Kim Gallegly Wesson v. Wal-Mart Stores East, L.P., and Kyle Jack

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REL: 12/4/09 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2009-2010 2080959 Kim G a l l e g l y Wesson v. Wal-Mart S t o r e s E a s t , L.P., and K y l e Jack Appeal from S t . C l a i r C i r c u i t (CV-05-108) THOMAS, Court Judge. On J u l y 1 3 , 2 0 0 4 , a t a b o u t 9:30 a.m., K i m G a l l e g l y W e s s o n and h e r f o u r c h i l d r e n went t o t h e P e l l department store, operated C i t y Wal-Mart by Wal-Mart ( " W a l - M a r t " ) , t o have t h e t i r e s Stores discount East, L.P. on Wesson's a u t o m o b i l e rotated 2080959 and b a l a n c e d . express Wesson l e f t h e r a u t o m o b i l e department Wesson h a d assumed t h a t 30 m i n u t e s , so she and h e r c h i l d r e n w a l k e d awaiting automobile. minutes, and requesting breakfast, located breakfast, service completion the automobile Wesson had been children inside checked around the t h e Wal-Mart service was n o t r e a d y to dropped o f one then to the electronics Wesson p u r c h a s e d telephone. waiting, then t o shop decided automobile Wesson and h e r of the store, o f h e r two p r e s c r i p t i o n s f o r Wesson f o rher prepaid dropped counter f o rgroceries Florida. 2 and t h e c h i l d r e n of the store, on t h e s t a t u s Wesson a t t h e pharmacy fast-food see i f h e r department minutes prescription hungry finishing department check 30 After i t had n o t . counter. additional When a t h i r d further to her i n about McDonald's store. t o t h e pharmacy a t t h e pharmacy went the again refilling yielded of the completed; proceeded Wilson to t o be t h e s e r v i c e w o u l d t a k e 20¬ W e s s o n d e c i d e d t o t a k e h e r c h i l d r e n , who w e r e restaurant where the When and lube ("TLE d e p a r t m e n t " ) f o r t h e s e r v i c e performed. store at the t i r e where cellular of her automobile o f f her forrefilling. f o r the family's second Wesson trip to 2080959 Once Wesson returned to had associate, completed the pharmacy By t h i s time, prescriptions. Vincent, had notified Kyle her grocery department shopping, retrieve to she her the pharmacy a s s o c i a t e , Jack, t h a t W e s s o n w o u l d be the in-store loss p i c k i n g up Jennifer prevention prescriptions Because Wal-Mart's p o l i c y allows from the pharmacy. pay f o r most p r e s c r i p t i o n s a t any check-out counter, the store has a computer track and place system that keeps of the customers time of the payment to e n s u r e t h a t a l l p r e s c r i p t i o n s p i c k e d the pharmacy name h a d department appeared prescriptions least two "watch Once retrieve came her list up of from persons the paid who had pharmacy resulting in for. her said that arrived loudspeaker completed. w o u l d pay of not paid for on placement at on a sorts. pharmacy groceries from Wesson's department the the Wesson b o t h ultimately p r e s c r i p t i o n s , Wesson her over she of a occasions, Wesson s e r v i c e was that picked other list" on are up to and her to inform her that department an her p r e s c r i p t i o n s when s h e for her car service. p r e s c r i p t i o n s ; Wesson 3 to announcement automobile Wesson i n f o r m e d the pharmacy f o r her paid at associate checked Vincent owed money on out gave both 2080959 prescriptions. department Wesson and returned followed by J a c k . the department, TLE items on the Once and her c h i l d r e n the TLE she r e a c h e d Wesson and the the check-out proceeded to left department; check to place out. f o r her groceries left Swain, groceries children pharmacy they were counter her Wesson grocery d i d not, and c a r s e r v i c e , Wesson the store. the associate who checked a t t h e TLE d e p a r t m e n t , t e s t i f i e d out that Wesson's she had a s k e d Wesson w h e t h e r she w a n t e d t o pay f o r h e r p r e s c r i p t i o n s . said that Wesson prescriptions at h e