R.L. Drywall, Inc VS B & C Electric, Inc., Michael Babin and Stephen A. Babin

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2013 CA 1592 R. L. DRYWALL, INC. VERSUS B & C ELECTRIC, INC., MICHAEL BABIN AND STEPHEN A. BABIN Judgment Rendered: J f MAY 0 2 2014 ie ' F x it 'X ' X ' k ' X ' k ' k ((/ Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 569, 160 The Honorable William A. Morvant, Judge Presiding C ' iC X ' iC k 'A' ' X ' X ' k ' X David M. Cohn Counsel for Plaintiffs/Appellees, D. Brian Cohn R.L. Drywall, Inc. & Richard E. Bartley Lacoste P. Bourgeois Baton Rouge, LA Daniel Reed Counsel for Defendants/ Appellants, Baton Rouge, LA B & C Electric, Inc., Michael Babin & Stephen Babin F BEFORE: k*: kaFx : Fxx WHIPPLE, C. J., WELCH, AND CRAIN, JJ. WHIPPLE, C.J. This matter is before us on appeal by C Electric, Inc., defendants, B & Michael Babin, and Stephen A. Babin, from a judgment of the trial court in favor of plaintiff, R.L. Drywall, Inc. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY R.L. Drywall, Inc., owned by Rick ard Lacoste, was hired by B & C Electric, Inc., owned by Michael Babin and Stephen Babin, to perform drywall services in a warehouse building, which included two suites of offices. Lacoste created a bid for the services and materials, which he also used as an invoice. The parties dispute whether Babin was provided with a copy of the bid before any work began. The original total amount shown on the bid/invoice was $ 11, 012. 00. However, the project was subsequently expanded to include an additional ceiling and an additional room. Thus, after applying a credit in the amount of $706. 00 for unused sheets of 5/ 8 inch drywall and adding $ 2, 031. 00 for additional sheets of 1/ 2 inch drywall, the total bid/ invoice was $ 12, 337. 00. After the work was completed, Lacoste supplied Michael Babin, who was in charge of the project, with the bid/ invoice showing the total amount due. Babin dispnted owing the charges shown on the bid/ invoice and sent Lacoste a check in the amount of 5, 000.00 as a good- faith down payment until they " could sit down and figure A show cause order was previously issued by tkris court as to the timeliness of the defendants' motion for new trial and rnotion far appeal. The defen3ants responded to the show cause order, and on January 16, 2014, another panel of this court issued an order provisionally maintaining the appeal, yet reserving the SnaI determination as to whether the appeal should be maintained to the panel to which the appeal was assigned. According to the record, the judgment maintaining the defendants' exception of no cause of acdon and dismissing plaintiff s claims was signed on October 26, 20ll, with notice of same issued on October 27, 2011. An untimely motion for new trial was subsequently filed on November 8, 20ll. In their response to the show cause order, however, the defendants attached proof of f filing of their motion for new trial dated November 7, 2011, which would make the filing of their motion for new trial timely. See LSA-R.S. 13: 850: The trial court denied the motion for new trial on January 30, 2012; however, the judgment denying the motion Por new trial was not signed until August 14, 2012. Notice of this judgment was mailed on August 16, 2012. Thus, the motion for appeal was timely filed on September 17, 2012. 2 this out." According to Babin, he could not make " any sense of [the] bill" and could not tell what he was being charged for. Lacoste did not cash the check for 5, 000.00, but instead, gave it to his attorney. When the bill was not paid in full, on February 19, 2008, Lacoste filed a statement of lien and privilege on immovable property owned k y the Babins located at 6325 Airline Baton Rouge, I.ouisiana, Highway, where B & C Electric' s warehouse was located.Z Counsel for R.L. Drywall then sent Michael and Stephen Babin correspondence via certified mail dated March 7, 2008, which included a lien notice along with a copy of the lien, and a demand for payment of the full amount allegedly due of$ 12,337. 00, with legal interest, from the date of the filing of the lien. When the total amowat r f the ?nvoice remained unpaid, on July 24, 2008, R.L. Drywall filed a " Petition to Eniorce Lien," ciaiming a privilege against the property for the contractual amow:t due and seeking a money judgment for that amaunt plus damages, legal interest from the date of judicial demand, costs, and reasonable attorney' s fees. The matter was heard by the trial court on July 25, 2011, after which the trial court rendered judgment in favor of R.L. Drywall in the amount of $12, 337.00, with legal interest, and attozney' s fees in the amount of 3, 300. 