288 F.3d 584
SOUTHERN BLASTING SERVICES, INCORPORATED; Piedmont Drilling & Blasting, Incorporated, Plaintiffs-Appellants,v.WILKES COUNTY, NORTH CAROLINA, a body politic; Kevin D. Bounds, Wilkes County Fire Marshal, Defendants-Appellees.
No. 01-2098.
United States Court of Appeals, Fourth Circuit.
Argued February 27, 2002.
Decided April 29, 2002.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED ARGUED: Douglas George Eisele, Eisele, Ashburn, Greene & Chapman, P.A., Statesville, North Carolina, for Plaintiffs-Appellants. Anthony Ray Triplett, Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., North Wilkesboro, North Carolina, for Defendants-Appellees.
Before WILKINSON, Chief Judge, and WILLIAMS and GREGORY, Circuit Judges.
Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge WILLIAMS and Judge GREGORY joined.
OPINION
WILKINSON, Chief Judge.

1
Plaintiffs Southern Blasting Services, Inc. and Piedmont Drilling & Blasting, Inc. seek to conduct explosives businesses and blasting operations in Wilkes County, North Carolina using Hazardous Materials Transportation Act ("HMTA") Class 1 materials. Plaintiffs challenge two County ordinances, one which requires permitting of explosives operations and one which regulates the storage and use of explosives in the County. Plaintiffs claim that the ordinances are preempted by federal law, are invalid under North Carolina law, and violate their due process rights. The district court upheld the validity of both ordinances, granting summary judgment for Wilkes County and the County Fire Marshal. We affirm.

I.

2
During the summer of 1997, plaintiffs Southern Blasting Services, Inc. and Piedmont Drilling & Blasting, Inc. set up operations in Wilkes County, North Carolina. Southern Blasting purchases HMTA Class 1 explosives and has them hauled to its magazine site in Wilkes County, where they are stored until sold to industrial customers. Southern Blasting has also expressed an interest in manufacturing explosives at its site, but it has not yet done so. Piedmont Drilling conducts blasting operations by drilling holes in rock formations, loading the holes with explosives, and detonating the explosives to loosen or remove the rock.

3
Shortly after plaintiffs established their explosives businesses in the County, citizens began to voice objections to their operations. On September 16, 1997, approximately 150 County residents attended the meeting of the Wilkes County Board of Commissioners to express their views. And the Board was presented with a petition containing 878 signatures opposing explosives operations in the County. Due to safety concerns and this public outcry, the Board voted unanimously to have a committee draft ordinances that would establish both a permit system and a comprehensive set of regulations for the operation of explosives businesses.

4
On June 16, 1998, after several months of work by the appointed committee, the Board unanimously adopted the Wilkes County Explosive Materials Permitting Ordinance. The Permitting Ordinance required applicants to obtain a permit from the County Fire Marshal prior to possessing, storing, selling, transporting, or otherwise dealing in explosive materials in Wilkes County. In addition, the Permitting Ordinance provided that only businesses operating in the County on the day the ordinance was adopted could apply for a permit. And the ordinance gave ultimate decision-making authority to the Fire Marshal. See Permitting Ordinance art. VI. However, the application process included a public hearing and consultation with the Federal Bureau of Alcohol, Tobacco & Firearms ("BATF"), the County Planning Department, the County Health Department, the County Building Inspections Department, and the Board. See Permitting Ordinance art. VI(E). Further, the Permitting Ordinance specifically excluded ammunition or firearms dealers licensed under federal or state law from its requirements. See Permitting Ordinance art. V, VI(A).

5
On August 4, 1998, the Board also unanimously enacted the Wilkes County Explosive Materials Ordinance (the "Regulatory Ordinance"), which became effective on December 8, 1998 after the necessary approval was obtained from the North Carolina Building Code Council. This ordinance addressed the storage and use of explosives in the County. Specifically, the Regulatory Ordinance restricted the manufacture of explosives, required installation of security measures at storage locations, set limits on the quantity of stored explosives, and established penalties for violations. See Regulatory Ordinance art. VI, VII. Like the Permitting Ordinance, the Regulatory Ordinance excluded the possession, transportation, storage, and use of small arms ammunition from its scope. See Regulatory Ordinance art. V.1

6
Plaintiffs did not apply for a permit under the Permitting Ordinance. Instead, plaintiffs initiated this action, alleging that the Permitting and Regulatory Ordinances were preempted by federal law, were invalid under North Carolina law, and violated their due process rights. Plaintiffs sought injunctive relief to prevent the enforcement of the ordinances. The district court concluded that both the Permitting and Regulatory Ordinances were valid and granted summary judgment to the County and the Fire Marshal. See S. Blasting Servs., Inc. v. Wilkes County, 162 F.Supp.2d 455 (W.D.N.C.2001).

7
The district court held that plaintiffs' preemption claim failed because Congress did not intend to "occupy the field" of explosives regulation and plaintiffs had failed to show a "direct and positive conflict" between the ordinances and any federal law. Id. at 462-63. The court also concluded that the ordinances and their enabling statute, N.C. Gen.Stat. § 153A-128, were valid under Article II, § 24 of the North Carolina Constitution, which prevents the North Carolina General Assembly from promulgating certain acts of less than statewide application. The court found that § 153A-128 granted authority to regulate explosive substances uniformly to all North Carolina counties in conformance with Article II, § 24. Id. at 458-59.

8
The district court next rejected plaintiffs' substantive due process claim, finding that the ordinances were a valid exercise of the County's police power and were rationally related to a legitimate governmental purpose. Id. at 459-60. Finally, because plaintiffs had not even applied for a permit, the district court concluded that they lacked standing to assert a procedural due process challenge to the ordinances. Id. at 460-61. Plaintiffs appeal.

II.
A.

9
We begin by considering plaintiffs' preemption claim. It is well-established that the Supremacy Clause "invalidates state laws that `interfere with, or are contrary to,' federal law." Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) (quoting Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L.Ed. 23 (1824)). The Supreme Court has repeatedly held that "state laws can be preempted by federal regulations as well as by federal statutes" and that "for the purposes of the Supremacy Clause, the constitutionality of local ordinances is analyzed in the same way as that of statewide laws." Hillsborough, 471 U.S. at 713, 105 S.Ct. 2371 (citing cases).

10
Yet "[c]onsideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law." Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). This presumption is strongest when Congress legislates "in a field which the States have traditionally occupied." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (internal quotation omitted). States have long possessed primary responsibility in our federal system for protecting the health and safety of their citizens. Id. at 475, 485, 116 S.Ct. 2240. Indeed, courts "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Id. at 485, 116 S.Ct. 2240 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)).

11
Nevertheless, there are several ways in which federal law may supersede state or local law. First, Congress may expressly preempt such laws. See, e.g., Hillsborough, 471 U.S. at 713, 105 S.Ct. 2371. Second, in the absence of express preemptive language, Congress' intent to preempt state law may be implied when "federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (internal quotations omitted). Finally, preemption will also be implied if state or local law "actually conflicts with federal law." Such a conflict occurs "when compliance with both federal and state regulations is a physical impossibility, or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hillsborough, 471 U.S. at 713, 105 S.Ct. 2371 (internal quotations omitted).

B.

12
Plaintiffs claim that federal law regulating the manufacture, distribution, and storage of explosive materials preempts the County's Permitting and Regulatory Ordinances. They maintain that the County ordinances are superseded because of the exhaustive nature of federal law in the explosives field, and because various provisions of the ordinances are in direct and positive conflict with federal regulations.

13
The federal law governing explosive materials is codified at 18 U.S.C. §§ 841-848 (2000). Section 848, entitled "Effect on State law," provides:

14
No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.

15
This statutory language makes clear that Congress did not intend to occupy the field of licensing and regulating explosives operations. In preemption analysis, "[t]he purpose of Congress is the ultimate touchstone." Retail Clerks Int'l Ass'n, Local 1625 v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963). Here Congress has stated in the clearest of terms that it was not preempting local efforts to regulate the explosives industry, absent a direct and positive conflict with the federal standards. In fact, as the district court recognized, " § 848 is designed to limit the preemptive scope" of the federal law and expressly "disclaims any intent to occupy the field." S. Blasting, 162 F.Supp.2d at 462.2

16
Contrary to plaintiffs' assertions, the comprehensiveness of federal law in the explosives area does not override this clear expression of congressional intent in § 848. The Supreme Court has noted that contemporary issues often require "intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the problem." Hillsborough, 471 U.S. at 717, 105 S.Ct. 2371 (internal quotation omitted). This is especially true in a case such as this one where Wilkes County acted pursuant to its traditional police powers. Indeed, the Court "will seldom infer, solely from the comprehensiveness of federal regulations, an intent to preempt in its entirety a field related to health and safety." Id. at 718, 105 S.Ct. 2371.