r p r e s c r i p t i o n s on t h e c o u n t e r t o c h e c k o u t . she had p a i d Tara her to Once counter however, p l a c e and indicated already. that she Jack t e s t i f i e d had that paid Swain for he h a d s e e n the Swain motion toward the c h i l d - s e a t p o r t i o n of the c a r t , i n which the prescriptions, Wesson's dolls s a t , as or grocery toys items. exact question purse, she and completed A l t h o u g h he s a i d t h a t o r Wesson's f i r s t some of checking the children's out Wesson's he d i d n o t h e a r Swain's answer t o t h a t q u e s t i o n , Jack s a i d t h a t he m o v e d c l o s e r t o W e s s o n a n d h e a r d h e r r e f e r t o t h e items i n the personal items. child-seat portion Jack said that 4 of the cart as he saw W e s s o n l e a v e being her the store 2080959 without paying f o r the prescriptions, outside to apprehend h e r . Once she r e a c h e d t h e p a r k i n g began to place he followed her l o t , Wesson and h e r c h i l d r e n Jack and a n o t h e r a s s o c i a t e , Nathan N i c h o l s , a p p r o a c h e d Wesson w h i l e she unloaded her purchases so her g r o c e r i e s . according into Jack addressed t o W e s s o n , s a i d : " E x c u s e me, paid f o r those p r e s c r i p t i o n s . " that she had n o t , i n f a c t , According t o Wesson, come b a c k i n s i d e t o f i l l allowed the store, according Wesson s a i d t h a t paid Jack office told her that you she a d m i t t e d she o u t some f o r m s a n d t h a t said that l e d Wesson i n the t o Wesson, Jack Jack Wesson a d m i t t e d J a c k gave h e r t o s i g n logo think f o r the p r e s c r i p t i o n s . Jack needed to she w o u l d be asked appeared that other on t h e m . associate. and h e r c h i l d r e n front locked of the f o r her S o c i a l S e c u r i t y number and t h a t sign. but I don't t o t h e s t o r e w i t h J a c k and t h e o t h e r loss-prevention Wesson W e s s o n b y name a n d , t o pay f o r t h e p r e s c r i p t i o n s . Wesson and h e r c h i l d r e n returned inside the automobile. the door the to the where, office. license and he g a v e h e r s e v e r a l p a p e r s t o than 5 to driver's she d i d n o t r e a d Wesson store, Once to notice said that, the papers that that the Wal-Mart at that time, she 2080959 still believed that she was simply according to going Wesson, to have t o pay for secured her her p r e s c r i p t i o n s . However, signature on the forms, he s h e w o u l d be trespassing store. said She store " a l l the that she her that tried she be that matter by testified loss the items guilty loss her j a i l . and told her the of her said police. telling Wesson that into custody the her Wesson further i t d i d not matter leaving Wal-Mart. when t h e y Jack secured a warrant degree against municipal Wesson. court. said she j u s t w a n t e d t o s e t t l e of t h e f t under the law but to Jack had t o l d her that that that she prescriptions. him the children, Pell him that his job without Three to paying City for police o f f i c e r s responded to Jack's e a r l i e r telephone c a l l ; they Wesson that s t e a l i n g from Wesson Jack, that of in front notified with p r e v e n t i o n and a to her t h a t J a c k had was her, and for accused told had to pay paying w h e t h e r s h e was was Jack to reason simply forgotten raised his voice going he Jack i f s h e e v e r came b a c k i n t o a W a l - M a r t t i m e " and would informed that once took arrived. f o r t h e f t of p r o p e r t y i n the third W a l - M a r t t h e n p r o s e c u t e d Wesson i n the After a t r i a l , 6 t h e a c t i o n was "dismissed by 2080959 a g r e e m e n t , " a c c o r d i n g t o a n o t a t i o n on t h e c a s e - a c t i o n - s u m m a r y sheet also of the municipal-court indicates Wesson that sued criminal Wesson p a i d Wal-Mart court and m a l i c i o u s p r o s e c u t i o n and f a l s e events of July 13, prosecution. which opposed. Wesson