, and evidence
relevant to outrageousness will be admissible only on the degree of that
outrageousness.
6. INTEREST ON VERDICT
After MCS
rejected the $50,000 punitive award, the court scheduled the second trial for
June 23, 1992. On June 3, 1992, MCS
moved to a continuance, on grounds that counsel (who had been substituted for
trial counsel) was not prepared to try the case on that date. HABCO consented to a continuance, provided
that interest on the verdict was tolled through the date of the adjourned
trial. Counsel for MCS had no objection
to that and obtained the oral consent of MCS's president to the continuance. The court scheduled the trial for October
27, 1992, and tolled interest until that date.
MCS claims error.
MCS
asserts that it has a statutory right to the interest the trial court
tolled. Section 814.04(4), Stats., provides that if a judgment is
for the recovery of money, interest at the rate of twelve percent per year from
the time of the verdict until judgment is entered shall be computed by the
clerk and added to the costs. As MCS
points out, the statute has no pertinent exceptions.
However,
because counsel for MCS and an officer of MCS consented to a continuance and to
tolling interest on the verdict through the date of the adjourned trial, and
the trial court relied on that consent, MCS is judicially estopped from
claiming that it did not consent. See Coconate
v. Schwarz, 165 Wis.2d 226, 231, 477 N.W.2d 74, 75 (Ct. App. 1991)
(judicial estoppel precludes a party from asserting a position in a legal
proceeding that is inconsistent with a position previously taken). Having consented to the adjournment and to
the tolling of interest, it has waived the right to interest on the judgment.
7. WISCONSIN ORGANIZED CRIME
CONTROL ACT (WOCCA) CLAIM
MCS sought
damages under WOCCA, § 946.80-88, Stats. Section 946.87(4), Stats., provides that a person who is injured by reason of
any violation of § 946.83 or § 946.85 has a cause of action for twice
the actual damages sustained, attorney fees and costs reasonably incurred and,
when appropriate, punitive damages.
Section 946.83(3), Stats.,
provides that no person employed by, or associated with, any enterprise may
conduct or participate, directly or indirectly, in the enterprise through a
"pattern of racketeering activity."
Section 946.82(3), Stats.,
provides in pertinent part:
"Pattern of racketeering activity"
means engaging in at least 3 incidents of racketeering activity that have the
same or similar intents, results, accomplices, victims or methods of commission
or otherwise are interrelated by distinguishing characteristics, provided at least
one of the incidents occurred after April 27, 1982 and that the last of the
incidents occurred within 7 years after the first incident of racketeering
activity.
Section 946.82(4) defines "racketeering activity" as any
activity specified in 18 U.S.C. § 1961(1) in effect as of April 27, 1982,
or the attempt, conspiracy to commit, or commission of any of the felonies
specified in particular chapters and sections of the Wisconsin statutes,
including § 943.70, the computer-crimes statute. The wilful, knowing and unauthorized copying of data, computer
programs or supporting documentation is a crime. Section 943.70.
HABCO
moved for summary judgment dismissing MCS's WOCCA claim. The trial court granted the motion because
it concluded that any violation of § 943.70, Stats., that occurred before its effective date is not
racketeering activity under § 946.82(4), Stats.,
and HABCO's copying and use of software are not violations of
§ 943.70. For that reason, the
court concluded that MCS did not establish the requisite number of predicate
acts necessary to establish a "pattern of racketeering activity"
under § 946.82(3).
MCS
contends that each unauthorized copying of the stolen software after
§ 943.70, Stats., became
effective is a separate violation of § 943.70, and therefore each act of
unauthorized copying is a separate predicate act under WOCCA. MCS submitted an affidavit to the trial
court identifying sixty-three acts of copying which occurred after
§ 943.70 became effective.
The
Seventh Circuit rejected MCS's same contention on the same facts in Management
Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co., 883 F.2d 48
(7th Cir. 1989). In that case MCS
sought damages from HABCO under 18 U.S.C. § 1961-68, the Racketeer
Influenced and Corrupt Organizations Act (RICO). Violation of RICO requires a "pattern of racketeering
activity." 18 U.S.C.
§ 1962. A "pattern of racketeering
activity" requires at least two acts of racketeering activity within a
defined period. 18 U.S.C.
§ 1961(5). MCS argued that each time
HABCO made another use of the software it had copied, it committed another
predicate act under RICO. The Seventh
Circuit said,
If, as
MCS alleged, the contract software at issue was proprietary to MCS, then when
HABCO first copied that software it in essence stole the software. HABCO's subsequent use of the allegedly
stolen software cannot be characterized as subsequent thefts. When a thief steals $100, the law does not
hold him to a new theft each time he spends one of those dollars.... This is simply not a case that involves
long-term criminal conduct or activity that could, in common-sense, be called a
pattern of racketeering.
