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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harris v. Ahtna, Inc. (09/26/2008) sp-6311
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
| RICHARD HARRIS, | ) |
| ) Supreme Court No. S- 11769 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-01-11346 CI | |
| v. | ) |
| ) O P I N I O N | |
| AHTNA, INC., AHTNA | ) |
| GOVERNMENT SERVICES | ) No. 6311 September 26, 2008 |
| CORPORATION, KEN JOHNS, | ) |
| PAUL TONY, and NEIL | ) |
| ANDERSON, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: William G. Royce, Law Office of
William G. Royce, Anchorage, for Appellant.
Patrick B. Gilmore and Christopher J.
Slottee, Atkinson, Conway & Gagnon,
Anchorage, for Appellee Ahtna, Inc. Michael
C. Geraghty and D. Elizabeth Hanner, DeLisio
Moran Geraghty & Zobel, P.C., Anchorage, for
Appellee Ahtna Government Services
Corporation. Samuel J. Fortier, Fortier &
Mikko, P.C., Anchorage, for Appellees Ken
Johns, Paul Tony, and Neil Anderson.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Ahtna Government Services Corporation, a subsidiary of
Ahtna, Inc., was organized in 1999. Ahtna, Inc. held a fifty-one
percent interest in Ahtna Government Services, while Richard
Harris held forty-nine percent. As president of Ahtna Government
Services, Harris facilitated a number of deals between the
company and two other companies with which he had relationships,
Pacific Native Development Corporation and AEI Pacific. After
Harris was terminated from Ahtna Government Services in 2001, it
brought suit against him for breach of fiduciary duty and
rescission of the stock purchase agreement. Harris
counterclaimed on a number of grounds, adding claims against
Ahtna, Inc., several Ahtna directors, and Ahtna Government
Servicess chief financial officer. The trial court found against
Harris and awarded nearly $1 million in damages and attorneys
fees. Harris appeals, arguing that the trial court imposed an
incorrect burden of proof on him, that its findings of fact
regarding several transactions were clearly erroneous, and that
it improperly admitted an exhibit at trial. Because Ahtna
Government Services proved its claims by clear and convincing
evidence, because the trial courts factual findings were not
clearly erroneous, and because the trial courts admission of the
exhibit was not an abuse of discretion, we affirm the trial
courts decision in all respects.
II. FACTS AND PROCEEDINGS
A. 1999 Through Early 2001
Ahtna, Inc. is a regional corporation created under the
Alaska Native Claims Settlement Act. In the spring of 1999,
Darryl Jordan, then president of Ahtna, Inc., asked Harris to
join the company in forming a new Ahtna, Inc. subsidiary, Ahtna
Government Services Corporation. Harris agreed. Ahtna
Government Servicess ostensible purpose was to pursue government
contracts under the auspices of the United States Small Business
Administrations Section 8(a) program.1 At this point, Harris was
also closely related to two other companies. Harris owned
Pacific Native Development Corporation, his wife, Sandra Harris,
was its president,2 and he was an officer, and at certain points,
president, of AEI Pacific. Pacific Native Development assisted
section 8(a) firms in procuring government contracts, and AEI
Pacific was a section 8(a) contracting firm.
On May 27, 1999, Ahtna Government Services was
incorporated. Ahtna, Inc. owned fifty-one percent of Ahtna
Government Servicess shares and Harris owned forty-nine percent.
Ahtna Government Servicess organizational meeting was held in
August 1999. The board consisted of five members, including
Jordan as chairperson and Harris as president. In the two-year
period between Ahtna Government Servicess incorporation and
Harriss termination, Harris engineered a number of transactions,
each of which the trial court determined was self-dealing and
unfair to Ahtna Government Services, breaching Harriss fiduciary
duty to the company. Following is a summary of these
transactions, based on the trial courts findings:
1. The Clear project
AEI Pacific was the general contractor for a roofing
job at Clear Air Force Base that began in the fall of 1999. When
AEI Pacific submitted its bid for the work in May of that year,
Harris personally guaranteed the bonding for the contract, as did
Pacific Native Development. By the time it was awarded the
contract, AEI Pacific was insolvent. As president of the
company, Harris understood AEI Pacifics financial condition. In
November 1999 the Clear project itself was in substantial
financial jeopardy, due to significant unpaid bills and the
approaching winter. On November 3 Harris, as the president of
Ahtna Government Services, signed a subcontract with AEI Pacific
committing Ahtna Government Services to complete all remaining
work on the project. On November 30 Harris, again in his
capacity as Ahtna Government Services president, had Ahtna
Government Services pay AEI Pacifics overdue freight bills so
that materials could be delivered to complete the project.
