              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-202

                              Filed: 19 December 2017

Johnston County, No. 16 CRS 2053

STATE OF NORTH CAROLINA

             v.

JESSE SANTIFORT, Defendant.


      Appeal by defendant from order entered 4 November 2016 by Judge William

R. Pittman in Johnston County Superior Court. Heard in the Court of Appeals 27

September 2017.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Derrick
      C. Mertz, for the State.

      The Webster Law Firm, by Walter S. Webster, for defendant-appellant.


      DAVIS, Judge.


      Prior to charging Jesse Santifort with a crime, the State obtained two separate

ex parte orders compelling the production of his personnel files and educational

records. Santifort was not provided with any notice that these documents were being

sought. He was subsequently indicted on a charge of involuntary manslaughter.

Approximately two months after his indictment, Santifort filed motions to set aside

the two ex parte orders, which were denied by the trial court. Because we conclude

the two ex parte orders were void ab initio, we reverse.

                      Factual and Procedural Background
                                   STATE V. SANTIFORT

                                    Opinion of the Court



      On 3 March 2016, Santifort was employed as a police officer with the Kenly

Police Department. On that date, he became involved in a vehicle pursuit that had

been initiated by deputies employed by the Wilson County Sheriff’s Office.

      Eventually, Alexander Thompson — the driver of the vehicle being pursued —

wrecked his truck in an open field. Shortly after calling in the wreck, Santifort

reported over the radio that he had deployed his Taser against Thompson. Shortly

thereafter, Santifort requested emergency medical assistance for Thompson.

Paramedics arrived and transported Thompson to WakeMed Hospital where he died

three days later.

      On 7 March 2016, the State filed an ex parte motion in Johnston County

Superior Court pursuant to N.C. Gen. Stat. § 160A-168 seeking the production of

Santifort’s personnel records from four North Carolina police departments where he

had been employed. On that same day, the Honorable Ronald L. Stephens entered

orders compelling the disclosure of Santifort’s personnel records from all four

agencies.

      The State filed another ex parte motion in Johnston County Superior Court on

13 June 2016 seeking to obtain educational records from Johnston County

Community College related to a Basic Law Enforcement Training class attended by

Santifort. The Honorable Thomas H. Lock entered an order that same day compelling

the disclosure of those records.



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                                  Opinion of the Court



      Neither of the ex parte motions filed by the State contained accompanying

affidavits. Furthermore, neither the State’s motions nor the orders entered by Judges

Stephens and Lock bore a docket number.

      On 6 September 2016, Santifort was indicted by a grand jury for involuntary

manslaughter. He subsequently learned of the existence of the orders that had been

entered by Judges Stephens and Lock. On 30 September 2016, Santifort filed in

Johnston County Superior Court — through counsel — notices of appearance,

motions to intervene pursuant to Rule 24 of the North Carolina Rules of Civil

Procedure, and motions for relief under Rule 60(b) seeking to have the ex parte orders

vacated.

      On 3 November 2016, a hearing was held on Santifort’s motions before the

Honorable William R. Pittman in Johnston County Superior Court. The following

day, Judge Pittman entered an order stating, in pertinent part, as follows:

                    1. Even though relevant authority suggests a
             special proceeding as one method of pursuing the kinds of
             records sought by the State in this matter in the absence of
             a civil or criminal action, the creation and docketing of a
             criminal case file pursuant to the indictment gives the
             defendant interest and standing in all matters pertaining
             to the investigation and prosecution of the matter.

                   2. The motion to intervene is therefore moot.

                   3. Granting the relief requested by the defendant in
             the motion for relief from prior orders of the Court would
             require this Court to overrule the orders of Judges
             Stephens and Lock and staying enforcement of orders


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                    Opinion of the Court



already complied with.

       4. Judges Stephens and Lock had jurisdiction to
enter the prior orders.

       5. The prior orders of Judges Stephens and Lock are
not void ab initio.

        6. The prior orders of Judges Stephens and Lock are
not the kind of orders contemplated by Rule 60 from which
relief can be granted.

