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                                                                        [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                          ________________________

                                No. 12-12250
                          ________________________

                       D. C. Docket No. 1:10-cv-01464-AT


T-MOBILE SOUTH, LLC,
                                                                 Plaintiff-Appellee,

                                      versus

CITY OF ROSWELL, GEORGIA,

                                                             Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                                (October 1, 2013)

Before HULL, WILSON and HILL, Circuit Judges.

HULL, Circuit Judge:

      Defendant-Appellant, the City of Roswell, Georgia, appeals the district

court’s order granting Plaintiff-Appellee T-Mobile South LLC’s motion for
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summary judgment and issuing an injunction on the basis that the City’s denial of

T-Mobile’s requested cell phone tower permit violated the Telecommunications

Act of 1996. After review of the briefs and record, with the benefit of oral

argument, and in light of our decision in T-Mobile South, LLC v. City of Milton,

Georgia, --- F.3d ----, 

(11th Cir. Sept. 5, 2013), we reverse and

remand for further proceedings.

                               I. BACKGROUND

A.    Roswell City Ordinance Governing Construction of Cell Towers

      An ordinance of the City of Roswell, Georgia (“City”) establishes guidelines

for the location and construction of wireless communication towers (“cell towers”)

and antennas to “encourage the development of wireless communications while

protecting the health, safety, and welfare of the public and maintaining the

aesthetic integrity of the community.” Roswell City Ordinance § 21.2.1.

      A telecommunications company that seeks to construct a new cell tower or

antenna must submit an application to the City. 

application

will be approved or denied based on a consideration of the following factors:

            (1) Proximity to residential structures and residential district
      boundaries;
            (2) The proposed height of the tower;
            (3) Nature of uses on adjacent properties;
            (4) Surrounding topography, tree coverage and foliage;
            (5) Design of the facility, with particular reference to design
      characteristics which have the effect of reducing or eliminating visual
      obstructiveness;
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             (6) Proposed ingress and egress;
             (7) Availability of suitable existing towers, other structures,
      or alternative technologies (microcells) not requiring the use of towers
      or structures;
             (8) Demonstrated need for the telecommunications facility at
      the specified site;
             (9) Utilization of the City of Roswell Master Siting Plan, as
      amended.

provides that cell towers may be located only in

certain zoning districts; namely, office and business distribution districts (zoned “I-

1”) and highway commercial districts (zoned “C-3”). 

placed in any other zoning districts, including residential zoning districts, “shall be

alternative tower structures only.” 

include “man-

made trees, clock towers, bell steeples, light poles and similar alternative-design

mounting structures, that in the opinion of [the City C]ouncil, are compatible with

the natural setting and surrounding structures, and effectively camouflage or

conceal the presence of antennas or towers.” 

an application for the construction of a cell tower or antenna must

be approved after a public hearing before the City’s Mayor and City Council. 

   T-Mobile’s Application

      On February 2, 2010, T-Mobile South, LLC (“T-Mobile”) submitted an

application to construct a 108-foot tall cell tower at 1060 Lake Charles Drive in
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Roswell on 2.8 acres of vacant property zoned single-family residential and located

in a well-established residential neighborhood. T-Mobile proposed an

“alternative” tower structure in the shape of a man-made tree, or a “monopine.”

The proposed tower would be about twenty to twenty-five feet taller than the pine

trees surrounding it. T-Mobile claimed that this tower was necessary in this

location in response “to the demands of its customers.”

      On March 24, 2010, due to an “outpouring of public opposition” to the

proposed Lake Charles Drive site, T-Mobile renewed an earlier request with the

City to lease to T-Mobile public property near a fire station instead, but the City

did not grant the request.

