[Cite as In re Estate of Hoppes, 2014-Ohio-5749.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
IN THE MATTER OF THE ESTATE OF: :
JERRY NORMAN HOPPES : CASE NO. CA2014-04-007
: OPINION
12/30/2014
:
:
APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
PROBATE DIVISION
Case No. 11 PE 00247
Bricker & Eckler LLP, Karen M. Moore, Sommer L. Sheely, Victoria A. Flinn, 100 South Third
Street, Columbus, Ohio 43215-4291, for appellee, Nancy A. Hoppes, Administrator of the
Estate of Jerry Norman Hoppes, deceased
Roetzel & Andress, LPA, Stephen D. Jones, Erica L. Haupt, 155 East Broad Street, 12th
Floor, Columbus, Ohio 43215, for Nancy A. Hoppes, individually
Kiger & Kiger, David V. Kiger, 132 South Main Street, Washington C.H., Ohio 43160, for
appellants, Kyle Hoppes & J. Scott Hoppes
HENDRICKSON, P.J.
{¶ 1} Appellants, Kyle Hoppes and J. Scott Hoppes, the surviving sons and heirs of
Jerry N. Hoppes (Jerry), appeal from the decisions of the Fayette County Court of Common
Pleas, Probate Division, denying their motion to remove their stepmother, appellee, Nancy
Hoppes (Nancy), as administrator of Jerry's estate and denying their request for additional
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findings of fact and conclusions of law with respect to the denial of their motion for removal.
For the reasons set forth below, judgment is affirmed in part, reversed in part, and the matter
remanded for further proceedings.
I. FACTS
{¶ 2} Jerry died intestate on October 14, 2011. At the time of his death, Jerry owned
a 463-acre farm. His wife of fourteen years, Nancy, did not own any portion of the farm.
Farm Credit Services of Mid-America had a mortgage on the farm. The mortgage secured a
promissory note in the amount of $686,000 in favor of Farm Credit Services of Mid-America
(the Farm Credit Note). The Farm Credit Note, executed in May 2009, was signed by both
Jerry and Nancy, and the proceeds of the note were used to pay off debts that Jerry and
Nancy had previously accumulated. The Farm Credit Note had not been paid in full at the
time of Jerry's death.
{¶ 3} Following Jerry's death, Nancy applied to be appointed administrator of his
estate. She was appointed administrator by the probate court on December 8, 2011.
Appellants challenged the appointment and filed their own application to administer Jerry's
estate. Specifically, appellants challenged Nancy's ability to serve as administrator given her
liability on the Farm Credit Note, which was secured by a mortgage on the farm—the largest
asset in Jerry's estate. Appellants contended that Nancy had a conflict in interest in serving
as administrator because she had asserted that she owed no sums on the Farm Credit Note
and that the debt should be allocated strictly to Jerry's estate.
{¶ 4} On December 27, 2011, the probate court issued an order vacating its
December 8, 2011 entry appointing Nancy as administrator. The probate court then held a
hearing on February 15, 2012 to consider the opposing applications to administer the estate
and permitted the parties to submit briefs in support of their respective applications.
Following receipt of the parties' briefs, the probate court issued an opinion appointing Nancy
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as the administrator of Jerry's estate. In the court's March 6, 2012 entry, the court noted it
had considered the "competing applications * * * testimony and memorandum of law" before
holding as follows:
The governing law is ORC 2133.06 which sets forth the order of
priority in appointing administrators for an intestate estate. The
statute gives priority to the surviving spouse unless the surviving
spouse is found to be unsuitable to act as administrator. In the
present case, the deceased [sic] two sons from a prior marriage
argue that they are better suited than their step-mother and
allege that their step-mother has a conflict of interest due to a
dispute over who is responsible for indebtedness created during
the marriage. The Court finds that the deceased's two sons have
the same conflict as their step-mother in regard to the division of
indebtedness.
