410 Pa. 55 (1963)
Gedeon, Appellant,
v.
State Farm Mutual Automobile Insurance Company.
Supreme Court of Pennsylvania.
Argued October 4, 1962.
January 21, 1963.
*56 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and KEIM, JJ.
Paul A. Simmons, with him Hirsch & Hirsch, for appellant.
Francis H. Patrono, with him Patrono and Edwards, for appellee.
*57 OPINION BY MR. JUSTICE COHEN, January 21, 1963:
An automobile liability insurance policy was issued to appellant by appellee-insurance company on May 18, 1955, insuring him against liability for bodily injury to one person in the amount of $10,000. On August 11, 1955, while the said automobile was being driven by appellant, it was involved in an accident in which appellant's wife, a passenger in the car, was killed. Appellant subsequently qualified as administrator of his wife's estate and, in such representative capacity, instituted suit under the Wrongful Death Act naming himself as defendant-tortfeasor.[1] Appellee refused to defend this action on the grounds that the policy was not in force on the day of the accident, and, even if it were, indemnity for liability to members of the insured's household was specifically excluded from the policy's coverage. Appellant did not hire substitute counsel nor did he spend other funds in defense of the wrongful death action. Trial resulted in a verdict of $51,318.90 in favor of appellant as administrator.
Appellant in his individual capacity then instituted the present action of assumpsit claiming the $51,318.90 judgment as the damages resulting from appellee's breach of its covenant to defend him. The case was heard by a judge sitting without a jury and judgment entered for the appellee. After argument before the court en banc, this judgment was affirmed by a divided court with the majority setting forth three separate reasons for its decision: (1) that the policy was not in force on the day of the accident because of a failure to pay premiums; (2) that even if the policy were in force, obligations to members of the insured's household were specifically excluded from coverage; (3) that even if there were a breach of appellee's contractual *58 obligation to defend, appellant had shown no damages resulting from such breach. Because we agree with the court below on the third of these grounds, we need not determine the correctness of their rulings on the first two grounds.
Under a typical automobile liability insurance policy, such as the one before us, the insurer undertakes three distinct types of obligations, each of which involves different elements of proof to establish breach thereof, and from the breach of which different measures of recovery result.[2] In the first place, the insurer agrees to indemnify against liability for personal or property damage and to indemnify against certain kinds of property damage to the automobile itself. In order to establish breach of this promise to indemnify, the insured must demonstrate that the policy covers the particular risk in question. The amount of recovery for breach of this obligation is usually determined by the terms of the policy.
Secondly, the insurer agrees to defend the insured against any suits arising under the policy "even if such suit is groundless, false, or fraudulent." Since the insurer thus agrees to relieve the insured of the burden of defending even those suits which have no basis in fact, our cases have held that the obligation to defend arises whenever the complaint filed by the injured party may potentially come within the coverage of the policy. See Cadwallader v. New Amsterdam Cas. Co., 396 Pa. 582, 152 A. 2d 484 (1959).[3] Consequently, there may be an obligation to defend although no obligation *59 to indemnify. See Zeitz v. Zurich General Accident & Liability Ins. Company, Ltd., 165 Pa. Superior Ct. 295, 67 A. 2d 742 (1949); Lee v. Aetna Casualty & Surety Co., 178 F. 2d 750 (2d Cir. 1949). A refusal without good cause to defend breaches this obligation and gives rise to a cause of action regardless of the good faith of the insurer.[4] See King v. Automobile Underwriters, Inc., 409 Pa. 608, 187 A. 2d 584 (1963). Based on the usual contract rule for determining damages,[5] the recovery for breach of the covenant to defend will ordinarily be the cost of hiring substitute counsel and other costs of the defense. This recovery may be in addition to any other obtained against the insurer.
Thirdly, by asserting in the policy the right to handle all claims against the insured, including the right to make a binding settlement, the insurer assumes a fiduciary position towards the insured and becomes obligated to act in good faith and with due care in representing the interests of the insured. If the insurer is derelict in this duty, as where it negligently investigates the claim or unreasonably refuses an offer of settlement, it may be liable regardless of the limits of the policy for the entire amount of the judgment secured against the insured. See Cowden v. Aetna Casualty and Surety Company, 389 Pa. 459, 134 A. 2d 223 *60 (1957).[6] Once again there can be a breach of this fiduciary duty without a breach of either the covenant to indemnify or the covenant to defend.
The complaint of appellant-insured evidences his confusion as to the nature of these different obligations of appellee-insurer. The sole basis of the complaint is appellee's refusal to defend the wrongful death action. Appellant does not seek to recover $10,000 under the indemnity clause,[7] nor does he allege a refusal to settle or other mishandling of the claim by appellee.[8] Yet appellant claims as damages for breach of this duty to defend the $51,318.90 judgment obtained against him in the wrongful death action. The cases he relies upon to justify such recovery illustrate his failure to distinguish between the insurer's breach of its duty to defend, i.e., refusal to defend, and breach of its duty to defend with due care, i.e., mishandling of the claim. As we have seen, the amount of recovery for breach of the former obligation is the cost of hiring substitute counsel and other costs of the defense, and not the judgment obtained against the insured. Since the facts reveal that appellant expended no funds in defense of the wrongful death action, we agree with the court below that, even if appellee did breach its covenant to defend, appellant has shown no damages resulting from this breach.
Judgment affirmed.
*61 CONCURRING OPINION BY MR. JUSTICE EAGEN:
The cogent opinion of Mr. Justice COHEN does much to clarify the real obligations of an insurance company under the provisions of an automobile liability insurance policy as here involved. However, I think one area should be further clarified.
The majority opinion provides for recovery in excess of the policy limits where the insurer "negligently investigates the claim or unreasonably refuses an offer of settlement . . ." In Cowden v. Aetna Casualty and Surety Company, 389 Pa. 459, 134 A. 2d 223 (1957), the following rules were laid down in this area of the duty to settle:
(1) The interests of insured and the insurer are balanced by requiring the insurer to treat the claim as if he alone were liable for the entire amount.
(2) When there is little possibility of a verdict or settlement within the policy limits, the decision to expose the insured to personal pecuniary loss must be based on a bona fide belief by the insurer, predicated on all of the circumstances of the case, that it has a good possibility of winning the suit.
(3) The insurer cannot hazard the well-being of the insured.
(4) Good faith requires that the chance of a finding of nonliability be real and substantial and that the decision to litigate be made honestly.
The foregoing rules, I believe, establish a standard by which it can be determined whether the insurer exercised due care in a particular case. I would base the liability of the insurer for a breach of the duty to settle on the theory of negligence using the above rules as a standard and in that way eliminate the dichotomy between bad faith and negligence with regard to the duty to settle and the duty of handling the case with ordinary care.
NOTES
[1]  Appellant disclaimed any benefit that might accrue to himself from the wrongful death action and thus the only beneficiaries of the action were the children.
[2]  Of course, these obligations arise only if the insured can show that the policy was in force on the day of the accident in question.
[3]  The insurance company may defend the action with the express understanding that it is not admitting coverage by so doing. See Laroche v. Farm Bureau Mutual Automobile Insurance Co., 335 Pa. 478, 7 A. 2d 361 (1939).
[4]  "Good cause" as used in this connection should not be confused with "good faith." Where, as in Epstein v. Erie Indemnity Company, 39 Pa. D. & C. 117 (1940), aff'd per curiam, 340 Pa. 417, 16 A. 2d 47 (1940), the insured refuses to cooperate with the insurer in the preparation of the litigation, the latter has good cause for its refusal to defend. However, the good faith of the insurer's belief that it had no contractual duty to defend a particular action is not a defense.
[5]  The general rule is to award damages which will place the injured party in the position which he would have been in had the obligation in question been performed. Restatement, Contracts § 329(a) (1932).
[6]  For a comprehensive analysis of this fiduciary obligation, see Keeton, Liability Insurance and Responsibility for Settlement, 67 Harv. L. Rev. 1136 (1954).
[7]  Such a suit in this situation would properly be brought by appellant in his representative capacity for the benefit of the children.
[8]  In fact, appellant conducted the defense of the wrongful death action himself.


Order filed, January 21, 2015.

                                           In The
                                   Court of Appeals
                                         For The
                              First District of Texas
                                        ____________

                                   NO. 01-14-00981-CR

                         DAVID JAMES CHAPMAN, Appellant

                                              V.

                           THE STATE OF TEXAS, Appellee

                         On Appeal from the 183rd District Court
                                 Harris County, Texas
                               Trial Court Case 1421329

                                          ORDER
       The reporter’s record in this case was due January 12, 2015. See Tex. R. App. P.
35.1. The court has not received a request to extend time for filing the record. The
record has not been filed with the court. Because the reporter’s record has not been filed
timely, we issue the following order.

       We order Billy Jalufka, the official (or substitute) court reporter, to file the record
in this appeal, if any, within 30 days of the date of this order.

/s/ Harvey Brown
   Acting individually


357 F.Supp. 466 (1973)
ART NEON CO. et al., Plaintiffs,
v.
The CITY AND COUNTY OF DENVER, a municipal corporation, and Anthony H. Jansen, Defendants,
and
Gump Glass Co., Intervenor.
Civ. A. No. C-3427.
United States District Court, D. Colorado.
April 4, 1973.
*467 Hoffman, Goldstein & Armour, by Alan A. Armour, Denver, Colo., for plaintiffs and intervenor.
Max P. Zall, City Atty., Earl T. Thrasher, Asst. City Atty., Denver, for defendants.
Davis, Graham & Stubbs, by Richard P. Holme, Denver, Colo., and Gibson, Dunn & Crutcher by Theodore B. Olson, Los Angeles, Cal., for amicus curiae Combined Communications Corp.
Lawrence A. Wright, Jr., Richard F. Mauro, and Howard B. Gelt, Denver, Colo., for amici curiae Consumers.