      7. The Court lacks the authority to overrule these
orders rendered by other Superior Court Judges.

       8. Ruling on a motion to suppress the State’s use at
trial of any information contained in the produced records
is premature.

      ....

      NOW, THEREFORE, the Court orders as follows.

       1. All motions, orders, and other paper writings in
the custody of the Clerk of Superior Court of Johnston
County pertaining to the disclosure of personnel records of
Jesse Craig Santifort, the delivery of records relating to
Jesse Craig Santifort, and disclosure of medical records
which are or may be involved in the investigation of the
events leading to the indictment of Jesse Craig Santifort
shall be marked with the file number of this criminal case
and included in the Court file to the extent it has not
already been included.

       2. The State is ordered to not disclose or
disseminate any non-public information in its possession
as a result of the prior orders for disclosure of personnel
records, for delivery of records, and for disclosure of
medical records except as may be required by Chapter 15A
of the General Statutes of North Carolina or further order


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                                       Opinion of the Court



               of the Court.

                      3. Defendant’s Motion to Intervene is denied.

                     4. Defendant’s Motion for Relief From Order is
               denied.

Santifort filed a timely notice of appeal from Judge Pittman’s order.1

                                           Analysis

I. Appellate Jurisdiction

       The State has moved to dismiss Santifort’s appeal on the ground that it is an

impermissible appeal from an interlocutory ruling in his criminal case. Therefore,

we must determine whether we possess jurisdiction over this appeal.

       “A final judgment is one which disposes of the cause as to all the parties,

leaving nothing to be judicially determined between them in the trial court.” Duval

v. OM Hospitality, LLC, 186 N.C. App. 390, 392, 651 S.E.2d 261, 263 (2007) (citation

omitted). Conversely, an order or judgment is interlocutory if it does not settle all of

the issues in the case but rather “directs some further proceeding preliminary to the

final decree.” Heavner v. Heavner, 73 N.C. App. 331, 332, 326 S.E.2d 78, 80, disc.

review denied, 313 N.C. 601, 330 S.E.2d 610 (1985).




       1   While Santifort challenges the portions of Judge Pittman’s order denying his motions to
intervene and motions under Rule 60(b), his appeal does not implicate other provisions of the order
that dealt with various unrelated issues. Therefore, our review of Judge Pittman’s order is limited
solely to those portions that are the subject of Santifort’s arguments.

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                                    Opinion of the Court



       “Generally, there is no right of immediate appeal from interlocutory orders

and judgments.” Paradigm Consultants, Ltd. v. Builders Mut. Ins. Co., 228 N.C. App.

314, 317, 745 S.E.2d 69, 72 (2013) (citation and quotation marks omitted). The

prohibition against interlocutory appeals “prevents fragmentary, premature and

unnecessary appeals by permitting the trial court to bring the case to final judgment

before it is presented to the appellate courts.” Russell v. State Farm Ins. Co., 136

N.C. App. 798, 800, 526 S.E.2d 494, 496 (2000) (citation and brackets omitted).

Furthermore, “[t]here is no provision for appeal to the Court of Appeals as a matter

of right from an interlocutory order entered in a criminal case.” State v. Henry, 318

N.C. 408, 409, 348 S.E.2d 593, 593 (1986) (citation omitted).

      A primary source of confusion in this appeal arises from Judge Pittman’s

decision to simply treat the orders of Judges Stephens and Lock as part of Santifort’s

criminal file. As stated above, the State’s filing of the ex parte motions for release of

Santifort’s personnel files and educational records and the entry of the orders

granting these motions all occurred before Santifort’s indictment. Therefore, because

no criminal file existed at the time of the ex parte motions and the ensuing orders,

Judge Pittman’s attempt to retroactively incorporate these documents into Santifort’s

criminal file constituted error.

      However, Judge Pittman’s handling of these documents is somewhat

understandable in light of the errors that had occurred from the inception of the



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                                          Opinion of the Court



State’s decision to seek them prior to the formal initiation of criminal proceedings

against him. In order to understand this issue, it is helpful to review the differences

set out in the North Carolina General Statutes between civil actions, criminal actions,

and special proceedings.

