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Bobcat North America, LLC v. Inland Waste Holdings, LLC

Superior Court of Delaware

April 26, 2019

BOBCAT NORTH AMERICA, LLC, Counterclaim Defendant.

          Submitted: January 23, 2019

          Upon Plaintiff/Counterclaim Defendant Bobcat North America, LLC's Motion for Partial Summary Judgment, GRANTED in part; DENIED in part.

          Joel Friedlander, Esquire, Christopher M. Foulds, Esquire, Christopher P. Quinn, Esquire, Friedlander & Goris, P.A., Wilmington, Delaware, Andrew J. Wronski, Esquire (pro hac vice) (argued), Max B. Chester, Esquire (pro hac vice), Andrew M. Meerkins, Esquire (pro hac vice), Foley & Lardner LLP, Milwaukee, Wisconsin, Attorneys for Plaintiff/Counterclaim Defendant.

          David S. Eagle, Esquire, Sean M. Brennecke, Esquire, Klehr Harrison Harvey Branzburg LLP, Wilmington, Delaware, William T. Hill, Esquire (pro hac vice) (argued), Gregory R. Sellers, Esquire (pro hac vice), Klehr Harrison Harvey Branzburg LLP, Philadelphia, Pennsylvania, Attorneys for Defendants/Counterclaim Plaintiffs.


          WALLACE, J.


         Plaintiff Bobcat North America, LLC ("Bobcat") brings this action against Defendants Inland Waste Holdings, LLC ("Inland Holdings"), RSMDBB Holdings, LLC ("RSMDBB"), Bart A. Begley ("Begley"), Montgomery M. Davison ("Davison"), and Robert A. Smith ("Smith", together with Begley and Davison, the "Sellers") (Sellers, together with Inland Holdings and RSMDBB, "Inland") for claims arising out of Bobcat's acquisition from Inland of a waste management business consisting of Inland Waste Solutions, LLC ("Inland Solutions"), ABC Leasing Company, LLC ("ABC"), and Inland Service Corporation, LLC ("Inland Service") (together with Inland Solutions and ABC, the "Company"). Bobcat's Complaint is based on Inland's alleged misrepresentation of the Company's financial statement, customer relationships, and assets to inflate the acquisition price. Bobcat brings one count each of fraud, negligent misrepresentation, and breach of contract through which it seeks, inter alia, declaratory judgment and indemnification.

         Inland answered the Complaint and, together with intervenors Inland Service and Inland Service of Florida, LLC ("Inland Florida") (where necessary, the reference to Inland also includes "Inland Service" and "Inland Florida"[1]) bring against Bobcat counterclaims via two counts of tortious interference, one count of defamation, a breach-of-contract count, and an indemnification claim.

         Now before the Court is Bobcat's Motion for Partial Summary Judgment.[2]For the reasons stated below, the Court GRANTS Bobcat's Motion, in part, and DENIES it, in part.


         The Court summarizes here only the factual background pertinent to this motion. The Court extracts this background from the undisputed facts found in Bobcat's complaint (and its amendments), Inland's counterclaims (and their amendments), and the parties' motion submissions of affidavits and exhibits.

         A. The Parties And Inland's Contemplated Sale of the Company.

         Bobcat is a limited liability company with its principle place of business in Sarasota, Florida.[3] George W. Dietrich is Bobcat's Chief Executive Officer. His son, William "Billy" Dietrich, is the President.[4]

         The Company, founded in 1953, specializes in residential and commercial waste management systems and services.[5] On December 31, 2012, Begley and Davison each acquired 37.5% of the Company's outstanding equity from Smith, who retained 25% of the equity interest.[6] Begley and Davison financed their combined purchase price of $25, 000, 000 through a loan from Union Bank, N.A., to be repaid in installments of approximately $400, 000 per month from the Company's post-acquisition revenues.[7]

         At the time of this 2012 purchase, the Company ran a waste management business in Fort Hood, Texas ("Ft. Hood Business").[8] In 2014, the Company was chosen by Memphis, Tennessee as its waste management contractor.[9] Also in 2014, the Company executed an asset swap agreement with a competitor to obtain the right to service the City of Germantown, Tennessee-a Memphis suburb.[10]

