                                                                       FILED
                                                                  Mar 15 2018, 7:44 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
Kevin P. Podlaski                                         Attorney for Melissa Bermudez
Nicholas A. Podlaski                                      William A. Ramsey
Beers Mallers Backs & Salin, LLP                          Barrett McNagny, LLP
Fort Wayne, Indiana                                       Fort Wayne, Indiana
                                                          Attorneys for Progressive Southeastern
                                                          Insurance Company
                                                          J. Blake Hike
                                                          Michael C. Ross
                                                          Carson Boxberger, LLP
                                                          Fort Wayne, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Eric Dulworth,                                            March 15, 2018
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          02A05-1707-PL-1556
        v.                                                Appeal from the Allen Superior
                                                          Court
Melissa Bermudez and                                      The Honorable Craig J. Bobay,
Progressive Southeastern                                  Judge
Insurance Company,                                        Trial Court Cause No.
Appellees-Defendants.                                     02D02-1608-PL-398




Riley, Judge.




Court of Appeals of Indiana | Opinion 02A05-1707-PL-1556 | March 15, 2018                  Page 1 of 16
                                STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, Eric Dulworth (Dulworth), appeals the trial court’s

      summary judgment in favor of Appellees-Defendants, Melissa Bermudez

      (Bermudez) and Progressive Southeastern Insurance Company (Progressive),

      on Dulworth’s Complaint for damages arising out of a vehicle collision.


[2]   We affirm.


                                                    ISSUES
[3]   Dulworth presents us with four issues on appeal, which we consolidate and

      restate as the following two issues:


          (1) Whether the trial court properly concluded that, as a matter of law,

              Bermudez was released under the terms of the Release Agreement

              executed between Dulworth and Charity Cherneski, even though

              Bermudez was not a party to the Release Agreement; and

          (2) Whether the trial court properly concluded that, as a matter of law,

              Dulworth is barred from pursuing underinsured motorist benefits from

              Progressive.


                       FACTS AND PROCEDURAL HISTORY
[4]   On August 22, 2014, Dulworth was involved in a motor vehicle accident on

      West Jefferson Boulevard, in Fort Wayne, Indiana. Approaching the

      intersection with Webster Street, Bermudez came to a sudden stop. Dulworth,

      who was driving behind Bermudez, stopped but Charity Cherneski (Cherneski),

      Court of Appeals of Indiana | Opinion 02A05-1707-PL-1556 | March 15, 2018   Page 2 of 16
      who was following Dulworth, failed to brake in time. Cherneski collided with

      Dulworth’s vehicle, causing property damage and bodily injury.


[5]   On August 1, 2016, Dulworth resolved his bodily injury claim against

      Cherneski by entering into a Release of All Claims (Release), with Cherneski

      and her automobile insurer, Founders Insurance Company (Founders). This

      Release stated, in pertinent part:


              KNOW ALL MEN BY THESE PRESENTS: That the
              undersigned, being of lawful age, for the sole consideration of
              Twenty-five thousand and 00/100 ($25,000.00), to the
              undersigned in hand paid, receipt whereof is hereby
              acknowledged, do/does hereby and for my/our/its heirs,
              executors, administrators, successors, and assigns release, acquit
              and forever discharge Charity Cherneski and Founders Insurance
              Company and his, her, their, or its agents, servants, successors,
              heirs, executors, administrators, and all other persons, firms,
              corporations, associations or partnerships of and from any and all
              claims, actions, causes of action, demands, rights, damages,
              costs, loss of service, expenses and compensation whatsoever
              which the undersigned now has/have or which may hereafter
              accrue on account of or in any way growing our of any and all
              known and unknown, foreseen and unforeseen bodily and
              personal injuries and property damage and the consequences
              thereof resulting or to result from the accident, casualty or event
              which occurred on or about the 22nd day of August 2014, at or
              near Jefferson Street, Fort Wayne, Indiana.


