[Cite as State v. Brennco, Inc., 2015-Ohio-467.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-14-24

        v.

BRENNCO, INC.,                                            OPINION

        DEFENDANT-APPELLANT.




                            Appeal from Lima Municipal Court
                              Trial Court No. 13CRB01880

                                      Judgment Affirmed

                            Date of Decision: February 9, 2015




APPEARANCES:

        Michael A. Rumer and Anthony J. Miller for Appellant

        Robert W. Cheugh, II and Kenneth H. Egbert, Jr. for Appellee
Case No. 1-14-24


WILLAMOWSKI, J.

       {¶1} Defendant-appellant, a company called Brennco, Inc. (“Brennco”)

brings this appeal from the judgment of the Lima Municipal Court in Allen

County, Ohio, denying its motion, captioned “Motion to Dismiss and Motion to

Suppress” and finding it guilty of water pollution in violation of R.C.

6111.04(A)(1), upon Brennco’s entry of a no contest plea. For the reasons that

follow, we affirm the trial court’s judgment.

                           Facts and Procedural History

       {¶2} According to the facts presented to us, Brennco is an incorporated

farm operation engaged in raising hogs and producing grain crops. On November

11, 2011, Brennco initiated the application of hog manure onto one of its fields by

use of a traveling gun applicator. The application resulted in a prohibited amount

of manure seeping into a nearby creek, called Pigeon Run, and subsequently into

the Auglaize River. The discharge caused a fish kill in the river.

       {¶3} On June 10, 2013, the State of Ohio (“the State”) filed a complaint in

the Lima Municipal Court, alleging that Brennco engaged in water pollution in

violation of R.C. 6111.04(A)(1), an unclassified misdemeanor “with a penalty up

to $25,000.00 per day of violation.” (R. at 1, Compl.) Brennco entered a plea of

not guilty and requested a jury trial. After initial discovery and a pretrial, Brennco

filed its motion to dismiss and to suppress. As the basis for the motion to dismiss,

Brennco alleged that the maximum statutory fine for violation of R.C. 6111.04
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exceeds the jurisdictional limits of the Lima Municipal Court, thereby divesting

the municipal court of jurisdiction over the action. With respect to the suppression

issue, Brennco requested suppression of any evidence “that the defendant’s

traveling gun land application equipment constitutes ‘a point discharge of the

pollutant’ causing pollution of the waters of the State of Ohio.” (R. at 34.) In

support of its request to suppress, Brennco alleged that a provision of R.C.

6111.04(F)(3) exempts it from liability.       The trial court held a hearing and

subsequently, denied both motions. Brennco then entered a no contest plea and

was found guilty.

         {¶4} Brennco filed the instant appeal, alleging the following assignments of

error.

                        ASSIGNMENT OF ERROR NO. 1

         The trial court erred when it denied defendant’s motion to
         dismiss this case for want of subject matter jurisdiction of a
         prosecution pursuant to R. C. 6111.04(A)(1).

                        ASSIGNMENT OF ERROR NO. 2

         The trial court erred when it determined the exception to R. C.
         §6111.04(A)(1) set forth in R. C. §6111.04(F)(3) does not apply in
         this case.

                        ASSIGNMENT OF ERROR NO. 3

         The trial court erred when it failed to apply the rule of lenity
         and liberally apply R. C. §6111.04(F)(3) in favor of Brennco.




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                            First Assignment of Error—
                         Jurisdiction of the Municipal Court

         {¶5} In its first assignment of error Brennco challenges jurisdiction of the

Lima Municipal Court asserting that the monetary limitations set forth in R.C.

1901.17 precluded the court from hearing this case.             R.C. 1901.17 limits

jurisdiction of municipal courts to cases where the amount in controversy does not

exceed $15,000.00. This Revised Code section states, in relevant part:

         A municipal court shall have original jurisdiction only in those cases
         in which the amount claimed by any party, or the appraised value of
         the personal property sought to be recovered, does not exceed fifteen
         thousand dollars, except that this limit does not apply to the housing
         division or environmental division of a municipal court.