         In the Summer of 2015, Inland contemplated the sale of the Company and retained an investment banking firm, Livingstone Partners LLC ("Livingstone"), to help the Company.[11] Later that year, Livingstone complied and Inland issued an Information Memorandum to prospective buyers, including Bobcat.[12] In that Information Memorandum, Inland represented, among other things, that: (1) the Company's model was superior in generating Earnings Before Interest, Tax, Depreciation, and Amortization ("EBITDA"); and (2) the Company had EBITDA margins of 35% from 2011 through 2015.[13]

         B. Bobcat's Acquisition of the Company and the UP A.

         After receiving the Information Memorandum, Bobcat contacted Inland, and in January 2016, the parties signed a formal letter of intent and commenced negotiations.[14] The acquisition was finalized on May 18, 2016, when Bobcat and Inland entered into a Unit Purchase Agreement ("UPA"). Through the UPA, Bobcat purchased, at a price of $64, 900, 000: (a) 100% interest in Inland Solutions from the Sellers; and (b) 100% interest in ABC and Inland Service from Inland Holdings (exclusively owned by the Sellers) (the "Transaction").[15]

         At the time of the Transaction, the Company maintained operations in ten states: Arkansas, Delaware, Georgia, Kansas, Mississippi, Missouri, Oklahoma, Tennessee, Texas, and Wisconsin.[16]

         As part of the Transaction, the Sellers collectively received 11.9% equity ownership interest (the "Rollover Equity") of Bobcat through RSMDBB. RSMDBB was formed specifically to hold this Rollover Equity.[17] The Rollover Equity was subject to redemption by Bobcat after Closing if Inland failed to meet certain financial performance targets tied to proposed expanded service contracts with Memphis ("Memphis Expansion").[18]

         Under the UPA, Bobcat and Inland were bound by covenants to the other concerning their post-closing arrangements[19] including, at issue here, Inland's obligation of confidentiality and non-disparagement.[20]

         C. Bobcat Discovers Inland's Alleged Misconduct and Misrepresentation Post-Closing.

         Shortly after the closing of the Transaction, Bobcat says it discovered Inland's misconduct, misrepresentation, fraud, and mismanagement of the Company.[21] Among other things, Bobcat learned that: (1) the Memphis service contracts operated at a loss of over $1 million;[22] (2) numerous claims had been filed against the Company resulting in liquidated damages of $406, 000 for uncured violations that occurred in 2016 alone;[23] and, (3) the Company failed to properly maintain its trucks and equipment.[24] Bobcat found too that the Company was faced with liquidated damages in Delaware and had already lost certain Delaware business via reassignment to a competitor.[25] Further, Bobcat discovered what appeared to be intentional irregularities in the Company's pre-closing booking of ordinary expenses.[26]

         D. Inland Florida and its Lost Contract with Okaloosa.

         In September 2016, while Bobcat was investigating the Company's suspected non-compliance with the UP A, Begley and Davison formed Inland Florida in contemplation of bidding for a waste management contract with the Board of County Commissioners for Okaloosa County, Florida.[27] The Okaloosa Board had earlier published a request for proposals.[28] And, on November 10, 2016, Inland Florida, with Begley and Davison as its founders, submitted a proposal to the Okaloosa Board.[29] Among other complained-of misconduct, Begley and Davison allegedly used UPA-protected confidential information-e.g. pricing, names, addresses, and contract terms and conditions of the Company's customers-to boost Inland Florida's credentials.[30]

         Before the Okaloosa Board made its final decision, Billy Dietrich sent its members an email objecting to Inland Florida's use of Bobcat's confidential information.[31] The Okaloosa Board ultimately selected another contractor in February 2017.[32] Four months later, this action ensued. And before the Court now is Bobcat's Motion for Partial Summary Judgment through which seeks to knock out some of Inland's counterclaims.


