                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                       May 21, 2012 Session

COVERED BRIDGE RESORT ON WALDENS CREEK, LLC v. JOHNSON,
            MURRELL & ASSOCIATES, P.C. ET AL.

             Appeal by Permission from the Circuit Court for Sevier County
                    No. 2010-0112     Lawrence H. Puckett, Judge


                   No. E2011-01437-COA-R9-CV-FILED-JUNE 29, 2012


Covered Bridge Resort on Waldens Creek, LLC (“Seller”) sold its interest in an ongoing
resort development to Tennessee Covered Bridge, LLC (“Purchaser”). Seller agreed to
finance the sale and Purchaser agreed to secure the debt with a mortgage on the property.
Mountain National Bank (“the Bank”) agreed to loan Purchaser money to continue
development of the property but required that its mortgage be in a first position. Seller
agreed to subordinate its mortgage with the understanding that the members of Purchaser
would personally guarantee the debt to Seller. Attorneys Charlie R. Johnson and Sherri E.
Case of the firm of Johnson, Murrell & Associates, P.C. (collectively “the Lawyers”)
prepared the documents and handled the closing. Purchaser soon defaulted and Seller
learned that Purchaser’s members had refused to execute the guaranties. Seller filed this
action against the Bank, the Lawyers and Purchaser1 . When Seller took the deposition of the
Bank’s loan officer, the Bank, through counsel, instructed him not to answer several
categories of questions on the ground of privilege. Seller filed a motion to compel which the
trial court granted upon finding that the information at issue was not privileged. The trial
court granted permission for an interlocutory appeal. This Court agreed to hear the appeal.
We now affirm the order of the trial court (1) granting the motion to compel and (2) holding
the Bank’s motion for summary judgment in abeyance pending completion of discovery.

  Tenn. R. App. P. 9 Interlocutory Appeal by Permission; Judgment of the Circuit
                         Court Affirmed; Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.


        1
         Also sued was Tennessee Covered Bridge Clubhouse, LLC. It appears that its interests are identical
to those of Purchaser. For the most part, our references to “Purchaser” are meant to include “Tennessee
Covered Bridge Clubhouse, LLC” as well.
P. Edward Pratt, Knoxville, Tennessee, for the appellant, Mountain National Bank.

Lewis S. Howard, Jr., and Joshua B. Bishop, Knoxville, Tennessee, for the appellee, Covered
Bridge Resort on Waldens Creek, LLC.

Daryl G. Lowe, Knoxville, Tennessee, for the appellees, Johnson, Murrell & Associates,
P.C., Charlie R. Johnson, and Sherri E. Case.

                                          OPINION

                                               I.

      Seller is the original developer of a residential log cabin resort (“the Resort”) in Sevier
County. Seller began development of the Resort in phases and sold its first lots in 2002. The
Lawyers represented Seller in preparing the documents and handling the closings of the lots
sold by the Seller. After selling approximately 55 lots, Seller began negotiating with
Purchaser to sell its remaining interest in the Resort.

        Purchaser needed operating capital to fund the continuing development of the Resort.
Seller introduced Purchaser to Mr. Larry Melton, an employee of the Bank. Mr. Melton, on
behalf of the Bank, hosted a lunch meeting to discuss the Bank’s possible participation. The
meeting was attended by representatives of Seller and Purchaser as well as by the Lawyers.
Seller and Purchaser were able to reach an agreement in principle for the sale. A few days
after the meeting, on or about January 23, 2007, Seller and Purchaser entered into a purchase
agreement pursuant to which Purchaser was to execute a note in favor of Seller, as well as
a deed of trust to secure the note. The Lawyers drafted the purchase agreement.

        The Bank agreed to provide a construction loan to Purchaser subject to obtaining two
sources of collateral. One source was the personal guaranties of the members of Purchaser.
A second source was the real property on which the Bank was to take and record a deed of
trust. The Bank required Seller to subordinate its mortgage to the Bank’s mortgage. Mr.
Melton approached Seller about subordinating its mortgage. Seller alleges that Mr. Melton
stated that Purchaser was strong financially and that the members of Purchaser would execute
personal guaranties of Purchaser’s obligation to Seller. Allegedly, Seller agreed to the
subordination based on the statements of Mr. Melton.

