Kuelbs v. Hill
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Cite as 2010 Ark. App. 427
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA09-231
KRISTIN KUELBS, DONALD HILL,
AND EDWARDENA HILL
APPELLANTS
Opinion Delivered
May 12, 2010
V.
APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT,
[NO. PR-07-610-2]
KIMBERLY HILL
HONORABLE VICKI SHAW COOK,
JUDGE
APPELLEE
AFFIRMED; MOTION TO DISMISS
GRANTED IN PART
WAYMOND M. BROWN, Judge
Appellant Donald Hill and appellee Kimberly Hill filed competing petitions for
guardianship or conservatorship of their adult sister, Kristin Kuelbs.1 The circuit judge
appointed an attorney ad litem for Kristin and ordered Dr. Paul Deyoub to evaluate Kristin’s
psychological condition. Dr. Deyoub determined that Kristin was incapacitated due to mental
illness and needed a guardian of her person and her estate, neither of whom should be a family
member. In accordance with the doctor’s recommendation, the court named social worker
Valerie Swearingen as the guardian of Kristin’s person and First National Bank of Hot Springs
as the guardian of Kristin’s estate. Donald, who is a licensed attorney, appeals from that order
1
Donald’s wife, Edwardena Hill, joined his petition. However, for the sake of
convenience, we will refer only to Donald.
Cite as 2010 Ark. App. 427
on behalf of himself and Kristin, asserting that the circuit court erred by 1) appointing an
attorney ad litem for Kristin; 2) failing to dismiss Kimberly’s guardianship petition; 3) failing
to strike Dr. Deyoub’s testimony; 4) granting Kimberly’s motion for a protective order; 5)
appointing First National Bank as the guardian of Kristin’s estate; and 6) failing to recuse.
Donald also appeals from an order directing him to pay $625 of the attorney ad litem’s fees.
For the reasons set forth below, we dismiss Donald’s appeal from the attorney-fee order and
affirm the remainder of the circuit court’s rulings.
I. Background facts
In 2001, Kristin Kuelbs suffered head injuries in an automobile accident. In 2006, her
sister Kimberly and two other siblings, Jeff and Carol, asked a Wisconsin court to order an
examination of Kristin, claiming that she had poured hot coffee over one sister’s head and that
she had talked about shooting her sisters and her mother and killing herself. A Wisconsin
facility conducted a three-month evaluation and determined in February 2007 that Kristin
could function in a less-restrictive environment. Based on representations by Kristin’s brother
Donald that he would allow Kristin to live with him in Arkansas and would assist with her
medical needs, the Wisconsin court dismissed the matter. Kristin then moved to Garland
County, Arkansas, to live with Donald and gave Donald her power of attorney.
On November 20, 2007, Kimberly, a Minnesota resident, filed a petition in Garland
County Circuit Court asking to be appointed as Kristin’s guardian. Kimberly alleged that
Kristin suffered from craniocerebral trauma as the result of her accident; that she was paranoid,
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combative, and out of control; that she lacked the capacity to care for herself; and that the
guardianship petition was supported by all of Kristin’s siblings “with the exception of one
whom [it] is believed absconded with many of [Kristin’s] funds.” Kristin responded through
her attorney, Justin Hurst, asking that the petition be denied. Her response also contained a
“counter-petition for appointment of a conservator” filed by Hurst on behalf of Donald. The
counter-petition alleged that Kristin was physically incapacitated due to her accident; that
Kristin consented to Donald’s appointment as conservator; and that the other siblings had
attempted to “swindle” Kristin’s assets. Attached to the pleading was Kristin’s affidavit
accusing her family members of taking over $200,000 of her money and consenting to
Donald’s appointment as conservator. The court eventually disqualified Hurst from
representing Kristin and appointed Michelle Strause as Kristin’s attorney ad litem.