00. A judgment conforming to the court' s ruling and recognizing R.L. Drywall' s privilege on the immovable property was signed by the trial court on October 26, 2011. The defendants then filed the instant appeal, contending that the trial court erred a in: ( 1) finding that plaintiff carried its burden of proving the amount due by preponderance of the evidence; ( 2) awarding attorney' s fees for an " open account," where the eontract between the parties elearly contemplated a single yI'he Louisiasia Private Works Act is set forth in Louisiana Revised Statute 9:4801, et seq. 3 construction job rather than any on-going relationship; and ( 3) awarding attorney' s fees, where the amount due was unclear and the creditor refused to provide a reasonable explanation. DISCUSSIO: i Motion tA Supplement The defendants filed a motion for leave to supplement their brief on appeal with a one-page " explanatory e not contained arguments in the record, ibit," which they concede is rot evidence and is " to the assist in this business dispute:' ourt in its review of the factual Plaintiff tiled an opposition to the motion, contending that this c ocumeni was never before produced or introduced at trial; that it is uncertain as to where the information in the document originated; and that the information contained in the docurnent represents new evidence not brought at trial or at the motion for new trial. As an appellate court, we have no jurisdiction to review evidence that is not in the record on appeal, and we cannot receive new evidence. Niemann v. Crosbv Development Company, L.L. C., 2 11- 1337 (. a. App. 1'` Cir. 5/ 3I12), 92 So. 3d 1039, 1044. An appellate court must render any jud ment whi h is just, legal, and proper upon th reeord on appeaL LSA- C. C. P, ark, 164. ']['huso an appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Cir.), writ Tranum v, Hebert, 581 So. 2d 1023, 1026 ( La. denied, 584 So. 2d 1169 ( La. 1991). App. ls In particular, appellate briefs are not part of the record, and an appellate court has no authority to consider on appeal facts referred to in argument o£ counsel, in such briefs, or in e; liibits containing matters that are not in the pleadings or evidence, and as such, are outside the record. Niemann v. Crosby Development Companv, L.L.C., 92 So. 3d at 1045. 4 Although the defendants contend that the. e assist Court in its the factual of the review ibit is provided " solely to arguments," because this court' s review is limited to the record befi re us on appeal herein, defendants' motion to supplement their brief an app ai rith an ` axpla a4ory e hibiz," which was not introduced before the trial court and contains facts outside of the recard, is denied. Assignment of Error Nuanber One Although the Louisiar:a Private i' ur Act must be strictly construed as being in derogation of generai contract law, courts s ca xld noY veriook the elear legislative intent, which is to protect contractors, laborers, materialmen, and subcontractors engaged in construction and epair rojects. Burdette v. Drushell, 2001- 2494 ( La. App. 1` Cir. 12/ 20/02), 837 So. 2d 54, 68, writ denied, 2003- 0682 La. 5/ 16/ 03), 843 So. 2d 1 D32. However, because Louisiana' s laen statutes are stricti juris, the plaintiff m.ust prove its claim ior liens by a " substantial preponderance" of fhe evidence. P axxsh Conar te, Ine. v. Fritz Culver, inc., 399 So. 2d 694, 696 (I,a. App. 1 st Cir. 19 1). The manifest appellate court's error- clearly review of a factual re- wrong finding is: ie- of factual finding standard. 1) is gQVerrzzd by the The two- part test for the appellate hether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the recard further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So. 2d 1120, ll27 ( La. 1987). Thus, if there is no reasonable factual basis in the record for the trial court' s finding, no additional inquiry is necessary to conclude there was manifest enor. However, if a reasonable factual basis exists, an appellate court may set aside a trial court' s factual finding only if, after reviewing the record in its entirety, it determines the trial court' s finding was clearly wrong. See Stobart v. State, through Department of Transportation and Development, 617 So. 2d 880, 882 ( La. 1993). 