{¶ 5} Thereafter, Nancy continued to perform her duties as administrator. In the
course of performing these duties, Nancy discovered that Jerry's personal property was
insufficient to pay his debts. Nancy, as the administrator of Jerry's estate, instituted a land
sale proceeding to sell the farm. See Nancy A. Hoppes, as Administrator of the Estate of
Jerry N. Hoppes, Deceased v. Nancy Hoppes, et al., Fayette C.P. No. 11PC00247(A) (July
11, 2012). Appellants filed an answer, counterclaim, and cross-claim. Appellants asserted
that Nancy, as a co-signor of the Farm Credit Note, owed the estate 100 percent of the debt
remaining on the Note and owed other sums to the estate on a debt she shared with Jerry
with respect to a credit card account. They also asserted that Nancy had a conflict of interest
in administering the estate given her individual interest in the estate conflicted with her duties
as administrator. Finally, appellants contended that as administrator, Nancy had incurred
attorney fees in defending herself individually against her obligations to pay the debts, and
that removal of Nancy as administrator was called for under such circumstances. In
response to appellants' assertions, Nancy claimed that she had determined that the estate
was 100 percent liable for the debts and that she was not personally liable for the Farm
Credit Note as she had signed it as an accommodation party. A trial on the complaint,
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counterclaim, and cross-claim was set for January 11, 2013.
{¶ 6} On January 10, 2013, appellants filed a motion seeking to have Nancy removed
as administrator. Within this motion, appellants again asserted Nancy had a conflict in
interest in administering Jerry's estate as she was individually liable on the Farm Credit Note.
They further alleged that Nancy had neglected her duties in the administration of the estate
as she continually failed to obtain and turn over financial records related to Jerry's estate and
the proceeds of the Farm Credit Note. Appellants claimed Nancy "sat on her hands" and
refused to collect all documents material to the administration of Jerry's estate.
{¶ 7} A bench trial was held on January 11, 2013. At this time, the parties stipulated
that it was necessary to sell the real estate to pay Jerry's debt. Evidence was then presented
on appellants' counterclaim and cross-claim to determine who was liable for the Farm Credit
Note and other debts. Following the bench trial, the court ordered that the farm be sold. The
court then issued a decision finding that the estate, as opposed to Nancy, was liable for the
majority of the debt under the Farm Credit Note. Specifically, the court held that with the
exception of a portion of the funds from the Farm Credit Note that were used to pay for a
fitness facility that Nancy and Jerry had jointly purchased earlier in their marriage, Nancy was
an accommodation party on the Farm Credit Note. The probate court found Nancy
individually responsible for 50 percent of the portion of the debt attributable to the fitness
facility (or $52,062.15), and found that Nancy was also individually responsible for one-half of
the attorney fees attributable to the fitness facility (or $661). The probate court did not rule
on appellants' requests to have Nancy removed as administrator.
{¶ 8} Appellants appealed the probate court's February 1, 2013 decision, raising two
assignments of error. See Hoppes v. Hoppes, 12th Dist. Fayette No. CA2013-03-006, 2014-
Ohio-447 (hereafter Hoppes I). First, appellants challenged the probate court's determination
that with the exception of that portion of the loan attributable to the fitness business, Nancy
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was otherwise an accommodation party to the $686,000 Farm Credit Note. Id. at ¶ 18.
Second, appellants challenged the probate court's failure to rule on their motion to have
Nancy removed as administrator. Id. at ¶ 34. This court ultimately affirmed in part, reversed
in part, and remanded the case back to the probate court. Id. at ¶ 40. With respect to the
Farm Credit Note, we found that probate court had properly determined that Nancy was an
accommodation party to the Note, subject to a few exceptions. See id. at ¶ 19-31. We
agreed with the probate court's determination that Nancy was individually liable for 50
percent of the portion of the debt attributable to the fitness facility and its related attorney
fees, and further found that Nancy was also individually liable for a debt attributable to a
vacation club time share that she co-owned with Jerry. Id. With respect to appellants'
argument that the court erred by failing to rule on their motion that Nancy be removed as
administrator, we determined that we lacked jurisdiction to address the issue. Id. at ¶ 38.