Despite the extremely cold weather, and against the
recommendation of an AEI Pacific employee who had visited the job
site, Harris pushed the crew to complete the project through the
winter. To postpone the work until spring would have triggered
liquidated damages against AEI Pacific, for which Harris would
have been personally liable AEI Pacific was insolvent and Harris
had guaranteed the bond. Ahtna Government Services ultimately
incurred a $191,000 loss on the project, which the trial court
awarded as damages to Ahtna Government Services.
2. The Kulis project
On the same day that he authorized transfer of the
Clear project, Harris, in his capacity as Ahtna Government
Services president, signed a subcontract committing Ahtna
Government Services to complete another AEI Pacific project, at
Kulis Air National Guard Base. Due to AEI Pacifics insolvency,
the Kulis project was, like the Clear project, plagued by unpaid
debts. The Kulis project was independently bonded, but $48,000
of losses could not be collected. Ahtna Government Services
therefore incurred a $48,000 loss on the project, which the trial
court awarded as damages to Ahtna Government Services.
3. The Pacific Native Development office space
Pacific Native Development was committed to a lease of
office space, a portion of which Harris directed Ahtna Government
Services to sublease. At some point Ahtna Government Services
assumed the entire lease. The trial court found that the rent
Ahtna Government Services paid was excessive because the company
did not need more than one-third of the space and that Ahtna
Government Services was overcharged by at least $104,000. The
trial court awarded these damages to Ahtna Government Services.
4. The cars
Ahtna Government Services rented two vehicles, a Land
Rover and a Ford Expedition, from Pacific Native Development at
Harriss behest. Ahtna Government Services paid $800 per month
for rental of the former and $1,100 per month for rental of the
latter. The trial court found that the reasonable monthly rental
rates for these vehicles were $300 and $350, respectively. Ahtna
Government Services later purchased these vehicles at Harriss
behest. It paid $28,585 for the Land Rover, which the trial
court valued at $23,185, and $31,150 for the Expedition, the
Kelly Blue Book value of which was $18,250. The trial court
valued the total overpayment on the cars at $25,400 and awarded
that amount to Ahtna Government Services.
5. The billing of Pacific Native Development
employees time
Ahtna Government Services was billed for Pacific Native
Development employees time purportedly spent working on Ahtna
Government Services projects. Pacific Native Development did not
submit time sheets to Ahtna Government Services or provide
details about these charges. Harris approved the charges to
Ahtna Government Services for Pacific Native Development
employees time. Though he acknowledged that Pacific Native
Development employees kept time sheets, and that he had likely
saved the time sheets, Harris could not account for the
whereabouts of these documents and did not produce them for
trial. But Christopher Smith, a former Pacific Native
Development employee and later the president of Ahtna Government
Services, retained personal copies of his Pacific Native
Development time sheets. A comparison of the hours Harris
charged Ahtna Government Services for Smiths work with the hours
recorded on the time sheets that Smith retained revealed an
overcharge of 197 hours. The trial court inferred from this
demonstrated overcharge and Harriss failure to produce time
sheets that Harris inflated other employees time as well. The
trial court awarded Ahtna Government Services the $50,968.13 that
it requested for these unsubstantiated charges.
6. The use of Ahtna Government Services funds and
employees
Harris directed Ahtna Government Services employees to
work on his personal boat and used Ahtna Government Services
funds to pay his attorneys fees in personal litigation. The
trial court awarded Ahtna Government Services $10,472.21 for
these charges.