         "The standard of review on a motion for summary judgment is well-settled."[33] A motion for summary judgment is reviewed by this Court under Superior Court Civil Rule 56(c), which states:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.[34]

         The burden is on the moving party to demonstrate its prayer for summary judgment is supported by undisputed facts or an otherwise adequate factual record to support a legal judgment.[35] "If the motion is properly supported, then the burden shifts to the non-moving party to demonstrate that there are material issues of fact for resolution by the ultimate fact-fmder."[36]

         The Court may grant a motion for summary judgment when: "(1) the record establishes that, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact, and (2) in light of the relevant law and those facts, the moving party is legally entitled to judgment."[37] But the Court cannot grant a motion for summary judgment "[i]f. .. the record reveals that material facts are in dispute, or if the factual record has not been developed thoroughly enough to allow the Court to apply the law to the factual record ... ."[38]

         A fact is material if it might affect the outcome of the pled claim under the law governing such a claim.[39] In considering a motion for summary judgment, the Court's principle function is to examine the record to determine whether genuine issues of material fact exist, but not to decide such issues.[40]

         At bottom, a claim "should be disposed of by summary judgment whenever an issue of law is involved and a trial is unnecessary."[41]


         Bobcat moves for partial summary judgment asking the Court to: (1) declare that that the Rollover Equity has been redeemed; (2) find Inland's breach of the confidentiality agreement of the UPA; and (3) dismiss Inland's counterclaims for tortious interference with prospective business relationship and defamation based on Billy Dietrich's email to the Okaloosa Board.

         A. Bobcat's Count V-Declaratory Judgment on the Rollover Equity.

         In Count V, Bobcat claims that because the Memphis Expansion did not occur, Bobcat is entitled to redeem the Rollover Equity and a repayment of $530, 000 from RSMDBB.[42] Bobcat moves now for a declaratory judgment on that count.

         Bobcat avers that, pursuant to the UPA's Section 6.12, redemption became "automatic" when Inland failed to deliver the Memphis Expansion. According to Bobcat, the Memphis Expansion is an "exclusive" condition triggering redemption "without regard to cause."[43] Inland all but admits that the Memphis Expansion did not occur; and Inland does not contest Section 6.12's language.[44] But Inland counters with affirmative defenses of prevention of performance and impossibility/impracticability.[45] Inland additionally suggests that the presently incomplete factual record-which it says should be further developed through discovery-prevents entry of such a declaration now.[46] The parties' post-argument submissions have further developed their positions on Inland's affirmative defenses.[47]

         1. Construction of Section. 6.12 of the UPA.

         Section 6.12 of the UPA, titled "Memphis Expansion-Redemption and Memphis Payment", reads in pertinent part:

(a) Memphis Expansion
(i) ... Begley shall have the authority to exclusively negotiate . . . execute . . . Memphis Contract[;]
(ii) . . . Davison shall manage the Memphis Expansion in the normal course of business, consistent with past practices . ., [48]

         Section 6.12 continues: if the Memphis Expansion does not occur, the Rollover Equity "will automatically and without further deed or action by any party be cancelled and redeemed by [Bobcat]. . ."[49] In addition, "[Begley and Davison] shall pay to [Bobcat] ... an inversely proportionate amount of the Base Memphis Payment. . ."[50] The "Base Memphis Payment" is $530, 000.[51]

         Delaware law governs the UPA.[52] And under Delaware law, "[t]he proper construction of any contract is purely a question of law."[53] The objective is to give effect to the parties' mutual intent at the time of contracting.[54] Absent ambiguity, contract terms should be accorded with their plain, ordinary meaning.[55] A contract term is not ambiguous merely because the parties dispute its meaning.[56] Ambiguity exists when the disputed term "is fairly or reasonably susceptible to more than one meaning."[57]

         Here, the Court finds Section 6.12's language clear and unambiguous and, therefore, accords its terms with their plain and ordinary meaning. That ordinary meaning is: with respect to the Memphis Expansion, "[f]rom and after the Closing," Begley was to exclusively negotiate contracts for the Memphis Expansion, and if a contract is executed, Davison was to manage its operation in the normal course of business.

         The deliberately selected word "automatically," and phrase "without further deed or action," unambiguously states that the Rollover Equity is tied to, and only to, the Memphis Expansion.

         2. Contract Defenses Can Be Applied to a Declaratory Judgment Action.

         Turning to Inland's affirmative defenses, the first question answered must be: Are contract defenses-like prevention and impossibility/impracticality-available in a declaratory judgment action? They can be.