Thereafter, Kristin and Donald, acting through their separate attorneys, filed motions
to dismiss Kimberly’s guardianship petition. Kristin asserted that she wanted to live with
Donald and that she was not mentally incapacitated. Donald claimed that the Wisconsin court
had actually appointed him as Kristin’s guardian (a claim that would later prove false) and that
Kimberly’s petition contained certain procedural flaws. Following a hearing, the court,
without expressly ruling on the motions to dismiss, ordered Kristin to undergo a psychological
evaluation performed by Dr. Paul Deyoub. Near this same time, Donald, who had obtained
his law license, entered an appearance as Kristin’s attorney. The court accepted his appearance
but retained Michelle Strause as Kristin’s attorney ad litem.
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Dr. Deyoub conducted a brief evaluation of Kristin, in which he diagnosed her with
“Bipolar Disorder, Manic, Severe with Psychotic Features” and concluded that she was
incapacitated due to mental illness. The doctor also stated that Kristin needed a guardian of
her person and her estate; that the guardian should not be a family member; and that the
guardianship should be “limited and defined so that she retains independence in all areas
except her estate and her mental health treatment.” Dr. Deyoub testified to his findings at an
August 28, 2008 hearing.
On October 8, 2008, the circuit court, relying on Dr. Deyoub’s evaluation, appointed
social worker Valerie Swearingen as the guardian of Kristin’s person for the limited purpose
of making medical decisions and appointed First National Bank of Hot Springs as the guardian
of Kristin’s estate. On October 17, 2008, Donald filed a notice of appeal on Kristin’s behalf
and on his own behalf, challenging the court’s guardianship ruling and several intermediate
rulings. We turn now to appellants’ arguments for reversal.
II. Appointment of attorney ad litem
Appellants argue that the circuit court erred in appointing an attorney ad litem for
Kristin when she had already employed counsel of her own choosing. We review the circuit
court’s decision to appoint an attorney ad litem for an abuse of discretion.2
Appellants contend first that the appointment of an attorney ad litem violated Kristin’s
constitutional right to counsel of her own choosing. The right to counsel of choice is
2
Martin v. Pierce, 370 Ark. 53, 257 S.W.3d 82 (2007).
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grounded in the Sixth Amendment to the United States Constitution and in article 2, section
10 of the Arkansas Constitution.3 Both constitutional provisions apply by their terms to “all
criminal prosecutions.” Consequently, there is some doubt as to their applicability in a civil
case.4 But even where they do apply, we have recognized that the right to counsel of one’s
choice is not absolute and may not be used to frustrate the inherent power of the court to
command an orderly, efficient, and effective administration of justice.5
Here, the effective administration of justice may well have warranted a restriction on
Kristin’s right to choose her own counsel. As the proposed ward, Kristin initially elected Justin
Hurst as her counsel. Her choice was not problematic in and of itself, but it became so when
Hurst was engaged to represent Donald, who opposed Kristin’s need for a guardian, who
himself wanted to become her conservator, and who was accused of misappropriating her
assets. Given the circumstances in this hotly contested case, the court wisely chose to provide
Kristin with her own attorney, who was wholly independent of those competing for her care
and custody and who could give Kristin undivided loyalty in this adversarial proceeding. The
record reflects that, in fact, the attorney ad litem staunchly represented Kristin by moving to
dismiss the guardianship petition and by opposing the need for an additional psychological
evaluation. We also note that the court later allowed Donald to represent Kristin during a
3
Price v. State, 2009 Ark. App. 664, ___ S.W.3d ___.
4
See, e.g., Droste v. Julien, 477 F.3d 1030 (8th Cir. 2007).
5
Price, supra.
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significant portion of the case. Accordingly, her right to choose her own counsel was curtailed
only slightly.
Next, appellants argue that the court’s appointment of the attorney ad litem violated
Canon 3(C)(4) of the Arkansas Code of Judicial Conduct, which provides that a judge “shall
not make unnecessary appointments.” We disagree that a violation occurred. Given the
circumstances described in the preceding paragraph, we find it hard to fault the court for
deciding that an attorney ad litem was necessary to protect Kristin’s rights. Furthermore,
Canon 3(C)(4), when read in its entirety, is directed at assuring that judges make
appointments based on merit rather than on nepotism or favoritism.
