CAUSE NO CV FIFTH DISTRICT COURT OF APPEALS DALLAS COUNTY, TEXAS INWOOD ON THE PARK, APPELLANT, STEPHANIE MORRIS AND ALL OCCUPANTS,

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1 CAUSE NO CV ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 11 October 12 A9:39 Lisa Matz CLERK FIFTH DISTRICT COURT OF APPEALS DALLAS COUNTY, TEXAS INWOOD ON THE PARK, APPELLANT, v. STEPHANIE MORRIS AND ALL OCCUPANTS, APPELLEE. APPELLANT S BRIEF ISRAEL SUSTER STATE BAR NO THE SUSTER LAW GROUP, PLLC 1316 VILLAGE CREEK DR., STE. 500 PLANO, TEXAS TELEPHONE: FACSIMILE: ATTORNEY FOR APPELLANT

2 IDENTITY OF PARTIES AND COUNSEL Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, the following is a complete list of all parties to the trial court s judgment and the names and addresses of all trial and appellate counsel. Trial and Appellate Counsel for Appellant Inwood on the Park Represented by: Israel Suster The Suster Law Group, PLLC 1316 Village Creek Drive, Suite 500 Plano, Texas (972) Telephone (972) Facsimile Trial Counsel for Appellee Stephanie Morris and All Occupants Represented by: Lui O. Akwuruoha Akwuruoha Law Firm 1140 Empire Central, Suite 205 Dallas, Texas (214) Telephone (214) Facsimile Appellate Counsel for Appellee Stephanie Morris and All Occupants Albert Morris Albert O. Morris, P.C. P.O. Box Sugar Land, Texas (713) Telephone (832) Facsimile ii

3 TABLE OF CONTENTS PAGE IDENTITIES OF PARTIES AND COUNSEL... ii TABLE OF CONTENTS... iii INDEX OF AUTHORITIES...v STATEMENT OF THE CASE...1 ISSUE PRESENTED...2 Issue 1. The trial court erred in granting Morris motion for summary judgment effectively dismissing Appellant s suit with prejudice. Even if a claim for possession is no longer an issue in a forcible detainer suit on appeal, a county court nevertheless retains jurisdiction to determine whether a party is entitled to damages, including loss of rents during the appeal, reasonable attorneys fees in the justice and county courts and court costs. STATEMENT OF FACTS...3 SUMMARY OF THE ARGUMENT...6 STANDARD OF REVIEW...8 ARGUMENT...9 PRAYER...17 CERTIFICATE OF SERVICE...18 APPENDIX Order Granting Defendant s Amended Motion for Summary Judgment...TAB 1 Defendant s Amended Motion for Summary Judgment...TAB 2 iii

4 Plaintiff s Response to Defendant s Amended Motion for Summary..TAB 3 TEX. PROP. CODE TAB 4 TEX. R. CIV. P. 574a...TAB 5 TEX. R. CIV. P TAB 6 iv

5 INDEX OF AUTHORITIES CASES PAGE Am. Tabacco Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997)..8 Brown v. Apex Realty, No CV, 2011 WL (Tex. App. Dallas Aug. 2, 2011, no pet. h.)..9 Carr v. Brasher, 776 S.W.2d 567 (Tex. 1989)..8 Hanks v. Lake Towne Apartments, 812 S.W.2d 625 (Tex. App. Dallas 1991, writ denied)..11 Hart v. Keller Properties, 567 S.W.2d 888 (Tex. Civ. App. Dallas 1978, no writ)...10 Hudson v. City of Mesquite, No CV, 1994 WL (Tex. App. Dallas June 17, 1994, no pet.)..10 Limestone Prods. Distrib., Inc. v. McNamara, Inc., 71 S.W.3d 308 (Tex. 2002) Jarvis v. Rocanvile Corp., 298 S.W.3d 305 (Tex. App. Dallas 2009, pet. denied). 9 Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150 (Tex. 2004)...8 Knight v. K & K Props., Inc., 589 S.W.2d 860 (Tex. Civ. App. Fort Worth, 1979, no writ)...11 Krull v. Somoza, 879 S.W.2d 320 (Tex. App. Houston [14th Dist.] 1994, writ denied)..10 v