         Contract defenses do not apply to equitable claims, only legal claims. But a declaratory judgment action is xvotper se equitable.[58] So there is occasion where the Court must determine whether a given declaratory judgment action is one in law or one in equity.[59] That determination turns on factors such as the nature of the underlying claim, [60] other accompanying requested relief, and the essence of the declaration sought.[61]

         Here, Bobcat's declaratory claim is based solely on a contract provision: the construction and application of Section 6.12. This claim bears little difference, if anyl, from, for instance, a potential breach-of-contract claim alleging Inland failed to return the Rollover Equity as required by the contract.[62] Bobcat's declaratory judgment claim is legal in nature; Bobcat concedes as much.[63] Therefore, contract defenses, including the prevention and impossibility/impracticality Inland asserts here, are conceptually applicable.

         3. Inland's Defense of Prevention of Performance.

         Inland's defense of prevention of performance runs as follows: Bobcat's poor performance with Memphis "prevented" Begley from expanding the Memphis contract. But Bobcat says this prevention defense cannot defeat summary judgment here because Inland assumed the risk that the Memphis Expansion might not occur. Inland disagrees, arguing that assumption of risk requires the contract language to be explicit and Section 6.12's is not.

         The general rule concerning a condition precedent is that one has no duty to perform until the condition occurs.[64] And under the "prevention doctrine" a duty to perform is excused if the other promisor party wrongfully prevented the condition from occurring.[65] "The key operative language . . . [is] 'wrongfully prevented.'"[66]Because "there is no prevention claim "where the contract, in effect, authorizes prevention."[67] The essential inquiry is whether or not the contract allocated the risk of the condition's nonoccurrence.[68]

         Delaware and other courts have long-recognized the prevention doctrine and its assumption-of-risk exception. Courts have found that contracts may authorize prevention via explicit language such as "for any reason, "[69] "for any reasons whatsoever, "[70] "regardless of the circumstances giving rise to such condition, "[71] or "nothing [therein] requires" the agreed-upon condition precedent be consummated.[72]

         Contract language that is less explicit has also been found to authorize prevention by a contracting party or other. Frequently, these contract terms condition the consummation of a transaction upon the approval of the other party, [73]or subject one party to the discretion, satisfaction, or decision of the other party or a third-party.[74]

          The fact that both contracting sides are sophisticated parties experienced in their industry, weighs in favor of finding an assumption of risk in contract terms.[75]But where assumption of risk is found in a contract, courts caution that the specific risk assumed must be distinguished from some "blanket" assumption of risk claimed.[76] For only a specific risk clearly assumed by a party will preclude that party's defensive claim of prevention.[77] And absent clear contractual authorization of prevention (like that just described above), a court won't judicially imply such a term.[78]

         Turning to Inland's prevention defense, the Court finds Inland indeed assumed the risk that the Memphis Expansion might not occur. Section 12.6 of the UPA explicitly provides that if the Memphis Expansion does not occur, the Rollover Equity "will automatically and without further deed or action by any party be cancelled and redeemed by [Bobcat.]"[79] The ordinary meaning and common understanding of the word "automatically" pertinent here is "in a manner independent of a decision or action"[80] This use of "automatically" in this contract, is reinforced by its next contractual phrase "without further deed or action by any party." And these words and phrases-included in this multimillion-dollar agreement that was forged by sophisticated parties-in all meaningful ways equate to "for any reason whatsoever," and "regardless of the circumstances giving rise to such condition."

         In unambiguously and painstakingly drafted language, Section 6.12 confers the automation of the redemption that hinges solely on the nonoccurrence of a predetermined event, here, the Memphis Expansion. By executing the UPA, Inland knowingly consented to the risk that the Memphis Expansion might not occur, and that if it did not occur, the Rollover Equity would automatically be redeemed, without regard to the cause of the nonoccurrence.[81] So Inland's prevention defense is foreclosed by its own knowing assumption of risk.