Appellants contend further that the attorney ad litem’s appointment violated Ark. R.
Civ. P. 17(b), which provides that
[t]he court shall appoint a guardian ad litem for an infant or incompetent person not otherwise
represented in an action or shall make such other order as it deems proper for the
protection of the infant or incompetent.
(Emphasis added.) Appellants claim that Kristin was “otherwise represented” by legal counsel
when the court appointed the attorney ad litem. However, Rule 17(b) involves the
appointment of a guardian ad litem as a party rather than an attorney ad litem as legal counsel.
The two roles are distinct.6 Thus, no violation of Rule 17(b) occurred.
For these reasons, we conclude that the court did not abuse its discretion by appointing
an attorney ad litem.
6
See Garver v. Utyesonich, 235 Ark. 33, 356 S.W.2d 744 (1962).
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III. Motions to dismiss guardianship petition
Appellants argue that the circuit court should have dismissed Kimberly’s guardianship
petition because the petition offered no proof of Kristin’s incompetency and failed to state that
Kimberly, a nonresident of the state, had named a resident agent for service of process. Our
standard of review is whether the circuit court abused its discretion in denying the motion to
dismiss.7 We find no abuse of discretion on this point.
We note at the outset that the order appealed from in this case did not grant
Kimberly’s motion to be appointed guardian. Appellants’ arguments are therefore academic
for purposes of this appeal.8 In any event, appellants’ arguments are not persuasive. Arkansas
law does not require a potential guardian to attach, to the guardianship petition, a letter or
other proof of the proposed ward’s incompetency, as appellants suggest.9 The petition need
only recite the nature of the proposed ward’s incapacity or disability, which was done here.10
Further, even though the law requires a nonresident guardian to appoint a resident agent for
service of process,11 our guardianship statutes do not require the guardianship petition to
7
Ark. Dep’t of Envtl. Quality v. Oil Producers of Ark., 2009 Ark. 297, ___ S.W.3d ___.
8
Cooper Tire & Rubber Co. v. Angell, 75 Ark. App. 325, 58 S.W.3d 396 (2001) (holding
that this court does not decide academic questions).
9
Ark. Code Ann. § 28-65-205(b) (Repl. 2004) (listing thirteen items that the “petition
shall state”).
10
Ark. Code Ann. § 28-65-205(b)(2) and (10).
11
Ark. Code Ann. § 28-65-203(e) (Supp. 2009).
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declare that this has been accomplished.12
IV. Protective order
After trying unsuccessfully to schedule Kimberly’s deposition, Donald’s attorney, Justin
Hurst, gave notice to Kimberly for a deposition in Garland County on April 14, 2008.
Kimberly moved for an order of protection claiming, among other things, that she had
transportation issues in arranging travel from Minnesota to Arkansas. The court issued a
protective order, stating that “the Deposition of the Petitioner, Kimberly Hill shall not occur
on April 14, 2008.” Appellants argue on appeal that the protective order deprived them of
their right to conduct discovery. We disagree.
The protective order decreed that the deposition would not take place on April 14,
2008. It did not otherwise restrict appellants’ discovery, which left appellants free to
reschedule the deposition during the remaining months of the case, should they choose to do
so. We therefore cannot say that the court committed an abuse of discretion warranting
reversal.13
V. Failing to strike Dr. Deyoub’s testimony
At a July 28, 2008 hearing, the court announced that the parties had met in chambers
to resolve the matter of Kristin’s competency. On the record, the court ordered an evaluation
of Kristin by Dr. Paul Deyoub, and a discussion ensued regarding the best manner in which
12
Ark. Code Ann. § 28-65-205(b).
13
Nat’l Enters. Inc. v. Lake Hamilton Resort, Inc., 355 Ark. 578, 142 S.W.3d 608 (2004)
(abuse-of-discretion standard).