MEMORANDUM OPINION
WINNER, District Judge.
Following submission of comprehensive pretrial briefs, this case was tried to the Court. Thereafter, long post trial briefs were filed, and the case is ready for determination by this opinion which contains the findings and conclusions required by Rule 52.
Plaintiffs' complaint makes a hydraheaded attack on the validity and constitutionality of the sign code of the City and County of Denver. [Revised Municipal Code, Sec. 613, and, more particularly, Sec. 613.5 of the Code.] Some of plaintiffs' claims raise questions we deem to arise only under the Constitution of the United States; some argue provisions of both state and federal constitutions, while others are directed at case law and the Constitution of the State of Colorado. By order of March 24, 1973, the Court limited the issues it would try to those arising only under the Constitution of the United States, and, although plaintiffs urged that there is pendent jurisdiction to try other claims, we ruled that under the principles of United Mine Workers v. Gibbs (1966) 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218, and Reetz v. Bozanich (1970) 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68, myriad problems should be left for state court determination. We accepted the following phraseology by the city of the question the Court should determine:
"Whether the requirement that certain existing signs owned by plaintiffs be terminated over the periods prescribed by the ordinance is a valid exercise of the municipal police power or an unconstitutional taking of private property without compensation having been made therefor; or is an unconstitutional impairment of the obligation of certain contracts relating to the leasing of signs owned by plaintiffs."
By supplementary order of July 18, 1972, it was explained that included within the issues which might be determined was "the question of equal protection as that question applies to the differing amortization periods [contained in the ordinance]."
Thus, the constitutional question we today decide is important, but the question decided is narrow, and many of plaintiff's challenges of the ordinance are not resolved.[1] Perhaps we should mention a few of the many things we do not decide.
(1) The city says that some of the signs exist under revocable permit to use city-owned property. We decide nothing having to do *468 with this contention of the city nor do we decide anything arising under plaintiffs' claim that the city is estopped to enforce revocability of any permits. This is a problem for the state courts.
(2) The city says that a sign of Michael T. Thomase, d/b/a Colonial Motel exists under a special dispensation and that it is not affected. We make no determination concerning this.
(3) The right of the city to prohibit the erection of any or all future advertising signs is not before us, and we make no decision as to the validity or invalidity of any such ordinance which may or may not be enacted in the future, although we recognize that there is much authority for upholding such prohibitions.
(4) We decide no questions concerning the reasonableness of the regulations as they relate to the type of business involved, the zone in which the sign is located, the comparable heights of signs in various zones, differentiations between free standing and attached signs and various other types of claimed inequality between signs.
(5) We make no decision as to the validity of the sign code under state law.
(6) We make no determination as to whether the code draws arbitrary distinction between various signs.
Moreover, we do not quarrel with nine of the ten "legal principles" argued by the city. We accept as truisms these "legal principles" stressed in the city's brief:
1. Denver's charter permits the city to enact zoning ordinances.
2. In adopting zoning ordinances, Council may divide the city into districts.
3. Classification within various zone districts is permitted, and outdoor advertising is a type of business subject to separate classification and regulation.
4. Zoning ordinances are to be construed as a whole.
5. Ordinances are presumptively constitutional.
6. If constitutionality is debatable, the ordinance should be upheld.
7. If there is a reasonable factual basis on which the ordinance can be found valid, a court should assume that the legislative body acted on the basis of those facts [unless the record affirmatively shows that another factual basis was relied upon].
8. Many cases hold, and the Colorado Supreme Court has held that under Colorado law non-conforming uses may be terminated if a reasonable amortization period is allowed. [The underlying reasoning of these cases is that constitutionally just compensation may be provided by amortization.]
9. Non-conforming uses should be made conforming as rapidly as is reasonably possible.
We do not agree with the city's tenth "legal principle" that a plan of amortization is the only way in which just compensation can be paid for required termination of non-conforming uses. Lamm v. Volpe (1971) 10 Cir., 449 F.2d 1202, infra, 23 U.S.C. § 131 and 1963 C.R.S., 1971 Perm.Supp., 120-5-28(2), all dispose of this "legal principle." The Colorado statute provides:
"The division of highways may remove any nonconforming advertising device and may acquire all real and personal property rights pertaining to the nonconforming advertising device by gift, purchase, agreement, exchange, or eminent domain. All proceedings in eminent domain shall be conducted as may be provided by law. The division of highways may adopt appraisal concepts and acquisition procedures which are appropriate to the evaluation and removal of nonconforming advertising devices."
*469 If the city wishes to adopt an ordinance similar to the Colorado statute or similar to the federal Highway Beautification Act, no Fifth Amendment question can arise under such an ordinance. The case is before us only because the city wants to force destruction of the signs without cash outlay on its part and because it insists on paying the compensation it admits is due only by way of an amortization scheme instead of paying compensation the way the state and federal governments do. As we shall see before this opinion is concluded, the only real question is, "Who is to pick up the tab for beautification of the city resulting from the tearing down of the advertising signs?" The state and the federal government think that the taxpayers must pay the piper. The city says that the sign companies have to bear the loss.
Before entering upon a discussion of this fundamental question, it is necessary that we dispose of a preliminary argument advanced by the city. The city says that three of the plaintiffs and an intervenor have failed to establish jurisdictional amount. In effect the city argues that proof by these parties at time of trial would not justify an eminent domain award in excess of $10,000.00, but this isn't the test of amount in controversy. St. Paul Mercury Indemnity Co. v. Red Cab Co. (1938) 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845. The evidence established that these parties made a good faith claim that they will be damaged by more than $10,000 in a given year as a result of the enforcement of the ordinance, and that is all that is required. The evidence abundantly meets the test of Ronzio v. Denver & R. G. W. R. Co. (1940) 10th Cir., 116 F.2d 604:
"In determining the matter in controversy, we may look to the object sought to be accomplished by the plaintiffs' complaint; the test for determining the amount in controversy is the pecuniary result to either party which the judgment would directly produce."
In support of its jurisdictional amount argument, the city almost concedes that the evidence at the time of the preliminary injunction hearing was sufficient to establish jurisdictional amount, but then counsel say, "We know of no rule of law whereby the evidence offered by these parties in an application for preliminary injunction carries forward to a hearing on the merits of the case." Rule 65(a)(2) enunciates such a rule:
". . . any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes a part of the record on the trial and need not be repeated upon the trial."
Jurisdictional amount was proven as to all parties, and with the question of jurisdictional amount out of the way, we come to the merits of the case. The important parts of the challenged ordinance are:
"Sec. 613-5. Nonconforming Signs.

".5-1. Declaration of Public Policy.
It is reasonable that a time limit be placed upon the continuance of existing nonconforming signs. An amortization program permits the owner to plan during a period when he is allowed to continue the nonconforming signs while at the same time assuring that the District in which the nonconforming signs exist will eventually benefit from a substantial uniformity of permanent signs.
".5-2. Definition of Nonconforming Signs.
A nonconforming sign shall be any sign which:
".5-2(1). On the effective date of this ordinance was lawfully maintained and had been lawfully erected in accordance with the provisions of any prior zoning ordinance but which sign does not conform to the limitations established by this ordinance in the District in which the sign is located; or
".5-2(2). On or after the effective date of this ordinance was lawfully *470 maintained and erected in accordance with the provisions of this ordinance but which sign, by reason of amendment to this ordinance after the effective date thereof, does not conform to the limitations established by the amendment to this ordinance in the District in which the sign is located.
".5-3. Continuance of Nonconforming Signs.
Subject to the termination hereinafter provided, any nonconforming sign may be continued in operation and maintained after the effective date of this ordinance; provided, however, that no such sign shall be changed in any manner that increases the non-compliance of such sign with the provisions of this ordinance established for signs in the District in which the sign is located; and, provided, further, that the burden of establishing a sign to be nonconforming under this Section rests entirely upon the person or persons, firm or corporation claiming a nonconforming status for a sign.
".5-4. Termination of Nonconforming Signs.
".5-4(1). By Abandonment. Abandonment of a nonconforming sign shall terminate immediately the right to maintain such sign.
".5-4(2). By violation of the Ordinance. Any violation of this ordinance shall terminate immediately the right to maintain a nonconforming sign.
".5-4(3). By Destruction, Damage or Obsolescence. The right to maintain any non-conforming sign shall terminate and shall cease to exist whenever the sign is damaged or destroyed, from any cause whatsoever, or becomes obsolete or substandard under any applicable ordinance of the municipality to the extent that the sign becomes a hazard or a danger.
".5-5(4). By Amortization. The right to maintain a nonconforming sign shall terminate in accordance with the following schedule:

"Any sign which on           Shall be terminated within
 the date the sign           the following period after
 became nonconforming        the sign became nonconforming:
 would cost the following
 amount to replace:
    "$0 to $3,000 ................. 2 years
     3,001 to 6,000 ............... 3 years
     6,001 to 15,000 .............. 4 years
     15,001 or more ............... 5 years