6 Malooly Bros., Inc. v. Napier, 461 S.W.2d 119 (Tex. 1970)...9 Mastermark Homebuilders, Inc. v. Offenburger Constr., Inc., 857 S.W.2d 765 (Tex. App. Houston [14th Dist.] 1993, no writ).10, 11, 13, 14 Reagan v. Tolleson, No CV, 2011 WL (Tex. App. Dallas Sept. 27, 2011, no pet h.) 8, 9 Red Roof Inns., Inc. v. Murat Holdings, L.L.C., 223 S.W.3d 676 (Tex. App. Dallas 2007, pet denied) (op. on reh g).8 Smith v. Deneve, 285 S.W.3d 904 (Tex. App. Dallas 2009, no pet). 8 Tallwater v. Brodnax, 156 S.W.2d 142 (Tex. 1941)...11, 14 RULES AND STATUES TEX. GOV T CODE (West Supp. 2010)..9, 12 TEX. PROP. CODE (West 2000)..9, 12 TEX. PROP. CODE (West 2000) 11, 14 TEX. R. CIV. P. 574a TEX. R. CIV. P , 12 TEX. R. CIV. P , 10, 11, 13 vi

7 STATEMENT OF THE CASE This is a suit in county court appealed as a forcible detainer action from the justice court. (CR 31, 77). The suit in county court was amended to seek damages pursuant to Rule 752 of the Texas Rules of Civil Procedure. (CR 29-33). On April 27, 2011, the Honorable D Metria Benson, Judge of the Dallas County Court at Law No. 1, Dallas, Texas, granted summary judgment for want of jurisdiction, effectively dismissing suit with prejudice (CR 6, 22-26). PAGE 1

8 ISSUE PRESENTED 1. The trial court erred in granting Morris motion for summary judgment effectively dismissing Appellant s suit with prejudice. Even if a claim for possession is no longer an issue in a forcible detainer suit on appeal, a county court nevertheless retains jurisdiction to determine whether a party is entitled to damages, including loss of rents during the appeal, reasonable attorneys fees in the justice and county courts and court costs. PAGE 2

9 STATEMENT OF FACTS I. Background Facts Appellant Inwood on the Park Apartments ( Inwood ) operates an apartment complex that leased an apartment to Appellee Stephanie Morris ( Morris ). (CR 29, 43, 50). On or about December 13, 2009, at 3:00 a.m., an off-duty police officer working for Inwood noticed a vehicle in Inwood s garage with the lights on and no activity around the vehicle. (CR 30, 51, IV). Upon approach of the vehicle and further investigation, the officer noted a person in the vehicle with his pants pulled open and his penis in his right hand. (CR 30, 51, IV). The party in the vehicle (later identified as Albert Morris, Appellee s father) would not properly identify himself and refused to cooperate with the police officer. (CR 30, 51, IV). Because Albert Morris was uncooperative, exited his vehicle and approached Morris apartment, the Dallas Police Department was called for backup. (CR 30, 51, IV). In attempts to get Albert Morris out of the apartment, there was an altercation between the off-duty officer, the Dallas Police Department, Morris, Morris mother along with Albert Morris. (CR 30, 51, IV). As a result, Morris and her mother had to be physically restrained by the police department and Albert Morris was thereafter arrested and removed from the complex. (CR 30, 31, 51, IV). PAGE 3

10 In December, 2009, Inwood subsequently filed a forcible detainer action against Morris seeking possession of the premises along with attorneys fees and costs. (CR 9-14). Morris was represented in the suit by her father, Albert Morris, a licensed attorney. (CR 31, VIII). On January 25, 2010, after a jury trial in the justice court, a judgment was rendered for possession and attorneys fees in favor of Inwood. (CR 31, VIII, 51, VI). II. Procedural History On or about February 1, 2010, Morris filed her notice of appeal with the justice court (CR 31, VIII, 51, VII). She then vacated her apartment on or about February 3, 2010, without paying rents for the month of February, 2010, or rents during the pendency of the appeal of the county court action. (CR 31, VIII, 51, VII). On March 16, 2010, and prior to the original trial setting, Inwood filed its nonsuit as to possession only on the basis that possession was moot. (CR 15-16). The notice of nonsuit specifically excluded the dismissal of any other claims, including damages, attorneys fees and costs of court. (CR 15). On March 18, 2010, the trial court entered an order of nonsuit as to possession only. (CR 21). On March 18, 2010, Morris filed a motion for summary judgment. Thereafter, on April 22, 2010, Morris filed an amended motion for summary PAGE 4