Management Computer Servs., Inc., 883 F.2d at 51.
Because
WOCCA is patterned after RICO, federal case law interpreting RICO is persuasive
authority in our interpretation of WOCCA.
State v. Evers, 163 Wis.2d 725, 732, 472 N.W.2d 828, 831
(Ct. App. 1991). We see no reason in
this case to apply WOCCA differently from the Seventh Circuit's application of
RICO to the same facts. We conclude
that the trial court properly granted summary judgment dismissing MCS's WOCCA
claim.
8.
CROSS-APPEAL
In their
cross-appeal, the defendants argue that the trial court should have dismissed
MCS's conversion claim because MCS failed to prove its damages, and the court
should have granted sanctions against MCS or its counsel.
As we have
already said, our disposition of MCS's appeal regarding its compensatory
damages for conversion disposes of the first issue in the cross-appeal. The second issue is based upon § 802.05
and 814.025, Stats., and results
from MCS's default of proof at the scheduled new trial on punitive
damages. Our disposition of MCS's
appeal regarding punitive damages disposes of the second issue.
By the
Court.--Judgment and
orders affirmed in part, reversed in part and remanded with directions.
Recommended
for publication in the official reports.
No. 93-0140(D)
DYKMAN,
J. (dissenting). Had the defendant
accountants at Hawkins, Ash, Baptie & Company (HABCO) been lawyers, they
would have been disbarred and prosecuted.
Stealing from clients is outrageous behavior, and deserves to be
substantially penalized. That is what
the jury decided when it awarded $1,750,000 in punitive damages to Management
Computer Services, Inc. (MCS). But a
majority of this court has reduced MCS's compensatory damages from $2,585,750
to $65,000 and has awarded punitive damages of only $650,000 because that
figure is exactly ten times the amount of the reduced compensatory award.
The
majority fails to understand MCS's theory of recovery and it also adopts a new
rule for determining whether a contract is indefinite which is wholly at
variance with past precedent. I cannot
accept the majority's analyses or conclusions, and therefore, I dissent.
BREACH OF CONTRACT
The basic problem with the majority's
analysis of the contract between HABCO and MCS is its conclusion that because
nothing in the wording of the contract expressly required HABCO to purchase
more than one computer from MCS, HABCO
did not breach the contract by buying additional computers from other
vendors. But MCS did not and does not
contend that the words of the contract required HABCO to purchase computers
from MCS. Robert A. Sierp, president of
MCS, testified: "[HABCO wasn't] required to buy computers from
MCS." But that is not the end of
the analysis because the contract between HABCO and MCS dramatically limited
the use that HABCO could make of the software MCS sold to HABCO. Only if HABCO purchased additional computers
from MCS could HABCO use MCS's software on those computers.
The
contract reads:
This
software is proprietary to MCS and shall be furnished upon completion under
license to HABCO for use on the HABCO computer installation described in this
Agreement. MCS shall provide the
non-applications software described above at no extra charge for each
additional computer system purchased by HABCO through MCS.
Sierp
testified:
[T]he
objective was if [HABCO was] going to use that software, that contract
software, that [it] would buy a computer from us. If [it] wanted to go off and do some tax reporting, [it] could
buy any computer [it] want[ed] and we weren't—we would not have been involved
in that transaction.
Thus, it
is apparent from the parties' contract and from Sierp's testimony that although
the contract between MCS and HABCO did not require HABCO to buy MCS computers,
if HABCO bought computers from another supplier, it could not use MCS software
on those computers. What the majority
fails to recognize is that without software, the computers bought from another
vendor would be useless to develop turnkey computer systems for public housing
authorities. The software furnished by
MCS was highly specialized software developed at great cost and it was very
valuable to a company in the business of licensing computer systems to public
housing authorities.
The jury
was asked whether HABCO breached its contract with MCS in three respects. It answered "yes" to all three
special verdict questions. The majority
dislikes the questions asked, and proposes an alternative. But that is not the test appellate courts
use when faced with an argument that a jury question was misleading. In Topp v. Continental Ins. Co.,
83 Wis.2d 780, 785, 266 N.W.2d 397, 401 (1978), the court said:
This
court has frequently stated that the form of the special verdict rests in the
discretion of the trial court, and the court's chosen form will not be rejected
unless the inquiry, taken with the applicable instruction, does not fairly
present the material issues of fact to the jury for determination.