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to obtain Kristin’s records from the state of Wisconsin for Dr. Deyoub’s use. Donald said that
he understood Dr. Deyoub’s evaluation would not be influenced by other medical records.
The court stated that it would let Dr. Deyoub “do what he normally does” and that “if he
wants more information, he’ll ask for it.” The court then entered an order directing the
evaluation to occur within five business days. The order did not restrict Dr. Deyoub’s receipt
of information from any source.
Dr. Deyoub conducted the evaluation on August 12, 2008. Before doing so, he spoke
with Kimberly, Donald, and another of Kristin’s siblings, and received voluminous documents
from the siblings (other than Donald) regarding Kristin’s previous mental-health problems.
In the evaluation itself, the doctor found that Kristin was unable to adequately understand her
financial affairs and that she was “belligerent, angry, and beyond any degree of reason.” As
previously mentioned, he diagnosed Kristin with bipolar disorder, manic, severe with
psychotic features, and he stated that she experienced, among other things, flight of ideas,
distractibility, paranoia, derailed thinking, and raging anger and hostility. The doctor also
concluded that Kristin’s judgment was “severely impaired,” that she had the potential for
physical violence, and that she lacked insight regarding her behavior or mental illness. He
determined that Kristin was incapacitated and incompetent due to mental illness and that she
required a guardian who was not a family member. He further stated that Kristin should be
“admitted or committed to an inpatient psychiatric facility.”
Dr. Deyoub testified to his findings at the August 28, 2008 hearing. Appellants moved
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to strike his testimony, claiming that it was “contaminated” by the materials that he received,
allegedly in violation of the court’s order. The judge refused to strike the doctor’s testimony,
recalling that she had approved his obtaining any collateral information that he wanted. Dr.
Deyoub testified that the materials he received contributed to his understanding of the
background of the case and helped form his diagnosis. However, he stated that Kristin’s
condition was “so flagrant that even without the documents, I still would have arrived at the
diagnosis that I gave.” Dr. Deyoub testified further that the family conflicts in this case did not
sway him.
On appeal, appellants argue that the court should have stricken Dr. Deyoub’s
testimony because his consideration of outside materials violated a court order. They also
contend that the court’s acceptance of Dr. Deyoub’s opinion was against the weight of the
evidence. With regard to the court’s refusal to strike Dr. Deyoub’s testimony, we review that
evidentiary ruling for an abuse of discretion.14 Otherwise, we review the court’s factual
findings for clear error.15 We also give due regard to the opportunity and superior position of
the circuit judge to determine the credibility of the witnesses.16
Initially, we see no abuse of discretion in the court’s decision not to strike Dr.
Deyoub’s testimony. The transcript of the July 2008 hearing does not reflect any agreement
14
Ark. Okla. Gas Corp. v. Boggs, 86 Ark. App. 66, 159 S.W.3d 808 (2004).
15
Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000).
16
Id.
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that the doctor would conduct the evaluation without viewing outside sources. In fact, it
reflects the court’s realization that the doctor might require information about Kristin’s prior
treatment and, if so, he could ask for such information. Further, the court’s order scheduling
the evaluation did not restrict Dr. Deyoub’s consideration of outside information. It also does
not appear that appellants can show prejudice from Dr. Deyoub’s receipt of extraneous
materials. The doctor stated unequivocally that Kristin’s condition was so flagrant that he
would have given her the same diagnosis even if he had not received the documents.17
We also decline to hold that the circuit court clearly erred in adopting Dr. Deyoub’s
opinion that Kristin was incompetent or in finding that Kristin required a guardian. The court
heard Dr. Deyoub’s unequivocal testimony that Kristin was incapacitated, mentally ill, and
should have a guardian of her person and her estate. To the extent that there were conflicts
in the evidence regarding Kristin’s need for a guardian, the court exercised its prerogative as
fact-finder to resolve those conflicts.18 Appellants also contend that Dr. Deyoub’s one-and-a
half-hour evaluation of Kristin should not have been accorded greater weight than the threemonth evaluation performed in Wisconsin, which resulted in Kristin’s being released from
confinement. However, the weight to be accorded expert testimony is the province of the
fact-finder.19 At any rate, we cannot say that the court clearly erred in relying on Dr.
