STANLEY MADDEN v. CITY OF LOUISVILLE and LOUISVILLE & JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT
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RENDERED: July 16, 2004, 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court Of Appeals
NO. 2003-CA-001162-MR
STANLEY MADDEN
and BARBARA MADDEN
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE TOM McDONALD, JUDGE
CIVIL ACTION NO. 00-CI-008182
v.
CITY OF LOUISVILLE and
LOUISVILLE & JEFFERSON COUNTY
METROPOLITAN SEWER DISTRICT
APPELLEES
OPINION
AFFIRMING, IN PART,
REVERSING, IN PART,
VACATING, IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, MINTON, and TAYLOR, Judges.
MINTON, Judge:
Stanley
Madden
and
Barbara
Madden
(the
Maddens) appeal from that portion of an opinion and order of the
Jefferson Circuit Court entered May 8, 2003, which granted the
motions
for
summary
judgment
of
the
City
of
Louisville
(Louisville) and the Louisville & Jefferson County Metropolitan
Sewer District (MSD).1
The Maddens live adjacent to Iroquois Park and Golf
Course
(Iroquois
Park),
which
is
owned
by
Louisville.
They
allege that since January 3, 2000, their basement has flooded on
numerous occasions after a rainfall.
The Maddens attribute the
flooding to rainwater draining from Iroquois Park and assert
that both Louisville and MSD are liable for this flooding.
Maddens
asserted
1) negligent
the
trespass
following
due
to
its
claims2
against
construction
or
The
Louisville:
grading
of
Iroquois Park which diverted rain water from the park onto the
Maddens’ property; 2) negligent trespass3 due to its failure to
properly maintain its drainage ditches and drainage areas in and
around Iroquois Park; and 3) negligent failure to “reasonably
1
The May 8, 2003, opinion and order also denied the Maddens’
motion to file a third amended complaint, but they have not appealed
that decision. The second amended complaint incorporated by reference
all allegations contained in the original complaint and first amended
complaint.
Any references to the Maddens’ complaint shall be to the
second amended complaint unless otherwise indicated.
2
These claims against Louisville and MSD are not numbered or even
named as in the complaint.
We have chosen to disregard the
terminology used by the parties where it does not best describe the
actual cause of action. See, e.g., note 3, infra.
3
What we have designated as two claims of negligent trespass, the
Maddens designated as two claims of negligence and a third claim of
trespass.
We have chosen the former terminology because it more
accurately describes the alleged tortious conduct.
For a detailed
analysis of the tort of negligent trespass in Kentucky, see Mercer v.
Rockwell Int’l Corp. 24 F. Supp. 2d 738 (W.D. Ky. 1998).
2
maintain all the property within its control in order that it
does not cause damage to or interfere with the property of its
residents.”4
MSD:
1)
The Maddens asserted the following claims against
negligent
trespass
maintain
drainage
ditches
Iroquois
Park;
negligent
resolve
the
2)
drainage
due
and
to
its
drainage
trespass
problems”5
on
failure
areas
due
the
to
to
in
properly
and
around
its
“failure
to
Maddens'
property
by
“designing drainage ditches or other means to properly drain the
natural flow of water”6 from Iroquois Park; and 3) breach of
contract
for
drainage
in
violating
an
agreement
provisions
between
concerning
MSD
and
remedying
the
Louisville
park
and
Jefferson County Parks Department to which the Maddens claim to
be third-party beneficiaries.
Louisville
summary judgment.
and
MSD
separately
filed
motions
for
Both Louisville and MSD asserted governmental
immunity under Kentucky Revised Statutes (KRS) 65.2003 of the
Claims
Against
Local
Governments
Act
(CALGA)
as
a
basis
for
summary judgment.7
4
Maddens’ Orig. Compl. ¶ 17. The Court questions whether this is
a cognizable cause of action independent of the negligent trespass
claims but declines to rule on this issue since it was not welldeveloped in the record.
5
Maddens' Second Am. Compl. ¶ 7.
6
Id. at ¶ 10.
7
Kentucky Revised Statutes (KRS) 65.200-65.2006.