Instead of using this deferential review of the verdict used by the
trial court, the majority, without considering the court's instructions,
reviews the verdict de novo, and decides that it would have used
alternative language. I cannot join in
this sub silentio overruling of Topp. It will only cause confusion for future
cases where the proper standard of review for special verdict questions is at
issue.
HABCO,
MCS, the trial court and the jury all understood MCS's theory of its case. I recognize that the jury questions could
have been better worded, but when the jury was first asked whether HABCO
breached the parties' contract by failing to purchase computers from MCS, the
jury answered "yes" knowing that the contract was not worded: "HABCO agrees to purchase all computers
from MCS." The jury responded
affirmatively because it knew that the only practical way HABCO could have
legally used MCS software for public housing authorities was to buy MCS
computers. The jury also knew that
HABCO avoided the increased cost of purchasing MCS computers by purchasing
computers from another vendor and using MCS software on them in breach of the
parties' contract. Because purchasing
computers from MCS was the only practical way HABCO could avoid breaching the
contract, question one of the verdict settled the real issue over which the
parties contended. In any event, I
cannot conclude that asking question one was an erroneous exercise of
discretion, nor that the question failed to fairly present what everyone knew
were the material issues of fact in the case.
The same
is true of the second breach question. The jury was asked whether HABCO
breached the parties' contract by failing to pay twenty-five percent of the
program value to MCS for the use of the contract software. The majority's
conclusion, that because HABCO did not purchase additional computer systems
from MCS, HABCO did not breach the contract, is an overly simplistic answer and
does not address MCS's theory of the case.
The breach is HABCO's use of MCS software on non-MCS computers, not
HABCO's failure to buy MCS computers.
Had HABCO done what it agreed to do, it would have had to purchase MCS
computers. It then would have used
jointly owned software on those computers and paid twenty-five percent of the
program value to MCS. MCS's damages for
HABCO's breach of its agreement not to use MCS software on non-MCS computers
equalled the twenty-five percent it would have received had HABCO not breached
the contract. I conclude that the
verdict form for the second question was not an erroneous exercise of discretion
and that it fairly presented the material issues of fact in the case.
The final
breach question is the only one the majority directly addresses, but it does so
in a way which ignores our standard of review of a jury verdict. The jury was asked whether HABCO breached
the parties' contract by failing to compensate MCS for the use of the
proprietary software. Had HABCO not
breached the contract by using MCS software on non-MCS computers, HABCO would
have been required by the contract to pay twenty-five percent of the program
value because it would have then used the software purchased through MCS. That was exactly what the jury was
asked. Though the jury verdict might
have been better drafted, or drafted in a manner which the majority would
prefer, that is not what this court reviews.
Our review is deferential, not de novo. See Topp, 83 Wis.2d at 785, 266 N.W.2d at
401. I conclude that the trial court
did not erroneously exercise its discretion in wording the third question of
the breach of contract verdict as it did.
And, given the focus of the trial, I have no doubt but that the form of
the verdict fairly presented the material issues of fact to the jury.
There is a
problem, however, with this final breach question. Once the jury found the first breach and awarded damages, the
facts show that there would be either no breach of the contract by HABCO's
failure to compensate MCS for its use of the proprietary software or no damages
for the breach. The contract provided
that if HABCO bought additional computers from MCS, MCS would provide HABCO
with proprietary software at no extra charge.
The jury's affirmative response to the first breach of contract question
put MCS in the financial position in which it would have been had HABCO bought
additional computers from MCS. MCS
would then have provided the proprietary software to HABCO at no cost to
HABCO. I would change the answer to
breach question number three to "no."
INDEFINITE CONTRACT
The majority concludes that the parties'
contract is too indefinite to be enforced.
Yet, it never quotes the part of the contract which it believes is
indefinite. Apparently, the majority
has adopted a new rule of contract law to the effect that a contract is
indefinite if it does not mean what one of the parties contends that it
means. I am unaware of such a
rule. We look to the contract itself to
determine whether it is indefinite and therefore unenforceable. Arthur Corbin notes:
A court cannot enforce a contract unless it can
determine what it is. It is not enough
that the parties think that they have made a contract. They must have expressed their intentions in
a manner that is capable of being understood.
It is not even enough that they have actually agreed, if their
expressions, when interpreted in the light of accompanying factors and
circumstances, are not such that the court can determine what the terms of that
agreement are.
1 Arthur Linton Corbin, Corbin
on Contracts § 4.1 (1993).
This is consistent with the Restatement
(Second) of Contracts § 33(2) (1981), which provides: "The terms of a contract are reasonably
certain if they provide a basis for determining the existence of a breach and
for giving an appropriate remedy."