5 Where factual findings are based on cieterminations regarding the credibility of witnesses, the trier of fact's findings demand great deference and are virtually never manifestly erron ous ar clearly wrong. Tunnard v. Simply Southem Homes. L.L. C., 2007- 0945 ( La. 1` Cir. 3/ 26 08), 985 So. 2d Moreover, determinatio s regarding the credibility of witnesses 169. 166, App. under the manifest error-clearly wrong standard demand great deference to the trier of fact's findings as only the triex of fact can be aware ef the variations in demeanor and tone of voice that lbear so h avily on the listener's understanding and belief in what is said. State v. Bell, 2010- 0583 ( La. Ap. ls` Cir, 10124/ 10), 48 So. 3d 1253, 1255, writ de nied, 2010- 2629 ( La. 1/ 281117> 56 So. 3d 962. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder°s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony, Rosell v. ESCO, 549 So. 2d 840, 844 ( La. 1989). In their first assignrnent of error, the defendants contend that the trial court erred in finding that plaintiff carried its burden of proving the amount due by a preponderance of the evidence. At the hearing on the petition to enforce the lien,3 Lacoste testified that the bid/ invoice prepared for this job was quoted by the square footage of the project and that he charged the defendants a 92 cent " flat rate" per square foot to fumish the drywall products, hang the drywall, and fzush the product for both the 1/ 2 inch sheetrock and the 5/ 8 inch sheetrock. He explained that he measured the job 3Before the hearing commenced, the parties stipulated to the introduction of their exhibits. Plaintiff introduced: the bid/ invoice ( P- 1); a copy of the acC of cash sxle of the immovable property ( P- 2); a copy of the lier ( P- 3); a notice of lien/ demand letter ( P- 4); and an affidavit by plaintiff's counsel attached to his fee ledger ( P- 5). The defendants introduced: photographs of the some of the finished drywall product (D- 1); photographs of a sign posted by plaintiff( D- 2); and an estimate for a sheetrock job from AMB Distributors. 3) 6 to determine the square footage arad multipli d that by 4.2. The costs itemized in the bid/ invoice 1, 632. 00 to sheetrock, $ were 1, 920.00 to nang 80 4x12 513 sheets of sheetrock, $ 170 4x12 hang 2, 640A0 £or " 1/ 2 s'heets of sh 4, 2Q0. 00 to finish the $ Sheetrock," $ 300. 00 for " Frame Beam," and $ 320. 00 'The total of the init: l bi' for " Fire Caulk." etrock, invoice was $ 11; 012.00. Z,acoste testified that Babin had the bid ''`in his hand" bef re the work began. Lacoste testified that the bid`invoice was revised when Babin added eatra wark to the job, which expanded the project to incl de a ceiling and an extra room. Lacoste testified that he and Babin " agreed to a [ squaxe] footage on it" before they added the extra work. Lacoste ea lained that of the original 80 sheets af 5/ 8 inch material, 16 sheets were left over; tY!us, in revising the bid/invo'rce, he subtracted 706. 00 for 768 square feet of unu sea 3i8 inch material and added $ 2, 031. 00 for the 46 extra 1/ 2 ineh revised bid/ invoice material total wae sheet $ used 12, 337. 00, to dd the ceiling and room. The Lacoste stated that the work was completed in a worlananlike fashion ar d that he was never called to do a punch list or fix any defects. Michael Babin testified Yhat he was in charge of the building project for B C Electric and that he hired LacosYe to perfe rm the dryvvall work. Babin identified the bzd/ inv xce, but stated that I-e did not ave ihe bid/ invoice before the i wark began and that the bid/ invoice was only sent to him " at tkie end of the job." He testified that the bid he received from Lacoste was verbal and that Lacoste told him that he would charge less than 70 cents per square foot. Babin further testified that Lacoste never gave him a price on the sheetrock, but told him that he could beat anybody' s price." Babin conceded that he never really knew what he was paying for tiie sheetrock. Babin testified that the " biggest problem" he had with the invoice, is that he could not "make any sense" of the bill or get tiie square footage to add up. Babin further stated that there was excessive waste on the job 7 due