11 judgment. 1 (CR 22-27, Apx 2). On October 26, 2010, Inwood filed its second amended petition, specifying damages under Rule 752 of the Texas Rules of Civil Procedure (for loss of rentals during the pendency of the appeal along with reasonable attorneys fees in the justice and county courts). 2 (CR 29-35, VIII and claim for relief). On that same date, Inwood filed its response to Morris amended motion for summary judgment, along with the affidavit of Erica Spence in support of Inwood s claims for loss of rentals and attorneys fees (CR 36-51, Apx 3). On November 5, 2010, a hearing was held on Morris amended motion for summary judgment. (CR 79). On the date of the hearing, Morris filed its reply to Inwood s response to summary judgment. (CR 52-56). Per the request of the trial court, ( See CR 8, notation dated November 4, 2010), Inwood filed a letter brief with the court (CR 57-58). On that same date, Morris filed an amended reply to Inwood s response to summary judgment. (CR 59-76). While Morris amended reply contains several affidavits, Morris did not seek leave of the trial court for the use of such affidavits as summary judgment evidence and nor did the trial court grant Morris with leave for use of such affidavits as evidence. 1 Morris amended motion for summary judgment references an attached affidavit. However, there was no such attached affidavit. (CR 26-27). Nor does such amended motion for summary judgment reference the original motion for summary judgment, which does contain an affidavit. 2 Inwood s amended pleading contains a claim for possession of the premises. While Inwood concedes that possession is moot, such allegation was inserted based on statements by the trial court that Inwood could not pursue its attorneys fees unless possession was an issue to be tried. Inwood s amended pleading also asserts that it is manifestly unjust and against public policy to preclude a landlord from the recovery of attorneys fees through vacating the premises and the filing of an appeal. (CR 32). PAGE 5

12 On April 27, 2011, the trial court issued an order granting Morris amended motion for summary judgment. (CR 6, Apx 1). Inwood subsequently timely filed its motion for new trial, which was overruled by operation of law. (CR 81). SUMMARY OF THE ARGUMENT The trial court improperly granted Morris motion for summary judgment without allowing Inwood to address the merits of its suit. The trial court was vested with jurisdiction over the forcible detainer suit because it was an appeal from a judgment rendered in a justice court. Inwood was entitled to plead and did plead for loss of rentals during the pendency of the appeal along with reasonable attorneys fees in the justice and county courts. Inwood further sought its court costs. The fact that Morris vacated the premises and mooted any claim for possession did not otherwise divest the trial court with any jurisdiction over Inwood s damage claims under Rule 752. Morris contention that Inwood s claim for attorneys fees on appeal was barred under Rule 574a is clearly trumped by Rule 752 in a forcible detainer action. To the extent the trial court granted summary judgment on Morris contention that Inwood did not comply with Section (a) of the Texas Property Code to qualify for attorneys fees, such determination was erroneous because Inwood plead and proved the execution of a lease and such entitlement to PAGE 6

13 fees under Section (b). Morris presented no summary judgment evidence of the non-existence of any lease. Finally, Morris did not move for summary judgment on Inwood s claims for loss of rentals during the pendency of the appeal. summary judgment evidence to rebut such claims. Nor did Morris offer any Consequently, there was an unaddressed issue that precluded the Court from dismissing suit. Therefore, the trial court s order of dismissal should be vacated and the case be remanded for a trial on the merits. PAGE 7

