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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Williams v. Williams (01/20/2006) sp-5973

Williams v. Williams (01/20/2006) sp-5973, 129 P3d 428

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

CHRISTINE M. WILLIAMS, )
) Supreme Court No. S- 11499
Appellant, )
) Superior Court No.
v. ) 3VA-03-00014 CI
)
JAMES MICHAEL WILLIAMS ) O P I N I O N
and CONNIE BALLOW, f/k/a )
CONNIE HARRISON, ) [No. 5973 - January 20, 2006]
)
Appellees. )
)


          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Valdez,
          Joel H. Bolger, Judge.

          Appearances:  Michael W. Flanigan, Walther  &
          Flanigan, Anchorage, for Appellant.   Randall
          E.   Farleigh,  Choquette  &  Farleigh,  LLC,
          Anchorage, for Appellees.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          FABE, Justice.

I.   INTRODUCTION
          Seventeen  years after her fathers death, one  of  four
siblings  challenges  an inter vivos transfer  of  stock  in  the
family  business  from her father to two of her  siblings.   This
transfer   was  made  shortly  before  her  fathers   death   and
effectively  removed  the stock from his estate.   The  case  was
dismissed  on  statute  of  limitations  grounds.   The  daughter
Christina  appeals, arguing that (1) her suit was timely  because
the  statutes  of  limitations for her claims  should  have  been
tolled under the doctrine of equitable estoppel; and (2) her suit
was  timely under the statutory fraud discovery provision  of  AS
13.06.030.   We  hold that the suit was untimely and  affirm  the
judgment of the superior court.
II.  FACTS AND PROCEEDINGS
          James  Victor  Pete Williams married Patricia  Williams
and  had  four children:  Connie, James Michael Mike,  Haze,  and
Christine.   Pete executed a will in 1970 leaving his  estate  to
Patricia,  and  in  her  absence to his four  children  in  equal
shares.  In 1971 Pete and Patricia moved to Valdez.  A few  years
later  Pete built and began operating the Totem Inn, a hotel  and
restaurant  in  Valdez.   Pete  and Patricia  divorced  in  1978.
Following  the divorce, Mike and Connie remained in Alaska  while
Haze and Christine moved out of state with Patricia.  At the time
of  the divorce, Pete held all the shares of stock issued in  the
Totem Inn.
          In  1982  Pete discussed with his attorney transferring
his stock in the Totem Inn to Mike and Connie, but did not do so.
In  1983  he discussed gifting $10,000 worth of stock to each  of
his four children in equal shares.  Pete and Connie (as corporate
secretary) signed four stock certificates in December  1983  with
the  names  of  each of the four children but without  the  stock
share amounts.  The shares were never transferred.  By 1984  Pete
was  living in Florida and the day-to-day business of  the  Totem
Inn was conducted by Mike and Connie.
          In  1984  and  1985  Pete discussed  using  an  annuity
agreement to transfer his Totem Inn stock free of gift tax and to
remove  the  corporation from the estate.   The  parties  dispute
whether Pete made a final decision on how to allocate the  stock,
but  the  superior  court found that Pete eventually  decided  to
transfer all of his shares in Totem Inn, Inc. to Mike and  Connie
in  return  for  a  monthly annuity payment  based  on  his  life
expectancy in order to avoid federal estate taxes.  The  superior
court  further found that Pete asked his attorney to  prepare  an
annuity agreement and a new will, and originally intended to  fly
to  Anchorage to sign the documents, but he did not take the trip
because he was diagnosed with cancer in early January 1986.
          On  January  18, 1986, Connie traveled  to  Florida  to
visit  her father and brought with her the stock certificate  and
annuity  agreement.  On January 20 Pete signed the transfer  form
on  the  back  of the stock certificate.  The form was  otherwise
blank  and  did  not include the names of the  transferees.   The
superior  court found that Pete also signed the annuity agreement
on  January 20, despite Christines allegation that the  signature
was forged.
          Pete  died  on  February  2,  1986.   Mike,  Haze,  and
Christine arrived in Florida after Petes death.  On the advice of