      N.C. Gen. Stat. § 1-1 provides that:

                Remedies in the courts of justice are divided into —

                        (1) Actions.
                        (2) Special proceedings.

N.C. Gen. Stat. § 1-1 (2015).

      N.C. Gen. Stat. § 1-2 defines an “action” as “an ordinary proceeding in a court

of justice, by which a party prosecutes another party for the enforcement or protection

of a right, the redress or prevention of a wrong, or the punishment or prevention of a

public offense.” N.C. Gen. Stat. § 1-2 (2015). N.C. Gen. Stat. § 1-3, in turn, provides

that “[e]very other remedy is a special proceeding.” N.C. Gen. Stat. § 1-3 (2015).2

      Pursuant to N.C. Gen. Stat. § 1-4, “actions” are either civil or criminal. N.C.

Gen. Stat. § 1-4 (2015).          N.C. Gen. Stat. § 1-5 states that a criminal action is

“prosecuted by the State as a party, against a person charged with a public offense”

or “prosecuted by the State, at the instance of an individual, to prevent an

apprehended crime against his person or property.” N.C. Gen. Stat. § 1-5 (2015).




      2   Thus, a special proceeding is defined by what it is not.

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                                         Opinion of the Court



Every other type of “action” is a civil action. See N.C. Gen. Stat. § 1-6 (2015). A civil

action is “commenced by filing a complaint with the court” or “by the issuance of a

summons.” N.C. R. Civ. P. 3(a).

      Here, the State’s ex parte motions were not filed in connection with an “action.”

No criminal action existed because Santifort had not yet been indicted. Moreover, no

civil action existed because the State did not file a complaint and no summons was

issued. Accordingly, by default, the State’s motions should have been treated as

initiating a special proceeding. However, as Judge Pittman expressly found in his 4

November 2016 order, “[a] special proceeding was not officially initiated nor

docketed.”3

      Thus, it is clear that error infested the State’s proceedings from the very

beginning. Had a special proceeding been appropriately initiated and docketed upon

the filing of the State’s ex parte motions, the current appeal would have been from a

final judgment in a special proceeding — an appeal as to which appellate jurisdiction

would clearly have existed. See State v. Leyshon, 211 N.C. App. 511, 519-20, 710

S.E.2d 282, 289, appeal dismissed, 365 N.C. 338, 717 S.E.2d 566 (2011) (“Any party

entitled by law to appeal from a judgment or order of a superior or district court

rendered in a civil action or special proceeding may take appeal by filing notice of

appeal.” (citation, quotation marks, and brackets omitted and emphasis added)).



      3   The State does not challenge this finding in the present appeal.

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                                         Opinion of the Court



Here, Judge Pittman’s 4 November 2016 order denying Santifort’s motions under

Rules 24 and 60(b) disposed of all matters in connection with the ex parte orders.

Therefore, we elect to treat Judge Pittman’s order as a final judgment in a special

proceeding and conclude that we have jurisdiction over Santifort’s appeal from this

order.

         We note that in seeking to dismiss Santifort’s appeal on the ground that

appellate jurisdiction is lacking, the State, in essence, seeks to punish him for the

State’s own mishandling of the proceedings in this case. Indeed, the procedural

manner in which Santifort sought to challenge the ex parte orders constituted a

logical effort to make sense of the confused state of affairs that existed. Because he

was not a party to the prior proceedings, Santifort properly sought leave to intervene

under Rule 24. Similarly, because he sought to have the orders of Judges Stephens

and Lock vacated, he invoked Rule 60(b).4

         The State argues in the alternative that even assuming this Court possesses

jurisdiction over Santifort’s appeal from Judge Pittman’s order, appellate jurisdiction

is nevertheless lacking over his attempt to appeal from the orders of Judges Stephens

and Lock because he failed to reference those orders in his notice of appeal as required

by Rule 3(d) of the North Carolina Rules of Appellate Procedure. See N.C. R. App. P.

