                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           April 5, 2016
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    AHSSON and KARI SPRY, a married couple,                          No. 46782-8-II
    individually and on behalf of K.A.S., M.A.S.,
    and G.J.S., minors,

                                Appellants,

           v.

    PENINSULA SCHOOL DISTRICT, “JOHN                          UNPUBLISHED OPINION
    and JANE DOES 1-25, BELLEVUE POLICE
    DEPARTMENT, JAY JOHNSON, BRENDA
    JOHNSON, JOHN KIVLIN, MICHELLE
    KIVLEN, and DOES 1-25,

                                Respondents.

          MELNICK, J. — This case arises out of a complaint alleging race and national origin

discrimination and negligence against Peninsula School District (PSD) for acts that occurred

between 2006 and 2013. Ahsson and Kari Spry1 appeal the trial court’s orders denying the Sprys’

motion to continue the discovery deadline and granting summary judgment to PSD.2 We affirm

the trial court.




1
 For clarity, we refer to individuals in the Spry family by their first names or initials, and to the
appellants generally as “the Sprys.” No disrespected is intended.
2
  PSD argues that we should not consider the Sprys’ retaliation claim. We agree. First, the Sprys
did not argue retaliation below. RAP 9.12 (“On review of an order granting or denying a motion
for summary judgment the appellate court will consider only evidence and issues called to the
attention of the trial court.”); see also RAP 2.5(a)(3). Second, the Sprys do not argue retaliation
in their appellate brief. RAP 10.3(a)(6).
46782-8-II


                                               FACTS

       The Sprys have three children: K.A.S., M.A.S., and G.J.S. Beginning in the 2006-07

school year, the Sprys enrolled one or more of the children in PSD. Ahsson and the three children

are African American. Kari is not but she brought suit on behalf of her minor children.

       On September 27, 2013, the Sprys filed a complaint against PSD. They alleged racial and

national origin discrimination in violation of the Washington Law Against Discrimination

(WLAD), negligence for failing to protect their children from racial hostility, and negligent

infliction of emotional distress. They alleged that the incidents involved two principals, two school

counselors, seven teachers, multiple staff members, and a prior superintendent. They also alleged

that their children were subjected to disparate disciplinary reporting and disciplinary treatment,

that the school made unfounded reports to Child Protective Services (CPS), that the language in

the reports shows they were made because of racial bias, and that the family was unjustly

transferred to another school within the district.

       The reports included a CPS report, initiated by a school nurse, in which Ahsson was noted

to be a “Danger to Worker.” Clerk’s Papers (CP) at 120. The same report stated in answer to

“‘Social/Economic Factors’: The family is of Muslim faith. Referrer has heard Ahsson having

trouble in the area of employment. Referrer doesn’t know if either parent is employed. The family

was searched and not found in ACES.” CP at 122.

       A second CPS report stated, “Ahsson is allegedly under investigation by LE [law

enforcement] and school was alerted that he is a ‘dangerous’ person.” CP at 144. The second

report recounts a CPS worker’s contact with the principal at the school saying, “Mr. Spry is a large

African American who drives a Lotus. An off duty law enforcement officer got into a shouting

match with Mr. Spry in school parking lot. [The principal] states African American’s are not



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accepted very well in Gig Harbor. [The principal] states she has not had any problems with the

family. She is very supportive of the family.” CP at 146. A third CPS report stated that Ahsson

does not use physical discipline with his children but he does sometimes take away their privileges

or have them sit on their knees.