one  of  the family attorneys, Mike signed the annuity  agreement
even  though  Pete was already dead.  Connie later  returned  the
stock  certificate  and  the  signed  annuity  agreement  to  the
attorney,  who transferred Petes shares to Mike and Connie  using
two  of  the four stock certificates that were created and signed
in 1983.
          While  in  Florida, soon after Petes  death,  Christine
asked  Connie if Pete had a will.  Christine alleges that  Connie
told her that Pete had not made a will; Connie maintains that she
told  her sister it was an inappropriate time to discuss it,  and
told  her  that she did not know if there was a will.   Christine
further  alleges that Mike and Connie never told  her  about  the
annuity  agreement or the stock transfer.  Connie told  Christine
that it was Petes dying wish that all of his children work at the
Totem  Inn  and  get an equal share, and promised that  Christine
would  receive  an  ownership interest in the Totem  Inn  if  she
worked there.
          After  Petes  death, Haze worked at the Totem  Inn  for
several  years  and  was given a one-third  share  of  the  Inn.1
Christine was seventeen and still in high school at the  time  of
her fathers death in 1986.  She returned to Valdez to work at the
Totem Inn for brief periods in 1987 and 1989.  For the next  nine
years  she  pursued intermittent periods of higher education  and
other employment opportunities.
          Mike hired a Florida attorney several years after Petes
death to probate the estate, which included the property on which
Pete  had  been  living  when he died.   The  inter  vivos  stock
transfer  was  not  included as part of  the  estate.   Mike  was
appointed  personal  representative  of  Petes  estate  in  1992.
Christine  alleges that she did not receive a copy of Petes  will
during the Florida probate proceedings.  But the probate attorney
testified that it was his normal practice to mail copies  of  the
will  to  the  heirs.   In  1995 Christine  executed  a  document
acknowledging her receipt of one-fourth of the entire estate  and
consenting to discharge Mike as personal representative.
          In  1998  Christine returned to Valdez to work  at  the
Totem Inn, but was told by her siblings that it was now too  late
for her to expect to receive shares of the Inn.  Christine worked
intermittently as an employee of the Totem Inn from 1998 to 2001.
          In  March  2003 Christine filed suit against  Mike  and
Connie  for  fraud.   She later amended her complaint,  alleging,
inter  alia,  undue influence, false and fraudulent misstatements
to  Pete, lack of mental competence, lack of consideration, false
and  fraudulent  misrepresentations, fraudulent concealment,  and
breach  of fiduciary duty.  In August 2003 Mike and Connie  moved
for  summary judgment on the basis of the statute of limitations.
The superior court denied this motion in January 2004, concluding
that  an evidentiary hearing was necessary to resolve the factual
issues   involved   in  the  application  of  the   statutes   of
limitations.
          In March 2004, after a two-day evidentiary hearing, the
superior   court   granted  summary  judgment,  concluding   that
Christine did not commence suit within the applicable statutes of
limitations.   The court issued findings of fact and  conclusions
of law, as well as a final judgment for the defendants dismissing
the complaint with prejudice in April 2004.  Christine appeals.
III. DISCUSSION
          Christines   complaint   includes   claims   of   undue
influence,  lack  of  mental competence, lack  of  consideration,
fraudulent  misrepresentations, and  breach  of  fiduciary  duty.
          Christine argues that the superior courts finding that her
lawsuit  was  untimely was erroneous because (1) the statutes  of
limitations  for  her claims should have been  tolled  under  the
doctrine of equitable estoppel; and (2) her suit was timely under
the statutory fraud discovery provision of AS 13.06.030.2
          The   parties  do  not  agree  on  which  statutes   of
limitations   apply.   Christine  argues  that   a   variety   of
limitations statutes apply, ranging from two to six years.   Mike
and Connie argue that the gravamen of Christines complaint is  an
action to recover fraudulently obtained personal property, namely
