Burris et al v. Versa Products, Inc. et al
Filing
209
MEMORANDUM OPINION AND ORDER denying plaintiffs' 200 Motion for New Trial, or in the alternative, for Summary Judgment (Written Opinion). Signed by Judge John R. Tunheim on May 20, 2014. (DML)
UNITED STATES DISTRICT COURT
DISTRICT OF MNNESOTA
LOWELL P. BURRIS and
JOYCE P. BURRIS,
Civil No. 07-3938 (JRT/JJK)
Plaintiffs,
MEMORANDUM OPINION AND
ORDER DENYING MOTION FOR
NEW TRIAL
v.
GULF UNDERWRITERS INSURANCE
COMPANY,
Defendant.
Thomas F. Handorff, HANDORFF LAW OFFICERS, P.C., 1660 South
Highway 100, Suite 500, St. Louis Park, MN 55416, for plaintiffs.
Thomas A. Gilligan, Jr. and Nicholas J. O’Connell, MURNANE
BRANDT, PA, 30 East Seventh Street, Suite 3200, St. Paul, MN 55101,
for defendant.
Plaintiffs Lowell and Joyce Burris bring this motion for a new trial, or, in the
alternative, summary judgment, after a jury returned a verdict in favor of Defendant Gulf
Underwriters Insurance Company (“Gulf”). Because the Court concludes that the lack of
a spoliation instruction and admission of Plaintiffs’ former counsel’s disciplinary record
were not in error, the Court will deny the motion.
28
BACKGROUND1
Plaintiff Lowell Burris was injured while using a ladder manufactured by Versa
Products, Inc. (“Versa”). Plaintiffs and Versa entered into an agreement under Miller v.
Shugart, 316 N.W.2d 729 (Minn. 1982), pursuant to which Versa admitted liability and
permitted Plaintiffs to seek recovery from Versa’s insurance company, Gulf.
(Stipulation, Sept. 27, 2013, Docket No. 153.) Versa held a “claims-made” insurance
policy issued by Gulf from March through May 2003, meaning that the policy covers any
claim that was made during that time, regardless of when the underlying injury occurred.
(First Aff. of Thomas F. Handorff, Ex. 2 (“Policy”), Jan. 2, 2013, Docket No. 122.) The
policy defines a claim as being “made” when “notice of such claim is received and
recorded by any insured or by us, whichever comes first.” (Policy at 7.)2
Plaintiffs claim that the policy covers Lowell Burris’ claim because his former
counsel, Dennis Letourneau, mailed a letter to Versa detailing the claim on March 14,
2003.
Gulf disputes that Versa received or recorded the letter.
In an order dated
August 26, 2013, the Court denied motions for summary judgment by both parties.
Burris v. Versa Prods., Inc., Civ. No. 07-3938, 2013 WL 4519338, at *7 (D. Minn.
Aug. 26, 2013). The Court concluded that affidavits by Letourneau and his secretary,
1
The Court recites the background facts only to the extent necessary to rule on the instant
motion. A more complete recitation of the facts appear in the Court’s previous orders in this
case. See, e.g., Burris v. Versa Prods., Inc., Civ. No. 07-3938, 2013 WL 4519338 (D. Minn.
Aug. 26, 2013); Burris v. Versa Prods., Inc., Civ. No. 07-3938, 2009 WL 3164783 (D. Minn.
Sept. 29, 2009); see also Gulf Underwriters Ins. Co. v. Burris, 674 F.3d 999 (8th Cir.), reh’g
denied (May 3, 2012).
2
All page numbers refer to the CMECF pagination unless otherwise noted.
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Gina Dorethy, stating that the letter was mailed sufficed to defeat Gulf’s motion for
summary judgment, even though there is no physical evidence of it having been mailed
(e.g. a photocopy or certification) because the affidavits were enough to trigger a
rebuttable presumption under Wisconsin law that a mailed letter was received. Id. at *4.3
The Court declined, however, to grant Plaintiffs’ motion for summary judgment on the
issue of receipt because it concluded that testimony by Versa’s former CEO, David
Lambert, that Versa did not receive the letter, rebutted the presumption and made the
issue one for the jury. Id. at *5 (citing State ex rel. Flores v. State, 516 N.W.2d 362, 370
(Wis. 1994) (“If the defendant denies receipt of the mailing, the presumption is spent and
a question of fact is raised.”)). The Court further concluded that a fact issue remained as
to whether the claim letter was “recorded” while the policy was in effect. Id. at *5-6.