summary judgment, deposition, and Jack's and deposition, criminal prosecution sheet the municipal-court of asserting the claims from the resulting criminal judgment, to their Jack and t h e criminal motion submitted the t r i a l o f Wesson, for a Wesson's transcript of the case-action-summary action. Wal-Mart J a c k a r g u e d i n t h e i r summary-judgment m o t i o n t h a t Wesson not of f o r a summary exhibits Wal-Mart document costs. Jack, a n d J a c k moved As That imprisonment a r i s i n g 2004, Wal-Mart case. and could e s t a b l i s h the elements of a m a l i c i o u s - p r o s e c u t i o n c l a i m or a false-imprisonmentclaim. judgment in favor of The t r i a l Wal-Mart c o u r t e n t e r e d a summary and Jack. After her p o s t j u d g m e n t m o t i o n was d e n i e d , W e s s o n a p p e a l e d t o t h e A l a b a m a Supreme pursuant On favor Court, which t o A l a . Code appeal, of Wal-Mart transferred the appeal to this court, 1975, § 1 2 - 2 - 7 ( 6 ) . Wesson challenges and J a c k b e c a u s e , 7 the summary judgment she s a y s , g e n u i n e in issues 2080959 of material fact preclude She specifically her the malicious-prosecution claim. We We as summary fact fact Rule 1036, 1038 prima 2d at for be a her judgment. of false-imprisonment shifts trial court. when moving of no see to such weight the Assurance genuine Lee v. to A the motion genuine party issue a same for issue is entitled of as to judgment C i t y of C i v . P. A facie material a matter Gadsden, the nonmovant to rebut 592 the So. omitted). evidence q u a l i t y that Florida, 8 547 So. 592 fair-minded So. 2d West v. 870, is persons reasonably i n f e r proved." 2d movant's Lee, and of "the 'substantial evidence.'" "[S]ubstantial of a any as a to I f the movant meets t h i s b u r d e n , f a c t s o u g h t t o be Co. no apply R u l e 5 6 ( c ) ( 3 ) , A l a . R. [ i t ] is entitled (footnote of the law. is ( A l a . 1992). 1038 the n o v o ; we i n the e x e r c i s e o f i m p a r t i a l judgment can Life summary s u m m a r y j u d g m e n t m u s t make a p r i m a f a c i e s h o w i n g by existence a e s t a b l i s h the elements and granted and 56(c)(3); then evidence claim in to there that law." is exists "that and burden applied a matter of moving showing can s u m m a r y j u d g m e n t de was j u d g m e n t as party a judgment material she of disagree. review standard argues that entry the Founders 871 (Ala. 2080959 1989); see A l a . Code 1975, reviewing all the a summary evidence § 12-21-12(d). judgment, in a light the Furthermore, appellate most favorable court when must to the view nonmovant and must e n t e r t a i n a l l r e a s o n a b l e i n f e r e n c e s from the e v i d e n c e that a j u r y w o u l d be & Cas. Co. v . DPF 2000); and Fuqua v. (Ala. entitled t o draw. A r c h i t e c t s , P.C., Ingersoll-Rand See 792 Nationwide 2d 369, So. Co., Prop. (Ala. 591 So. 372 2d 486, 487 1991). It i s well settled that a malicious-prosecution action i s d i s f a v o r e d i n the law. 1284 ( A l a . 1988); 1393 ( A l a . C i v . App. for this redress from Phillips disfavor or fear stems to enforce that an for civil order plaintiff must from rights an through damages. Eidson, prove claim (1) 2d 1283, So. 2d 1390, of that the legal will 527 So. malicious a p r o c e e d i n g was probable cause, initiated judicial by the to seek process free result one's In prosecution, a proceeding (2) t h a t defendant (3) t h a t t h e j u d i c i a l p r o c e e d i n g was 9 in 2d a t 1284. i n i t i a t e d by the d e f e n d a n t a g a i n s t the p l a i n t i f f , judicial the b a s i s individual's right judgment a So. As e x p l a i n e d i n E i d s o n , adverse establish 527 682 v. K - M a r t C o r p . , 1996). liability to E i d s o n v. O l i n C o r p . , was the without initiated 2080959 by the defendant with malicious proceeding the terminated plaintiff initiation at i n the suffered of the intent, a that the judicial favor, plaintiff's damage a s judicial (4) and (5) result proceeding. of the defendant's Phillips, 682 So. 2d 1393. In argued their that proceeding probable summary-judgment Wesson could instituted cause, that not motion, establish against the Wal-Mart her judicial that was proceeding was her favor. summary j u d g m e n t i n f a v o r and J a c k need only be g r o u n d e d on a genuine i s s u e of m a t e r i a l necessary to e s t a b l i s h her W h i t l o w v. will Bruno's, address 567 only Wesson's c l a i m . failed to Jack's motion prosecution adduce 2d of one 1237-38 to of the we facts summary claim. 