Present: All the Justices
KATINA GREEN,
ADMINISTRATOR OF THE ESTATE OF
CHRISTIE D. GREEN
v. Record No. 040480 OPINION BY JUSTICE DONALD W. LEMONS
March 3, 2005
GEORGE INGRAM, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
Christie D. Green ("Green") was shot and killed by
fragments from a frangible round shot at and through a door
when police officers sought to gain entrance to a home to
execute a search warrant. Katina Green, the administrator of
the estate ("administrator" or "plaintiff"), sued various
defendants in a wrongful death action. In this appeal, we
consider whether the trial court erred in granting a motion to
strike the administrator's evidence and dismissing her motion
for judgment.
I. Facts and Proceedings Below
A. Background
According to well-settled principles of appellate review,
when the trial court grants a motion to strike the plaintiff's
evidence, we review the evidence on appeal in the light most
favorable to the plaintiff. Perdieu v. Blackstone Family
Practice Ctr., Inc., 264 Va. 408, 411, 568 S.E.2d 703, 704
(2002); Bryan v. Burt, 254 Va. 28, 30-31, 486 S.E.2d 536, 537
(1997).
On December 29, 1998, Captain John B. Buckovich
("Buckovich") led the Richmond Special Weapons and Tactics
("SWAT") team on a mission at 1112-C Dove Street in the City
of Richmond. The purpose of this mission was to serve a
search warrant at a home where illegal drugs and firearms were
located. Sergeant George J. Ingram ("Ingram"), a member of
the SWAT team, was assigned the task of breaching the kitchen
door using frangible breaching rounds.
As part of initiating the entry, police employed a
technique known as "rake and break." The technique involves
the breaking of a front window and announcing, "Richmond
Police, search warrant," while entry through a door at a
different location is accomplished.
While the "rake and break" was being employed at the
front of the house, Ingram attempted to enter the residence
through the kitchen door. The door was an exterior, heavy,
windowless, composite wood door, with a lockless doorknob set
below a single cylinder deadbolt lock mortised into the door.
Prior to using the frangible rounds, Ingram attempted to open
the door by turning the doorknob. While the doorknob turned
freely, the door did not open and Ingram concluded that the
deadbolt was engaged.
2
Ingram then used a shotgun to fire frangible rounds at
the door's locking system. According to SWAT team training
and Ingram's own testimony, the optimal angle from which to
shoot a frangible round is a downward 45-degree angle. The
purpose of this angle is to push any possible debris downward
to prevent injuries. The exact angle used by Ingram is not
known, but evidence at trial indicated that Ingram did fire at
a downward angle. The frangible rounds fired by Ingram are
designed to disintegrate into powder upon impact with metal.
In attempting to breach the kitchen door, Ingram fired five
frangible rounds.
Ingram stated that his first shot "[p]enetrated the door
right where the throw was, about the location of the throw, or
where the throw is. You can't see the throw obviously when
the door is locked, but approximately where the throw is." In
discussing the second shot, Ingram stated that he pointed the
barrel of his shotgun below the hole created by the first
shot. When asked why he aimed below his first shot, Ingram
stated that the door had not swung open on the first shot and
"how you work this is you shoot, you look, you shoot, you
look, working in a pattern to clear it where the throw would
be." Ingram was next asked about the angle of each of the
shots and he replied that the angle would become steeper as he
went down from the first shot to the last shot, such that the
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first shot was the least steep angle and the last shot was the
most steep angle.
After each shot, Ingram testified that he made a "visual
and toe check," consisting of a visual inspection of the
results of the shot and an attempt to push the door open with
his foot. He stated that "sometimes it takes two and
sometimes it takes five shots" and that the purpose of the toe
check is to determine between shots whether the door will
open. Ingram testified that he performed this check after
each of his five shots.
Ingram testified that his first shot was between the
deadbolt lock and the frame of the door, and that his four
subsequent shots were each an inch successively lower in a
vertical line. At no point during the firing of the frangible
rounds did Ingram re-attempt to open the door by turning the
doorknob below the deadbolt.
