                                                                                                          FILED
                                                                                                           SLED
                                                                                                   CQU DJV;''' APPEALS
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                                                                                                  2014 APR 29 AM 8: 38




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II

ROSE SUTTON, as limited guardian ad litem
for N.Y.Y., a Minor,


                                   Appellant,                                  No. 43962 -0 -II


       v.                                                               PUBLISHED OPINION


TACOMA SCHOOL DISTRICT No. 10,
Individually; JEFFREY FREDERICK;
individually,   and   together   with "    JANE DOE"
FREDERICK         and    the     marital    community
composed thereof;


                                    Respondents.




       MAxA, J. —      Rose Sutton appeals an order granting summary judgment to Tacoma School

District No. 10 and Jeffrey Frederick (collectively, School District) on her claims for assault,

battery, and outrage arising from Frederick' s alleged conduct toward Sutton' s granddaughter,
NYY. Sutton argues that questions of fact exist regarding these claims where Frederick, NYY' s

first grade teacher, allegedly berated NYY in a loud voice while towering over her and

physically bumping her until she was pinned against a wall. We reverse the trial court' s grant of

summary judgment on the battery and assault claims because questions of fact exist as to
whether Frederick' s alleged conduct was intended to cause both offensive contact with NYY and

NYY'   s apprehension of such contact.        But   we affirm   the trial   court' s grant of   summary judgment
No. 43962 -0 -II



on the outrage claim because although there was evidence of outrageous conduct and intent to

cause emotional distress, Sutton failed to present evidence creating a question of fact as to

whether NYY actually suffered severe emotional distress as a result of Frederick' s alleged

conduct. We remand for further proceedings.

                                                                 FACTS


         Frederick was the instructor in the Therapeutic Learning Center (TLC) at Stanley

Elementary School. NYY was a first grade special education student in the TLC. Linda Brieger,

a paraprofessional instructional assistant, worked in the TLC with Frederick.


             On January 14, 2011, Brieger told Frederick that she needed help with NYY, who had

tipped over her desk and poured milk into it. While Frederick was responding to the situation,

Sutton happened to walk into the classroom and observe his interaction with NYY. Sutton

described the scene in her deposition:


                So   now    I   stepped   in the door     and    I' m   looking. And I look in the back, in the
             dark,   and   he   was   back there in front        of [NYY],   over her with his chest practically
             on her, hollering and swinging his anns, telling her how he' s tired of her, he' s
             getting —she' s getting on his dang -gone. nerves —well, his damn nerves.
                And I panicked and I said Why are you talking to her like that? Wiryareyou

             hollering? .. .
                And he was so intense in talking to her that he didn' t even realize I was in the
             room... .




                 He] was just swinging his arms all around her and his chest was bumping up
             against   her. How do        you —   he was powered over her. She' s a little girl.
                 He] bumped her            with   his   chest,   because he towered        over   her.   And he was

             right up on her. He was bumping her and throwing his arms up.

Clerk'   s   Papers ( CP)       at   59 -60. Sutton     stated   that Frederick   was "   up in [NYY'    s]   face."   CP at 60.


             In her subsequent declaration Sutton elaborated that Frederick had NYY "pinned against


the wall" and was physically keeping her in the corner as his body was bumping against her. CP

at 184. And Sutton could hear Frederick yelling down the hall even before she reached the

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No. 43962 -0 -II



classroom. Some of the things he yelled were " You make me sick" and " Why are you so

stupid ?"    CP   at   207, 183. Sutton claimed that after the incident NYY' s face was covered with


spit.




        Sutton sued the School District on behalf of NYY based on multiple claims for relief,


eventually pursuing just three       claims: assault,   battery,   and outrage.   Sutton alleged in the


complaint that Frederick physically assaulted NYY, screamed and cursed at her, pushed her into

a corner while yelling at the top of his voice, and yelled at her so closely that her face was

covered with his saliva. The complaint alleged that Frederick later apologized, stating that he

had just broken up two fights and had taken his frustration out on NYY.