10 conclude create elements prosecution, (Ala. 1990), that to overcome judgment on the in Wal-Mart element the evidence submitted i n support motion, a 1235, initiated failure c l a i m of m a l i c i o u s sufficient for t o any without terminated lack-of-probable-cause B a s e d on summary-judgment f a c t as So. the Wesson's Jack judicial initiated j u d i c i a l p r o c e e d i n g was Because the and the m a l i c i o u s l y , or t h a t the the that see we of of Wesson has Wal-Mart and malicious- 2080959 " P r o b a b l e c a u s e i s d e f i n e d as ' " [ a ] r e a s o n a b l e ground for suspicion, s u p p o r t e d by circumstances sufficiently strong i n themselves to warrant a c a u t i o u s man i n t h e b e l i e f t h a t t h e p e r s o n accused i s g u i l t y of the offense charged."' P a r i s i a n Co. v . W i l l i a m s , 203 A l a . 3 7 8 , 3 8 3 , 83 S o . 1 2 2 , 127 (1919). 'The question is not whether the [malicious prosecution] plaintiff was guilty of the thing charged, but whether the [ m a l i c i o u s p r o s e c u t i o n ] d e f e n d a n t a c t e d i n g o o d f a i t h on t h e a p p e a r a n c e o f t h i n g s . ' ( E m p h a s i s s u p p l i e d . ) B i r w o o d P a p e r Co. v . D a m s k y , 285 A l a . 1 2 7 , 1 3 4 - 1 3 5 , 229 S o . 2 d 5 1 4 , 521 (1969)." Eidson, had 527 probable "court facts was So. cause must w e i g h as they instituted. cause 2d a t 1285. are to Id. in probable cause is (quoting Hanson v. The Eidson determine institute a [the defendant's] appeared not To at a judicial time" the " ' I f the facts on question Couch, 360 whether of law So. 2d defendant proceeding, actions in light the dispute, whether a judicial for 942, facts probable amount to the courts.'" Id. 945 (Ala. 1978)). court further explained: "The t e s t t h a t [ a n a p p e l l a t e c o u r t ] m u s t a p p l y when r e v i e w i n g t h e l a c k - o f - p r o b a b l e - c a u s e e l e m e n t i n a malicious prosecution case i n which summary judgment has been granted to a defendant i s as f o l l o w s : C a n one o r m o r e u n d i s p u t e d f a c t s b e found i n the r e c o r d below e s t a b l i s h i n g t h a t the defendant a c t e d i n g o o d f a i t h on t h e a p p e a r a n c e o f t h i n g s a s t h e y e x i s t e d w h e n s u i t was f i l e d , b a s e d u p o n d i r e c t evidence, or upon circumstantial evidence and i n f e r e n c e s t h a t c a n r e a s o n a b l y be d r a w n t h e r e f r o m ? 11 the proceeding the i s s u e of such of a 2080959 If so, then summary judgment i n favor of the d e f e n d a n t on p l a i n t i f f ' s m a l i c i o u s p r o s e c u t i o n c o u n t w o u l d be a p p r o p r i a t e . " Id. a t 1285-86 (emphasis added). Wesson a d m i t t e d t h a t she l e f t t h e Wal-Mart s t o r e paying f o rher prescriptions. so p u r p o s e f u l l y , reasonably obtain all, that Wesson her prescriptions without Jack store A l t h o u g h she d e n i e d h a v i n g done Jack had i n f o r m a t i o n concluded had knowledge without paying occasions. without that f r o m w h i c h he c o u l d h a v e had, paying Wesson indeed, intended f o r them. First had a l l e g e d l y left f o r p r e s c r i p t i o n s on a t l e a s t two When n o t i f i e d that s h e was i n t h e s t o r e be p i c k i n g up h e r p r e s c r i p t i o n s , J a c k w a i t e d with had prescriptions to the TLE groceries