After firing five frangible rounds, Ingram still could
not open the door by pushing it with his foot. A battering
ram was used to open the door and enter the residence. Upon
entry, the SWAT team found Green lying dead on the kitchen
floor, her body draped over her three-year-old daughter, who
was unharmed. As a visitor to the home, she had arrived
approximately twenty minutes before the SWAT team began the
breaching operation.
4
An autopsy revealed that frangible round fragments caused
Green's death. After entering the residence, police found
heroin, an assault rifle and high-volume ammunition magazines,
two semi-automatic pistols, a silencer for one of the pistols,
and ammunition for the rifle and pistols.
B. Proceedings Below
This appeal arises from a lawsuit originally styled
"Leslie L. Green, Administrator of the Estate of Christie D.
Green versus Armor Holdings, Inc. of America (a Delaware
corporation), Defense Technology Corporation of America (a
Delaware corporation), Defense Technology Corporation of
America, John B. Buckovich, and George Ingram." 1 Katina Green
was subsequently substituted as administrator.
1
In her motion for judgment, the administrator referred
to the two Defense Technology corporations as "[t]he defendant
Defense Technology Corporation of America (a Delaware
corporation), and/or the defendant Defense Technology
Corporation of America (together, 'Defense Technology')."
Thus, it would appear the two corporations are in fact the
same. However, this confusion is compounded by the
administrator's subsequent non-suit of Defense Technology
Corporation of America, but not Defense Technology Corporation
of America (a Delaware corporation). Because the record does
not indicate whether the two Defense Technology corporations
are in fact the same, the three corporate defendants are
hereinafter referred to in the following manner: Armor
Holdings, Inc. of America (a Delaware corporation) as "Armor
Holdings"; Defense Technology Corporation of America (a
Delaware corporation) as "Delaware Defense Technology"; and
Defense Technology Corporation of America, with no state of
corporation designated, as "DTCA."
5
The trial court granted a motion to sever the trial of
the three corporate defendants from that of Buckovich and
Ingram. The administrator then non-suited Armor Holdings and
DTCA on January 28, 2002. In a jury trial involving only
Delaware Defense Technology, the jury returned a defense
verdict. The trial court entered judgment in favor of
Delaware Defense Technology. The administrator filed a timely
petition for appeal, Record Number 021017, which we refused.
The case then proceeded to trial against defendants
Buckovich and Ingram. The administrator, in her claims
against Buckovich, alleged gross negligence in his training
and supervision of Ingram and in his planning of the
operation. In her claims against Ingram, the administrator
alleged gross negligence in his use of the frangible rounds
and breaching of the door during the operation. The plaintiff
also sought punitive damages.
At trial, plaintiff presented evidence of the
manufacturer’s specifications for the use of the frangible
rounds, the training for SWAT team members in the firing of
the frangible rounds, Ingram’s conduct in firing the frangible
rounds during the evening in question, and the trajectory of
the five frangible rounds fired by Ingram. With respect to
the manufacturer’s specifications for the use of the frangible
rounds, the manufacturer’s advertisements stated that the “No.
6
22 T.K.O. (Tactical Knock-Out) 12 Gauge Frangible Slug” was
“made of compressed powdered zinc, which disintegrates into a
fine powder upon impact with the target. The only possible
fragmentation would be from the target area rather than the
slug itself.” The manufacturer also stated, “When properly
applied, [the frangible] round is capable of defeating door
lock mechanisms, door knobs, hinges, dead bolts, safety
chains, and padlocks on both hollow and solid wooden doors, as
well as standard hollow industrial doors.”
A reasonable inference from the manufacturer's
specifications is that the "target" is a metal object
associated with a door. Such an inference was advanced by the
city attorney herself when, in argument before the trial
court, the following colloquy took place:
CITY ATTORNEY: Furthermore, the evidence
is that Ms. Green was killed by fragments
of a round, which indicate the rounds hit
something. The inference is that the
rounds hit something in the door.
THE COURT: Something other than wood?
CITY ATTORNEY: Something other than wood,
something that broke them apart. All of
the evidence indicates [Ingram] applied
the rounds to the target area. In fact,
the testimony was that his first round was
fired directly in the area of the dead
bolt. The evidence is that the dead bolt
is on the floor and that part of the
doorknob is on the floor.
