Ronald J. Hettler, Robin Hettler and Cornwall Insurance Agency, Inc. d/b/a Hettler-Brentholtz Insurance v. The Travelers Lloyds Insurance Company--Appeal from 72nd District Court of Lubbock County

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Laws-info.com » Cases » Texas » 7th District Court of Appeals » 2005 » Ronald J. Hettler, Robin Hettler and Cornwall Insurance Agency, Inc. d/b/a Hettler-Brentholtz Insurance v. The Travelers Lloyds Insurance Company--Appeal from 72nd District Court of Lubbock County

State: Texas

Court: Texas Northern District Court

Docket No: 07-04-00056-CV

Case Date: 10/06/2005

Plaintiff: Ronald J. Hettler, Robin Hettler and Cornwall Insurance Agency, Inc. d/b/a Hettler-Brentholtz Insura

Defendant: The Travelers Lloyds Insurance Company--Appeal from 72nd District Court of Lubbock County

Preview:In The

Court of Appeals Ninth District of Texas at Beaumont
____________________ NO. 09-10-00074-CV ____________________ IN RE JEFFERSON COUNTY APPRAISAL DISTRICT

Original Proceeding

OPINION Jefferson County Appraisal District ("JCAD") seeks a writ of mandamus compelling the trial court to vacate orders granting Total Petrochemicals, USA, Inc., Total Par L.P., Total Par General Partner, L.L.C., and Total Par Limited Partner, L.L.C.s (collectively "Total") motion to compel discovery related to the identity of JCADs jury consultant, and denying JCADs Motion to Reconsider and Motion for Protective Order on its assertion of discovery objections and privileges. JCAD further asks this Court to enter a modified order, sustaining each of JCADs assertions of privilege and objections to Totals interrogatories, and reversing the trial courts order directing JCAD to supplement its discovery responses and to "conclude that JCAD is not required to produce any of the
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information sought by Total, and that Total is not entitled to depose JCADs jury consultant." Because the information Total seeks to discover is privileged or outside the scope of discovery, we conditionally grant the writ of mandamus. BACKGROUND Total filed the underlying lawsuit challenging JCADs tax appraisal for Totals refinery in Port Arthur, Texas. While deposing Mark Brumbaugh, one of JCADs

designated testifying experts, Total learned that counsel for JCAD had conducted a mock trial utilizing the services of a trial/jury consultant. Brumbaugh was questioned

extensively during his deposition regarding the mock trial. Among other things, Total questioned Brumbaugh regarding who was present at the mock trial, the number of jurors who participated, the length of the mock trial, the conclusions or opinions expressed by the jurors, how the case was presented to the jurors, where the mock trial was held, whether Brumbaugh or other witnesses testified in the mock trial, and the identity of the consulting company that conducted the mock trial. Brumbaugh answered each of the questions without objection by counsel for JCAD. Brumbaugh provided details about the

arguments presented, as well as his perception of the jurors reaction to those arguments. Brumbaughs billing records showed that several days later he spent seven hours doing "mock trial follow-up." Brumbaugh explained that he had several telephone

conversations with JCADs lawyers reviewing the mock trial. Total also questioned

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Brumbaugh regarding the substance of those telephone conversations without objection by counsel for JCAD, wherein he explained: Well, I was concerned that we didnt win and I was -- there were more questions about how the process works and why we represented the case the way we did and, you know, was -- was reassured that we intentionally represented it in a way to -- to feret [sic] out what might be our -- our weakest arguments; not necessarily to try to see if we had good arguments ourselves, but to try to find where our holes were. When asked if he had seen a copy of the consultants report, Brumbaugh responded that he had not. Brumbaugh also answered questions about any changes made as a result of the adverse result of the mock trial and he responded, "we didnt change anything as a result of that trial." Specifically, Brumbaugh testified, "I dont know if anybody else has changed their approach or tactics, but I didnt change anything." When questioned regarding whether there were any recommendations made by the consultants, Brumbaugh responded, "I dont remember. None that influenced me or my approach." Brumbaugh reiterated that he could not recall anything the jury consultant said at the conclusion of the mock trial, or the name of the jury consultant, but he agreed to provide the name at a later date. Following Brumbaughs deposition testimony, Total sent JCAD a letter asking JCAD to "supplement [its] response to request for disclosure" with information about JCADs jury consultant. Because Rule 194.2(f) is expressly limited to requests for information about testifying experts, JCAD refused to supplement its responses to Totals