upon w h i c h department while department Wesson where Swain motion checking and prescriptions. that out he observed paid for Jack her pay the Wesson f o r her Jack t e s t i f i e d that toward the p r e s c r i p t i o n s i n the Wesson's Wesson Because not other verified s h e owed money, a n d f o l l o w e d but not f o r her p r e s c r i p t i o n s . he h a d o b s e r v e d cart that the i n the pharmacy the transaction, cashier of and would d e p a r t m e n t t o o b s e r v e Wesson d u r i n g the to had had 12 groceries still not observed in paid Wesson the for TLE those when she 2080959 twice did h a d an o p p o r t u n i t y not, Jack intended not t o pay information detain testified he and t o pay f o r the p r e s c r i p t i o n s and y e t t h a t he f e l t f o r those prescriptions. had a t the time, suspect Wesson c o n f i d e n t t h a t Wesson h a d Jack of Based had probable committing on t h e cause theft of to the prescriptions. Wesson court argues that c r i m i n a l proceeding t h a t Wal-Mart and Jack theft. 972 She r e l i e s termination i n her favor lacked probable the creates municipal- an inference cause t o accuse h e r o f I n c . , 429 So. 2 d 969, (Ala. 1983), which i n d i c a t e s t h a t a malicious-prosecution probable " c a n make cause instituted against was dismissed a prima showing by out that h e r by Thus, Wesson a r g u e s , the fact creates a fact Wal-Mart point more about the use the that the proceedings and Jack facie case a question were n o l regarding i n the f i r s t "nolle that prosequi" Chatman c o u r t stated that a prima 13 facie of proceedings prossed." against probable place. Chatman or order d i s m i s s a l to prove a claim of malicious prosecution. the lack the c r i m i n a l case o u t , however, of a of criminal [the defendant] cause t o i n i t i a t e much of on Chatman v . P i z i t z , plaintiff her the says of In fact, case supported by 2080959 a "nolle proof the prosequi" that the parties. rely on or order principle 429 plaintiff, thereafter assert in his makes c l e a r t h a t defendant this to a that judgment disposition" claim, court probable cause. record in this peace, may not of matter the law. a the a Although regarding the malicious-prosecution same " s t a n d a r d the dismissal court entitles Id. section of to Chatman settlement of were attempt to of to establish a proof" use lack the of Id. The Jack malicious The element of "[a] his 972. a applies favorable-disposition that and at proof indicated that compromise Wal-Mart proceedings in appears 971. at by between criminal Id. as rebutted settlement bought the be a i n Chatman unchallenged "favorable regarding 2d having favor." discussion the So. stated prosecution terminated d i s m i s s a l can d i s m i s s a l r e s u l t e d from Chatman, the of sheet case from the against municipal Wesson The substance of the The same Wesson was case contains was court pay sheet the 14 court that pursuant agreement does not to case-action-summary reflecting "dismissed case-action-summary ordered the the to agreement." appear i n the reflects, costs of criminal record. however, the that criminal 2080959 case. Wesson h e r s e l f t e s t i f i e d about an when her further had agreement; criminal testified that threw i t out We agree that actual therefore, knowledge costs was of from using arguing that bars to an agreement, Just such dismissal the facie evidence 2d an the do costs so. She criminal case s t u p i d and the an the proceeding was from although that she Wesson's had bars c r i m i n a l case terminated a l a c k of p r o b a b l e denied court Thus, criminal the as i n her the case to pay plaintiff a basis dismissal cause. and, paid r e q u i r i n g her agreement the case case she criminal attorney. using 15 criminal criminal that agreement 971-72. at of court to the anything i n d i c a t i n g , without Wesson, admitted of plaintiff that s e t t l e d her establishes to the her agreement, peace." pursuant the know paid w h o l e t