her  share in the Totem Inn, and therefore that the two-year tort
statute  applicable  to  claims accruing  after  August  7,  1997
applies.3   But  the  parties disagreement  over  the  applicable
statutes of limitations does not affect the outcome of this case.
Even if the equitable estoppel doctrine applies, Christine should
have  discovered the grounds for her claim more  than  six  years
before she filed suit.
     A.   Standard of Review
          In  this  case, the superior court held an  evidentiary
hearing  because resolution of the statute of limitations  issues
was  dependent on factual questions.4  We review findings of fact
under  the  clearly erroneous standard.5  Questions  of  law  are
reviewed de novo.6
     B.   The Trial Courts Evidentiary Hearing
          As  we concluded in Johns Heating Service v. Lamb, when
the  date  on  which  the statute of limitations  begins  to  run
presents a factual question, it ordinarily should not be resolved
as  a  matter  of  law.7  In Johns, we noted that  this  question
should usually be resolved at a preliminary hearing in advance of
trial.8   The  superior court in the present case  properly  held
such  a  hearing upon determining that genuine issues of material
fact were raised on the question whether the various statutes  of
limitations  had run.  But we also recognize that addressing  the
substantive  merits  of a case in such a preliminary  evidentiary
hearing  can  create  considerable tension  with  the  procedural
rights  to which parties are entitled, including the right  to  a
jury trial.9  In this case, the superior court found it necessary
to  reach  the underlying question of fraud in order  to  resolve
Christines  statutory tolling argument.  But the  superior  court
also  reached a number of alternative conclusions on the  various
claims,  determining that even if the facts were  as  alleged  by
Christine, the statute of limitations would still have  run  well
prior  to the filing of her lawsuit.  Because Christine  did  not
object  to the procedure used by the superior court, we need  not
address the question whether the superior court properly held  an
evidentiary  hearing reaching the merits of the underlying  claim
here.
     C.   Equitable Estoppel
          Christine  argues  that her delay in  filing  suit  was
caused  by her reliance on misrepresentations by Mike and  Connie
about  the  existence  and  content of their  fathers  will,  the
existence  of  and circumstances surrounding the stock  transfer,
and  their allegedly false statement that, in keeping with  their
fathers  testamentary intent, Christine would be given  an  equal
          share in the Totem Inn if she worked at the Inn for  an
unspecified time. Christine argues that her suit was timely under
the doctrine of equitable estoppel.
          A  party who fraudulently conceals from a plaintiff the
existence  of  a  cause of action may be estopped  to  plead  the
statute  of  limitation if the plaintiffs delay in bringing  suit
was   occasioned   by  reliance  on  the  false   or   fraudulent
representation.10  To establish equitable estoppel, the plaintiff
must  show  (1) fraudulent conduct, which may take  the  form  of
either  an affirmative misrepresentation or a failure to disclose
facts  where there is a duty to do so; (2) justifiable  reliance;
and (3) damage.11  Plaintiffs cannot invoke estoppel unless [they
have]  exercised  due  diligence in  attempting  to  uncover  the
concealed facts.12  In Palmer, this court stated:
          In   the   context   of  alleged   fraudulent
          concealment, whether in the form of an action
          for  deceit or in the context of a claim  for
          equitable   estoppel,   the   due   diligence
          requirement involves a determination of  when
          the plaintiff discovered or reasonably should
          have  discovered the fact that evidence of  a
          potential   cause   of   action   had    been
          fraudulently  concealed. .  .  .   [A]  party
          should  be  charged  with  knowledge  of  the
          fraudulent  misrepresentation or  concealment
          only  when  it  would be utterly unreasonable
          for   the  party  not  to  be  aware  of  the
          deception.[13]
          