         4. Inland's Defense of Impossibility / Impracticality

         Inland also asserts the defense of impracticability/impossibility of performance on the same basis as the prevention doctrine: Bobcat's poor performance made it impossible to expand the business with Memphis.[82]

         Under Delaware law, an impracticability/impossibility defense requires the showing of "(1) the occurrence of an event, the nonoccurrence of which was a basic assumption of the contract; (2) the continued performance is not commercially practicable; and (3) the party claiming impracticability did not expressly or impliedly agree to performance in spite of impracticability that would otherwise justify nonperformance."[83]

         Where the party has assumed the risk that the "impracticable/impossible" event might occur, the defense does not apply.[84] There can be no invocation of the impossibility defense if "the supervening events were 'reasonably foreseeable, and could and should have been anticipated by the parties and provision made therefor within the four corners of the agreement."'[85]

         Here, the sophisticated commercial parties, Bobcat and Inland, no doubt foresaw that the Memphis Expansion simply might not occur for any number of reasons or no reason at all. It is the very risk Section 6.12 contractually allocates. Had Inland intended to place any limitation on the "automatic" redemption, it could have done so. Having consented to taking on the potentiality that Memphis would not expand its relationship-no matter what, and with no limitation-Inland cannot retroactively avoid the consequence of that now-materialized risk.

         Thus, given the simple interpretation of the UPA's unambiguous language, Inland's affirmative defenses of prevention and impracticability/impossibility must be rejected as a matter of law. The Court need not consider Inland's calls for additional discovery or suggestions that material factual disputes exist. The Court GRANTS Bobcat's motion for summary judgment on the claim to redeem the Rollover Equity and the recoupment of the $530, 000 Base Memphis Payment.

         B. Bobcat's Count III-Breach of the Confidentiality and Non-Disclosure Obligations by Inland under § 6.4(a) of the UPA.

         Bobcat next moves for summary judgment on its claim that Inland breached the confidentiality obligation found in Section 6.4(a) of the UPA. Bobcat says Inland Florida improperly used "confidential information" without authorization in its bid for the waste management contract with the Okaloosa Board.[86] Specially, Bobcat claims that Inland Florida improperly (and misleadingly) used the names, addresses, and other contract information of the Company's customers.[87]

Section 6.4(a) consists of four sentences. They are broken down as follows: First sentence: (a) ... for a period of five (5) years after the Closing Date,
[Inland Holding] and each Member shall not . . . disclose to any person any confidential information concerning the Business, Facilities, Equipment, Material Contracts, customers, Permits or the Company Group.
Second sentence: [Inland Holding] and each Member[88] further agrees that
[Inland Holding] and such Member will not disclose the pricing information, cost structure, customer names or addresses or the terms or conditions. . .
Third sentence: If [Inland Holding] or any Member becomes legally compelled to disclose such confidential information, [Inland Holding] and/or such Member shall provide [Bobcat] with prompt advance written notice . . .
Fourth sentence: "confidential information" means and includes, without limitation, all Trade Rights ... all customer lists ... all other information concerning the Business ... the Company Group's services, clients, customers, acquisition prospects, subcontractors, costs, profits, markets, sales, trade secrets, processes, programs, products, marketing and distribution methods, but shall exclude any (x) knowledge, data and information that is (i) generally known or becomes known to the public (other than as a result of a breach of this Agreement).., [89]

         The first sentence references "confidential information;" the second sentence uses "further agrees," and specifies five categories of information (namely, pricing, cost structure, customers' names, addresses, and contracts' terms or conditions); the third sentence describes the procedure of giving notice when disclosure is legally compelled; and the fourth sentence provides a definition of "confidential information" and exemptions therefrom, e.g., "public information."

         Bobcat acknowledges the "public information" exception, and concedes that municipal contract information is largely public.[90] According to Bobcat, the "public information" exception only applies to the "confidential information" referenced in the first sentence, and not the specified categories of information described in the second sentence.[91] So then, says Bobcat, because Inland Florida used items listed in the second sentence, Inland Florida disclosed that not subject to Section 6.4(a)'s "public information" exception.[92] In essence, Bobcat urges the Court to read the first and second sentences as creating and imposing two independent, distinct and unrelated confidentiality obligations.[93]

         Inland does not dispute that Inland Florida used the Company's customers' names, addresses, and municipal contract information without Bobcat's prior consent.[94] But Inland does contest Bobcat's isolationist reading of Section 6.4(a)'s first two sentences. Inland urges, instead, that the "public information" exception applies to both and its use fell within that exception.[95]

         Factually, there is no dispute regarding Inland Florida's use without Bobcat's authorization of information that could "become[] known to the public." But the dispositive question for summary judgment on this claim is narrow and solely one of law: whether Section 6.4(a)'s second sentence imposes a confidentiality obligation unexcepted by the same section's "public information" exception. It does not. As explained below, the second sentence is most naturally read to further describe certain types of protected or "confidential information." In turn, disclosure of that described in the second sentence might-depending on the circumstances- fall under Section 6.4(a)'s "public information" exception.