The only permissible inference from
that is that he fired the rounds in
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accordance with his training. It struck a
metal object in the door and struck
something hard enough to breach it.
Obviously, the rounds hit something and
broke into parts. The evidence is that
Ms. Green was killed by fragments.
That a metal mechanism attached to the door is the
"target" is further bolstered by the testimony of Ingram
himself:
Q. And in connection with the first
[round] that you fired at the door, at
what point of the door did you point the
barrel of the shotgun?
A. The sights were placed on the lock,
the area between the dead bolt lock and
where the frame is there's a small area
that's exposed and that's the area that we
shot at.
Q. And why is it that you shot at that
area between the dead bolt lock and the
frame?
A. That's where the throw goes into the
frame from the lock.
Q. So you were shooting at the throw,
the dead bolt throw for that first shot,
correct?
A. Correct.
Buckovich supports this conclusion as well:
Q. At any time as far as you are aware,
has anyone on behalf of the Richmond
Police Department fired rounds
purposefully below a lock on a wooden door
in order to determine the extent to which
the round would penetrate the door if the
round did not come in contact with the
metal lock?
A. Once again, I haven't. I don't know
what Captain Beadles and Lieutenant
Bennett, if they have. So I haven't done
that personally.
Q. Why not?
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A. Because that wasn't the way the round
was intended to be used. It was intended
to be used to be fired at the locking
mechanism.
. . . .
Q. When you were firing frangible
rounds, did you ever purposefully aim at a
part of the door that you thought did not
have hardware in it?
A. Only time I've ever fired it was at
hinges or the locks.
Q. And why have you never purposefully
aimed at a part of the door that you did
not think had hardware in it?
A. As I stated earlier, that's not the
way the round is intended to be used, so I
never did it.
This definition of "target" is further supported by training
materials for the SWAT team that direct, "AIM SHOTGUN WITH A
45-DEGREE DOWN ANGLE AT THE LATCHBOLT BETWEEN THE LOCK AND THE
FRAME."
As part of SWAT team training, members received training
on breaching techniques. Ingram received this training, and
also served as an instructor. The plaintiff introduced into
evidence the lesson plan for the course on breaching
techniques. The lesson plan stated that the frangible round
is to be used to “[a]ttack the throw area of the dead bolt
usually.” When focusing on shotgun breaching, the lesson plan
listed seven “intelligence requirements”: the composition of
the door, the composition of the frame, the swing on the door,
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the locking options, the attaching methods, any additional
hardware, and the shotgun aiming points.
The plaintiff also introduced deposition testimony
regarding Ingram’s conduct in firing the frangible rounds
during the breaching operation on December 29, 1998. 2 While
Ingram was unsure of the exact angle, he testified that he
fired all five frangible rounds at a downward angle. Ingram
stated that each shot was approximately an inch below the one
before it, and that he fired them in a vertical line below
where he concluded the latchbolt to be located. When asked
whether he considered “that there might be people in the room
on the other side of the door,” Ingram responded, “You’re
always aware of that, the room that you’re going into might be
occupied. You’re always aware of that.” It was undisputed
that fragments from the frangible rounds fired by Ingram
caused Green’s death.
At the conclusion of the plaintiff's case-in-chief,
Buckovich and Ingram moved to strike the evidence. The trial
court granted Buckovich's motion and denied Ingram's motion.
Ingram then declined to present any evidence and renewed his
motion to strike. The trial court took Ingram's motion under
2
During the trial below, the administrator's presentation
of evidence began with the videotaped deposition testimony of
Ingram. The administrator subsequently called Ingram to
10
advisement and submitted the case to the jury, with Ingram as
the only defendant. The jury was unable to reach a verdict,
and Ingram renewed his motion to strike. The trial court
granted Ingram's motion and entered judgment in favor of
Ingram.
The administrator filed a timely petition for appeal. At
the outset, it must be noted that while the style of this case
includes Delaware Defense Technology, this appeal involves
only the administrator as appellant and Ingram as appellee.
II. Analysis
A. Motion to Strike
In her first assignment of error, Green contends, "As a
matter of law, the trial court in this wrongful death action
erred in concluding that the facts did not present a jury
issue as to whether the actions of a police officer were
willful and wanton or grossly negligent, under the
circumstances of this case."