3
A hearing was conducted on both motions for summary
judgment on April 17, 2003.
order,
the
circuit
court
In its May 8, 2003, opinion and
granted
the
judgment of both Louisville and MSD.
motions
for
summary
The sole basis given for
the summary judgments in the opinion and order is that both
Louisville
alleged
and
MSD
actions
by
under KRS 65.2003.
are
protected
municipal
or
from
liability
local
for
governmental
their
immunity
The Maddens filed a timely notice of appeal.
They also notified the Attorney General (AG) that they intended
to
challenge
CALGA
on
the
constitutionality
appeal.
The
AG
of
certain
subsequently
filed
provisions
a
notice
of
of
intention not to intervene.
On appeal, the Maddens assert that the circuit court
erred by holding that Louisville and MSD were protected by local
governmental immunity under KRS 65.2003.
They assert that MSD
is not a “local government” within the meaning of CALGA and,
thus, not protected by the statutory immunity provisions of the
act.
Also,
the
Maddens
claim
that
the
alleged
actions
of
Louisville and MSD at issue are all ministerial duties, which
are exempted from local governmental immunity under KRS 65.2003.
The
Maddens
also
assert
that
CALGA’s
statutory
local
governmental immunity, as applied to MSD, violates the jural
rights provisions of Sections 14, 54, and 241 of the Kentucky
Constitution, which restrict the power of the legislature to
4
abrogate or limit common law rights which predate the adoption
of the Kentucky Constitution.
The Maddens do not appear to deny
that some form of municipality or local governmental immunity
existed
prior
to
the
adoption
of
the
Kentucky
Constitution.
However, they assert that the act unconstitutionally increased
the scope of the immunity if it is applied to entities like MSD
which are not municipalities.
They also allege that the act is
unconstitutional because it defines discretionary duties in an
overly broad way to include what the Maddens contend previously
would have been considered ministerial duties.
As
appropriate
outlined
when
in
there
CR
is
56.03,
no
summary
genuine
issue
judgment
as
to
is
any
material fact and the moving party is entitled to judgment as a
matter of law.
This Court has said that the standard of review
on appeal of a summary judgment is “whether the trial court
correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to judgment
as a matter of law.”8
Because factual findings are not at issue,
we do need to defer to the trial court.9
8
Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).
9
Id.
5
CONSTITUTIONALITY OF CALGA
The summary judgment for Louisville and MSD was based
on the circuit court’s determination that the entities were not
liable for the alleged conduct because of local governmental
immunity
under
CALGA,
unconstitutional.
the
First
act
we
which
must
the
Maddens
assert
consider
whether
the
court ruled on the constitutionality of the act.
is
trial
Counsel for
the Maddens first mentioned the issue orally in the April 17,
2003, hearing on the motions for summary judgment, admitting
that the issue had not been raised in any written motion or
pleading,
including
summary judgment.
the
memoranda
regarding
the
motions
for
Neither the Maddens nor anyone else notified
the AG that the constitutionality of CALGA was being called into
question until after summary judgment was entered.
KRS
proceeding
418.075
which
states,
involves
in
the
relevant
validity
of
part:
a
“In
any
statute,
the
Attorney General of the state shall, before judgment is entered,
be served with a copy of the petition, and shall be entitled to
be heard ....”10
Similarly, Kentucky Rules of Civil Procedure
(CR) 24.03 states as follows:
“When the constitutionality of an
10
As a procedural statute, the relevant version of KRS 418.075 is
the one in effect when this issue of CALGA’s constitutionality first
arose before the circuit court, between the April 17, 2003, hearing
and May 8, 2003, when the order and opinion was entered. The statute
was subsequently amended, effective June 1, 2003, but the quoted
language did not change when the statute was amended.
6
act of the General Assembly affecting the public interest is
drawn into question in any action, the movant shall serve a copy
of
the
pleading,
motion
or
other
paper
first
raising
the
challenge upon the Attorney-General [sic].”