17
Schmidt v. Stearman, 98 Ark. App. 167, 253 S.W.3d 35 (2007) (holding that we will not
reverse an evidentiary ruling absent a showing of prejudice).
18
Firstbank of Ark. v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993).
19
See Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 897 (1993).
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Deyoub’s recommendations, which had been developed just a few days earlier, rather than
on findings developed in Wisconsin a year-and-a-half earlier.
Appellants maintain further that the circuit court should have given full faith and credit
to the Wisconsin order that released Kristin from the mental-health facility there. Even if the
Wisconsin order can be interpreted as an endorsement of Kristin’s competence, the circuit
court in this case was required to order a professional evaluation before conducting the
guardianship hearing.20 Appellants also make several references under this point to a court
order appointing Kimberly as Kristin’s guardian. That appointment had not occurred when
the order appealed from in this case was filed. As a result, the record contains no order
appointing Kimberly as guardian nor any notice of appeal from such an order. The matter is
therefore not before us at this time.21
VI. Appointment of bank as guardian of estate
During the August 28, 2008 guardianship hearing, Sue Harness, the branch manager
of First National Bank, testified that she knew Kristin to be capable of handling her own
banking needs and that she had never seen Donald exercise any influence over Kristin’s
finances. Harness also stated that she would be willing to act as a limited guardian over
Kristin’s finances. At the conclusion of the hearing, the court appointed the trust department
of First National Bank as the guardian of Kristin’s estate and directed Harness to assist in
20
Ark. Code Ann. § 28-65-212(a)(1) (Repl. 2004).
21
In re Guardianship of Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995).
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coordinating those services with Kristin. Appellants now argue that 1) the Bank had no
standing to be appointed as a guardian because it was not a party to the case; 2) the court held
no evidentiary hearing regarding Kristin’s estate; and 3) the court had no jurisdiction over
that portion of Kristin’s estate that involved a trust.
A bank with trust powers may be appointed guardian of the estate of an incapacitated
person.22 We know of no requirement, and appellants do not cite one, that a bank must
appear as a party to a guardianship proceeding before being named as guardian of the estate.
We therefore find no error in the court’s appointment of the bank.
As for appellants’ argument that the court held no hearing on the matter of Kristin’s
finances, the record does not show that appellants asked for a hearing specifically related to
Kristin’s finances, nor do appellants sufficiently explain the type of hearing to which they
believe themselves entitled. Regardless, the court heard testimony from Dr. Deyoub that
Kristin was incompetent to handle her finances, and the court appointed a guardian of her
estate accordingly. The court therefore complied with the guardianship statutes, and we see
no basis for error.
Finally, appellants indicate that part of Kristin’s estate contains a trust, and they assert
that a probate court has no jurisdiction over the trust. Appellants are likely referring to
outdated case law, which held that trusts were chancery matters rather than probate matters.23
22
Ark. Code Ann. § 28-65-203(d)(2) (Supp. 2009).
23
E.g., Balletti v. Muldoon, 67 Ark. App. 25, 991 S.W.2d 633 (1999).
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However, since the 2001 passage of amendment 80 to the Arkansas Constitution, the circuit
court has had jurisdiction over all matters previously cognizable in circuit, chancery, probate,
and juvenile courts.24 Thus, there exists no jurisdictional barrier to the court’s appointment
of a guardian over Kristin’s estate.
VII. Recusal
On this point, appellants argue that the circuit judge exhibited bias by failing to enforce
a stipulation regarding Dr. Deyoub’s evaluation of Kristin and by signing orders that did not
reflect the stipulation. Appellants are presumably referring to the alleged agreement, discussed
earlier in this opinion, that the doctor would not rely on outside materials in his evaluation.