        The School District filed a motion for summary judgment, attaching statements from

Frederick and Brieger with an account of the incident radically different than Sutton' s. It also

pointed out that Sutton' s descriptions of the incident became progressively worse over time. In

response,    Sutton filed the declaration described       above.    Sutton presented no declaration from


NYY and no witness declarations other than her own.


        The trial courtgranted the School District's summary judgment motion, ruling that

Sutton failed to present evidence showing that Frederick' s conduct was intentional. The trial

court also denied Sutton' s motion for reconsideration.

                                                  ANALYSIS


A.       STANDARD OF REVIEW


        We review a trial court's order granting summary judgment de novo. Loeffelholz v. Univ.

of Wash., 175 Wn. 2d 264, 271, 285 P. 3d 854 ( 2012). " We review the evidence in the light most


favorable to the nonmoving party and draw all reasonable inferences in that party' s favor."

Lakey   v.   Puget Sound Energy, Inc., 176 Wn.2d 909, 922, 296 P. 3d 860 ( 2013).             Summary

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No. 43962 -0 -II



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

entitled   to judgment        as a matter of       law. Loeffelholz, 175 Wn.2d               at   271. " A genuine issue of


material fact exists where reasonable minds could differ on the facts controlling the outcome of

the litigation." Ranger Ins. Co.              v.   Pierce   County,    164 Wn.2d 545, 552, 192 P. 3d 886 ( 2008). If


reasonable minds can reach only one conclusion on an issue of fact, that issue may be

determined        on    summary judgment. M. Mortenson Co.
                                           A.                                   v.   Timberline Software        Corp.,   140


Wn.2d 568, 579, 998 P. 2d 305 ( 2000).


B.         BATTERY AND ASSAULT


           Sutton argues that summary judgment was inappropriate on her battery and assault claims

because her deposition testimony and declaration created questions of fact regarding Frederick' s

conduct and intent. We agree, and hold that summary judgment was not appropriate on whether

Frederick committed battery and assault. We do not address whether Sutton can prove that NYY

suffered damages as a result of Frederick' s alleged conduct because the existence of actual


damages is not an element of the battery and assault causes of action that must be addressed on

summary judgment.

           1.      Battery

           A battery is the intentional infliction of harmful or offensive bodily contact with the

plaintiff.      Morinaga      v.   Vue, 85 Wn.      App.    822, 834, 935 P. 2d 637 ( 1997).             More specifically, a

battery is " [ a] harmful or offensive contact with a person, resulting from an act intended to

cause   the     plaintiff or a     third   person   to   suffer such contact.' "       McKinney v. City of Tukwilla, 103

Wn.   App.      391, 408, 13 P. 3d 631 ( 2000) ( alteration in              original) (      quoting W. PAGE KEETON ET AL.,

PROSSER         AND     KEETON     ON THE    LAW    OF   TORTS § 9,    at   39 ( 5th   ed.   1984)). "   A bodily contact is

offensive       if it   offends a reasonable sense of personal              dignity."    RESTATEMENT ( SECOND) OF


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No. 43962 -0 -TI



TORTS § 19 ( 1965). For there to be intent to             cause   harmful   or offensive contact, " `   the act must



be done for the    purpose of   causing the   contact ...         or with knowledge on the part of the actor that


such contact ...     is substantially   certain   to be   produced.' "      Garratt v. Dailey, 46 Wn.2d 197,

201 -02, 279 P. 2d 1091 ( 1955) ( quoting RESTATEMENT OF TORTS § 13, cmt. d ( 1934)).


Significantly, the requisite intent for battery is the intent to cause the contact, not the intent to

cause injury. Garratt, 46 Wn.2d at 201 -02.

        In her deposition, Sutton testified that she observed Frederick bumping his chest against

NYY as he hollered at her. In her subsequent declaration, Sutton elaborated that Frederick had

NYY "pinned against the wall" and was physically keeping her in the corner as his body was

bumping against her. CP at 184. If these statements are true, a reasonable jury could find that

Frederick made bodily contact with NYY and that the contact was offensive.

