                                 IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


              MARK H. DUPRAY, et al., Plaintiffs/Appellees,

                                     v.

     JAI DINING SERVICES (PHOENIX), INC., Defendant/Appellant.

                          No. 1 CA-CV 17-0599
                            FILED 11-15-2018


           Appeal from the Superior Court in Maricopa County
                          No. CV2014-007697
                The Honorable Daniel G. Martin, Judge

                     VACATED AND REMANDED


                                COUNSEL

Knapp & Roberts, P.C., Scottsdale
By Craig A. Knapp, David S. Friedman
Counsel for Plaintiffs/Appellees

Schneider & Onofry, P.C., Phoenix
By Timothy O’Connor
Co-Counsel for Defendant/Appellant

Osborn Maledon, P.A., Phoenix
By Kimberly A. Demarchi
Co-Counsel for Defendant/Appellant
                      DUPRAY, et al. v. JAI DINING
                         Opinion of the Court



                                 OPINION

Presiding Judge Randall M. Howe delivered the opinion of the Court, in
which Judge Jon W. Thompson and Judge Diane M. Johnsen joined.


H O W E, Judge:

¶1            JAI Dining Services (Phoenix), Inc. (“JAI”) appeals a jury
verdict finding it liable for negligently overserving alcohol to a patron who
later drove while intoxicated and caused a collision that seriously injured
Mark Dupray. JAI claims that the trial court erred in denying its motion for
judgment as a matter of law (“JMOL”) because it did not breach its duty of
care to Dupray, and even if it did overserve the patron, the patron’s
decisions to drive while intoxicated after safely leaving JAI’s establishment
were intervening and superseding causes that absolved JAI of liability for
Dupray’s injuries. JAI also claims that the trial court abused its discretion
in rejecting a proposed jury instruction on intervening and superseding
cause.

¶2            We vacate the jury’s verdict. The trial court correctly denied
the motion for JMOL because the jury was presented with sufficient
evidence to support the verdict. But the court erred in failing to give JAI’s
proposed instruction on intervening and superseding cause. The
instruction properly stated the law on the issue and the issue was critical to
the jury’s determination of liability.

                 FACTS AND PROCEDURAL HISTORY

¶3            Pedro Panameno, who had been living in his car, spent the
morning of August 5, 2013, at his girlfriend’s house, the house he
considered his “home.” At 2:30 p.m., Panameno drove his girlfriend’s
brother to see their mutual friend, who lived about thirty minutes away.
They stayed at the friend’s house until 4:00 p.m., when the friend drove
them to the mall in his car. On the way, they went to a drive-through liquor
store and purchased a fifth of bourbon and two 16-ounce alcoholic energy
drinks. Panameno had not yet drunk any alcohol that day. By the time they
reached the mall, however, Panameno had drunk both alcoholic energy
drinks and about half of the bourbon; his friend had one “swig” of the
bourbon.




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                      DUPRAY, et al. v. JAI DINING
                         Opinion of the Court

¶4           After a short stay at the mall, the friend drove them to Jaguars,
a gentlemen’s club JAI operated. On the way, Panameno drank the rest of
the bourbon. Arriving around 5:00 p.m., the men ordered three or four
buckets of beers, each containing eight 12-ounce bottles. Panameno drank
eleven or twelve bottles of beer over the next three hours. Panameno
became intoxicated and, by his own admission at trial, was in his “own little
world.”

¶5             The group left the club around 8:00 p.m. By that time,
according to Panameno, “[e]verybody was probably pretty much toasted at
that moment[,]” and “[e]verybody had more than their share, especially
me.” Panameno’s friend drove them back to his house, about eight to ten
minutes away. Panameno and his girlfriend’s brother stayed at the friend’s
house for fifteen to twenty minutes, and then Panameno drove the brother
back to his girlfriend’s house. When they arrived at the house twenty to
twenty-five minutes later, Panameno’s girlfriend began arguing with him
for bringing her brother home later than she had expected. She told
Panameno that he looked intoxicated and should not be driving and tried
to take his car key from him. Panameno became angry and drove off “a little
aggressive[ly].”