        The Bank had a long-standing, pre-existing relationship with the Lawyers. The
Lawyers routinely handled closings of transactions funded by the Bank. The Bank allegedly
hired the Lawyers to prepare the documentation for, and handle the closing of, the sale from
Seller to Purchaser and the loan from the Bank to Purchaser. This, of course, included the

                                               -2-
subordination agreement and the personal guaranties of members of the Purchaser to both
the Bank and Seller. The Lawyers handled the closing by express mail. One of the
documents included in those mailed by the Lawyers to Seller for its signature was a
“Seller/Buyer Disclosure and Consent to Intermediary Representation.” In pertinent part, the
document, which Seller did execute, identifies the Lawyers as intermediaries and states:

              Rule 2.2 of the Tennessee Rules of Professional Conduct
              requires certain disclosures and written consent from clients
              when a lawyer is asked to, and reasonably believes that the
              lawyer can, provide impartial legal advice and assistance to two
              or more clients in the same transaction. Please consider the
              following:

                                          *   *     *

              2. A lawyer’s role is to be an advocate for the client advancing
              the interest of the client wherever possible even to the detriment
              of any other party. As an intermediary, my role will be to close
              this transaction in accordance with the sale contract and with
              local custom and practice to the extent that any matter should
              arise that is not specifically covered by the contract. . . .

              3. . . . Further, anything you tell me in confidence that may
              affect any other client that I represent in this matter, I may be
              required to disclose during the course of this transaction or in
              the event a dispute arises.

              4. You should be aware that I have other client obligations in
              this matter with clients with whom I may also have a working
              relationship for transactions other than the transaction as
              follows:

              (a) The lender for the buyer will make a loan only under specific
              written instructions by which I must agree to abide in order for
              the lender to fund this transaction. The lender is my client to the
              extent that I must comply with those instructions even though
              you are paying the fee for those services.

        According to Seller, the documents, as executed, differ from the agreement of the
parties in two respects. Allegedly, the subordination agreement was to apply only to the first

                                              -3-
three phases of the development. The subordination agreement supplied for the closing
applies to all five phases. Also, the Lawyers allegedly failed to include a provision in the
purchase agreement requiring the members of Purchaser to execute personal guaranties of
Purchaser’s obligation to Seller. However, the packet of closing documents supplied to
Seller included blank copies of personal guaranties of Purchaser’s obligation to Seller by the
members of Purchaser. Thus, Seller allegedly executed the closing documents believing that
Purchaser’s members would execute the guaranties. Seller’s belief was reinforced by a letter
from the Lawyers providing copies of the closing documents, minus the personal guaranties,
with the assurance that the Lawyers would soon be forwarding the personal guaranties in
favor of Seller. Allegedly, the Lawyers kept providing false assurance for about a year and,
on or about March 4, 2009, informed Seller by letter that the members of Purchaser were
unwilling to execute the guaranties. The Lawyers enclosed, in their March 2009 letter, a
copy of a letter from Purchaser to the Lawyers dated March 17, 2007. Purchaser’s letter
advised that the members of Purchaser were unwilling to supply guaranties in favor of Seller.
The Lawyers claim that when they received the March 2007 letter from Purchaser they
advised all the parties to the transaction that the members of Purchaser would not execute the
guaranties in favor of Seller.

       Seller filed this present action after Purchaser stopped making its payments and
defaulted on its obligations under the purchase agreement. Seller seeks to recover from the
various defendants the damages it sustained as a result of Purchaser defaulting on the loan,
which losses allegedly would not have been occurred if the principals of Purchaser had
executed the guaranties in favor of Seller. As amended, the complaint alleges that Seller’s
damages are the result of legal malpractice by the Lawyers, negligence by the Bank, and
breach of contract by Purchaser. The specific allegations as to the Bank are:

              [The Bank], by and through its employee, Mr. Larry Melton,
              negotiated the Subordination Agreement with [Seller] through
              [the Lawyers]. [The Bank] informed [Seller] that [Seller] would
              receive guaranty agreements from the Guarantors if [Seller]
              agreed to subordinate [its] Deed of Trust on Phases I, II, and III
              of the Property to [the Bank’s] Deed of Trust. [The Bank]
              informed [Seller] that Purchaser and the Guarantors possessed
              a high net worth and were financially stable and capable of
              repaying the loans. [The Bank] was directly, or indirectly
              through its attorney, responsible for obtaining [the] personal
              guaranties . . . .

