Appeal by petitioner from orders entered 10 June 2005 and 5
July 2005 by Judge James L. Baker, Jr. in Superior Court, Macon
County. Heard in the Court of Appeals 11 May 2006.
Ferguson, Stein, Chambers, Gresham & Sumter, P.A., by S. Luke
Largess, for petitioner-appellant.
Fisher & Phillips, LLP, by Shannon Sumerell Spainhour and
Mason G. Alexander, for respondent-appellee.
Tharrington Smith, by Neal A. Ramee; and Allison B. Schafer,
for the North Carolina School Boards Association, amicus
curiae.
McGEE, Judge.
The Macon County Board of Education (the board) hired Dorothy
Davis (petitioner) in August 2000 to teach high school English at
Nantahala School. At the end of petitioner's fourth year of
teaching, the principal of Nantahala School, Charles Baldwin (the
principal), recommended to Superintendent of Macon County Schools
Rodney Shotwell (the superintendent), that petitioner's contract
not be renewed.
The superintendent conducted an investigation regarding the
principal's recommendation not to renew petitioner's contract. The
superintendent met with the principal and with petitioner, and
reviewed notes provided by each of them. The record tends to show
the following regarding the principal's recommendation that
petitioner's contract not be renewed. In April 2003, at a
Nantahala School festival, petitioner squirted the principal in the
face with a water pistol and walked away. A student saw petitioner
squirt the water pistol and stated: "If she can do it so can I."
The student then squirted the principal in the face with a water
pistol. This same student had squirted the principal with a water
pistol the year before and had received a paddling. After thesecond incident during the April 2003 festival, the principal
administered corporal punishment to the student in the presence of
petitioner. The principal wrote in the Nantahala School discipline
log that petitioner's actions "demeaned [him] in front of students,
faculty and parents[,]" and "degrade[d] [the] school's standing
with . . . parents and community."
The record also shows that, during petitioner's fourth year of
teaching at Nantahala School, she had requested to chaperone the
junior/senior school trip. Petitioner's request was denied and
she stated her "feelings were hurt that [she] was just ignored."
According to the principal, petitioner admitted to him that she had
complained to other teachers about having to cover classes for
teachers who were chaperoning the trip. The principal told
petitioner she was "fostering a negative attitude in the faculty."
The principal also told petitioner she had been given an
opportunity to chaperone a school ski trip, but had failed to
properly do so because she had driven her own vehicle rather than
riding on the bus with the students. Petitioner stated: "This was
probably wrong of me, but I have seen other chaperones do the same
thing on other trips[.]" Petitioner also said she asked the
sponsoring teacher if she could drive her own vehicle and was told
she could. The principal told petitioner she "was unprofessional
because [she could] not ever admit [she] was wrong." The principal
also told the superintendent that petitioner had raised her voice
on several occasions during meetings with the principal.
The superintendent additionally reviewed two "Below Standard"performance evaluations of petitioner in the areas of facilitating
instruction and performing non-instructional duties. The
superintendent interviewed four staff members at the school and
asked each of them whether they believed "the principal [had] a
personal bias against [petitioner]." None of the staff members
indicated that the principal was personally biased against
petitioner. The superintendent provided a memorandum to the board
in which the superintendent summarized his investigation and
recommended that the board not renew petitioner's contract. The
superintendent wrote the following:
After careful consideration and review, I am
not recommending tenure status for
[petitioner], English teacher, Nantahala
School. This decision is based upon my
investigation that followed the principal's
recommendation to non-renew.
I have met with both [petitioner] and the
principal on separate occasions to discuss
each one's point of view. [Petitioner] did not
know why the situation had progressed to the
point that it is today. After speaking with
[the principal] about [petitioner's] concerns,
he expressed his interactions with
[petitioner] over the past three years. On
several occasions, the two of them had met in
his office and the conference ended abruptly
and with [petitioner's] voice being raised in
the process. There was a water gun incident
in which [petitioner] squirted the principal
after being told not to do so. This was done
in the presence of a student, who, in turn,
felt he could do the same thing to [the
principal].