3(d) (“The notice of appeal . . . shall designate the judgment or order from which


         4N.C. Gen. Stat. § 1-393 expressly provides that the Rules of Civil Procedure are applicable to
special proceedings. N.C. Gen. Stat. § 1-393 (2015).

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                                   Opinion of the Court



appeal is taken . . . .”). The State is correct that as a general proposition “[n]otice of

appeal from denial of a motion to set aside a judgment which does not also specifically

appeal the underlying judgment does not properly present the underlying judgment

for our review.” Von Ramm v. Von Ramm, 99 N.C. App. 153, 156, 392 S.E.2d 422,

424 (1990) (citation omitted).

      Nevertheless, based upon the extraordinary circumstances present in this

case, we choose to exercise our discretion under Rule 21 of the North Carolina Rules

of Appellate Procedure and treat Santifort’s brief as a petition for certiorari with

respect to the orders of Judges Stephens and Lock. See In re I.S., 170 N.C. App. 78,

84, 611 S.E.2d 467, 471 (2005) (recognizing authority of this Court to “exercise its

discretion and treat an appellant’s appeal as a petition for a writ of certiorari”

(citation omitted)). Accordingly, we conclude that we possess jurisdiction over this

appeal in its entirety and proceed to address the merits of Santifort’s arguments.

II. Motions to Intervene

      Santifort first argues that Judge Pittman erred in denying as moot his motions

to intervene pursuant to Rule 24(a)(2) of the North Carolina Rules of Civil Procedure.

“[A] party is entitled to intervene pursuant to N.C. Gen. Stat. § 1A-1, Rule 24(a)(2) in

the event that he or she can demonstrate (1) an interest relating to the property or

transaction, (2) practical impairment of the protection of that interest, and (3)

inadequate representation of the interest by existing parties.” Bailey & Assocs., Inc.



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                                   Opinion of the Court



v. Wilmington Bd. Of Adjust., 202 N.C. App. 177, 185, 689 S.E.2d 576, 583 (2010)

(citation omitted). “This Court reviews a trial court’s granting or denying of a motion

to intervene [as of right] on a de novo basis.” Id. (citation omitted).

      Here, Santifort wished to intervene in ex parte proceedings relating to the

disclosure of his personnel and educational records. He clearly demonstrated an

interest related to the transaction because the records being sought were his own.

Furthermore, the very fact that the proceedings before Judges Stephens and Lock

were ex parte such that Santifort was not notified of either the State’s motions or the

court’s orders demonstrates that he likewise satisfied the remaining prongs of the

test under Rule 24(a)(2).

      In his 4 November 2016 order, Judge Pittman denied Santifort’s motions to

intervene on mootness grounds based on his belief that “the creation and docketing

of a criminal case file . . . gives [Santifort] interest and standing in all matters

pertaining to the investigation and prosecution of the matter.” As noted above,

however, Judge Pittman’s decision to simply consolidate the ex parte motions and

orders into Santifort’s criminal file was erroneous. Therefore, Santifort’s Rule 24

motions were not — as Judge Pittman concluded — moot. Accordingly, we reverse

the portion of Judge Pittman’s order denying Santifort’s motions to intervene.

III. Rule 60(b) Motions




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                                   Opinion of the Court



      Santifort next contends that Judge Pittman erred in denying his motions for

relief pursuant to Rule 60(b)(4). Specifically, he contends that Judge Pittman should

have vacated the orders previously entered by Judges Stephens and Lock because

they were void ab initio.

      It is well established “that no appeal lies from one Superior Court judge to

another; that one Superior Court judge may not correct another’s errors of law; and

that ordinarily one judge may not modify, overrule, or change the judgment of another

Superior Court judge previously made in the same action.” Calloway v. Ford Motor

Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972) (citation omitted). Nevertheless,

Rule 60(b) “allows a trial judge to grant a party relief from that judge’s or another

judge’s order or judgment” in certain circumstances, including when the initial order

or judgment is void. Duplin County Dep’t of Soc. Servs. ex rel. Pulley v. Frazier, 230

N.C. App. 480, 482, 751 S.E.2d 621, 623 (2013) (citation omitted). Rule 60(b)(4)

expressly provides that a trial court possesses the authority to “relieve a

party . . . from a final judgment, order, or proceeding” where “[t]he judgment is void.”