17
Congress' desire not to preempt state and local efforts to regulate explosive materials is unsurprising given the fact that conditions in states and localities vary greatly. For example, local governments may determine that the use or storage of explosives is particularly dangerous due to population density or the proximity of explosives to schools, nursing homes, or residential areas. Congress did not intend to preempt democratic responses to such local conditions and concerns. Instead, by allowing state and federal regulations to coexist, Congress was fostering the values of federalism and recognizing the "historic primacy of state regulation of matters of health and safety." Medtronic, 518 U.S. at 485, 116 S.Ct. 2240. Plaintiffs on the other hand, ask this court to cut the democratic process short by declaring the County ordinances void and unenforceable.

18
We are similarly unpersuaded by plaintiffs' argument that the County ordinances are invalid because they are in "direct and positive conflict" with the federal law governing explosive materials. The "direct and positive conflict" language in 18 U.S.C. § 848 simply restates the principle that state law is superseded in cases of an actual conflict with federal law such that "compliance with both federal and state regulations is a physical impossibility." Hillsborough, 471 U.S. at 713, 105 S.Ct. 2371 (internal quotation omitted). Indeed, § 848 explains that in order for a direct and positive conflict to exist, the state and federal laws must be such that they "cannot be reconciled or consistently stand together." 18 U.S.C. § 848.

19
To support their argument that a direct conflict is present in this case, plaintiffs point to numerous provisions of the County Permitting and Regulatory Ordinances that impose more stringent requirements than those contained in the federal regulations. For example, unlike the federal regulations, the Permitting Ordinance requires a permit applicant to submit a detailed history of all past and present operations, detailed written information on the applicant's financial ability, and an estimated schedule of all activities and operations the applicant plans to conduct. See Permitting Ordinance art. VI(C).

20
However, a state or locality's imposition of additional requirements above a federal minimum is unlikely to create a direct and positive conflict with federal law. Rather, a conflict is more likely to occur when a state or locality provides that compliance with a federal standard is not mandated, or when compliance with federal law actually results in a violation of local law. Here, even though the County ordinances are strict, they do not create a situation where the ordinances and the federal law cannot be reconciled or consistently stand together.

21
The BATF, which is authorized to issue regulations to administer the federal explosives laws, has stated that a federal license to import, manufacture, or deal in explosive materials does not exempt a licensee from state and local requirements. Indeed, a federal license "confers no right or privilege to conduct business or operations, including storage, contrary to State or other law." 27 C.F.R. § 55.62 (2001). And a federal licensee "is not ... immune from punishment for conducting an explosive materials business or operations in violation of the provisions of any State or other law." Id. Further, BATF has explained that "[w]here a situation arises that State or local requirements are more stringent than the Federal, the more stringent requirement must be followed." ATF — Explosives Law and Regulations, ATF P 5400.7 at 57 (June 1990).

22
Moreover, BATF actually examined the County's Permitting and Regulatory Ordinances and stated in a letter that "while the ordinances contain some provisions which are more stringent than those contained in [18 U.S.C. §§ 841-848], it does not appear that compliance with the Wilkes County Ordinances would result in a violation of [§§ 841-848]." To the contrary, compliance with the more stringent requirements of the County ordinances actually helps to assure compliance with the federal requirements.

23
We also reject plaintiffs' argument that the ordinances cannot be reconciled with federal law because the Regulatory Ordinance prevents licensed companies from expanding, and because the Permitting Ordinance prevents new companies from establishing explosives operations in the County. See Regulatory Ordinance art. VI(C)(7); Permitting Ordinance art. VI(J). Nothing in the federal explosives statute or regulations prevents localities from regulating or even limiting the number of explosives operations in their midst. The fact that federal law regulates the operations of explosives companies does not imply that Congress intended to stop a locality from going further to reduce their risks. This is especially true in light of the strong anti-preemption language in § 848 explaining that no provision of the federal explosives law "shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter."

III.

24
We next turn to plaintiffs' claim that the County ordinances and their enabling statute are invalid under the North Carolina Constitution. The Permitting and Regulatory Ordinances were enacted pursuant to N.C. Gen.Stat. § 153A-128 (1999), which states that "[a] county may by ordinance regulate, restrict, or prohibit the sale, possession, storage, use or conveyance of any explosive, corrosive, inflammable, or radioactive substance." Plaintiffs contend that both § 153A-128 and the County ordinances are invalid under Article II, § 24 of the North Carolina Constitution because they affect trade or business but do not have statewide application.

25
We note at the outset that a federal court should be exceedingly cautious about invalidating a state statute or a local ordinance under a state constitution. Like most states, North Carolina "recognizes a presumption in favor of the constitutionality of a [state] statute." Gardner v. City of Reidsville, 269 N.C. 581, 153 S.E.2d 139, 150 (N.C.1967). In order for an act of the General Assembly to be declared unconstitutional under the North Carolina Constitution, "it must be plainly and clearly the case. If there is any reasonable doubt, it will be resolved in favor of the lawful exercise of [the General Assembly's] powers." E.g., Town of Emerald Isle v. State, 320 N.C. 640, 360 S.E.2d 756, 761 (N.C.1987) (internal quotation omitted).

26
Article II, § 24 of the North Carolina Constitution prohibits the General Assembly from promulgating local acts relating to various specified topics. Article II, § 24 states:

27
(1) Prohibited subjects. The General Assembly shall not enact any local, private, or special act or resolution:

28
(a) Relating to health, sanitation, and the abatement of nuisances; ...

29
(j) Regulating labor, trade, mining, or manufacturing; ...

30
(4) General laws. The General Assembly may enact general laws regulating the matters set out in this Section.

31
The North Carolina Supreme Court has defined a local act as a law "applying to fewer than all counties, in which the affected counties do not rationally differ from the excepted counties in relation to the purpose of the act." Smith v. County of Mecklenburg, 280 N.C. 497, 187 S.E.2d 67, 73 (N.C.1972).

32
We agree with the district court that "§ 153A-128 is a general law that comports perfectly with Article II, § 24." S. Blasting, 162 F.Supp.2d at 459. Section 153A-128 does not apply to fewer than all the counties in North Carolina. Instead, it uniformly confers authority on all 100 North Carolina counties to regulate or prohibit explosive materials. Therefore, § 153A-128 is valid under the North Carolina Constitution.

33
Furthermore, the Wilkes County Permitting and Regulatory Ordinances do not violate the North Carolina Constitution. As the district court noted, "Article II, § 24 does not mention or address the regulatory authority of counties or other local governments." Id. And Article II, § 24 in no way prohibits the General Assembly from empowering counties to act in the specified fields. In fact, the primary purposes of Article II, § 24 were to "free the General Assembly" from the "petty detail" of enacting local legislation, to enable the General Assembly "to devote more time and attention to general legislation of statewide interest and concern," and thereby to "strengthen local self-government" by delegating local matters to local authorities. High Point Surplus Co. v. Pleasants, 264 N.C. 650, 142 S.E.2d 697, 702 (N.C.1965).3 Article II, § 24 was meant to promote just the type of interaction that has occurred here between the General Assembly and a local government, which is concededly more familiar with local conditions.

IV.

34
Finally, we address plaintiffs' due process claim. Plaintiffs contend that the County violated their due process rights by granting the County Fire Marshal broad discretionary authority under the ordinances, especially the Permitting Ordinance. It is not entirely clear, however, whether plaintiffs are presenting this argument as a substantive or procedural due process challenge. Therefore, like the district court, we consider each in turn and conclude that plaintiffs' claim fails under both.

A.

35
In order to state a substantive due process claim, plaintiffs must demonstrate: "(1) that they had property or a property interest; (2) that the state deprived them of this property or property interest; and (3) that the state's action falls so far beyond the outer limits of legitimate governmental action that no process could cure the deficiency." Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 827 (4th Cir.1995). Substantive due process protections "run only to state action so arbitrary and irrational, so unjustified by any circumstance or governmental interest, as to be literally incapable of avoidance by any pre-deprivation procedural protections or of adequate rectification by any post deprivation state remedies." Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir.1991).