The parties proceeded to trial, where they agreed that the two issues for the jury
were whether the supposed March 14, 2003 claim letter from Letourneau was received
and recorded by Versa during the effective period of the policy. (See Proposed Jury
Instructions and Verdict Form, Ex. 1, Dec. 4, 2013, Docket No. 188.) Both parties
submitted motions in limine. Plaintiffs requested, among other things, that the Court
include an adverse inference instruction on account of spoliation, pointing to the fact that
a third-party claims handler for Versa had sent thirty-three boxes of records back to
Versa, which Versa subsequently destroyed. (Pls.’ Mot. in Limine at 7-8, Nov. 17, 2013,
Docket No. 166.) Plaintiffs also requested that the Court exclude any evidence of the
3
Wisconsin law governs this dispute. See Gulf Underwriters Ins. Co. v. Burris, 674 F.3d
999, 1001 (8th Cir.), reh’g denied (May 3, 2012).
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attorney disciplinary history of Dennis Letourneau, Plaintiffs’ former counsel, as
irrelevant and prejudicial. (Id. at 4-6.) The Court preliminarily denied the spoliation
instruction request, inviting Plaintiffs to again seek the instruction after having produced
evidence at trial that would warrant the instruction. (Minute Entry, Dec. 2, 2013, Docket
No. 186.) The Court granted in part and denied in part Plaintiffs’ request regarding
Letourneau’s disciplinary history, concluding that evidence of his disciplinary
proceedings relating to his office mailing practices would be admissible but the actual
consequences he faced as a result of those proceedings (including his suspension), would
not be. (Id.) After three days of trial, the jury returned a verdict for Gulf, concluding that
Versa did not receive a claim letter regarding Burris’ injuries during the relevant period
of the policy. (J., Dec. 9, 2013, Docket No. 196.)
Plaintiffs now move for a new trial, or, in the alternative, reconsideration of their
motion for summary judgment. (See Mem. in Supp. of Mot. for New Trial at 1, Jan. 6,
2014, Docket No. 201.) Plaintiffs make two arguments in support of their motion for a
new trial: first, that the Court erred in declining to issue a spoliation instruction to the
jury on account of the thirty-three boxes of records Versa destroyed, and second that the
Court erred in admitting evidence of Dennis Letourneau’s disciplinary history.
ANALYSIS
I.
MOTION FOR NEW TRIAL
A.
Standard of Review
Under Rule 59(a) of the Federal Rules of Civil Procedure, the Court may grant a
motion for a new trial “on all or some of the issues.” Fed. R. Civ. P. 59(a)(1). “A new
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trial is appropriate when the first trial, through a verdict against the weight of the
evidence . . . or legal errors at trial, resulted in a miscarriage of justice.” Gray v. Bicknell,
86 F.3d 1472, 1480 (8th Cir. 1996). “District courts enjoy broad discretion in choosing
whether to grant a new trial . . . .” Douglas Cnty. Bank & Trust Co. v. United Fin. Inc.,
207 F.3d 473, 478 (8th Cir. 2000) (alteration and internal quotations omitted). A motion
for a new trial should be granted only if the jury’s verdict is so against the great weight of
the evidence that it constitutes a miscarriage of justice. Ogden v. Wax Works, Inc., 214
F.3d 999, 1010 (8th Cir. 2000).
B.
Spoliation Instruction
Plaintiffs first argue that a new trial is warranted because the Court erred in
declining to give an adverse inference instruction to the jury on the basis of the thirtythree boxes of files returned to Versa by its third-party handler that were destroyed.