      In the meantime, the process moved forward on T-Mobile’s request to

construct on the Lake Charles Drive site. After reviewing T-Mobile’s application

and receiving a substantial amount of letters, e-mails, and petition signatures

opposing the application, the City’s Planning and Zoning Division (“Planning

Department”) issued an April 7, 2010 memorandum to the Mayor and City Council

concluding that T-Mobile’s application met all ordinance requirements for the

construction of a cell tower. But the Planning Department recommended that the

Mayor and the City Council approve the application on the conditions that T-

Mobile: (1) move the site of the cell tower to a location closer to the west property

line on the Lake Charles Drive site, in order to place the tower’s largest visual

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impact on the adjacent homeowner who would lease the site to T-Mobile; (2)

construct a black vinyl fence surrounding the tower; and (3) install 33 “evergreen

trees around the leas[ed] area to screen the view of the structure and equipment

facilities from the residential homes located to the east of the property.” 1

C.     Public Hearing on T-Mobile’s Application

       On April 12, 2010, Mayor Jere Wood and the Roswell City Council

convened a public hearing to consider T-Mobile’s application. One

Councilmember, Nancy Diamond, recused herself because she lived in the path of

the proposed cell tower. The hearing lasted a little over two hours and comprises

108 pages of transcript. Minutes of the hearing were also recorded.

       The Planning Department Director, Brad Townsend, presented the T-Mobile

application at the hearing, along with the Planning Department staff’s

recommendations. While acknowledging that his staff had received “over a

thousand-plus e-mails, signatures, petitions, letters in opposition [to] the proposed

location,” Townsend stated that his staff recommended approval of the application,

provided that T-Mobile abided by the three conditions listed in his staff’s report.

Townsend said that T-Mobile had received the report but had not yet addressed the

recommendation of moving the tower.

       A representative of applicant T-Mobile, Lannie Greene, stated that he had

       1
        T-Mobile claims that it agreed to all the conditions except the relocation of the tower, to
which the leased property owner would not agree.
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thirteen years’ experience in site acquisition and permitting of cell towers. Greene

said that he had reviewed the City’s ordinance governing cell tower placement and

had chosen a site that met the ordinance requirements as well as T-Mobile’s

requirements. Greene said that while other sites had been considered for the new

cell tower: (1) the City had rejected a proposal to place it on public property; and

(2) the other tracts considered were ultimately determined to be unsuitable for the

project. Greene emphasized that the new cell tower would meet T-Mobile’s

coverage needs in the area.

      A T-Mobile radio frequency engineer, Marquise Lewis, explained to the

Mayor and City Council that T-Mobile had chosen the Lake Charles Drive site

based on data indicating that the proposed cell tower would be in the center of the

area of need. Lewis also said that due to the topology, terrain, and foliage in the

Lake Charles Drive area, the alternative wireless coverage facilities suggested by

some residents were not feasible.

      At the public hearing, the City Council also took public comments, and

thirteen City residents spoke, all in opposition to the T-Mobile proposal. Their

concerns varied from worries about the proposed tower’s aesthetic compatibility

with the surrounding area to fears that the technology involved in the T-Mobile

proposal was outdated and unnecessary. Some residents complained that a

“balloon test” performed by T-Mobile to illustrate how tall and visible the

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proposed tower would be did not adequately represent the height and visibility of

the tower. Another resident observed that the substantial resident testimony would

serve as “substantial evidence . . . that shows it’s simply not in the best interest of

Roswell to move forward with this cell tower at this time.”

      In rebuttal, T-Mobile tried to assuage residents’ concerns. Greene stated that

T-Mobile was willing to place a five-foot buffer along the three adjacent properties

in accordance with one of the Planning Department’s recommendations. And

Greene reiterated that T-Mobile’s proposal met all the ordinance’s requirements

for placing a cell tower in a residential area. Additional rebuttal evidence by T-

Mobile included: testimony by an Atlanta real property appraiser and consultant

that placement of cell towers did not negatively influence property value and

testimony from a radio frequency engineer Lewis reiterating that alternative

technologies would not suffice.

      After T-Mobile’s rebuttal, members of the City Council commented on the

proposal.2 Councilmember Richard Dippolito asked again about alternative

facilities, but Lewis responded that none were appropriate for this project.