          PSD also completed a “Report of Suspected Child Abuse or Neglect” form that stated

K.A.S. was extremely tired and had said, “I went to bed at 1:00. I am tired. I was up partying

with my dad.” CP at 126. Another PSD form reported, “unexplained bruises, absences; student

saying ‘Dad gave me the scar on my arm. It was an accident.’” CP at 134. Yet another form

completed by PSD reported bruises on M.A.S.’s face and smaller bruises on his arms. On the same

form, M.A.S. allegedly reported to a teacher, “Dad put him in the dark bathroom for ‘chewing my

nails.’” CP at 142. In another form, a principal from one of the schools the children attended

stated,

          Mother stopped me in grocery store on Sunday. Explained black eye, worried we
          might report. Said boys were just rough housing. Black Eye. Father was in school
          after picking up 2 boys. Father said he had ‘belt’ used on him they have been under
          a microscope because of neighbor. So father said he (pointing to son [K.A.S])
          sometimes takes care of him (pointing to son [M.A.S.]) for me. This was heard by
          me and 3 office staff.

CP at 152.

          PSD answered the complaint in December and among other affirmative defenses, pleaded

that the negligence claim was subsumed by the discrimination claim. PSD served the Sprys with

interrogatories in January 2014.        The Sprys replied that they could not respond to the

interrogatories without legal assistance, would seek legal assistance, needed to contact other

resources for information, and would supplement their response in future. The record indicates

that they did not supplement their response at a later time.




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46782-8-II


       PSD deposed Kari and Ahsson. In Kari’s deposition she stated her basis for asserting

discrimination included information provided to CPS that related to her family’s religion, that her

request to have their children transfer classes was not addressed as timely as another person’s

request, and that the school discriminated in its discipline of her children. Kari acknowledged that

the substance of the reports to CPS was true; however, she disagreed with the individuals’

judgment to make the reports. She believed some of the information provided was unnecessary

and therefore discriminatory, such as the fact that her husband drove a “Lotus.” CP at 93. Kari

admitted she lacked information about the school’s treatment of other students and legal reporting

requirements. She also acknowledged she lacked information about how school procedures were

applied to non-African American families.

       In his deposition, Ahsson stated he believed his children were transferred to a new school

because they are African American. He said that “[e]xperience” formed the basis for believing the

treatment he received was racial. CP at 101. He did not know if Caucasian parents received

different treatment or if people he came into contact with at PSD were affiliated with PSD.

       On August 7, 2014, the day before the discovery cut-off date, the Sprys filed a motion in

which they requested the court extend discovery and continue the September 25 trial date. The

request to extend discovery stated, “Counsel for [PSD] was contacted via e-mail on August 1, 2014

with this request and such request was denied. It is our hope, with the Court’s intervention this

request can be granted.” CP at 22.

       A few days later, in opposition to the Sprys’ motion, PSD stated that the Sprys frequently

missed deadlines. On August 11, 2014, PSD also filed a motion for summary judgment. It argued

that the Sprys’ claims failed to establish a prima facie case for discrimination and the negligence

and negligent infliction of emotional distress claims were duplicative of and based on the same



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facts as the discrimination claim. It further contended the Sprys “failed to provide any evidence

to support their discrimination claim beyond their own feelings, speculation and conjecture.” CP

at 27.

         The Sprys responded to the motion for summary judgment on September 2, 2014. In the

response, they requested additional time for discovery because they had not “propounded

discovery on [PSD].” CP at 203. Kari, Ahsson, K.A.S, and M.A.S. filed declarations in opposition

to summary judgment. Kari attached to her declaration copies of the CPS reports, the school forms,

and also e-mails from and progress reports completed by officials at PDS about her sons. Kari

acquired the CPS documents through a records request in 2010. Kari also attached e-mail

correspondence and other documents chronicling her families’ issues with another family at PSD,

her communications to PSD officials expressing concerns about her children, and about how PSD

treated Ahsson.

         The e-mails reference problems between Ahsson and a parent named John Kivlin who

worked for the Bellevue Police Department. Among other issues, Kari and Ahsson expressed

concern that Kivlin knocked on Ahsson’s car window and said “turn that n***** music down”

and “I’m gonna make this guy[’]s life a living hell.” CP at 128. Also, in another e-mail exchange

between Kari and an official at PSD, Kari expressed concern that Ahsson had been told he had to

wait in his car to pick up G.J.S. In response, the school official stated, “We apologize for any

miscommunication that may have occurred that may have led you to think otherwise. As we

indicated, the interest of the District is safety of all students . . . As per your request, Mr. Brooks

will provide a map/drawing of the site indicating where it is recommended that people gather for

student pick up.” CP at 184.