¶6             A short distance away, Dupray was stopped at a red light on
his “Vespa-type scooter.” Panameno, traveling about forty-five miles per
hour, rear-ended Dupray, severely injuring him. A police officer
responding to the collision found three 12-packs of beer in Panameno’s car,
with two bottles missing or broken. When the police interviewed
Panameno at the hospital, they observed signs of intoxication, including
slurred speech, bloodshot and watery eyes, and a strong odor of alcohol on
his breath. An officer drew Panameno’s blood a few hours after the
collision, and an analysis showed that his blood alcohol concentration at the
time of the collision was between 0.210 and 0.274.

¶7             Dupray and his wife sued (1) Panameno for negligence and
negligence per se for causing the collision and (2) JAI for “common law
dram shop negligence” and negligence per se for overserving Panameno to
the point of intoxication. JAI moved for summary judgment, asserting that
it had met the standard of care as a matter of law and that Panameno’s
decisions to drive were intervening and superseding causes that relieved
JAI of all liability as a matter of law. The trial court denied JAI’s motion,
and the matter proceeded to trial.

¶8          After the jury heard the evidence, JAI moved for JMOL under
Arizona Rule of Civil Procedure 50. JAI argued that the Duprays had not


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                          Opinion of the Court

presented sufficient evidence from which a jury could find that it breached
its duty to the Duprays. JAI also claimed that Panameno’s decisions to drive
after returning to his friend’s house and again after reaching his girlfriend’s
house were intervening and superseding causes destroying the chain of
proximate causation. The court denied JAI’s motion.

¶9            JAI then proposed a jury instruction that provided that the
Duprays were required to show that JAI’s acts or omissions produced their
injuries “unbroken by any intervening and superseding cause[.]” The
instruction also defined “intervening cause” and “superseding cause.” The
court rejected this instruction and stated it would give only a general
causation instruction. The court did allow JAI’s counsel to discuss
intervening and superseding causes in closing argument, but also
instructed the jury that “the lawyers’ questions and arguments are not
evidence.” The jury found for the Duprays, awarding $3,503,494.58 in
compensatory damages and allocating 60% of the fault to Panameno and
40% to JAI. The jury also awarded punitive damages of $400,000 against
Panameno and $4,000,000 against JAI.

¶10           After the verdict, JAI renewed its motion for JMOL and in the
alternative, moved for a new trial with an intervening and superseding
cause jury instruction. JAI also argued that insufficient evidence supported
the punitive damages award. The court denied JAI’s motion, and JAI timely
appealed.

                               DISCUSSION

              1. Judgment as a Matter of Law

¶11           JAI argues that the trial court erred in denying its JMOL
motion because (a) it did not breach its duty of care to the Duprays and
(b) Panameno’s actions in driving away from his friend’s house and then
his girlfriend’s house were intervening and superseding causes of the
Duprays’ injuries. We review the denial of the motion de novo but view the
evidence in the light most favorable to the Duprays. See Crackel v. Allstate
Ins. Co., 208 Ariz. 252, 259–60 ¶ 20 (App. 2004). A court may grant JMOL
only when “a reasonable jury would not have a legally sufficient
evidentiary basis to find for [a] party” on an issue that is necessary to the
party’s claim or defense. Ariz. R. Civ. P. 50(a). In considering a JMOL
motion, the trial court “may not weigh the credibility of witnesses or resolve
conflicts of evidence and reasonable inferences drawn therefrom[,]”
McBride v. Kieckhefer Assocs. Inc., 228 Ariz. 262, 265 ¶ 11 (App. 2011), but
“must give ‘full credence to the right of the jury to determine credibility,



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                         Opinion of the Court

weigh the evidence, and draw justifiable conclusions therefrom[,]’” id.
(quoting State v. Clifton, 134 Ariz. 345, 348 (App. 1982)). Because JAI failed
to show that the jury could not reasonably find that it breached its duty of
care to the Duprays or proximately caused their injuries, the trial court
correctly denied the motion.

