               IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 146PA17

                                  Filed 8 June 2018

 WAYNE T. BRACKETT, JR.,

                     Petitioner

              v.
 KELLY J. THOMAS, Commissioner of the North Carolina Division of Motor
 Vehicles,
                     Respondent



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 798 S.E.2d 778 (2017), affirming an order

signed on 14 June 2016 by Judge Susan E. Bray in Superior Court, Guilford County.

Heard in the Supreme Court on 13 March 2018.


      Joel N. Oakley for petitioner-appellee.

      Joshua H. Stein, Attorney General, by Christopher W. Brooks, Special Deputy
      Attorney General, for respondent-appellant.


      MORGAN, Justice.


      In this matter, we reaffirm the well-established standard of review when a

court reviews a final agency decision by the North Carolina Division of Motor Vehicles

(DMV) to revoke a driver’s license for willful refusal to submit to a chemical analysis.

In determining that the DMV erred in concluding that such a willful refusal had

occurred, the Court of Appeals here overstepped its role by making witness credibility
                                   BRACKETT V. THOMAS

                                     Opinion of the Court



determinations and resolving contradictions in the evidence presented during the

DMV’s administrative hearing concerning the license revocation. Utilizing the proper

standard of review, we conclude that the unchallenged findings of fact made by the

DMV support the only disputed legal conclusion, thus requiring us to uphold the

DMV’s decision to revoke the driving privileges at issue. Accordingly, we reverse the

decision of the Court of Appeals in this matter.


       On 13 August 2015, petitioner Wayne T. Brackett, Jr. was arrested in Guilford

County and charged with the offense of driving while impaired.                    Thereafter,

respondent Kelly J. Thomas, Commissioner of the DMV, notified petitioner that,

effective 20 September 2015, petitioner’s driving privileges would be suspended and

revoked based on petitioner’s refusal to submit to a chemical analysis. In response,

petitioner requested an administrative hearing before the DMV pursuant to the

Uniform Driver’s License Act. See N.C.G.S. § 20-16.2(d) (2017). That hearing was

conducted on 7 January 2016, after which the DMV hearing officer upheld the

revocation of petitioner’s driving privileges, making numerous findings of fact and

conclusions of law in his written decision.         Petitioner has never challenged the

hearing officer’s findings of fact,1 which are therefore binding on each reviewing court.

See e.g., Schloss v. Jamison, 258 N.C. 271, 275, 128 S.E.2d 590, 593 (1962) (“Where



       1 In his 19 January 2016 petition for judicial review of the DMV’s final agency decision
in the superior court, petitioner challenged only “the conclusion of the [DMV] that [he]
willfully and unlawfully refused to submit to a chemical test.”

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                                  Opinion of the Court



no exceptions have been taken to the findings of fact, such findings are presumed to

be supported by competent evidence and are binding on appeal.” (citations omitted));

see also Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). These

findings therefore provide the factual record of the events underlying this appeal:


      1.     On August 13, 2015, Officer Brent Kinney, Guilford County
             Sheriff’s Office, was stationary in the Food Lion parking lot
             at 7605 North NC Hwy 68 when he observed the petitioner
             and a female walking to the connecting parking lot of a bar,
             Stoke Ridge, between 9:30-9:40 [p.m.]. He noted the
             petitioner had a dazed appearance and was unsure on his
             feet.

      2.     Officer Brent Kinney observed the petitioner enter the
             driver’s seat of a gold Audi, back out of the parking space,
             and quickly accelerate to about 26 mph in the Food Lion
             parking [lot].

      3.     Officer Brent Kinney got behind the petitioner until the
             petitioner stopped in the parking lot. At that point Officer
             Brent Kinney observed both doors open and the petitioner
             and the female exit the vehicle.

      4.     Officer Brent Kinney lost sight of the vehicle when he
             exited the parking lot. Then he got behind the vehicle
             when it exited the parking lot.

      5.     Officer Brent Kinney observed the gold Audi cross the
             yellow line twice and activated his blue lights and siren.