While this may seem to be an isolated case,
[the principal] feels that [petitioner] may be
a counter-productive force concerning the
morale of the faculty at Nantahala School. It
is imperative that the morale of the school be
first priority. [Petitioner] openly complained
[about] covering classes for other teachersand about not being a chaperone on the
Junior/Senior trip. The final blow came
during [petitioner's] summative evaluation
meeting with [the principal]. During this
meeting, [petitioner] was told that she was
marked down with "below standard" in two
areas. Rather than inquiring into why this
occurred, she proceeded to tell [the
principal] that she was going to talk with her
attorney.
The superintendent presented this information to the board.
The minutes of the closed session of the board's meeting state:
"The Board discussed [the] Superintendent['s] . . . recommendation
to deny tenure to [petitioner]. The Superintendent reviewed
[petitioner's] most recent evaluation with the Board . . ., which
included two ratings below standard, and [the] Superintendent
. . . read the attached memorandum . . . to the Board." The board
voted not to renew petitioner's contract.
Petitioner filed an amended notice of appeal from the board's
decision, alleging that the decision of the board "violated
N.C.G.S. § 115C-325(m)(2) in that the decision was arbitrary and
capricious or was based on personal considerations." The trial
court conducted a hearing on 26 May 2005 and entered an order on 10
June 2005 upholding the board's decision. Petitioner filed a
motion for reconsideration on 20 June 2005. In her motion,
petitioner stated that at the hearing, the board "claimed it had a
copy of the minutes from an April 2003 faculty meeting convened
prior to the Spring Festival in which the ban on water pistols was
announced - and that [p]etitioner had deliberately ignored that
directive." However, petitioner contended this was false in an
affidavit filed with her motion for reconsideration. In an orderentered 5 July 2005, the trial court denied petitioner's motion for
reconsideration. Petitioner appeals.
[1] We note petitioner failed to cite in the record on appeal
the record pages corresponding to each of her assignments of error.
The board filed a motion with this Court to dismiss petitioner's
appeal based on this violation of the North Carolina Rules of
Appellate Procedure. Petitioner filed a written motion with this
Court seeking leave to amend the record on appeal to correct the
assignments of error. However, despite the Rules violation, we are
able to determine the issues in this case. Since petitioner's
Rules violation is not "so egregious as to invoke dismissal[,]"
Symons Corp. v. Insurance Co. of North America, 94 N.C. App. 541,
543, 380 S.E.2d 550, 552 (1989), we elect to review the significant
issues of this appeal pursuant to N.C.R. App. P. 2. See Symons, 94
N.C. App. at 543, 380 S.E.2d at 552.
I.
[2] Petitioner first argues the trial court erred by (1)
determining that it was required to apply the whole record test to
its review of respondent's decision and (2) failing to review
respondent's decision
de novo. Petitioner states in her brief that
she "agrees that her claim that the decision was arbitrary and
capricious should be reviewed under the 'whole record' test[.]"
However, petitioner contends the trial court should have applied
de
novo review to her argument that the board did not renew her
contract for personal reasons. In its order filed 10 June 2005,
the trial court found and concluded as follows: The appropriate standard of review in this
case is a review based upon the "whole record"
of Respondent's decision. A
de novo standard
of review is not applicable to any portion of
[the trial court's] review of this appeal,
according to
Spry v. City of Winston-
Salem/Forsyth County Board of Education, 105
N.C. App. 269, 412 S.E.2d 687 (1992),
aff'd
332 N.C. 661, 422 S.E.2d 575 and N.C. Gen.
Stat. § 115C-44(b).
N.C. Gen. Stat. § 115C-325(m)(2) (2005) provides that a school
board, "upon recommendation of the superintendent, may refuse to
renew the contract of any probationary teacher . . . for any cause
it deems sufficient: Provided, however, that the cause may not be
arbitrary, capricious, discriminatory or for personal or political
reasons." Pursuant to N.C. Gen. Stat. § 115C-325(n) (2005),
any probationary teacher whose contract is not
renewed under G.S. 115C-325(m)(2) shall have
the right to appeal from the decision of the
board to the superior court for the superior
court district or set of districts as defined
in G.S. 7A-41.1 in which the career employee
is employed.
On appeal of a decision of a school board, a trial court sits
as an appellate court and reviews the evidence presented to the
school board.