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46782-8-II


       In his declaration, Ahsson stated that “[i]n the 2006-2007 school year, [a counselor]

discussed with me how he had grown up and heard the ‘N’ word frequently. He suggested that I

take my family to Charles Wright Elementary as ‘there were more uppity blacks’ like me at that

school.” CP at 192. Ahsson also stated that one of his son’s teachers called him in to talk and

acknowledge that race was an issue throughout Gig Harbor. In K.A.S.’s declaration, he stated, “I

am African-American and believe I was discriminated against because of that.” CP at 187. K.A.S.

was 13-years-old at the time. He also provided that he felt he was treated differently than other

students, his teacher did not let him watch “The Ruby Bridges movie” and did not tell him why,

he was not allowed to play with another African American friend, he was not allowed to play with

his brother, and he had another African American friend who told him he experienced racism at a

different elementary school. M.A.S., also 13-years-old at the time of his declaration, stated that

he did not see any other students turning in a “slip” after recess.3 CP at 200.

       In its reply in support of its motion for summary judgment, PSD pointed out that the Sprys’

response did not oppose the dismissal of the negligence claims. PSD also opposed the request for

more time and noted that the Sprys did not clearly request relief under CR 56(f) to gain additional

time for discovery, but the request was “essentially a CR 56(f) continuance.” CP at 215.

       The trial court held a hearing on the motions on September 15, 2014. During argument,

Kari opined that instances where the school reported to CPS demonstrated discrimination. The

trial court denied the Sprys’ motion to extend the time for additional discovery. It also granted




3
  This statement seems to be in reference to one of his teachers trying a “positive/consequence
program,” in which M.A.S. was to “deliver his yellow evaluation slips to [the recess supervisor]
at the beginning of each week with dates written on them” and “catch up with [the recess
supervisors] at the end of recess to get a yellow slip.” CP at 171.


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46782-8-II


PSD’s motion for summary judgment. The Sprys appeal the order denying the motion to continue

the discovery deadline and the order granting summary judgment.

                                              ANALYSIS

I.        DISCOVERY

          The Sprys assert the trial court erred by denying their motion to continue in order to obtain

discovery. We disagree.

          The trial court has wide discretion in ordering pretrial discovery, which we will not disturb

absent a manifest abuse of discretion or a showing that the trial court based its order on untenable

grounds or for untenable reasons. Demelash v. Ross Stores, Inc., 105 Wn. App. 508, 519, 20 P.3d

447 (2001). In other words, the trial court abuses its discretion only if no reasonable person would

have ruled as the court did. In re P’ship of Rhone & Butcher, 140 Wn. App. 600, 606, 166 P.3d

1230 (2007).

          A CR 56(f) motion is appropriate when affidavits are unavailable.

                  Should it appear from the affidavits of a party opposing the motion [for
          summary judgment] that, for reasons stated, the party cannot present by affidavit
          facts essential to justify the party’s opposition, the court may refuse the application
          for judgment or may order a continuance to permit affidavits to be obtained or
          depositions to be taken or discovery to be had or may make such other order as is
          just.

CR 56(f). We review a trial court’s ruling on a CR 56(f) motion for a continuance for manifest

abuse of discretion. Molsness v. City of Walla Walla, 84 Wn. App. 393, 400, 928 P.2d 1108 (1996).

The trial court does not abuse its discretion if: (1) the requesting party does not offer a good reason

for the delay in obtaining the desired evidence; (2) the requesting party does not state what

evidence would be established through the additional discovery; or (3) the desired evidence will

not raise a genuine issue of material fact. Turner v. Kohler, 54 Wn. App. 688, 693, 775 P.2d 474

(1989).