The majority holds: "When
the court subsequently ruled that the contract was insufficiently definite to
be enforced, as MCS would have it enforced, MCS was left with the quoted
question and award based on a theory of the case which no longer
applied." Maj. op. at 9 (emphasis
added). This new holding looks to the pleadings
and the positions taken at trial to determine whether a contract is
indefinite. The majority cites no
authority for this dramatic change in contract law, and I find none. I believe that the proper test for
indefiniteness is to look at the language of the contract to determine whether
the contract is too indefinite to be enforced.[4] There is no question but that the contract
is sufficiently definite. Even the
majority notes: "Since it is
undisputed that HABCO used MCS software with computers it bought from vendors
other than MCS, it is arguable that HABCO breached the contract when it used
MCS software on non-MCS computers."
Maj. op. at 9 (emphasis added).
Once we
conclude that a contract was formed, and that HABCO breached it, facts that
even the majority grudgingly admits, the only question becomes the extent of
MCS's damages. Because there is
evidence to support the damages the jury awarded for HABCO's failure to
purchase computer equipment from MCS, and for HABCO'S failure to pay
twenty-five percent of the program value for the use of the contract software,
I would reinstate that part of the jury's verdict.
PUNITIVE
DAMAGES
The
only rationale that I can discern for the majority's reduction of the
$1,750,000 punitive damage award is that the figure it chooses, $650,000, is
ten times the amount of the reduced compensatory damages. But why is ten, aside from being a round
number with metric significance, the proper multiplier? Would not eleven or nine be just as
appropriate? And if "[t]here is no
arbitrary rule that punitive damages cannot equal 15 times the compensatory
damages," Malco, Inc. v. Midwest Aluminum Sales, Inc., 14
Wis.2d 57, 66, 109 N.W.2d 516, 521 (1961), why did not the majority award
punitive damages of $975,000?
The use of
a multiplier as the sole means to determine punitive damages has been
specifically rejected. In Fahrenberg
v. Tengel, 96 Wis.2d 211, 235-36, 291 N.W.2d 516, 527 (1980), the court
said:
Although
the amount of compensatory damages and criminal penalties have some relevancy
to the amount of punitive damages and may be factors in determining the
reasonableness of the punitive damages award, we have not been willing in the
past, and are not willing in this case, to adopt a mathematical formula for
awarding punitive damages. In punitive
damages, as in damages for pain and suffering, the law furnishes no mechanical
legal rule for their measurement. The
amount rests initially in the discretion of the jury. We are reluctant to set aside an award because it is large or we
would have awarded less. As we have
said in cases involving compensatory damages, "`[A]ll that the court can
do is to see that the jury approximates a sane estimate, or, as it is sometimes
said, see that the results attained do not shock the judicial conscience.'"
(Emphasis added; quoted source omitted.)
The jury
saw the witnesses and heard what HABCO did.
I cannot conclude that a $1,750,000 punitive damage award against
accountants who have stolen their client's software was an insane estimate by
the jury. We give juries discretion in
their award of punitive damages. I
agree that the award is large and I would have awarded less. But that is not the test. We must look at whether "the jury
approximates a sane estimate," Id.
at 236, 291 N.W.2d at 527, and, using that test, I would affirm the jury's
punitive damage award. The message sent
by the majority in a world where computers have provided extensive profits to
those who can market the technology, is that crime pays, and pays well. The decision to risk $650,000 by stealing
software can be an easy one where the profits can reach millions of
dollars. Perhaps a $1,750,000 punitive
damage award is not much better than a $650,000 award, but it is a start. It
sends the message that courts will not reverse large punitive damage awards
where the conduct is criminal and egregious.
It allows for the possibility that even larger awards will be sustained
when the conduct merits it. And that
possibility will, perhaps, give potential computer thieves pause when they
contemplate obtaining desired software by theft.
For these
reasons, I respectfully dissent.
[1] The record contains no evidence of the wealth of any respondent. See Meke v. Nicol, 56 Wis.2d 654, 658, 203 N.W.2d 129, 132 (1973) (evidence of an individual defendant's wealth is inadmissible when punitive damages are sought from multiple defendants).
[2] "The Powers rule ... allows both the trial court and the appellate court to determine a reasonable award and to grant the plaintiff the option of accepting that sum or having a new trial. This court has exercised this kind of control in punitive damage cases." Wangen v. Ford Motor Co., 97 Wis.2d 260, 307, 294 N.W.2d 437, 461 (1980) (citations omitted).