Specifically, we held:
[T]he removal of Nancy as administrator is a matter to be
determined within the context of Jerry's estate as opposed to the
trial of a civil action to determine if the estate's real property must
be sold to pay the estate's financial obligations. Although the
land sale proceeding is terminated, Jerry's estate is ongoing as it
has not been fully administered and is thus still open. Therefore,
the probate court retains its jurisdiction and the opportunity to rule
on appellants' motion to remove Nancy as administrator. As
such, there is no final appealable order with regard to the pending
motion to remove Nancy as administrator and this court is without
jurisdiction to address the issue further.
Id.
{¶ 9} On remand, the probate court found Nancy individually liable on the Farm
Credit Note for $17,779.96 for the vacation club time share. The court then issued a decision
on February 12, 2014 denying appellants' motion to remove Nancy as administrator of Jerry's
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estate "for the same reasons as set forth in the Court's Judgment Entry of March 6, 2012."1
Appellants filed a motion requesting findings of fact and conclusions of law for the denial of
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their motion. On April 9, 2014, the probate court denied their request, stating that "additional
findings of fact and conclusions of law were unnecessary as the Judgment Entry adopts the
findings and conclusions of law set forth in the Court's Judgment Entry of March 6, 2012."
Thereafter, on June 27, 2014, the probate court issued a Nunc Pro Tunc Judgment Entry
correcting its February 14, 2014 entry denying appellants' motion to remove Nancy as
administrator. The nunc pro tunc entry provided that the court "having considered the
multiple motions to remove Nancy Hoppes as Administrator * * * and the testimony presented
at the hearings held on February 15, 2012 and January 11, 2013, does hereby overrule said
motions for the same reasons as set forth in the Court's Judgment Entry of March 6, 2012."
{¶ 10} Appellants timely appealed from the probate court's denial of their January 10,
2013 motion for removal and from the court's denial of their motion for findings of fact and
conclusions of law, raising four assignments of error. For ease of discussion, we will address
appellants' assignments of error out of order.
II. ANALYSIS
{¶ 11} Assignment of Error No. 3:
{¶ 12} THE PROBATE COURT OF FAYETTE COUNTY, OHIO ERRED AS A
MATTER OF LAW AND ABUSED ITS DISCRETION WHEN IT IN ITS ENTRY FEBRUARY
12, 2014 [SIC] FAILED TO GIVE APPELLANTS A HEARING AND AN OPPORTUNITY TO
1. From the record, it appears as though the probate court treated appellants' January 10, 2013 motion to
remove Nancy as administrator, which had been filed in the land sale proceeding (Case No. 11PC00247(A)) as
though it had been properly filed in the case dealing with the administration of Jerry's estate (Case No.
11PE00247). For purposes of this appeal, we will also treat the motion as having been filed in Case No.
11PE00247.
2. The probate court's February 12, 2014 entry stated it was denying the "multiple motions" for removal filed
by appellants. However, a review of the record demonstrates that the only pending motion for removal was
the January 10, 2013 motion to remove Nancy as administrator.
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PRESENT RELEVANT EVIDENCE ADDRESSING THE ALLEGED CONFLICTS OF
INTEREST OCCURRING AFTER THE APPOINTMENT OF THE ADMINISTRATOR.
{¶ 13} In their third assignment of error, appellants contend the probate court erred by
failing to conduct a hearing on their January 10, 2013 motion to remove Nancy as
administrator. Appellants assert that they were denied the opportunity to present evidence
demonstrating that Nancy had a conflict of interest in administering Jerry's estate and that
she had failed to perform her duties as administrator.
{¶ 14} The administrator of a decedent's estate is a fiduciary, and R.C. 2109.24 and
R.C. 2113.18 provide the statutory basis for the removal of a fiduciary. Hoppes I, 2014-Ohio-
447 at ¶ 36, citing In re Estate of Phelps, 7th Dist. Jefferson No. 05 JE 19, 2006-Ohio-890, ¶
13. R.C. 2113.18(A) provides that "[t]he probate court may remove any executor or
administrator if there are unsettled claims existing between the executor or administrator and
the estate that the court thinks may be the subject of controversy or litigation between the
executor or administrator and the estate or persons interested in the estate." Furthermore,
pursuant to R.C. 2109.24, a court "may remove any fiduciary, after giving the fiduciary not
less than ten days' notice, for habitual drunkenness, neglect of duty, incompetency, or
fraudulent conduct, because the interest of the property, testamentary trust, or estate that the
fiduciary is responsible for administering demands it, or for any other cause authorized by
law."