              It is understood and agreed that this settlement is the
              compromise of a doubtful and disputed claim, and that the
              payment made is not to be construed as an admission of liability
              on the part of the party or parties hereby released, and that said
              releases deny liability therefore and intend merely to avoid
              litigation and buy their peace.
      Court of Appeals of Indiana | Opinion 02A05-1707-PL-1556 | March 15, 2018    Page 3 of 16
              ****


              This Release expressly reserves all rights of the person, or
              persons, on whose behalf the payment is made and the rights of
              all persons in privities or connected with them, and reserves to
              them their right to pursue their legal remedies, if any, including
              but not limited to claims for contribution, property damage and
              personal injury against the undersigned or those in privities or
              connected with the undersigned.


      (Appellant’s App. Vol. II, p. 32).


[6]   On August 22, 2016, after settling his claim against Cherneski, Dulworth filed

      his Complaint for damages against Bermudez, alleging that Bermudez

      negligently caused or contributed to the collision by making an unwarranted

      stop. In addition, Dulworth sought to recover underinsured motorist (UIM)

      benefits from Progressive, under a policy with benefit limits in the amount of

      $100,000 to $300,000. To qualify for these UIM benefits, the policy provides:


              We will pay under this Part III [Uninsured/Underinsured
              Motorist Coverage] only after the limits of liability under all
              applicable bodily injury liability bonds and policies have been
              exhausted by payment of judgments or settlements. An insured
              person must notify us of any bona fide offer of agreement or
              settlement with the owner or operator of an underinsured motor
              vehicle and must provide certification of the limits of liability of
              the underinsured motorist.


      (Appellant’s App. Vol III, p. 18).




      Court of Appeals of Indiana | Opinion 02A05-1707-PL-1556 | March 15, 2018      Page 4 of 16
[7]   On February 9, 2017, Bermudez filed her motion for summary judgment,

      together with a memorandum in support thereof, and designation of evidence.

      On March 13, 2017, Dulworth filed a response to Bermudez’s motion, as well

      as a motion to strike. The following day, Progressive filed its motion for

      summary judgment, to which Dulworth replied on May 8, 2017. On April 21,

      2017 and April 24, 2017, Bermudez and Progressive, respectively, each filed

      their own motion to strike. On May 17, 2017, the trial court conducted a

      hearing on Bermudez’s and Progressive’s motions for summary judgment and

      associated motions to strike. On June 7, 2017, the trial court entered summary

      judgment in favor of Bermudez and Progressive, concluding, in pertinent part:


              The Release in the present case is not analogous to that evaluated
              in Bank One [v. Surber, 899 N.E.2d 693 (Ind. Ct. App. 2009)], and
              that the present Release unambiguously operates as a release of
              everyone, without limitation. Therefore, extrinsic evidence may
              not be introduced in an attempt to qualify the plain meaning of
              the words as they appear in the four corners of the document. As
              the agreement at issue is a Release, the case law also makes clear
              that no privity is required for this document to operate in favor of
              third parties, and the Stranger to the Contract Rule is not an
              exception to the bar against extrinsic evidence.


              ****


              The [c]ourt agrees that a reading of the plain language of the
              Policy indicates that since Bermudez was released without
              payment [], Bermudez’s bodily injury limits were not exhausted.
              As Dulworth did not abide by the Policy language, Dulworth is
              not entitled to recover UM/UIM benefits from Progressive. The
              [c]ourt concludes there are no genuine issues of material fact
              regarding Progressive’s liability, and that Dulworth cannot
      Court of Appeals of Indiana | Opinion 02A05-1707-PL-1556 | March 15, 2018   Page 5 of 16
              sustain an action against Progressive for UIM benefits.
              Therefore, entry of summary judgment in favor of Progressive is
              proper.


      (Appellant’s App. Vol. II, pp. 28, 30).


[8]   Dulworth now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review


[9]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

      shoes of the trial court, applying the same standards in deciding whether to

      affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

      891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

      must determine whether there is a genuine issue of material fact and whether

      the trial court has correctly applied the law. Id. at 607-08. In doing so, we

      consider all of the designated evidence in the light most favorable to the non-

      moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if

      it helps to prove or disprove an essential element of the plaintiff’s cause of

      action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an

      opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.

      Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant

      of summary judgment has the burden of persuading this court that the trial

      court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.

      When the defendant is the moving party, the defendant must show that the


      Court of Appeals of Indiana | Opinion 02A05-1707-PL-1556 | March 15, 2018     Page 6 of 16
       undisputed facts negate at least one element of the plaintiff’s cause of action or

       that the defendant has a factually unchallenged affirmative defense that bars the

       plaintiff’s claim. Id. Accordingly, the grant of summary judgment must be

       reversed if the record discloses an incorrect application of the law to the facts.

       Id.


[10]   We observe that, in the present case, the trial court entered findings of fact and

       conclusions of law in support of its judgment. Special findings are not required

       in summary judgment proceedings and are not binding on appeal.

       AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

       App. 2004). However, such findings offer this court valuable insight into the

       trial court’s rationale for its review and facilitate appellate review. Id.


                                                  II. The Release


[11]   Dulworth contends that the Release is unambiguous and only released

       Cherneski and Founders and therefore does not bar his claim against

       Bermudez. Generally, only parties to a contract or those in privity with the

       parties have rights under the contract. OEC-Diasonics, Inc. v. Major, 674 N.E.2d

       1312, 1314-15 (Ind. 1996). However,


               [o]ne not a party to an agreement may nonetheless enforce it by
               demonstrating that the parties intended to protect him under the
               agreement by the imposition of a duty in his favor. To be
               enforceable, it must clearly appear that it was the purpose or a
               purpose of the contract to impose an obligation on one of the
               contracting parties in favor of the third party. It is not enough
               that performance of the contract would be of benefit to the third

       Court of Appeals of Indiana | Opinion 02A05-1707-PL-1556 | March 15, 2018     Page 7 of 16
               party. It must appear that it was the intention of one of the
               parties to require performance of some part of it in favor of such
               third party and for his benefit, and that the other party to the
               agreement intended to assume the obligation thus imposed.


       Id. (internal citation omitted). The intent of the contracting parties to bestow

       rights on a third party must affirmatively appear from the language of the

       instrument when properly interpreted and construed. Id. It is not necessary

       that the intent to benefit a third party be demonstrated any more clearly than

       the parties’ intent regarding any other terms of the contract. Id.


[12]   “A release executed in exchange for proper consideration works to release only

       those parties to the agreement unless it is clear from the document that others

       are to be released as well.” Evan v. Poe & Associates, Inc., 873 N.E.2d 92, 98

       (Ind. Ct. App. 2007) (citing Huffman v. Monroe Co. Cmty. Sch. Corp., 588 N.E.2d

       1264, 1267 (Ind. 1992)). “A release, as with any contract, should be interpreted

       according to the standard rules of contract law.” Evan, 873 N.E.2d at 98.

       “[R]elease documents shall be interpreted in the same manner as any other

       contract document, with the intention of the parties regarding the purpose of

       the document governing.” OEC-Diasonics, Inc., 674 N.E.2d at 1314. A contract

       is ambiguous only if a reasonable person could find its terms susceptible to

       more than one interpretation. Evan, 873 N.E.2d at 98. Where “a contract is

       unambiguous, the intent of the parties should be determined by the language

       employed in the document.” Id. Thus, if the contract is ambiguous, “we give

       effect to the intentions of the parties as expressed in the four corners of the

       documents.” Id. We will neither construe clear and unambiguous provisions

       Court of Appeals of Indiana | Opinion 02A05-1707-PL-1556 | March 15, 2018    Page 8 of 16
       nor add provisions not agreed upon by the parties. Id. The meaning of a

       contract is to be determined from an examination of all of its provisions, not

       from a consideration of individual words, phrases, or even paragraphs read

       alone. Id.


[13]   While the Release contains language purportedly discharging “all other

       persons,” Dulworth maintains this is a general term “restricted to that class, or

       types of persons, and encompasses any other persons related by blood or legal

       right to Cherneski and/or Founders not specifically, previously named.”

       (Appellant’s Br. p. 16). Bermudez and Progressive, on the other hand, both

       maintain that the unambiguous language of the Release intended to release “all

       other persons” without restrictions, in the absence of any limiting provisions.

