               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA16-530

                               Filed: 15 November 2016

Scotland County, No. 15 CVS 460

JESSIE NORTON, in her individual capacity and in her capacity as the executor of
the Estate of NORMAN CHRISTOPHER NORTON, WILLIAM NORTON, and
DANIEL MICHAEL NORTON, Plaintiffs,

              v.

SCOTLAND MEMORIAL HOSPITAL, INC., and DUKE UNIVERSITY HEALTH
SYSTEM, INC., Defendant.


        Appeal by plaintiffs from order entered 23 February 2016 by Judge Richard T.

Brown in Scotland County Superior Court. Heard in the Court of Appeals 3 October

2016.


        Peterkin Law Firm, PLLC, by Timothy J. Peterkin, for plaintiff-appellants.

        Brotherton Ford Berry & Weaver, PLLC, by Robert A. Ford and Demetrius W.
        Berry, for defendant-appellee Scotland Memorial Hospital, Inc.

        Young Moore and Henderson, P.A., by Angela Farag Craddock, Donna Renfrow
        Rutala, and David A. Senter, for defendant-appellee Duke University Health
        System, Inc.


        TYSON, Judge.


        Plaintiffs appeal from the trial court’s order dismissing their complaint under

Rules 9(j) and 12(b)(6) of the Rules of Civil Procedure against defendants, Scotland

Memorial Hospital, Inc. (“Scotland Memorial”) and Duke University Health System,

Inc. (“Duke Hospital”). We affirm in part, reverse in part, and remand.
                        NORTON V. SCOTLAND MEM. HOSP., INC.

                                  Opinion of the Court



                                   I. Background

      Norman Christopher Norton was admitted to Scotland Memorial in

Laurinburg, North Carolina on 9 July 2012 with complaints of abdominal pain. Mr.

Norton was married to plaintiff Jessie Norton, and is the father of the couple’s two

children, also plaintiffs. Mr. Norton was fairly active and in good health.

      While a patient at Scotland Memorial, Mr. Norton’s condition worsened. He

was transferred to the intensive care unit, placed on a ventilator, and subsequently

died. It is unclear from the face of the complaint whether Mr. Norton died at Scotland

Memorial or after he was transferred to Duke University Hospital in Durham, North

Carolina. Duke Hospital’s responsive pleading states Mr. Norton’s deceased body

was transferred to Duke Hospital on 11 July 2012. Scotland Memorial’s responsive

pleading states Mr. Norton’s body was transferred to Duke Hospital on 12 July 2012.

      Plaintiffs filed a complaint against Scotland Memorial and Duke Hospital on

10 July 2015. Plaintiffs allege Mr. Norton screamed and cried out several times for

his wife and children, but Scotland Memorial staff refused to allow Mr. Norton’s wife

or family to see him.

      The complaint alleges Mr. Norton’s cries were so loud and adamant that other

visitors in the waiting room commented. Mrs. Norton informed staff that she had

waited an excessive amount of time to see her husband. Staff members sat beside

her in the waiting room, but refused to allow her to see her husband. The complaint



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further alleges that neither Mr. Norton nor Mrs. Norton gave permission for Mr.

Norton to be removed from the ventilator.

      The complaint further alleges Duke Hospital staff asked Mrs. Norton if she

wished for an autopsy to be performed, and she responded in the affirmative. The

complaint alleges Mrs. Norton requested for Mr. Norton’s head not to be cut during

the autopsy. She had previously discussed this issue with Mr. Norton, and he had

indicated it was important to him. Duke Hospital staff informed Mrs. Norton they

were required to cut Mr. Norton’s head based upon the orders received from Scotland

Memorial.

      The complaint also alleges Mr. Norton had previously agreed to be an organ

donor, but declined to remain an organ donor when he renewed his driver’s license.

He had also discussed this issue with Mrs. Norton. Mrs. Norton was informed by the

funeral home that Mr. Norton’s organs and eyes had been removed from his body.