Plaintiffs sought to instruct the jury that:
If evidence is destroyed that could reasonably be expected to have been
produced, and the party who destroyed the evidence fails to give a
reasonable explanation, you may decide that the evidence would have been
unfavorable to that party.
(Pls.’ Proposed Jury Instructions at 26, Nov. 18, 2013, Docket No. 175.)
Under federal law, in order for an adverse inference instruction based on
spoliation to be appropriate, “there must be a finding of intentional destruction
indicating a desire to suppress the truth.” Sherman v. Rinchem Co., Inc., 687 F.3d 996,
1006 (8th Cir. 2012) (internal quotation marks omitted) (emphasis added); see also
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Stevenson v. Union Pac. R. Co., 354 F.3d 739, 746 (8th Cir. 2004)).4 Thus, the Court
must determine whether it appropriately exercised its discretion in declining to issue a
spoliation instruction on the basis that Plaintiffs failed to present sufficient evidence that
Versa intentionally destroyed the boxes of records in an attempt to keep their contents
from being revealed in this litigation.
The Court denied Plaintiffs’ pre-trial request for the instruction, concluding that
Plaintiffs had not yet presented sufficient evidence to warrant such an instruction. Later
during the charging conference, the Court again declined to include a spoliation
instruction on the basis of destruction of the boxes because it concluded that there was
insufficient evidence at trial that the boxes had been intentionally destroyed in
anticipation of this litigation. In their motion for new trial, Plaintiffs again point to the
deposition testimony of David Lambert as the sole evidence that he “made a knowing,
intentional and deliberate decision to destroy all 33 boxes of the claim files and records
his attorney received from Mr. Junius.” (Mem. in Supp. of Mot. for New Trial at 4-5.)
As support for this claim, Plaintiffs point to the following portions of the Lambert
deposition:
Q:
This is a letter – On that same day that your lawyer received the 33
boxes of claim files in his office, this is a letter that your lawyer sent
to you regarding those files.
Do you remember what happened to those files, by the way?
4
Plaintiffs argue that Wisconsin law governs whether a spoliation instruction should be
issued, but the Eighth Circuit has held otherwise. See Sherman, 687 F.3d at 1006 (“We now
hold, in accordance with our sister circuits, that federal law applies to the imposition of sanctions
for the spoliation of evidence.”).
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A:
They were destroyed.
Q:
And you gave him the authority to destroy those files?
A:
I discussed it with him and we both agreed they should be destroyed.
They are not our records.
...
Q:
And so, in response to this letter, are you saying that you and your
lawyer talked about it and you destroyed those claim files?
A:
Yes.
...
Q:
A:
And what was all your reasons for why those boxes should be
destroyed?
They weren’t my records, and I have no responsibility for them.
They were insurance company records.
...
Q:
Did you or your lawyer contact the insurance company before
destroying those records?
...
A:
Well, Paul Junius was the representative of the insurance company,
and he’s the one that forwarded them to us.
...
Q:
Did you call Paul Junius and ask him if he could – if you could
destroy those 33 boxes of claim files and other materials?
A:
He didn’t want them. He sent them to us. So that he didn’t care
what we did with them. He didn’t want them.
(Fifth Aff. of Thomas F. Handorff, Ex. 1 (Dep. of David Lambert (“Lambert Dep.”)
70:11-73:9), Jan. 6, 2014, Docket No. 202.) Nothing in this testimony establishes that the
boxes were intentionally destroyed and Plaintiffs adduced no further evidence of intent to
destroy or suppress the truth at trial. Plaintiffs argue that Lambert was made aware of
this litigation in 2007, but present no evidence that the thirty-three boxes of files from
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Versa’s third-party handler were destroyed after this litigation commenced. (Reply Mem.
in Supp. of Mot. for New Trial at 3-4, Jan. 31, 2014, Docket No. 208.)5
Furthermore, Lambert’s testimony indicates that, even though he may not have
had specific knowledge of the contents of the boxes, he knew that any letters related to
Burris’ claim would not have been in the boxes because at the time Burris’ letter was
allegedly sent, Versa was not using that third-party handler. (Lambert Dep. 74:5-17.)