14 STANDARD OF REVIEW The standard of review of a summary judgment is de novo. Reagan v. Tolleson, No CV, 2011 WL , at *2 (Tex. App. Dallas Sept. 27, 2011, no pet. h.) (citing Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, (Tex. 2004) ; Smith v. Deneve, 285 S.W.3d 904, 909 (Tex. App. Dallas 2009, no pet.). If a traditional summary judgment was in favor of a defendant, the reviewing court will determine whether the defendant conclusively disproved an element of plaintiff s claim or conclusively established every element of an affirmative defense. Id. (citing Am. Tabacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Smith, 285 S.W.3d at 909). The reviewing court must assume that all of the non-movant s proof is true, make every reasonable inference in favor of the non-movant and resolve all doubts as to the existence of a genuine issue of material fact against the movant. See Limestone Prods. Distrib., Inc. v. McNamara, Inc., 71 S.W3d 308, 311 (Tex. 2002). If the trial court does not specify the ground or grounds relied upon in its ruling, the appellate court must affirm the summary judgment if any ground asserted in the motion is meritorious. See Reagan, 2011 WL , at *2 (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Red Roof Inns., Inc. v. Murat Holdings, L.L.C., 223 S.W.3d 676, 684 (Tex. App. Dallas 2007, pet denied) (op. on reh g)). Additionally, if each possible ground is not challenged on appeal, the PAGE 8

15 reviewing court must affirm the summary judgment on the unchallenged ground. See id. (citing Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Jarvis v. Rocanvile Corp., 298 S.W.3d 305, 313 (Tex. App. Dallas 2009, pet. denied). ARGUMENT 1. The trial court erred in granting Morris motion for summary judgment effectively dismissing Appellant s suit with prejudice. Even if a claim for possession is no longer an issue in a forcible detainer suit on appeal, a county court nevertheless retains jurisdiction to determine whether a party is entitled to damages, including loss of rents during the appeal, reasonable attorneys fees in the justice and county courts and court costs. I. Authority Jurisdiction to determine the right to immediate possession through a forcible detainer suit lies exclusively with the justice court where the subject matter property is located and in the county court on appeal. See TEX. PROP. CODE (We st 2000); TEX. R. CIV. P. 749; TEX. GOV T CODE (West Supp. 2010). A county court is not deprived of jurisdiction if the issue of possession becomes moot while on appeal from the justice court. See TEX. R. CIV. P. 752 (Opinions of Subcommittee on Interpretation of Rules) (stating that expenses and costs, including attorneys fees, are recoverable by the prevailing party on appeal, regardless of whether possession is still at issue); Brown v. Apex Realty, No CV, 2011 WL , at * 1 (Tex. App. Dallas Aug. PAGE 9

16 2, 2011, no pet. h.) (holding that if a judgment seeks an award of damages in a forcible detainer action, the fact that possession becomes moot does not deprive the county court of jurisdiction). While on appeal to the county court, damages for lost rents during the pending appeal are recoverable, even if the only issue originally before the justice court was possession. See Krull v. Somoza, 879 S.W.2d 320, 322 (Tex. App. Houston [14th Dist.] 1994, writ denied) (holding that [d]amages claims related to maintaining or obtaining possession of the premises may be joined with the detainer action and litigated in the county court ) (emphasis omitted); Hudson v. City of Mesquite, No CV, 1994 WL , at *3 (Tex. App. Dallas June 17, 1994, no pet.) (finding that suit for rents can be joined on appeal); Hart v. Keller Properties, 567 S.W.2d. 888, 888 (Tex. Civ. App. Dallas 1978, no. writ) (stating that lessor was entitled to recover damages for occupancy of the property during pending trial de novo, despite fact that only issue originally before justice court was possession). Moreover, attorneys fees are recoverable in a forcible detainer action as damages. See TEX. R. CIV. P. 752; Mastermark Homebuilders, Inc. v. Offenburger Constr., Inc., 857 S.W.2d 765, 767 (Tex. App. Houston [14th Dist.] 1993, no writ) ( [d]amages under [Rule 752] include reasonable attorneys fees ). Per Rule 752, [d]amages may include but are not limited to rentals during the pendency of PAGE 10