       In support of their respective positions, the parties rely on the same precedents.


[14]   Dulworth centers his argument on Bank One, Nat. Ass’n. v. Surber, 899 N.E.2d

       693, 703 (Ind. Ct. App. 2009), trans. denied, in which we found that

       contradictory language in the release prevented the release of “all other

       persons.” Bank One involved an argument between a widow and the decedent’s

       daughters over estate funds which were held in the decedent’s bank account.

       Id. at 697. Because the bank could not locate the widow’s signatory card giving

       her authorization to be on the decedent’s account, the bank deemed the account

       the sole property of the decedent. Id. The dispute was eventually settled

       through a mediated settlement agreement and subsequent release. Id. at 698.

       Thereafter, the widow brought a claim against Bank One for negligence, and



       Court of Appeals of Indiana | Opinion 02A05-1707-PL-1556 | March 15, 2018   Page 9 of 16
Bank One, relying on the release, argued the agreement released it from

liability. Id. The release contained the following paragraph:


        [Widow], [decedent’s daughters], and the Estate of [the decedent]
        (hereinafter ‘Signatories’), conditioned upon and for and in
        consideration of the [c]ourt’s approval of and the performance of
        the Compromise, the sufficiency of which is hereby
        acknowledged, hereby forever release and discharge each other,
        their heirs, personal representatives, attorneys, agents and
        assigns, and all other persons or entities who might be liable, not
        of whom admit any liability to the Signatories, but all dispute any
        liability to the Signatories, of and from any and all manner of
        actions, causes of action, suits, accounts, contracts, debts, claims,
        and demands whatsoever, at law or in equity, and however
        arising, on or before the date of this release, including but not
        limited to, all matters asserted, or which could have been
        asserted, by and of the Signatories in that certain actions pending
        in the Hamilton Superior Court, State of Indiana, as above
        entitled under Cause No. [].


Id. Finding that the release contained language contradicting the general

statement of “all other persons or entities who might be liable . . .” this court

focused on the multiple ambiguities included in the paragraph. Id. at 702. The

release specifically referenced the Signatories when limiting its applicability to

claims “asserted, or which could have been asserted” and “any and all

disputes” existing “between the Signatories.” Id. The Release also explicitly

referenced the cause number identifying the case in which the Signatories to the

release were litigating their dispute. Id. Accordingly, given the contradictory

provisions, we concluded that the Signatories intended to limit the release to the



Court of Appeals of Indiana | Opinion 02A05-1707-PL-1556 | March 15, 2018   Page 10 of 16
       pending litigation over the decedent’s estate and did not release Bank One from

       liability. Id. at 703.


[15]   Bermudez and Progressive refer this court to our decision in Evan v. Poe &

       Assocs., Inc., 873 N.E.2d 92 (Ind. Ct. App. 2007), where we construed a

       settlement agreement as barring claims against the defendant, who was not

       specifically named in the release. This specific release stated, in pertinent part:


               [] [Evan] do hereby release, acquit and forever discharge the
               Safeco Insurance Co. of America, and [its Attorneys], their
               representative agents, employees, representatives, attorneys,
               heirs, executors, administrators, successors and assigns, together
               with all other persons, firms and corporations, from any and all
               claims for damages, costs, expenses and compensations,
               including but not limited to any claim for breach of a duty of
               good faith and fair dealing or for punitive damages, whatsoever
               at law or in equity, and however arising, on account of, or in any
               way growing out of the issuance of Safeco Insurance Policy [] to
               [Evan], and/or a fire loss which occurred on February 12, 2001
               at []; and damages and losses for which the parties hereby
               released are legally liable, all of which is denied and disputed by
               them.


       Id. at 96. Interpreting the release to be unambiguous, the Evan court noted that

       the instrument did not contain any limitations of claims or other language that

       contradicted the notion that “all other persons” were released. Id. at 101.

       While the document did contain a policy number, the court did not find that

       this reference limited the expansive language of “all other persons.” Id.

       Accordingly, the court held that the release clearly and unambiguously released

       the world. Id.

