Opinion Flash

March 18, 2002
Volume 8 — Number 049

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink.

This Issue (IN THIS ORDER):
 
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
01 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
08 New Opinion(s) from the Tennessee Court of Appeals
12 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


SUPREME COURT OF TENNESSEE SUPREME COURT DISCRETIONARY APPEALS

Court:TSC - Rules

http://www.tba.org/tba_files/TSC_Rules/certlist_0315.wpd

STATE OF TENNESSEE EX REL. RHONDA ANDERSON v. LESTER JARRETT

and

STATE OF TENNESSEE EX REL. MELINDA BENSON v. HERMAN HARRIS

Court:TCA

Attorneys:  

Paul G. Summers, Attorney General and Reporter, and Stuart
Wilson-Patton, Assistant Attorney General, for the Appellants, State
of Tennessee, ex rel. Rhonda Anderson and Melinda Benson.


Judge: FARMER

First Paragraph:

This is a child support case concerning jurisdiction to review certain
administrative decisions rendered by the Department of Human Services.
 In its order, the juvenile court transferred the case, concluding
that section 4-5-322 of the Tennessee Code placed jurisdiction with
the "appropriate chancery court."  Despite its order transferring the
case, the juvenile court also decided the case on the merits and ruled
that the State acted in contravention to section 36-5-905 of the
Tennessee Code regarding the seizure of an obligor's assets.  The
court further concluded that section 36-5-905 was unconstitutional. 
We reverse the trial court regarding its jurisdictional determination
and hold that the trial court erred by reaching the constitutional
issue.

http://www.tba.org/tba_files/TCA/anderson.wpd

FRANK D. DONOVAN v. NATIONAL COMMERCE BANK SERVICES, INC., NATIONAL
COMMERCE BANCORPORATION, and NATIONAL BANK OF COMMERCE

Court:TCA

Attorneys: 

Lee L. Piovarcy and James L. Coggin, Memphis, Tennessee, for the
appellant, Frank D. Donovan.

Frank J. Glankler, Jr., and C. Barry Ward, Glankler Brown, PLLC,
Memphis, Tennessee for the Appellees, National Commerce Bank Services,
Inc., National Commerce Bancorporation, and National Bank of Commerce.
                        
Judge: LILLARD

First Paragraph:

This is a breach of contract case.  The defendant bank hired the
plaintiff as a consultant to contact supermarkets about placing branch
banks in their stores.  In August 1988, the parties signed  a written
consulting contract which expired by its own terms in November 1988. 
In that contract, the plaintiff was to receive a salary plus $2,000
for each branch bank placed in a store as a result of his efforts. 
This contract expired, but the plaintiff continued to work for the
bank for about ten years with no other written agreement.  The
plaintiff was never paid the $2,000-per-store bonus.  In 1990, the
plaintiff asked the bank to pay the $2,000-per-store bonus, and this
request was ignored.  The plaintiff's employment was terminated in
1998.  In May 1999, the plaintiff sued the bank for breach of
contract, claiming that they owed him the $2,000-per-store bonus under
the original contract.  The trial court granted the bank summary
judgment based on the applicable statute of limitations.  The
plaintiff now appeals.  We affirm, finding that the cause of action
accrued, at the latest, in 1990 when the plaintiff requested the bonus
and his request was ignored.

http://www.tba.org/tba_files/TCA/donovanf.wpd

BRIAN ELKINS v. REX A. BERRY and WILLIAM A. BOLIN

Court:TCA

Attorneys:  

Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellants, Rex. A
Berry and William A. Bolin.

Charles L. Hicks, Camden, Tennessee, for the appellee, Brian W.
Elkins.

Judge: LILLARD

First Paragraph:

This case involves the right to a trial by jury.  The plaintiff sued
the defendants for injuries he sustained in an automobile collision
that was allegedly caused by the defendants' negligence.  In the
plaintiff's complaint, he demanded a jury trial.  The defendants also
demanded a jury trial in their answers.  On the eve of trial,
unbeknownst to the defendants, the plaintiff withdrew his jury demand.
 On the morning of trial, the defendants appeared but were
unrepresented by counsel.  The trial court proceeded with a bench
trial, and entered a judgment in favor of the plaintiff.  The
defendants now appeal, claiming, inter alia, that they were denied
their right to a jury trial.  We affirm, finding that the defendants'
participation in the bench trial, without objection, constituted a
waiver of their right to a jury trial under Rules 38.05 and 39.01 of
the Tennessee Rules of Civil Procedure.