      6.     The female was driving and Officer Brent Kinney
             determined she was not impaired.

      7.     Officer Brent Kinney detected a strong odor of alcohol on
             the petitioner, whom he saw driving in the PVA of Food
             Lion and observed he had slurred speech, glassy eyes and
             was red-faced.



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                          Opinion of the Court



8.    The petitioner put a piece of candy in his mouth even after
      Officer Brent Kinney told him not to do so. He subsequently
      removed the piece of candy when asked to do so.

9.    Officer Brent Kinney asked the petitioner to submit to the
      following tests: 1) Recite alphabet from E-U—Petitioner
      recited E, F, G, H, I, J, K, L, M, N, O, P and stopped; and
      2) Recite numbers backwards from 67-54—Petitioner
      recited 67, 66, 65, 4, 3, 2, 1, 59, 8, 7, 6, 5, 4, 3, 2, 1.

10.   Officer Brent Kinney arrested the petitioner, charging him
      with driving while impaired, and transported him to the
      Guilford County jail control for testing.

11.   Officer Brent Kinney, a currently certified chemical
      analyst with the Guilford County Sheriff’s Office, read
      orally and provided a copy of the implied consent rights at
      10:30 [p.m.] The petitioner refused to sign the rights form
      and did not call an attorney or witness.

12.   Officer Brent Kinney explained and demonstrated how to
      provide a sufficient sample of air for the test.

13.   Officer Brent Kinney requested the petitioner submit to
      the test at 10:49 [p.m.] The petitioner did not take a deep
      breath as instructed and faked blowing as the instrument
      gave no tone and the [gauge] did not move, indicating no
      air was being introduced.

14.   Officer Brent Kinney warned the petitioner that he must
      blow as instructed or it would be determined he was
      refusing the test and explained again how to provide a
      sufficient sample.

15.   The petitioner made a second attempt to submit to the test.
      This time he did take a breath but then gave a strong puff
      and then stopped; and then gave a second strong puff and
      stopped.

16.   The petitioner’s second attempt concluded at 10:50 [p.m.]
      at which time Officer Brent Kinney determined he was
      refusing the test by failing to follow his instructions and
      marked the refusal at that time.

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                                   Opinion of the Court



      17.    The petitioner’s second attempt resulted in a detection of
             mouth alcohol. With that, Officer Brent Kinney had to
             reset the instrument, not to provide another opportunity
             for the petitioner to take the test, but to enter the refusal
             into the instrument.

      18.    In spite of the test ticket recording the refusal at 10:56
             [p.m.], the DHHS 4081 indicates the refusal was actually
             at 10:50 [p.m.]

      19.    The doctor’s note indicates the petitioner’s asthma appears
             to be stabilized with medication and anxiety disorder is
             managed by Xanax.

Based upon these findings of fact, the hearing officer made the following conclusions

of law and upheld the revocation of petitioner’s driver’s license:


      1.     [Petitioner] was charged with an implied-consent offense.

      2.     Officer Brent Kinney had reasonable grounds to believe
             that [petitioner] had committed an implied-consent
             offense.

      3.     The implied-consent offense charged involved no death or
             critical injury to another person.

      4.     [Petitioner] was notified of his rights as required by
             N.C.G.S. 20-16.2(a).

      5.     [Petitioner] willfully refused to submit to a chemical
             analysis.

See N.C.G.S. § 20-16.2(d) (providing that the hearing before the DMV “shall be limited

to consideration of” five matters: whether a driver was charged with an implied-

consent offense, whether a law enforcement officer had reasonable grounds to believe

the driver committed an implied-consent offense, whether the implied-consent

offense charged involved death or critical injury to another person, whether the driver

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                                   Opinion of the Court



was notified of his rights, and whether the driver “willfully refused to submit to a

chemical analysis”).