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46782-8-II


       Because the Sprys filed both a request to extend pretrial discovery and a CR 56(f) motion,

it is unclear which they appeal; however, we conclude that the trial court did not abuse its

discretion. The court considered that the Sprys missed many deadlines and did not communicate

openly about the delays in discovery beyond asking for a payment plan for an amount owed to

PSD based on a motion to compel. The Sprys did not clearly articulate what evidence would be

established through further discovery. They did not demonstrate that the discovery they sought

would raise a genuine issue of material fact. They did state in their response to PSD’s motion for

summary judgment, “Plaintiff’s also should have an opportunity to receive disciplinary records on

all students to compare whether treatment to their kids was equal to that of their peers.” CP at 204.

However, Kari admitted to the court that she had not conducted any discovery. Kari informed the

court that it had been a financial hardship to conduct discovery. Yet, the original motion to extend

was filed the day before the discovery cut-off date. In addition, the motions hearing took place on

September 15, 2014, one year after the Sprys filed their complaint and nine months after PSD

served them with interrogatories.

       Based on all of the facts, the trial court did not abuse its discretion.

II.    MOTION FOR SUMMARY JUDGMENT

       The Sprys argue the trial court erred by granting PSD’s motion for summary judgment

because material facts were in dispute. We disagree.

       A.      Standard of Review

       We review a summary judgment order de novo, engaging in the same inquiry as the trial

court. Woods v. H.O. Sports Co. Inc., 183 Wn. App. 145, 148, 333 P.3d 455 (2014). Summary

judgment is appropriate when there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. CR 56(c); Ranger Ins. Co. v. Pierce County, 164 Wn.2d



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46782-8-II


545, 552, 192 P.3d 886 (2008). We review the facts and reasonable inferences in the light most

favorable to the nonmoving party. Seiber v. Poulsbo Marine Ctr., Inc., 136 Wn. App. 731, 736,

150 P.3d 633 (2007).

       To avoid summary judgment, the nonmoving party must offer specific facts rebutting the

moving party’s contentions and disclosing the existence of material issues of fact. Loeffelholz v.

Univ. of Wash., 175 Wn.2d 264, 271, 285 P.3d 854 (2012). If the nonmoving party fails to

demonstrate that a material fact remains in dispute, and reasonable persons could reach but one

conclusion from all the evidence, then summary judgment is proper. Vallandigham v. Clover Park

Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).

       “A material fact is one upon which the outcome of the litigation depends in whole or in

part.” Atherton Condo. Apartment-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506,

516, 799 P.2d 250 (1990). The nonmoving party may not rely on speculation or argumentative

assertions. Ranger Ins. Co., 164 Wn.2d at 552. The nonmoving party must present competent

evidence by affidavit or otherwise. Bldg. Indus. Ass’n of Wash. v. McCarthy, 152 Wn. App. 720,

735, 218 P.3d 196 (2009). Additionally, “[i]f the nonmoving party fails to make a showing

sufficient to establish the existence of an element essential to his case, then the trial court should

grant the motion.” Atherton Condo., 115 Wn.2d at 516.

       B.      Discrimination Claim

       The Sprys contend that they provided “ample evidence” to prove intentional racial

discrimination. Br. of Appellant at 8. They argue that the trial court improperly heightened their

burden, requiring them to produce “a gun smoking with the fumes of racial bias.” Br. of Appellant

at 10. We disagree.




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46782-8-II


       The right to be free from discrimination because of race, creed, color, or national origin

includes the “right to the full enjoyment of any of the accommodations, advantages, facilities, or

privileges of any place of public resort, accommodation, assemblage, or amusement.” RCW

49.60.030(1)(b). A cause of action based on discrimination has shifting burdens of proof.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973);

Fulton v. Dep’t of Soc. & Health Servs., 169 Wn. App. 137, 148, 279 P.3d 500 (2012). The Sprys

carried the initial burden to prove a prima facie case. Scrivener v. Clark Coll., 181 Wn.2d 439,

446, 334 P.3d 541 (2014).