http://www.tba.org/tba_files/TCA/elkinsb.wpd

IN RE:  RAGAN ELIZABETH HINSON, JAMES BRIAN HINSON v. KELLI SHANNON
GATTON

Court:TCA

Attorneys: 

Marianna Williams, Dyersburg, For Appellant, James Brian Hinson

James S. Wilkes, Jr., Dyersburg, For Appellee, Kelli Shannon Gatton                         

Judge: CRAWFORD

First Paragraph:

Father filed a petition to increase visitation, for joint custody and
other relief.  The juvenile court modified visitation and ordered
joint custody.  Father appeals.  We affirm.

http://www.tba.org/tba_files/TCA/hinsonbrian.wpd

ELIZABETH E. PETTY v. STATE OF TENNESSEE

Court:TCA

Attorneys:

Jerrold L. Becker and Samuel W. Brown, Knoxville, Tennessee, for
Appellant.

Ronald C. Leadbetter, Associate General Counsel, The University of
Tennessee, Knoxville, for Appellee.                       

Judge: FRANKS

First Paragraph:

In this action, the Commission found no contract between the parties
and dismissed the claim.  On appeal, we affirm.

http://www.tba.org/tba_files/TCA/pettye.wpd

JOEL PETTY v. DAIMLER/CHRYSLER CORPORATION

Court:TCA

Attorneys:

Patrick M. Ardis and Daniel K. Evans, Memphis, Tennessee, for the
appellant, Joel Petty.

Ernest A. Petroff, J. Randolph Bibb, Jr., and Bradley E. Trammell, for
the appellee, Daimler Chrysler Corporation.                   

Judge: FARMER

First Paragraph:

Plaintiff in this case alleges that Defendant violated Tennessee's
motor vehicle glass safety statutes which were in effect when
Plaintiff purchased his vehicle in 1998.  The court below found no
violation and entered judgment for Defendant.  We find that Plaintiff
failed to introduce evidence of injury or damages and therefore affirm
judgment for Defendant.

http://www.tba.org/tba_files/TCA/pettyjoel.wpd

ERICA R. SLAUGHTER v. ROSETTA ROWE

Court:TCA

Attorneys:  

Lloyd A. Levitt, Chattanooga, Tennessee, for the Appellant Rosetta Rowe.

Erica R. Slaughter, Appellee, pro se.                        

Judge: SWINEY

First Paragraph:

Erica R. Slaughter ("Slaughter") sued Rosetta Rowe ("Rowe") for
slander and harassment after an alleged physical altercation
precipitated by Slaughter's affair with Rowe's husband.  After the
physical altercation, Slaughter filed assault charges against Rowe
leading to her arrest.  The assault charge was eventually dismissed. 
Rowe filed a counter-claim for malicious prosecution.  Each party
testified at trial to her version of the events.  The Trial Court
concluded neither party carried her burden of proof on her claim and
dismissed the entire lawsuit.  Rowe appeals, and we affirm.

http://www.tba.org/tba_files/TCA/slaughtere.wpd

GLEN TUCKER d/b/a GLEN TUCKER CONSTRUCTION v. STEVE HOWELL, et al.

Court:TCA

Attorneys: 

Carthel L. Smith, Jr., Lexington, For Appellant, Glen Tucker

Edwin Townsend, Jr., Parsons, For Appellees, Steve and Lisa Howell                         

Judge: CRAWFORD

First Paragraph:

Plaintiff home owner sued defendant construction company for damages
resulting from defendant's failure to complete construction of
plaintiffs' home.  The Chancery Court of Decatur County, Tennessee
entered judgment in favor of the plaintiffs in the amount of
$17,057.00.  Defendant has appealed.  We dismiss the appeal.

http://www.tba.org/tba_files/TCA/tuckerglen.wpd

STATE OF TENNESSEE v. LARRY AMMONS

Court:TCCA

Attorneys:

Gregory C. Krog, Jr., Memphis, Tennessee (on appeal); Gary F.
Antrican, District Public Defender; and Julie K. Pillow, Assistant
District Public Defender (at trial), for the appellant, Larry Ammons.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; and Elizabeth T. Rice, District Attorney
General, for the appellee, State of Tennessee.                     