R.C. 1901.17. Because the maximum fine for a violation of R.C. 6111.04 is

$25,000.00, Brennco argues that it exceeds the jurisdiction of the Lima Municipal

Court.

         {¶6} We must determine whether the monetary limits of R.C. 1901.17

apply to the case before us. Because this issue involves the interpretation of a

statute, which is a question of law, we review the trial court’s judgment de novo.

State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, ¶ 9 (2014); State v. Pariag,

137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9 (2013).                    When

interpreting a statute, we must “determine and give effect to the legislative intent.”

Straley at ¶ 9. To determine the legislative intent, we first look at the language of




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Case No. 1-14-24


the statute itself and if the language is clear and unambiguous, we apply it as

written and no further construction is required. Id.; Pariag at ¶ 11.

       {¶7} Looking at the clear language of R.C. 1901.17, it does not appear that

the monetary limitation stated therein precluded the Lima Municipal Court from

hearing this case. R.C. 1901.17 limits a municipal court’s jurisdiction to “those

cases in which the amount claimed by any party, or the appraised value of the

personal property sought to be recovered, does not exceed fifteen thousand

dollars.” (Emphasis added.) In this case, no party claimed any monetary amounts

or sought to recover any property. The criminal complaint filed by the State

alleges the violation of R.C. 6111.04(A)(1) and states that the violation constitutes

“a charge of water pollution.” (R. at 1, Compl.) Although the complaint further

recites the maximum penalty that could be imposed for the violation, the State

does not “claim” this amount as its damages.

       {¶8} The State submits that the monetary limitation of R.C. 1901.17 applies

to civil actions only, as those are the actions in which a party will “claim”

monetary damages. We agree.

       {¶9} The Ohio Supreme Court has acknowledged that municipal courts are

creatures of statute and that while R.C. 1901.18 is the statute that creates

municipal courts as it relates to “civil matters,” R.C. 1901.20 provides for their

creation as it relates to “criminal and traffic matters.” State v. Cowan, 101 Ohio

St.3d 372, 2004-Ohio-1583, 805 N.E.2d 1085, ¶ 11 (2004). R.C. 1901.20 states
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that “[t]he municipal court has jurisdiction * * * of the violation of any

misdemeanor committed within the limits of its territory.” R.C. 1901.20(A)(1).

Because the violation of R.C. 6111.04 is a misdemeanor, jurisdiction exists. See

State v. McLaughlin, 109 Ohio App.3d 868, 870, 673 N.E.2d 234 (9th Dist.1996)

(recognizing that pollution in violation of R.C. 6111.04 is a misdemeanor).

       {¶10} Brennco argues that a municipal court’s jurisdiction over

misdemeanors under R.C. 1901.20 is subject to the monetary limitation of R.C.

1901.17. This assertion has no support in the language of the statute. R.C.

1901.18, which creates jurisdiction of municipal courts over civil matters, states

that the jurisdiction is “subject to the monetary jurisdiction of municipal courts as

set forth in section 1901.17 of the Revised Code.” See also R.C. 1901.19 (listing

jurisdictional powers of municipal courts, which are “[s]ubject to the monetary

jurisdiction of municipal courts as set forth in section 1901.17 of the Revised

Code”). Conversely, R.C. 1901.20 does not include similar language, stating

instead that “[t]he municipal court has jurisdiction * * * of the violation of any

misdemeanor committed within the limits of its territory.” (Emphasis added.)

R.C. 1901.20(A)(1).

       {¶11} The Tenth District Court of Appeals employed the following

reasoning upon an argument that the municipal court had “no monetary/subject-

matter jurisdiction over the case”:



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Case No. 1-14-24


       R.C.1901.18 establishes the subject-matter jurisdiction regarding
       civil cases and notes that said jurisdiction is subject to the monetary
       jurisdiction set forth in R.C.1901.17. R.C.1901.17 states that “[a]
       municipal court shall have original jurisdiction only in those cases in
       which the amount claimed by any party, or the appraised value of the
       personal property sought to be recovered, does not exceed fifteen
       thousand dollars.”