      On 19 January 2016, petitioner filed a petition for judicial review in the

Superior Court, Guilford County, challenging the hearing officer’s final conclusion of

law: that petitioner had willfully refused to submit to a chemical analysis. See id. §

20-16.2(e) (2017) (providing that a “person whose license has been revoked has the

right to file a petition [for judicial review] in the superior court”). The superior court

heard the matter on 6 June 2016, ultimately reversing the DMV hearing officer’s

decision because “[t]he record does not support the conclusion under N.C.G.S. § 20-

16.2(d)(5). Therefore, the [DMV] Hearing Officer should not have found that the

petitioner willfully refused to submit to a chemical analysis of his breath.”


      The Commissioner appealed that decision to the Court of Appeals, arguing that

the superior court failed to conduct the type of review mandated by statute, see id. §

20-16.2(e) (“superior court review shall be limited to whether there is sufficient

evidence in the record to support the Commissioner’s findings of fact and whether the

conclusions of law are supported by the findings of fact and whether the

Commissioner committed an error of law in revoking the license”), that sufficient

evidence in the record supports the hearing officer’s findings of fact, and that those

findings of fact in turn support the hearing officer’s conclusion of law that petitioner

willfully refused to submit to a chemical analysis test. The Court of Appeals agreed


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                                     Opinion of the Court



that the superior court did not employ the correct standard of review and did “not

explain which of the agency’s fact findings were unsupported.” Brackett v. Thomas,

___ N.C. App. ___, ___, 798 S.E.2d 778, 781 (2017).


       Citing this Court’s per curiam opinion in Capital Outdoor, Inc. v. Guilford Cty.

Bd. of Adjustment, 355 N.C. 269, 559 S.E.2d 547 (2002), in which this Court reversed

the decision of the Court of Appeals for the reasons stated in the dissenting opinion,

including that “an appellate court’s obligation to review a superior court order for

errors of law . . . can be accomplished by addressing the dispositive issue(s) before the

agency and the superior court without examining the scope of review utilized by the

superior court,” 146 N.C. App. 388, 392, 552 S.E.2d 265, 268 (2001) (Greene, J.,

dissenting) (internal citation omitted), the Court of Appeals stated it would “consider

the issue under the applicable statutory standard of review, without remanding the

case to the superior court.” Brackett, ___ N.C. App. at ___, 798 S.E.2d at 781. But,

the Court of Appeals then utilized the same flawed analysis that it identified in the

superior court’s review, namely: considering whether the evidence in the record

supported the hearing officer’s conclusion of law that petitioner willfully refused a

chemical analysis,2 rather than determining whether the uncontested findings of fact




       2 Petitioner may have contributed to the confusion experienced by the reviewing courts
in this matter by suggesting in his original petition for judicial review in the superior court
that the willful refusal “conclusion is not sustained by the evidence presented.” Petitioner
has continued to make this argument in his briefs to the Court of Appeals and this Court.

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                                     Opinion of the Court



supported the hearing officer’s legal conclusion that petitioner willfully refused a

chemical analysis.3


       The General Assembly has explicitly directed that for a driver’s license

revocation based upon a person’s refusal to submit to a chemical analysis, “[t]he

superior court review shall be limited to whether there is sufficient evidence in the

record to support the Commissioner’s findings of fact and whether the conclusions of

law are supported by the findings of fact and whether the Commissioner committed

an error of law in revoking the license.” N.C.G.S. § 20-16.2(e). Factual findings that

are supported by evidence are conclusive, “even though the evidence might sustain

findings to the contrary.” Seders v. Powell, 298 N.C. 453, 460-61, 259 S.E.2d 544, 549

(1979) (citations omitted). It is the role of the agency, rather than a reviewing court,

“to determine the weight and sufficiency of the evidence and the credibility of the

witnesses, to draw inferences from the facts, and to appraise conflicting and

circumstantial evidence.” State ex rel. Comm’r of Ins. v. N.C. Rate Bureau, 300 N.C.