Judge: GLENN

First Paragraph:

The defendant was convicted in 1993 of three counts of aggravated
burglary, and the trial court imposed three concurrent three-year
sentences.   In 1995, the defendant was convicted of one count of
burglary and five counts of aggravated burglary.  The trial court
imposed a four-year sentence for the burglary count and six-year
concurrent sentences for each of the aggravated burglary counts.  The
defendant's latter sentences were to be served consecutively to his
previous three-year sentence, with probation granted as to all
sentences.  Subsequently, a petition to revoke the defendant's
probation was filed, alleging that the defendant had failed to report
to his probation officer and failed to pay restitution as ordered. 
Following a hearing, the court revoked the probation, and the
defendant timely appealed.  On appeal, the defendant claims that there
was insufficient evidence to revoke his probation, that his due
process rights were violated, and that he received ineffective
assistance of counsel during his probation revocation hearing.  After
a thorough review of the record, we affirm the judgment of the trial
court but remand for entry of a corrected order revoking probation
only as to Docket No. 6112.

http://www.tba.org/tba_files/TCCA/ammonslarry.wpd

STATE OF TENNESSEE v. RODNEY M. BUTLER

Court:TCCA

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee, for the appellant, Rodney
M. Butler.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; Jerry Woodall, District Attorney General;
and Shaun A. Brown, Assistant District Attorney General.

Judge: WELLES

First Paragraph:

The Defendant, Rodney M. Butler, was indicted by a Madison County
grand jury for one count of unlawfully driving or being in physical
control of a motor vehicle while under the influence of an intoxicant,
one count of unlawfully driving or controlling a motor vehicle with a
blood or breath alcohol concentration of .10% or more, and one count
of driving under the influence, fourth offense.  The Defendant was
convicted on all three counts.  The trial court merged counts one and
two into count three, and, after a sentencing hearing, sentenced the
Defendant as a Range II offender to four years in the Department of
Correction and reduced the jury-imposed fine of $15,000 to $10,000. 
On appeal, the Defendant contends that the evidence was insufficient
to prove that he was in physical control of the motor vehicle and also
contends that he was improperly sentenced.  We affirm the judgment of
the trial court.

http://www.tba.org/tba_files/TCCA/butlerrm.wpd

STATE OF TENNESSEE v. ANTONIO COACH

Court:TCCA

Attorneys:  

Antonio Coach, Pro Se, Tiptonville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General; C.
Phillip Bivens, District Attorney General, for the Appellee, State of
Tennessee.                        

Judge: HAYES

First Paragraph:

The Appellant, Antonio Coach, appeals from the Lake County Circuit
Court's denial of his pro se petition for writ of habeas corpus.  On
appeal, Coach asserts that the trial court's summary dismissal of his
petition for writ of habeas corpus without requiring the State to file
a responsive pleading was error. Coach further asserts that his
sentence is void because the juvenile court failed to make findings of
fact before his transfer to circuit court.  After review, we affirm
the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/coachanonio.wpd

TIMMY FULTON v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

D. Michael Dunavant, Ripley, Tennessee, for the Appellant, Timmy
Fulton.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Renee W. Turner, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Tracey C. Brewer,
Assistant District Attorney General, for the Appellee, State of
Tennessee.                          

Judge: HAYES

First Paragraph:

The Appellant, Timmy Fulton, appeals from the Lauderdale County
Circuit Court's dismissal of his petition for post-conviction relief. 
In October of 1996, Fulton was convicted of second degree murder and
sentenced to twenty-two years in the Department of Correction.  On
appeal, Fulton contends that he received ineffective assistance of
counsel at trial based upon: (1) trial counsel's failure to
investigate and determine his competency to stand trial or to
investigate a diminished capacity defense; and (2) trial counsel's
failure to adequately investigate the facts and interview material
factual witnesses "in preparation of a possible factual defense." 
After review, we affirm.

http://www.tba.org/tba_files/TCCA/fultontimmy.wpd

STATE OF TENNESSEE v. RAYMOND GRIFFIN

Court:TCCA

Attorneys:

Harry E. Sayle III, Memphis, Tennessee, for the Appellant, Raymond
Griffin.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General;
William L. Gibbons, District Attorney General; and Charles Bell and
Lorraine Craig, Assistant District Attorneys General, for the
Appellee, State of Tennessee.                         