1. Standards of Review
The standard under which a trial court should review the
evidence at trial before granting a motion to strike "requires
the trial court to accept as true all the evidence favorable
to the plaintiff as well as any reasonable inference a jury
testify in person as an adverse witness. The testimony cited
is from Ingram's videotaped deposition.
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might draw therefrom which would sustain the plaintiff's cause
of action." Upper Occoquan Sewage Authority v. Blake
Construction Co., 266 Va. 582, 590 n.6, 587 S.E.2d 721, 725
n.6 (2003) (citing Austin v. Shoney's, Inc., 254 Va. 134, 138,
486 S.E.2d 285, 287 (1997)). A trial court "is not to judge
the weight and credibility of the evidence, and may not reject
any inference from the evidence favorable to the plaintiff
unless it would defy logic and common sense." Id. A trial
court should resolve any reasonable doubt as to the
sufficiency of the evidence in the plaintiff's favor and
should grant the motion only when " 'it is conclusively
apparent that [the] plaintiff has proven no cause of action
against defendant.' " Williams v. Vaughan, 214 Va. 307, 309,
199 S.E.2d 515, 517 (1973) (quoting Leath v. Richmond, F. & P.
R.R., 162 Va. 705, 710, 174 S.E. 678, 680 (1934)).
On appeal, we review a trial court's judgment striking
the evidence, considering the facts in the light most
favorable to the plaintiff and drawing all fair inferences
from those facts. Perdieu, 264 Va. at 411, 568 S.E.2d at 704.
2. Gross Negligence
Both parties agree that under Virginia law, a government
agent such as Ingram is immune from suit for simple negligence
but not for gross negligence. Colby v. Boyden, 241 Va. 125,
128, 400 S.E.2d 184, 186 (1991). Additionally, both parties
12
agree the trial court correctly instructed the jury below
that gross negligence is "that degree of negligence which
shows indifference to others as constitutes an utter disregard
of prudence amounting to a complete neglect of the safety of
[another]. It must be such a degree of negligence as would
shock fair minded [people] although something less than
willful recklessness." Ferguson v. Ferguson, 212 Va. 86, 92,
181 S.E.2d 648, 653 (1971); see also Meagher v.Johnson, 239
Va. 380, 383, 389 S.E.2d 310, 311 (1990).
The evidence from the manufacturer concerning the
frangible rounds indicates that the rounds are designed to
disintegrate “into a fine powder upon impact with the target.”
The SWAT team training information instructed that when using
frangible rounds to breach a door like the one encountered by
Ingram, the shotgun should be aimed “with a 45-degree down
angle at the latchbolt between the lock and the frame.” A
reasonable jury could conclude from the evidence that the
"target" is a metal mechanism attached to a door.
Ingram testified that he fired five frangible rounds. He
testified that his first shot was between the deadbolt lock
and the frame of the door, and that his four subsequent shots
were each an inch successively lower in a vertical line. This
method was employed despite the fact that the latchbolt was in
a horizontal line from the deadbolt to the frame. From the
13
photographs introduced by the plaintiff, a jury could
reasonably conclude that the shots were in a vertical pattern
and below the location of the deadbolt lock. A reasonable
jury could conclude that Ingram fired the frangible rounds
into an area where there was only wood and no metal.
A reasonable jury could conclude that Ingram departed
from instruction and training, and fired in a location below
the lock rather than between the lock and the frame. Given
Ingram's own testimony about assumptions made concerning the
presence of people on the other side of the door, a reasonable
jury could have concluded that Ingram acted "with that degree
of negligence which shows indifference to others as
constitutes an utter disregard of prudence amounting to a
complete neglect of the safety" of others. The trial court's
ruling to grant the motion to strike plaintiff's evidence was
based upon the issue of gross negligence, not proximate
causation. Viewed in the light most favorable to the
plaintiff and drawing all fair inferences from these facts,
the administrator presented sufficient evidence to constitute
a jury question on the issue of gross negligence.