36
Even if plaintiffs could prove that they had a property interest and that the County somehow deprived them of that interest by making it more difficult to operate an explosives business, plaintiffs' substantive due process claim fails under the third prong of the Sylvia test. The County's actions obviously did not fall beyond the outer limits of legitimate governmental action. Instead, the County's actions were rationally related to a legitimate governmental purpose. Therefore, plaintiffs "cannot demonstrate that the County's actions were arbitrary or irrational as required by Sylvia and Rucker." Tri-County Paving, Inc. v. Ashe County, 281 F.3d 430, 440 (4th Cir.2002).

37
First, we need look no further than the text of the Permitting and Regulatory Ordinances to discover the County's legitimate governmental interest. The County's purpose in enacting the ordinances was "protecting the public and safeguarding the health and welfare of the citizens of the County." Permitting Ordinance art. III; Regulatory Ordinance art. III. The Board found "that the location, possession, storage, use, handling, manufacture, sale, and transportation of certain explosive materials, together with the danger of fire, injury, and theft in connection therewith, constitute[d] a potential hazard to the health, safety, and welfare of the citizens of the County unless carefully regulated, controlled, and monitored." Permitting Ordinance art. III; Regulatory Ordinance art. III. As the district court noted, "[p]laintiffs' suggestion that their explosives operations pose no threat to the public is absurd" — plaintiffs deal with HMTA Class 1 explosive materials. S. Blasting, 162 F.Supp.2d at 460. We agree with that court that "it would be a truly strange decision for a court to find that blasting operations and the storage of inherently hazardous materials do not present matters of legitimate concern." Id. Protecting the "health, safety, and well-being of the County's citizens are basic governmental functions. And this court will not substitute its policy judgments as to the exercise of the police power for those of a democratically elected local government." Tri-County, 281 F.3d at 439.

38
Second, the Permitting and Regulatory Ordinances are rationally related to the aforementioned goals of minimizing the risks of theft, fire, and explosion associated with blasting operations. The ordinances "tighten security at explosives storage facilities, limit the pre-mixing and storage of volatile materials, and require information on the size, location, and duration of any blasting operations." S. Blasting, 162 F.Supp.2d at 460. Further, the County could reasonably have believed that the Fire Marshal, given his experience with the hazards of fires and explosions, was in the best position to decide whether to grant a permit under the Permitting Ordinance, and was in the best position to enforce the Regulatory Ordinance. Therefore, the County's grant of authority to the Fire Marshal to review permit applications and implement the ordinances was also rationally related to the County's legitimate interest in protecting the health and safety of its residents.

B.

39
Plaintiffs' complaint regarding the Fire Marshal's discretionary powers under the ordinances also fails as a procedural due process claim. First, plaintiffs lack standing to bring such a challenge. In order to have standing, plaintiffs must show that: (1) they have suffered an injury in fact; (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that the injury is likely to be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). And in order to satisfy the injury-in-fact requirement, plaintiffs must demonstrate that they "suffer[ed] an invasion of a legally protected interest which is concrete and particularized, as well as actual or imminent." Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 154 (4th Cir.2000) (en banc) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Here, plaintiffs have never even applied for a permit, much less been denied one. Therefore, they cannot demonstrate an actual injury from the County granting the Fire Marshal decision-making authority under the Permitting Ordinance. See Oriental Health Spa v. City of Fort Wayne, 864 F.2d 486, 488-89 (7th Cir. 1988) (finding that a plaintiff lacked standing to bring a procedural due process challenge to a local licensing scheme where plaintiff had never been threatened with revocation or suspension of its current license).

40
Second, even if plaintiffs had standing, their procedural due process claim fails because the Permitting Ordinance does not grant unfettered discretion to the Fire Marshal. Instead, the ordinance provides ample process by establishing a set of procedures to ensure that permits cannot be denied or revoked randomly. For example, a permit applicant must submit a large volume of information, which is designed to assist the Fire Marshal in determining whether or not the proposed operation "will be conducted in a safe and responsible manner" in accordance with federal and state law and County ordinances. See Permitting Ordinance art. VI(C). Further, before a permit can be granted or denied, the Fire Marshal must consult with the BATF, the County Planning Department, the County Health Department, the County Building Inspections Department, and the County Board of Commissioners. See Permitting Ordinance art. VI(B), (E). In addition, there must be time set aside at a regularly scheduled Board meeting "for the purpose of hearing public comment, if any, on the operations and activities which the applicant proposes to conduct." Permitting Ordinance art. VI(E). Moreover, if the Fire Marshal ultimately determines that a permit must be denied, he must provide the applicant with a written explanation of the reasons for his decision. Id. And a permit applicant "may appeal [a] denial or revocation to the [North Carolina] District or Superior Courts" where an arbitrary or capricious decision by the Fire Marshal could be reversed. Permitting Ordinance art. VI(K). This procedure is quite sufficient to satisfy the requirements of procedural due process.

V.

41
In sum, we find no impediment in federal or state law to Wilkes County's regulation of explosives operations. For the foregoing reasons, we affirm the judgment of the district court.

42

AFFIRMED.

Notes:

1
 While the Building Code Council approval of the Regulatory Ordinance was pending, the County Fire Marshal issued a directive limiting the hours of operation for vehicles transporting explosive materials on two County roads. The directive was based on the Fire Marshal's concern for traffic on these roads during schoolbus hours and the proximity of plaintiffs' businesses to an elementary school. The district court found that the directive was preempted by the HMTA and was therefore void and unenforceableS. Blasting Servs., Inc. v. Wilkes County, 162 F.Supp.2d 455, 463-65 (W.D.N.C.2001). The County has not appealed the validity of the directive, so we need not address this issue.

2
 Plaintiffs' contention that the County ordinances are invalid because § 848 only refers to "state" laws is without merit. As the district court concluded, there is "no reason to believe Congress intended to treat local and State regulations differently" under § 848S. Blasting, 162 F.Supp.2d at 462. And for preemption purposes, "the constitutionality of local ordinances is analyzed in the same way as that of statewide laws." Hillsborough, 471 U.S. at 713, 105 S.Ct. 2371.

3
 High Point discussed former Article II, § 29 of the North Carolina Constitution. However, the North Carolina Supreme Court has stated that decisions "which refer directly to former Article II, § 29, apply equally to present Article II, § 24," which is identical in all material respects. Smith, 187 S.E.2d at 73.


[Cite as Pitzer v. Blue Ash, 2019-Ohio-2889.]

                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO

KALI PITZER,                                    :   APPEAL NO. C-180033
                                                    TRIAL NO. A-1700361
COLTON MACK,                                    :

and                                             :     O P I N I O N.

MARIAH MACK,                                    :

        Plaintiffs-Appellants,                  :

  vs.                                           :

CITY OF BLUE ASH,                               :

and                                             :

LOUIS ERNSTES,                                  :

      Defendants-Appellees.                     :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 17, 2019

Laursen & Lucas and Eric W. Laursen, for Plaintiffs-Appellants,

Dinsmore & Shohl LLP, Gary Becker, Bryan E. Pacheco and Kelly E. Pitcher, for
Defendants-Appellees.
                         OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

       {¶1}   This case involves an unfortunate accident in which a vehicle collided with a

fire truck en route to an emergency. But it raises the familiar issue of statutory sovereign

immunity, which operates to shield first responders from tort suits unless their conduct

rises to a particularly egregious level. Construing the evidence in a light most favorable to

the plaintiffs, we see no evidence that the firemen involved in this accident engaged in

inappropriate conduct, and certainly nothing on the magnitude of recklessness, willfulness,

or wantonness, which are needed to circumvent the immunity barrier. Therefore, the trial

court properly granted summary judgment, and we affirm its judgment.

                                              I.

       {¶2}   In March 2016, firefighters for the City of Blue Ash, Lieutenant Louis Ernstes

and Michael Helms, departed the firehouse to respond to an emergency alarm. Their route

to the emergency would take them through the intersection of Kenwood Road and Glendale-

Milford/Pfeiffer Road, traveling southbound. Lieutenant Ernstes was driving the firetruck

with Mr. Helms acting as his copilot. Meanwhile, plaintiff-appellant Kali Pitzer and her two

children were also headed towards the same intersection, traveling eastbound on Glendale-

Milford/Pfeiffer Road.

       {¶3}   As Lieutenant Ernstes approached the intersection, the fire engine’s recorded

video footage reveals that he sounded the vehicle’s horn several times as he guided it around

stopped cars and into the opposing traffic lane in preparation to cross the intersection. The

firetruck at this time slowed to a near stop (the speed registering at no more than three

m.p.h.), and Lieutenant Ernstes waited for several cars traveling west (i.e., towards Ms.