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Request for Disclosure with information regarding its jury consultant. See TEX. R. CIV. P. 194.2(f). Thereafter, Total filed a Motion to Compel Designation of Undisclosed Experts and Related Discovery; arguing that based on Brumbaughs deposition testimony, "it is clear that [JCADs] testifying experts . . . reviewed the mental impressions and opinions of [JCADs] mock trial/jury consultants." Total requested that the trial court compel JCAD to "disclose the identities of the mock trial/jury consultants and disclose the information required by Rule 192.3(e)." Total also requested an order from the trial court allowing Total to depose the jury consultant. On the morning of the hearing on Totals Motion to Compel, Total served JCAD with the following four interrogatories seeking information about JCADs jury consultant and the mock trial: 1. With regard to any consulting expert whose mental impressions or opinions have been reviewed by a testifying expert, please provide the experts name, address, and telephone number. 2. Please identify by name and address all persons present during the Mock Trial which occurred in Beaumont, Texas on or about September 3, 2009. 3. Please identify by name and address all persons present during the Mock Trial follow-up which occurred on or about September 9, 2009. 4. Please identify by name and address the jury consultant in charge of the Mock Trial which took place in Beaumont, Texas on or about September 3, 2009.

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Following the hearing, JCAD responded to the interrogatories.

In response to

interrogatory number one, JCAD responded in part, "None. JCADs ,,jury consultant is a member of JCADs trial team. He is not a consulting ,,expert as contemplated by the Texas Rules of Civil Procedure." JCAD further stated in response to interrogatory number one that "no mental impressions or opinions of the jury consultant were reviewed by any testifying expert," and objected that "such information is protected from disclosure by the work product privilege." JCAD asserted various other objections and privileges in response to the remaining three interrogatories, including objections on the basis of relevance and attorney-client and work product privileges. By order dated January 14, 2010, the trial court granted Totals motion to compel the identity of JCADs consulting expert "for discovery purposes only" and further required JCAD to "supplement its responses to Plaintiffs discovery requests" to "identify the consultant(s) who conducted the subject mock trial so that he/they can be deposed by Plaintiffs." Thereafter, JCAD filed a motion to reconsider, motion for protective order, request for an in camera review and request for hearing. After a hearing, by order dated February 5, 2010, the trial court denied the motion to reconsider and motion for protective order, overruled each JCADs objections and privileges asserted in response to Totals interrogatories, and affirmed its prior order granting Totals motion to compel. Thereafter, JCAD filed this petition for writ of mandamus.

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MANDAMUS An appellate court may issue a writ to correct an abuse of discretion for which relator has no adequate remedy by appeal. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A failure by the trial court to apply the law correctly constitutes an abuse of discretion. Id. at 840. Likewise, a trial court abuses its discretion when it orders discovery exceeding the scope permitted by the rules of procedure. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding); see also In re Weir, 166 S.W.3d 861, 865 (Tex. App.--Beaumont 2005, orig. proceeding). When a trial court orders disclosure of privileged information, the aggrieved party lacks an adequate remedy by appeal and mandamus will lie. See Huie v. DeShazo, 922 S.W.2d 920, 928 (Tex. 1996) (orig. proceeding); In re Baptist Hosp. of Se. Tex., 172 S.W.3d 136, 139 (Tex. App.--Beaumont 2005, orig. proceeding). DEPOSITION OF THE TRIAL/JURY CONSULTANT "In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action[.]" TEX. R. CIV. P. 192.3(a). "While the scope of discovery is quite broad, it is nevertheless confined by the subject matter of the case and reasonable expectations of obtaining information that will aid resolution of the dispute." TEX. R. CIV. P. 192, TEXAS RULES OF COURT, VOL. I, STATE 97, cmt. 1 (West 2010); see also In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) ("[Discovery] requests must be reasonably tailored to include only matters relevant to the
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case."). The Texas civil procedure and evidence rules protect the work product and attorney-client privileges that developed from Texas common law. In re Baptist Hosp., 172 S.W.3d at 139. "Work product" is defined under the rules of procedure as: (1) material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a partys representatives, including the partys attorneys, consultants, sureties, indemnitors, insurers, employees, or agents; or (2) a communication made in anticipation of litigation or for trial between a party and the partys representatives or among a partys representatives, including the partys attorneys, consultants, sureties, indemnitors, insurers, employees, or agents. TEX. R. CIV. P. 192.5(a). "[T]he work product of an attorney or an attorneys