{¶ 15} R.C. 2109.24 requires that a fiduciary be given ten days' notice before removal
is allowed. "Courts have held that the requirement of the ten days' notice implies that the
fiduciary is entitled to a hearing and that it is error for a court to deny a fiduciary the
opportunity to present evidence and witnesses in defense of a motion for removal." In re
Wiethe v. Beaty, 12th Dist. Warren CA99-09-111, 2000 WL 1725380, *5 (Nov. 20, 2000),
citing In re Estate of Paull, 90 Ohio App. 403, 408 (8th Dist.1950). However, the purpose of
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a hearing is to allow the fiduciary to respond to the motion for removal and to present
evidence in his defense. Id. When the individual seeking a hearing is not the fiduciary, but
rather the person seeking removal of the fiduciary, a trial court is not required to hold a
hearing. See id. ("While a fiduciary has a right to defend his removal, we find that the trial
court is not required to hold a hearing if it determines removal of the fiduciary is not
warranted by the motion"). The court may deny the motion for removal without a hearing
where the motion and documentary evidence presented demonstrate that removal is
unwarranted. Id.; see also In re Trust Estate of CNZ Trust, 9th Dist. Lorain No. 06CA008940,
2007-Ohio-2265, ¶ 18-20.
{¶ 16} We find that the probate court did not abuse its discretion by electing to not
hold a hearing on appellants' motion for removal. Pursuant to this court's holding in Beaty,
the probate court was not required to hold a hearing as Nancy, the fiduciary, did not request
a hearing and the court had before it sufficient evidence to rule on the motion. Beaty, 2000
WL 1725380 at *5.
{¶ 17} Here, appellants' sought removal of Nancy within their counterclaim and by
filing the January 10, 2013 motion for removal. The reasons for removal set forth in
appellants' January 10, 2013 motion were nearly identical to the allegations and assertions
set forth in appellants' counterclaim against Nancy—both the counterclaim and the motion
asserted Nancy had a conflict in interest in administering the estate given her position that
she was an accommodation party to the Farm Credit Note. The January 10, 2013 motion,
however, contained additional allegations that Nancy had failed to obtain and provide
appellants financial records relating to Jerry's estate and the distribution of the proceeds of
the Farm Credit Note. When the bench trial on appellants' counterclaim was held on January
11, 2013, the probate court heard testimony and argument relevant to both the allegations
set forth in appellants' counterclaim and the allegations set forth in the January 10, 2013
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motion for removal. Specifically, in determining whether Nancy was an accommodation party
to the Farm Credit Note, the court heard testimony and argument regarding whether Nancy's
position conflicted with the administration of Jerry's estate. Furthermore, the court also heard
evidence and argument regarding Nancy's alleged failure to diligently pursue financial
records related to the estate and the proceeds of the Farm Credit Note. For instance,
appellants' attorney argued the following to the court:
And so we have again been struggling on behalf of the heirs of
the estate to understand why [Nancy] doesn't go out and find out
what was charged on the Bank of America. Why she doesn't find
out what was charged in Chase. Why she doesn't go out and get
a complete picture of the Merchant's Bank loans. Why she
doesn't get the checking account records for Jerry Hoppes to see
exactly how the money was spent. * * * We feel that Nancy
Hoppes as administrator had a duty to go out, if she'd [sic] going
to say to Kyle and Scott I'm sorry you're not you, as two thirds
heir of the estate are going to bear my portion of the debt which I
signed, here's a complete picture of why [sic]. Okay I think the
testimony today is, is relatively clear that Nancy didn't go out and
search for the documents.