17 the appeal and reasonable attorneys fees in the justice and county courts.... TEX. R. CIV. P. 752 (emphasis added). In fact, Rule 752 provides the exclusive remedy for recovery of attorneys fees incurred in defending a forcible detainer suit. See Tallwater v. Brodnax, 156 S.W.2d 142, 144 (Tex. 1941); Mastermark, 857 S.W.2d at ; Hanks v. Lake Towne Apartments, 812 S.W.2d 625, 628 (Tex. App. Dallas 1991, writ denied). A prevailing party may recover its attorneys fees in a forcible detainer action if it complies with one of two methods. Section (b) of the Texas Property Code states, If the landlord provides the tenant notice under Subsection (a) or if a written lease entitles the landlord to recover attorney's fees, a prevailing landlord is entitled to recover reasonable attorney's fees from the tenant. TEX. PROP. CODE (b) (West 2000). A tenant cannot circumvent a landlord s statutory entitlement to an award of attorneys fees by abandoning possession of the property at issue in the forcible detainer action. See Knight v. K & K Props., Inc., 589 S.W.2d 860, 862 (Tex. Civ. App. Fort Worth, 1979, no writ). II. Analysis - Morris Grounds for Summary Judgment In the present case, Morris summary judgment motion requests that the trial court dismiss Inwood s suit with prejudice. (CR 26). Morris essentially asserts three grounds in support of her motion. First, Morris motion contends that the trial court lacked jurisdiction to consider Inwood s claim for attorneys fees under PAGE 11

18 Rule 752 once Inwood nonsuited its claim for possession. (CR 23-24). Second, Morris asserts that Inwood cannot set up a new ground for recovery on appeal (damages for lost rents), per Rule 574a, because Inwood did not seek such damages from the justice court. (CR 24-25). Third, Morris asserts that Inwood is not entitled to recover its attorneys fees because Inwood s notice to vacate did not specify that Inwood may recover attorneys fees if Morris did not vacate the property at issue before the 11 th day after receipt of such notice. (CR 25). A. First Ground - Lack of Jurisdiction With regard to Morris first contention, jurisdiction in a forcible detainer action on appeal is exclusively with the trial court. Inwood filed suit in the justice court and obtained a judgment against Morris on its claims for possession and attorneys fees. (CR 51). Because Morris appealed the judgment, the trial court was vested with exclusive jurisdiction over Inwood s claims. See TEX. PROP. CODE ; TEX. R. CIV. P. 749; TEX. GOV T CODE Despite Morris contention, jurisdiction was not lost when Inwood nonsuited its claim for possession. Inwood only nonsuited the issue of possession on appeal because such issue was moot. (CR 15-16, 21). However, such nonsuit did not dispose of the entire case because Inwood s claim for attorneys fees and court costs remained. (CR 15-16, 21). Inwood subsequently amended its pleading to include a claim for lost PAGE 12

19 rents during the pendency of the appeal. (CR 29-35). Inwood even reasserted its original claim for possession, based on a statement from the trial court, which believed that a claim for possession was necessary for Inwood to prevail on appeal. (CR 31-32). B. Second Ground Rule 574a With regard to Morris second contention, Rule 574a did not preclude Inwood from recovering lost rents that accrued during the pending trial de novo. See TEX. R. CIV. P. 574a, 752. Rule 574a states that either party may plead new matters on appeal but such party cannot set up a new ground for recovery that was not pleaded in the justice court. See TEX. R. CIV. P. 574a. Inwood asserted a claim for lost rents on appeal because Morris did not vacate the property until February 3, 2010, but failed to pay rent for the month of February, (CR 51). Despite Morris contention, Rule 752, which allows for recovery of damages on appeal in a forcible detainer action, controls over Rule 574a. See Tex. R. Civ. P. 574a, 752; Mastermark, 857 S.W.2d at 767 (holding that Rule 574 a governs general cases appealed from the justice court to county court, where Rule 752 falls within the special set of rules created by the legislature to govern forcible detainer actions). Thus, the fact that Morris vacated the property shortly after filing her appeal does not preclude Inwood from seeking damages or attorneys fees that accrued during the pending trial de novo. PAGE 13