to Lacoste' s failure to order the proper size sheetrock and that the job was not completed to his satisfaction: Babin identified photographs showing the difference in the finished sheetrock tor the interiar office walls as opposed to the warehouse firewalls ihat were hung with a + iece uf tap over the jc ints. Babin complained that d. spite the difference in the ar c urat of labor involved for the finished as opposed tc unfinished wallil, hz ea as s; harged the sarne t7at rat.e. Babin tesrified that he tendered Lacost a good zaith payznent of 5, 000.00 and attempted to get Lacoste to break dowri the biil and sa4 r wcx nd g over it with him, but Lacoste refiased. Babire acknovvled ed 4hat he did : at provide a punch list to R.L. Drywall regarding defeats. After hearing the testinnony, the trial court rendered or l reasons for judgment, noting that the testizn ny presented by I,acoste and 3ahir " obviously conflicts," as follows: Well, the tesrimony I'* e heard thus far obviously conflicts between Lacoste and l ir. Babin. [...] Mr. Ba in indicated the} had an oral contract, a verbal agreement to do the drywall on this particular job. Mr. Lacoste has submitted an invoice which initially indicated the number of sheets of 5 8 to be hwr., the numY er of sheets of 1i2- inch to be hang, the rice to finish, the price far the Sheetrock, and assorted costs, the fram, beam, and then fire caulk. There was a credit given for 16 sheets of 5/ 8 far a credit of$706.56, and addition lly there were 46 extra shzets of '.l2- inch which added 2,031. 36, br° nging the total for the job with those changes to v 12, 337.00. I have heard from bcith M,. Lacoste and 1 1r. Bethune[ 4] r as to the wark that was don.e. Anc, actually, 1 4r. Babin on cross indicated that ttiey never provided plaintiff with a punch list; which would indiaate that there were no problems other tlian the finish wi. ih the firewall, but the three photos that Z' ve laok d at, and I don' t know if it' s because of the qiiality of photos provided to the Court, but I don' t see any glaring flaws, any beveling, or any problems with the Sheetrock wark. With regard to the bicUinvoice, the trial court noted that while it may not be the most artfully drawn document,- it' s not hard to tell from a simple cursory re]view exactly what was done and what was provided and what the cost of each Rodney Bethune is an employee of RL. Drywall who worked on the B & C Electric project and testified as to the procedures used and the quality of the work perfo.-med by R.L. Drywall on that particular job. 8 of these were." The trial court found that plaintift met his bur'den of proof, notitig that " other than Mr. Babin' s opinion, I' ve heard no testimony, no contradicting evidence from anybody else that thi amount oi money for this job is not ordinary and custoxnary, that this is someh Rw= v rcharged based ox the square foot ge ar overcharged based o l the nurriher o ¬ sl- eeis Yhat +:. On revie r, considenn Lh cc z? flictu re hian." testirzaony pr sented aerein, we find no error in the tri.al court' s determinativn, ¢ ch is amply suppo ted by rche record, wh that plaintiff mat his burden of provzng; by a pr. ponderance f the e- icience, the e amount due on the lien. AYthough Baban contencis that kae did nc t understand the invoice, and that there was excessi e waste on the job, thz defendants failed to present any testimony challenging plagntiff' s calculations or otherwise challenging the methodology us d a a pre ari: g th bid(invoice herein; nor did the defendants present any photographs, e ert Yestimony; or other evidence to establish their ciaim that there vas excessive v asted sheet. ock c ra this job. Accordingly, w fmd no merit to this assignment of error. Assignments of Frror Two and Three In these assigranents o f error°, th defzndants cantend that the trial court erred in awarding plai tiff aitorney' s fees pursixant to LSA-R.S. 9: 2781 for an open accounP' where the e ntract etween the partzes clearly contemplated a single construction job rather Yhan any an-going relationship, and where the amount due was unclear ar d the creditor refused to provide a reasonable explanation, As a general rule, attorney' s, fees are not due and owing a successful litigant unless specifically provided for by contract or by statute. Frank L. Beiez Radio, Inc. . Black Gold Marine, Inc., 449 So. 2d 1014, 1015 ( La. 1984). Our