              [The Bank] failed to undertake to ensure that personal
              guaranties were executed as [the Bank] understood they would

                                             -4-
              be executed. [The Bank’s] failure to ensure the personal
              guaranties were executed prior to closing the construction loan
              is a direct and proximate cause of the damages to [Seller] for
              which [the Bank] is liable.

One remedy Seller seeks is rescission of the subordination agreement, which, if it happens,
would place Seller ahead of the Bank in lien priority with respect to the two mortgages. The
Lawyers asserted in their answer that they did not act as advocates for Seller, but as
intermediaries.

        Seller took the deposition of Mr. Melton. During the deposition, Seller inquired about
the following, as taken verbatim from Bank’s brief:

              (1) conversations between Melton and the . . . [L]awyers that
              purportedly led Melton to believe that [the Lawyers were] also
              acting as [Seller’s] legal counsel,

              (2) conversations between Melton and the . . . [L]awyers
              regarding the sale/purchase agreement between [Seller] and
              [Purchaser],

              (3) conversations between Melton and the . . . [L]awyers
              regarding Purchaser members’ personal guarantees of [Seller’s]
              owner financing,

              (4) whether Melton requested that [the Lawyers] prepare
              documents for [Seller],

              (5) whether Melton agreed with the sworn interrogatory
              responses of the [L]awyers . . . , and

              (6) e-mail communications between Melton and the . . .
              [L]awyers regarding the subject transactions.

(Record citations from Bank’s brief omitted.) Counsel for the Bank objected to these
inquiries on the basis of attorney-client privilege and instructed Mr. Melton not to answer.
Melton was allowed to testify that it was his understanding the members of the Purchaser
were providing personal guaranties of Purchaser’s obligations to Seller and that had he
known those personal guaranties were not being provided he would have stopped the closing
and would not have funded the loan.

                                             -5-
        The Lawyers’ interrogatory answers specific to conversations with Mr. Melton, are
as follows:

              Charlie R. Johnson also communicated with Mr. Larry Melton
              regarding the actual closing of the transaction and the structure
              of the loan documents for [the] . . . Bank. Larry Melton was at
              that time a loan officer with [the] . . . Bank.

              Charlie R. Johnson did receive a letter by facsimile from
              [Purchaser] regarding the closing documents and package. The
              letter stated that personal guarantees were not negotiated with
              [Seller], the contract entered into by [Purchaser] did not require
              personal guaranties, [Purchaser] did not agree to sign any
              personal guaranty and that the individuals would not sign them.
              That letter and specifically that position was communicated to
              Larry Johnson [, manager of Seller,] who stated that he would
              be discussing this subject with the principals of [Purchaser].
              Charlie R. Johnson also advised Larry Melton of the fact that
              [Purchaser] indicated that the members would not sign a
              personal guaranty for [Seller]. Larry Melton requested the
              personal guaranty documents be sent anyway because they had
              been requested by Larry Johnson.

                                          *   *     *

              . . . . The . . . [Lawyers] had no duty to “obtain executed
              personal guaranty agreements benefitting [Seller] . . .” [Seller],
              as seller, failed to negotiate with [Purchaser,] the Buyer[,] to
              obtain personal guaranty agreements, personal guaranty
              agreements were not required by the terms of the contract
              [Seller] voluntarily and willfully entered into, and [Seller] is
              bound by the terms of the agreement it negotiated with
              [Purchaser]. . . . [I]t appears [Seller] had notice that members of
              [Purchaser] did not execute personal Guaranty Agreements on
              or about April 2, 2007, or in any event shortly before or after
              closing.