      Plaintiffs’ complaint alleges five causes of action against both defendants: (1)

negligent infliction of emotional distress; (2) intentional infliction of emotional

distress; (3) loss of consortium; (4) negligence; and (5) wrongful death.        Both

defendants filed motions to dismiss under Rule 12(b)(6) for failure to state a claim

upon which relief may be granted and under Rule 9(j) for failure to plead that a

qualified expert had reviewed the medical care and records prior to filing the

complaint.



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                                   Opinion of the Court



      On 23 February 2016, the trial court dismissed Plaintiffs’ claims against both

defendants with prejudice for failure to comply with the requirements of Rule 9(j).

The court also concluded Plaintiffs’ wrongful death claims against the defendants

were barred by the statute of limitations, and dismissed those claims under Rule

12(b)(6). The trial court also dismissed Plaintiffs’ remaining claims under 12(b)(6)

for failure to state a claim upon which relief may be granted. Plaintiffs appeal.

                          II. Dismissal of Plaintiffs’ Claims

      The trial court dismissed Plaintiffs’ claims under three separate grounds: (1)

failure to meet the requirements of Rule 9(j) for the medical malpractice claims; (2)

failure to file the complaint within the applicable statute of limitations for the

wrongful death and loss of consortium claims; and (3) failure to state a claim under

Rule 12(b)(6).

                               A. Standards of Review

      A trial court’s order dismissing a complaint pursuant to Rule 9(j) presents a

question of law, and is therefore reviewed de novo on appeal. Barringer v. Wake Forest

Univ. Baptist Med. Ctr., 197 N.C. App. 238, 256, 677 S.E.2d 465, 477, disc. review

denied, 363 N.C. 651, 684 S.E.2d 690 (2009).

             On appeal from a motion to dismiss under Rule 12(b)(6),
             this Court reviews de novo “whether, as a matter of law,
             the allegations of the complaint . . . are sufficient to state a
             claim upon which relief may be granted [.]” We consider
             the allegations in the complaint true, construe the
             complaint liberally, and only reverse the trial court’s denial


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             of a motion to dismiss if plaintiff is entitled to no relief
             under any set of facts which could be proven in support of
             the claim.

Christmas v. Cabarrus Cty., 192 N.C. App. 227, 231, 664 S.E.2d 649, 652 (2008)

(quoting Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987)), disc.

review denied, 363 N.C. 372, 678 S.E.2d 234 (2009).

          B. Dismissal of Wrongful Death and Loss of Consortium Claims

                                         1. Rule 9(j)

      The trial court determined Plaintiffs had brought a “medical malpractice

action” as defined by N.C. Gen. Stat. § 90-21.11, and dismissed all of Plaintiffs’ claims

for failure to comply with Rule 9(j).

      Rule 9(j) of the North Carolina Rules of Civil Procedure requires dismissal of

any complaint alleging medical malpractice, unless the pleading asserts a medical

expert has reviewed the medical care and records, and would testify that the medical

care did not comply with the applicable standard of care set forth in N.C. Gen. Stat.

§ 90-21.12. N.C. Gen. Stat. § 1A-1, Rule 9(j) (2015). A “medical malpractice action” is

defined as either of the following:

             a. A civil action for damages for personal injury or death
             arising out of the furnishing or failure to furnish
             professional services in the performance of medical, dental,
             or other health care by a health care provider.

             b. A civil action against a hospital . . . for damages for
             personal injury or death, when the civil action (i) alleges a
             breach of administrative or corporate duties to the patient,


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                                   Opinion of the Court



             including, but not limited to, allegations of negligent
             credentialing or negligent monitoring and supervision and
             (ii) arises from the same facts or circumstances as a claim
             under sub-subdivision a. of this subdivision.

N.C. Gen. Stat. § 90-21.11(2) (2015).

       “Rule 9(j) unambiguously requires a trial court to dismiss a complaint if the

complaint’s allegations do not facially comply with the rule’s heightened pleading

requirements.” Barringer, 197 N.C. App. at 255, 677 S.E.2d at 477.