7. The leases
The day before his termination, Harriss wife obtained
draft leases for equipment and furniture in Ahtna Government
Servicess Anchorage, Hawaii, and California offices, and Harris
backdated invoices charging Ahtna Government Services $46,685 for
the rentals. When an Ahtna Government Services employee refused
to sign the backdated leases, Harris himself signed them on
behalf of Ahtna Government Services and Harriss wife signed for
Pacific Native Development. Notably, two of the leases were
backdated to July 1999, which preceded Ahtna Government Servicess
organizational meeting. The trial court found that these leases
overcharged Ahtna Government Services by $40,000 and awarded
Ahtna Government Services that amount.
B. 2001 Through December 2004
In early 2001 Ahtna, Inc. fired Darryl Jordan, the
company president who had invited Harris to join in forming Ahtna
Government Services. Ken Johns replaced Jordan as president of
Ahtna, Inc. in April of that year. In March Neil Anderson,
Ahtna, Inc.s new chief financial officer, reviewed Ahtna, Inc.s
books and found accounting irregularities in many subsidiaries.
In May 2001 Harris was fired.
On October 19, 2001, Ahtna Government Services filed
suit against Harris for breach of fiduciary duty and for
rescission of the stock purchase agreement. Harris answered in
December and filed counterclaims and a third-party complaint
against Ahtna, Inc. on thirteen counts: actual fraud,
constructive fraud, conversion, wrongful termination in violation
of public policy, defamation, defamation to business reputation,
intentional and negligent infliction of emotional distress,
breach of contract, intentional and negligent misrepresentation,
breach of the covenant of good faith and fair dealing, and
tortious interference. Harris amended his third-party complaint
in February 2002 to add a number of defendants, including Ken
Johns (president and CEO of Ahtna, Inc.), Laura Gould (vice-
president and CFO of Ahtna Government Services), Paul Tony and
Neal Anderson (Ahtna, Inc. board members), and John Does I-X.3
On September 11, 2003, Ahtna Government Services filed
a motion requesting that the court place the burden on Harris to
prove that the transactions were reasonable under AS 10.06.478,
the statute governing related party transactions. A few days
later, Ahtna, Inc. joined that motion and also filed a motion for
summary judgment on Harriss non-compliance with AS 10.06.478.
Harris opposed these motions in early October.
On October 30 the trial court issued its order on
burden of proof. It ruled that Harris was required to prove by a
preponderance of the evidence that the transactions were fair,
and that a majority of Ahtna Government Servicess disinterested
directors knew the material facts of the transactions and
approved them. If he could not prove the former the fairness of
the transactions the matter would be resolved against Harris.
If he could not prove the latter, Harris was required to prove
the fairness of the transactions by clear and convincing
evidence. The trial court denied Ahtna, Inc.s motion for summary
judgment.
The case advanced to a bench trial. The proceedings
lasted from November 3, 2003 to November 13, resumed on December
8, and concluded on December 12. On August 16, 2004, the trial
court entered an oral decision into the record. It found against
Harris on all claims and directed Ahtna Government Services to
prepare findings of fact and conclusions of law for its review.
Harris filed objections to Ahtna Government Servicess proposals,
but the trial court overruled Harriss objections and adopted all
of Ahtna Government Servicess proposed findings except certain
findings concerning Jordan. The trial court denied Ahtna, Inc.s
motion for enhanced attorneys fees, awarding the company $39,072
as calculated under Alaska Civil Rule 82(b)(2), but it granted
full reasonable attorneys fees to Johns, Tony, and Anderson due
to the vexatious nature of Harriss claims against them. The
final judgment against Harris in favor of Ahtna Government
Services was $802,753.44; the judgment in favor of Ahtna, Inc.
was $58,647.31; and the judgment in favor of Johns, Tony, and
Anderson was $91,929.24. Harris appeals.4
C. December 2004 to Present
In April 2005 Harris filed for bankruptcy. A notice of
bankruptcy conversion was filed in this action on September 8 of
that year, and this appeal was stayed on September 30, 2005. The
stay was modified in January 2007 to allow this appeal to
proceed.