Councilmember Becky Wynn expressed concerns with the tower’s ability to

provide continuous emergency power for 911 services, observing the lack of a

backup generator in the proposal. Councilmember Jerry Orlans said he was


      2
          Councilmember Kay Love was present at the hearing but did not comment.
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impressed with the information put together by residents and complimented T-

Mobile’s application as well. Councilmember Kent Igleheart stated that while both

sides did a lot of work, “other carriers apparently have sufficient coverage in this

area,” and no law required the City to “level the field for inferior technology.”

Councilmember Dippolito agreed with the previous council members’ comments

and said he found it difficult to conclude that the cell tower would not adversely

impact the residential area. Thus, he would not support the application.

Councilmember Wynn agreed and said she would also vote against the application.

      Finally, Councilmember Dr. Betty Price said that as City Council liaison to

the Planning Department, she felt that it was her responsibility to make a motion.

Dr. Price stated that based on the City’s ordinance, she concluded that the proposed

cell phone tower would be aesthetically incompatible with the natural setting and

surrounding structures, particularly due to the proposed tower’s height being

greater than the surrounding trees. Specifically, Dr. Price said:

             I think based on our ordinance, Article 21.2.1, . . . the purpose
      and intent of our cell-phone ordinance is to protect the residential
      areas from the adverse impact of telecommunications towers and to
      minimize the number of towers and the other adverse impacts being
      minimized.
             I think the conclusion from that first section would be that this
      is aesthetically incompatible and certainly in this area. It’s other than
      I-1, C-3 offices or highway commercial area [zoning districts].
             Number two, the alternative tower that was proposed, in my
      opinion, it would not be compatible with the natural setting and
      surrounding structures also due to the height being created by the
      other trees.
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             And, number three, in our Ordinance 21.2.4, the proximity to
      residential structures, the nearness to other homes, and being within
      the residential zoning area and adjacent properties, therefore, the
      adverse effects to the enjoyment of those neighbors and potential loss
      of resale value among other potential parameters are difficult really to
      definitively assess.
             Therefore, overall, I move to deny the application for the
      wireless facility monopine tower on Lake Charles Drive.

Council member Wynn seconded the motion, and the motion to deny the

application was passed unanimously.

D.    City’s Letter Denying T-Mobile’s Application

      On April 14, 2010, Planning Department Director Townsend sent a letter to

Greene advising T-Mobile that the Mayor and City Council had denied T-Mobile’s

request to construct a cell phone tower. The letter in its entirety states:

      Please be advised the City of Roswell Mayor and City Council denied
      the request from T-Mobile for a 108’ mono-pine alternative tower
      structure during their April 12, 2010 hearing. The minutes from the
      aforementioned hearing may be obtained from the city clerk. Please
      contact Sue Creel or Betsy Branch at [phone number].

      If you have any additional questions, please contact me at [phone
      number].

E.    Procedural History

      On May 13, 2010, T-Mobile filed a complaint in district court alleging that

the City’s denial of its cell tower application was not supported by substantial

evidence in the record and would effectively prohibit the provision of wireless

service in violation of the Telecommunications Act of 1996 (“TCA”). T-Mobile

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also sought an injunction compelling the City to grant it the requested permit.

Following discovery, the parties filed cross-motions for summary judgment.

      On March 27, 2012, the district court granted T-Mobile’s summary

judgment motion, concluding that the City had violated the TCA, and denied the

City’s cross-motion. Specifically, the district court held that the City’s short denial

letter failed to satisfy the “in writing” requirement contained in 47 U.S.C. §

332(c)(7)(B)(iii) of the TCA. The statute requires that a state or local

government’s decision denying a request for a permit to erect a cell tower be “in

writing and supported by substantial evidence contained in a written record.” The

district court limited its decision to the “in writing” requirement, stating that the

City’s violation of the “in writing” requirement rendered it unnecessary for the

court to address the “substantial evidence” requirement or T-Mobile’s argument

that the City’s decision would effectively prohibit T-Mobile from providing

wireless service.