courts have construed such statutes strictly because the award of attorney' s faes is exceptional and penal in nature. Brid e s v. 9 L, onde_ ll Chemical Comp, 2005- 1535 ( La. App, lst Cir, 6l9f06), 938 Sc. 2d 7 56, ' r 8, rit denied, 2006- 2196 ( La. 11/ 17/ 06), 942 So. 2d 541. At the time the defe darats en aged the services of plaintiff, Louisiana Revised Staratz 9; 2781( Al pro ided, in part:5 VVhen any person fazls to pay an up n accounY witfiin thirEy days after the claimant sends w-ri# n demand therefor corre tly t setting forth the amouni owed, th t persun sha41 be liable to the claimant for reasonable atrorne s fees fo the prosecution and collection of such claim wl n udgment c r. trie Glaim i.s rsndered in favor of the claimant. Moreover, Louisiana Revised Statute 9: 781() provided, in paz-t: O] pen account" includes any account fc r whie a p rt oz- all of the balance i past due, whether c r not the ccount reflects one or more transactions and whetrier or not at the time of contr. cting the a parties expected future zransactions. ``(3pen accounY' shall inc;lude debts incurred for pr Yessxonal services, inc[uding but not limited to legal and medical services. In its petition, plaintiff specifi ally led for attomey' s fees pursuant to LSA-R.S. 9: 2781, the suit on open acco ant statute, statzng, " Dafendant received a statement of account and failed for over 3 U days tio pa} same, arid are, therefore, liable to plaintiff for reasonable attozneds fees." ln its oral reasons, the trial court awarded attorney' s fees herein " based upon the r_ unpayment af er 30 days" in accordance wit 1 the statute. On appeal; defendants contend the trial court erred in warding attorney' s fees herein in that construction contracts have not " historicaliy been considered" to be open accounts. V4'e note, ho ever, that Yhe cases relied on by the defendants in support of their contention that this is not a suit on an open account are all pre- Frev cases and are factually distinguishable from ihe case herein. In Frey Plumbin Co ank, Inc. v: Foster, 2007- 1091 ( La. 2% 08), 996 26/ So. 2d 969 (per curiam), a honneowner hired a plumbing company to fix an SSections ( E) and ( F) of Louisiana Revised Statute 9: 2781 were subsequently amended by La. Acts 2010, No: 6g5, § 1. 10 underground pipe at her residence. The plumzbing company issued an invoice to the homeowner after the woXk wac performed. The bil remained unpaid for over six months. During that time, the plumbing company sent written demands far payment to the hon7eowner to no avail. The plumbing company filed suit to recover payment and also sought an award f attorney' s fees under the open account statute. The homeawner filed a motion for partial summary judgment, arguing that the alaim did ne t const.icute a claim ora open account where the services were for a first and only transaction betweeri the parkie; there vvas no line of credit, only one invoice was submitted far a single-time payment, and no additional jobs were anticipated. Frey Plumbulg Companv, Inc. v. Foster, 996 So. 2d at 970. The trrial court granted the partiai motion for swmmary judgment, finding the claim did not constitute a lazr on an open accotvnt. The court of appeal denied the plumbing company' s writ applicatioxi, ftnding no error in the trial wurt' s judgment. On review, the Supreme Court deterrnined that the trial court erred in finding that a contract for open account could not exist between the parties merely because there as only a single transaction between therrz and no future transacYzons were contemplated. `rhe Coust noted that any account which fits the definitien of an pen account, ir ciading 1 ut not limited to an account for professional services, fits within the arnbit of the statute, reasorung that: " La, R.S. 9: 2781( Dj must be applied as wr tten. Under a plain reading of the statute, there is no requirement that there must be one or more transactions between the parties, nor is there any requirement that the parties must anticipate future transactions. To the e tent the prior case law has imposed any requirements which are inconsistent overruled." with the clear language of La. R. S. 9: 2781( D), those cases are Frey Plumbin Companv, Inc. v. Foster, 996 So. 2d at 972. Under Frey, which directs us to apply the language of LSA-R.S. 9: 2781( D) as written i.e., that an " open account" includes any