       3  Although not directly pertinent to the matter before this Court, we observe that the
Court of Appeals also erred in undertaking an analysis of the hearing officer’s first four
conclusions of law—whether petitioner was charged with an implied-consent offense,
whether Officer Kinney had reasonable grounds to believe petitioner had committed an
implied-consent offense, whether the implied-consent offense charged involved death or
critical injury, and whether petitioner was notified of his rights—even though, in seeking
judicial review in the superior court, petitioner challenged only the conclusion that he
willfully refused chemical analysis. Further, in that analysis, the Court of Appeals stated
that it considered whether “substantial” evidence supported the hearing officer’s factual
findings, rather than the proper standard under N.C.G.S. § 20-16.2(e) of whether “sufficient”
evidence in the record supports challenged findings of fact. See Brackett, ___ N.C. App. at
___, 798 S.E.2d at 781.

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                                    Opinion of the Court



381, 406, 269 S.E.2d 547, 565 (1980) (citations omitted); see also Watkins v. N.C. State

Bd. of Dental Exam’rs, 358 N.C. 190, 202, 593 S.E.2d 764, 771 (2004). In the present

case, the Court of Appeals engaged in the prohibited exercises of reweighing evidence

and making witness credibility determinations, essentially making its own findings

of fact in several areas where evidence presented to the hearing officer was

conflicting.


       As previously noted, unchallenged findings of fact are binding on appeal;

therefore, the only question for the Court of Appeals was whether the hearing officer’s

findings of fact supported the legal conclusion that petitioner willfully refused

chemical analysis. As the court acknowledged in its opinion,


               Officer Kinney testified that: (1) he instructed Petitioner
               on how to provide a valid sample of breath for testing; (2)
               Petitioner failed to follow the officer’s instructions on the
               first Intoximeter test, as the pressure gauge on the
               instrument did not indicate that air was being breathed by
               Petitioner; (3) Officer Kinney provided Petitioner a second
               opportunity to provide an air sample; and (4) contrary to
               Officer Kinney’s instructions, Petitioner finished blowing
               before being told to stop and then followed up with another
               puff of air.

                      Petitioner urges us to affirm the superior court’s
               decision and asserts the admitted evidence in the record
               shows: (1) the results of Petitioner’s second Intoximeter
               test registered “mouth alcohol;” (2) the operating manual
               and procedures for the EC/IR II Intoximeter requires that
               if the machine detects “mouth alcohol,” then a subsequent
               test should be administered after a 15-minute observation
               period; (3) Petitioner testified that he blew as long and
               hard as he could into the Intoximeter; (4) Petitioner

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                                  Opinion of the Court



             testified he told the arresting officer before being
             administered the Intoximeter that he suffered from
             asthma.

Brackett, ___ N.C. App. at ___, 798 S.E.2d at 783. With these observations, the Court

of Appeals recognized that petitioner had asked that court and the superior court to

(1) make witness credibility determinations about Officer Kinney and petitioner

concerning their conflicting accounts whether petitioner followed the officer’s

direction to blow without stopping in order to give a valid breath sample, (2) evaluate

evidence from the operating manual and procedures for the EC/IR II Intoximeter

about which the hearing officer made no findings, and (3) weigh those factual

determinations to decide whether they support a legal conclusion of willful refusal by

petitioner to submit to a chemical analysis. The court’s opinion then states:


                    Here, the findings of fact show and it is undisputed
             that when Petitioner blew a second time, the Intoximeter
             registered “mouth alcohol” as the result of the sample. The
             arresting officer asserted Petitioner failed to follow
             instructions by blowing insufficiently into the machine and
             he marked it as a willful refusal. Rather than indicating
             Petitioner blew insufficiently to provide a sample on his
             second attempt, Petitioner provided an adequate sample for
             the Intoximeter to read and register “mouth alcohol”. The
             arresting officer’s testimony that Petitioner blew
             insufficiently is directly contradicted by the Intoximeter’s
             registering a sample with a “mouth alcohol” test result.

                    Respondent did not produce any evidence to
             demonstrate the EC/IR II Intoximeter will produce a
             “mouth alcohol” reading if the test subject fails to submit a
             sufficient sample. The undisputed evidence shows the
             EC/IR II Intoximeter registered “mouth alcohol” and did


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                                  Opinion of the Court



             not indicate an inadequate sample or refusal from
             Petitioner’s failure to blow sufficiently.