N.C. R. Civ. P. 60(b)(4).

      Our case law makes clear, however, that “[a] judgment will not be deemed void

merely for an error in law, fact, or procedure. A judgment is void only when the

issuing court has no jurisdiction over the parties or subject matter in question or has

no authority to render the judgment entered.” Ottway Burton, P.A. v. Blanton, 107



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                                   Opinion of the Court



N.C. App. 615, 616, 421 S.E.2d 381, 382 (1992) (citation omitted). Our Supreme Court

has held that an order of a court is void where the court’s jurisdiction was never

properly invoked. See Boseman v. Jarrell, 364 N.C. 537, 546-47, 704 S.E.2d 494, 501

(2010) (holding that trial court erred in entering order in case where its subject

matter jurisdiction had not been invoked and that order was therefore void ab initio).

      In determining whether the jurisdiction of the trial court was actually invoked

by the State’s ex parte motions here, we find instructive our Supreme Court’s decision

in In re Superior Court Order, 315 N.C. 378, 338 S.E.2d 307 (1986) and this Court’s

decision in In re Brooks, 143 N.C. App. 601, 548 S.E.2d 748 (2001). In Superior Court

Order, a prosecutor filed a petition in superior court seeking to compel bank officials

to disclose certain confidential records of a depositor. In the petition, the prosecutor

stated that he had “reason to believe that the examination of certain

records . . . would be in the best interest of justice.” Superior Court Order, 315 N.C.

at 379, 338 S.E.2d at 309 (quotation marks omitted). The trial court entered an ex

parte order requiring that the records be disclosed. Id.

      On appeal, the Supreme Court noted that although “no statutory provision

either authoriz[ed] or prohibit[ed] orders of the type here involved, such authority

exists in the inherent power of the court to act when the interests of justice so

require.” Id. at 380, 338 S.E.2d at 309 (citation omitted). Nevertheless, the Court




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                                   Opinion of the Court



held, certain requirements must be met prior to the issuance of an order for the

production of confidential records.

                    [T]he trial judge must be presented with something
             more than the complainant’s bare allegation that it is in
             the best interest of justice to allow the examination of the
             customer’s bank account records. At a minimum the State
             must present to the trial judge an affidavit or similar
             evidence setting forth facts or circumstances sufficient to
             show reasonable grounds to suspect that a crime has been
             committed, and that the records sought are likely to bear
             upon the investigation of that crime. With this evidence
             before it, the trial court can make an independent decision
             as to whether the interests of justice require the issuance
             of an order rather than relying solely upon the opinion of
             the prosecuting attorney.

Id. at 381, 338 S.E.2d at 310. The Court concluded that “[b]ecause no such evidence

was presented to the trial judge in this case, the order directing the bank to make the

records available was not properly issued.” Id.

      In Brooks, a district attorney filed ex parte petitions seeking the release of the

personnel files of two police officers allegedly involved in an assault. Brooks, 143 N.C.

App. at 602, 548 S.E.2d at 750.       The petitions contained a statement that the

requested documents were “necessary to a full and complete investigation . . . and

would be in the best administration of justice” but “were not supported by affidavits,

nor did they reference any legal authority.” Id. (citation omitted). The trial court

entered ex parte orders compelling the production of the officers’ personnel files. Id.

at 602-03, 548 S.E.2d at 750. Neither the State’s petitions nor the trial court’s orders



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                                   Opinion of the Court



were initially assigned docket numbers. The officers appealed the trial court’s order

on the grounds that “the Superior Court did not have jurisdiction or the authority

to . . . authoriz[e] the disclosure of information in their personnel files.” Id. at 606,

548 S.E.2d at 752.

      The State argued on appeal that the trial court possessed the authority to enter

the ex parte orders pursuant to N.C. Gen. Stat. § 160A-168. Id. As an initial matter,

we noted that

             [a]ll information contained in a city employee’s personnel
             file, other than the information made public . . ., is
             confidential.     Personnel files of employees, former
             employees, or applicants for employment maintained by a
             city are subject to inspection and may be disclosed only as
             provided by section 160A-168 of the North Carolina
             General Statutes. Section 160A-168(c)(4) provides: By
             order of a court of competent jurisdiction, any person may
             examine such portion of an employee’s personnel file as
             may be ordered by the court.