Thus, this testimony does not suggest that Versa destroyed the boxes in bad faith, or even
that they knew or should have known that the boxes contained evidence that would be
essential to this litigation.
The Court therefore again concludes that there was not
sufficient evidence to warrant an adverse spoliation instruction.
Cf. Millenkamp v.
Davisco Foods Int’l, Inc., 562 F.3d 971, 981 (9th Cir. 2009) (concluding district court did
not abuse its discretion in rejecting proposed adverse inference instruction where “there
[wa]s no evidence in the record to indicate that the Millenkamps knew that litigation
would be forthcoming when they allowed the evidence to spoil”); Insignia Sys., Inc. v.
News Am. Mktg. In-Store, Inc., Civ. No. 04-4213, 2009 WL 483850, at *4-5 (D. Minn.
Feb. 25, 2009) (finding that meeting minutes from which no reasonable inference could
be drawn suggesting that “the report was prepared and thereafter ordered to be destroyed
due to the pending litigation” and deposition testimony that plaintiff was “concerned
5
In their Reply, Plaintiffs appear to shift their focus from the thirty-three boxes to other
claim files that they argue Lambert destroyed after 2010. (See Reply Mem. in Supp. of Mot. for
New Trial at 4.) But the focus of Plaintiffs’ spoliation request before and during trial was the
thirty-three boxes, and the Court will not order a new trial for any failure to issue a spoliation
instruction on a basis not requested during trial.
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about the appropriateness of [the report] because of . . . their litigation, and [he thought]
for that reason Jim Diracles wrote him and said look, destroy everything” were
insufficient to show that “the pending litigation with NAM was Diracles’ reason for
having the files returned and destroyed”). The Court concludes that it was proper to
conclude at the time of trial that there was an insufficient showing of bad faith or
intentional destruction in anticipation of this litigation to warrant a spoliation instruction
and declines to grant a new trial on that basis.
C.
Dennis Letourneau’s Disciplinary History
Plaintiffs also argue that a new trial is warranted because the Court erred in
admitting evidence of Dennis Letourneau’s attorney discipline history, arguing that such
evidence should have been excluded under Federal Rules of Evidence 401, 402, and 403
as irrelevant and prejudicial.
1.
Disciplinary History
The Minnesota Supreme Court has twice reviewed disciplinary proceedings
against Letourneau. First, in 2006, he was disciplined for failing to serve a client’s
complaint within the relevant statute of limitations. In re Letourneau, 712 N.W.2d 183,
188 (Minn. 2006) (per curiam). The Minnesota Supreme Court reviewed a referee’s
determination that evidence showed that Letourneau violated rules regarding diligence,
communication, and honesty.
Most relevant to this trial, the violation of the rule
regarding diligence was not in dispute, rather only the appropriate disciplinary action on
account of the violation. In determining the appropriate punishment, the court noted that
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“Letourneau’s failure to commence an action for Sutherland prior to the expiration of the
statute of limitations is a serious lapse of diligence.” Id. at 189. In addition to one year
of supervised probation, public reprimand, and several other conditions, the court
imposed the condition that Letourneau
shall initiate and maintain office procedures which ensure that there are
prompt responses to correspondence, telephone calls, and other
important communications from clients, courts, and other persons interested
in matters which respondent is handling, and which will ensure that
respondent regularly reviews each and every file and completes legal
matters on a timely basis.
Id. at 190 (emphasis added).
In 2011, Letourneau was again before the Minnesota Supreme Court for a
disciplinary matter for failing to timely serve a potential defendant until after the statute
of limitations expired, failing to make filings necessary to preserve his clients’ claim, and
not cooperating in a timely manner with the disciplinary investigation. In re Letourneau,
792 N.W.2d 444 (Minn. 2011) (per curiam).
The court found that “Letourneau
demonstrated incompetent representation of a client under Minn. R. Prof. Conduct 1.1 by
not communicating with his clients, consistently missing deadlines, failing to make
filings needed to preserve his clients’ claim, and failing to serve a potential defendant
before the statute of limitations had run.” Id. at 451. Letourneau disputed the allegation
that he did not inform his clients of the significant events in their litigation and offered
conflicting testimony from that of his clients as to the frequency and extent of
communications with them. Id. The court found that “[t]he findings that Letourneau did
not inform his clients of the significant events in their litigation are supported by the
record.” Id.