representative that contains the attorneys or the attorneys representatives mental impressions, opinions, conclusions, or legal theories -- is not discoverable." TEX. R. CIV. P. 192.5(b)(1). "Any other work product is discoverable only upon a showing that the party seeking discovery has a substantial need of the materials in the preparation of the partys case and that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means." TEX. R. CIV. P. 192.5(b)(2). ",,The primary purpose of the work product rule is to shelter the mental processes, conclusions, and legal theories of the attorney, providing a privileged area within which the lawyer can analyze and prepare his or her case." In re Bexar County Criminal Dist. Atty's Office, 224 S.W.3d 182, 186 (Tex. 2007) (quoting Owens-Corning Fiberglas Corp. v. Caldwell, 818 S.W.2d 749, 750 (Tex. 1991)). The work product privilege "promote[s]
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the adversary system by safeguarding the fruits of an attorneys trial preparations from the discovery efforts of the opponent." Wiley v. Williams, 769 S.W.2d 715, 717 (Tex.

App.--Austin 1989, orig. proceeding); see generally In re Certain Underwriters at Lloyd's London, 294 S.W.3d 891, 898 (Tex. App.--Beaumont 2009, no pet.) (The work product privilege "protects materials and mental impressions prepared ,,in anticipation of litigation from discovery."). We conclude that the jury consultant was retained to assist JCADs counsel with case strategy and presentation in anticipation of trial. 1 In his affidavit, submitted with JCADs motion to reconsider, the jury consultant stated that the goal of the mock trial/focus group he conducted "was to determine how to best present the facts to a jury." He further explained that his "mental impressions and opinions regarding how to best present the facts were then provided in a confidential report to JCADs lawyers . . . several weeks later." As we explained in In re Baptist Hospital: [T]he ,,[p]roper presentation of a clients case demands that [the attorney] assemble information, sift what he considers to be the relevant from the JCAD initially submitted the affidavit of the jury consultant in camera with its motion to reconsider and, thereafter, served a copy of the affidavit, with all identifying information redacted, on Total. In his affidavit, submitted with JCADs motion to reconsider, the jury consultant stated that pursuant to the engagement letter he sent to JCAD, he and JCADs counsel agreed that he was "neither being retained as an expert witness on liability or damages issues, nor as a consulting expert." He explained that he specializes in "case presentations, witness communications, trial strategy and jury selection" and confirmed that he had "no factual knowledge about this case except for knowledge acquired from . . . [JCADs] counsel." He further stated that he has "no specialized knowledge or expertise relating to any of the substantive issues in this case" and has "never formed any opinions or mental impressions relating to the subject matter or claims or defenses in this case."
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irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients interests. In re Baptist Hosp., 172 S.W.3d at 139 (quoting Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947)). In Baptist Hospital, Baptist sued various contractors and engineering and architectural firms asserting claims related to the design and construction of a surgical center owned by Baptist. Beaumont Surgical Affiliates ("BSA"), real party in interest, was Baptists tenant at the center. BSA intervened in the lawsuit claiming Baptist breached the lease by failing to provide suitable premises. Id. In asserting its right to depose one of Baptists attorneys, BSA presented affidavits stating the attorney was involved in observing, investigating, monitoring, reviewing, and evaluating the technical problems at the surgery center. Id. at 142. BSA argued that the attorneys involvement in that case was not the work of an attorney, but was more akin to the work of an engineer, construction manager, or relationship manager. Id. In holding that the trial court abused its discretion in ordering the deposition of trial counsel, we stated: Every attorney of record in a case being litigated, or in a case where litigation is anticipated, obtains ,,factual, relevant information. Performing the function of a lawyer does not preclude a litigation attorney from observing, investigating, monitoring, and evaluating the facts surrounding the matter in controversy. The evidence does not show [the attorney] was a fact witness divorced from the litigation. His work was reasonably related to and in furtherance of the prosecution of Baptists case against the defendants, and also related to mitigating its damages regarding BSA and to
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defending against BSAs causes of action. We conclude his activities fall within the Rule 192.5 work product definition. Id. at 143. The same holds true for work performed in anticipation of trial by an attorneys consultants, employees, and agents. TEX. R. CIV. P. 192.5(a)(1). Discovery of the jury consultants discussions with JCADs legal counsel, including notes of such discussions, may reflect the mental impressions and legal theories of JCADs counsel. Therefore, such information goes to the core of the work product doctrine and is not discoverable. See TEX. R. CIV. P. 192.5(b)(1). Likewise, any material or impressions developed by the jury consultant in anticipation of trial that reflect the consultants opinions or conclusions is ordinarily not discoverable, unless otherwise disclosed or reviewed by a testifying expert. See id.; see also TEX. R. CIV. P. 192.3(e). Work product that does not reflect the impressions, opinions, conclusions, or legal theories of JCADs counsel or the jury consultant may be discoverable only upon a showing "that the party seeking discovery has substantial need of the materials in the preparation of the partys case" and the party is unable to obtain the materials by other means "without undue hardship[.]" TEX. R. CIV. P. 192.5(b)(2). The Total entities have not made, or attempted to make, such a showing nor have they identified any evidence in the record showing that such information was reviewed by a testifying expert. See id.; see also TEX. R. CIV. P. 192.3(e). Total is not entitled to depose the jury consultant. See TEX. R. CIV. P. 192.5, 192.3(e).