        The School District argues that Sutton' s statements cannot create genuine issues of fact

that a battery occurred for two reasons. First, the School District argues that Sutton cannot rely

solely on her self -
                   serving declaration to avoid summary judgment. The School District claims

that a nonmoving party cannot rely on having its statements taken at face value, citing Heath v.
 Uraga, 106 Wn.      App.   506, 513, 24 P. 3d 413 ( 2001).          We disagree. Although there are


circumstances where a party' s declaration will not be enough to create a question of fact, here

 Sutton was an eyewitness and her deposition testimony and declaration were based on her

personal observations of Frederick' s contact. On summary judgment, we must treat that

testimony as true even if it is self serving.

         Second, the School District argues that Sutton' s version of the events evolved over time

 and that there were inconsistencies among what she said on the day of the incident, in her

 deposition,   and   in her declaration. However, in both her deposition              and   her declaration —her two


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No. 43962 -0 -II



sworn statements —       Sutton consistently stated that Frederick was bumping NYY as he yelled at

her. And in reviewing a summary judgment order, we do not weigh the credibility of seemingly

inconsistent statements. See Barker v. Advanced Silicon Materials, LLC, 131 Wn. App. 616,

624, 128 P. 3d 633 ( 2006). Whether Sutton' s earlier or later statements are more accurate is an


issue that must be resolved at trial.


        The School District also argues that even if an offensive touching occurred, summary

judgment was appropriate because Sutton provided no evidence regarding Frederick' s intent.

However, as noted above Sutton was required to create a question of fact as to whether Frederick


intended an offensive touching, not that he intended to harm NYY in some way. Garratt, 46

Wn.2d at 201 -02. And we must draw all reasonable inferences in favor of Sutton. Lakey, 176

Wn.2d at 922. Here, a reasonable jury could infer from the facts that Frederick intended to

initiate offensive contact with NYY.


        On the other hand, we reject Sutton' s argument that NYY' s face being covered with

saliva is enough evidence to support a battery claim. Although Sutton' s testimony created a

question of fact as to whether NYYhad saliva o Ther face, Sutton provided no evidence that


Frederick intended to spit on her. Because saliva may accidentally escape the mouth when

someone is yelling in the face of another person, it is not reasonable to infer that Frederick

intended to spit on NYY.


        We acknowledge that Frederick denies that he made any physical contact with NYY. But

treating Sutton' s testimony as true, as we must in reviewing a grant of summary judgment, we

hold that genuine issues of material fact exist with regard to Sutton' s battery claim based on

Frederick'   s alleged   bumping   of NYY.   Conversely,   we   hold that summary judgment   was
No. 43962 -0 -II



appropriate regarding Sutton' s claim that Frederick' s alleged spitting on NYY constituted a

battery.

           2.   Assault


           Even if there has been no bodily contact, a defendant may be liable for assault when he or

she acts with an intent to put another person in immediate apprehension of harmful or offensive

contact, and that person has such an apprehension. Brower v: Ackerley, 88 Wn. App. 87, 92 -93,

943 P. 2d 1141 ( 1997) ( citing RESTATEMENT ( SECOND)     OF   TORTS § 21).   The apprehension must


be of imminent contact. Brower, 88 Wn. App. at 94.

           Here, Sutton did not provide any evidence regarding NYY' s reaction to Frederick' s

conduct while it was occurring. Sutton did not make any personal observations that would

support a finding that NYY had an immediate apprehension of harm. And NYY did not provide

any   statement or   testimony.) Nevertheless, under the alleged facts presented it can be reasonably

inferred that Frederick intended to put NYY in apprehension of being subjected to offensive

contact when he towered over her and physically pinned her against the wall. And it can be

reasonably inferred that a young girl would have apprehension of offensive contact when a

teacher moved toward her in the manner described while yelling at her.

           We again acknowledge that Frederick denies that he engaged in the conduct Sutton


described. But treating Sutton' s testimony as true, we hold that genuine issues of material fact

exist with regard to Sutton' s assault claim.