                    Officer Kinney’s testimony asserting Petitioner
             willfully refused is contradicted by the machine’s
             acceptance of Petitioner’s sample. The indicated procedure
             to follow from this result of “mouth alcohol” is for a
             subsequent EC/IR II Intoximeter test to be administered
             after a 15-minute observation period elapses.           This
             procedure was not followed here. The DMV Hearing
             Officer’s conclusion that “[Petitioner] willfully refused to
             submit to a chemical analysis” is not supported by the
             record evidence or the findings.

Id. at ___, 798 S.E.2d at 784 (emphases added).


      Thus, instead of rejecting petitioner’s request to invade the province of the fact-

finder in this case—the hearing officer—and correctly focusing solely on whether the

unchallenged findings of fact support the conclusion of law of a willful refusal, the

Court of Appeals first impermissibly reviewed the record evidence to make new

factual determinations about, inter alia, the meaning of a “mouth alcohol” reading on

the Intoximeter, the adequacy of a breath sample, and the procedures to be followed

when a “mouth alcohol” reading is produced.              Thereupon, the appellate court

improperly determined the weight that such a reading should be given in determining

whether an adequate breath sample has been produced and resolved contradictions

in the evidence regarding whether petitioner followed Officer Kinney’s directions.

These unnecessary and superfluous steps by the Court of Appeals constitute error.




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                                   Opinion of the Court



      To properly review the hearing officer’s determination of a willful refusal to

submit to a chemical analysis test by petitioner, we must determine whether that

conclusion of law is supported by the following findings of fact pertinent to that issue:


      12.    Officer Brent Kinney explained and demonstrated how to
             provide a sufficient sample of air for the test.

      13.    Officer Brent Kinney requested the petitioner submit to
             the test at 10:49 [p.m.] The petitioner did not take a deep
             breath as instructed and faked blowing as the instrument
             gave no tone and the [gauge] did not move, indicating no
             air was being introduced.

      14.    Officer Brent Kinney warned the petitioner that he must
             blow as instructed or it would be determined he was
             refusing the test and explained again how to provide a
             sufficient sample.

      15.    The petitioner made a second attempt to submit to the test.
             This time he did take a breath but then gave a strong puff
             and then stopped; and then gave a second strong puff and
             stopped.

      16.    The petitioner’s second attempt concluded at 10:50 [p.m.]
             at which time Officer Brent Kinney determined he was
             refusing the test by failing to follow his instructions and
             marked the refusal at that time.

      17.    The petitioner’s second attempt resulted in a detection of
             mouth alcohol. With that, Officer Brent Kinney had to
             reset the instrument, not to provide another opportunity
             for the petitioner to take the test, but to enter the refusal
             into the instrument.

      18.    In spite of the test ticket recording the refusal at 10:56
             [p.m.], the DHHS 4081 indicates the refusal was actually
             at 10:50 [p.m.]




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                                   Opinion of the Court



      19.    The doctor’s note indicates the petitioner’s asthma appears
             to be stabilized with medication and anxiety disorder is
             managed by Xanax.

These factual findings indicate that petitioner was instructed on how to provide a

sufficient breath sample, did not follow the instructions on the first blow, was warned

that failing to follow the instructions on providing a sufficient breath sample would

constitute a refusal, was re-instructed on providing a sufficient breath sample, failed

again to follow the instructions during the second blow, was then recorded as refusing

to submit to a chemical analysis on the basis of his failure to follow instructions, had

a breathing condition that his doctor indicated was “stabilized with medication,” and

was ultimately marked as willfully refusing to submit to a chemical analysis based

upon his failure to follow Officer Kinney’s repeated instructions despite being

warned. Based on these unchallenged facts, we hold that the repeated failure to

follow the chemical analyst’s instructions on how to provide a sufficient breath

sample, after being warned that a refusal to comply would be recorded if such failure

continues, constitutes willful refusal to submit to a chemical analysis.