       Plaintiffs’ loss of consortium claim is derivative of, and relies upon the validity

of the spouse’s claim for injury or wrongful death. See, e.g., Sloan v. Miller Building

Corp., 128 N.C. App. 37, 40, 493 S.E.2d 460, 462 (1997). Plaintiffs have failed to show

how their claims for wrongful death and loss of consortium do not arise from medical

malpractice under the definitions set forth in N.C. Gen. Stat. § 90-21.11(2), which

require a Rule 9(j) medical expert’s certification. The trial court properly dismissed

Plaintiffs’ wrongful death and loss of consortium claims due to failure to comply with

Rule 9(j).

                               2. Statute of Limitations

       In addition to dismissing the wrongful death and loss of consortium claims

under Rule 9(j), the trial court determined the claims were also barred by the

applicable statute of limitations. N.C. Gen. Stat. § 1-53(4) (2015). Plaintiffs have not

challenged the trial court’s dismissal based upon expiration of the applicable statute

of limitations. Any argument challenging the trial court’s dismissal of those claims


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                                  Opinion of the Court



based upon the statute of limitations is abandoned. N.C. R. App. P. 28(b)(6). The trial

court’s unchallenged dismissal of the wrongful death and loss of consortium actions

under Rule 12(b)(6) for failure to file the claims within the statute of limitations

remains undisturbed.

           C. Negligence and Negligent Infliction of Emotional Distress

      Plaintiffs argue the negligence and negligent infliction of emotional distress

claims are not “medical malpractice” claims and do not require a Rule 9(j)

certification. Plaintiffs argue those claims are related to “how [Mr. Norton] was

prevented from seeing his family as he was dying and the unauthorized autopsy and

the displacement of [Mr. Norton’s] organs.”

      Regardless of whether those claims require a Rule 9(j) certification, Plaintiffs

failed to challenge the trial court’s dismissal of these negligence claims pursuant to

Rule 12(b)(6) for failure to state a claim. Any argument challenging the trial court’s

dismissal of those claims under Rule 12(b)(6) is abandoned. N.C. R. App. P. 28(b)(6).

The trial court’s unchallenged dismissal of those causes of actions under Rule 12(b)(6)

remains undisturbed.

                  D. Intentional Infliction of Emotional Distress (“IIED”)

      Plaintiffs challenge the trial court’s dismissal of the IIED claims against the

defendants under both Rules 9(j) and 12(b)(6).




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                       NORTON V. SCOTLAND MEM. HOSP., INC.

                                  Opinion of the Court



      To state a claim for intentional infliction of emotional distress, a plaintiff must

allege: “(1) extreme and outrageous conduct (2) which is intended to cause and does

cause (3) severe emotional distress to another.” Dickens v. Puryear, 302 N.C. 437, 452,

276 S.E.2d 325, 335 (1981). Extreme and outrageous conduct is defined as conduct

that is “so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly intolerable

in a civilized community.” Smith-Price v. Charter Behavioral Health Sys., 164 N.C.

App. 349, 354, 595 S.E.2d 778, 782 (2004) (citation omitted).

      Our appellate courts have “set a high threshold for finding that conduct meets

the standard.” Dobson v. Harris, 134 N.C. App. 573, 578, 521 S.E.2d 710, 715 (1999),

rev’d on other grounds, 352 N.C. 77, 530 S.E.2d 829 (2000).

             This tort imports an act which is done with the intention of
             causing emotional distress or with reckless indifference to
             the likelihood that emotional distress may result. A
             defendant is liable for this tort when he desires to inflict
             severe emotional distress or knows that such distress is
             certain, or substantially certain, to result from his conduct
             or where he acts recklessly in deliberate disregard of a high
             degree of probability that the emotinal [sic] distress will
             follow and the mental distress does in fact result.

Dickens, 302 N.C. at 449, 276 S.E.2d at 333 (citations, quotations, and ellipsis

omitted) (emphasis supplied).