1
 Sutton stated in her declaration that NYY told her that she was scared when Frederick yelled at
her. The School District argued below, and on appeal, that this statement was inadmissible
hearsay. The trial court did not address this argument. Because we are reversing and remanding
on the assault claim, we need not address this issue.
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No. 43962 -0 -II


       3.         Damages


        Sutton provided no affirmative evidence that NYY suffered any injury as a result of

Frederick' s alleged battery or assault. However, unlike for the tort of outrage discussed below,

suffering actual injury does not appear to be an element of either battery or assault. See

RESTATEMENT ( SECOND) OF TORTS § 18 ( battery),            §   21 ( assault).


       In order to recover at trial, Sutton will have to establish that NYY incurred actual

damages or that NYY is entitled to " nominal" damages. However, neither the trial court nor the

parties addressed the issue of damages below and the parties did not brief this issue on appeal.

Accordingly, we need not address what damages, if any, Sutton may be able to recover if she

prevails at trial on her battery and assault claims.

C.      OUTRAGE


        Sutton argues that genuine issues of fact exist as to whether Frederick' s conduct


supported an outrage claim. Taking Sutton' s testimony as true, as we must when reviewing a

summary judgment order, Frederick engaged in extreme and outrageous conduct. But we

disagree that Sutton produced evidence creating a question of fact that NYY suffered severe

emotional distress as a result.


        1.        Legal Standards


         To prevail on a claim for the tort of outrage, also known as intentional infliction of

emotional distress, a plaintiff must prove that ( 1) the defendant engaged in extreme and

outrageous conduct, (       2) the defendant intentionally or recklessly inflicted emotional distress on

the plaintiff, and ( 3) the conduct actually resulted in severe emotional distress to the plaintiff.

Kloepfel     v.   Bokor, 149 Wn.2d 192, 195, 66 P. 3d 630 ( 2003). "       Any claim of outrage must be

predicated on behavior ` so outrageous in character, and so extreme in degree, as to go beyond all

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No. 43962 -0 -II



possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.' "           Strong v.   Terrell, 147 Wn.    App.    376, 385 -86, 195 P. 3d 977 ( 2008) (   emphasis




omitted) ( internal quotation marks omitted) (            quoting Kloepfel, 149 Wn.2d at 196).

            The elements of outrage generally are factual questions for the jury. Strong, 147 Wn.

App.   at   385.    However, a trial court faced with a summary judgment motion must " make an

initial determination as to whether the conduct may reasonably be regarded as so ` extreme and

outrageous'        as   to   warrant a   factual determination   by   the   jury." Doe v. Corp. of the President of

the Church ofJesus Christ ofLatter - ay Saints, 141 Wn. App. 407, 429, 167 P. 3d 1193 ( 2007)
                                   D

 internal    quotation marks omitted) (          quoting Jackson v. Peoples Fed. Credit Union, 25 Wn. App.

81, 84, 604 P. 2d 1025 ( 1978)).             Courts may consider a number of factors in analyzing whether

conduct is sufficient to support an outrage claim, including ( 1) the position the defendant

occupied; (       2) whether the plaintiff was particularly susceptible to emotional distress and the

defendant         was aware of     the susceptibility; ( 3)   whether the defendant' s conduct was privileged;


 4) whether the degree of emotional distress was severe as opposed to merely annoying,

inconvenient or embarrassing; and ( 5) whether the defendant was aware of a high probability

that his or her conduct would cause severe emotional distress, and consciously disregarded that

probability. Doe, 141 Wn. App. at 429 -30.

            2.      Extreme and Outrageous Conduct


            To sustain an outrage claim, the defendant' s conduct must be so offensive as to lead an

average member of              the community to    exclaim " `   Outrageous!' "      Kloepfel, 149 Wn.2d at 196


 internal        quotation marks omitted) (      quoting Reid v. Pierce County, 126 Wn.2d 195, 201 -02, 961

P. 2d 333 ( 1998)).           Here, according to Sutton, Frederick had NYY pinned against wall and was

bumping her and waving his arms as he got " in her face" and loudly berated her. CP at 60.