{¶ 18} We find that given the arguments and evidence the probate court had before it
at the time it ruled on the January 10, 2013 motion for removal, which included the testimony
and evidence from the July 11, 2013 bench trial, the court had before it sufficient evidence to
determine that an additional evidentiary hearing was unnecessary. Accordingly, under the
facts of this case, we conclude that the probate court did not abuse its discretion in ruling on
the motion to remove Nancy as administrator without holding an additional evidentiary
hearing.
{¶ 19} Appellants' third assignment of error is, therefore, overruled.
{¶ 20} Assignment of Error No. 4:
{¶ 21} THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION WHEN IT FAILED AND REFUSED TO MAKE FINDINGS OF FACT AND
CONCLUSIONS OF LAW TO SUPPORT ITS ENTRY OF APRIL 9, 2014 AND FAILED TO
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GIVE APPELLANTS AN OPPORTUNITY PURSUANT TO CIVIL RULE 52 TO SUBMITS
[SIC] THEIR OWN FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR THE
COURT'S CONSIDERATION.
{¶ 22} In their fourth assignment of error, appellants contend the probate court erred
when it denied their request for findings of fact and conclusions of law with respect to the
court's February 12, 2014 entry denying their motion to have Nancy removed as
administrator of the estate. Appellants assert that the probate court was required, pursuant
to Civ.R. 52, to make such findings and the failure to do so resulted in reversible error.
Nancy, however, contends that the probate court was not required to make additional
findings of fact and conclusions of law as the court provided its basis for the denial of the
motion for removal when it "re-incorporat[ed] [the] reasons set forth in its March 6, 2012
Judgment Entry."
{¶ 23} Civ.R. 52 provides, in relevant part, as follows:
When questions of fact are tried by the court without a jury,
judgment may be general for the prevailing party unless one of
the parties in writing requests otherwise before the entry of
judgment pursuant to Civ. R. 58, or not later than seven days
after the party filing the request has been given notice of the
court's announcement of its decision, whichever is later, in which
case, the court shall state in writing the conclusions of fact found
separately from the conclusions of law.
When a request for findings of fact and conclusions of law is
made, the court, in its discretion, may require any or all of the
parties to submit proposed findings of fact and conclusions of
law; however, only those findings of fact and conclusions of law
made by the court shall form part of the record.
{¶ 24} The Ohio Supreme Court has held that when questions of fact are tried to a
court without the intervention of a jury, the trial court has a mandatory duty under Civ.R. 52 to
issue findings of fact and conclusions of law when a party makes a timely request. Katko v.
Bauer, 12th Dist. Clermont No. CA2001-10-082, 2002-Ohio-4127, ¶ 14, citing State ex rel.
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Papp v. James, 69 Ohio St.3d 373, 377 (1994). "The purpose of [Civ.R. 52] is therefore
clear: to aid the appellate court in reviewing the record and determining the validity of the
basis of the trial court's judgment." Werden v. Crawford, 70 Ohio St.2d 122, 124 (1982).
"Generally, * * * the findings and conclusions must articulate an adequate basis upon which a
party can mount a challenge to, and the appellate court can make a determination as to the
propriety of, resolved disputed issues of fact and the trial court's application of the law."
Kroeger v. Ryder, 86 Ohio App.3d 438, 442 (6th Dist.1993).
{¶ 25} Here, appellants timely moved for findings of fact and conclusions of law.3 The
probate court, rather than issuing findings of fact and conclusions of law, denied appellants'
motion on the basis that "additional findings of fact and conclusions of law [were]
unnecessary as the Judgment Entry adopts the findings and conclusions of law set forth in
the Court's Judgment Entry of March 6, 2012." The court's March 6, 2012 Judgment Entry,
however, merely appointed Nancy as administrator of Jerry's estate following a discussion of
R.C. 2113.06 and the statute's preference for appointing the surviving spouse of the
deceased as administrator unless the surviving spouse is unsuitable. The March 6, 2012
entry does not discuss, or even mention, either of the statutes governing the removal of a
fiduciary, R.C. 2109.24 and R.C. 2113.18; nor does the March 6, 2012 entry address the
asserted shortcomings in Nancy's administration of the estate. The court, therefore, could
not have relied on the findings set forth in the March 6, 2012 entry as the basis for its denial
of appellants' January 10, 2013 motion for removal as the March 6, 2012 entry focused on an
inapplicable statute.