h i n g was reflects Wesson as had thought that i n s t r u c t i o n of her costs. she d i d not court." her conclusively court had record that any dismissed also the "bought at the record of she instructed she pursuant dispute, that because "the judge dismissed said attorney been d i s m i s s e d was she that favor, as for i t prima C h a t m a n , 429 So. 2080959 T u r n i n g now t o t h e f a l s e - i m p r i s o n m e n t c l a i m , we n o t e our conclusion material t h a t Wesson f a i l e d fact regarding the to create lack relates to her malicious-prosecution to this claim 14(a) and from claims detained as w e l l . ( c ) ,both a merchant false probable cause as i t claim i s determinative t o A l a . Code and imprisonment 1975, § i t s employee instituted 15-10- a r e immune by person that sections was attempting to provided a merchant or i t s employee had p r o b a b l e cause f o r b e l i e v i n g detained of s h o p l i f t i n g , as the person the suspicion a genuine issue of that the on of Pursuant of that shoplift. provide: "(a) A peace o f f i c e r , a merchant o r a m e r c h a n t ' s e m p l o y e e who h a s p r o b a b l e c a u s e f o r b e l i e v i n g t h a t goods h e l d f o r sale by t h e merchant have been u n l a w f u l l y t a k e n b y a p e r s o n a n d t h a t he c a n r e c o v e r t h e m b y t a k i n g t h e p e r s o n i n t o c u s t o d y may, f o r t h e purpose of attempting to e f f e c t such recovery, take the person into custody and detain him in a r e a s o n a b l e manner f o r a r e a s o n a b l e l e n g t h o f t i m e . Such t a k i n g i n t o c u s t o d y and d e t e n t i o n by a peace o f f i c e r , merchant or merchant's employee s h a l l not render such p o l i c e o f f i c e r , merchant or merchant's employee c r i m i n a l l y or c i v i l l y liable for false a r r e s t , f a l s e imprisonment or unlawful detention. " ( c ) A m e r c h a n t o r a m e r c h a n t ' s e m p l o y e e who c a u s e s s u c h a r r e s t a s p r o v i d e d f o r i n s u b s e c t i o n (a) of t h i s s e c t i o n o f a p e r s o n f o r l a r c e n y o f goods h e l d f o r s a l e s h a l l n o t be c r i m i n a l l y o r c i v i l l y 16 Those 2080959 l i a b l e f o r f a l s e a r r e s t or f a l s e imprisonment where t h e m e r c h a n t or m e r c h a n t ' s employee has probable cause for believing that the person arrested committed l a r c e n y of goods h e l d f o r s a l e . " § 15-10-14. As noted above, J a c k had p r o b a b l e had purposefully the failed information he had Wesson's d e t e n t i o n . store without information left the least compiled occasions, on pay f o r her to J u l y 13, Wesson, we that institute have and Likewise, at the time she left the Wal-Mart prescriptions. i n d i c a t i n g that her Jack Wal-Mart there and Jack that d i d not criminal proceedings against Jack's because affirm favor of on the had Wesson had Wesson on at leaving opportunities existed are to probable immune from claim. Jack we and two of Jack prescriptions observed Because determined Wal-Mart prescriptions, Mart's him for and on to 2004, a f t e r h a v i n g false-imprisonment Because the paying prescriptions. detain establish her Wal-Mart other store to by without the Wesson's for Wesson that Wesson a d m i t s paying to suspect f o r her p r e s c r i p t i o n s based available store two cause to pay cause the the failed have p r o b a b l e judgment malicious-prosecution of to cause Wesson f o r t h e f t summary existence 17 Wesson probable in of Wal- claim. cause for 2080959 W e s s o n ' s d e t e n t i o n , we a f f i r m t h e summary j u d g m e n t i n f a v o r o f Wal-Mart the and Jack on u n d e r § 1 5 - 1 0 - 1 4 ( a ) and false-imprisonment claim ( c ) , t h e y a r e immune f r o m because, that claim. AFFIRMED. Thompson, Moore, P.J., and J . , concurs P i t t m a n and i n the 18 Bryan, J J . , concur. result, without writing.

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