       Court of Appeals of Indiana | Opinion 02A05-1707-PL-1556 | March 15, 2018   Page 11 of 16
[16]   We find Evan more persuasive to the facts at hand. By executing the Release,

       Dulworth did not only release Cherneski and her insurer, but also “all other

       persons, firms, corporations, associations, or partnerships.” (Appellant’s App.

       Vol. II, p. 32). Even though the Release initially references the release of

       Cherneski, Founders, and their agents, servants, successors, heirs, executors,

       and administrators, the instrument then, without any limiting language, also

       releases “all other persons, . . . from any and all claims, actions, . . .”

       (Appellant’s App. Vol. II, p. 32). Unlike Bank One, the instrument here simply

       does not contain any recitation of ‘affected parties’ or any other constricting

       language. See Bank One, 899 N.E.2d at 698. Despite the fact that the Release

       includes the claim number and policy number in the top right corner of the

       document, these references are not tied to the releasing language and cannot

       function as a limiting factor. Rather, we agree with the trial court, that based

       on their location, these indicators merely represent “a record-keeping device,

       not as a statement of release limitation.” (Appellant’s App. Vol. II, p. 28).

       Furthermore, the Release preserves the rights of Cherneski and Founders to

       pursue other claims related to the accident, but includes no such provisions that

       reserves Dulworth’s rights with respect to other claims related to the accident.


[17]   Dulworth now argues that the stranger to the contract rule exception applies

       and that his affidavit, expressing his intent not to release Bermudez and

       Progressive must be considered. In general, “[t]he parol evidence rule provides

       that extrinsic evidence is inadmissible to add to, vary, or explain the terms of a

       written instrument if the terms of the instrument are clear and unambiguous.”


       Court of Appeals of Indiana | Opinion 02A05-1707-PL-1556 | March 15, 2018     Page 12 of 16
       Cooper v. Cooper, 730 N.E.2d 212, 215 (Ind. Ct. App. 2000). However, under

       the stranger to the contract rule, “the inadmissibility of parol evidence to vary

       the terms of a written instrument does not apply to a controversy between a

       third party and one of the parties to the instrument.” Id. at 216. Accordingly,

       as the parol evidence rule does not apply to this controversy due to the stranger

       to the contract exception, we must determine whether, in light of the

       unambiguous nature of the release, extrinsic evidence allowed under the

       stranger to the contract exception should be considered.


[18]   In Huffman, our supreme court abolished the common law rule that the release

       of one joint tortfeasor released all other tortfeasors. Huffman, 588 N.E.2d at

       1267. The court reasoned that a rule which assumed total release did not give

       appropriate deference to the parties’ intent. To remedy this failing, the court

       held that a release should be interpreted like any other contract “with the intent

       of the parties regarding the purpose of the document governing.” Id. In

       applying this new rule, the court stated:


               The release document in this case cannot be said to be ‘clear and
               unambiguous on its face . . . These contradictory references
               [between the first and second paragraph of the release document]
               cloud the intent of the document. Consequently, parol evidence
               may be utilized to determine the parties’ true intention respecting
               the documents’ application.


       Id. Accordingly, in the absence of ambiguity, Huffman does not require or

       permit us to look beyond the language of the release. Id. See also Evan, 873

       N.E.2d at 103 (in the context of a controversy that exists between a third party

       Court of Appeals of Indiana | Opinion 02A05-1707-PL-1556 | March 15, 2018   Page 13 of 16
       and one of the parties to the instrument, when a release is unambiguous we

       need not look at any other evidence to determine the parties’ intent.”); Bank

       One, 899 N.E.2d at 703 (finding the release to be ambiguous, the court

       considered extrinsic evidence). As we determined the Release between

       Dulworth and Cherneski to be unambiguous, we establish the intent of the

       Release from the four corners of the instrument and cannot consider extrinsic

       evidence. 1


[19]   Accordingly, “[l]anguage which releases ‘all persons’ does just that and is clear

       as long as no other terms are contradictory.” Dobson v. Citizen Gas & Coke Util.,

       634 N.E.2d 1343, 1345 (Ind. Ct. App. 1994). The location of the clause “[a]ll

       other persons” in the Release mirrors its location in other releases, which were

       determined by this court to have released the world. See, e.g., Stemm v. Estate of

       Dunlap, 717 N.E.2d 971, 976 (Ind. Ct. App. 1999) (in which the releasor

       executed a release discharging “Arnold Ray Rivera[,] [his] heirs,

       administrators, executors, successors and assigns, and all other persons and

       organizations”), reh’g denied. Here, Dulworth “affirmatively intended to

       release” Bermudez based in the language of the instrument. See Kirtley v.