         1. The First and Second Sentences Create Somewhat Distinguishable but Congruous Confidentiality Obligations.

         "The role of a court is to effectuate [contracting] parties' intent."[96] Absent textual ambiguity, the Court accords the contract's language its plain, ordinary meaning.[97] The Court takes a holistic view, reading the given instrument as a whole, giving effect to all of its terms, and reconciling or harmonizing all of its provisions.[98] "[T]he meaning which arises from a particular portion of an agreement cannot control the meaning of the entire agreement where such inference runs counter to the agreement's overall scheme or plan."[99] And the Court must, when construing a contract's terms, avoid absurd, irrational, and illogical results.[100]

         Section 6.4(a) is unambiguous so the Court can accord its terms their plain and ordinary meaning. Section 6.4(a)'s first sentence reads "not. . . disclose to any person any confidential information concerning the Business ..." The second sentence requires that the Inland entities "not disclose the [five categories of information] to any person, firm, corporation, association or other entity related to the Business." That second sentence uses the conjunctive phrase "further agrees," indicating something that is in addition to what has already been said in the first sentence. Delaware courts traditionally honor the express language of a contract. And contract construction resulting in superfluous verbiage is strongly disfavored.[101]Interpreting the second sentence's non-disclosure obligation as fully encompassed within that described in the first sentence would effectively read the second sentence out of Section 6.4(a) all together. The Court will not do so.

         As observed before, the UPA was negotiated and prepared by commercially savvy parties. Their deliberately chosen words in the contract language must be given effect. Thus, reading each sentence individually, and the entire Section 6.4(a) holistically, the Court finds that the second sentence does create a confidentiality obligation that is to some degree distinguishable from that of the first sentence. But that does not end the matter.

         2. The Confidentiality Obligation Imposed by the Second Sentence is Not Free from the "Public Information" Exception.

         Recognizing the difference between the first and second sentences, however, does not mean they are completely isolated and independent. To the contrary, their relationship is that of a general provision and a specific one; between a broad confidentiality obligation and its specific subset.

         "Specific language in a contract controls over general language, and where specific and general provisions conflict, the specific provision ordinarily qualifies the meaning of the general one."[102]

         Here, the Court finds the specific provision (the second sentence) wholly consistent with the general provision (the first sentence), and in essence, is a subset of the general provision. The first sentence's "confidential information" is inclusive of the specified categories of information enumerated in the second sentence.[103]

         The second sentence specifically applies to certain categories of persons and information. Under the circumstances where those criteria are met, a claim can be based on the second sentence. The first sentence is a "catch-all" that sets forth a general confidentiality obligation.

         Furthermore, the third sentence uses "such" confidential information to reference the aforementioned information that immediately precedes "such"-that is, the specific information set out in the second sentence. Given these structural relationships and the plain language of Section 6.4(a), the only reasonable interpretation is that the specific information enumerated in the second sentence further describes, and is exemplary of, some of the "confidential information" referenced more than once elsewhere throughout Section 6.4(a).

         It only follows that any exception to the general provision must apply to its subset, i.e., the second sentence's confidentiality obligation is subject to the fourth sentence's "public information" exception to the same extent the first sentence's confidentiality obligation is.

         Given this construction, Bobcat's motion can only be granted if Bobcat can show on the present record, that Inland Florida used wholly confidential non-public information in violation of Section 6.4(a). Bobcat hasn't done so.

         The present record demonstrates that Inland Florida used names, addresses, or other contact information of certain of the Company's municipal customers. Bobcat concedes that at least some of that information is public.[104] And Bobcat provides no affidavits, exhibits, or evidence that otherwise demonstrates what information (if any) is non-public, thus, protected under the confidentiality agreement.

         Rather, Bobcat's sole argument rests on its interpretation of Section 6.4(a)- that the second sentence creates an entirely independent confidentiality obligation that cannot be excepted under the fourth sentence. That interpretation just isn't right. Bobcat's motion for ...

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