III. STANDARD OF REVIEW
We employ the clearly erroneous standard to review a
lower courts factual findings.5 Factual findings will be
reversed only if we are left with a definite and firm conviction
that a mistake has been made after considering the record as a
whole.6 A lower courts decision to admit or exclude evidence is
reviewed for abuse of discretion and will be reversed only if the
error affected the substantial rights of a party.7 We review a
lower courts allocation of the burden of proof de novo, adopting
the rule of law that is most persuasive in light of precedent,
reason, and policy.8
IV. DISCUSSION
A. Harriss Argument Regarding the Burden of Proof Fails.
The trial court determined that under AS 10.06.478, the
statute governing related party transactions, Harris was required
to prove the transactions in question were proper, and it
concluded that Harris failed to do so. Harris contends that the
deals were part of a larger pre-incorporation agreement not
subject to the requirements of AS 10.06.478, and that the trial
court therefore improperly placed the burden on him to prove the
transactions were fair rather than on his opponents to prove the
transactions were unfair. But as the trial court recognized,
[t]he proper allocation of burden of proof on this issue is
irrelevant given its express finding that Ahtna Government
Services established the transactions were unfair by clear and
convincing evidence. Thus, even assuming that Harris is correct
and that the trial court should have placed the burden on Ahtna
Government Services to affirmatively prove the transactions were
unfair, Ahtna Government Services has already met this burden.
B. The Trial Courts Factual Findings Regarding the Clear
and Kulis Projects and the Rental of Office Space Were
Not Clearly Erroneous.
Harris contends that the trial courts findings
regarding the Clear and Kulis projects and the rental of Pacific
Native Development office space to Ahtna Government Services were
clearly erroneous and present no basis for liability or damages
on his part. He further complains that the trial court adopted
Ahtna Government Servicess proposed findings of fact nearly
verbatim and characterizes the courts findings as stark
pronouncements. Harriss arguments lack merit.
The trial court did not err in requesting proposed
findings of fact and conclusions of law from counsel. As Harris
acknowledges, Alaska Civil Rule 78 specifically provides for this
practice.9 Nor did the trial court err in adopting those
findings and conclusions. As we stated in Industrial Indemnity
Co. v. Wick, Rule 78(a) was not intended to delegate to counsel
the courts duty of finding the facts. A trial court is, however,
entitled to adopt findings and conclusions prepared by counsel,
so long as they reflect the courts independent view of the weight
of the evidence.10 That the trial court considered the findings
before adopting them is clear from its deletion of material
related to Jordan in Ahtna Government Servicess proposed
findings.
Harriss suggestion that the trial courts findings were
stark pronouncements, lacking support, is also unavailing. The
only case Harris cites in support of this proposition, Mackie v.
Chizmar,11 is inapposite. In Mackie, the plaintiff was
misdiagnosed with HIV and sought $150,000 in damages from the
doctor who had misdiagnosed her.12 The trial court awarded her
$15,000.13 It provided no rationale for this decision, stating
only the following: The court concludes that the sum of $15,000
shall be awarded to Savitri Chizmar for compensatory damages.14
Neither of the parties suggested this amount.15 With no rationale
to support the award, we remanded for further findings.16 But
here, the trial court made detailed findings about the Clear and
Kulis projects and the rental of office space, and its rationale
is apparent. Furthermore, it accepted Ahtna Government Servicess
proposed findings on these issues, which included a detailed
recitation of the evidence relied on, complete with citations to
the record. Harriss argument is without merit.
Harris also argues that the trial courts findings
regarding Pacific Native Developments rental of office space to
Ahtna Government Services and regarding the Clear and Kulis
projects were clearly erroneous. To support his argument, Harris
cites to his own testimony, to Jordans testimony, and to exhibits
that Harris himself constructed. But the trial court explicitly
found that Harris and Jordan were not credible witnesses. And to
the extent that Harris cites the testimony of other, credible
witnesses, he presents at best an alternative view of the
evidence. We reverse factual findings only if they are clearly
erroneous, and [c]lear error is not demonstrated by merely
showing a conflict in the evidence.17 Viewing the record as a
whole, we are not left with a definite and firm conviction that
the trial court erred in its findings regarding the rental of
office space to Ahtna Government Services and the Clear and Kulis
projects. These findings are not clearly erroneous.