        Seller filed a motion to compel responses to the questions posed to Mr. Melton. The
trial court granted the motion holding that “[d]iscussions and correspondence between [the
Bank] and [the Lawyers] regarding the transactions which are the subject of this cause are

                                              -6-
not protected by the attorney-client privilege and are subject to discovery.” The primary
basis of the court’s holding was that the Lawyers,

              as the drafting attorneys for all the parties in these transactions
              and specifically as attorney for [Seller] and [the] . . . Bank,
              thereby, owed a duty of loyalty to each of them in the overall
              transaction as to every detail of the closing including all the
              corollary transactions inherent in the law firm’s handling of the
              closing for all the parties. As a result, each party to this
              discovery dispute i.e. both [Seller] and [the] . . . Bank had no
              reasonable expectation that communications to or from the law
              firm to either of them separately (or to or from the law firm and
              the other parties to the closing including the personal
              guarantors) would be confidential as to the others. The court
              finds the American Law Reports article on the inapplicability of
              the privilege where dual representation is involved persuasive
              on this point.

The court also noted that, in its answer, the Bank had asserted it could not be held liable for
the actions of the Lawyers because the Lawyers were acting as “a dual agent.” This assertion
confirmed to the court’s satisfaction that the Bank could not have expected that its
conversations with the Lawyers would be sheltered by an attorney-client privilege from
disclosure to the Seller. The court also held that the Bank had waived any privilege that
might have existed by disclosing communications helpful to the Bank while attempting to
withhold communications that might be harmful to it. The court drew an analogy to the
principle that the privilege is to be used as a shield and not a sword.

         In its order granting Seller’s motion to compel, the court also dealt with the Bank’s
motion for summary judgment. The Bank asserted that Seller had admitted in the deposition
of its manager, Larry Johnson, that the Bank never undertook to secure the personal
guaranties of the members of Purchaser and that, therefore, any liability Seller sought to
impose on the Bank must be for the acts of the Lawyers, as dual agents. The Bank asserted
that it could not legally be held responsible to the other principal, Seller, for the acts of the
Lawyers as a dual agent.

       The court stated that “the Bank may be held liable for ‘faulty’ handling of information
basic to the transaction should the facts at trial warrant.” Therefore, the court ordered the
motion for summary judgment held in abeyance pending completion of discovery.




                                               -7-
        The Bank asked the court to grant permission, pursuant to Tenn. R. App. P. 9, for an
interlocutory appeal of its order. The trial court granted the Bank’s request. This Court
likewise granted the Bank’s application in an order that did not specify the issue or issues
that the Court would be addressing.

                                              II.

       The issues the Bank asks us to address, quoted verbatim from the Bank’s brief, are:

              Whether two adverse parties who independently employ the
              same attorneys with respect to two related, but wholly separate
              transactions, may be considered “jointly represented” by said
              attorneys for purposes of waiver of the attorney-client privilege.

              Whether the trial court may compel disclosure of attorney-client
              communications at the insistence of a third party claiming joint
              representation, where the existence of the attorney-client
              relationship, a jury question, is a disputed issue of fact in its
              entirety as to the third party.

              Whether, if joint representation is ultimately found to exist, the
              court may compel disclosure of all communications between the
              joint clients and their attorneys, without determining whether the
              communications regarded matters of “common interest”
              between the joint clients.

              Where dual agency exists, whether the law refusing to impute
              the tortuous conduct of a dual agent to either principal applies
              in Tennessee, so as to result in the dismissal of [Seller’s] claims
              of negligence against the Bank.

                                             III.

       A trial court’s decision whether to allow discovery of material that is withheld under
a claim of privilege is reviewed for abuse of discretion. Lee Medical, Inc. v. Beecher, 312
S.W.3d 515, 524 (Tenn. 2010); Powell v. Community Health Systems, Inc., 312 S.W.3d
496, 504 (Tenn. 2010). In Lee Medical, the Supreme Court said the following:

              The abuse of discretion standard of review envisions a less
              rigorous review of the lower court’s decision and a decreased

                                              -8-
              likelihood that the decision will be reversed on appeal. It
              reflects an awareness that the decision being reviewed involved
              a choice among several acceptable alternatives. Thus, it does
              not permit reviewing courts to second-guess the court below, or
              to substitute their discretion for the lower court’s. The abuse of
              discretion standard of review does not, however, immunize a
              lower court’s decision from any meaningful appellate scrutiny.

              Discretionary decisions must take the applicable law and the
              relevant facts into account. An abuse of discretion occurs when
              a court strays beyond the applicable legal standards or when it
              fails to properly consider the factors customarily used to guide
              the particular discretionary decision. . . .