          1.   Concealment of the 1970 will
          Christines  estoppel claim is based  on  three  alleged
misrepresentations and acts of concealment.  First,  she  alleges
that  Mike and Connie concealed the existence and content of  the
1970 will.  Christine points in particular to a conversation  she
had with Connie soon after their fathers death that led Christine
to  believe  that  her father had not made  a  will.   Christines
argument  appears  to  be that if she had  known  that  the  will
provided for each sibling to be treated equally,14 she would  not
have accepted Mike and Connies ownership of the Totem Inn and the
requirement  that she work at the Inn to receive  a  share.   The
superior  court found that neither Mike nor Connie  concealed  or
misrepresented  Petes 1970 will.  The superior court  also  found
that  [t]he  representation which Christine alleges was  made  by
Connie to her on the day of her fathers death, to the effect that
Pete left no will, was not made; rather, Connie told her that  it
was not the time to make such an inquiry.
          There  is substantial evidence in the record to support
these  findings.   There  was  conflicting  testimony  about  the
substance of the conversation between Connie and Christine  after
their  fathers death.  The superior court did not clearly err  in
making a credibility determination by accepting Connies assertion
that  she was unaware of the will at the time of the conversation
and  that she did not tell Christine definitively that there  was
no  will.   Christine testified that after that conversation  she
          did not ask Mike or Connie about a will.  Christine alleges that
she did not receive a copy of the will during the Florida probate
proceedings   and   seems  to  suggest  that   this   constitutes
concealment  by  Mike because as personal representative  of  the
estate he had a duty to give her a copy.  But the estate attorney
stated in his deposition that it was his normal practice to  mail
copies of the will to the heirs and that although he did not have
a  copy of the correspondence  and was not required under Florida
law  to file proof of this mailing  he was almost certain that  I
mailed  it to the four [siblings].  There is no evidence  in  the
record  suggesting that Mike concealed the contents of  the  will
from Christine during the probate proceedings.
          Even  assuming  that  Mike  and  Connie  concealed   or
misrepresented the will, Christine should have known in 1995 when
she received one-fourth of the estate through the Florida probate
process  and  executed a consent to discharge  Mike  as  personal
representative  of the estate that the will existed,  that  under
the  probate  proceedings  she received  a  share  equal  to  her
siblings,  and that the Totem Inn was not a part of the  probated
estate.   For  this reason, the superior court  did  not  err  in
holding that it was unreasonable for Christine to delay making an
inquiry or filing suit challenging the ownership of the Totem Inn
based  on  the will after she had concluded her participation  in
the  probate process.  If Christine should have been aware of any
concealment  or  misrepresentation concerning  the  existence  or
content  of the will in 1995, her suit filed in March 2003  would
be  untimely  even  if,  as she claims,  a  six-year  statute  of
limitations is applicable.
          2.   Concealment of the stock transfer
          Christine  also argues that equitable estoppel  applies
because  Mike and Connie concealed the stock transfer  that  gave
them ownership of the Totem Inn and the details of that transfer.
The  superior  court  held  that Mike had  no  duty  as  personal
representative  of  the estate to disclose  the  stock  transfer.
Even assuming that he did have such a duty, Christine should have
known  by  1995  that  she had received an  equal  share  of  the
probated estate and that the Totem Inn was not included  in  that
estate.   At that point Christine should have inquired about  the
legal  basis  for Mike and Connies ownership of  the  Totem  Inn.
Christine did not exercise the due diligence required to maintain
an  equitable estoppel claim based on the alleged concealment  of
the stock transfer.15
          3.   Misrepresentations about Christines share  of  the
               Totem Inn
          Finally,   Christine  argues  that  equitable  estoppel
applies  because of alleged misrepresentations made by  Mike  and
Connie that she would be given an equal share of the Totem Inn if
she worked for an unspecified time in the business.  The superior
court  found  that  the statements by Mike and Connie  that  they
would  give  Christine an equal share of the  Totem  Inn  if  she
worked  for a substantial period of time were true and  therefore
not misrepresentations.  This finding is supported by the record.
Christine   acknowledges  that  she  worked  at  the  Totem   Inn
intermittently, with no continuous period of employment  of  more
          than eight months.  Mike and Connie did give Haze, the fourth
sibling,  an  equal share of the Totem Inn after  he  had  worked
there for several years.  And from her own testimony, it is clear
that Christine understood that the promise that she would receive
shares  if  she  worked at the Inn represented Mike  and  Connies
attempt  to  implement  their  fathers  last  wishes  as   orally