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Total argues that JCAD waived the work product privilege by allowing its testifying experts to view the mock trial. See generally TEX. R. CIV. P. 192.5(c)(1), 192.3(e). We disagree. Brumbaugh testified that he had not seen a copy of the jury consultants report. Additionally, JCAD submitted uncontroverted affidavits from its testifying experts, JCADs counsel, and the jury consultant, which establish that no privileged information was disclosed to JCADs testifying experts in conjunction with their viewing of the mock trial.2 In support of its contention that JCAD waived its work product privilege, Total

With its motion to reconsider and motion for protective order, JCAD submitted affidavits from its testifying experts, Brumbaugh and Paul Hornsby, as well as an affidavit from counsel for JCAD, and an affidavit from the jury consultant for in camera review by the court. In Brumbaughs affidavit he stated that he attended the mock trial, but remained in a viewing room where he viewed the entire proceeding on a monitor. Brumbaugh stated that he met the jury consultant but otherwise had limited contact with the consultant. Brumbaugh stated, "at no time . . . did the [jury] consultant ever give any opinions or mental impressions related to this case." Brumbaugh further stated, "I have not been in communication with the [jury] consultant since [the date of the mock trial], not have I ever viewed any written communication from him or reports prepared by him." Total has not sought to depose JCADs other designated testifying expert, Paul Hornsby. In his affidavit, Hornsby also stated that he viewed the mock trial on a monitor in the viewing room, that on the date of the mock trial he had limited contact with the jury consultant, and that the jury consultant did not give any opinions or mental impressions relating to the case. Hornsby likewise stated that he has not been in communication with the consultant since the date of the mock trial and has never viewed any written communication from him or reports prepared by him. In an affidavit submitted by counsel for JCAD, counsel stated that he also viewed the mock trial and jury deliberations from a monitor in the viewing room. According to counsel, the consultant introduced himself to those in the viewing room but "except during
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cites Rule 192.3(e) of the Texas Rules of Civil Procedure and In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 438 (Tex. 2007) (orig. proceeding). Rule 192.3(e) of the Texas Rules of Civil Procedure allows the discovery of certain information "regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert[.]" TEX. R. CIV. P. 192.3(e).3 Christus involved a brief lunch, the [jury] consultant was not in the [v]iewing [r]oom." Counsel stated that "[a]t no time [on the date of the mock trial] . . . did the [jury] consultant ever express any opinions or mental impressions." According to counsel, "[a]pproximately two weeks following [the mock trial date] the [jury] consultant delivered a report to trial counsel containing his opinions relating to the mock trial/focus group." Counsel confirmed that "[n]either Mr. Hornsby nor Mr. Brumbaugh has ever seen the [jury] consultants report, and none of the contents of the report has otherwise been disclosed to them." The affidavit of the jury consultant, submitted in camera, stated "[t]hroughout the data gathering process on [the date of the mock trial], I had neither formed nor did I state any opinions or mental impressions regarding how to best present the facts." Additionally, the affidavit stated, "[f]urthermore mock trials/focus groups do not cause me to form any opinions or mental impressions relating to the subject matter [of the case]." "Any mental impressions and opinions regarding how to best present the facts to a jury were not formed until after the mock trial/focus group was completed . . . . My mental impressions and opinions regarding the [sic] how to best present the facts were then provided in a confidential report to JCADs lawyers only several weeks later." "Following the mock trial, I have neither met nor communicated with Mr. Hornsby or Mr. Brumbaugh."
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Texas Rule of Civil Procedure 192.3(e) provides as follows:

(e) Testifying and Consulting Experts. The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. A party may discover the following information regarding a testifying expert or regarding a consulting expert whose mental impressions or opinions have been reviewed by a testifying expert:
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documents related to an internal investigation performed by Christus Spohn Hospital and inadvertently produced by a paralegal4 to the hospitals testifying expert. In re Christus, 222 S.W.3d at 436. The plaintiff sought to depose the hospitals expert and requested all documents furnished to the expert in connection with her consultation on the case. Id. Documents related to the hospitals internal investigation were brought to the deposition, at which time the hospitals counsel learned they had been forwarded to the expert. Id. As a matter of first impression, the Supreme Court held that expert-disclosure rules set forth in Rule 192.3 precluded the snap-back of documents inadvertently produced so long as the

(1) the experts name, address, and telephone number; (2) the subject matter on which a testifying expert will testify; (3) the facts known by the expert that relate to or form the basis of the experts mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired; (4) the experts mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them; (5) any bias of the witness; (6) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of a testifying experts testimony; (7) the experts current resume and bibliography. TEX. R. CIV. P. 192.3(e). According to the Hospitals counsel, the paralegal who sent the documents to the Hospitals testifying expert had recently moved to Texas from California, where she understood that all materials forwarded to an expert witness remained confidential. She assumed the same rule applied in Texas.
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expert remained designated to testify at trial.

Id. at 438-45.

Here, the evidence

establishes that JCAD has not produced, or otherwise disclosed the contents of, the jury consultants report to its testifying experts. See TEX. R. CIV. P. 192.3(e), 192.5(c)(1). Christus is inapplicable to the present case.5 Total further argues that it is "not seeking any information beyond what has been seen or heard by the testifying experts." Significantly, however, Total was not precluded from questioning JCADs testifying experts regarding what they saw or heard at the mock trial. Total questioned Brumbaugh extensively regarding the mock trial and how, if at all, the mock trial affected his expert opinion. See TEX. R. CIV. P. 192.3(e)(3). As pointed out by Total, JCAD lodged no objections to these questions. 6 See TEX. R. CIV. P. 199.5(e), (f). Total has not sought to depose JCADs other testifying expert, Paul

Total also cites Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d 556, 559 (Tex. 1990) (orig. proceeding) and In re Family Hospice, Ltd., 62 S.W.3d 313, 315 (Tex. App.--El Paso 2001, orig. proceeding), in support of its waiver argument. In McIlhany, the Texas Supreme Court held that parties could not circumvent the discovery rules by re-designating their testifying experts as consulting only experts. McIlhany, 798 S.W.2d at 560. Similarly, in In re Family Hospice, the court held that because the documents at issue were "the product and/or documentation of the mental impressions of a testifying expert," the documents were discoverable. In re Family Hospice, Ltd., 62 S.W.3d at 316. Neither McIlhany nor In re Family Hospice involved waiver. Total appears to recognize the same. In its response to JCADs petition, Total states that "[d]uring Brumbraughs deposition, TOTALs attorney asked at least a dozen different questions concerning the details of the mock trial and its follow up. Brumbraugh responded to each question without objection."
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Hornsby. Because Total is not entitled to depose the jury consultant, the trial courts order granting Totals motion to compel was improper. TOTALS INTERROGATORIES Generally, the trial court has discretion to control the scope of discovery for the cases over which it presides. See Dillard Dep't Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.1995) (orig. proceeding). However, its discretion is not unlimited, as the trial court is obligated to make an effort to impose reasonable discovery limits. In re Am. Optical Corp., 988 S.W.2d at 713. Ordering discovery that exceeds "that permitted by the rules of procedure" constitutes an abuse of discretion. Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995). The trial courts order of February 5, 2010, denied JCADs motion for protective order and overruled each of JCADs objections and privileges asserted in response to the interrogatories of Total. The identity of persons present during the mock trial or during any follow-up communications regarding the mock trial, as sought in Totals interrogatories, is irrelevant and outside the proper scope of discovery. See generally TEX. R. EVID. 401; see also TEX. R. CIV. P. 192.3, 192.5. CONCLUSION We find the trial court abused its discretion in ordering discovery that exceeds the scope permitted by the rules, and JCAD has no adequate remedy by appeal. See Walker, 827 S.W.2d at 843. The writ of mandamus is conditionally granted. The trial court shall vacate its orders signed on January 14, 2010, and February 5, 2010. We are confident the
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trial court will comply with this opinion. A writ will issue only if the trial court fails to comply. WRIT CONDITIONALLY GRANTED. PER CURIAM Submitted on April 8, 2010 Opinion Delivered June 10, 2010 Before McKeithen, C.J., Gaultney and Kreger, JJ.

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