C. The Trial Court Did Not Err in Admitting Exhibit 79.
Harris argues that the trial court erred in admitting
Exhibit 79, Christopher Smiths time sheets from his work at
Pacific Native Development. Harris contends that these time
sheets were inadmissible on grounds of unfair surprise and unfair
prejudice because they were not produced before trial. The trial
court noted that the time sheets were not from the records of
Ahtna Government Services, the party from whom Harris had
requested discovery, but rather from Smiths personal records, and
it ruled that the time sheets were admissible.
Pacific Native Development, Harriss wholly owned
company, charged Ahtna Government Services for Pacific Native
Development employees time ostensibly spent working on Ahtna
Government Services projects. Harris then approved the bills in
his capacity as president of Ahtna Government Services. Ahtna
Government Services claimed that Harris breached his fiduciary
duty to the company through self-dealing transactions that caused
Ahtna Government Services to pay for non-existent and
unsubstantiated expenses, unreasonably benefiting other entities
controlled by Harris. Harris did not produce the Pacific Native
Development time sheets for which he authorized payment by Ahtna
Government Services because he claimed he did not know where they
were.
At trial, Harris called Christopher Smith, a former
Pacific Native Development employee and then-president of Ahtna
Government Services, to testify about work he had done for Ahtna
Government Services as a Pacific Native Development employee.
When Harris deposed Smith five months earlier, he asked Smith the
following question: Item 7, AGSC payments to PNDC for services
and costs, the amount of the loss claimed is $62,900. Do you
know anything about that? Smith replied that he had seen some of
the accounting documents relating to it but did not have any
specific information on the details. Harris asked whether Laura
Gould, Ahtna Government Servicess chief financial officer, would
be better able to answer questions on that topic, and Smith said
yes.
Shortly before he testified, Smith found some old
Pacific Native Development time sheets in his personal records
and faxed them to Ahtna Government Servicess counsel. Smith
stated that he had not thought about looking for them before
because they were Pacific Native Development records, and he
assumed that Harris had them and would have produced them to
Ahtna Government Services. Ahtna Government Services moved to
enter the time sheets as Exhibit 79 during its cross-examination
of Smith. Harris requested five minutes to review the documents,
which was granted. He also examined Smith on voir dire about
them. Harris then objected to the documents, claiming they
should have been produced before trial under Alaska Civil Rule 26
and were inadmissible for unfair surprise. The trial court noted
the documents came from Smiths personal records, not from Ahtna
Government Servicess records, and admitted the exhibit.
On appeal, Harris argues that the time sheets should
have been excluded on grounds of unfair prejudice and unfair
surprise because they were not produced before trial and because
he did not have an opportunity to independently test their
veracity. Alaska Rule of Evidence 403 provides that relevant
evidence may be excluded if its probative value is outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury. Here, the probative value of the time
sheets is high because they go to the heart of Ahtna Government
Servicess breach of fiduciary duty claim. But Harris contends
that Smiths statement claiming he had no specific information on
the details of the unsubstantiated billing issue, which he made
during his deposition, was wholly inconsistentwith his trial
testimony regarding the time sheets, and Harris argues that this
unfairly prejudiced him.
Harriss argument is unpersuasive because Smith was
unaware at the time of his deposition that he had time sheets
that could be important to the case. Although Harris emphasizes
that he did not have the opportunity to independently test the
veracity of the time sheets, at trial he requested only the
opportunity to examine Smith on voir dire and five minutes to
examine the documents before they were admitted, and both of
these requests were granted. Harris did not request a
continuance of any greater duration.