Pitzer) to clear the intersection. He looked both to his left and right before proceeding into

the intersection and again peered to his right (the direction from which Ms. Pitzer was

                                              2
                         OHIO FIRST DISTRICT COURT OF APPEALS

traveling) as he moved forward. As the firetruck approached the southwest corner of the

intersection, Ms. Pitzer’s vehicle entered the intersection and collided with the front-right

area of the firetruck.

       {¶4}    Ms. Pitzer suffered injuries as a result of this accident, including extensive

memory loss. Indeed, she has no memory of the accident. Seeking compensation, she

subsequently filed suit in January 2017 against Lieutenant Ernstes and the city of Blue Ash,

as defendants. Recognizing that the city of Blue Ash and Lieutenant Ernstes were shielded

from civil liability under R.C. 2744.03, in her complaint Ms. Pitzer attempted to allege

conduct that would overcome the statutory tort immunity.           The city of Blue Ash and

Lieutenant Ernstes ultimately moved for summary judgment on immunity grounds. The

trial court, relying on the footage from the firetruck, which the parties had jointly stipulated

to, granted summary judgment in their favor and simultaneously denied a motion to amend

the complaint filed by Ms. Pitzer. Ms. Pitzer now appeals from this ruling. Presenting two

assignments of error, she contends that the trial court improperly granted summary

judgment and denied the motion to amend her complaint to add Mr. Helms as a party.

                                                   II.

                                                   A.

       {¶5}    We of course review summary judgment determinations de novo, construing

the evidence in a light most favorable to Ms. Pitzer. Comer v. Risko, 106 Ohio St.3d 185,

2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. And the heart of this case involves the question of

the appropriate reach of statutory sovereign immunity, and whether Ms. Pitzer can satisfy

any of the statutory exceptions in order to enable her claims to reach trial.

       {¶6}    We begin with R.C. 2744.02(B)(1)(b), which provides that political

subdivisions, such as the city of Blue Ash, can be held liable for injuries and other losses

                                               3
                       OHIO FIRST DISTRICT COURT OF APPEALS

caused by negligent operation of vehicles by their employees within the scope of the

employees’ employment. This provision, however, is subject to certain exceptions, which

create a complete defense when:

       A member of a municipal corporation fire department or any other

       firefighting agency was operating a motor vehicle while engaged in duty at a

       fire, proceeding toward a place where a fire is in progress or is believed to be

       in progress, or answering any other emergency alarm and the operation of the

       vehicle did not constitute willful or wanton misconduct[.]

R.C. 2744.02(B)(1)(b).    Moreover, to vitiate immunity in regard to Lieutenant Ernstes

individually, he must either have acted outside of the scope of his employment, or acted

with malicious purpose, in bad faith, or in a wanton or reckless manner.                  R.C.

2744.03(A)(6).

       Most of the points in this case are undisputed—the city of Blue Ash is a political

subdivision, Lieutenant Ernstes and Mr. Helms were responding to an “emergency alarm,”

and Lieutenant Ernstes was acting within the scope of his employment (without malicious

purpose or in bad faith). That thus crystalizes our inquiry to determining whether the

conduct at hand constitutes willful or wanton misconduct (for Blue Ash), or wanton or

recklessness operation of the fire engine (for Lieutenant Ernstes).

       {¶7}   As an initial matter, we note that Ms. Pitzer failed to plead in her complaint

the correct standard of “willful or wanton misconduct” for the purpose of overcoming the

city of Blue Ash’s immunity defense pursuant to R.C. 2744.02(B)(1)(b). Instead, she framed

the conduct as “negligent” or “reckless,” either of which would let Blue Ash off the hook

under this statute. Her failure to plead correctly, or subsequently amend the complaint to

reflect this standard, barred Ms. Pitzer from raising these issues on summary judgment.

                                              4
                       OHIO FIRST DISTRICT COURT OF APPEALS

Williams v. Stefka, 8th Dist. Cuyahoga No. 96145, 2012-Ohio-353, ¶ 16 (party failed to

allege willful or wanton conduct in its complaint or move to amend, and “under such

circumstances a party is precluded from arguing genuine issues of material fact as to willful

and wanton misconduct on summary judgment.”). Neither of the standards (negligent or

reckless) can pierce the sovereign-immunity defense provided by the statute.

       {¶8}    Even if Ms. Pitzer pleaded willful or wanton misconduct, given the evidence in

the record, summary judgment for the city of Blue Ash would have been proper. The record

reveals no evidence of Lieutenant Ernstes engaging in any type of willful or wanton

misconduct. A finding of wanton misconduct requires “the failure to exercise any care

toward those to whom a duty of care is owed in circumstances in which there is a great

probability that harm will result.” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-

5711, 938 N.E.2d 266, ¶ 33 (differentiating between wanton conduct and reckless conduct).

Reviewing the firetruck’s video recording, it simply cannot be said that Lieutenant Ernstes

failed to exercise any care in regard to other drivers on the road, including Ms. Pitzer.

Much to the contrary, the video reveals Lieutenant Ernstes engaging the fire engine’s sirens

and horn as he steers it through the intersection, he slows to a near stop, allows several cars

to safely pass through the intersection, looks both ways, and only then accelerates slowly

through the intersection. These measures, at a minimum, demonstrate that Lieutenant

Ernstes was in fact exercising care towards other drivers. The video speaks for itself, and

Ms. Pitzer has not tendered any contrary evidence that would generate a material dispute of

fact on this score.

       {¶9}    Since the video reveals that Lieutenant Ernstes’s conduct was not wanton

(and Ms. Pitzer has not adduced other evidence of wanton conduct), Ms. Pitzer is limited to

arguing that his conduct rose to the level of recklessness to establish personal liability.

                                              5
                       OHIO FIRST DISTRICT COURT OF APPEALS

Recklessness, however, requires a “conscious disregard of, or indifference to a known or

obvious risk of harm to another that is unreasonable under the circumstances and is

substantially greater than negligent conduct.” Anderson at ¶ 34. Again though, the video in

this case corroborates Lieutenant Ernstes’s and a third-party witness’s statements that

Lieutenant Ernstes had the fire engine’s lights activated, utilized the horn to alert drivers of

the vehicle’s approach, slowed to a near stop before proceeding through the intersection,

looked to his right twice (in Ms. Pitzer’s direction) before proceeding, and moved through

the intersection at a low speed. Viewing the facts in the light most favorable to Ms. Pitzer,

there are simply no facts to indicate that Lieutenant Ernstes failed to recognize the inherent

risk in crossing the intersection, or to take precautions reasonable under the circumstances

to avoid a collision. See Mashburn v. Dutcher, 2012-Ohio-6283, 14 N.E.3d 383, ¶ 61 (5th

Dist.) (firefighter’s actions en route to emergency were not reckless when “undertaken with

the good-faith belief that he was not placing * * * vehicles and the occupants in any

unnecessary risk of physical harm[.]”).

       {¶10} Without independent evidence substantiating recklessness, Ms. Pitzer relies

heavily on Lieutenant Ernstes’s alleged violation of the city of Blue Ash Fire Department’s

administrative policies to satisfy reckless misconduct. Ms. Pitzer points to policy language

which states that “[w]hen a driver * * * must use the center or oncoming traffic lanes to

approach a controlled intersection * * * the driver must come to a complete stop before

proceeding[.]” She argues that this language and his alleged failure to stop completely

before entering the intersection generate a material dispute of fact as to his conduct. But

while evidence of violations of departmental policies can be relevant to determining the

culpability of a course of conduct, they do not constitute per se reckless conduct. See

Anderson at ¶ 37 (“it is well established that the violation of a * * * departmental policy

                                               6
                        OHIO FIRST DISTRICT COURT OF APPEALS

enacted for the safety of the public is not per se willful, wanton, or reckless conduct”). Here,

Lieutenant Ernstes was going no more than three m.p.h., and may well have come to a

complete stop (the video is inconclusive on this point). Even if he ran afoul of the policy, it

cannot be said that such a technical violation contributed to the accident at hand. And this

is not a close call—Lieutenant Ernstes appeared to be exercising appropriate care and

caution as he steered the fire truck through the intersection. As Ms. Pitzer could not adduce

facts tending to show recklessness, the trial court properly granted summary judgment.

                                                   B.

       {¶11} Ms. Pitzer also challenges the denial of her motion to amend her complaint to

add Mr. Helms as a defendant. A party may amend its pleadings within 28 days after

serving it, and in all other cases only with the other party’s consent or by leave of the court.