                     a. Breach of the Duty of Care

¶12           A liquor licensee “is under a duty, imposed both by common
law principles and statute, to exercise affirmative, reasonable care in
serving intoxicants to patrons who might later injure themselves or an
innocent third party, whether on or off the premises.” Patterson v. Thunder
Pass, Inc., 214 Ariz. 435, 438 ¶ 13 (App. 2007). Arizona’s “dram shop”
statute, A.R.S. § 4–311(A), provides that a licensee is liable for property
damage or personal injuries if the licensee sold liquor to an obviously
intoxicated person and that person’s consumption of the liquor proximately
caused the plaintiff’s injury. “Obviously intoxicated” means “inebriated to
such an extent that a person’s physical faculties are substantially impaired
and the impairment is shown by significantly uncoordinated physical
action or significant physical dysfunction that would have been obvious to
a reasonable person.” A.R.S. § 4–311(D). A licensee also cannot serve liquor
to an obviously intoxicated person or allow an obviously intoxicated person
to remain on the premises longer than thirty minutes after the obvious
intoxication becomes known or should become known. A.R.S. § 4–244(14).
Nor can a licensee serve more than forty ounces of beer to one person at one
time for that person’s consumption. A.R.S. § 4–244(23).1

¶13            The Duprays presented evidence that JAI did not exercise
reasonable care in serving intoxicants to Panameno. Panameno testified
that in the hour before he arrived at the club, he had drunk two 16-ounce
alcoholic energy drinks and all but one “swig” of a fifth of bourbon. Once
at the club, he drank eleven or twelve 12-ounce bottles of beer—between
132 and 144 ounces of alcohol in total—over the next three hours. He said
that he became intoxicated and was in his “own little world.” A forensic
toxicologist testified that, based on an analysis of the toxicology reports of
Panameno’s blood after the collision, Panameno’s blood alcohol
concentration reached 0.10—the point at which a person would become
visibly intoxicated—while he was at the club. The Duprays’ expert on the
standard of care for liquor licensees testified that based on Panameno’s
toxicology reports and the other evidence about Panameno’s activities the

1     This statute has since been amended to increase the limit to fifty
ounces of beer.


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                       DUPRAY, et al. v. JAI DINING
                          Opinion of the Court

night of the collision, Panameno was obviously intoxicated at the club, and
club personnel did not comply with industry standards in serving alcohol
to him. According to the expert, club personnel did not monitor
Panameno’s drinking to determine if he was or had become intoxicated, nor
did they prevent him from causing injury to others in his intoxicated state.
This evidence provided a legally sufficient basis for the jury to find that JAI
breached its duty of care to the Duprays, which precluded the trial court
from granting JMOL for JAI.

¶14            JAI presents two arguments to the contrary. First, it argues
that the trial court should have granted JMOL because Panameno’s
testimony about how much alcohol he drank at the club was inconsistent
with expert testimony that he could have reached the blood alcohol
concentration he had at the time of the collision only by drinking after he
had left the club. But a trial court ruling on a motion for JMOL cannot weigh
witness credibility or resolve conflicts in evidence, McBride, 228 Ariz. at 265
¶ 11; it can determine only whether sufficient evidence was presented for
the jury to resolve the fact at issue. The jury had evidence that JAI
overserved Panameno to the point of obvious intoxication, which was
reason to deny the JMOL motion.

¶15             JAI argues second that it did not breach its duty because the
evidence was undisputed that Panameno left the club safely. For this
proposition, JAI relies on this Court’s decision in Patterson. But Patterson
does not support such a limited view of the scope of a tavern’s duty. In that
case, a tavern served alcohol to a patron who was obviously intoxicated.
214 Ariz. at 436 ¶ 3. When the patron attempted to leave the tavern,
however, a tavern employee took the patron’s car key from her and drove
her home in a different car, gave the patron back her key, and returned to
the tavern. Id. Within an hour after the tavern employee left and
unbeknown to the tavern personnel, the patron made her way back to the
tavern parking lot, retrieved her car, drove off, and subsequently caused a
collision. Id. This Court affirmed summary judgment for the tavern because
the tavern’s employees “fulfilled their legal duty of affirmative, reasonable
care to [the patron] and the public by separating [the patron] from her
vehicle and arranging for, as well as subsequently providing, the safe
transportation of [the patron] to her residence.” Id. at 439 ¶ 16.