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As a consequence for this “incompetent legal representation, neglect of a client
matter, failure to communicate with clients, failure to obtain client approval before
agreeing to forego claims, and [failure to fully cooperate] with an investigation,” the
court suspended Letourneau from the practice of law indefinitely, with no right to petition
for reinstatement for a minimum of one year.
Id. at 452.
Although the referee
recommended that Letourneau “be permitted to reapply only if he had sought
professional help to address his chronic inability to perform his duties in a timely
manner,” the court declined to formally adopt that recommendation. Id. at 453.
2.
Admission at Trial
Plaintiffs moved in limine to preclude any discussion or questioning regarding
Letourneau’s disciplinary history. (Pls.’ Mot. in Limine at 4-6.) The Court ruled that
evidence of the results of any disciplinary proceedings must be excluded but the
proceedings themselves, particularly to the extent that the Minnesota Supreme Court
commented on Letourneau’s office mailing practices, were admissible. (See Minute
Entry, Dec. 2. 2013, Docket No. 187.)
Plaintiffs now argue that “[t]his issue brought on the eve of trial allowed Gulf to
ignore the destruction of important evidence and subvert the focus to attorney
disciplinary actions that had nothing to do with preparation and mailing of a demand
letter,” and “[b]ecause the Court permitted this irrelevant testimony and evidence, it
prejudiced Burris’ case.” (Mem. in Supp. of Mot. for New Trial at 10.) The Court
concludes that the evidence of Letourneau’s disciplinary history admitted at trial –
evidence of the proceedings, the Minnesota Supreme Court’s commentary on his office
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practices, but not his actual suspension from the practice of law—was relevant and its
probative value was not “substantially outweighed” by any danger of unfair prejudice.
See Fed. R. Evid. 403.
In their testimony at trial, neither Letourneau nor his former office assistant Gina
Dorethy testified that they recalled actually mailing the letter at issue. Rather, they
testified that the letter would have been mailed, relying on their office’s practices for
mailing letters. Thus, the reliability of those office practices was a relevant issue for the
jury to consider in its determination of whether the letter was mailed and received, and
Letourneau’s prior disciplinary history related to his office practices for mailing
documents was relevant. Cf. United States v. Mulder, 147 F.3d 703, 708 (8th Cir. 1998)
(district court did not abuse its discretion in excluding testimony on defendant’s routine
practice in handling financial statements in fraud case because the testimony was not
relevant to the question of fraud, although it may have been relevant as impeachment
evidence except that “[t]he issue of Moore’s routine practice was not squarely presented
to the trial court”).
Given that the reliability of Letourneau’s office practices was
squarely in issue at trial, the Court concludes that the evidence of his disciplinary
proceedings was highly probative of whether the letter was mailed, and any prejudice did
not substantially outweigh that relevance. Furthermore, the Court minimized the possible
prejudice of such evidence by excluding evidence of the actual consequences or
punishment for Letourneau’s disciplinary proceeding. The Court therefore concludes that
the admission of evidence of Letourneau’s disciplinary proceedings was not an error, nor
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did it result in a miscarriage of justice, and will not grant a motion for a new trial on that
ground.
II.
SUMMARY JUDGMENT
In their motion for new trial, Plaintiffs also request, in the alternative, that the
Court “reconsider Plaintiffs’ motion for summary judgment,” asking the Court to
reconsider its August 26, 2013 order denying both parties’ motions for summary
judgment. (Mot. for New Trial at 1, Jan. 6, 2014, Docket No. 200; see also Mem. Op.
and Order, Aug. 26, 2013, Docket No. 149.) In their memorandum in support of the
motion, Plaintiffs appear to make the request under Rule 56, but “Federal Civil Rule 56
makes clear that summary judgment is a pretrial procedure.” Dillon v. Cobra Power
Corp., 560 F.3d 591, 596 (6th Cir. 2009) (emphasis in original) (concluding that a “posttrial order of 2006 reversing the earlier summary judgment order – a pretrial order – was
decided by a motion filed after trial and based solely on Garciga’s trial testimony . . .
cannot be right”); cf. Metro. Life Ins. Co. v. Golden Triangle, 121 F.3d 351, 354 (8th Cir.