      Section 20-16.2 has consistently included the phrase “willful refusal” to submit

to a chemical analysis as a basis for revocation of one’s driving privileges over the

course of its original enactment and numerous amendments spanning more than five

decades. This Court has held that, as provided in N.C.G.S. § 20-16.2, “refusal is

defined as ‘the declination of a request or demand, or the omission to comply with

some requirement of law, as the result of a positive intention to disobey.’ ” Joyner v.

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                                    Opinion of the Court



Garrett, 279 N.C. 226, 233, 182 S.E.2d 553, 558 (1971) (quoting refusal, Black’s Law

Dictionary (4th ed. 1951)). For such a refusal to be willful, the driver’s actions must

reflect “a conscious choice purposefully made.” Seders, 298 N.C. at 461, 259 S.E.2d

at 550; see also Etheridge v. Peters, 301 N.C. 76, 81, 269 S.E.2d 133, 136 (1980) (citing

Seders for the same proposition). Our discussion of the driver’s willful refusal in

Seders is illustrative of the enunciated principle.


       In Seders the driver was informed of his right to consult an attorney but was

also warned that, in any event, testing could be delayed for no longer than thirty

minutes. 298 N.C. at 461, 259 S.E.2d at 549; see N.C.G.S. § 20-16.2(a)(6) (2017)

(stating that a driver must be informed of his right to “call an attorney for advice . . . ,

but the testing may not be delayed for [this] purpose[ ] longer than 30 minutes from

the time you are notified of these rights. You must take the test at the end of 30

minutes even if you have not contacted an attorney . . . .”). The chemical analyst in

Seders, who was also a North Carolina state trooper,


              warned [the driver] on three occasions that his time was
              running out and told [the driver] how many minutes he had
              remaining. The trooper also stated that he told [the driver]
              that the test could not be delayed for more than 30 minutes
              and that if [the driver] did not take the test within that
              time it would be noted as a refusal.

Id. at 461, 259 S.E.2d at 549. This Court observed that the driver “was told the

consequences of his failure to submit to the test within the 30 minute time limitation

yet still elected to run the risk of awaiting his attorney’s call,” and held that the

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                                  Opinion of the Court



driver’s “action constituted a conscious choice purposefully made and his omission to

comply with this requirement of our motor vehicle law amounts to a willful refusal.”

Id. at 461, 259 S.E.2d at 549 (emphasis added) (citations omitted).


      Both the driver in Seders and petitioner in the instant case were instructed

repeatedly about the process of submitting to a valid chemical analysis. In Seders,

the instruction at issue was the requirement that the chemical analysis test be

implemented no longer than thirty minutes from the time that a vehicle operator is

informed of his or her rights to consult an attorney regarding the test. In the case at

bar, the instruction at issue is the proper method by which to provide a breath sample

sufficient for a chemical analysis. Both the driver in Seders and petitioner here were

warned that continued failure to comply with instructions repeatedly given by law

enforcement officers would result in a determination of a willful refusal to submit to

a chemical analysis. Despite these warnings, both the driver in Seders and petitioner

here remained noncompliant with the pertinent instructions, “action[s] constitut[ing]

a conscious choice purposefully made” not to submit to chemical testing. See id. at

461, 259 S.E.2d at 550. Petitioner here was instructed about how to produce a

sufficient breath sample, but he instead chose to give an initial “faked” blow and then

a “puff-stop-puff-stop,” both of which were insufficient for analysis. A motor vehicle

operator who intentionally and repeatedly fails to follow the instructions that have

been explained in order for a chemical analysis to be performed, therefore thwarting



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                                 Opinion of the Court



the execution of the test, commits willful refusal to submit to a chemical analysis

under N.C.G.S. § 20-16.2.


      The superior court and the Court of Appeals both employed an incorrect

standard of review and thus erred in reversing the administrative decision of the

DMV hearing officer revoking petitioner’s operator’s license. Accordingly, the Court

of Appeals decision is reversed and this matter is remanded to that court for further

remand to the superior court with instructions to reinstate the order of the DMV

dated 7 January 2016.


      REVERSED AND REMANDED.




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