{¶ 26} The court's February 12, 2014 entry denying appellants' motion for removal is
3. The probate court rendered its decision denying the motion to remove on February 12, 2014. The court's
decision was sent to appellants by regular mail on February 14, 2014. Appellants timely filed their motion for
finding of facts and conclusions of law on February 24, 2014. See Civ.R. 52 and Civ.R. 6(D).
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general in nature. The court's failure to provide findings of fact or conclusions of law
prevents us from making a determination as to the propriety of its decision. See Gaillard v.
Gill Constr. Co., 6th Dist. Ottawa No. OT-11-029, 2012-Ohio-4992, ¶ 18-20; In re Estate of
Lilley, 12th Dist. Warren Nos. CA2005-08-091, CA2005-08-092, CA2005-08-095, and
CA2005-08-096, 2006-Ohio-5510, ¶ 6-7.
{¶ 27} Accordingly, for the reasons set forth above, we find that the probate court
erred by failing to make findings of fact and conclusions of law as required by Civ.R. 52.
Appellants' fourth assignment of error is, therefore, sustained. Judgment is reversed and the
matter is remanded to the probate court with instructions to make written findings of fact and
conclusions of law and to enter judgment consistent with those findings of fact and
conclusions of law.
{¶ 28} Assignment of Error No. 1:
{¶ 29} THE PROBATE COURT OF FAYETTE COUNTY, OHIO, COMMITTED
PREJUDICIAL ERROR AS A MATTER OF LAW WHEN IT DENIED APPELLANTS' MOTION
TO REMOVE NANCY A. HOPPES AS ADMINISTRATOR OF THE DECEDENT JERRY N.
HOPPES, WHEN AS A SURVIVING SPOUSE SHE ASSERTED A CLAIM FOR HERSELF
AS ADMINISTRATOR, THAT AS A SPOUSE SHE WAS ONLY AN ACCOMMODATION
MAKER ON A PROMISSORY NOTE AND MORTGAGE OF $600,000 TO FARM CREDIT
OF MID-AMERICA, ATTEMPTING TO SHIFT THE BURDEN OF DEBT FROM HERSELF
TO THE ESTATE, THUS CREATING AN UNSETTLED CLAIM BETWEEN HERSELF AND
THE ESTATE.
{¶ 30} Assignment of Error No. 2:
{¶ 31} THE PROBATE COURT OF FAYETTE COUNTY, OHIO COMMITTED
PREJUDICIAL ERROR AS A MATTER OF LAW WHEN IT DENIED APPELLANTS [SIC]
MOTION TO REMOVE NANCY A. HOPPES AS ADMINISTRATOR OF THE ESTATE OF
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JERRY N. HOPPES, WHEN AS SURVIVING SPOUSE AND AS ADMINISTRATOR SHE
USED ESTATE FUNDS TO SUPPORT HER CLAIM AS A SPOUSE TO BE AN
ACCOMMODATION MAKER TO A NOTE TO FARM CREDIT MID-AMERICA, WHICH WAS
IN DIRECT CONFLICT TO THE BEST INTEREST OF THE ESTATE AND IN DIRECT
CONFLICT WITH HER DUTIES AS ADMINISTRATOR OF HER DECEASED HUSBAND'S
ESTATE AND THE HEIRS OF THE ESTATE.
{¶ 32} In their first and second assignments of error, appellants challenge the denial of
their January 10, 2013 motion to have Nancy removed as administrator. In light of our
disposition of appellants' fourth assignment of error, we find appellants' first and second
assignments of error to be rendered moot.
III. CONCLUSION
{¶ 33} Judgment affirmed in part, reversed in part, and the cause remanded for further
proceedings consistent with this opinion.
PIPER and M. POWELL, JJ., concur.
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