3. Willful and Wanton Negligence – Punitive Damages
As we recently explained,
A claim for punitive damages at common law
in a personal injury action must be supported
by factual allegations sufficient to establish
14
that the defendant's conduct was willful or
wanton. Huffman v. Love, 245 Va. 311, 314, 427
S.E.2d 357, 359-60 (1993); Booth v. Robertson,
236 Va. 269, 273, 374 S.E.2d 1, 3 (1988); see
Alfonso v. Robinson, 257 Va. 540, 546-47, 514
S.E.2d 615, 619 (1999). Willful and wanton
negligence is action undertaken in conscious
disregard of another's rights, or with reckless
indifference to consequences with the defendant
aware, from his knowledge of existing
circumstances and conditions, that his conduct
probably would cause injury to another. Id. at
545, 514 S.E.2d at 618; Harris v. Harman, 253
Va. 336, 340-41, 486 S.E.2d 99, 101 (1997).
Each case raising an issue concerning the
sufficiency of a claim of willful and wanton
negligence must be evaluated on its own facts.
Alfonso, 257 Va. at 545, 514 S.E.2d at 618;
Harris, 253 Va. at 341, 486 S.E.2d at 102;
Huffman, 245 Va. at 315, 427 S.E.2d at 360.
Woods v. Mendez, 265 Va. 68, 76-77, 574 S.E.2d 263, 268
(2003).
The difference between ordinary negligence and gross
negligence is one of degree; however, the difference between
any form of negligence and causes of action for willful and
wanton conduct, reckless conduct, or intentional misconduct is
a matter of kind. Infant C. v. Boy Scouts of America, Inc.,
239 Va. 572, 582, 391 S.E.2d 322, 327 (1990). “Negligence
conveys the idea of heedlessness, inattention, inadvertence;
willfulness and wantonness convey the idea of purpose or
design, actual or constructive.” Boward v. Leftwich, 197 Va.
227, 231, 89 S.E.2d 32, 35 (1955). Additionally, in Infant C.
we explained the difference between willful and wanton conduct
15
and intentional misconduct where we stated: “An actor guilty
of intentional misconduct must intend to cause harm to another
. . . An actor guilty of willful and wanton conduct intends
his act, but not the resulting harm.” 239 Va. at 582, 391
S.E.2d at 328 (citation omitted). Ill will is not a necessary
element of willful and wanton negligence. Id. at 581, 391
S.E.2d at 327.
In this case, plaintiff has alleged willful and wanton
conduct in support of a claim for punitive damages.
Plaintiff’s proof requires evidence of “actual or constructive
consciousness that injury will result from the act done or
omitted.” Alfonso v. Robinson, 257 Va. 540, 545, 514 S.E.2d
615, 618 (1999). Upon review of the record in this case in
the light most favorable to the plaintiff, the trial court did
not err in striking the evidence with regard to the claim of
willful and wanton conduct. The same evidence that supports a
jury question on gross negligence does not necessarily support
a jury question on willful and wanton conduct. Harris v.
Harman, 253 Va. 336, 340-41, 486 S.E.2d 99, 101-02 (1997). On
the facts presented, we agree that no reasonable juror could
find that Ingram had actual or constructive knowledge that
Green was on the other side of the door. His training
required him to act as if there were people in the room, but
there is no evidence of actual or constructive knowledge on
16
Ingram's part that there were people in the room. The
plaintiff's evidence does not rise to the level where a
reasonable jury could find that Ingram had conscious awareness
of the danger, and probable consequences of his actions, and
recklessly decided to proceed notwithstanding that awareness.
B. Admissibility of Evidence
In her second assignment of error, the administrator
argues, "As a matter of law, the trial court was wrong to
conclude that evidence of heroin and guns was somehow relevant
and hence admissible, where such evidence was not discovered
until after the defendant police officer killed the
plaintiff's decedent." Because this evidence was offered in
support of the claims against Buckovich and he is no longer a
defendant in the case, we need not address this assignment of
error.
III. Conclusion
For the reasons stated, we hold that the trial court
erred in granting the motion to strike the plaintiff's
evidence as it applied to the claim of gross negligence.
However, the trial court did not err in granting the motion to
strike the plaintiff's evidence as it applied to willful and
wanton conduct and the request for punitive damages. We will
remand the case for a new trial on the issue of gross
negligence.