In re Alexander v. Cumberland Cty. Bd. of Educ., 171
N.C. App. 649, 653-54, 615 S.E.2d 408, 413 (2005). The proper
standard of review depends upon the nature of the asserted error.
Id. at 654, 615 S.E.2d at 413. N.C. Gen. Stat. § 150B-51(b)
governs judicial review of school board actions,
Farris v. Burke
Cty. Bd. of Educ., 355 N.C. 225, 235, 559 S.E.2d 774, 781 (2002),
and provides as follows:
Except as provided in subsection (c) of this
section, in reviewing a final decision, the
court may affirm the decision of the agency orremand the case to the agency or to the
administrative law judge for further
proceedings. It may also reverse or modify
the agency's decision, or adopt the
administrative law judge's decision if the
substantial rights of the petitioners may have
been prejudiced because the agency's findings,
inferences, conclusions, or decisions are:
(1) In violation of constitutional
provisions;
(2) In excess of the statutory authority
or jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence
admissible under G.S. 150B-29(a),
150B-30, or 150B-31 in view of the entire
record as submitted; or
(6) Arbitrary, capricious, or an abuse of
discretion.
N.C. Gen. Stat. § 150B-51(b) (2005). A
de novo standard of review
applies to asserted errors under subsections (1) through (4) of
N.C.G.S. § 150B-51(b), while errors under subsections (5) and (6)
of this statute are reviewed under the whole record test.
In re
Alexander,
171 N.C. App. at 654, 615 S.E.2d at 413.
"Under a
de novo review, the superior court 'consider[s] the
matter anew[] and freely substitut[es] its own judgment for the
agency's judgment.'"
Mann Media, Inc. v. Randolph Cty. Planning
Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (quoting
Sutton v.
N.C. Dep't of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341
(1999)). Pursuant to the whole record test, the reviewing court
examines all competent evidence to determine whether a school
board's decision was based upon substantial evidence.
Zimmerman v.Appalachian State Univ., 149 N.C. App. 121, 129, 560 S.E.2d 374,
380 (2002). "Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
Comr. of Insurance v. Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d
882, 888 (1977). Pursuant to N.C. Gen. Stat. § 115C-44(b) (2005),
"[i]n all actions brought in any court against a local board of
education, the order or action of the board shall be presumed to be
correct and the burden of proof shall be on the complaining party
to show the contrary."
In
Spry v. Winston-Salem/Forsyth Bd. of Educ., 105 N.C. App.
269, 412 S.E.2d 687,
aff'd per curiam, 332 N.C. 661, 422 S.E.2d 575
(1992), the plaintiff, a probationary teacher whose contract was
not renewed by the school board, sued the school board under prior
law, which allowed the right to a jury trial in such cases.
Id. at
272-73, 412 S.E.2d at 689. The plaintiff argued, pursuant to
N.C.G.S. § 115C-325(m)(2), that the school board's decision not to
renew her contract was arbitrary, capricious, or based upon
personal considerations.
Id. at 274, 412 S.E.2d at 690. Our Court
held that the whole record test applied to the plaintiff's appeal.
Id. at 272, 412 S.E.2d at 689.
In the present case, despite petitioner's contention, the
trial court did not determine that whole record review was the only
standard of review applicable to decisions of school boards.
Rather, because of the nature of the asserted errors in the present
case, the trial court correctly determined that the whole record
test was the proper standard of review. Likewise, in its order onpetitioner's Rule 59 and Rule 60 motions, from which petitioner
also appealed, the trial court stated as follows:
This court did not conclude it could "only"
review the case under the whole record
standard, thereby disregarding and ignoring
all other methods of review, as Petitioner
contends; this court actually determined the
specific nature of this controversy and then
determined the whole record standard was the
appropriate and proper standard of review for
this particular case.
Moreover, whole record review was the proper standard of
review to apply to petitioner's claim that the board terminated her
contract for personal reasons. Our Court has held that "[i]ssues
regarding the intent of the parties are issues of fact."
Harris-Teeter Supermarkets v. Hampton, 76 N.C. App. 649, 652, 334
S.E.2d 81, 83,
disc. review denied, 315 N.C. 183, 337 S.E.2d 857
(1985).
In
N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C.
649, 599 S.E.2d 888 (2004), a park ranger, Carroll, was demoted
for,
inter alia, having "willfully violated the Division Law
Enforcement written guidelines on the use of emergency vehicles[.]"