account for which a part or all 11 of the balance is past due, whet Aer or n.oY tlie accc unt reflects one or more transactions and whether or not at t1 e time of contra tirig the parties expected future transactions), we find th account herezn tits the deflniiion of an open account as pled by plaintiff' n his petiti n. The clear danguage of the statute states that an open account " inciudes any account," and nowhere in t a statute are construction accounts or corrtracts spec% fically excluded. Moreover, yve note that in Burdette, this Gourt was asked to r view an award of attorney' s fees rendered on a petition te enforce a lien under the Private Warks Act. Therein, the defendant argueci oa ap eal that an award for attorney' s fees was not provided for by contraci. n x authorized by statute. This Court agreed, noting that there was no evidence th t the oral contract at issu provided for such recovery by either parry and that thz pYaintiff had not cited any statutory authority for recavery of a tom i''s fees by a conYractor s eking payment for labor and materials and recognition c f a lier. Burdette v. Drush ll, $3? So. 2d at 70. In doing so, however, we noted that plazn if did not invoke the pruvisions of LSAR.S. 9: 4822( K) (providing for clairns agai st the owner and th contractor in accordance with LSA-R.S. 4: 4RU2); rior did plaintiff' s petition suggest that his claim was one on open account under SI- R. S. ; 7R1. Burdette v. T rushell, 837 So. 2d at 70, n, 17. As such, thi Court reve sed the award of attorney' s fees where plaintiff failed to allege a basis for tk e award. Burdette v. Drushell, 837 So. 2d at 70. In the instant matter, we recognize that plaintiff has not asserted a claim for attomey' s fees under the provisions oY Yhe Louisiana Private Works Act. Instead, plaintiff' s claims for attorney' s fees are asserted pursuant to LSA-R.S. 9: 2781. This Court has previously awarded attorney' s fees in suits xo recognize liens under the Private Works Act where such fees were not provided for under the Private Works Act, but where another statutory basis exists for such an award. 12 See Bernard Luimber Com any, Inc. v, Lak:e FcPresi Constructi n Company, Inc., 572 So. 2d 178, 183 ( La. App. ls` C.ir. 1990) ( in a srzit undex the Private V%orks Act, where atto_ney' s fees vere not p ovided for under ihe applicabl: pro isions r of the ' ri- ate Works Act, attorney' s fees were nonezhel ss awarded an t:he basis that the credit applicaYion granted plaixttiff tk ie right to recover attorne-' s fees). In the instant case, ur,lzke in Burd tte, plavnti ff has alleged anothex basis far the award of attorney' s fees, i.e., wid r the apen account statute, and attorney' s fees were awarded pursuant to 4k e statt te. Nonettz less, the defe dants additi nall} argaze that even if attorney' s fees could be awarded under the operi account law herein, given the ambiguous nature of the bidiinvc icE, the award should be set aside as plainnff failed to " correctly" set forth in the written demand the amount owed as required 'by LSA-R.S. 9: 2781. We fmd no merit to this argumenxe Although the dafendant dispute that the amount set forth as owed by pla ntiffs i a tkle wri ter demwd is " correct," as set forth in ouir discussion above, w e findl n error in the trial c; ourt' s underlying findings and conclusic n that plaintiff m t kiis burden of proof as t the amount due. Thus, we find no merit to this axgument. Acc rdizigly, we find rio error in ti e tr al c urt' s award of attorney' s fees herein under the atute. open accounx. sr. See LSA-R. S. 9: 2781, In their brief on appeal, the defendants request that they be given a $ 5, 000.00 credit for the check they tendered to plaintiff, but that was never cashed Although plaintiff testified that he gave the check to his attorney, the : ecord. does not establish that the check is still in pl intiff s attorney' s possession or that it is still valid. Thus, there is no basis for this court to award a credit of $ 000.00 and the defendants' request s 5, denied. 13 CONCI USION For the above and for gqin; reasans, tihe October 26, 201 l jud nent of the trial court is affirmed_ Costs f this appeal_ are assessed to the defenciantslappellants; B 8i C Elecqric, In.., ; 4ichael Bai in, arzd Steph. n A. Babin. MOTION TO StiPPLE.VIENT DENIED; JiTDGMENT 14 FFIRIVIED.

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