".5-5(4)(a). The right to maintain a flashing, blinking, fluctuating, animated or portable sign shall terminate within 30 days after such sign becomes nonconforming."
Whether this ordinance amounts to a permissible use of the police power or amounts to a taking requiring the payment of just compensation under the Fifth Amendment is not a question of easy determination. As was said in United States v. Central Eureka Mining Co. (1958) 357 U.S. 155, 78 S.Ct. 1097, 2 L.Ed.2d 1228.
"Traditionally, we have treated the issue as to whether a particular governmental restriction amounted to a constitutional taking as being a question properly turning upon the particular circumstances of each case. See, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 [43 S.Ct. 158, 67 L.Ed. 322]. In doing so, we have recognized that action in the form of regulation can so diminish the value of property as to constitute a taking. E. g., United States v. Kansas City Ins. Co., 339 U. S. 799 [70 S.Ct. 885, 94 L.Ed. 1277]; United States v. Causby, 328 U.S. 256 [66 S.Ct. 1062, 90 L.Ed. 1206]. However, the mere fact that the regulation deprives the property owner of the most profitable use of his property is not necessarily enough to establish the owner's right to compensation."
The difference between a permissible exercise of the police power and a taking requiring compensation was discussed by Judge Barrett in Lamm v. Volpe (1971) 10 Cir., 449 F.2d 1202. It was there *471 contended that the Tenth Amendment prohibited Congress from enacting the Highway Beautification Act [23 U.S.C. § 131]. The Court held that Lamm had no standing and that the question was moot because the State of Colorado had adopted legislation meeting the requirements of the Highway Beautification Act. However, in the course of the opinion it was said:
"Lamm has introduced several bills in the Colorado Legislature which he believes would provide effective control of outdoor advertising through exercise of the state police power in lieu of just compensation. Although he does not specifically identify to the police power relied upon, we assume here that his bills declared outdoor advertising adjacent to certain highways a public nuisance, subject to destruction or abatement as injurious to public safety. We recognize that police power is a matter of legislative prerogative. In this field the legislature has wide discretionary powers. It includes everything essential to public safety, health, and morals. Cottrell Clothing Company v. Teets, 139 Colo. 558, 342 P.2d 1016 (1959). Police power should not be confused with eminent domain, in that the former controls the use of property by the owner for the public good, authorizing its regulation and destruction without compensation, whereas the latter takes property for public use and compensation is given for property taken, damaged or destroyed. Chicago B. & Q. Railway v. State of Illinois ex rel. Drainage Comm'rs., 200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596 (1906); Appeal of White, 287 Pa. 259, 134 A. 409 (1926); Annot., 53 A.L.R. 1215 (1928).
"Here the power of regulation has not been preempted by the Congress. But that begs the point. The Congress has clearly determined that the `taking' of outdoor advertisements adjacent to federal-aid highways required `just compensation'. The Tenth Amendment has been construed `as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.' United States v. Darby, 312 U.S. 100, 124, 61 S.Ct. 451, 462, 85 L.Ed. 609 (1941). . . ."
Lamm v. Volpe does not pass on the question before us  the question of whether advertising signs can be eliminated without payment of compensation except as amortization may represent just compensation. The case simply points up that Lamm wanted to adopt the approach used here by the City rather than the method used by the federal government in the Highway Beautification Act and the method subsequently adopted by the State of Colorado. Although at time of trial the City made a half-hearted attempt to show that the ordinance was passed in the interest of public safety, the unsupported conclusions of its witness were totally destroyed by the testimony of plaintiffs' expert, and there was no believable testimony that the ordinance is in any way related to public safety. In fact, the City fell back on an environmental approach and it relied on its expert, Stuart L. Udall, former Secretary of the Interior, and a lawyer who is "presently involved in environmental planning," Mr. Udall testified:
". . . The visual environment obviously is a very important component, and the environment of course as we understand it now is the science of interrelating all this bundle of things that we used to consider separately, and obviously the visual part of the environment, the appearance of a city, for example, whether we're talking about the natural beauty of a city or the inter-relationship between the natural beauty and those activities of man which alter that environment. This is obviously a very important component of the environment. . . ". . . The visual aspect of a community of a region is obviously a very important element of the environmental planning that indeed encompasses *472 the total environment. It has to involve itself in policy with regard to signs, with regard to graphics, with regard to the mix between the natural world and the man activities that are involved. So, of course, when you narrow this to the subject of signs as an element of the environment, the question of uses becomes a critical question."
Although Mr. Udall suggested that city beautification is a public concern of quite recent origin, it was recognized by the Supreme Court almost twenty years ago in Berman v. Parker (1954) 348 U. S. 26, 75 S.Ct. 98, 99 L.Ed. 27. Justice Douglas there said:
"If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way."
But Justice Douglas added:
"The rights of these property owners are satisfied when they receive that just compensation which the Fifth Amendment exacts as the price of the taking."
Justice Douglas and Mr. Udall see eye to eye on the subject, because Mr. Udall's testimony continued:
[He testified that he was familiar with the Highway Beautification Act and that he participated in its formulation.]
"I think in the beginning, within the administration, once it was decided that this should be added as a major amendment to the entire State Highway Act of 1956, the question of how this could be accomplished was widely discussed and there really were two alternatives. Indeed, they are the two alternatives that you have if a government desires to eliminate undesirable signs, and one is immediate condemnation and payment  full payment for the value of what is taken. The other is some kind of a scheme of amortization, and these two were discussed and considered initially, and the plan that Congress finally adopted was a taking, and outright payment.
"THE COURT: Let me interrupt a minute, Mr. Udall, and see if I follow you. Do you feel as an expert in the field that signs can be taken under either of two alternative methods; first a method of immediate condemnation with the payment of just compensation? Or, in the alternative, a delayed taking which permits an amortization of the investment?[2]
"THE WITNESS: I think these clearly are the two alternatives, yes.
"THE COURT: So, that if a community, if a governments elects to follow the second alternative, the validity of that election is dependent upon the sufficiency of the amortization provided, isn't that true?
"THE WITNESS: Where [whether] it's reasonable, yes."[3]
In Rabinoff v. District Court (1961) 145 Colo. 225, 360 P.2d 114, Judge Doyle [with Judge McWilliams concurring] quoted with approval some of the same language we have quoted from Berman v. Parker, and in Rabinoff mention is made of the fact that the Colorado Constitution differs in its language from the Fifth Amendment and this is one of the reasons we did not abstain on the Fifth Amendment claim.
Accordingly, we have no difficulty in concluding that if the citizens of the City and County of Denver wish to eliminate some or all signs, they may do so if they are willing to follow the *473 procedures required of the federal government under the Highway Beautification Act, the procedures adopted by the State of Colorado, and procedures said by their own special counsel-expert witness to be necessary. In other words, a legislative determination that the elimination of signs is in furtherance of an aesthetic public purpose is entirely proper, and the only question which remains is whether the Denver ordinance provides for the payment of whatever just compensation the Fifth Amendment demands. As a corollary to this question is the determination of whether the ordinance is a regulation enacted under the city's police power, thereby eliminating necessity for the payment of any compensation.
Volumes have been written on the subject, and the courts have been unable to formulate or agree upon any precise rule to distinguish between a permissible regulation and an impermissible taking. We follow the mandate of United States v. Central Eureka Mining Co., supra, to ascertain the particular facts of our case.
We reiterate that the Denver ordinance by its terms pretty much contradicts the City's argument that no compensation is required, because the ordinance does not attempt to impose an immediate prohibition on any signs. It sets up an amortization schedule keyed to cost of replacement, and, under the decided cases, this is a recognition that some compensation is owed. Under Denver's ordinance, a sign which would cost $3,000 to replace must be torn down in two years, while a sign which would cost $15,001 to replace can remain standing five years. The ordinance ignores the actual investment of the owner, it ignores the market value of the sign, and it ignores the extent to which a particular owner has recaptured either his investment or the sign's market value, just as it disregards the length of the unexpired leasehold term. It fails in these respects in the face of the following facts which were proven at trial:
1. There is no correlation between signs and public safety or accidents, nor was there any proof that signs cause accidents. The proof was to the contrary.
2. Most signs are leased for five year terms, and approximately three-fourths of the leases are renewed for an additional term or terms. Although the lessor sign companies attempt to make a small profit during the initial leasehold term, the real profit is derived from the renewals, and, additionally, the lessee gets a better deal during the renewal term. Thus, both parties have a business incentive to renew.
3. There is a market for the sale of sign leases, and sales prices of sign leases include an increment of the probability of renewal of the lease.
4. All signs, over varying periods of time, become obsolete, and when they do, they are removed.
5. Almost without exception, the signs are not adaptable for use elsewhere, and typically, the salvage value of a sign which must be removed does not equal removal cost.
6. Physical depreciation of signs is minimal. This is evidenced by the fact that the Assessor of the City and County of Denver does not permit depreciation of signs for property tax purposes. [The City offered no evidence that the Assessor will change his position even as to signs which must be destroyed under the ordinance.]
7. Every sign in Denver was erected under a permit charged for and issued by the City.
8. In the opinion of most people, many signs and their proliferation are garish eyesores, but due to oddities in the ordinance, some of the most aesthetically offensive signs remain perfectly legal under the ordinance.
9. Flashing, blinking, fluctuating or animated signs are typically the most expensive, but, except for aesthetic considerations, the evidence failed to establish any reason they should be removed sooner than other signs. Additionally, the evidence established the fact that because *474 of the design of such signs, their utility is greatly diminished or destroyed if the movable characteristics of such signs are eliminated. If the blinking, flashing or animation is shut off, the function of the signs would be severely impaired, and the leases between the parties would be effectively terminated, because the lessee would not be receiving that which he bargained for.
10. Plaintiffs lawfully invested substantial sums of money in the manufacture and erection of signs or in the leasing of signs erected on their premises.
11. In many instances, the market value of the lessees' businesses will be diminished if the signs are removed.
12. As to most of the signs, the ordinance prohibits any use rather than merely restricting the type or extent of use of the signs.
13. Because they are custom made, there is no other location within or without the City and County of Denver at which the signs can be used.
14. There is no relationship between replacement cost and unexpired leasehold term, and there is but limited relationship between replacement cost and either market value or useable life. There is a relationship between investment and replacement cost, but they are a far cry from being identical.
Defendants initially urge that because of the presumptive constitutionality of any legislative act we must search for some rationale which will support constitutionality and they stress that we cannot substitute our judgment for that of City Council. They cite cases such as Baum v. Denver, 147 Colo. 104, 363 P.2d 688; Bird v. City of Colorado Springs, Colo., 489 P.2d 324; Standard Oil Company v. City of Marysville, 279 U.S. 582, 49 S.Ct. 430, 73 L. Ed. 856, and Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130. These cases support and we agree with these broadly stated legal principles. Here, defendants elected to try to support the constitutionality of the ordinance on their environmental theory, and their own expert testified that just compensation in one form or another is required. Moreover, we say again that the ordinance itself demonstrates Council's determination that compensation by way of amortization is necessary. As stated in defendants' brief, the case "involves no more and no less than a determination, within the scope of permissible judicial review, of whether the amortization periods provided by the ordinance are reasonable." No presumption of constitutionality and no deference to legislative wisdom will bail out the ordinance if it in fact effects a taking without the payment of just compensation.
Starting from defendants' simplified statement of the case; i. e., the statement that the case involves the single question of whether the amortization periods are reasonable, we refer at once to an annotation in 22 A.L.R.3rd 1134, entitled "Validity of Provisions for Amortization of Nonconforming Uses." A review of the cases there discussed demonstrates that with only a few exceptions, reasonable amortization periods have been held to eliminate need for the payment of just compensation. This seems to be the rule in Colorado. Service Oil Co. v. Rhodus (1972) Colo., 500 P.2d 807. Probably no case has been more frequently cited in support of the constitutionality of required amortization of non-conforming uses than Naegele Outdoor Advertising Co. v. Village of Minnetonka (1968), 281 Minn. 492, 162 N.W.2d 206. There, the village required the removal of all non-conforming billboards within three years. Naegele limited its attack to a contention that the ordinance was unconstitutional on its face, and the question of whether it was unconstitutional in its application, which is included in our case, was not there presented. The ordinance was upheld, and the Minnesota Court said:
"Plaintiff cannot successfully challenge this ordinance as unconstitutional on its face unless it would be unconstitutional as applied to the property interests of every billboard *475 owner. The underlying issue in making this determination must therefore be whether the amortization period provided by the statute is reasonable. If the value of plaintiff's property interest was extinguished before the running of the 3-year period, there would be no taking, or if the value of freedom from new competition for the statutory period equalled the value of the property interest remaining at the end of the period, there would be just compensation for the taking. In either case, the length of the amortization period is reasonable and the ordinance therefore is constitutional. Moreover, since several conceivable applications of the ordinance are reasonable, it is not unconstitutional by its terms. The question then becomes one of the unconstitutional application of the ordinance in a given case, and the burden is on plaintiff to establish that the ordinance, as applied, is unconstitutional. Plaintiff, however, has based its challenge on the argument that the ordinance is unconstitutional on its face and has introduced little or no evidence that the 3-year amortization period is unreasonable as applied.
.   .   .   .   .   .
"Finally, plaintiff claims that it was deprived of its property interest in the leases themselves. If a property right is taken for a public use, compensation by payment of its fair market value is required. In the case of a taking of a leasehold interest, this amount `is the fair rental value of the premises less the amount of the rent for the remainder of the term.' In re Assessment for Widening Third Street in St. Paul, 176 Minn. 389, 390, 223 N.W. 458.
"Ten of the leases in question are oral and amount to no more than month-to-month tenancies. The value of such a leasehold is limited to the rental value of the premises for 30 days less the rent payment for that period. Riebs v. Milwaukee County Park Comm., 252 Wis. 144, 31 N.W.2d 190. The other 8 leases are written and vary in length from 1 to 10 years. However, plaintiff has offered no evidence on the fair market value of any of these leases at the end of the statutory amortization period. Thus, it is impossible for us to say that there has been such a taking of a valuable property interest from plaintiff as to render this application of the ordinance unconstitutional."
Here, of course, plaintiffs have presented evidence on the subjects not decided by Naegele, and, as we shall discuss later, the Minnesota Court's definition of market value of a leasehold does not square with present Fifth Amendment law. Moreover, in Naegele, all billboards were treated alike, while here amortization periods vary with cost of replacement. The uncontradicted expert testimony in this case was to the effect, and we find, that there is no conceivable economic or accounting theory which lengthens or shortens the amortization period on the basis of replacement cost of a sign. The Internal Revenue Service would give short shrift to any such contention, and so do we. Carried to its inevitable illogical conclusion, the City's argument would have us say that in an urban renewal project, owners of small homes would have to get out without payment for their houses at the end of two years, but owners of more expensive homes couldn't be thrown out for five years. Highways could be built through residential areas, and the smaller homeowners could be thrown out in two years, but owners of luxury homes could stay put for five years, albeit none of the owners would ever be paid a dime for their homes.
Amortization is but a function of depreciation, and a smaller house of equivalent construction doesn't depreciate more rapidly than does a larger one, and neither does a smaller sign built from the same materials as a larger one depreciate in 2/5 ths of the time it takes a more expensive one to wear out. These comments we make not in support of any equal protection determination, but, *476 rather we make them as illustrative of the manifest unreasonableness of the amortization schedules in the Denver ordinance, even if amortization be held to be a type of payment of just compensation.
With this caveat to the ordinance's varying allowable amortization periods tied to replacement costs, we mention that without extended discussion by the Court, a five year amortization period for all nonconforming signs was upheld in E. B. Elliott Advertising Co. v. Metropolitan Dade County (1970) 5 Cir., 425 F.2d 1141. The Court held that elimination of signs was in furtherance of a permissible legislative determination of public purpose [a determination we have already made in this case], and in addressing itself to the Fifth Amendment question, the court said:
"The final issue presented by this appeal is whether Ordinance No. 63-26 deprives the appellants and others of their class of their property without just compensation contrary to the due process requirements of the Fourteenth Amendment. See Panhandle E. Pipe Line Co. v. State Highway Comm., 294 U.S. 613, 55 S.Ct. 563, 79 L.Ed. 1090 (1935).
"Ordinance No. 63-26 was enacted on July 2, 1963, and provides that nonconforming signs may continue to be maintained until March 1, 1968, thus providing an amortization period of five years. In Standard Oil Co. v. City of Tallahassee, N.D.Fla.1949, 87 F.Supp. 145, aff'd. 5 Cir. 1950, 183 F. 2d 410, cert. den. 340 U.S. 892, 71 S. Ct. 208, 95 L.Ed. 647, it was held a zoning ordinance requiring the discontinuance of a nonconforming use after the expiration of a five-year amortization period did not constitute a deprivation of property without due process of law. Accord, Naegele Outdoor Adv. Co. v. Village of Minnetonka, Minn.1968 [281 Minn. 492], 162 N.W. 2d 206; City of Seattle v. Martin, 1959, 54 Wash.2d 541, 342 P.2d 602; Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A.2d 363 (1957); City of Los Angeles v. Gage, 1954, 127 Cal.App.2d 442, 274 P.2d 34. Therefore, the requirement contained in the ordinance that all nonconforming signs be removed by March 1, 1968, does not constitute a taking of property for which compensation must be given under the Fourteenth Amendment."
At time of trial, we thought that E. B. Elliott Advertising Co., supra, was persuasive authority for upholding an ordinance which would require removal of all non-conforming signs at the end of a five year period, but E. B. Elliott Advertising Co., supra, was decided and our trial was held before January 16, 1973, the date on which Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 93 S.Ct. 791, 35 L. Ed.2d 1 was decided.[4] Our trial date thinking stemmed from the evidence that almost all sign leases were for a five year period and from a belief that the leasehold term fixed the measure of compensation. Colloquy in the record shows that we so understood United States v. Petty Motor Co. (1945) 327 U. S. 372, 66 S.Ct. 596, 90 L.Ed. 729. We understood Petty Motor Co. as did the four dissenting Justices in Almota Farmers Elevator and Warehouse Company, where, speaking for the dissent, Justice Rehnquist said:
"In United States v. Petty Motor Co., supra, the Government acquired by condemnation the use of a structure occupied by tenants in possession under leases for various unexpired terms. The Court held that the measure of damages for condemnation of a leasehold is the value of the tenant's use of the leasehold for the remainder of the agreed term, less the agreed rent. The Court considered the argument, essentially the same raised by petitioner here, that a history of past renewal of the leases to existing tenants creates a compensable expectancy, *477 but held that the right to compensation should be measured solely on the basis of the remainder of the tenant's term under the lease itself. 327 U.S., at 380 [66 S.Ct. 596]. In so deciding, the Court stated:
`The fact that some tenants had occupied their leaseholds by mutual consent for long periods of years does not add to their rights. Emery v. Boston Terminal Co., 178 Mass. 172, 185, 59 N.E. 763 [per Holmes, C. J.]:
`"It appeared that the owners had been in the habit of renewing the petitioners' lease from time to time. . . . Changeable intentions are not an interest in land, and although no doubt such intentions may have added practically to the value of the petitioners' holding, they could not be taken into account in determining what the respondent should pay. They added nothing to the tenants' legal rights, and legal rights are all that must be paid for. Even if such intentions added to the saleable value of the lease, the addition would represent a speculation on a chance, not a legal right."' 327 U.S., at 390 n. 9. [66 S.Ct. 596].
"The holding in Petty was consistent with a long line of cases to the effect that the Fifth Amendment does not require, in a taking of a property interest, compensation for mere expectancies of profit, or for the frustration of licenses or contractual rights which pertain to the land, but which are not specifically taken and which are not vested property interests. Omnia Commercial Co. v. United States, 261 U.S. 502, 510 [43 S.Ct. 437, 67 L.Ed. 773] (1923); Sinclair Pipe Line Co. v. United States, 287 F.2d 175, 178 [152 Ct.Cl. 723] (1961); Chicago, M., St. P. & P. R. Co. v. Chicago, R. I. & P. R. Co., 138 F.2d 268, 270-271 (CA8 1943), cert. denied, 320 U.S. 804 [64 S.Ct. 437, 88 L.Ed. 486] (1944)."
Because of our misunderstanding of Petty Motor Co., it was with reluctance that we permitted testimony concerning the probability of renewal; that such probability is traded in the marketplace and is subject to market value determination. It is fortunate that we did permit the testimony, because the majority in Almota Farmers Elevator and Warehouse Company held:
"In view of this conflict in the circuits, we granted certiorari, 405 U.S. 1039 [92 S.Ct. 1312, 31 L.Ed.2d 579], to decide an important question of eminent domain law: `Whether, upon condemnation of a leasehold, a lessee with no right of renewal is entitled to receive as compensation the market value of its improvements without regard to the remaining term of its lease, because of the expectancy that the lease would have been renewed.'
.   .   .   .   .   .
"The Fifth Amendment provides that private property shall not be taken for public use without `just compensation.' `And "just compensation" means the full monetary equivalent of the property taken. The owner is to be put in the same position monetarily as he would have occupied if his property had not been taken.' United States v. Reynolds, 397 U.S. 14, 16 [90 S.Ct. 803, 805, 25 L.Ed.2d 12] (footnotes omitted). See also United States v. Miller, 317 U.S. 369, 373 [63 S.Ct. 276, 279, 87 L.Ed. 336]. To determine such monetary equivalence, the Court early established the concept of `market value': the owner is entitled to the fair market value of his property at the time of the taking. New York v. Sage, 239 U.S. 57, 61 [36 S. Ct. 25, 26, 60 L.Ed. 143]. See also United States v. Reynolds, supra, [397 U.S.] at 16 [90 S.Ct. at 805]; United States v. Miller, supra, [317 U.S.] at 374 [63 S.Ct. at 280]. And this value is normally to be ascertained from `what a willing buyer would pay in cash to a willing seller.' United States v. Miller, supra, at 374 [63 S. Ct., at 280]. See United States v. Virginia Electric and Power Co., 365 U.S. 624, 633 [81 S.Ct. 784, 790, 5 L. Ed.2d 838].