Id. at
656, 599 S.E.2d at 893. Carroll filed a petition for a
contested case hearing and an administrative law judge entered a
recommended decision directing that Carroll be reinstated with back
pay.
Id. at 652, 599 S.E.2d at 890. The State Personnel
Commission (SPC) adopted the recommended decision and ordered that
Carroll be reinstated with back pay.
Id. However, the trial court
reversed the SPC and our Court affirmed.
Id.
In
Carroll, our Supreme Court noted that fact-intensive issuesreceive whole record review.
Carroll, 358 N.C. at 659, 599 S.E.2d
at 894. The Court addressed the issue of whether "Carroll's
alleged 'willful violation' of the Division's written guidelines
for the use of emergency vehicles constituted 'just cause' for his
demotion."
Id. at 670, 599 S.E.2d at 901. One of the Division's
guidelines permitted a law enforcement officer to "use emergency
warning devices when the officer ha[d] a 'reasonable belief' that
an emergency situation exist[ed]."
Id. at 671, 599 S.E.2d at 902.
The SPC found as a fact that Carroll had a reasonable belief that
an emergency situation existed and the SPC concluded that Carroll's
conduct did not constitute a willful violation of work rules.
Id.
Our Supreme Court held as follows: "The trial court reviewed the
SPC's findings regarding . . . Carroll's motivations for his
conduct under the whole record test. Because . . . Carroll's
subjective state of mind is manifestly a question of fact, this was
the correct standard of review to apply."
Id.
In the present case, petitioner argues that the board did not
renew her contract because it harbored personal bias towards
petitioner. In essence, petitioner argues that the intent behind
the board's decision was personal. As in
Carroll, because the
board's motivation for its decision not to renew petitioner's
contract was "manifestly a question of fact," the trial court
properly engaged in whole record review of this issue.
See Id.
Therefore, the trial court did not err and we overrule petitioner's
assignment of error.
II.
[3] Petitioner next argues the trial court misapplied the
whole record test with regard to petitioner's claim that the
board's decision was arbitrary. Specifically, petitioner argues
that, because of a factual inaccuracy in the superintendent's
memorandum to the board, the trial court could not affirm the
board's decision without "substituting its judgment for the Board's
and deciding what the Board would have concluded if it had not
received incorrect information."
"An arbitrary or capricious reason is one 'without any
rational basis in the record, such that a decision made thereon
amounts to an abuse of discretion.'"
Abell v. Nash County Bd. of
Education, 89 N.C. App. 262, 265, 365 S.E.2d 706, 708 (1988)
(quoting
Abell v. Nash County Bd. of Education, 71 N.C. App. 48,
52-53, 321 S.E.2d 502, 506 (1984),
disc. review denied, 313 N.C.
506, 329 S.E.2d 389 (1985)). "A court applying the whole record
test may not substitute its judgment for the agency's as between
two conflicting views, even though it could reasonably have reached
a different result had it reviewed the matter
de novo."
Watkins v.
N.C. State Bd. of Dental Exam'rs, 358 N.C. 190, 199, 593 S.E.2d
764, 769 (2004). "Only when there is no substantial evidence
supporting administrative action should the court reverse an
agency's ruling."
Mendenhall v. N.C. Dept. of Human Resources, 119
N.C. App. 644, 650, 459 S.E.2d 820, 824 (1995).
In the present case, the trial court made the following
unchallenged findings of fact:
11. The Superintendent prepared a memorandum
regarding his recommendation and provided thatmemorandum to [the board]. While it appears
the memorandum contains an inaccurate
reference (i.e., that before Petitioner
squirted the principal with the squirt gun,
she had been told not to), and may not include
all information available, the preparation and
presentation of the memorandum by itself does
not render the Superintendent's recommendation
or the ultimate decision arbitrary or
capricious. This Court has duly considered
the composition of the memorandum, and its
use, and the arguments presented by counsel
concerning the memorandum, in conducting the
review of the [board's] decision.
12. The Superintendent's memorandum, which is
part of the administrative record of the
[board's] decision, indicates reasons for the
decision that are not arbitrary, capricious,
based upon personal considerations or are
otherwise improper reasons, as designated in §
115C-325(m)(2).