17
Affirmed in part,
reversed in part,
and remanded.
JUSTICE KINSER, with whom JUSTICE LACY and JUSTICE AGEE join,
concurring in part and dissenting in part.
I respectfully disagree with the majority’s holding that
the circuit court erred in granting the motion to strike the
plaintiff’s evidence with regard to the claim of gross
negligence. In my view, reasonable persons could not differ
upon the conclusion that Sergeant George J. Ingram did not act
with “utter disregard of prudence amounting to a complete
neglect of the safety of [another person.]” Ferguson v.
Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971); accord
Colby v. Boyden, 241 Va. 125, 133, 400 S.E.2d 184, 189 (1991).
Thus, the issue was a question of law for the circuit court.
Graddy v. Hatchett, 233 Va. 65, 69, 353 S.E.2d 741, 743
(1987).
Gross negligence is the “absence of slight diligence, or
the want of even scant care.” Town of Big Stone Gap v.
Johnson, 184 Va. 375, 378, 35 S.E.2d 71, 73 (1945); accord
Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688,
691 (1987). The thrust of the plaintiff’s argument as well as
the holding of the majority is that Sergeant Ingram was
grossly negligent because he fired four frangible rounds into
a location below the deadbolt lock, an area of the door
18
containing only wood, instead of firing only in the area
between the lock and the frame of the door, where the
latchbolt was situated. According to the plaintiff, this
method of firing the last four frangible rounds violated the
aiming rules requiring that shots be fired in a 45-degree
downward angle at the latchbolt between the lock and the
doorframe.
Sergeant Ingram, however, explained why, after he fired
the first shot and the door would not open, he then fired the
four subsequent rounds in a vertical pattern below the first
round: “The door hadn’t come open[], hadn’t swung open on the
first shot and how you work this is you shoot, you look, you
shoot, you look, working in a pattern to clear it where the
throw would be.” The angle of each shot was successively
steeper, with the fifth shot having the steepest angle. His
purpose was to “dislodge the dead bolt and anything that might
have jammed up getting that door open.”
The forensic pathologist who performed an autopsy on the
decedent’s body did not find any whole or intact frangible
rounds in her body. Instead, only fragments of a frangible
round were recovered on and in the decedent’s body, as well as
a gray powdery substance attributable to the frangible rounds.
Furthermore, the forensic pathologist testified that the
fragments that entered the decedent’s body followed a course
19
through the body from “front to back, right to left, and
downward.”
Based on these facts and the other evidence in the case,
viewed in the light most favorable to the plaintiff, I
conclude, as a matter of law, that Sergeant Ingram did indeed
exercise diligence and care for the safety of another person.
Stated differently, there was not the “absence of slight
diligence, or the want of even scant care.” Johnson, 184 Va.
at 378, 35 S.E.2d at 73. Sergeant Ingram fired the five
frangible rounds working downward in a vertical pattern in
order to clear the area where the latchbolt was located and to
dislodge the deadbolt and anything else that might be
preventing the door from opening. Firing in this manner was
consistent with Sergeant Ingram’s training. Even on the
plaintiff’s theory that frangible rounds are designed to
disintegrate into a powder solely upon impact with a metal
object, and that the metal latching mechanism of a door must
be the target of such rounds, the presence of only fragments
on and in the decedent’s body suggests that the rounds that
struck her also partially hit metal. Sergeant Ingram
acknowledged that he was trained to assume that someone might
be on the other side of the door, and in my view, he did not
act with “utter disregard of prudence amounting to complete
neglect of the safety” of such a person. Frazier, 234 Va. at
20
393, 362 S.E.2d at 691. The word “utter” means “[c]omplete;
absolute; total,” Black’s Law Dictionary 1582 (8th ed. 2004),
and the word “disregard” means “[t]he action of ignoring or
treating without proper respect or consideration.” Id. at
506. So, the phrase “utter disregard” means to ignore
completely or totally. In this case, fair-minded people could
not conclude from the evidence that Sergeant Ingram completely
ignored the safety of another as he fired the frangible
rounds.
For these reasons, I respectfully concur, in part, and
dissent, in part, and would affirm the judgment of the circuit
court.
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