1997) (“Once the summary judgment motion is denied and the case proceeds to trial,
however, the question of whether a party has met its burden must be answered with
reference to the evidence and the record as a whole rather than by looking to the pretrial
submissions alone.” (internal quotations omitted)).
Granting summary judgment for
Plaintiffs after the case has proceeded to trial would not be appropriate.
Furthermore, Plaintiffs’ request appears to be based on a misunderstanding of the
Court’s August 26, 2013 Order. The Court did not make a factual finding that the letter
was mailed, but rather concluded that the Dorethy and Letourneau affidavits sufficed to
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establish the presumption that the letter was received. See Burris, 2013 WL 4519338 at
*4 (“Here, the Court concludes that Versa has presented sufficient evidence that the
Demand Letter was mailed to trigger the rebuttable presumption, despite the lack of
absolute certainty in the affidavits regarding the details of how this particular letter was
allegedly mailed ten years ago.”). The Court proceeded to conclude that the presumption
was rebutted by Lambert’s denial of receipt, making the issue of receipt one for the jury.
See id. at *5. It is well established that a Court’s determination at the summary judgment
stage that a reasonable jury could make a certain factual determination is not a conclusion
actually finding that fact, given that at that stage the Court takes the evidence in a light
favorable to the non-moving party. See Metro Life Ins., 121 F.3d at 354 (“The district
court’s judgment on the verdict after a full trial on the merits thus supersedes the earlier
summary judgment proceedings.” (internal quotations omitted)).
To the extent that Plaintiffs’ request is a motion to alter or amend the Court’s
summary judgment order under Federal Rule of Civil Procedure 59, such a motion must
be made within 28 days of the judgment, which was issued on August 26, 2013, so the
motion would be untimely. Fed. R. Civ. P. 59(e). To the extent the request is a motion to
reconsider, such a motion is not proper under the Local Rules without first seeking the
Court’s prior permission and showing “compelling circumstances,” which Plaintiffs have
not done here. D. Minn. LR 7.1(j). To the extent the motion seeks a judgment as a
matter of law under Federal Rule of Civil Procedure 50(b) on the basis that a “no
reasonable juror could have returned a verdict for,” Gulf, Weber v. Strippit, Inc., 186 F.3d
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907, 912 (8th Cir. 1999), the Court does not deem such relief appropriate.6 Considering
the evidence in the light most favorable to Gulf, resolving all factual conflicts in Gulf’s
favor, and giving Gulf the benefit of all reasonable inferences, see Ogden, 214 F.3d at
1002, the Court concludes that judgment as a matter of law in Plaintiffs’ favor is not
appropriate. Plaintiffs presented no direct evidence that the claim letter was mailed, and
the jury was entitled to discredit Letourneau’s testimony that the letter was mailed and
instead credit Lambert’s testimony that Versa did not receive the letter.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Plaintiffs’ Motion for New Trial, or in the alternative, for
Summary Judgment [Docket No. 200] is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: May 20, 2014
at Minneapolis, Minnesota.
____s/
____
JOHN R. TUNHEIM
United States District Judge
6
Plaintiffs did not move for judgment as a matter of law before the case was submitted to
the jury, but the Court need not determine whether this procedural deficiency would bar such a
motion post-trial because the Court concludes that such relief is not warranted. See 9B Charles
Alan Wright, et al., Fed. Prac. & Proc. Civ. § 2537 (3d ed.) (discussing split among courts on
whether a “post-verdict motion under Rule 50(b) for judgment as a matter of law could . . . be
made [if] a previous Rule 50(a) motion for judgment as a matter of law was [not] made by the
moving party at the close of all the evidence”).
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