       R.C.1901.20(A)(1) establishes the municipal court’s subject-matter
       jurisdiction in criminal and traffic cases and states that “[t]he
       municipal court has jurisdiction of the violation of any ordinance of
       any municipal corporation within its territory * * * and of the
       violation of any misdemeanor committed within the limits of its
       territory.”

       The case pending in municipal court is a traffic case involving
       misdemeanor offenses.

State ex rel. Johnson v. Franklin Cty. Mun. Court, 10th Dist. Franklin No. 14AP-

219, 2014-Ohio-3308, ¶ 5-8 (overruling objections to the magistrate’s decision and

denying a writ of mandamus to order dismissal of a criminal case by the Franklin

County Municipal Court).

       {¶12} Brennco is dissatisfied with the statute’s language, which does not

clearly express that the monetary limits of R.C. 1901.17 apply to civil cases only.

Yet, the only reading of the statute, clearly and unambiguously dictates that the

monetary limits do not apply to criminal cases where there is no “amount claimed

by any party” to be limited. Therefore, we apply the statute as written and hold

that R.C. 1901.17 did not divest the Lima Municipal Court of jurisdiction over the

instant case. Accordingly, the trial court did not err when it denied Brennco’s

motion to dismiss this case for want of subject matter jurisdiction.
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       {¶13} The first assignment of error is overruled.

                     Second and Third Assignments of Error—
                          Denial of Motion to Suppress

       {¶14} Before we address the substantive arguments raised here, we elect to

raise a procedural issue sua sponte. Brennco filed a motion to suppress, requesting

suppression of any evidence “that the defendant’s traveling gun land application

equipment constitutes ‘a point discharge of the pollutant’ causing pollution of the

waters of the State of Ohio.” (R. at 34.) The request to suppress evidence was

based on a possible defense to the charge, an argument that that a provision of

R.C. 6111.04(F)(3) exempts it from liability. We note that “[a] motion to suppress

is ‘[a] request that the court prohibit the introduction of illegally obtained evidence at a

criminal trial.’ ” State v. Echard, 9th Dist. Summit No. 24643, 2009-Ohio-6616, ¶ 3,

citing Black's Law Dictionary 1039 (8th ed.2004); Crim.R. 12(C)(3). Brennco did not

argue that the evidence relating to its “traveling gun land application equipment” was

illegally obtained. Its arguments, more appropriately, can be classified as defenses

to the charges. These arguments were thus not properly raised in the motion to

suppress and the trial court should have refused to consider the motion. However,

because the State raised no objections to this improper use of the motion to

suppress by Brennco, we do not remand this case to the trial court, as that would

unfairly benefit the party which committed the error. See State ex rel. Beaver v.

Konteh, 83 Ohio St.3d 519, 521, 1998-Ohio-295, 700 N.E.2d 1256 (1998) (“Under the


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invited-error doctrine, a party will not be permitted to take advantage of an error that he

himself invited or induced the trial court to make.”) Therefore, we review the challenges

on appeal under the standard of review for a motion to suppress, but our review should

not be read as an endorsement of such use of this procedural device.

        {¶15} Brennco’s argument in his motion to suppress concerned the

language of R.C. 6111.04, which prohibits pollution of any waters of the state.

See R.C. 6111.04(A). This section of the Revised Code has several exemptions.