Civ.R. 15(A). The court is to freely give leave “when justice so requires.” Id. In ruling on a

motion to amend, however, the court should consider whether the moving party made a

showing of support for the new matter to be pleaded, the timeliness, and the prejudice to

the nonmoving party. Danopulos v. Am. Trading II, L.L.C., 2016-Ohio-5014, 69 N.E.3d 157,

¶ 24 (1st Dist.).   Finally, we review denial of a motion to amend under an abuse-of-

discretion standard. Id. at ¶ 26.

       {¶12} In denying the motion to amend the complaint, the trial court underscored

the untimely and futile nature of the proposed amendment. Whether a motion to amend is

deemed untimely is determined by the effect of the grant of such a motion on the parties

and the proceedings. See, e.g., Schaeffer v. Nationwide Mut. Ins. Co., 2d Dist. Greene No.

2001 CA 131, 2002-Ohio-4811, ¶ 36 (motion to amend was untimely when it was filed one

month prior to trial and would have caused proceedings to effectively return to the

beginning); Frankel v. Toledo Pub. Schools, 6th Dist. Lucas No. L-14-1027, 2015-Ohio-1571,

                                               7
                       OHIO FIRST DISTRICT COURT OF APPEALS

¶ 19 (amended complaint untimely when filed three months after first amended complaint

and one week after opposing party filed motion for summary judgment).

       {¶13} Initially, we note an approximately 11-month gap between the filing of Ms.

Pitzer’s complaint and the motion to amend. The motion to amend also followed two

months after the summary-judgment motion.             Notwithstanding this timing, Ms. Pitzer

offers no explanation for this delay other than that in reviewing the evidence, which had

been available for months, she came to realize that Mr. Helms had a duty to assist

Lieutenant Ernstes. Under these circumstances, with the proceedings well underway, a

summary-judgment motion pending, and no legitimate excuse for the delay, we cannot fault

the trial court’s timeliness determination.        Even if we could look past the timeliness

problems, as should be apparent from our analysis above, the amendment could not survive

a futility review. As an employee of the city of Blue Ash’s fire department, Mr. Helms is also

subject to the same tort immunity as Lieutenant Ernstes. The proposed amended complaint

does not contain anything beyond conclusory allegations that would overcome the

immunity bar in light of the video and other record evidence before us. Based on the

foregoing, the trial court properly denied Ms. Pitzer’s motion to amend the complaint.

                                              III.

       {¶14} As we have recognized before, sovereign immunity is often a harsh pill to

swallow for victims of harm occasioned by their interaction with the government. Bernard

v. City of Cincinnati, 1st Dist. Hamilton No. C-180155, 2019-Ohio-1517, ¶ 35 (noting that

sovereign immunity often leaves parties to manage with “extraordinary damage”). While we

sympathize with Ms. Pitzer’s very real injuries, the legislature has spoken directly on these

circumstances and elected to provide immunity protection for first responders.            We

therefore overrule her two assignments of error and affirm the judgment of the trial court.

                                               8
                       OHIO FIRST DISTRICT COURT OF APPEALS

                                                                          Judgment affirmed.

ZAYAS, P. J., and CROUSE, J., concur.

Please note:

       The court has recorded its entry on the date of the release of this opinion

                                              9


779 F.2d 59
*Fitzgeraldv.Heckler
85-3474
United States Court of Appeals,Eleventh Circuit.
12/2/85

1
M.D.Fla.

AFFIRMED

2
---------------

* Fed.R.App.P. 34(a);  11th Cir.R. 23.


                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2419-18T1

JEAN-PIERRE THERRIEN,

          Plaintiff-Appellant,

v.

LYNDA BLOW,

     Defendant-Respondent.
_________________________

                    Submitted February 3, 2020 – Decided March 4, 2020

                    Before Judges Messano and Vernoia.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. L-2936-17.

                    Stathis & Leonardis, attorneys for appellant (Gregory
                    A. Stathis, of counsel; Randi Susan Greenberg, on the
                    brief).

                    Law Offices of Nancy L. Callegher, attorneys for
                    respondent (Jessica Dawn Adams, on the brief).

PER CURIAM
        Plaintiff, Jean-Pierre Therrien, a Metuchen police officer, was on duty

when he observed a disabled motor vehicle with its hazard lights activated

blocking the intersection of Grove Avenue and Route 27. 1 Plaintiff approached

the vehicle to provide assistance and spoke with the driver, defendant Lynda

Blow.     Upon learning defendant's vehicle "had run out of gas[,]" plaintiff

instructed her to remain in the car and place it in neutral so he could push it

closer to the side of the busy roadway. Defendant obeyed plaintiff's instructions

and steered the car toward the side of the road as plaintiff pushed from behind.

The car struck the curb and, sensing the vehicle was no longer moving, plaintiff

continued to push with more strength. He felt pain in his left foot and ankle; the

result of a ruptured Achilles tendon.

        Plaintiff filed a complaint claiming defendant breached the duty to safely

operate her vehicle by not providing sufficient fuel and "allowing [it] to become

disabled." Plaintiff further alleged that defendant operated the car in negligent

fashion by steering it into the curb. Defendant answered the complaint and

subsequently moved for summary judgment.

1
   There is a factual dispute whether the car was blocking the intersection.
However, for purposes of this opinion, we give plaintiff, as the non-moving
party, the benefit of all favorable evidence and inferences in the motion record.
R. 4:46-2(c).
                                                                          A-2419-18T1
                                         2
      After oral argument, the judge granted defendant's motion. In his terse

oral opinion, the judge recited the elements necessary to establish a cause of

action for common law negligence. He concluded: "[E]ven if the [c]ourt did

find that for purposes of this motion running out of gas and steering into a curb

constitutes negligence, I do not believe there is proximate cause between the

injury and negligence[.]" The judge entered an order dismissing plaintiff's

complaint and this appeal followed.

      On appeal, plaintiff argues that the judge misapplied the standards

governing summary judgment motions and "impermissibly substituted" his own

judgment in place of the "trier of fact" when he found that "neither defendant's

failure to fuel her car" nor steering it into the curb "was a proximate cause" of

plaintiff's injuries. Having considered this argument in light of the record and

applicable legal standards, we affirm.

      We review the grant of summary judgment de novo, applying the same

standard used by the trial court, which

            mandates that summary judgment be granted "if the
            pleadings, depositions, answers to interrogatories and
            admissions on file, together with the affidavits, if any,
            show that there is no genuine issue as to any material
            fact challenged and that the moving party is entitled to
            a judgment or order as a matter of law."

                                                                         A-2419-18T1
                                          3
            [Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
            Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R.
            4:46-2(c)).]

      We must determine "whether the competent evidential materials

presented, when viewed in the light most favorable to the non-moving party, are

sufficient to permit a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J.

395, 406 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,

540 (1995)). We owe no deference to the trial court's legal analysis. The

Palisades at Fort Lee Condo. Ass'n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 427,

442 (2017) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)).

      "To sustain a cause of action for negligence, a plaintiff must establish four

elements: '(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and

(4) actual damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo

v. Cty. of Essex, 196 N.J. 569, 584 (2008)). Plaintiff seemingly asserts that

permitting one's car to run out of gas is per se negligence, but he provi des no

authority for that proposition nor could we find any. We acknowledge that t he

driver of a vehicle that becomes disabled has a duty to exercise reasonable care

such that the vehicle does not pose a danger to others using the highway. Melone

                                                                           A-2419-18T1
                                        4
v. Jersey Cent. Power & Light Co., 18 N.J. 163, 171–75 (1955); Shappell v.

Apex Express, Inc., 131 N.J.L. 583, 585 (E & A 1944). For example, had

defendant failed to activate her flashing lights so as to warn oncoming drivers,

and a collision resulted, a jury might find she breached a duty owed, and that

breach was a proximate cause of any accident and injuries that resulted. Id. at

588. However, that is not what occurred.

      N.J.S.A. 39:4-136, which plaintiff cited to the motion judge as

justification for his action provides that "[a]ny vehicle . . . which is disabled to

the extent that the operator cannot move it . . . shall be deemed a nuisance and

a menace to the safe and proper regulation of traffic and any peace officer may

provide for the removal of such vehicle." However, plaintiff decided not to call

for assistance to remove defendant's car because, he said, the police department

was responding to another emergency. Nor did plaintiff take a more cautious

tack, such as parking behind the vehicle with emergency lights activated to

provide further warning for the benefit of oncoming drivers. Instead, plaintiff

instructed defendant to put the car in neutral so he could push her. The question

then becomes whether defendant striking the curb could support plaintiff's cause

of action for negligence. Here, we agree with the motion judge that even if

                                                                            A-2419-18T1
                                         5
defendant negligently steered her car as plaintiff pushed, her negligence was not

a proximate cause of his injury.