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No. 43962- 0- 11



Sutton   could   hear the yelling from the    classroom as she came   down the hall. Some of the things


Frederick allegedly yelled    were, "   You   make me sick" and "   Why   are you so stupid ?"   CP at 207,


183.   After the incident, NYY' s face was covered with saliva. And the power disparity was

striking. Frederick was an adult in a position of authority, and NYY was a first grade student

with special needs and who may have been particularly vulnerable. If Sutton' s statements are

true, a reasonable jury could find that Frederick' s conduct was outrageous.

         As discussed in the battery section above, we reject the School District' s arguments that

Sutton' s statements must be disregarded because they are self serving and her multiple

statements contain inconsistencies. The School District also argues that Sutton' s own actions


after the incident belie her claim that Frederick' s conduct was outrageous. After discussing her

concerns with Frederick about his raising his voice to NYY, Sutton allowed her granddaughter to

return to his classroom. The School District argues that if Frederick' s behavior was atrocious

and utterly intolerable in a civilized community, she would not have left NYY in his care.

However, the School District' s argument essentially addresses whether Sutton' s description of

the incident is credible. We cannot resolve credibility issues on summary judgment. -Barker,

131 Wn. App. at 624.

         3.      Intent To Cause Emotional Distress


         Outrage requires that the defendant either intended to cause emotional distress or


recklessly caused such distress. Kloepfel, 149 Wn.2d at 196. Frederick denies the incident

occurred the way Sutton described it, and he presumably would deny any intent to cause NYY

emotional distress. However, if Sutton' s testimony is true, a jury reasonably could infer that

Frederick at least recklessly acted in a way that could cause emotional distress when he screamed

insults at NYY and physically pinned her against the wall.

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No. 43962 -0 -II


         4.      Emotional Distress


         To prevail on an outrage claim, a plaintiff is required to come forward with evidence that


he or she actually suffered severe emotional distress as a result of the defendant' s conduct.

Kloepfel, 149 Wn.2d            at   203.    Emotional distress includes ` all highly unpleasant mental reactions,

such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment,


worry,   and nausea.' "         Kloepfel, 149 Wn.2d at 203 ( quoting RESTATEMENT ( SECOND) OF TORTS §

46,   cmt.   j). However, liability arises only when the emotional distress is extreme.

RESTATEMENT ( SECOND) OF TORTS § 46,                      cmt.   j.   There     must   be   more   than " ` transient and trivial


emotional      distress.' "     Kloepfel, 149 Wn.2d at 198 ( quoting RESTATEMENT ( SECOND) OF TORTS §

46,   cmt.   j) Nevertheless, because outrage is an intentional tort the plaintiff need not show bodily

harm or objective symptomatology. Kloepfel,`149 Wn.2d at 198.

                    a.     No Direct Evidence


         Here, Sutton came forward with no affirmative evidence that NYY suffered severe


emotional distress. NYY submitted no declaration or testimony claiming that she experienced

emotional distress or describing the nature of that distress. Sutton stated in her declaration that

NYY told her that she was scared when Frederick yelled at her and that she felt angry, sad, and

mad and       did   not want    to   go    back to Frederick' s       class.   2 Sutton also testified that NYY was

traumatized and very upset following the incident. These emotions would constitute emotional

distress     under       Kloepfel. 149 Wn.2d       at   203.   However, there is no evidence regarding the intensity

of these feelings or their duration. Under Kloepfel, Sutton was required to come forward with



2
    The School District argued below, and on appeal, that these statements were inadmissible
hearsay. The trial court did not address this argument. Because we hold that these statements
are not enough to create a question of fact on the existence of severe emotional distress, we need
not address their admissibility.
                                                                      11
No. 43962 -0 -II



evidence that any emotional distress was more than transient or trivial. Kloepfel, 149 Wn.2d at

203.   Without such evidence, the fact that NYY may have been upset or had negative feelings

because of the incident is not enough to create a question of fact as to whether she suffered

severe emotional distress.