First, the prohibition against polluting the waters of the state does not apply if the

person causing pollution “holds a valid, unexpired permit, or renewal of a permit,

governing the causing or placement as provided in sections 6111.01 to 6111.08 of

the Revised Code or if the person’s application for renewal of such a permit is

pending.” R.C. 6111.04(A). It is undisputed that Brennco did not hold such a

permit. Therefore, the first exemption does not absolve it from liability. Second,

subsection (F) of R.C. 6111.04 lists eight exceptions to liability for water

pollution. As relevant to this appeal, subsection (F)(3) states that the prohibition

against water pollution does not apply to:

        Application of any materials to land for agricultural purposes or
        runoff of the materials from that application or pollution by animal
        waste1 or soil sediment, including attached substances, resulting
        from farming, silvicultural, or earthmoving activities regulated by
        Chapter 307. or 1511. of the Revised Code. Division (F)(3) of this
        section does not authorize, without a permit, any discharge that is

1
  The language of this statute has been revised and the current wording differs slightly, using the terms,
“residual farm products, manure,” instead of “animal waste.” The amendment has no effect on the current
appeal.

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Case No. 1-14-24


       prohibited by, or for which a permit is required by, the Federal
       Water Pollution Control Act or regulations adopted under it.

(Emphasis added.) R.C. 6111.04(F)(3).

                     Interpretation of the Statutory Language
                              of R.C. 6111.04(F)(3)

       {¶16} Brennco asserts that its activities constituted “runoff” of the

application of materials to land for agricultural purposes or “pollution by animal

waste” resulting from farming activities. Acknowledging the second sentence of

R.C. 6111.04(F)(3), which states that the above exception “does not authorize,

without a permit, any discharge that is prohibited by, or for which a permit is

required by, the Federal Water Pollution Control Act,” Brennco argues that the

above statutory language is ambiguous. As such, it should be construed against

the State.

       {¶17} We again turn to the interpretation of the statutory language. As

stated in our discussion of the first assignment of error, we employ the de novo

standard of review and look at the statutory language to “determine and give effect

to the legislative intent.” Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, at ¶ 9. If

the legislative intent is clearly expressed, “ ‘the statute may not be restricted,

constricted, qualified, narrowed, enlarged or abridged; significance and effect

should, if possible, be accorded to every word, phrase, sentence and part of an act

* * *.’ ” State ex rel. McGraw v. Gorman, 17 Ohio St.3d 147, 149, 478 N.E.2d



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770 (1985), quoting Wachendorf v. Shaver, 149 Ohio St. 231, 78 N.E.2d 370

(1948), paragraph five of the syllabus.

       {¶18} Brennco sees ambiguity in the fact that the second sentence of

subsection (F)(3) could possibly be read in two ways. (See App’t Br. At 17-18.)

First, if you don’t fall under one of the exceptions for farming activities listed in

the first sentence of subsection (F)(3), you need a permit. Here, Brennco alleges

that it fell under the farming activities exception and so, no permit was required.

Second, even if you fall under one of the exceptions for farming activities, you

still need a permit. This construction would result in Brennco being required to

obtain a permit, even thought its activities fell within the exceptions listed in the

first sentence of R.C. 6111.04(F)(3). Brennco objects to this second suggested

interpretation as superfluous, and urges us to resolve the ambiguity in its favor,

applying the first interpretation outlined above.

       {¶19} We do not read subsection (F)(3) as ambiguous. Although the many

exceptions and qualifications to these exceptions make the language of R.C.

6111.04 somewhat difficult to read, our understanding of the clear statutory

language can be summarized as follows. In general, one needs a permit before

they can pollute the waters of the state. R.C. 6111.04(A). One does not need a

permit, however, if they cause pollution of the type listed in the first sentence of

R.C. 6111.04(F)(3), resulting from farming activities. The second sentence of

R.C. 6111.04(F)(3) prohibits any discharge that violates the Federal Water
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Pollution Control Act (commonly referred to as the Clean Water Act, hereinafter

“CWA”), or regulations adopted under it. Therefore, when a person engages in

farming activities and “manure stays on fields for its beneficial purpose of

providing nutrients to crops * * * no violation of R.C. 6111.04 occurs,” as it is

excepted under the first sentence of R.C. 6111.04(F)(3). (App’e Br. at 22.) But if

a person who engages in farming activities permissible under the first sentence of

R.C. 6111.04(F)(3) causes the type of “discharge” prohibited by the CWA,

without a permit, they are liable for water pollution.