*478 "By failing to value the improvements in place over their useful life  taking into account the possibility that the lease would be renewed as well as the possibility that it might not  the Court of Appeals in this case failed to recognize what a willing buyer would have paid for the improvements. If there had been no condemnation, Almota would have continued to use the improvements during the renewed lease term, or if it sold the improvements to the fee owner or to a new lessee at the end of the lease term, it would have been compensated for the buyer's ability to use the improvements in place over their useful life.
.   .   .   .   .   .
"United States v. Petty Motor Co., 327 U.S. 372, [66 S.Ct. 596, 90 L.Ed. 729], upon which the Government primarily relies, does not lead to a contrary result. The Court did indicate that the measure of damages for the condemnation of a leasehold is to be measured in terms of the value of its use and occupancy for the remainder of the lease term, and the Court refused to elevate an expectation of renewal into a compensable legal interest. But the Court was not dealing there with the fair market value of improvements. Unlike Petty Motor, there is no question here of creating a legally cognizable value where none existed, or of compensating a mere incorporeal expectation. The petitioner here has constructed the improvements and seeks only their fair market value. Petty Motor should not be read to allow the Government to escape paying what a willing buyer would pay for the same property.
.   .   .   .   .   .
"At the time of the taking in this case, there was an expectancy that the improvements would be used beyond the lease term. But the Government has sought to pay compensation on the theory that at that time there was no possibility that the lease would be renewed and the improvements used beyond the lease term. It has asked that the improvements be valued as though there were no possibility of continued use. That is not how the market would have valued such improvements; it is not what a private buyer would have paid Almota.
"`The constitutional requirement of just compensation derives as much content from the basic equitable principles of fairness, United States v. Commodities Trading Corp., 339 U.S. 121, 124 [70 S.Ct. 547, 94 L.Ed. 707] (1950), as it does from technical concepts of property law.'"
Almota emphatically holds that market value[5] over the useful life of the improvements is the test. Almota rejects the unexpired leasehold term as the measure of value, and it demands that the provable value of a probability of renewal must be paid for. Read in the way most favorable to upholding its constitutionality, the Denver ordinance by its terms uses "replacement cost" as the measure of value, and, based on the record made, it may vaguely relate the amortization period to unexpired leasehold term, but it certainly does not permit amortization over useful life. If Almota means what we think it says, even the longest amortization permitted under the Denver ordinance does not approach compensating the owners for the value of the signs over their useful life, even if amortization is said to be permissible compensation. Therefore, whatever may have been the law before 1973, after Almota, it must be held that the amortization provided by the Denver ordinance does not meet the Fifth Amendment's requirement for the payment of just compensation.[6] Legislative rough approximations of just compensation won't do.
*479 Almota effectively disposes of this case,[7] but additional comments are in order. The hairline distinction between permissible regulation and compensable taking is fully discussed in the majority and dissenting opinions in City of St. Paul v. Chicago, St. Paul, Minneapolis and Omaha Railway Company (1969) 8 Cir., 413 F.2d 762. The majority held that a height restriction on future buildings which could be erected on the railroad's lands was permissible. The majority said, inter alia:
"Neither constitutional provision interposes a barrier to the imposition of restrictions on the use of private property if a zoning ordinance is enacted pursuant to a valid exercise of the police power. Goldblatt v. Town of Hempstead, 369 U.S. 590, [593, 82 S.Ct. 987, 8 L.Ed.2d 130]. . . .
"The test is whether the enactment falls within that power is one of reasonableness.
"The zoning ordinance will be sustained unless its `* * * provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.
.   .   .   .   .   .
"The mere fact that the ordinance seriously depreciates the value of the complainants' property is not enough to establish its invalidity. Goldblatt v. Town of Hempstead, supra at 594, 82 S.Ct. at 990, American Wood Products Co. v. City of Minneapolis, 21 F. 2d 440, 444 (D.Minn.1927) (J. Sanborn), aff'd, 35 F.2d 657 (8th Cir. 1929); Kiges v. City of St. Paul [240 Minn. 522], 62 N.W.2d [363] at 369. Nor can it be invalidated on the grounds that aesthetic considerations will be furthered if it is permitted to stand. Berman v. Parker, 348 U.S. 6, [75 S.Ct. 98, 99 L.Ed. 27] . . ..
"No evidence was offered at trial to show: that the ordinance was designed to restrict competition, compare, Pearce v. Village of Edina, 263 Minn. 553, 118 N.W.2d 659, 671, n. 1 (1962); or that the railroads acquired the property with the expectation that it would be used in the manner they now seek, compare, Alexander v. City of Minneapolis, 267 Minn. 155, 125 N. W.2d 583, 585 (1963); or that the railroads cannot continue to use their property as they have in the past."
Judge Mehaffy filed a vigorous dissent. He said:
"The majority opinion is erroneously based first on the mistaken assumption that there is no `taking' of appellees' property, and hence no violation of the mandate of the Fifth Amendment that `* * * nor shall private property be taken for public use, without just compensation,' and Article 1, § 13 of the Minnesota Constitution which provides that `private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.' The Supreme Court has long and consistently held that governmental restrictions can so diminish the value of property as to constitute a taking. In United States v. Central Eureka Mining Co., 357 U.S. 155, 168, 78 S.Ct. 1097, 1104, 2 L.Ed.2d 1228 (1958), the Court said:
`Traditionally, we have treated the issue as to whether a particular governmental restriction amounted to a constitutional taking as being a question properly turning upon the particular circumstances of each case. * * * In doing so, we have recognized that action in the form of regulation can so diminish the value of property as to constitute a taking.'" [Emphasis by the Court]
*480 The dissenting opinion then distinguishes the cases on which the majority relied [and in large part they are the cases urged by the City here] and Judge Mehaffy expressed the strong view that the St. Paul ordinance effected a taking. On rehearing, to consider the effect, if any, of Jankovich v. Indiana Toll Road Commission, 379 U.S. 487, 85 S.Ct. 493, 13 L.Ed.2d 439, the judges adhered to their earlier views. We do not think that even the views of the majority in City of St. Paul are particularly supportive of the City's contentions here. A reading of the opinions in that case convinces that the ordinance was upheld because reasonable uses of the property by the railroad company remained, and the St. Paul ordinance restricted only the type of use instead of prohibiting all use as does the Denver sign ordinance. In Jankovich, the Supreme Court held that the writ of certiorari had been improvidently granted for the reason that the decision of the Indiana Supreme Court was based upon state rather than federal constitutional grounds. The Indiana Court held that an ordinance of the City of Gary limiting the height of improvements in airway approach lanes to 18 feet was a taking which required the payment of compensation, and in dismissing the writ of certiorari, Justice White said:
"The Indiana Supreme Court had before it a case in which the effect of the ordinance was to establish a maximum height of 18 feet for structures on respondent's land. Although it recognized that zoning regulations may be upheld as a reasonable exercise of the police power `where the owner of property is merely restricted in the use and enjoyment of his property,' [Indiana Toll Road Commission v. Jankovich] 244 Ind. at 581, 193 N. E.2d at 240-241, the court held that a taking requiring compensation rather than mere regulation  was effected here because `the City of Gary has attempted, by the passage of the ordinance under consideration, to take and appropriate to its own use the ordinary usable air space of property adjacent to the Gary Airport.'"
Justice White said that no opinion was expressed as to the constitutionality of the ordinance under the Fifth Amendment, and we do not quote the case as an expression of any such view. However, his opinion does make the distinction we deem applicable  the distinction between a restriction on type of use and a prohibition against any reasonable use [and in our case a prohibition against any use at all.] Where the ordinance does no more than to reasonably restrict uses, leaving available other uses, it properly can be said to be within the police power and payment of compensation is not required. Where the ordinance prohibits any use or where it prohibits all reasonable uses, there is a taking, and the Fifth Amendment comes into play and demands the payment of just compensation. The Denver ordinance is in the second category, and, unless payment of just compensation is provided for, the ordinance must fall.
An illustration of the distinction between restrictions on the use of property and orders for the destruction of property can be drawn from the current public debate over the environmental problem of air pollution caused by automobiles. There is much grumbling over threatened gasoline rationing which would curtail the use of automobiles, but, assuming, arguendo, that such a regulation would be a valid exercise of the police power permitting reasonable restrictions on the use of automobiles, the same cleanliness of the air could be more expeditiously obtained by ordering the destruction of fifty percent of the automobiles in the country.[8] The general public would immediately cry out that such a command was unconstitutional under the Fifth Amendment as an uncompensated taking. The Denver ordinance *481 is no less unconstitutional just because it is aimed at sign companies instead of drawing bead on the public at large.
The headon collision between claims of police power and constitutional protections is as old as is our country. Just so long as their own property is not the object of attack, zealots are eager to bring about their ends through police power claims, but the limitations on the accomplishment of such righteous desires has never been better expressed than in the words of Justice Holmes in Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322:
". . . The protection of private property in the Fifth Amendment . . . provides that it shall not be taken for [public] use without compensation. . . . When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. But that cannot be accomplished in this way under the Constitution of the United States . . . .