       The plaintiff “‘must do more than express an opinion or make conclusory statements’” and

must establish “specific and material facts to support each element of his or her prima facie case.”

Fulton, 169 Wn. App. at 147 (quoting Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d

618 (1992)). To establish a prima facie case for race or national origin discrimination in public

accommodations, the plaintiff must show: (1) the plaintiff is a member of a protected class; (2) the

defendant’s establishment is a place of public accommodation; (3) the defendant discriminated

against plaintiff by not treating him in a manner comparable to the treatment it provides to persons

outside that class; and (4) the protected class status was a substantial factor causing the

discrimination. Demelash, 105 Wn. App. at 525. Where the plaintiff fails to establish a prima

facie case, the defendant is entitled to judgment as a matter of law. Kirby v. City of Tacoma, 124

Wn. App. 454, 464, 98 P.3d 827 (2004).

       The Sprys argue generally that the trial court dismissed several “key pieces of evidence”

during summary judgment. Br. of Appellant at 10. As a threshold issue, the Sprys do not indicate

in their brief the evidence the trial court allegedly disregarded, making review of their arguments

challenging. Additionally, the Sprys argue that the trial court viewed the evidence presented in a



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“piecemeal fashion” and improperly weighed credibility. Br. of Appellant at 10. However, the

order granting summary judgment demonstrates, and the verbatim report of proceedings supports,

that the trial court considered the memorandums, depositions, declarations, and other evidence

presented. Therefore, we conclude the record does not support this argument.

       Further, the Sprys argue that “the only issue is whether plaintiffs have produced evidence

to support an inference of discrimination for purposes of summary judgment, as necessary to

satisfy the second and fourth elements of the prima facie case.” Br. of Appellant at 8. However,

based on a review of the record and the briefing, it appears the Sprys’ argument relates to the third

and fourth elements listed above. The Sprys contend, “[T]he sole question is whether a reasonable

juror could draw an inference of discrimination from the direct and circumstantial evidence

presented.” Br. of Appellant at 9. First, this contention is an incorrect statement of the law. And

second, the cases cited by the Sprys are all federal cases4 but they still support the correctness of

the trial court’s rulings under Washington law regarding the burden in a discrimination case. The

trial court properly articulated the Sprys’ burden of proof:




4
  See e.g. Br. of Appellant at 8-9 (citing Com. of Pa. v. Flaherty, 983 F.2d 1267, 1273 (3d Cir.
1993) (“It is now well established that a prima facie showing of discriminatory intent may be
proven indirectly, without a ‘smoking gun,’ on the ‘totality of the relevant facts,’ including
disparate impact if coupled with some other indicia of purposeful discrimination.”); Sheridan v.
E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1071-72 (3d Cir. 1996) (“In making [a finding of
discrimination], the jury must perform its traditional function of assessing the weight of the
evidence, the credibility of the witnesses through observation of both direct testimony and cross-
examination at trial, and the strength of the inferences that can be drawn from the elements of the
prima facie case and the evidence that undermines the employer’s proffered reasons for its
actions.”); Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995) (“Thereafter,
the nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to
allow a reasonable jury to find for him at trial.”)).


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46782-8-II


               In order to defeat a summary judgment, the plaintiff must present specific
       and material facts as to each and every element of the prima facie case and cannot
       rely on opinion and conclusory statements without evidence of differential
       treatment other than opinion subjective feelings and conclusory statements which
       is what I find in the response from the plaintiff.

Report of Proceedings (RP) at 20.

       Turning to the evidence provided, the parties do not dispute the first two elements, i.e., that

the Sprys are members of a protected class and that the schools the children attended are places of

public accommodation. However, the Sprys contend they established a genuine dispute of material

fact as to elements three and four: disparate treatment and causation.