       {¶20} Because there is no ambiguity in the statute, the premise of

Brennco’s argument in the third assignment of error fails. Therefore, the third

assignment of error is overruled.

         b. Application of the Statutory Language of the Clean Water Act,
           as it is Referenced in R.C. 6111.04(F)(3), to the Case at Issue

       {¶21} The issue then becomes what “discharge” is prohibited by the CWA

or regulations adopted under it and whether it occurred in the instant case. We

now turn to the federal statute. The parties agree that the relevant sections of the

CWA prohibit discharge of any pollutant without a permit issued by the

“Administrator.”    33 U.S.C. 1342; 33 U.S.C. 1311(a).       Because manure is a

pollutant under 33 U.S.C. 1362(6) (see, e.g., Concerned Area Residents for The

Environment v. Southview Farm, 834 F.Supp. 1410, 1416-1417 (W.D.N.Y.1993)),

and Brennco did not have a permit, the only remaining issue is whether the


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Case No. 1-14-24


discharge of that pollutant occurred in this case, so as to make Brennco liable for

pollution in spite of the exception for farming activities in R.C. 6111.04(F)(3).

       {¶22} The CWA has a separate definition for the term “discharge of a

pollutant.” It states:

       The term “discharge of a pollutant” and the term “discharge of
       pollutants” each means (A) any addition of any pollutant to
       navigable waters from any point source * * *.

(Emphasis added.) 33 U.S.C. 1362(12). The dispute between the parties concerns

the definition and use of the term “point source” and whether the traveling gun

applicator used by Brennco constituted such a point source. The CWA defines

“point source” as

       any discernible, confined and discrete conveyance, including but not
       limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
       fissure, container, rolling stock, concentrated animal feeding
       operation, or vessel or other floating craft, from which pollutants are
       or may be discharged. This term does not include agricultural
       stormwater discharges and return flows from irrigated agriculture.

(Emphasis added.) 33 U.S.C. 1362(14). The State maintains that the traveling

gun applicator and the field tile, “which directly conveyed the manure into Pigeon

Run,” constitute a point source. (App’ee Br. at 14.) Brennco focuses on the last

sentence of the definition and contends that the discharge that occurred on the day

at issue was “agricultural stormwater discharge” and as such, it was exempted

from the definition of point source under the express language of the above

definition.


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       {¶23} The CWA does not define the term “agricultural stormwater

discharge.” Cases that concerned this exception to the CWA explain that “[t]his

occurs, for example, when rainwater comes in contact with manure and flows into

navigable waters.” Natl. Pork Producers Council v. U.S. E.P.A., 635 F.3d 738,

743 (5th Cir.2011), citing Fishermen Against Destruction of Env’t, Inc. v. Closter

Farms, Inc., 300 F.3d 1294, 1297 (11th Cir.2002), and Concerned Area Residents

for the Env’t v. Southview Farm, 34 F.3d 114, 121 (2d Cir.1994). The trial court

reviewed Brennco’s assertion of the agricultural stormwater discharge exemption

and found that

       [i]n this case, there were no facts that would establish that the
       pollution was caused by stormwater runoff. There was no rain on
       the date of the event. Mr. Brenneman saw some discharge before
       the application of manure, but he further stated that the discharge
       after the manure was applied was different and distinct from the
       prior discharge. Therefore, the stormwater runoff exception does not
       apply to the case.

(R. at 41, J. Entry at 4.) The trial court further found that “[t]he source of this

pollution is discernable [sic] and it was not the result of any stormwater or natural

runoff. The court therefore finds that this runoff was from a point source.” (Id. at

5.) Upon this finding, the trial court concluded that the exception for farming

activities in R.C. 6111.04(F)(3) does not apply and overruled Brennco’s motion to

suppress.