"We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." [emphasis supplied.]
Perhaps [and we do not pass on the question] if City Council wishes, or if a majority of the people of the City wish, all or any part of the signs in Denver can be eliminated. But, if so, they can be eliminated only in accordance with the requirements of the Fifth Amendment, and the prohibitions against shortcuts mentioned by Justice Holmes are still enjoined by the Constitution. At best, if City Council wishes, or if a majority of the people of the City wish, all or any part of the signs in Denver can be eliminated by an ordinance which provides for the payment of "the full monetary equivalent of the property taken (which includes) what a willing buyer would have paid . . . for the buyer's ability to use the improvements over their useful life." Almota Farmers Elevator & Warehouse Co. v. United States (1973) 409 U.S. 470, 473, 474, 93 S.Ct. 791, 794, 795, 35 L.Ed.2d 1. Denver's signs can be eliminated if Denver is willing to provide for such elimination in the way the federal government and the state has so provided. Whether Denver wants to incur this expense is a decision City Council and the taxpayers must make.
We do not hold that immediate full payment in cash is necessarily the only possible solution. We hold only that the present Denver ordinance does not provide for the payment of just compensation. Whether a constitutional ordinance which does not require a cash payment of just compensation can be devised, we leave to the ingenuity of the City. Our decision today is limited to the existing ordinance which is all that is before us. Sec. 613.5-5(4) and Sec. 613.5-5(4)(a) are violative of the protections of the Fifth Amendment of the Constitution of the United States, and they are unconstitutional.
With this determination, we do not reach the other constitutional questions presented, because we should not resolve "constitutional questions unless their answers are indispensable to the disposition of the cause before us." Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138. See, also, Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129; United States v. Spector, 343 U.S. 169, 72 S.Ct. 591, 96 L.Ed. 863, and Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460.
Plaintiffs seek injunctive relief against the enforcement of Sec. 613.5-5(4)(a) of Denver's Revised Municipal Code. A preliminary injunction against the enforcement of that section was granted on December 9, 1971, and that preliminary injunction is made permanent. As to the remaining portions of Sec. 613.5-5(4), of the Revised Municipal Code of the City and County of Denver, plaintiffs ask only declaratory relief, *482 and this memorandum opinion sets forth the findings and conclusions supportive of the declaratory judgment requested. Plaintiffs are directed to submit an appropriate form of declaratory judgment within 10 days of the date of this opinion, which judgment shall include a declaration that Denver's Revised Municipal Code, Sec. 613.5-5(4) and Sec. 613.5-5(4)(a) are violative of the Fifth Amendment of the Constitution of the United States because they attempt to accomplish a taking of property without the payment of just compensation. Plaintiffs and Intervenor shall be awarded their costs. Amicus shall bear their own costs.
NOTES
[1]  These matters are left for state court determination.
[2]  As will be discussed later, the impromptu use of the word "investment" was inartful. The phrase "fair market value" should have been used instead of "investment."
[3]  Admittedly, Mr. Udall was testifying as an expert on the law at this point, but it came out during his direct examination as an expert for the city, and we regard his statement of position as being in effect a statement of position made by "special counsel"  especially when his contract of employment by the city is studied.
[4]  Both also antedated Shutler v. United States (1973) 10 Cir., 470 F.2d 1143.
[5]  "Market value" is the established test in the law, and the court's reference at time of trial to an owner's "investment" was inadvertent.
[6]  Just what overall effect Almota has on the constitutionality of amortization of non-conforming uses we leave for another day and, we hope, another court.
[7]  Amicus Consumers for Better Signs and Plan Metro Denver distinguishes Almota on the ground that it was an eminent domain case, and, says Amicus, Almota is therefore inapplicable. We do not subscribe to the theory that the applicability of the Fifth Amendment is governed by the nomenclature or form of the action.
[8]  Under the theory of Denver's ordinance. Vegas would have to be destroyed in two years, Impalas in three years, Oldsmobiles in four years and Cadillacs in five years.