¶16           Here, by contrast, the evidence does not show that the club’s
personnel took any action to see that Panameno reached home safely. No
evidence shows that the club’s personnel were even aware of Panameno’s
presence at the club. The fact that Panameno was transported away from
the club by a friend does not by itself absolve JAI from liability for failing


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                       DUPRAY, et al. v. JAI DINING
                          Opinion of the Court

to “exercise affirmative, reasonable care” in serving alcohol to Panameno.
Thus, the trial court did not err by denying JAI’s motion for JMOL on this
issue.

                      b. Proximate Cause

¶17             A plaintiff suing for negligence must prove, inter alia, a
“causal connection” between the defendant’s breach and the plaintiff’s
resulting injuries. Quiroz v. ALCOA Inc., 243 Ariz. 560, 564 ¶ 7 (2018). In this
context, “cause” has two components: actual cause or “causation-in-fact,”
and proximate or legal cause. Ontiveros v. Borak, 136 Ariz. 500, 505–06
(1983); Patterson, 214 Ariz. at 438–39 ¶¶ 13–14; Barrett v. Harris, 207 Ariz.
374, 378 ¶ 11 (App. 2004). Actual cause exists if the defendant’s act “helped
cause the final result” and the result “would not have happened without
the defendant’s act.” Ontiveros, 136 Ariz. at 505. A defendant is liable even
if his conduct contributed “only a little” to the plaintiff’s injuries. Id.
(citation omitted). An act that is the actual cause of injuries will also be the
proximate cause unless an intervening event supersedes the defendant’s
liability for the injuries. Id. at 505–06; Patterson, 214 Ariz. at 438–39 ¶ 14. An
event that contributes to the injuries is intervening if it has an independent
origin for which the defendant is not responsible. Patterson, 214 Ariz. at
438–39 ¶ 14. Such an event is superseding if it “was unforeseeable by a
reasonable person in the position of the original actor” and “looking
backward, after the event, the intervening act appears extraordinary.”
Ontiveros, 136 Ariz. at 506. When the injuries are “produced by an
intervening and superseding cause, even though the original negligence
may have been a substantial factor in bringing about the injury,” the
defendant is not liable “because the necessary proximate causation is
lacking.” Patterson, 213 Ariz. at 439 ¶ 14 (quoting Herzberg v. White, 49 Ariz.
313, 321 (1937)).

¶18            The existence of proximate cause “requires consideration of
all the facts,” and “is usually a question for the jury, unless reasonable
people could not differ.” McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244,
256 ¶ 38 (App. 2013). This includes the question whether an intervening
and superseding cause exists. See Robertson v. Sixpence Inns of Amer., Inc.,
163 Ariz. 539, 547 (1990) (holding that the trial court erred in granting
summary judgment on issue of intervening and superseding cause).

¶19           The trial court here properly denied JAI’s motion for JMOL
because the jury had sufficient evidence to find that JAI’s conduct was the
actual and proximate cause of the Duprays’ injuries. The jury heard
evidence that Panameno became intoxicated at the club and, traveling


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                         Opinion of the Court

forty-five miles per hour in an intoxicated state, rear-ended Dupray,
severely injuring him. Of course, the jury also heard contrary evidence.
JAI’s expert testified that Panameno’s blood alcohol concentration at and
after the collision was inconsistent with the allegation that he left the club
intoxicated. The jury heard testimony that Panameno was not driving when
he arrived or left the club and that he voluntarily drove from his friend’s
house to his girlfriend’s house and then away from his girlfriend’s house
until he finally collided with Dupray. But the existence of conflicting
evidence precludes granting a JMOL. See McBride, 228 Ariz. at 265 ¶ 11.

¶20             JAI nevertheless argues that it was entitled to JMOL because
Panameno’s decision to drive after he had been driven away from the club
constituted an intervening and superseding cause of the Duprays’ injuries.
It again relies on Patterson. In addition to holding that the tavern had
fulfilled its duty to its patron and the public by separating the patron from
her car and taking her home, this Court also held that the patron’s decision
to leave home and return to retrieve her car while intoxicated was an
intervening and superseding cause. Patterson, 214 Ariz. at 440 ¶ 19. This
Court held that the patron’s decision was “unforeseeable and
extraordinary” and “negated any negligence on the part of the tavern or its
employees.” Id.