       {¶24} An appellate review of the trial court’s decision on a motion to

suppress involves a mixed question of law and fact. State v. Burnside, 100 Ohio
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St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Norman, 136 Ohio

App.3d 46, 51, 735 N .E.2d 953 (3d Dist.1999). We will accept the trial court’s

factual findings if they are supported by competent, credible evidence because the

“evaluation of evidence and the credibility of witnesses” at the suppression

hearing are issues for the trier of fact. State v. Mills, 62 Ohio St.3d 357, 366, 582

N.E.2d 972 (1992); Burnside at ¶ 8; Norman 51. But we must independently

determine, without deference to the trial court, whether these factual findings

satisfy the legal standard as a matter of law because “the application of the law to

the trial court’s findings of fact is subject to a de novo standard of review.”

Burnside at ¶ 8; Norman at 52.

       {¶25} The issue of whether a discharge occurred from a point source is a

question of fact. Williams Pipe Line Co. v. Bayer Corp., 964 F.Supp. 1300, 1318

(S.D.Iowa 1997), citing Concerned Area Residents for The Environment v.

Southview Farm, 834 F.Supp. 1410, 1417-18 (W.D.N.Y.1993); In the Matter of

Chevron U.S.A. Inc., Barbers Point Refinery, Honolulu, Hawaii, Respondent, U.S.

E.P.A. No. IX-FY88-54, 1990 WL 752777, *1, fn. 20 (May 3, 1990), citing U.S. v.

Standard Oil Co., 384 U.S. 224, 226, 86 S.Ct. 1427, 16 L.Ed. 2d 492 (1966).

Therefore, under the standard for reviewing the trial court’s decision on the

motion to suppress, we must accept the trial court’s finding that the discharge in

this case occurred from a point source, unless this finding is unsupported by the

evidence.
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       {¶26} Our review of the record supports the trial court’s findings that there

was no evidence of rain on November 11, 2011 (see Tr. at 10, 25), and that no

evidence established that the runoff at issue was a result of rainwater coming into

contact with manure and flowing into navigable waters. Accordingly, we affirm

the trial court’s conclusion that the runoff here was from a discernible conveyance,

i.e., a traveling gun applicator, which overapplied the liquid manure onto the field.

The fact that some stormwater might have been on the field prior to the

overapplication of the manure and that the manure came into contact with that

stormwater does not create the “agricultural stormwater discharge” exception.

This exception is for the situations when rainfall, combined with proper

application of the manure, causes the runoff, rather than for the situations when

overapplication of the manure and the runoff happen to coincide with some

rainfall. See Southview Farm, 34 F.3d 114, 120 (“while the statute does include an

exception for ‘agricultural stormwater discharges,’ there can be no escape from

liability for agricultural pollution simply because it occurs on rainy days”).

       We think the real issue is not whether the discharges occurred during
       rainfall or were mixed with rain water run-off, but rather, whether
       the discharges were the result of precipitation. Of course, all
       discharges eventually mix with precipitation run-off in ditches or
       streams or navigable waters so the fact that the discharge might have
       been mixed with run-off cannot be determinative.

Id. at 120-121.




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       {¶27} Based upon the foregoing, we affirm the trial court’s conclusion that

the runoff on Brennco’s farm of November 11, 2011, does not amount to

“agricultural stormwater discharge” and therefore, is not exempted from the point

source definition of the CWA. As a result, Brennco is not exempted from liability

under the exception of R.C. 6111.04(F)(3), which allows for farming activities

causing runoff or pollution by animal waste as long as they do not violate the

CWA. This being the only basis for Brennco’s suppression request, we hold that

the trial court properly denied its motion to suppress and we overrule the second

assignment of error.

                                   Conclusion

       {¶28} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued. The judgment of the Lima Municipal Court in Allen County, Ohio, is

therefore affirmed.

                                                              Judgment Affirmed

ROGERS, P.J. and PRESTON, J., concur.

/jlr




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