      “[T]he initial determination of whether conduct is extreme and outrageous is a

question of law for the court: ‘If the court determines that it may reasonably be so



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                                      Opinion of the Court



regarded, then it is for the jury to decide whether, under the facts of a particular case,

defendants’ conduct . . . was in fact extreme and outrageous.’ ” Johnson v. Bollinger,

86 N.C. App. 1, 6, 356 S.E.2d 378, 381-82 (1987) (quoting Briggs v. Rosenthal, 73 N.C.

App. 672, 676, 327 S.E.2d 308, 311 (1985)).

                                    1. Scotland Memorial

                                   a. Rule 9(j) Requirement

      Plaintiffs argue a Rule 9(j) certification was not required for this claim, because

the allegations do not involve an injury to Mr. Norton or concern his medical

treatment or death. Instead, the injuries to Plaintiffs stem from Scotland Memorial

staff’s failure and refusal to allow Mrs. Norton and her children to see their husband

and father as he was crying out in distress prior to his death. We agree.

      Plaintiff’s complaint alleges:

             10. There were several times that Mr. Norton screamed
             and cried out for his wife and children to come back with
             him.

             11. The staff at Scotland refused to allow Mr. Norton’s
             family to see him. His cries were so loud and adamant that
             visitors in the waiting area commented on it.

             12. At one point, Jessie Norton advised the hospital staff
             that she had waited an excessive amount of time to see her
             husband and she wanted to see him. At that point, staff
             members came and sat beside her and refused to let her see
             her husband.

             .   .   .   .



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                                   Opinion of the Court



             23. The frustration regarding not being about [sic] to be
             there for Mr. Norton has haunted his family, causing
             emotional distress that has occasionally manifested into
             physical symptoms.

The complaint further alleges Mr. Norton was thereafter removed from the ventilator

without his or Mrs. Norton’s consent and died.

      As discussed above, a Rule 9(j) certification is required in a “medical

malpractice” action, which is defined as “a civil action for damages for personal injury

or death arising out of the health care provider’s furnishing or failure to furnish

professional services,” or “breach of an administrative or corporate dut[y] to the

patient.” N.C. Gen. Stat. § 90-21.11(2).

      The allegations against Scotland Memorial regarding the staff’s refusal to

allow Mrs. Norton and her children to see Mr. Norton as he was distressed and crying

out for them prior to the unconsented removal of the ventilator occurred while

Scotland Memorial rendered medical services to Mr. Norton. Plaintiffs’ claims for

IIED against Scotland Memorial do not seek damages arising from allegations of Mr.

Norton’s “personal injury or death.” Id. The damages claimed by Plaintiffs are not

damages sustained by Mr. Norton. Rather, Plaintiffs, Mr. Norton’s wife and children,

claim they sustained emotional damage by hearing Mr. Norton call out to them prior

to his death, and from being prevented from seeing him, coupled with the

unconsented to removal of the ventilator.           These unique and specific factual




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allegations do not fall under the plain language of Rule 9(j) to require a medical

expert’s certification. Id.

                              b. Rule 12(b)(6) Dismissal

       “A complaint should not be dismissed under Rule 12(b)(6) ‘unless it

affirmatively appears that plaintiff is entitled to no relief under any state of facts

which could be presented in support of the claim.’” Ladd v. Estate of Kellenberger, 314

N.C. 477, 481, 334 S.E.2d 751, 755 (1985) (quoting Presnell v. Pell, 298 N.C. 715, 719,

260 S.E.2d 611, 613 (1979)) (emphasis supplied). “The system of notice pleading

affords a sufficiently liberal construction of complaints so that few fail to survive a

motion to dismiss.” Id. “Such simplified notice pleading is made possible by the

liberal opportunity for discovery and the other pretrial procedures established by the

Rules to disclose more precisely the basis of both claim and defense and to define

more narrowly the disputed facts and issues.” Pyco Supply Co., Inc. v. American

Centennial Ins. Co., 321 N.C. 435, 442-43, 364 S.E.2d 380, 384 (1988) (citation

omitted).