Judge: HAYES

First Paragraph:

The Appellant, Raymond Griffin, was convicted after a trial by jury of
twenty-five offenses; two especially aggravated kidnappings, sixteen
aggravated robberies, five aggravated burglaries, and two aggravated
assaults.  Griffin received an effective two-hundred and seventy-year
sentence.  On appeal, Griffin raises the following issues for our
review:  (1) whether the trial court erred in admitting his statements
into evidence; (2) whether the trial court erred in joining the eight
separate criminal episodes for trial; (3) whether the confinement of
the victims was essentially incidental to accomplishment of the
aggravated robberies and, therefore, sufficient to support separate
convictions for especially aggravated kidnapping; (4) whether the
evidence was sufficient to support his convictions; and (5) whether
the trial court erred in ordering him to serve his sentences
consecutively.  After  review, we find that the trial court erred in
joining the eight criminal episodes for trial; however, such error was
harmless. We also reverse and dismiss one conviction for especially
aggravated kidnapping because the confinement of the victim was
essentially incidental to the accomplishment of the aggravated
robbery, thereby reducing Griffin's sentence to an effective
two-hundred and forty years.  Griffin's remaining issues are without
merit.  Accordingly, the judgments of the Shelby County Criminal Court
in all other respects are affirmed.

http://www.tba.org/tba_files/TCCA/griffinraymond_opn.wpd

WADE CONCURRING AND DISSENTING

http://www.tba.org/tba_files/TCCA/griffinraymond_con.wpd

STATE OF TENNESSEE v. ROGER NEAL JAMES and GEORGE OSBORNE WADE

Court:TCCA

Attorneys:

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Colin
Johnson, Dresden, Tennessee, (at trial and on appeal), for the
Appellant, Roger Neal James.  Mary Ellen Stevens, Union City,
Tennessee, for the Appellant, George Osborne Wade.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and James T. Cannon, Assistant District Attorney General, for
the Appellee, State of Tennessee.

Judge: WEDEMEYER

First Paragraph:

Following a consolidated trial, an Obion County Jury convicted
Defendant Roger Neal James of the delivery of a controlled substance
within 1,000 feet of a school.  The jury convicted Defendant George
Osborne Wade of the sale of a controlled substance within 1,000 feet
of a school.  The trial court sentenced Defendant James to twenty-five
years incarceration and Defendant Wade  to twenty- three years
incarceration.  Both Defendants now appeal.  Defendant James contests
the sufficiency of the convicting evidence, the admission at trial of
evidence concerning a second drug transaction that took place after
the transaction in this case, and the length of his sentence. 
Defendant Wade also contests the sufficiency of the convicting
evidence.  In addition, he argues that the trial court erred by
refusing to grant a continuance of the case and that the Drug-Free
School Zone Act is unconstitutional as applied to his case.  After
review, we affirm the judgments of the trial court.

http://www.tba.org/tba_files/TCCA/james.wpd

STATE OF TENNESSEE v. MACK A. O'BANER

Court:TCCA

Attorneys:

A.C. Wharton, Jr., District Public Defender; Tony N. Brayton and W.
Mark Ward, Assistant Public Defenders, Memphis, Tennessee, for the
appellant, Mack A. O'Baner.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and W. Mark Ward, Assistant District Attorney General, for
the appellee, State of Tennessee.

Judge: WELLES

First Paragraph:

The Defendant, Mack A. O'Baner, was convicted of first degree murder
and sentenced to life imprisonment.  On appeal, the Defendant contends
that the evidence presented at trial is insufficient to support a
finding of guilty of first degree murder beyond a reasonable doubt. 
We affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/obanerma.wpd

STATE OF TENNESSEE v. RAMON LAMONT TAYLOR

Court:TCCA

Attorneys:    

David L. Hamblen, Union City, Tennessee, for the Appellant, Ramon
Lamont Taylor.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Mark E. Davidson, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and James Cannon,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Ramon Lamont Taylor, was convicted of one count of
Class B felony possession of cocaine with the intent to sell and of
two counts of felony possession of weapons.  See Tenn. Code Ann. SS
39-17-417(c)(1) and 39-17-1307(b)(1)(B).  The cocaine and weapons were
seized during the execution of a search warrant which was obtained
based upon a canine sniff indicating the presence of drugs in a
storage unit leased to Taylor.  On appeal, Taylor contends that the
affidavit lacks probable cause because it fails to establish that the
police dog was, in fact, a drug dog adequately trained in the
detection of drugs.  After review, we agree and find that the search
warrant was issued without probable cause.  Accordingly, the
convictions are reversed and the case is remanded to the trial court.

http://www.tba.org/tba_files/TCCA/taylorramonl.wpd

QUANTREAL UNDERWOOD v. STATE OF TENNESSEE

Court:TCCA

Attorneys:

Glenn I. Wright, Memphis, Tennessee, for appellant, Quantreal
Underwood.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant
Attorney General; William L. Gibbons, District Attorney General; and
Stephanie Johnson, Assistant District Attorney, for appellee, State of
Tennessee.                