¶21            JAI’s argument—that Panameno’s decisions to drive once he
was safely away from the club constituted intervening and superseding
causes that broke the chain of causation between JAI’s negligence and the
Duprays’ injuries—does have some force. But this case is not like Patterson
in two respects. First, unlike the tavern patron in that case, Panameno, who
lived in his car, did not go to his own home after leaving the club, but went
to the homes of others. Whether the homes of his friend or his girlfriend
were places of repose, which might make unforeseeable his decision to
leave them and continue driving, were factual questions for the jury, not
the trial court, to determine. Second, the record contains no evidence that
club personnel knew how Panameno arrived or departed from the club,
where he was heading after he left, or where he was staying. Thus, a jury
could have reasonably concluded that Panameno’s collision with Dupray
was foreseeable from JAI’s perspective. Because JAI was not entitled to
JMOL on the issue of causation, the trial court did not err in denying JAI’s
motion for JMOL.




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                       DUPRAY, et al. v. JAI DINING
                          Opinion of the Court

              2. Requested Jury Instruction

¶22            JAI also argues that the trial court erred by refusing to give a
jury instruction on intervening and superseding cause. This Court reviews
a refusal to give a requested jury instruction for an abuse of discretion and
will not reverse if the requesting party cannot show resulting prejudice.
Brethauer v. Gen. Motors Corp., 221 Ariz. 192, 198 ¶ 24 (App. 2009). We review
jury instructions as a whole, A Tumbling-T Ranches v. Flood Control Dist. of
Maricopa Cty., 222 Ariz. 515, 533 ¶ 50 (App. 2009), and view the evidence in
the light most favorable to the requesting party, Anderson v. Nissei ASB
Mach. Co., Ltd., 197 Ariz. 168, 178 ¶ 39 (App. 1999). “A trial court must give
a requested [jury] instruction if (1) the evidence supports the instruction,
(2) the instruction is proper under the law, and (3) the instruction pertains
to an important issue, and the gist of the instruction is not given in any other
instructions.” Brethauer, 221 Ariz. at 198 ¶ 24 (quoting DeMontiney v. Desert
Manor Convalescent Ctr. Inc., 144 Ariz. 6, 10 (1985)).

¶23           Applying these factors, the trial court abused its discretion in
denying the requested instruction. First, the parties presented evidence that
would support a jury finding that JAI’s overserving of Panameno was not
the proximate cause of the Duprays’ injuries because Panameno’s conduct
after leaving the club constituted an intervening and superseding cause.
The evidence showed that after Panameno left the club with his friends, he
drove from his friend’s house to his girlfriend’s house—the place he
considered his “home”—and then away from his girlfriend’s house, even
though he was intoxicated and rejected his girlfriend’s pleas that he was too
intoxicated to drive. From this evidence, the jury could have concluded that
although JAI’s negligence in overserving Panameno was an actual cause of
the collision, the chain of causation was broken by Panameno’s two
independent decisions to drive from both houses even though he was
intoxicated and warned that he should not drive.

¶24            Second, the instruction properly stated the law. An act that
causes injuries in a chain of events will be the “proximate cause” of the
injuries unless an independent and superseding event breaks that chain.
Ontiveros, 136 Ariz. at 505–06; Patterson, 214 Ariz. at 438–39 ¶ 14;
Restatement (Second) of Torts § 440 (1965) (A superseding event precludes
the imposition of liability for injuries.). An event that contributes to the
injuries is intervening and superseding if it occurred after, and was
independent of, the original negligent act and was, looking back,
extraordinary and unforeseeable by a reasonable person in the position of
the original actor. Ontiveros, 136 Ariz. at 506; Patterson, 214 Ariz. at 438–39
¶ 14; see Restatement (Second) of Torts §§ 440 (defining superseding cause),


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                       DUPRAY, et al. v. JAI DINING
                          Opinion of the Court

441 (defining intervening force), 442 (identifying considerations in
determining whether intervening force is a superseding cause). JAI’s
proposed instruction correctly tracked the law:

              Plaintiffs must show there was a natural and
       continuous sequence of events stemming from [JAI]’s alleged
       act or omission, unbroken by any intervening and
       superseding cause, that produced the injury, in whole or in
       part, and without which the injury would not have occurred.