99 F.3d 1138
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Sharon FOSS, Plaintiff-Appellant,v.Francis DRAKE, Individually and as an Agent and Servant ofEaglewings Systems;  and Eaglewings Systems,Defendants-Appellees.
No. 95-6364.
United States Court of Appeals, Sixth Circuit.
Oct. 11, 1996.

Before:  MARTIN, Chief Judge;  CONTIE, Circuit Judge;  and CARR*, District Judge.
PER CURIAM.

1
Plaintiff-appellant, Sharon Foss, appeals the district court's grant of summary judgment to defendants-appellees, Francis Drake and Eaglewings Systems.  For the following reasons, we affirm.

I.

2
This is a wrongful death diversity action brought by the surviving spouse of Carson Foss, who was an employee of the Tennessee/Alabama Line Maintenance Company, and died as a result of an accident which occurred on March 25, 1991.  On this date, Carson Foss was working on East Main Street in Jonesboro, Tennessee as a member of a four-man line maintenance crew responsible for clearing the power lines of trees and shrubs.  In order to perform their work, the crew was using a bucket truck or "cherry picker" equipped with a two-piece boom approximately 40 feet in length with a bucket at the end of the boom.  The "cherry picker" was parked in the westbound lane of travel with the boom stretched across the eastbound lane, allowing the crew to work on a tree located several feet from the eastbound lane.  The truck was stabilized by a set of outriggers on each side of it.

3
On the date of the accident, Carson Foss was in the bucket, cutting back the limbs of the trees.  There were two flagmen, located on both sides of the truck, directing traffic.  The crew had been trimming trees all morning on Main Street and had been at the location of the accident for about one-half hour.  Prior to the accident, many vehicles had passed safely under the boom, including cars, trucks, and school buses.

4
On the morning of March 25, 1991, defendant Drake loaded his truck, a tractor-trailer, at the Burton Rubber Company just outside of Jonesboro en route to Greenwood, Arkansas.  Mr. Drake was employed as a truck driver with defendant Eaglewings Systems, where he had worked for approximately two years.  Mr. Drake had been driving tractor-trailer units for approximately 20 years.

5
At about 3 p.m., defendant Drake approached the work site, noticed the boom stretched across the roadway, and slowed his vehicle to approximately three miles per hour.  Mr. Drake was traveling east on Main Street and as he approached, he was stopped by Larry Garst, the first flagman.

6
In accordance with Larry Garst's instructions, defendant Drake brought his vehicle to a complete stop and waited for a signal that the lane was safe for him to proceed.  Larry Garst motioned to Carson Foss, plaintiff's husband, who was in the bucket, to raise the boom so that Drake's truck could pass under it.  Mr. Foss raised the boom.  After Larry Garst motioned for defendant Drake to proceed, Drake began to move up the hill toward the bucket truck at approximately three miles per hour.  When he got to within about 10 to 15 feet in front of the truck, the flagman stopped him for a second time.  Mr. Drake stated that he independently determined that the boom was high enough for his tractor-trailer to safely proceed underneath it.

7
After the flagman motioned for Drake to go forward, he moved the truck at a slow crawl forward.  The tractor portion of defendant's vehicle proceeded under the boom safely.  However, as the trailer portion was going under the boom, contact was made between the trailer and the lower portion of the boom.  The knuckle, where the two parts of the boom were joined together, broke, the upper portion of the boom plunged downward, and Mr. Foss fell to the road in his bucket, receiving several injuries from which he later died.

8
Jerry Garst, the second flagman, immediately signaled for defendant to stop, and defendant complied with this request and brought his truck to a complete stop.  Both flagmen testified that defendant complied with all of their instructions throughout the entire incident.  Both flagmen also testified that defendant did not operate his vehicle in a careless manner.  Jerry Garst, the second flagman, who was standing 10 to 15 feet in front of the cherry picker and witnessed the accident, testified that the boom had suddenly dropped, striking the trailer, and that if the boom had not dropped, the truck would have been able to safely pass underneath it.  Larry Garst, the first flagman, testified that there was approximately one and one-half feet of clearance.  He stated that if he had been unsure of whether defendant's vehicle could safely pass under the boom, he would not have motioned for defendant to proceed.