Id. (internal citations, quotation marks, and brackets omitted).

      We recognized that “[t]he plain language of section 160A-168(c)(4) indicates

that the Superior Court . . . being a court of competent jurisdiction, [is] indeed

authorized to allow the inspection of . . . personnel files.” Id. (citation omitted). We

observed, however, that N.C. Gen. Stat. § 160A-168(c)(4) “does not provide for

procedures allowing or directing the court to [order disclosure of personnel files].” Id.

      This Court determined that in issuing an order compelling the disclosure of an

officer’s personnel file, “the Superior Court must utilize its inherent power and


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                                    Opinion of the Court



implement and follow procedures which effectively and practically . . . effectuate the

intent of section 160A-168, that an officer’s files remain confidential.” Id. at 611, 548

S.E.2d at 755 (citation, quotation marks, and brackets omitted). We ruled that “[a]t

a minimum, an ex parte petition submitted pursuant to section 160A-168(c)(4) should

be accompanied by sworn affidavit(s) or similar evidence, including specific factual

allegations detailing reasons justifying disclosure.” Id. We further held that “the

Superior Court should docket petitions submitted and orders entered pursuant to

section 160A-168(c)(4) per its rules for docketing ‘special proceedings.’” Id. We then

summarized our holding as follows:

                    The petitions presented to the Superior Court in the
             present case were simply inadequate to justify the issuance
             of an ex parte order under section 160A-168(c)(4). The
             petitions were unsworn, not accompanied by any affidavits
             or other similar evidence, and amounted to nothing more
             than [the district attorney’s] own opinion — that the
             disclosure of the officers’ files was in the best interest of the
             administration of justice. . . . We also note that there is no
             indication that the case was docketed as a “special
             proceeding” or any other type of proceeding in the Superior
             Court until the failure to assign a file number to the matter
             was brought to the Superior Court’s attention by the
             officers. . . .

                    We therefore find that the Superior Court could not
             make an independent determination as to whether the
             interests of justice require the issuance of an order under
             section 160A-168(c)(4). Thus, the Superior Court erred in
             issuing its 13 April 1999 order and failing to vacate and set
             aside those orders in their entirety.

Id. at 611-12, 548 S.E.2d at 755 (quotation marks omitted).


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                                    Opinion of the Court




         Based on the principles discussed in Superior Court Order and Brooks, we

conclude that the orders entered by Judges Stephens and Lock were void ab initio.

The State did not present affidavits or other comparable evidence in support of their

motions for the release of Santifort’s personnel files and educational records

sufficiently demonstrating their need for the documents being sought. Nor was a

special proceeding, a civil action, or a criminal action ever initiated in connection with

the ex parte motions and orders. For these reasons, the State never took the steps

necessary to invoke the superior court’s jurisdiction.

         Because the orders of Judges Stephens and Lock were therefore void, Judge

Pittman not only possessed the authority to vacate those orders pursuant to

Santifort’s motions under Rule 60(b) but also committed reversible error in failing to

do so.     Accordingly, we reverse the portion of Judge Pittman’s order denying

Santifort’s Rule 60(b) motions.

                                      Conclusion

         For the reasons stated above, we (1) reverse those portions of Judge Pittman’s

4 November 2016 order denying Santifort’s motions under Rule 24 and Rule 60(b);

and (2) remand for further proceedings not inconsistent with this opinion.

         REVERSED IN PART AND REMANDED.

         Judges STROUD and HUNTER, JR. concur.




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