              An “intervening cause” is an independent cause that
       occurs between the original act or omission and the final harm
       and is necessary in bringing about that harm.

              An intervening cause becomes a superseding cause,
       thereby relieving [JAI] of liability for any original negligent
       conduct, when the intervening force was unforeseeable and
       may be described, with the benefit of hindsight, as
       extraordinary.[2]

¶25           Third, the instruction pertained to a critical issue in the case:
whether Panameno’s actions were intervening and superseding causes of
the Duprays’ injuries. If the jury decided that Panameno’s two decisions to
drive while intoxicated after leaving the club constituted intervening and
superseding causes, JAI would not be liable for the Duprays’ injuries and
not subject to punitive damages. The trial court’s general causation
instruction did not address this issue:

       Negligence causes an injury if it helps produce the injury and
       if the injury would not have happened without the
       negligence. There may be more than one cause of an injury.

       ...

       Before you can find [JAI] at fault, you must find that [JAI]’s
       negligence was a cause of Plaintiffs’ injuries.


2      We infer “force” in the third paragraph of the proposed instruction
to mean “cause.” We also recognize that the instruction fails to note that
foreseeability of the intervening cause is assessed from the defendant’s
standpoint. Ontiveros, 136 Ariz. at 506; Patterson, 214 Ariz. at 439 ¶ 14. But
because the issue of foreseeability in this case does not turn on this point,
this omission is immaterial.


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                          Opinion of the Court

Without an instruction defining “intervening cause” and “superseding
cause,” the jury had no legal standard to apply to determine whether
Panameno’s acts were intervening and superseding causes. Although the
trial court allowed JAI’s counsel to argue that Panameno’s acts were
intervening and superseding causes, closing argument is a poor substitute
for an instruction by the court, even if the trial court had not also instructed
the jury that counsel’s arguments were not evidence. The failure to provide
the instruction to address the concept of intervening and superseding cause
hampered JAI in arguing that it was not liable for the Duprays’ injuries and
hampered the jury in properly determining whether JAI was liable.

¶26             The Duprays argue that the general instruction was adequate
and that an instruction on intervening and superseding cause was
unnecessary. They rely on Ritchie v. Krasner, in which this Court held that a
general instruction on causation without any specific instruction on
intervening superseding cause was adequate in a medical malpractice case.
221 Ariz. 288, 299–300 ¶ 32 (App. 2009). That decision, however, held only
that an intervening and superseding cause instruction was unnecessary
under the facts of that case, id., and did not purport to hold that such an
instruction would be unnecessary or improper in other cases. In this case,
JAI proposed an instruction that accurately stated the law on proximate
cause and intervening and superseding cause, and those concepts were
critical to correctly resolving the case.

¶27            The Duprays also argue that JAI’s proposed instruction did
not matter because the jury found JAI substantially at fault and imposed
significant punitive damages against it. But the jury’s finding that JAI was
substantially at fault was made without an instruction on intervening and
superseding cause. Properly instructed, the jury may have absolved JAI
from any liability because Panameno’s decisions to drive while intoxicated
after reaching his friend’s house and then separately rebuffing his
girlfriend’s pleas to not drive were intervening superseding causes. And if
the jury did find JAI not liable, JAI would not be subject to punitive
damages. Thus, the Duprays’ arguments fail. The trial court abused its
discretion in denying JAI’s proposed instruction on intervening and
superseding cause.




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                         Opinion of the Court

                              CONCLUSION

¶28            We vacate the jury’s verdicts against JAI and remand the case
to the trial court. Because we vacate the jury’s verdict on this ground, we
need not address JAI’s claim that insufficient evidence supported the
punitive damages award.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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