The trial court properly applied the whole record test to the
evidence presented to the board. The trial court looked at all of
the evidence and determined there was substantial evidence to
support the board's determination, even without the inaccurate
information. The trial court did not "substitute its judgment" for
that of the board.
See Watkins, 358 N.C. at 199, 593 S.E.2d at
769. Accordingly, the trial court did not misapply the whole
record standard of review and we overrule this assignment of error.
III.
[4] Petitioner also argues the trial court misapplied the
whole record test by finding that the board conducted a sufficient
inquiry into the substantive reasons for its decision not to renew
petitioner's contract. In
Abell, our Court recognized that "[a]
school board may refuse to renew a probationary teacher's contract
upon recommendation of the superintendent. That recommendation isonly advisory, however; ultimate responsibility rests with the
board."
Abell, 71 N.C. App. at 52, 321 S.E.2d at 506. Our Court
interpreted N.C.G.S. § 115C-325(m)(2) "to impose a duty on boards
of education to determine the substantive bases for recommendations
of non-renewal and to assure that non-renewal is not for a
prohibited reason."
Id. at 52, 321 S.E.2d at 506. Our Court held
that "the advisory nature of the superintendent's recommendation to
not rehire a non-tenured teacher places the responsibility on the
Board to ascertain the rational basis for the recommendation before
acting upon it."
Id. at 53, 321 S.E.2d at 506. However, a school
board need not "make exhaustive inquiries or formal findings of
fact[.]"
Id. Rather, "the administrative record, be it the
personnel file, board minutes or recommendation memoranda, should
disclose the basis for the board's action."
Id. at 53, 321 S.E.2d
at 506-07.
In
Spry, the board of education hired the plaintiff as a
probationary teacher and assigned a support team to evaluate her
teaching performance.
Spry, 105 N.C. App at 270, 412 S.E.2d at
687-88. The support team informed the plaintiff that her teaching
performance was unacceptable.
Id. at 270, 412 S.E.2d at 688.
However, the plaintiff complained to the principal that she had
personality conflicts with the members of her support team.
Id.
The principal visited the plaintiff's class and then recommended,
through a member of the support team, that the school board not
renew the plaintiff's contract.
Id. at 270-71, 412 S.E.2d at 688.
The superintendent conducted an investigation and recommended thatthe school board not renew the plaintiff's contract, and
the school
board voted for non-renewal of the plaintiff's contract.
Id. at
271, 412 S.E.2d at 688.
The plaintiff filed an action against the board under the
prior law, which allowed the right to a jury trial in such cases.
Id. at 272-73, 412 S.E.2d at 689. The jury found that the school
board failed to renew the plaintiff's contract for arbitrary,
capricious and personal reasons and awarded damages to the
plaintiff.
Id. at 271, 412 S.E.2d at 688.
The school board argued on appeal that the trial court erred
by denying its motions for summary judgment, directed verdict and
judgment notwithstanding the verdict.
Id. The plaintiff argued
that the school board's decision not to renew her contract was for
arbitrary, capricious or personal reasons.
Id. at 274, 412 S.E.2d
at 690. Specifically, the plaintiff alleged that the members of
her support team were personally biased against her.
Id. However,
in making its decision not to renew the plaintiff's contract, the
school board considered the following information:
(1) a memo from the school superintendent
recommending that the Board not renew [the]
plaintiff's contract; (2) the superintendent's
exhibits which included materials prepared by
[the] plaintiff's principal and support team;
and (3) [the] plaintiff's exhibits, which
included letters of recommendation, her letter
to Principal Benjamin Warren outlining her
concerns about her support team, and several
evaluation forms. At the hearing, the Board
also heard [the] plaintiff, her attorney, and
a local teachers' organization representative
speak on [the] plaintiff's behalf before it
made its decision.
Id. Our Court held that even if the plaintiff's allegationsregarding her support team were true, the school board conducted a
sufficient inquiry into the matter.
Id. at 275, 412 S.E.2d at 690.
Our Court also held that "the inquiry by the superintendent's
office was sufficient to remove any taint that may have existed in
the support team's evaluation."
Id. Accordingly, our Court
reversed the judgment of the trial court.