      The district court adopted a reading of the “in writing” requirement

employed by several courts around the country. Under that reading, a separate

written document delineating the specific reasons for the local government’s

decision is required to satisfy the “in writing” requirement of the TCA. The

district court acknowledged that the record—here, the hearing transcript and

minutes—gave some indication of the Council’s rationale for denying the

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application. But then the district court concluded that on the whole, “[t]he written

record . . . reflects a number of different reasons that may have motivated

individual Council members to vote to deny T-Mobile’s application but it is

impossible for the Court to discern which of these reasons motivated the Council

as a whole or commanded the support of a majority of the Council members.”

      Thus, “[a]bsent some explanation of the rationale for the City Council’s

denial of T-Mobile’s application,” the district court stated that it was “left to

review this voluminous record without any guidance as to what evidence the City

Council found credible and reliable, what evidence it discounted or rejected

altogether, and why.” Consequently, the district court concluded that the City’s

denial did not satisfy the “in writing” requirement of the TCA.

      The district court issued a permanent injunction requiring the City to issue

T-Mobile the requested permit. The district court stayed the injunction by a

consent order dated May 4, 2012, pending the City’s appeal.

                                  II. DISCUSSION

A.    The TCA’s “In Writing” Requirement

      The issue in this appeal is whether the City’s denial of T-Mobile’s request

for a permit complied with the “in writing” requirement of the TCA. The relevant

statute provides:

      Any decision by a State or local government or instrumentality thereof
      to deny a request to place, construct, or modify personal wireless
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       service facilities shall be in writing and supported by substantial
       evidence contained in a written record.

47 U.S.C. § 332(c)(7)(B)(iii) (emphasis added).

       The City contends that its denial of T-Mobile’s application satisfied the “in

writing” requirement in § 332(c)(7)(B)(iii) because the City’s decision was

reduced in writing in numerous forms, including the denial letter, hearing minutes,

and hearing transcript. In response, T-Mobile argues that other circuit courts

considering this question have concluded that the TCA requires both a written

decision and a written record. Moreover, several courts have demanded that the

written decision set forth the reasons for the denial. Thus, T-Mobile contends that

the district court adopted the correct test for determining whether a local

government’s denial satisfies the “in writing” requirement, and the City’s brief,

three-sentence letter notifying T-Mobile of the denial of its permit application did

not suffice under that test. 3

B.     This Court’s Intervening Decision in T-Mobile South, LLC v. City of
       Milton.

       At the time of the district court’s order in this case, this Court had not


       3
          In ruling that separate writing setting forth the reasons for the denial was required, the
district court relied, for example, on the First Circuit’s decision in Sw. Bell Mobile Sys., Inc. v.
Todd, 

(1st Cir. 2001), and on the Sixth Circuit’s opinion in New Par v. City of
Saginaw, 

(6th Cir. 2002). Both courts required that the written decision be
separate from the record, describe the reasons for the denial, and contain a sufficient explanation
to allow a court to evaluate it against the evidence in the record. See New 

96; 

.

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addressed the meaning of the “in writing” requirement of § 332(c)(7)(B)(iii). But

while this appeal was pending, this Court decided a substantially similar case in T-

Mobile South, LLC v. City of Milton, Georgia, --- F.3d ----, 

(11th Cir. Sept. 5, 2013). That case presented the very question raised here: did a

city council comply with the “in writing” requirement set forth in

§ 332(c)(7)(B)(iii). City of Milton, 

, at *2. 4

       In deciding this question in City of Milton, our Court adopted a plain

reading of the statute. We held that “[t]he words of the statute we are interpreting

require that the decision on a cell tower construction permit application be ‘in

writing.’” 