       Under the notice pleading standard, the face of Plaintiffs’ complaint does not

reveal an insurmountable bar to recovery on the allegations of IIED against Scotland

Memorial for us to sustain the dismissal under Rule 12(b)(6). The allegations and

circumstances surrounding Scotland Memorial’s refusal to allow Mr. Norton’s family

to see him, and the hospital’s reasonableness and justification, or lack thereof, and



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                                  Opinion of the Court



the consequences to the family are issues “for discovery and the other pretrial

procedures.” Id. at 444, 364 S.E.2d at 384.

      Plaintiffs’ IIED claims may later be determined to be insufficient to go to the

jury, but that issue is not before us. Based solely upon the allegations on the face of

their complaint, Plaintiffs should be provided the opportunity, afforded by the Rules

of Civil Procedure, to discover and “to disclose more precisely the basis of both claim

and defense and to define more narrowly the disputed facts and issues.” Id. The trial

court’s dismissal under Rule 12(b)(6) of Plaintiff’s IIED allegation against Scotland

Memorial was premature, and is reversed.

                                  2. Duke Hospital

                              a. Rule 9(j) Requirement

      Plaintiffs’ complaint alleges Mr. Norton was admitted as a patient and treated

at Scotland Memorial, and “at some point, Mr. Norton was transferred to Duke.” The

complaint alleges:

             15. Duke asked Mrs. Norton if she wanted an autopsy for
             Mr. Norton and she responded in the affirmative.

             16. Mrs. Norton was asked on multiple occasions if she
             wanted an autopsy.

             17. Mrs. Norton asked Duke if they would avoid cutting
             Mr. Norton’s head open. This was an issue that she and
             Mr. Norton had discussed. This was an important issue
             to him.




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                                     Opinion of the Court



            18. Mrs. Norton was informed by Duke that they had to
            open his head because it was ordered by Scotland.

            19. Mr. Norton had been an organ donor. However, when
            he renewed his most recent driver’s license, he declined to
            be an organ donor. This was an important issue that he
            had addressed with his wife prior to his death.

            20. At some point, Mr. Norton’s previous driver’s license
            was taken, not the most recent driver’s license that
            indicated that he would not agree to be an organ donor.

            21. When Mr. Norton’s body arrived at the funeral home,
            his organs had been removed and were never returned.

            22. Mrs. Norton was dealt with rudely as she sought to
            locate her husband’s organs and eyes.

            .   .   .   .

            24. The misappropriation of Mr. Norton’s organs has also
            created frustration, additional grief and emotional distress
            for his family.

      Plaintiffs’ claims against Duke Hospital pertain to alleged actions by Scotland

Memorial and Duke Hospital after Mr. Norton’s death, and do not involve the

provision of medical care under N.C. Gen. Stat. § 90-21.11. A medical expert’s

certification under Rule 9(j) was not required to validate Plaintiffs’ IIED claim

against Duke Hospital, after Mr. Norton was deceased and the allegations against

Duke Hospital pertain to the autopsy and removal of organs. See Bennett v. Hospice

& Palliative Care Ctr. of Alamance-Caswell, __ N.C. App. __, 783 S.E.2d 260 (2016)

(holding claims which occurred subsequent to the decedent’s death, mishandling the



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                                   Opinion of the Court



body and failure to provide bereavement services, did not involve the provision of

medical care to require a Rule 9(j) certification).

                              b. Rule 12(b)(6) Dismissal

      Regardless of whether a Rule 9(j) certification was required for Plaintiffs’ claim

against Duke Hospital, Plaintiffs failed to state and plead sufficient facts to allege

extreme and outrageous conduct by Duke Hospital or its staff. Accepting Plaintiffs’

factual allegations against Duke Hospital as true and in the light most favorable to

Plaintiffs with the benefit of every reasonable inference, the complaint indicates the

autopsy was ordered by Scotland Memorial. Mrs. Norton was asked to consent and

authorized Duke Hospital to perform an autopsy, but requested Duke Hospital to

refrain from cutting Mr. Norton’s head. Duke Hospital informed Mrs. Norton that

such a procedure would be required under Scotland Memorial’s order. The complaint

does not indicate or assert whether Mrs. Norton then attempted to limit or prevent

the autopsy, or whether Mr. Norton’s head was in fact cut during the course of the

autopsy.   The complaint does not allege whether Duke Hospital performed the

autopsy, and only describes Mrs. Norton’s conversation with Duke Hospital staff,

when she consented to the autopsy.