Judge: SMITH

First Paragraph:

The appellant, Quantreal Underwood, was convicted of second degree
murder and two counts of aggravated robbery.  He received a Range I
sentence of twenty-five years for the murder conviction and two
concurrent eight year terms for the robbery convictions.  His
convictions and sentences were affirmed by this Court on direct
appeal.  State v. Quantreal Underwood, No. 02C01-9604-CR-00120, 1997
Tenn. Crim. App. Lexis 1018 (Tenn. Crim. App. at Jackson Oct. 9,
1997).  The appellant filed a post-conviction petition in May, 1999,
wherein he alleged that his trial counsel was ineffective and thus
deficient within the meaning of the Sixth Amendment to the United
States Constitution.  That petition was denied, and the appellant now
brings the instant appeal.  We have reviewed the record and find no
error.  Therefore, we affirm the judgment of the trial court.

http://www.tba.org/tba_files/TCCA/underwoodq.wpd

STATE OF TENNESSEE v. CYNTHIA C. WARREN

Court:TCCA

Attorneys:

A.C. Wharton, Jr., Public Defender; and Karen L. Massey (at trial) and
W. Mark Ward (on appeal), Assistant District Public Defenders, for the
appellant, Cynthia C. Warren.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and Betsy L. Carnesale, Assistant District Attorney General,
for the appellee, State of Tennessee.                        

Judge: RILEY

First Paragraph:

A Shelby County jury found the defendant guilty of driving under the
influence.  In this appeal, the defendant alleges (1) the evidence was
insufficient to sustain her conviction; (2) the trial judge
erroneously allowed the arresting officer to opine the defendant's
blood alcohol level was greater than .10%; and (3) the trial court
erroneously failed to charge adult driving while impaired as a
lesser-included offense of DUI.  After review, we affirm the judgment
of the trial court.

http://www.tba.org/tba_files/TCCA/warrencc.wpd

STATE OF TENNESSEE v. ALFONZO WILLIAMS

Court:TCCA

Attorneys:

A.C. Wharton, Jr., Public Defender; and Robert L. Parris (at trial),
Trent Hall (at trial), and Tony N. Brayton (on appeal), Assistant
Public Defenders, for the appellant, Alfonzo Williams.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; William L. Gibbons, District Attorney
General; and James M. Lammey, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.                         

Judge: RILEY

First Paragraph:

The defendant was indicted for one count of first degree murder during
the perpetration of an attempted robbery and one count of premeditated
first degree murder.  A Shelby County jury found the defendant guilty
of felony murder in count one and the lesser-included offense of
second degree murder in count two.  The trial court merged the second
degree murder conviction into the conviction for felony murder, and
the defendant was sentenced to life imprisonment.  In this appeal, the
defendant alleges:  (1) the evidence was insufficient to sustain his
convictions; (2) the trial court erroneously neglected to charge the
jury on the offenses of second degree murder, voluntary manslaughter,
reckless homicide, and criminally negligent homicide as
lesser-included offenses of felony murder; and (3) the trial court
failed to perform its duties as the "thirteenth juror."  After a
thorough review of the record, we conclude the trial court erred by
failing to charge lesser-included offenses of felony murder.  We
affirm the guilty verdict for second degree murder; we reverse the
conviction for felony murder and remand that count for a new trial
with special instructions relating to the second degree murder
verdict.

http://www.tba.org/tba_files/TCCA/williamsa.wpd

STATE OF TENNESSEE v. ANTOINE JACQUES WILLIAMSON

Court:TCCA

Attorneys: 

Gary F. Antrican, District Public Defender, Somerville, Tennessee, for
the Appellant, Antoine Jacques Williamson.

Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; P. Robin Dixon, Jr., Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Kim Linville,
Assistant District Attorney General, for the Appellee, State of
Tennessee.

Judge: HAYES

First Paragraph:

The Appellant, Antoine Jacques Williamson, pled guilty to one count of
theft of property over $1,000, a class D felony, and received,
pursuant to a negotiated plea agreement, a sentence of two years as a
range I offender.  Williamson's entitlement to judicial diversion was
reserved for determination by the trial court.  Following a hearing,
the court imposed a sentence of split confinement which required
Williamson to serve 30 days in the Tipton County jail and the balance
on supervised probation.  On appeal, Williamson argues that the trial
court erred in denying judicial diversion.  After review, we find that
the trial court  failed to consider all the relevant factors. 
Accordingly, we reverse the judgment of the trial court denying
diversion and remand the case for deferment of further proceedings as
provided by Tennessee Code Annotated S 40-35-313 (2001).

http://www.tba.org/tba_files/TCCA/williamsona.wpd

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