9
Plaintiff Sharon Foss filed the original action in this case in the United States District Court for the Eastern District of Tennessee on August 8, 1991.  She entered a voluntary dismissal without prejudice on May 14, 1992 and refiled her action on May 14, 1993.  On August 17, 1995, defendants filed a motion for summary judgment, and plaintiff filed a response.  On September 14, 1995, the district court granted defendants' motion for summary judgment.  Plaintiff timely filed an appeal.

II.

10
We must determine whether the district court erred in determining that defendants were entitled to summary judgment as a matter of law.

11
We review a grant of summary judgment  de novo.  Felty v. Graves-Humphreys Co., 818 F.2d 1126 (4th Cir.1987).  Summary judgment is appropriate in those cases in which there is no genuine dispute as to material fact, and the moving party is entitled to judgment as a matter of law.  Fed.R.Civ.P. 56(c);   Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).  All permissible inferences must be drawn from the underlying facts in the light most favorable to the party opposing the motion.   Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).  A plaintiff must present significant probative evidence in support of the allegations made in her complaint to defeat a motion for summary judgment.   Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

12
In the present case, plaintiff Sharon Foss claims that defendant Drake was negligent in attempting to drive his tractor-trailer under the boom of the cherry picker and should have gotten out of his truck to make an independent determination whether there was sufficient clearance.  Plaintiff contends that there is a genuine issue of fact about how the accident occurred.  Defendants Drake and Eaglewings Systems, Drake's employer, argue that there is no genuine issue of material fact because there is no evidence that defendant Drake was negligent.

13
The district court held that a careful review of all the evidence in the record made it clear that plaintiff Foss could not carry her burden of proof that defendant Drake was negligent.  The district court stated the following in this regard:

14
No witness to the accident, including the flagman and Mr. Drake himself (who claims to have made an independent determination that there was sufficient clearance to pass under the boom) has suggested that there was insufficient clearance.  In fact, the overwhelming evidence is that the boom came down on the trailer after the tractor portion of the rig had already passed safely under it and that the tractor had a windfoil making it just as tall as the loaded trailer.  Accordingly, the Court finds as a matter of law, that Mr. Drake was not negligent in proceeding when instructed to do so.

15
....

16
The eyewitness testimony, the physical evidence from an examination of the boom itself, and the photographs of the accident scene all indicate that, for some unknown reason, the boom came down fast onto the truck.  One possible explanation is that Mr. Foss accidentally lowered the bucket himself.  Another is that the knuckle of the boom, which has been found to have a pre-existing crack in it, simply chose this inopportune time to fail.  While the Court agrees that the evidence is inconclusive, this does not mean that the case must go to the jury in the absence of any indication of fault on Mr. Drake's part.

17
We agree with the district court's analysis as the evidence in the record supports his conclusions.  The uncontroverted testimony is that defendant Drake's vehicle did not hit the boom or the outriggers.  Although it is not clear exactly what caused the boom to drop, be it mechanical failure, operator error, or otherwise, the eyewitness evidence is undisputed that defendant's vehicle did not strike the boom;  instead the boom dropped and hit the trailer portion of the truck.

18
The uncontroverted testimony in this case is also that if the boom had not dropped, the tractor-trailer would have been able to safely pass underneath it.  Larry Garst testified that when Drake started to move forward, after stopping a second time, the boom was high enough for his truck to get underneath it.  He testified that there was approximately one and one-half feet of clearance and that if he was not sure that defendant's vehicle could safely pass, he would not have motioned for defendant to proceed forward.  Likewise, the second flagman, Jerry Garst, testified that there was "plenty of room" for the tractor-trailer to go under the boom when the truck started to go under it.

19
Jerry Garst, who witnessed the accident, described how he motioned to Mr. Foss to boom up, how Foss complied, and how Foss was waiting for the truck to go underneath him.  Jerry Garst's testimony was as follows:

20
Q. Then, what did you do?

21
A. I motioned the tractor and trailer on.

22
Q. And did he start coming forward then, Mr. Drake?

23
A. Yes.

24
Q. At still crawling or can you give an estimate of his speed?

25
A. Yeah, crawling, yeah.

26
Q. And tell me what happened.

27
A. Well, about--about the time he got up there where his trailer and the boom was, why, the bucket dropped, the boom dropped and it caught the cylinder on the bottom part of the boom, the corner of the trailer did.

28
Q. All right.  Had the tractor part of the tractor-trailer already gone under the boom?

29
A. Yes, it had that big air stoop [windfoil], you know, on top of it, and it had done gone in under it.

30
Q. So it was clear?

31
A. Yes.

32
Q. Now, did the trailer strike the boom or did the boom come down on the trailer?

33
A. The boom dropped.

34
Q. The trailer--

35
A.  And the trailer hits it, you know.  As soon as I seen what happened, I motioned for him to stop and he stopped.

36
Q. So at the point where the trailer started to go under the boom, is it your testimony that the boom dropped?

37
A. Yes.

38
Q. Did it drop onto the trailer?

39
A. Yes, onto--well, it dropped on the front of the trailer and the cab, it dropped just enough to barely catch the corner of the trailer.

40
Q. If the boom had not dropped, would the trailer have been able to go under it?

41
A. Yes.

42
Q. Do you know what caused the boom to drop?

43
A. No, sir, I don't.

44
Q. But it's your testimony the trailer did not hit the boom to cause it to drop?

45
A. Right.

46
Deposition of Jerry Garst at 20-21 (Joint Appendix at 74-75).

47
Mr. Drake testified that he had determined, based on his observation of the height of the boom and his knowledge of the height of his trailer, that he could proceed safely under the boom.  He testified that after Mr. Foss had boomed up and the flagman motioned him forward, he proceeded very carefully until he was told to stop, which was after impact between the truck and the boom.

48
Defendants' witness, David G. Brown, who was a mechanical engineer, testified about the cause of the accident, and his testimony supports the eyewitness account.  Brown was an engineer who did automated accident investigation.  The engineer testified that he found no evidence of a damaging impact to the boom, which would be necessary under plaintiff's theory of the case that the truck hit the boom because of insufficient clearance.  After examining the boom, the engineer ruled out the possibility that the truck moved up to the boom and exerted horizontal force on the boom by pushing against it.  The engineer based his analysis on an examination of the fracture surfaces in the knuckle and the boom.  The engineer testified that if there were a force sufficient to exert a horizontal force on the boom such as would stress the fracture site to the point at which it would break and fall, he would expect to see an abrasion on the side of the boom consistent with this theory and that he did not find such an abrasion.  The engineer described in some detail the fracture site, which he believed contained a pre-existing crack, as follows:

49
The fracture surface, I have not seen any photographs in ages, but there were areas where the fracture surface was soiled.  You could tell it was an irregular fracture surface where it was stained with oil, road dirt, grime.  It was clearly an old fracture, discolored approximately 50 percent of the fracture surface, and then the rest of the fracture surface was bright and clean.

50
Deposition of David G. Brown (Joint Appendix at 574).  The engineer testified that the old fracture flowed into the new fracture site.  Thus, there is evidence that there was a prior defect or crack in the knuckle of the boom, which might have contributed to the cause of the accident.  Based on this, we agree with the district court that the eyewitness testimony and the physical evidence from an examination of the boom itself indicate that Mr. Drake did not strike the boom.

51
The only evidence which Ms. Foss suggests supports her theory of the case (that the truck negligently struck the boom) is the testimony of William A. Miller, who was driving behind the tractor-trailer at the time of the accident.  However, Mr. Miller testified that because he was looking at some papers on the seat of his car, he was not looking when the accident occurred.  He merely testified that he heard a noise, which at the time, he had interpreted as the tractor-trailer hitting the boom.  However, he did not say that he actually saw the tractor-trailer hit the boom.  He testified that when he did look up, he saw the second leg of the boom wobbling and then saw it come plummeting down, thrusting the bucket onto the pavement.  As the district court pointed out, Mr. Miller may well have heard the crack of the metal failure when the knuckle of the boom broke.  Also, there was testimony that the tractor portion of the rig with the windfoil, which was approximately the same height as the trailer, had already safely passed under the boom before the accident occurred.

52
Plaintiff's alleged experts at trial, who stated they believed Drake was negligent, had no experience analyzing accidents and admitted they had not reviewed the eyewitness testimony or examined the physical evidence.  Because there is no evidence in the record to indicate that Mr. Drake negligently caused the accident by driving his tractor-trailer under the boom and struck it because of insufficient clearance or that he hit the outriggers, plaintiff's claim cannot withstand a motion for summary judgment.

53
To conclude, plaintiff was not able to produce any probative evidence to support her theory that the accident occurred as a result of Drake's negligence.  Therefore, the district court properly granted defendants' motion for summary judgment.  The decision of the district court is hereby AFFIRMED.

*
 The Honorable James G. Carr, United States District Judge for the Northern District of Ohio, sitting by designation


                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       July 11, 2006
                                    TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court

 ALI M EHDIPOUR,

                 Petitioner - A ppellant,               No. 05-6376
          v.                                          W . D. Oklahoma
 LISA PARK ER ; R ON WA R D ,                     (D.C. No. 03-CV-534-C)

                 Respondents - Appellees.

               OR DER DENY ING CERTIFICATE O F APPEALABILITY *

Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.