              To avoid result-oriented decisions or seemingly irreconcilable
              precedents, reviewing courts should review a lower court’s
              discretionary decision to determine (1) whether the factual basis
              for the decision is properly supported by evidence in the record,
              (2) whether the lower court properly identified and applied the
              most appropriate legal principles applicable to the decision, and
              (3) whether the lower court’s decision was within the range of
              acceptable alternative dispositions. When called upon to review
              a lower court’s discretionary decision, the reviewing court
              should review the underlying factual findings using the
              preponderance of the evidence standard contained in Tenn. R.
              App. P. 13(d) and should review the lower court’s legal
              determinations de novo without any presumption of correctness.

Lee Medical, 312 S.W.3d at 524-525 (headings and citations in original omitted). A court’s
decision to hold a motion for summary judgment in abeyance pending completion of
discovery is a discretionary act that is reviewed by us for abuse of discretion. See Sanjines
v. Ortwein and Associates, 984 S.W.2d 907, 909 (Tenn. 1998).

                                             IV.

       We begin with the second issue raised in the Bank’s brief because the implications of
the issue as stated, and the arguments advanced in support of the Bank’s position, attempt
to create a sort of “Catch 22” for courts faced with discovery disputes that involve claims of
privilege. The Bank argues that the existence of an attorney-client relationship is a question
of fact and that the trial court, therefore, “improperly took the issue from the jury and

                                             -9-
committed clear reversible error.” Apparently the Bank would have us hold that any time
there is a factual dispute of any kind over whether or not communications are privileged, the
court must refrain from ruling until the jury decides the underlying factual issues. The Bank,
of course, knows that such an approach would allow any person to hide any communication
for which it could construct some colorable claim of privilege under the cloak of the
privilege until it was too late to be useful. The law is clearly to the contrary as it must be.
It is clear from the Supreme Court’s opinion in Lee Medical that the trial court can and often
must give its ruling on privilege issues in the discovery stage of the proceedings. See 312
S.W.3d at 524. When there are factual disputes that impact the discoverability of the
information at issue, the trial court is free to make those findings. Id. On appeal, those
findings are presumed correct unless the evidence preponderates against them. Id. at 525.
The trial court’s ultimate ruling is then reviewed for an abuse of discretion. Id. at 524.
Accordingly, we reject any notion that the trial court erred by “prematurely” deciding factual
issues that should have been reserved for a jury.

        We will now consider together the first and third issues raised by the Bank, and the
arguments related to those issues, because they both suffer from the common weakness of
assuming that the communications between Mr. Melton and the Lawyers are privileged.
Having made that assumption, the Bank then argues for a narrow view of a “joint
represent[ation]” exception. The trial court made a factual finding that the communications
at issue here are not privileged because, in the context in which they were made, they were
not made with an expectation of privacy. As the trial court correctly observed, the “attorney-
client privilege . . . is not absolute and does not protect all communications between an
attorney and a client.” Flowers v. Tenn. Trucking Ass’n Self Ins., 209 S.W.3d 602, 616
(Tenn. Ct. App. 2006). “The communication must . . . be made with the intention that the
communication will be kept confidential.” Id. The party asserting a privilege has the burden
of showing that the privilege is applicable. Id.

        The evidence does not, by any stretch of imagination, preponderate against the trial
court’s findings. It was at a meeting attended by the Bank, Seller, Purchaser, and the
Lawyers, that the parties were able to forge an agreement in principle for the purchase
agreement and financing. Part of the discussion at that meeting was what the Bank would
require for the transaction. It appears that, from the Seller’s perspective, there was to be no
subordination without guaranties from Purchaser’s members. The evidence is all to the effect
that everyone involved in the transaction communicated with everyone else toward bringing
the closing to pass. Mr. Melton talked with Seller about the Bank’s requirement of a
subordination agreement, and he spoke to Purchaser to the effect that Seller would require
personal guaranties from its members. He received and reviewed documents related to the
sale; all the while, according to the sworn answers to interrogatories, he was talking to the
Lawyers “regarding the actual closing of the transaction and the structure of the loan

                                             -10-
documents for [the Bank].” The evidence preponderates in favor of, and not against, the trial
court’s finding that the communications between Mr. Melton and the Lawyers did not occur
with an expectation that they would not be disclosed to the other parties to the transaction.
We hold, therefore, that the trial court did not abuse its discretion (1) in holding that the
requested communications were not privileged and (2) in granting Seller’s motion to compel.