      "A basic notion of our law is that, generally, a tortfeasor should be liable

for only the harm she actually caused to the plaintiff." Komlodi v. Picciano,

217 N.J. 387, 411 (2014) (citing Scafidi v. Seiler, 119 N.J. 93, 112–13 (1990)).

"Proximate cause consists of 'any cause which in the natural and continuous

sequence, unbroken by an efficient intervening cause, produces the result

complained of and without which the result would not have occurred.'"

Townsend, 221 N.J. at 51 (emphasis added) (quoting Conklin v. Hannoch

Weisman, 145 N.J. 395, 418 (1996)). "Proximate cause has been described as a

standard for limiting liability for the consequences of an act based 'upon mixed

considerations of logic, common sense, justice, policy and precedent.'" Fleuhr

v. City of Cape May, 159 N.J. 532, 543 (1999) (quoting Caputzal v. The Lindsay

Co., 48 N.J. 69, 77–78 (1966)). While usually an issue left to the factfinder,

"the issue of proximate cause 'may be removed from the factfinder in the highly

extraordinary case in which reasonable minds could not differ on whether that

issue has been established.'" Townsend, 221 N.J. at 60 (quoting Fleuhr 159 N.J.

at 543).

                                                                          A-2419-18T1
                                        6
      "The general principles governing intervening and superseding causes are

well settled. Only their application is difficult." Lynch v. Scheininger, 162 N.J.

209, 226 (2000). On occasion, "our courts have determined that intervening

events constituted superseding causes as a matter of law[.]" Id. at 229. We need

not explore the contours of these two concepts in detail, except to summarize as

follows:   "the doctrine of superseding cause focuses on whether events or

conduct that intervene subsequent to the defendant's negligence are sufficiently

unrelated to or unanticipated by that negligence to warrant termination of the

defendant's responsibility." Id. at 230.

      Plaintiff's injuries were not caused by the impact of defendant's car,

presumably traveling at an extremely slow rate of speed, hitting the curb.

Plaintiff was not injured, for example, by the car rebounding back toward him

or otherwise striking him as a result of having impacted the curb. Rather,

plaintiff contends that when the car hit the curb, he pushed with greater force,

and that strain caused the rupture of his Achilles tendon.

      The motion record, however, does not attribute plaintiff's injury to his

extraordinary exertion of force. In other words, there is no medical opinion

distinguishing plaintiff's initial decision to push the car from his claim that only

the resistance caused by defendant's car against the curb was a proximate cause

                                                                            A-2419-18T1
                                           7
of his injury. Nevertheless, the record is clear that plaintiff took no steps to

determine what was causing the claimed increased resistance to his efforts. He

did not, for example, stop pushing and investigate. Instead, upon realizing the

car was no longer moving, plaintiff simply pushed harder. Those are the facts

in a light most favorable to plaintiff. Plaintiff's own conduct is "sufficiently

unrelated to or unanticipated by [defendant's] negligence to warrant termination

of [her] responsibility." Id. at 230.

      Affirmed.

                                                                        A-2419-18T1
                                        8


393 F.2d 733
Wayne K. PATTERSON, Warden, Colorado State Penitentiary, Appellant,v.Homer BROWN, #34946, and Oswald Glymph, #34945, Appellews.
No. 9845.
United States Court of Appeals Tenth Circuit.
April 30, 1968.

James F. Pamp, Asst. Atty. Gen.  (Duke W. Dunbar, Atty. Gen., and Frank E. Hickey, Deputy Atty. Gen., Denver, Colo., on the brief), for appellant.
Leslie A. Gross, Denver, Colo., for appellees.
Before MURRAH, Chief Judge, and BREITENSTEIN and HILL, Circuit Judges.
HILL, Circuit Judge.

1
Appellees were convicted by a jury in the Colorado State Courts upon narcotics charges and on April 17, 1963, were sentenced to the Colorado State Penitentiary for a period of not less than nine nor more than ten years.  Proceeding under 28 U.S.C. 2254, appellees seek writs of habeas corpus and in support thereof claim that their convictions were obtained through the use of unlawfully seized evidence and thus that their confinement violates the Fourteenth Amendment.

2
The record shows that the basis of appellees' conviction was evidence obtained pursuant to a search warrant which the state now concedes was constitutionally defective.  The executed search warrant had been filed with the Clerk of the Denver District Court, but it was not actually placed in the Brown-Glymph file until the day before trial on April 2, 1963.  The return and supporting affidavit were misfiled in Municipal Court and could not be located when the trial commenced.  During the course of the trial, appellees' attorney moved to suppress the evidence seized under the search warrant upon the grounds (1) that no affidavit was attached to the search warrant as required by Colorado R.Cr.P. 41 and (2) that the warrant was 'invalid on its face' for a number of technical reasons.  A short recess was thereafter taken while the District Attorney attempted to locate the missing affidavit.  When the affidavit was finally produced appellees' attorney abandoned his objection as to the affidavit, but continued to object on the ground that the search warrant was invalid on its face.  There was a failure to attack the sufficiency of the affidavit.  The court overruled the general objections and refused to suppress the evidence acquired by the search.  The question of the inadequacy of the affidavit to support the search warrant was not raised until appellees appealed to the Colorado Supreme Court.  The Colorado Supreme Court did not reach the merits of this argument, However, but denied the appeal because contemporaneous objection had not been directed to the sufficiency of the affidavit during trial and proper grounds had not been asserted upon motion for a new trial.  See Brown and Glymph v. People, 158 Colo. 561, 408 P.2d 981.1  Appellees then failed to obtain relief in Colorado post conviction remedies and filed the present petition for writ of habeas corpus in the Colorado Federal District Court.

3
The trial judge granted appellees' petition for a writ on two grounds, (1) that a state procedural default does not bar a federal habeas court from considering constitutional claims and (2) that appellees had made sufficient objection to the search warrant to preserve their claim at the appellate level.  We believe this decision should be affirmed on the first of the two grounds, thereby making unnecessary any discussion of the second of the grounds relied upon by the trial judge.

4
The Supreme Court in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, established that 'the jurisdiction of the federal courts on habeas corpus is not affected by procedural default incurred by the applicant during the state court proceedings, * * *.'  Id. at 438, 83 S.Ct. at 848.  Nonetheless the federal habeas judge 'may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies.'  Ibid.  There the Supreme Court also states that a state court's finding of waiver soes not bar independent determination of the question by the federal courts on habeas.  Id. at 439, 83 S.Ct. 822.  The state here attempts to limit the implications of Fay v. Noia with the statement that Fay involved the procedural issue of exhaustion of state remedies and that the policy of the 'contemporaneous objection rule' is vastly different and more important.  This argument, however, fails to reconcile statements of the Supreme Court in Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, which considered the effect of the contemporaneous objection rule to deny direct review by the Supreme Court of a constitutional claim and recognized the importance of the contemporaneous objection rule, see Id. at 448, 85 S.Ct. 564.  At the same time, however, the Suprme Court recognized that such a procedural fault on the part of the accused would not preclude the raising of his constitutional claim by habeas corpus in a federal court.  The Court stated: '* * * Petitioner might still pursue vindication of his federal claim in a federal habeas corpus proceeding in which the procedural default will not alone preclude consideration of his claim, at least unless it is shown that petitioner deliberately by-passed the orderly procedure of the state courts.  Fay v. Noia, supra, 372 U.S. at 438, 83 S.Ct. at 848.'  Id. at 452, 85 S.Ct. at 570.

5
The state relies upon two Second Circuit cases and a district court decision from the Southern District of New York for the proposition that the contemporaneous objection rule applies to constitutional claims in the federal courts and that since the failure to object contemporaneously will bar review in the federal courts it must also bar review in the state courts.  See United States v. Re, 2nd Cir., 372 F.2d 641; United States v. Indiviglio, 2nd Cir., 352 F.2d 276; and United States ex rel. Forella v. Follette, D.C., 269 F.Supp. 627.