      Ali M ehdipour was convicted in Oklahoma state court of distribution of

methamphetamine. On April 22, 2003, he filed an application under 28 U.S.C.

§ 2254 in the United States District Court for the W estern District of Oklahoma.

The m agistrate judge recommended that the application be denied. On

October 19, 2005, the district court adopted the recommendation. The district

      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
court also denied a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1)

(requiring C OA ). M r. M ehdipour now seeks a COA from this court, which we

deny.

I.      B ACKGR OU N D

        On M arch 28, 1997, M ichael Snow den, an agent with the Oklahoma Bureau

of Narcotics and Dangerous Drugs, purchased methamphetamine from

M r. M ehdipour at a sale arranged by confidential informant Harvey Stafford. O n

July 31, 1997, Agent Snow den arrested M r. M ehdipour without a warrant and

seized $1083.00 from him. The state sought the money in a civil forfeiture

action, which was dismissed with prejudice on August 14, 1998. In April 1999

M r. M ehdipour was tried and convicted of methamphetamine distribution in

Oklahoma state court. Agent Snow den had worn a wire transmitter during the

drug sale. Admitted into evidence at trial was an audiotape of (1) the

conversation during the sale and (2) the telephone conversation between

M r. M ehdipour and M r. Stafford arranging the sale.

        M r. M ehdipour appealed his conviction to the Oklahoma Court of Criminal

Appeals (OCCA), which affirmed. He then filed in state court an application for

postconviction relief, which the district court denied. The OCCA affirmed the

denial.

        On appeal M r. M ehdipour makes the follow ing claims: (1) the w arrantless

arrest violated his Fourth Amendment rights; (2) the admission of the audiotape

                                          -2-
violated the Fourth Amendment, the Federal Wiretap Act, and Oklahoma’s

wiretap law; (3) the admission of the audiotape was improper under state evidence

law because Agent Snow den, who identified M r. M ehdipour’s voice on the tape,

was not qualified as an expert in voice identification; (4) his trial counsel was

constitutionally ineffective in his litigation of the Fourth Amendment and

wiretap-law claims, and in failing to investigate the case adequately; (5) his due

process rights under Brady v. M aryland, 373 U.S. 83 (1963), were violated by the

admission without prior notice of incriminating evidence obtained in a separate

investigation conducted before his arrest; (6) his conviction was barred by

collateral estoppel; and (7) his trial counsel was ineffective for failing to request

an expert-witness-qualification hearing under Daubert v. M errell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael,

526 U.S. 137 (1999).

II.   D ISC USSIO N

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires a “showing that reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks

                                          -3-
omitted). In other w ords, the applicant must show that the district court’s

resolution of the constitutional claim was either “debatable or wrong.” Id.

      The A ntiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in state court, a

federal court will grant habeas relief only when the applicant establishes that the

state court decision was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States,” or “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2).

             Under the “contrary to” clause, we grant relief only if the state
      court arrives at a conclusion opposite to that reached by the Supreme
      Court on a question of law or if the state court decides a case
      differently than the [Supreme] Court has on a set of materially
      indistinguishable facts. Under the “unreasonable application” clause,
      relief is provided only if the state court identifies the correct
      governing legal principle from the Supreme Court’s decisions but
      unreasonably applies that principle to the facts of the prisoner’s case.
      Thus w e may not issue a habeas w rit simply because we conclude in
      our independent judgment that the relevant state-court decision
      applied clearly established federal law erroneously or incorrectly.
      Rather, that application must also be unreasonable.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal quotations and

citations omitted). For those of M r. M ehdipour’s claims that were adjudicated on

the merits in state court, “AEDPA ’s deferential treatment of state court decisions

must be incorporated into our consideration of [his] request for COA.” Dockins

                                         -4-
v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). Factual determinations of the state

court are presumed correct, and the habeas applicant has “the burden of rebutting

the presumption of correctness by clear and convincing evidence.” 28 U.S.C

§ 2254(e)(1).

      No reasonable jurist could dispute the district court’s denial of

M r. M ehdipour’s Fourth Amendment claims based on the warrantless arrest and

the admission of the audiotape. These claims are barred on habeas review by

Stone v. Powell, 428 U.S. 465 (1976). Nor could a reasonable jurist dispute the

district court’s denial of relief on the claims that the admission of the audiotape

violated federal and state law. Section 2254 does not provide relief for violations

of state law. See Estelle v. M cGuire, 502 U.S. 62, 67 (1991). And the recording

of M r. M ehdipour’s conversations was proper under the consent exception to the

Federal W iretap Act because on direct appeal the OCCA found that the other

party to the conversation consented, and M r. M ehdipour has not rebutted that

finding. See United States v. Faulkner, 439 F.3d 1221, 1224 (10th Cir. 2006)

(noting that the consent exception applies “where one of the parties to the

comm unication has given prior consent to . . . interception [of a wire, oral, or

electronic communication]” (quoting 18 U.S.C. § 2511(2)(d))).

      M r. M ehdipour makes several claims of ineffective assistance of trial

counsel related to the w arrantless arrest and admission of the audiotape. These

claims are not precluded by Stone. See Kimmelman v. M orrison, 477 U.S. 365,

                                          -5-
382-83 (1986). Strickland v. Washington, 466 U .S. 668, 687 (1984), requires a

defendant to support an ineffectiveness claim by showing “that counsel’s

performance was deficient” and that “the deficient performance prejudiced the

defense[, which] requires showing that counsel’s errors w ere so serious as to

deprive the defendant of a fair trial.” M r. M ehdipour complains that trial counsel

did not interview the arresting officers or a neighbor who apparently had

knowledge about the warrantless arrest. He states that if counsel had done so, he

would have discovered additional evidence that the warrantless arrest was

improper. He also complains that counsel failed to interview M r. Stafford, the

confidential informant, and that during such an interview counsel would have

learned that M r. Stafford had not consented to the recording of his conversation

with M r. M ehdipour and that M r. Stafford had never purchased drugs from

M r. M ehdipour or spoken with him on the telephone. Finally, he argues that

counsel elicited certain damaging testimony at trial as a result of the failure to

investigate the case properly.

      The magistrate judge recommended rejecting M r. M ehdipour’s claim that

counsel’s failure to interview the witnesses caused him to elicit damaging

testimony at trial. The magistrate judge stated that in light of the overwhelming

evidence of guilt, M r. M ehdipour had not shown that he had been deprived of a

fair trial. The magistrate judge also recommended rejecting M r. M ehdipour’s

claim regarding his counsel’s failure to interview M r. Stafford, stating that he had

                                          -6-
failed “to show how th[e] verdict could have been changed by any testimony from

Stafford.” Report at 26. Both recommendations were adopted by the district

court and would not be disputed by reasonable jurists. As for M r. M ehdipour’s

claim regarding failure to interview the arresting officers and his neighbor, he did

not raise the claim in district court, so we will not consider it. See Simmat v. U.S.

Bureau of Prisons, 413 F.3d 1225, 1240 (10th Cir. 2005) (we will not address

issues raised for the first time on appeal).

      M r. M ehdipour asserts that he was denied his due-process rights under

Brady, when Agent Snowden testified, without prior notice to M r. M ehdipour,

about evidence regarding M r. M ehdipour that was obtained in another

investigation before his arrest. But M r. M ehdipour did not raise Brady in district

court, so we will not address this argument. See Simmat, 413 F.3d at 1240.

      M r. M ehdipour also argues that his conviction is improper under the

collateral-estoppel doctrine because in the forfeiture action the state district court

had ruled in his favor, holding that the money was seized in violation of the

Fourth and Fourteenth Amendments. M r. M ehdipour argues that “since the

[money] was seized on the same facts as used in the criminal accusation, the state

was barred from re-trying the action in a criminal proceeding under collateral

estoppel.” Aplt. Br. at 30. But in order for collateral estoppel to apply, the

following conditions must be met:

                                           -7-
      (1) the issue previously decided is identical with the one presented in
      the action in question, (2) the prior action has been finally
      adjudicated on the merits, (3) the party against w hom the doctrine is
      invoked was a party or in privity with a party to the prior
      adjudication, and (4) the party against whom the doctrine is raised
      had a full and fair opportunity to litigate the issue in the prior action.

United States v. Rogers, 960 F.2d 1501, 1508 (10th Cir. 1992) (internal quotation

marks omitted). The magistrate judge recommended dismissal of

M r. M ehdipour’s collateral-estoppel claim on the ground that the record

supported the OCCA’s finding that

      the issue at stake in the civil forfeiture action (whether drug dealing
      was the likely source of the $1083 taken from [M r. M ehdipour] when
      he was arrested) is totally distinct from the issue at stake in the
      criminal case (whether he sold 13.1 grams of methamphetamine to
      Agent Snowden four months earlier).

R. Doc. 31 at 15 (internal quotation marks omitted). W e agree. Reasonable

jurists w ould not dispute that the Oklahoma court’s ruling was neither contrary to

nor an unreasonable application of federal law.

      Finally, M r. M ehdipour makes an ineffective-assistance-of-counsel claim

based on his counsel’s failure to request a hearing under Daubert and Kum ho Tire

Co. He argues that counsel should have requested such a hearing because neither

“the trial court nor Agent Snow den qualified as technical or other specialized

knowledge to scientific testimony to the identity of voice found on the

audiotape.” A plt. Br. at 36. But M r. M ehdipour did not raise these claims in

district court, so we will not address them. See Simmat, 413 F.3d at 1240.

                                          -8-
III.   C ON CLU SIO N

       W e DENY a COA and DISM ISS the appeal.

                                   ENTERED FOR THE COURT

                                   Harris L Hartz
                                   Circuit Judge

                                    -9-