Court reasoned that the statute does not say that “the

decision [must] be ‘in a separate writing’ or in a ‘writing separate from the

transcript of the hearing and the minutes of the meeting in which the hearing was

held’ or ‘in a single writing that itself contains all of the grounds and explanations

for the decision.’” 

that “to the extent that the

decision must contain grounds or reasons or explanations, it is sufficient if those

are contained in a different written document or documents that the applicant is

given or has access to.” 

“[a]ll of the written documents should

be considered collectively in deciding if the decision, whatever it must include, is

in writing.” 

Court’s request, the parties submitted supplemental briefs to address the
impact of this Court’s decision in City of Milton.
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       This Court then concluded that the City of Milton had satisfied the “in

writing” requirement because the written documents available to T-Mobile

included: (1) transcripts of hearings in front of the planning commission and in

front of the city council, which recounted the motions that were made and the

reasons that were given for denying the applications; (2) the denial letters the City

of Milton sent to T-Mobile regarding the two applications it denied; 5 and (3)

“detailed minutes of the city council hearings, recounting all of the reasons for the

action on each application along with the relevant discussion.” 

“T–Mobile had access to all of those documents before its deadline for filing the

lawsuit.” 

“collectively [these documents] are enough to satisfy

the writing requirement of § 332(c)(7)(B)(iii).” 

that under

the facts in City of Milton, “we need not consider whether something less than or

different from all of those documents would be enough.” 

decision in City of Milton, this Court rejected the “pragmatic”

reading of the “in writing” requirement employed by the district court in the instant

case and by several of our sister circuits. 

courts have required

that a written denial must be “separate from the written record” and “must contain

a sufficient explanation of the reasons for the permit denial to allow a reviewing


       5
          T-Mobile made three different permit applications in City of Milton. 

, at *3. The City of Milton denied two applications and conditionally approved the
third. 

appeal in this case involves only the denial of one application for a permit.
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court to evaluate the evidence in the record supporting those reasons.” Sw. Bell

Mobile Sys., Inc. v. Todd, 

, 60 (1st Cir. 2001); see also New Par v.

City of Saginaw, 

, 395–96 (6th Cir. 2002) (requiring that the written

decision be separate from the record, describe the reasons for the denial, and

contain a sufficient explanation to allow a court to evaluate it against the evidence

in the record); MetroPCS, Inc. v. City & Cnty. of San Francisco, 

,

721–23 (9th Cir. 2005) (requiring a written denial separate from the written record

with sufficient explanation to allow for judicial review).

      Our Court, however, concluded that this expansive reading goes beyond “the

judicial function.” City of Milton, 

, at *10. Thus, in

interpreting the words “in writing,” we refused to “take a more ‘pragmatic, policy-

based approach’ than the plain meaning of those words take.” 

   Analysis of this Case in Light of our Decision in City of Milton.

      Given our interpretation of § 332(c)(7)(B)(iii) in City of Milton, all that is

left to do here is to analyze the facts of this case under the framework set forth in

City of Milton. There are few, if any, distinctions between the two cases.

      As in City of Milton, the City of Roswell provided T-Mobile with a written

letter clearly stating that the City Council had denied T-Mobile’s request to build

the proposed cell tower during the April 12, 2010 hearing. That same letter

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informed T-Mobile that “[t]he minutes from the aforementioned hearing may be

obtained from the city clerk” and even provided T-Mobile with a contact to assist

T-Mobile in obtaining the minutes. T-Mobile therefore had access to the written

minutes of the City Council hearing where its request was denied.

        Like in City of Milton, the hearing minutes “recount[] all of the reasons for

the action on [the] application along with the relevant discussion.” 

, at *11. We note, however, that there were sixty-five pages of minutes in

City of Milton, see 

to only ten pages of minutes in this case.

But our analysis in City of Milton did not turn on the number of pages; instead, we

focused on whether the reasons for the decision could be found in the minutes. 

minutes in this case summarize the testimony of experts and

concerned citizens, along with comments and questions from councilmembers.