      Plaintiffs also allege Mr. Norton’s organs were removed, even though his most

recent driver’s license indicated he did not consent to organ donation.         Taking

Plaintiffs’ allegations as true, the complaint indicates Duke Hospital was in



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                                  Opinion of the Court



possession of Mr. Norton’s previous driver’s license, which indicated he had agreed to

be an organ donor, and not his most recent driver’s license, which did not so indicate.

             Our law recognizes that the next of kin has a quasi-
             property right in the body – not property in the commercial
             sense but a right of possession for the purpose of burial –
             and that there arises out of this relationship to the body an
             emotional interest which should be protected and which
             others have a duty not to injure intentionally or negligently
             . . . . Furthermore, the survivor has the legal right to bury
             the body as it was when life became extinct. Kyles v. R. R.,
             supra [147 N.C. 394, 61 S.E. 278]. For any mutilation of a
             dead body the one entitled to its custody may recover
             compensatory damages for his mental suffering caused
             thereby if the mutilation was either intentionally or
             negligently committed, Morrow v. R. R., 213 N.C. 127, 195
             S.E. 383, or was done by an unlawful autopsy. If
             defendant’s conduct was wilful or wanton, actually
             malicious, or grossly negligent, punitive damages may also
             be recovered. Kyles v. R. R., supra.”

Parker v. Quinn-McGowen Co., 262 N.C. 560, 561-62, 138 S.E.2d 214, 215-16 (1964)

(emphasis supplied).

      The complaint fails to allege whether Duke Hospital knew or should have

known about Mr. Norton’s change in status as an organ donor, or whether Duke

Hospital intentionally disregarded his status as an organ donor. Plaintiffs’ have

failed to allege facts to show Duke Hospital acted with intention to cause emotional

distress or with reckless indifference to the likelihood that emotional distress may

result, or “kn[ew] that such distress is certain, or substantially certain, to result.

Dickens, 302 N.C. at 449, 276 S.E.2d at 333. Plaintiffs’ complaint does not indicate



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                                   Opinion of the Court



the conduct by Duke Hospital staff in performing the autopsy with Mrs. Norton’s

consent and the handling of Mr. Norton’s organs was “beyond all possible bounds of

decency, . . . atrocious, and utterly intolerable in a civilized community.” Smith-Price,

164 N.C. App. at 354, 595 S.E.2d at 782. See Hardin v. York Mem’l Park, 221 N.C.

App. 317, 327, 730 S.E.2d 768, 777 (holding children of deceased parents failed to

sufficiently plead extreme and outrageous conduct to support IIED claim against

cemetery, where cemetery sold family burial plots to third parties and their mother

was unable to be buried next to their father), disc. review denied, 366 N.C. 571, 738

S.E.2d 376 (2012). The trial court properly dismissed Plaintiffs’ IIED claim against

Duke Hospital. Plaintiffs’ arguments are overruled.

                                    IV. Conclusion

      Even were we to presume a Rule 9(j) certification is not required for some or

all of the claims Plaintiffs raised in their complaint, the trial court’s Rule 12(b)(6)

dismissal of all claims, except the intentional infliction of emotion distress claim, is

unchallenged and remains undisturbed. The trial court’s Rule 12(b)(6) dismissal of

Plaintiffs’ IIED claim against Scotland Memorial was premature, and is reversed.

The trial court did not err in dismissing the IIED claim against Duke Hospital under

Rule 12(b)(6). The trial court’s order is affirmed in part, reversed in part, and

remanded.

      AFFIRMED IN PART, REVERSED IN PART AND REMANDED.



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                       Opinion of the Court



Chief Judge MCGEE and Judge DIETZ concur.




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