While
making
no
mention
of
CR
24.03,
the
Maddens
assert that they were not required to notify the AG at the trial
court
level
because
the
previously-cited
provision
KRS 418.075 only applies in declaratory actions.
the
fact
Act.11
that
They
it
is
point
contained
out
that
within
their
the
They rely on
Declaratory
complaint
of
did
Relief
not
seek
declaratory relief; the constitutionality of CALGA only arose
after Louisville and MSD asserted local governmental immunity
under
the
summary
act
as
judgment.
defenses
However,
in
their
the
respective
Kentucky
motions
Supreme
Court
for
has
rejected the Maddens’ interpretation of the duty to notify the
AG under KRS 418.075, stating as follows:
The language of [KRS 418.075] and [CR 24.03]
evinces a strong public policy in favor of
notification
to
the
Attorney
General
whenever the constitutionality of a statute
is placed in issue despite the location of
KRS 418.075 in the Kentucky Declaratory
Judgments Act and the appearance of CR 24.03
in our rule relating to intervention.12
11
KRS 418.005-418.090.
12
Maney v. Mary Chiles Hosp., Ky., 785 S.W.2d 480, 485 (1990).
7
Therefore, it is clear that the Maddens had a duty to notify the
AG before summary judgment was entered, regardless of the nature
of their civil suit.
In the alternative, the Maddens assert that if they
were
required
to
notify
the
AG
before
summary
judgment
was
entered, then the circuit court had a duty to refrain from the
entry of judgment until such notice was given.
They rely upon
language in Maney which states, “[u]nless the record shows that
the requirements of KRS 418.075 have been observed, any judgment
rendered which decides the constitutionality of a statute shall
be void.”13
However, the instant case is distinguishable from
Maney in that the circuit court in the instant case did not rule
on the constitutionality of a statute.
In fact, this is not a
case where the constitutionality of a statute or act was even
before the circuit court, as it was never properly raised in a
written motion or pleading. What was before the circuit court
was an oral argument for it to declare CALGA unconstitutional.14
It has often been noted that courts speak through their written
orders
13
and
opinions.15
This
raises
the
question
of
how
to
Id. at 482.
14
Cf. Brashars v. Com., Ky., 25 S.W.3d 58, 64-65 (2000) (criminal
defendants made oral motions at final sentencing to declare Kentucky’s
Sex Offender Registration Act unconstitutional).
15
Midland Guardian Acceptance Corporation v. Britt, Ky., 439 S.W.2d
313, 314 (1968).
8
interpret the circuit court’s silence in its order and opinion
regarding
tional.
the
Maddens’
argument
to
declare
CALGA
unconstitu-
American Jurisprudence 2d states as follows:
As a general rule, a judgment disposes of
all issues presented by the pleadings unless
a contrary intention appears from the face
of the judgment.
A judgment which grants
part of the relief but omits reference to
other relief put in issue by the pleadings
will ordinarily be construed to settle all
issues by implication.
Where a judgment is
silent with regard to the disposition of a
matter, it is presumed that the claim is
denied.16
In
this
instance,
where
the
circuit
court
applied
provisions of CALGA without addressing its constitutionality, it
necessarily
implicitly
denied
the
declare the act unconstitutional.
Maddens’
oral
motion
to
In a similar situation, in
which the moving parties made eleventh-hour oral motions to have
an act declared unconstitutional, without ever raising the issue
in any written motion or pleading and without notifying the AG
pursuant to KRS 418.075 and CR 24.03, the Kentucky Supreme Court
upheld
the
motions.17
trial
The
court’s
Supreme
summarily
Court
overruling
stated
that
of
“the
the
oral
appellants’
failure to notify the Attorney General of their constitutional
challenges
basis
to
alone
provided
overrule
the
the
trial
motions
and
16
46 Am.Jur.2d Judgments § 94 (1994).
17
Brashars, 25 S.W.3d at 64-66.
9
court
affirm
with
the
a
sufficient
trial
court’s
ruling.”18
Likewise,
we
find
that
the
circuit
court
had
a
sufficient basis to deny the Maddens’ oral motion, and we hold
that its implicit denial was proper.
LOCAL GOVERNMENTAL IMMUNITY UNDER CALGA
The circuit court found that Louisville and MSD were
both
protected
by
local
governmental
immunity
pursuant
to
KRS 65.2003 of CALGA for the claims made against them by the
Maddens.