communicated to them, not a legal arrangement arising from a will
or other document.
          Christine  also  alleges that Mike and Connie  did  not
inform her that there was a time limit on when she could work  at
the  Totem Inn and redeem her shares, and she claims to have been
under   the impression that this option would always be  open  to
her.   To  the  extent that Christines claim can be viewed  as  a
breach  of contract action based on the oral promise, that  claim
is  time-barred.  She was informed in 1998 by Mike,  Connie,  and
Haze that it was too late for her to expect to receive shares  if
she  worked at the Inn.  The statute of limitations for  contract
actions accruing on or after August 7, 1997 is three years.16  Any
contract  claim in Christines  2003 complaint based on  Mike  and
Connies breach of their promise in 1998 is untimely.
          We  therefore hold that the superior court did not  err
in  concluding that equitable estoppel does not apply to toll the
statute of limitations for Christines claims.
     D.   Statutory Fraud Tolling Provision
          Christine also argues that her suit is timely under the
statutory fraud tolling provision in AS 13.06.030.  This  statute
provides that where fraud has been perpetrated in connection with
a  probate proceeding, any claim against the perpetrator  of  the
fraud must be brought within two years after the discovery of the
fraud.17  Unlike the doctrine of equitable estoppel, AS 13.06.030
does  not include a due diligence requirement.  Christine  argues
that  the  inter vivos stock transfer was carried out  illegally,
pointing  to the unusual circumstances surrounding the  transfer:
the  transfer occurred just days before Petes death  and  in  the
presence of Connie, one of the beneficiaries of the transfer; the
back  of  the stock certificate that Pete signed did not  include
the  names  of the beneficiaries, which were later added  by  his
attorneys;  and  Mike  did not sign the annuity  agreement  until
after  Petes death.  She argues that not including the Totem  Inn
stock  as  part  of  the  probated estate  constituted  fraud  in
connection  with the probate proceeding.  She contends  that  she
did  not  learn  of the alleged fraud until after she  filed  the
complaint  in  this  case, and that her complaint  was  therefore
timely under AS 13.06.030.
          The  superior courts order appears to have resolved the
factual  questions regarding whether the transfer was  fraudulent
in  favor of the defendants.18  The court found that Pete decided
to transfer all his shares in the Totem Inn to Mike and Connie in
return  for  a monthly annuity payment from them, which  suggests
that  even  though Pete signed blank forms he was  not  defrauded
since  they  were later filled out according to his instructions.
The  superior  court  also found that Mike  and  Connie  did  not
conceal the annuity agreement that transferred the Totem  Inn  to
them  and stated that it [found] no fraud, misrepresentation,  or
          inadequate disclosure related to settlement of Petes Florida
estate  by Mike.  Christine did not provide evidence to challenge
that finding as clearly erroneous.
          Furthermore, Pete transferred the stock legally  before
his  death.  Since the superior court found that the transfer was
consistent  with Petes wishes and his prior instructions  to  his
attorneys,  Pete  was  not  defrauded.   And  under  Alaska  law,
endorsing a stock certificate in blank and delivering it  to  the
transferee is sufficient to effect the transfer.  Alaska  Statute
45.01.201  defines  a purchaser to include  a  person  who  takes
through  a  sale,  gift, or other voluntary transaction.   Alaska
Statute  45.08.304 provides that an endorsement may  be  made  in
blank,  and that such an endorsement constitutes a transfer  upon
delivery.   Under  AS 45.08.301, delivery to a  purchaser  occurs
when   the   purchaser  acquires  possession  of   the   security
certificate.   Under  AS 45.08.206, [if] a  security  certificate
contains the signatures necessary to its issue or transfer but is
incomplete in another respect . . . a person may complete  it  by
filling  in  the blanks as authorized.19  Thus, by endorsing  the
certificate  in  blank and giving it to Connie, Pete  effectively
transferred the stock.20
          Christine  points  out  that  properly  executed  stock
transfers  made  as a result of fraud or undue influence  can  be
found  invalid.  But here the superior court found that the stock
transfer was consistent with Petes wishes; the potential fraud at
issue  here  involves  the  manner  in  which  the  transfer  was
accomplished, not whether Pete was fraudulently induced  to  make
the  transfer.  If Petes endorsement on the stock certificate was
sufficient  to  transfer  the  stock,  that  stock  was  properly
excluded  from the estate probated in Florida.  For that  reason,
the  Totem  Inn was not part of Petes estate at the time  of  his
death,  and no fraud was committed in connection with the  estate
as  required  for tolling under AS 13.06.030.  We therefore  hold
that  the  tolling exception in AS 13.06.030 does  not  apply  to
Christines claims.
IV.  CONCLUSION
          For the reasons set forth above, we AFFIRM the judgment
of the superior court.
_______________________________
     1     Haze  subsequently sold his shares back  to  Mike  and
Connie.