       McClelland, 562 N.E.2d 27, 37 (Ind. Ct. App. 1990) (“One not a party to an




       1
         Even if we were to hold otherwise and determine that extrinsic evidence may be considered in the dispute
       between Dulworth, on the one hand, and Bermudez and Progressive, on the other, even when the Release is
       unambiguous, we would reach the same result. In support of his argument to utilize extrinsic evidence,
       Dulworth encourages us to consider his affidavit that was designated evidence with his motion for summary
       judgement. However, the trial court in its Order struck Dulworth’s affidavit in response to Bermudez’s
       motion to strike. As Dulworth did not appeal the trial court’s grant of Bermudez’s motion, the affidavit is
       not before this court.

       Court of Appeals of Indiana | Opinion 02A05-1707-PL-1556 | March 15, 2018                      Page 14 of 16
       agreement may nonetheless enforce it by demonstrating that the parties

       intended to protect him under the agreement by the imposition of a duty in his

       favor.”), trans. denied. Therefore, there remain no genuine issues of material

       fact and we affirm the trial court’s summary judgment in favor of Bermudez.


                              III. The Pursuit of UIM Benefits from Progressive


[20]   With respect to Progressive, Dulworth contends that Progressive’s subrogation

       rights under the policy were not foreclosed because Dulworth’s duty to notify

       Progressive was never triggered.


[21]   In light of the all-encompassing language of the Release, Dulworth can no

       longer pursue his claim, if any, against Progressive. If Dulworth had wished to

       preserve his claim against Progressive, he was free to do so; however, he did

       not. See Estate of Spry v. Greg & Ken, Inc., 749 N.E.2d 1269, 1275 (Ind. Ct. App.

       2001) (“If a litigant wishes to settle a claim against some defendants without

       releasing other defendants, an appropriately drafted release or a general release

       accompanied by a stipulation signed by all parties will allow a litigant to do just

       that.”).


[22]   Notwithstanding the inclusive language of the Release, even if Progressive had

       not been released under the instrument, Dulworth would still be barred from

       pursuing a claim against the insurance company. Dulworth’s policy with

       Progressive required Dulworth to exhaust all applicable injury liability bonds

       and policies by payment of judgment or settlement in order to qualify for UIM

       benefits. As Dulworth admitted that he failed to recover any sums from

       Court of Appeals of Indiana | Opinion 02A05-1707-PL-1556 | March 15, 2018   Page 15 of 16
       Bermudez, whom he claimed to be at fault for the accident, in satisfaction of his

       claim, he breached the policy and is barred from pursuing UIM benefits from

       Progressive. Furthermore, under the terms of the policy, Dulworth was

       required to notify Progressive of any bona fide offer of agreement or settlement.

       Dulworth never notified Progressive of the Release prior to its execution and

       prior to releasing Bermudez of any further litigation. See Hockelberg v. Farm

       Bureau Ins. Co., 407 N.E.2d 1160, 1161 (Ind. Ct. App. 1980) (where the insured

       releases his right of action against the wrongdoer before settlement with the

       insurer, the release destroys by operation of law the insured’s right of action on

       the policy). Therefore, there are no genuine issues of material fact remaining

       regarding Progressive’s liability under the policy and the trial court properly

       entered summary judgment in favor of the insurance company.


                                              CONCLUSION
[23]   Based on the foregoing, we hold that the trial court properly entered summary

       judgment as a matter of law in favor of Bermudez and Progressive.


[24]   Affirmed.


[25]   Robb, J. and Pyle, J. concur




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