We have already determined that the record does not reflect such an agreement. Appellants
also contend that the judge exhibited bias by 1) appointing an attorney ad litem (which we
have already ruled was proper); 2) naming Kimberly as Kristin’s guardian (which had not
occurred at the time this appeal was taken); 3) failing to require an evidentiary hearing before
allowing Kristin to be moved to Minnesota (which also had not occurred at the time this
appeal was taken); and 4) “contorting her face” when asking if appellants would appeal her
decisions.
There is a presumption of impartiality on the part of judges, and a judge’s decision
whether to recuse is within her discretion and will not be reversed absent abuse of that
24
Ellis v. Reynolds, 368 Ark. 572, 247 S.W.3d 845 (2007).
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discretion.25 The party seeking recusal must demonstrate bias and, unless there is an objective
showing of bias, there must be a communication of bias in order to require recusal for implied
bias.26 The fact that a judge has ruled against a party is not sufficient to demonstrate bias.27
The record does not reflect that, at any time before entry of the order appealed from,
appellants asked the circuit judge to recuse. Regardless, our review of the record reveals no
exhibition of bias. The judge’s interaction with the parties was thoughtful and respectful
throughout the proceedings, and the judge was particularly mindful of protecting Kristin’s
rights and imposing as few restrictions on her as possible. The judge’s compassion toward
Kristin is particularly evident at the close of the August 28, 2008 hearing, where Kristin began
to speak, unprompted, about preferring to be shot in the head rather than going to another
facility; claiming that “Reagan and Bush” closed down such institutions; denying she was
bipolar; claiming to be a victim of mail fraud and theft; and having difficulties in visiting her
children. The judge patiently addressed Kristin’s concerns. Though the court did enter rulings
that were contrary to Donald’s and Kristin’s positions, adverse rulings do not constitute a
ground for recusal.28
VIII. Attorney-fee award
25
Turner v. Nw. Ark. Neurosurgery Clinic, 91 Ark. App. 290, 210 S.W.3d 126 (2005).
26
Id.
27
Id.
28
Id.
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Donald appeals from a January 5, 2009 order directing him to pay Kristin’s attorney
ad litem $625 in attorney fees. However, Donald’s amended notice of appeal, which included
the fee order, was filed on February 20, 2009. Kimberly contends that Donald’s appeal from
the fee order was untimely and should be dismissed. We agree.
Rule 4(a) of the Arkansas Rules of Appellate Procedure–Civil provides that, with
certain exceptions not applicable here, a notice of appeal “shall be filed within thirty (30) days
from the entry of the judgment, decree or order appealed from.” The failure to file a timely
notice of appeal from a fee order deprives the appellate court of jurisdiction to consider the
order.29 Donald’s notice of appeal from the fee order in this case was filed forty-six days after
entry of the order. As a result, it was untimely. We therefore lack jurisdiction to address his
appeal from that order, and the appeal from that order is hereby dismissed.
IX. Remainder of Kimberly’s motion to dismiss appeal
Kimberly also asserts that Kristin’s and Donald’s appeals should be dismissed in their
entirety because Donald was not authorized to act as Kristin’s attorney in filing her appeal and
Donald did not formally intervene in the proceedings below and thus lacks standing to appeal.
In the interest of clarifying the facts, we note that Donald entered an appearance as Kristin’s
counsel before filing a notice of appeal on her behalf; that neither Kristin nor her attorney ad
litem objected to the appeal going forward; and that Donald participated in the proceedings
below by filing pleadings and attending hearings virtually from the onset of the case. In any
29
Craig v. Carrigo, 353 Ark. 761, 121 S.W.3d 154 (2003); Ives Trucking Co. v. Pro Transp.,
341 Ark. 735, 19 S.W.3d 600 (2000).
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event, we do not view Kimberly’s motion to dismiss on these grounds as a challenge to our
jurisdiction to hear the appeal. We therefore conclude that it is unnecessary to address the
remainder of her motion, and we hold that it is moot by virtue of our affirmance of the case.
Affirmed; motion to dismiss granted in part.
G LADWIN and H ENRY, JJ., agree.
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