20 In addition, attorneys fees are considered damages in a forcible detainer action, and Inwood properly plead for recovery of such attorneys fees in the justice and county courts. (CR 9-13, 29-35). To deny Inwood its right to recover its attorneys fees on appeal because possession is moot would result in an inequity because it would preclude Inwood from ever recovering such fees. See Tallwater, 156 S.W.2d at 144. Therefore, even if a plaintiff failed to assert a claim for attorneys fees or damages in the justice court, recovery for such fees may be made, for the first time, on appeal. See Mastermark, 857 S.W.2d at C. Third Ground Section (a) In connection with Morris third contention that Inwood did not comply with Section (a) of the Texas Property Code to qualify for attorneys fees, Morris did not present any summary judgment evidence that refutes the existence of a lease agreement. Morris generally asserts that Inwood did not comply with Section (a). (CR 22-27). Under this section, a landlord (without a written lease) can not recover attorneys fees without giving an 11 day notice to vacate that states attorneys fees will be sought if the tenant fails to vacate before such date. See TEX. PROP. CODE (a). However, Morris fails to acknowledge that Section (b) allows for recovery of attorneys fees if a written lease allows for such recovery. See id. at (b). PAGE 14

21 D. Unaddressed Issue Lost Rents During Appeal Morris motion for summary judgment did not challenge Inwood s claim for loss of rents during the pendency of the appeal. Nor was any summary judgment evidence raised by Morris to challenge such claim. Consequently, the trial court should not have rendered summary judgment nor dismissed Inwood s suit on this very claim. E. Inwood is Entitled to Damages, Attorneys Fees and Costs Inwood s pleadings, on their face, conclusively establish that Morris breached the parties lease contract. (CR 29-51). Such pleadings establish that Inwood incurred attorneys fees and costs associated with such breach and that Morris remained in possession of the property through February 3, 2010, but did not pay rent for the month of February, (CR 50-51). Moreover, Inwood s summary judgment evidence presents fact issues as to loss of rents and attorneys fees, which preclude summary judgment. (CR 51). Beyond attorneys fees and damages, Inwood is also entitled to recover its court costs stemming from Morris breach. However, the trial court has prevented such recovery by granting summary judgment for Morris. III. Conclusion The trial court erred when granting summary judgment for Morris because the trial court retained exclusive jurisdiction over this appeal, even when PAGE 15

22 possession became moot. Inwood s non-suit of its claim for possession, which was later reasserted by amendment, did not cause the trial court to lose jurisdiction. Further, Rule 574a of the Texas Rules of Civil Procedure does not preclude Inwood from recovering its lost rents that accrued during the pending appeal. Additionally, Inwood is entitled to recover its attorneys fees, pursuant to the parties lease contract and Section (b) of the Texas Property Code. Finally, the trial court erred in dismissing this suit (an improper remedy) because the issue of Inwood s claims for lost rents during the pendency of the appeal is not resolved by the summary judgment motion. For the reasons set forth, the order granting summary judgment should be vacated and this case remanded for trial on the merits. PAGE 16

23 PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant Inwood on the Park prays that the Court reverse or vacate the judgment of the trial court and that this action be remanded for further proceedings and trial. Appellant further requests all relief to which it may be entitled at law or equity. Respectfully submitted, THE SUSTER LAW GROUP, PLLC 1316 Village Creek Dr., Ste. 500 Plano, Texas Telephone: (972) Facsimile: (972) /s/ Israel Suster Israel Suster State Bar No ATTORNEY FOR APPELLANT PAGE 17

24 CERTIFICATE OF SERVICE I hereby certify that on the 12 th day of October, 2011, a true and correct copy of Appellant s Brief was served upon the attorneys for Appellee Stephanie Morris, Lui O. Akwuruoha at 1140 Empire Central, Suite 205, Dallas, Texas 75247, via Facsimile (214) and Albert Morris at P.O. Box 17026, Sugar Land, Texas 77496, via Facsimile (832) /s/ Israel Suster Israel Suster PAGE 18

25 APPENDIX TAB 1 TAB 2 TAB 3 Order Granting Defendant s Amended Motion for Summary Judgment Defendant s Amended Motion for Summary Judgment Plaintiff s Response to Defendant s Amended Motion for Summary Judgment TAB 4 TEX. PROP. CODE TAB 5 TEX. R. CIV. P. 574a TAB 6 TEX. R. CIV. P. 752 PAGE 19

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