6
United States v. Re, supra, and United States v. Indiviglio, supra, concerned the application of the contemporaneous objection rule in federal cases.  There is no discussion in these cases as to whether the standards established by Fay v. Noia, supra, and Henry v. State of Mississippi, supra, should apply to the waiver of constitutional claims in the federal courts.  An examination of these cases reveals, however, that the holdings are not inconsistent with the standards of Fay and Henry as in both cases the accuseds plainly waived or by-passed their constitutional claims.2

7
In United States ex rel. Forella v. Follette, supra, the trial judge held that there was no merit to the accused's constitutional claim, but went on to hold that in any event the failure to object in the state court to the offered admissions barred these claims.  It was stated that while Fay v. Noia, supra, established jurisdiction in the habeas court it did not command a habeas judge to examine the constitutional merits of the issues presented if the state procedure which barred state review served valid state interests.  In so holding, the trial judge relied on a statement in Henry v. State of Mississippi, supra, to the effect that a federal habeas court should 'apply settled principles to test the effectiveness of the procedural default to foreclose consideration of his constitutional claim.'  Id. 379 U.S. at 452, 85 S.Ct. at 570.  To interpret this statement as returning the 'adequate state ground' to bar federal review of constitutional claims on habeas as opposed to the standard of 'deliberate by-passing' or 'waiver' requires a disregard of the statement immediately preceding that relied on by the trial judge to the effect that 'procedural default will not alone preclude consideration of his (constitutional) claim, at least unless it is shown that petitioner deliberately by-passed the orderly procedure of the state courts.'  Ibid.

8
Considering all the statements by the Supreme Court we believe it is clear that the standard to be applied in considering whether the habeas court should consider constitutional claims which were barred from consideration in the state courts because of the procedural default is whether or not the accused deliberately by-passed the opportunity to raise such constitutional claims in the state courts.3  We are, of course, bound by the Supreme Court decisions and the implications derived from the decisions.

9
We should further observe that the trial judge in this case found that 'There has been nothing that resembles even faintly an intentional and knowing waiver in this case.  The petitioners consistently resisted admission of the evidence in question and it was inadvertence that brought them into conflict with the contemporaneous objection requirement and forfeited their state remedies.  Under Fay v. Noia, such a fictional waiver of rights cannot bar habeas corpus relief.'  The finding by the trial court that the appellees in the instant case did not intentionally waive their constitutional claims is not clearly erroneous and thus the granting of appellees' petition for a writ of habeas corpus was legally correct.

10
Affirmed.

1
 Appellees at that time sought habeas corpus relief from the Federal District Court which was denied because they had not exhausted their post conviction remedies under Colorado law.  Appellees then moved to vacate their sentence under Colorado R.Cr.P. Rule 35(b).  This motion was denied and appellees again appealed to the Colorado Supreme Court.  Relief was again denied appellees upon the basis that they had effectively waived their rights by not objecting to the evidence at the time of its introduction.  See Brown and Glymph v. People, Colo., 426 P.2d 764

2
 In this respect we cannot say that these cases establish for federal cases a standard different than in state cases, or in other words, that a double standard exists for consideration of constitutional claims

3
 See Hayden v. Warden, Maryland Penitentiary, 4th Cir., 363 F.2d 647, 649, reversed on other grounds, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; Dillon v. Peters, 10th Cir., 341 F.2d 337; Nelson v. People, 9th Cir., 346 F.2d 73


38 So.3d 1230 (2010)
Elaine SETLIFF, et al.
v.
Aaron SLAYTER, et al.
No. 09-1512.
Court of Appeal of Louisiana, Third Circuit.
June 2, 2010.
*1231 Henry H. Lemoine, Jr., Attorney at Law, Pineville, Louisiana, for Defendant/Appellant, Aaron Slayter.
Thomas D. Davenport, Jr., The Davenport Firm, Alexandria, Louisiana, for Plaintiffs/Appellees, Elaine Setliff, Louisiana Lagniappe Realty, LLC.
Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and DAVID E. CHATELAIN, Judges.
DAVID E. CHATELAIN[*], Judge Pro Tem.
The defendant, Aaron Slayter, appeals from a final judgment rendered in favor of the plaintiffs, Elaine Setliff and Louisiana Lagniappe Realty, LLC (collectively referred to as LLR), awarding them $14,800.00 in damages, plus judicial interest, court costs, and attorney fees of $3,612.15 as a result of Slayter having breached a listing agreement. We affirm.

FACTS AND PROCEDURAL HISTORY
On March 24, 2006, Slayter and LLR signed a listing agreement to facilitate the sale of a home in Pineville, Louisiana, of which Slayter was the purported owner. The agreement provided that the home would be listed for $529,000.00. The term of the agreement was to be from March 24, 2006 until October 1, 2006. In June of 2006, Slayter informed LLR that there was a possibility that the home's slab was defective. In later correspondence sent on July 18, 2006, Slayter advised LLR that there was no slab damage and that he wanted to increase the home's listing price to $950,000.00. Included in the correspondence was a statement that Slayter would remove LLR's signs if they were still on his property on July 19, 2006. On August 7, 2006, LLR sent a letter to Slayter releasing his property as withdrawn due to his "rude and obnoxious behavior."
On August 8, 2006, LLR received a call informing it that Slayter had put up a sign on his property that read "In My Opinion LOUISIANA LAGNIAPPE REALTY IS THE WORST REALTOR I'VE EVER DEALT WITH." The sign included the LLR trademark, a depiction of the state of Louisiana with a magnolia flower and cross. On August 24, 2006, LLR filed a petition for damages and for injunctive relief against Slayter[1] seeking damages for breach of contract and slander/defamation and requesting that an injunction issue barring Slayter from displaying any signs concerning LLR or displaying its trademark.
The injunction was heard on August 3, 2007. In written reasons for ruling dated October 26, 2007, the trial court enjoined Slayter from using or displaying the LLR trademark. The trial court declined to issue an injunction preventing Slayter from using the words contained in the complained-of sign but warned that if he were to erect another similar sign, it would be at his own peril and at the risk that money damages may be awarded against him.
In February 2008, LLR filed a motion for partial summary judgment on the issue of whether Slayter had breached the listing agreement. Slayter opposed the motion. On June 16, 2008, the trial court granted LLR's motion. Slayter filed an application for supervisory writs, which this court denied on the basis that he had an adequate remedy by appeal. See Setliff v. Slayter, an unpublished writ bearing Docket Number 08-897 (La.App. 3 Cir. *1232 8/12/08). Thereafter, Slayter filed an appeal of the partial summary judgment on liability. In Setliff v. Slayter, 08-1337 (La. App. 3 Cir. 1/7/09), 1 So.3d 799, we dismissed the appeal, finding that judicial economy would be served by reviewing the partial judgment after full adjudication of all the remaining claims at issue. In June of 2008, LLR filed a motion for partial summary judgment on the issue of damages incurred as a result of Slayter's breach of the listing agreement. The trial court signed a judgment on March 25, 2009, awarding LLR damages in the amount of $14,800.00,[2] plus judicial interest, court costs, and attorney fees of $3,612.15. Slayter appealed. Again we dismissed the appeal, finding that "appellate review of the partial summary judgments regarding the [breach of] contract issue would be a waste of judicial resources" because LLR's defamation claim was still pending. Setliff v. Slayter, 09-817, p. 3 (La.App. 3 Cir. 8/26/09), 19 So.3d 43, 45.
Thereafter, LLR filed a motion for and final judgment seeking a final judgment in the substance of the two previously rendered partial summary judgments. Slayter filed a peremptory exception of nonjoinder of necessary party[3] in the trial court on September 29, 2009, asserting for the first time that the owner of the property made subject of the listing agreement was the "Aaron L. Slayter, Sr.1998 Revocable Trust [the trust]." Therein, Slayter excepted to LLR's motion for final judgment on the ground that LLR should be ordered to amend its pleadings to name the trust as a party defendant. Slayter's exception was set for contradictory hearing on November 18, 2009. Nevertheless, the trial court signed a motion for and final judgment on October 7, 2009, in favor of LLR and against Slayter in the amount of $14,800.00, plus judicial interest, court costs, and attorney fees in the amount of $3,612.15 and declaring that LLR had abandoned all other claims and causes of action contained in its petition for damages. The judgment specifically provided that it was "designated as a final judgment."
On October 12, 2009, Slayter filed a motion for devolutive appeal of the October 7, 2009 final judgment. He is now before this court presenting the following assignments of error: 1) the trial court erred in naming Slayter as the owner of the property, although it was shown that the trust was the owner of the property; 2) the trial court erred in finding that Slayter had breached the contract when it was proven that Setliff was the one who terminated the contract; 3) the trial court erred in finding that the listing agreement was a valid contract; and 4) the trial court erred in awarding damages with judicial interest, court costs, and attorney fees to Setliff, who terminated the contract, and against Slayter, who did not rightfully own the property.[4]

DISCUSSION
Appellate courts review summary judgments de novo, using the same criteria *1233 applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed "to secure the just, speedy, and inexpensive determination of every action...." La.Code Civ.P. art. 966(A)(2).