Harris suggests that he was unfairly surprised by the
time sheets because they were not produced before trial. But
Harris cannot fault Smith for a failure to produce; Smith was not
a party to the case and was therefore not obligated to produce
documents under Alaska Civil Rule 26. To the extent Harris is
arguing that Ahtna Government Services improperly failed to
produce the documents before trial, that argument is unpersuasive
because Ahtna Government Services did not receive them until the
night before they were introduced. Moreover, the time sheets
were Pacific Native Development documents that had been in
Harriss possession; according to his testimony, he had misplaced
them.18
Our decision in Marron v. Stromstad19 is instructive on
Harriss unfair surprise argument. In Marron, the plaintiff
claimed that she was injured in a car accident.20 Her treating
physician, Dr. White, examined her but refused to operate on her.21
She then saw another doctor who performed a discogram and
suggested surgery, which was later done.22 At trial, Marron filed
a motion in limine to strike Dr. Whites expert deposition
testimony, but the trial court denied her motion.23 After the
jury found that Stromstads actions were not the legal cause of
Marrons injury,24 Marron appealed the admission of Dr. Whites
testimony, claiming that Stromstad had not provided an expert
witness report and that she was unfairly surprised by the
testimony.25 But because it was foreseeable that Stromstad would
explore this issue with Dr. White, because Marron knew exactly
what techniques Dr. White did and did not use, and because
excluding the testimony would have presented an inaccurate
picture of what happened, we concluded that Marron was not
unfairly surprised and affirmed admission of the evidence.26
Each of these factors is present here as well. Harris
was aware of Ahtna Government Servicess claim about fraudulent
charges benefiting other entities in which he had an interest, so
it was foreseeable that Ahtna Government Services would explore
this issue. Harris approved the charges to Ahtna Government
Services for Pacific Native Development employees time, and in
fact Smiths time sheets were copies of documents Harris had
actually held in his possession, so he understood what was in
them. And excluding the time sheets would have presented an
inaccurate picture of what happened.
Finally, the trial court granted Harriss request for a
brief period to examine the documents and voir dire the witness
about them. Harris made no other request for additional time to
examine the documents or for a continuance of the trial. The
trial court did not abuse its discretion in admitting Exhibit 79.
V. CONCLUSION
We AFFIRM the trial courts decision in all respects.
_______________________________
1 This program is designed to assist eligible small
disadvantaged business concerns [to] compete in the American
economy through business development. Lexington Mktg. Group,
Inc. v. Goldbelt Eagle, LLC, 157 P.3d 470, 471 (Alaska 2007)
(quoting 13 C.F.R. 124.1 (2006)).
2 Mrs. Harriss testimony at trial suggested that she
became president of Pacific Native Development at Harriss request
because the Ahtna, Inc. board had told Harris he could not be
president of Pacific Native Development and Ahtna Government
Services at the same time, and because [t]here was no other
employee in the office to become president.
3 This amended third-party complaint included a count of
specific performance regarding the put-and-call option provision
of the Ahtna Government Services shareholders agreement; in this
count, Harris declared that an impasse between shareholders had
arisen. In a separate decision, the superior court required
Harris to deliver his Ahtna Government Services shares to Ahtna,
Inc. for a certain consideration under this put-and-call option
provision. Harris v. Ahtna, Inc., 107 P.3d 271, 273-74 (Alaska
2005). We later reversed that ruling. Id. at 279.
4 We do not review the trial courts dismissal of Harriss
defamation and interference with business relationships claims
against Johns, Tony, and Anderson. Though Harris included these
claims in his points on appeal, he did not substantively brief
them and they are therefore deemed waived. State v. ONeill
Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980) (Failure to
argue a point constitutes an abandonment of it.).
5 Wyller v. Madsen, 69 P.3d 482, 485 (Alaska 2003).
6 Id.
7 Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005).
8 Flynn v. E.I. du Pont de Nemours & Co., 988 P.2d 97, 98
(Alaska 1999).
9 Alaska R. Civ. P. 78(a).
10 680 P.2d 1100, 1108 (Alaska 1984) (internal citation
omitted).
11 965 P.2d 1202 (Alaska 1998).
12 Id. at 1207.
13 Id.
14 Id. (quotations omitted).
15 Id.
16 Id.
17 Preferred Gen. Agency of Alaska, Inc. v. Raffetto, 391
P.2d 951, 953 (Alaska 1964).
18 The trial court found that Harris was not a credible
witness.
19 123 P.3d 992 (Alaska 2005).
20 Id. at 996-97.
21 Id. at 996, 1000.
22 Id. at 996.
23 Id. at 997.
24 Id.
25 Id. at 1000.
26 Id. at 1000-01.
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