     2     Christine also takes issue with a number of the courts
factual findings.

     3      AS  09.10.070(a)(3).   Actions  to  recover  personal
property that accrued before the 1997 amendments are subject to a
six-year statute of limitations.  Id.

     4     See  Johns Heating Serv. v. Lamb, 46 P.3d  1024,  1033
n.28  (Alaska 2002) (noting that the judge acts as factfinder  in
determining   the  applicability  of  statute  of   limitations);
Pedersen v. Zielski, 822 P.2d 903, 907 n.4, 908 (Alaska 1991).

     5    See Johns Heating Serv., 46 P.3d at 1033.

     6    Lawson v. Lawson, 108 P.3d 883, 885 (Alaska 2005).

     7    46 P.3d at 1031.

     8    Id. at 1033 n.28.

     9    See Alaska Const. art. I,  16 (In civil cases where the
amount  in  controversy exceeds two hundred  fifty  dollars,  the
right  of  trial  by a jury of twelve is preserved  to  the  same
extent as it existed at common law.).

     10     Palmer  v.  Borg-Warner Corp., 838  P.2d  1243,  1247
(Alaska 1992).

     11     Waage v. Cutter Biological Div. of Miles Labs., Inc.,
926 P.2d 1145, 1149 n.7 (Alaska 1996).

     12    Id. at 1151 (quoting Palmer, 838 P.2d at 1250).

     13    Palmer, 838 P.2d at 1251.

     14     The  will, which was made before Petes divorce,  left
everything to his wife, and secondarily to his children in  equal
shares.

     15    See Waage, 926 P.2d at 1149 (Once a plaintiff discovers
or reasonably should discover that evidence has been fraudulently
concealed,  [the  plaintiff]  risks  losing  the  protection   of
equitable estoppel unless [the plaintiff] takes timely action.).

     16    AS 09.10.053; ch. 26,  4, 55, SLA 1997.

     17    AS 13.06.030 provides:

          Whenever   fraud  has  been  perpetrated   in
          connection  with  any proceeding  or  in  any
          statement filed under AS 13.06  AS  13.36  or
          if  fraud is used to avoid or circumvent  the
          provisions or purposes of AS 13.06  AS 13.36,
          any   person   injured  thereby  may   obtain
          appropriate relief against the perpetrator of
          the  fraud  or  restitution from  any  person
          (other    than   a   bona   fide   purchaser)
          benefitting from the fraud, whether  innocent
          or  not.   Any  proceeding must be  commenced
          within  two years after the discovery of  the
          fraud,  but  no  proceeding  may  be  brought
          against  one not a perpetrator of  the  fraud
          later  than five years after the time of  the
          commission of the fraud.  This section has no
          bearing   on  remedies  relating   to   fraud
          practiced  on a decedent during the decedents
          lifetime that affects the succession  of  the
          decedents estate.
          
     18     As  noted  earlier,  the superior  court  effectively
resolved the case on the merits by deciding this issue, a  result
that creates considerable tension with Christines right to a jury
trial.  But, as we have observed, we need not address this issue,
as  Christine does not appear to have raised any objection below.
See  Johns Heating Serv., 46 P.3d at 1036 n.53 (By consenting  to
certain procedures or by failing to object to others, a party may
waive  those  rights  which are arguably encompassed  within  due
process guarantees.) (citation omitted).

     19     The statutes discussed here are the current statutes.
The statutes were somewhat different at the time of the transfer,
but include the same basic provisions that an endorsement may  be
made  in  blank, that delivery occurs when the purchaser acquires
possession, and that an incomplete certificate may be  filled  in
as authorized. AS 45.08.206, .308, .313 (1986).

     20     Christine  argues  that the court  clearly  erred  in
finding  that  Pete  signed  the annuity  agreement  because  she
presented  testimony  from a handwriting expert  questioning  the
authenticity   of  the  signature.   But  there  was    testimony
supporting  the  courts  finding that  Pete  signed  the  annuity
agreement and there was therefore no clear error.

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