Id. at 276, 412 S.E.2d
at 691.
In the present case, the principal recommended that
petitioner's contract not be renewed. The superintendent then
conducted an investigation regarding the principal's
recommendation. The superintendent met with the principal and with
petitioner and reviewed notes provided by them. The superintendent
also reviewed two "Below Standard" performance evaluations of
petitioner in the areas of facilitating instruction and performing
non-instructional duties. The superintendent interviewed four
staff members at the school and asked each of them whether they
believed "the principal [had] a personal bias against
[petitioner]." None of the staff members indicated that the
principal was personally biased against petitioner. The
superintendent provided a memorandum to the board in which the
superintendent summarized his investigation and recommended that
the board not renew petitioner's contract. The superintendent
presented this information to the board. The minutes of the closed
session of the board's meeting state: "The Board discussed [the]
Superintendent['s] . . . recommendation to deny tenure to
[petitioner]. The Superintendent reviewed [petitioner's] mostrecent evaluation with the Board . . ., which included two ratings
below standard, and [the] Superintendent . . . read the attached
memorandum . . . to the Board." The board voted not to renew
petitioner's contract.
Based upon the board's inquiry, and pursuant to
Abell, the
board satisfied its duties "to determine the substantive bases for
recommendations of non-renewal and to assure that non-renewal [was]
not for a prohibited reason."
See Abell, 71 N.C. App. at 52, 321
S.E.2d at 506. The administrative record in the present case shows
that petitioner's contract was not renewed because she threatened
to be "a counter-productive force concerning the morale of the
faculty at Nantahala School[]" based upon several instances of
petitioner's conduct. Moreover, the inquiry conducted by the
superintendent in the present case was similar to the inquiry
conducted by the superintendent in
Spry. As in
Spry, the
superintendent's investigation in the present case served to (1)
provide non-arbitrary and non-personal reasons for petitioner's
non-renewal and (2) "remove any taint that may have existed in the
[principal's] evaluation."
See Spry, 105 N.C. App. at 275, 412
S.E.2d at 690. We overrule petitioner's assignment of error.
IV.
[5] Petitioner argues the trial court abused its discretion by
denying her motion for reconsideration. Specifically, petitioner
assigned as error that "[t]he [trial] court erred in denying the
Motion for Reconsideration where the Motion showed that the Board
. . . had presented false information to the [trial] [c]ourt at theMay 26 hearing."
We review the denial of Rule 59 and Rule 60 motions for an
abuse of discretion.
Ollo v. Mills, 136 N.C. App. 618, 624, 525
S.E.2d 213, 217 (2000). "A ruling committed to a trial court's
discretion is to be accorded great deference and will be upset only
upon a showing that it was so arbitrary that it could not have been
the result of a reasoned decision."
White v. White, 312 N.C. 770,
777, 324 S.E.2d 829, 833 (1985).
In the present case, petitioner argued in her motion for
reconsideration that the board deliberately misrepresented to the
trial court that petitioner had been told not to squirt the
principal with a squirt gun before she did so. In its order
denying petitioner's motion, the trial court stated that
the [trial court] specifically addressed and
considered this matter, and made reference to
the situation in the Order entered after the
May 26, 2005 hearing, recognizing that such
information was evidently erroneous.
Reference is made to Paragraph 11 of the
[trial] court's June 2, 2005 Order. Having
recognized and considered the inaccurate
references in the [trial court's] earlier
Order, no relief would be proper for the same
reason, under Rules 59 or 60.
On appeal, petitioner argues "[t]he [trial] court's rationale for
declining to reconsider that issue, even with a showing of false
statements by the school system to the [trial] court, reflects the
[trial] court's misapplication of the whole record test in this
case." However, we have already held that the trial court properly
applied the whole record test to this issue. For the same reasons,
we conclude the trial court did not abuse its discretion. [6] Petitioner also attempts to argue in her brief that the
trial court abused its discretion by failing to reconsider its
ruling that the
de novo standard of review did not apply to the
trial court's review of petitioner's action. However, petitioner
did not list this specific argument in her assignment of error and
therefore we do not address this issue.
See N.C.R. App. P. 10(a).
This assignment of error is overruled.
Affirmed.
Judges ELMORE and STEELMAN concur.
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