The minutes also reflect the reasons given by Councilmember Dr. Betty Price in

support of her motion to deny T-Mobile’s request. They further indicate that two

additional councilmembers seconded Dr. Price’s motion and that the motion

“passed unanimously.” 6

       T-Mobile received, or at least could have received, an even more detailed

written account of the City Council’s decision in the 108-page transcript of the


       6
         We note that the transcript of the hearing indicates that only one councilmember
seconded the motion. The minutes, however, state that two councilmembers seconded Dr.
Price’s motion. This conflict matters not for our disposition here.
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April 12, 2010 hearing. While it is unclear whether T-Mobile hired the court

reporter to transcribe the hearing (as it did in City of Milton, see 

, at *3), the record does indicate that the transcript was finalized and

available on April 19, 2010, well before the 30-day time period for filing this

lawsuit expired. See 47 U.S.C. § 332(c)(7)(B)(v) (stating that “[a]ny person

adversely affected by any final action or failure to act by a . . . local government . .

. that is inconsistent with [the TCA’s “in writing” requirement] may, within 30

days after such action or failure to act, commence an action in any court of

competent jurisdiction.”) T-Mobile does not contend that it was unable to obtain a

copy of the transcript before filing the instant lawsuit.

       In sum, T-Mobile in this case had the same “writings” it had in City of

Milton: (1) a letter explicitly denying T-Mobile’s request; (2) minutes

summarizing the April 12, 2010 hearing and recounting the reasons for the denial;

and (3) a verbatim transcript of the April 12, 2010 hearing during which the City

Council denied the request. Under our analysis in City of Milton, we must

conclude here that “collectively [these documents] are enough to satisfy the writing

requirement of § 332(c)(7)(B)(iii).” 

, at *11.7


       7
         To be clear, the sole issue before us in this case is whether the City complied with the
“in writing” requirement of § 332(c)(7)(B)(iii). The district court limited its decision to that
question; it did not proceed to analyze, for example, whether the City’s denial is “supported by
substantial evidence contained in a written record.” § 332(c)(7)(B)(iii). Nor have the parties
addressed this issue. We therefore express no opinion as to whether the “substantial evidence”
requirement is met in this case nor about any other issue in this case that is not before us.
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      Lastly, we reject T-Mobile’s attempt to distinguish this case from our

opinion in City of Milton. First, T-Mobile contends that “[f]undamental to the

outcome in [City of] Milton was the clearly pre-written motion that was read into

the record and reproduced in the minutes for each application.” T-Mobile refers us

to page four of our opinion in City of Milton, but we cannot find any indication

there that the motions in City of Milton were indeed “pre-written” before the

hearing. See 

, at *4. Nor do we believe that this supposed

distinction would make a difference. The critical facts underlying our decision in

City of Milton are that T-Mobile received a written denial and that the reasons for

the denial could be gleaned from the written transcript and the written minutes of

the hearing. 

holding in City of Milton did not depend on whether

the councilmember moving to deny the permit read from prepared notes or stated

her reasons without the aid of a “pre-written document.” Instead, what mattered

in City of Milton was that the stated reasons were captured in a written document,

such as the transcript or the minutes of the hearing.

       Second, T-Mobile suggests that the reasons offered by Councilmember Dr.

Price in support of her motion to deny the request were “[u]nlike the pre-written

motions read into the record” in City of Milton because “Councilmember Price’s

statement reflects her impromptu opinion.” This Court’s opinion in City of Milton

quoted the reasons stated in support of the councilmember’s motion in that case,

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see 

, at *4, as we did earlier in this opinion. After comparing

the reasons stated in support of the respective motions, we reject the contention

that the manner in which Dr. Price stated her reasons in this case is materially

different from her counterpart’s statements in City of Milton. While the reasons

offered in support of the respective motions may have been different, our analysis

of the “in writing” requirement in City of Milton relied neither on the merits of the

stated reasons nor on the eloquence of the councilmember.

                                III. CONCLUSION

      For the reasons set forth above, we reverse the district court’s grant of

summary judgment and remand for further proceedings.

      REVERSED AND REMANDED.




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