         Sutton also failed to provide any personal observations that would support a finding that

NYY suffered severe emotional distress. Although, as noted above, Sutton testified that NYY

was traumatized and very upset following the incident, she did not provide any basis for those

assertions. A party may not rely on argumentative assertions to avoid summary judgment.
Hendrickson    v.   Tender Care Animal          Hosp. Corp., 176 Wn. App. 757, 762, 312 P. 3d 52 ( 2013),

review   denied, 179 Wn. 2d 1013 ( 2014).                Sutton did observe that NYY at times would yell at her

dolls and call herself stupid, but this behavior is not necessarily an indication of severe emotional

distress and is not enough to create a question of fact on this issue.

         Finally, Sutton produced no evidence from any therapists, counselors or medical

providers that would support a finding that NYY suffered emotional distress from the alleged

incident with Frederick. NYYvisited adoctoramonth after the accident and Sutton reported

that NYY had experienced trauma and stress because of the incident, but the doctor did not make

 any reference to emotional distress. Another doctor later evaluated NYY for her behavior
 problems, eventually prescribing drugs and therapy. But there is no evidence that NYY or
 Sutton discussed the incident with him.

               b.     Inference of Severe Emotional Distress

         In the absence of direct evidence, the question here is whether we can infer that NYY

 suffered severe emotional distress as a result of Frederick' s alleged conduct. Our Supreme Court

 in Kloepfel   stated   that   once   the   first two   elements of outrage are established, "   it can be fairly

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No. 43962 -0 -II



presumed    that   severe emotional         distress   was suffered."   149 Wn.2d       at   202. The court cited with


approval    Carmody     v.   Trianon Co., 7 Wn.2d 226, 109 P. 2d 560 ( 1941), where the court upheld an


award of damages for mental anguish caused when the plaintiff was physically beaten without

requiring   direct   proof of   that     mental anguish..     Kloepfel, 149 Wn.2d at 202.


       However, the court in Kloepfel was addressing a situation far different than the facts here.

Kloepfel' s former boyfriend threatened to kill her, threatened to kill the man she was dating if

she continued seeing him, called her home 640 times, called her work 100 times, called the

homes of men she knew numerous times, and repeatedly drove past her house at all hours.

Kloepfel, 149 Wn.2d at 194 -95. The evidence showed that this conduct severely disrupted

Kloepfel' s life and made it impossible for her to carry on a normal dating relationship. Kloepfel,

149 Wn.2d at 194. And there was affirmative evidence that this conduct caused Kloepfel to

suffer symptoms of emotional distress, including nervousness, sleeplessness, hypervigilance, and

stomach upset. Kloepfel, 149 Wn.2d at 202. Based on these facts, the court concluded that no

rational person could endure this constant harassment without suffering severe emotional

distress. Kloepfel, 149 Wn. at 202.
                          2d


        In Brower, Division One of this court also stated that the extremity of the outrageous

conduct could      itself provide        evidence of severe emotional           distress. 88 Wn.   App.   at   102. Similar


to Kloepfel, the conduct in Brower was a 20 -month campaign of harassing telephone calls that

included threats     to injure     and    kill Brower. 88 Wn.       App.   at   90 -91. In addition, Brower presented


evidence that he experienced symptoms of emotional distress, including panic, terror, insecurity,

rising pulse, light -headedness, sweaty palms, insecurity, and the inability to concentrate.
Brower, 88 Wn.        App.    at   91.   Based on this evidence, the court concluded that a jury could find

 that Brower suffered severe emotional distress.

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          Despite the broad statements in Kloepfel and Brower, we read those cases as allowing for

an inference of severe emotional distress only based on long -erm outrageous conduct and only
                                                             t

when the plaintiff has provided some evidence of significant emotional distress. In contrast, here

NYY was subjected to a brief, isolated incident. And Sutton provided no evidence that NYY had

in fact   suffered   any   significant emotional   distress that   was more   than transient   or   trivial.   Under


these facts,   we cannot     infer that NYY   suffered severe emotional       distress.   Accordingly,

summary judgment was appropriate on Sutton' s outrage claim.

          We reverse the trial court' s grant of summary judgment on Sutton' s battery and assault

claims, but we affirm the trial court' s grant of summary judgment on the outrage claim. We

remand for further proceedings.




We concur:




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