The
Kentucky
Supreme
Court
has
declared
that
the
legislative intent of CALGA was “to specify what damages could
be obtained against local governments that are subject to common
law
judgments
and
what
obligation
a
local
government
has
to
provide a defense for and pay judgments rendered against its
employees
duties.”19
for
the
KRS
tortious
65.2001
performance
restricts
of
the
their
scope
of
ministerial
CALGA
to
“action[s] in tort”20 brought “against any local government” due
to a “defect or hazardous condition” existing on public property
or “an act or omission of any employee.”21
“Local government” is
defined for purposes of the Act as “any city incorporated under
the law of this Commonwealth, the offices and agencies thereof,
18
Id. at 66.
19
Schwindel v. Meade County, Ky., 113 S.W.3d 159, 163 (2003).
20
“Action in tort” is defined in KRS 65.200(1).
21
Schwindel, 113 S.W.3d at 164, KRS 65.2001.
10
any county government or fiscal court, any special district or
taxing district created or controlled by a local government.”22
CALGA also sets forth certain claims against local governments
which are disallowed.23
The relevant portion states as follows:
a local government shall not be liable for
injuries or losses resulting from:
....
(3) Any claim arising from the exercise of
judicial,
quasi-judicial,
legislative
or
quasi-legislative
authority
or
others,
exercise of judgment or discretion vested in
the local government, which shall include by
example, but not be limited to:
(a)
The adoption or failure to adopt
any ordinance, resolution, order,
regulation, or rule;
(b)
The failure to enforce any law;
(c)
The issuance, denial, suspension,
revocation
of,
or
failure
or
refusal to issue, deny, suspend or
revoke
any
permit,
license,
certificate, approval, order or
similar authorization;
(d)
The exercise of discretion when in
the face of competing demands, the
local
government
determines
whether and how to utilize or
apply existing resources; or
(e)
Failure to make an inspection.
Nothing contained in this subsection shall
be construed to exempt a local government
22
KRS 65.200(3).
23
See KRS 65.2003.
11
from liability for negligence arising out of
acts or omissions of its employees in
carrying out their ministerial duties.
Reading
which
must
be
CALGA
shown
as
for
a
whole,
the
there
local
available under KRS 65.2003 to apply:
are
three
governmental
factors
immunity
(1) the cause of action
must be an action in tort, as defined by KRS 65.200(2); (2) the
entity seeking immunity must be a local government, as defined
by KRS 65.200(3); and (3) the otherwise tortious actions must
arise out of the exercise of discretionary duties rather than
ministerial duties.24
court
correctly
In order to determine whether the circuit
found
local
governmental
immunity
under
KRS 65.2003 for Louisville and MSD on every claim against them,
we
must
analyze
both
appellees
separately
and
each
cause
of
action separately.
CLAIMS AGAINST THE CITY OF LOUISVILLE
The three claims against Louisville are two claims of
negligent trespass, based on different theories of negligence,
and a claim of negligent failure to maintain its property so as
not to harm others’ property.
latter
claim
exists
in
To the extent that this novel,
Kentucky
law,
Negligent trespass is also a tort.
24
See KRS 65.2003(3)
discretionary duties).
(giving
a
12
it
would
be
a
tort.
Therefore, each of these
nonexclusive
list
of
possible
claims is potentially within the scope of the local governmental
immunity provisions of CALGA.
The Maddens do not dispute that, as an incorporated
city, Louisville is a local government within the meaning of the
act.
The question then arises whether the duties at issue were
ministerial or discretionary.
claims
alleges
that
the
One of the negligent trespass
grading
of
Iroquois
Park
and
the
construction of the surrounding drainage ditches and areas were
negligently performed, which diverted park rainwater toward the
Maddens’ property.
failure
to
The other negligent trespass claim and the
maintain
property
claim
are
both
based
on
the
allegation that Louisville failed to properly maintain Iroquois
Park and the surrounding drainage ditches and areas, preventing
rainwater
intended.
from
flowing
away
from
the
Maddens’
property
as
The circuit court concluded that the grading of the
park and the construction of the drainage ditches, as well as
the maintenance of the drainage ditches, were all discretionary
duties.