       It seems that the Sprys based their discrimination claim against PSD on the CPS reports

about their children and disciplinary measures used against them.           However, they did not

demonstrate any disparate treatment between their family and other families. When the court

specifically asked Kari for evidence that her family was treated differently, she responded, “All I

have [is] . . . a submission of the principal at Harbor Heights, and it discussed where she did not

feel we had been given the information that other parents would be given as regards to progressive

discipline.” RP at 13. She then acknowledged that she did not submit the letter to the court. Kari

also referenced language in the CPS reports mentioning that African Americans are not welcome

in Gig Harbor, that her husband drives a Lotus, and that her family is of Muslim faith. This

evidence does not show that the Sprys were treated differently from persons outside of the

protected class. Through declarations, depositions, and other attachments, the Sprys did not

provide evidence of comparators to satisfy the third element.

       Additionally, Kari seemed to argue at summary judgment that an e-mail showed the

children were transferred to a different school within the district for reasons other than poor

attendance and behavior issues, the official reasons provided to them. During the motions hearing,



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Kari cited an e-mail from Kivlin to the school. She read a portion of the e-mail to the court that

included the following:

                “We came to Gig Harbor to get away from garbage like this family. They
        do nothing but form negativity throughout the community and school. My family
        means everything to me. If one of these kids or the parents say anything to my
        family, I will ask you to have both these kids expelled immediately. There is getting
        to be too much friction with this situation which can only get worse. If this is not
        done, I will have no problem going about my business to inform whoever wants to
        know about it. I will also go after your job. I believe in you and believe in what
        you want is best for every child, but there comes a time when you have to, quote,
        cut out the cancer or it takes over the whole body and kills it. Just in summary, I’m
        not threatening anyone. I just want what is best for my family and my community.
        Thank you for your time.”

RP at 12. This e-mail in itself does not establish that PSD discriminated against the Sprys because

of their status as African Americans or Muslims. Additionally, the e-mail is from a parent, not an

official of the school.

        Even viewing the evidence in the light most favorable to the Sprys, we conclude that the

Sprys failed to provide evidence of comparators and thus, also failed to establish a causal

connection between their status as a protected class and any disparate treatment they may have

received. Therefore, they failed to establish a prima facie case. We conclude that the trial court

properly granted summary judgment.

        C.      Negligence and Negligent Infliction of Emotional Distress

        The Sprys argue generally that the trial court erred by granting summary judgment.

However, the contents of the Sprys’ brief is specific to their discrimination claim. The Sprys do

not brief the dismissal of their negligence claims. The Sprys also did not respond to the part of

PSD’s motion for summary judgment arguing that the negligence claim should be dismissed. At

the summary judgment hearing, the Sprys did not provide facts to support their claim. We need

not consider the issue because the Sprys failed to argue it fully below at summary judgment and



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46782-8-II


failed to present an argument in their brief. See RAP 9.12; see also Cowiche Canyon Conservancy

v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (holding that an appellant waives an issue

when he fails to argue it in his appellate brief).5

        We affirm the trial court.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




                                                            Melnick, J.

We concur:




        Maxa, P.J.




        Sutton, J.




5
  We further note that the negligent infliction of emotional distress claim was based on the same
facts as the discrimination claim and thus, duplicative of the discrimination claim. A negligent
infliction of emotional distress claim cannot be based upon the same facts as a contemporaneous
discrimination claim. Robel v. Roundup Corp., 103 Wn. App. 75, 91, 10 P.3d 1104 (2000), rev’d
on other grounds, 148 Wn.2d 35, 59 P.3d 611 (2002). “[A] separate claim for emotional distress
is not compensable when the only factual basis for [the emotional] distress was the discrimination
claim.” Chea v. Men’s Warehouse, Inc., 85 Wn. App. 405, 413, 932 P.2d 1261 (1997).


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