        We do not find this to be an appropriate case for deciding whether we should adopt
the “joint client exception” discussed in 4 ALR 4th, Applicability of attorney-client privilege
to evidence or testimony in subsequent action between parties originally represented
contemporaneously by same attorney, with reference to communication to or from one party
(1981). The referenced article is consistent with the result we have reached in that it allows
discovery of information shared between lawyers and clients, but the rationale for allowing
discovery varies from case to case and jurisdiction to jurisdiction, as discussed in the article.
Similarly, we do not find it necessary or appropriate to discuss whether a privilege that does
not exist has been waived by the actions of the Lawyers, as asserted in Seller’s brief. The
trial court held, and we concur, that the communications at issue were not protected from
disclosure by the attorney-client privilege.

       This brings us to the last issue raised by the Bank, i.e., whether the trial court erred
when it decided to hold the Bank’s motion for summary judgment in abeyance pending
completion of discovery. We find no abuse of discretion, and, hence, no error in this
decision.

       The Bank argues that there is no evidence in the record that it undertook a duty,
through its own actions, to the Seller. The short answer to this assertion is, simply, that the
record is not yet complete. Potentially, our holding with respect to the issue of privilege will
cause additional material evidence to come before the trial court on the factual issue of
whether the Bank undertook a duty to Seller through its own actions. This evidence will
also, potentially, impact the Bank’s position that it cannot be held liable for the Lawyers as
“dual agents.” The trial court acted reasonably, and certainly within the parameters of its
sound discretion, in deferring a decision on the Bank’s motion until discovery has been
completed.

       If we were to decide the issue that the Bank presents, i.e., whether the Bank is entitled
to summary judgment, we would be deciding it in the first instance. That is not the proper
exercise of our jurisdiction and “not the proper office of an interlocutory appeal.” Farmers
Mutual of Tenn. v. Atkins, No. E2011-01903-COA-R9-CV, 2012 WL 982998 at *5 (Tenn.
Ct. App. E.S., filed March 21, 2012).




                                              -11-
        The Bank argues in its reply brief that the facts do not matter because, as a matter of
law, it could not have voluntarily assumed some duty toward Seller without a writing to
memorialize the obligation. The argument is based on Tenn. Code Ann. § 45-1-127(a)
(2007), which states, in pertinent part, as follows:

               No financial institution . . . shall be deemed or implied to be
               acting as fiduciary or have a fiduciary obligation or
               responsibility to its customers or to other parties . . . unless there
               is a written agency or trust agreement under which the financial
               institution specifically agrees to act and perform in the capacity
               of a fiduciary.

We are aware of at least one case, cited by the trial court, that appears to be in direct conflict
with the Bank’s argument. In Morimanno v. Middleton, No. W1998-00563-COA-R3-CV,
1999 WL 1336081 at *1, 2 (Tenn. Ct. App. W.S., filed Dec. 15, 1999), we affirmed a
judgment against a bank in favor of a seller of an automobile to whom the bank had given
a verbal assurance that it had “verified” the buyer was soon to receive enough settlement
proceeds to pay for the automobile.

        There is a more fundamental reason why we are disinclined to grant relief on this
issue. By raising the issue in its reply brief, the Bank has thwarted any ability of Seller to
respond regarding the scope of the statute. We have held that it is improper to raise an
argument for the first time in a reply brief. Lockwood v. Hughes, No. M2008-00836-COA-
R3-CV, 2009 WL 1162577 at *4 (Tenn. Ct. App. M.S., filed Apr. 28, 2009) (citing Frye v.
St. Thomas Health Serv., 227 S.W.3d 595 (Tenn. Ct. App. 2007)). Moreover, if we decide
this issue we would be deciding it without a predicate decision on the issue by the trial court
and this is, again, “not the proper office of an interlocutory appeal.” Farmers Mutual, 2012
WL 982998 at *5.

        Nothing in our opinion should be construed as stating an opinion one way or another
as to the merits of the Bank’s motion.

                                                V.

      The order of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Mountain National Bank. This matter is remanded, pursuant to applicable law, for further
proceedings.




                                               -12-
       _______________________________
       CHARLES D. SUSANO, JR., JUDGE




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