Assignment of Error Number One
Slayter asserts that the trial court erred in naming him as the owner of the property made subject of the listing agreement when it was shown that the trust was, in fact, the owner of the property. This assertion is patently untrue. Slayter did not present the trial court with the argument that the trust was the owner of the subject property until he filed his exception of nonjoinder of necessary party on September 29, 2009, months after the hearings concerning the two partial summary judgments at issue in this appeal took place. In addition, because Slayter filed this appeal before the scheduled hearing date on his exception, the trial court was not given the opportunity to rule on the merits of the exception of nonjoinder. As the issue of ownership of the subject property was not litigated in the trial court, it is axiomatic that the trial court was neither shown that the trust was the owner of the property nor did it name Slayter as owner of the property. Slayter's first assignment of error is meritless.

Assignment of Error Number Two
In his second assignment of error, Slayter contends that the trial court erred in finding that he breached the listing agreement when it was proven that Setliff terminated the contract. Apparently Slayter has forgotten that he admitted, under oath, during the August 3, 2007 injunction hearing, that he had both breached and terminated the listing agreement by way of the July 18, 2006 letter that he sent to LLR, informing it that he wished to significantly increase the asking price of the home and directing LLR to remove its signs from his property. He further admitted, under oath, that he sold the Lenora Street property[5] via a bond for deed contract on August 18, 2006, for an amount significantly less than the asking price noted in the listing agreement. Such admissions clearly qualify as judicial confessions under La.Civ.Code art. 1853.[6] In light of those judicial confessions, we cannot say that the trial court erred in finding that he breached the listing agreement. Slayter's second assignment of error has no merit.

Assignments of Error Numbers Three and Four
Next, Slayter argues that because he was not the "proper owner" of the subject property, the trial court erred in finding that the listing agreement was a valid contract and in finding him liable for damages to LLR for his breach of the agreement. He fails to offer any codal or jurisprudential authority in support of his arguments. Slayter does not question the amount of damages or attorney fees awarded.
*1234 On the other hand, LLR points out that because Slayter does not contend that the listing agreement was improperly formed, that consent was lacking, or that the cause of the listing agreement was unlawful, the contract should be upheld and enforced. Moreover, LLR submits that it is immaterial whether Slayter or the trust is the actual owner of the subject property because Slayter entered into a personal obligation, rather than a real obligation, when he signed the listing agreement. Therefore, it asks this court to affirm the trial court's judgment in its entirety.[7]
Uniform RulesCourts of Appeal, Rule 1-3 provides that "[t]he Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise." As mentioned previously, the issue of ownership of the subject property was not "submitted to the trial court." Nevertheless, because the interest of justice will be served by our bringing this dispute to a conclusion, we will determine whether the trial court erred in enforcing the terms of the listing agreement and awarding LLR damages for Slayter's breach of the agreement.
We are cognizant of the fact that the failure to join a party to an action is a peremptory exception that may be noticed by the trial or appellate court on its own motion. La.Code Civ.P. arts. 645 and 927. Although a copy of the trust made the subject of Slayter's exception of nonjoinder is attached to the appellant's brief that he filed in this court, the record on appeal does not contain a copy of the trust. Courts of appeal are courts of record; thus, we have no authority to consider the trust document. See Murray v. Town of Mansura, 06-355, p. 18 (La.App. 3 Cir. 9/27/06), 940 So.2d 832, 844, writ denied, 06-2949 (La.2/16/07), 949 So.2d 419, cert. denied, 552 U.S. 915, 128 S.Ct. 270, 169 L.Ed.2d 197 (2007) (quoting State ex. rel. Guste v. Thompson, 532 So.2d 524, 527, n. 2 (La.App. 1 Cir.1988)), wherein this court noted that:
The briefs of the parties assert facts which are not in the record and refer to exhibits which have not been filed in evidence in the record. An appellate court may not consider evidence which is outside the record. La.C.C.P. art. 2164. The briefs of the parties and the attachments thereto are not part of the record on appeal.
Because we cannot consider the trust document relied upon by Slayter, we are unable to determine whether his exception of nonjoinder has any merit. Accordingly, we will now determine whether Slayter, personally, was nonetheless bound by the listing agreement.
As provided in La.Civ.Code art. 1766, "[a]n obligation is strictly personal when its performance can be enforced only by the obligee, or only against the obligor." Louisiana Civil Code Article 1763 defines a real obligation as "a duty correlative and incidental to a real right." As a consequence of something being classified as a real obligation, that obligation "is transferred to the universal or particular successor who acquires the ... immovable thing to which the obligation is attached, without a special provision to that effect." La.Civ.Code art. 1764. As noted by Professor Yiannopoulos of Tulane University in his Louisiana Civil Law Treatise:

*1235 [T]he civilian tradition ... distinguishes sharply between the law of property and the law of obligations. A real right is a right that a person has in a thing, a matter of property law. A personal right is a right that a person has against another person to demand a performance, a matter of the law of obligations.
YIANNOPOULOS, 2 LOUISIANA CIVIL LAW TREATISE: PROPERTY, § 201 at 384 (4th ed.2001). Further:
A personal right may be defined as the legal power that a person (obligee) has to demand from another person (obligor) a performance consisting of giving, doing, or not doing a thing. The Louisiana Supreme Court has declared that "a personal right ... defines man's relationship to man and refers merely to an obligation one owes to another which may be declared only against the obligor."
YIANNOPOULOS, 2 Louisiana Civil Law Treatise: Property, § 203 at 386 (4th ed.2001) (footnote omitted).
In the listing agreement, LLR agreed to list for sale the Lenora Street property, of which Slayter professed to be the owner, for a set price. The listing agreement set the broker's commission at 4% of the gross sales price. Therein, Slayter represented that to the best of his knowledge, he was "the sole entit[y] having an ownership interest in the property." Slayter also agreed that he would "cooperate fully and not ... obstruct the sale of the property during the term of this agreement." The listing agreement further provided that, upon Slayter's failure to pay the agreed-upon commission, he would "be responsible for all actual attorney fees and expenses" incurred in enforcing the agreement.
Clearly, the listing agreement bound Slayter personally, regardless of whether he owned the Lenora Street property. The property was simply the subject of the agreement. Whether, as he now claims, he was not the actual owner of the property is of no moment to the resolution of this appeal. Given the fact that Slayter admitted that he had breached the listing agreement in both his July 18, 2006 letter to LLR and in his sale of the Lenora Street property during the set term of the listing agreement, the trial court did not err in granting summary judgment finding that he breached the listing agreement and in awarding LLR damages and attorney fees as a result of that breach. Moreover, because Slayter has not challenged the amount of damages and/or attorney fees awarded to LLR, the judgment will be affirmed in its entirety. Slayter's third and fourth assignments of error lack merit.

DECREE
For the foregoing reasons, the final judgment of the trial court in favor of the plaintiffs, Elaine Setliff and Louisiana Lagniappe Realty, LLC, and against the defendant, Aaron Slayter, awarding the plaintiffs damages of $14,800.00, plus judicial interest, court costs, and attorney fees of $3,612.15 is affirmed. All costs of this appeal are assessed against Aaron Slayter.
AFFIRMED.
NOTES
[*]  Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.
[1]  The petition named as an additional defendant Phillips Signs, the business that made the signs at Slayter's direction.
[2]  The trial court explained in its March 11, 2009 reasons for judgment that it arrived at the $14,800.00 figure by calculating 4% of $370,000.00, the amount Slayter sold the property for in the bond for deed contract.
[3]  See La.Code Civ.P. arts. 641 and 642.
[4]  Slayter also alleged that the trial court's findings were contrary to law and to the evidence, and he requested that this court conduct an errors patent review of the record. Because Slayter did not brief these two assignments of error, we will consider them abandoned. See Uniform RulesCourts of Appeal, Rule 2-12.4. In addition, we note that the article authorizing an appellate court to conduct an error patent review of the record in a criminal appeal, La.Code Crim. P. art. 920, has no counterpart applicable to civil appeals.
[5]  At no time during the August 3, 2007 injunction hearing did Slayter mention the trust.
[6]  Louisiana Civil Code Article 1853 provides, in pertinent part, that "[a] judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it."
[7]  In its appellee brief, LLR requests that we award it additional attorney fees for the work performed on this appeal. Because it did not file an answer to Slayter's appeal, however, we are precluded from granting LLR any relief on appeal. See Perron v. S. Landry Parish Econ. Indus. Dev. Dist., 03-1061 (La. App. 3 Cir. 3/3/04), 867 So.2d 86, writ denied, 04-1502 (La.10/1/04), 883 So.2d 1009.