We disagree.
In Mason v. City of Mt. Sterling,25 the
Kentucky Supreme Court stated as follows:
this
Court
has
long
held
that
a
municipality’s decision to establish or open
a sewer system is a legislative function
25
Ky., 122 S.W.3d 500 (2003). We note that the circuit court did
not have the benefit of this decision since it was not rendered until
October 23, 2003, several months after summary judgment was already
entered in this case.
Moreover, a subsequent motion for rehearing
filed in Mason was denied on January 22, 2004.
13
entitled to immunity protection.
However,
once a municipality establishes or opens a
sewer, it has a ministerial duty to nonnegligently construct, maintain, and repair
the sewer system.26
Notably,
system
the
court
designed
in
to
Mason
handle
was
rainwater,
ditches in the instant case.
construction
of
the
referring
to
much
a
like
storm
the
sewer
drainage
Therefore, the maintenance and
drainage
ditches
are
ministerial
duties.
Likewise, while the decision whether to establish Iroquois Park
and
Golf
Course
construction,
would
grading,
ministerial duties.
based
on
be
discretionary,
and
actual
involve
maintenance
their
purely
All three claims against Louisville are
negligence
in
performing
ministerial
duties.
KRS 65.2003(3) states that nothing in the statute’s provisions
on governmental immunity “shall be construed to exempt a local
government from liability for negligence arising out of acts or
omissions of its employees in carrying out their ministerial
duties.”
We find that, as a matter of law, Louisville is not
entitled to statutory local governmental immunity under CALGA
for
any
of
the
Accordingly,
the
three
causes
circuit
of
court
action
erred
raised
in
against
granting
it.
summary
judgment against Louisville on the basis of local governmental
immunity under KRS 65.2003.
26
Id. at 504
(citations omitted).
14
CLAIMS AGAINST LOUISVILLE AND JEFFERSON
COUNTY METROPOLITAN SEWER DISTRICT
The
claims
of
contract.
tort,
three
negligent
claims
alleged
trespass
and
against
one
MSD
claim
include
of
breach
two
of
As noted earlier, negligent trespass is an action in
within
the
scope
of
CALGA.
contract claim is not a tort.
However,
the
breach
of
As such, it is not within the
scope of CALGA, and the local governmental immunity provisions
under the act are inapplicable.
The circuit court erred in
granting summary judgment to MSD on the breach of contract claim
on
the
basis
of
statutory
local
governmental
the
threshold
issue
of
immunity
under
CALGA.
On
whether
MSD
is
a
local
government within the meaning of CALGA, the circuit court found
that it was, finding it to be a “special district ... created or
controlled by a local government.”27
The Court further relied
upon KRS 65.005(1)(a) which defined a “[s]pecial district” as
follows:
any agency, authority, or political subdivision of the state which exercises less
than statewide jurisdiction and which is
organized for the purpose of performing
governmental or other prescribed functions
within limited boundaries.
It includes all
political subdivisions of the state except a
city, a county, or a school district.
27
KRS 65.200(3).
15
Based on these statutory definitions, the circuit court found
MSD to be a local government within the meaning of CALGA.
This
ruling is consistent with Siding Sales, Inc. v. Warren County
Water District.28
However, on April 24, 2003, one week after the
hearing on summary judgment in this case, the Kentucky Supreme
Court
rendered
an
opinion
in
Phelps
v.
Louisville
Water
Company,29 holding that the Louisville Water Company (LWC) is not
a local government within the meaning of CALGA.
This ruling was
made, notwithstanding the fact that the City of Louisville holds
legal title to all of LWC’s physical property and owns all stock
of LWC, holding it in the city’s sinking fund.30
Also, the Board
of Waterworks of LWC was then comprised of members appointed by
either
the
mayor
judge/executive.31
ruling
that
following:
LWC
of
Louisville
or
the
Jefferson
County
The Court considered a number of factors in
was
not
a
local
government,
including
the
the Board of Waterworks, not the city, exercised
28
Ky.App., 984 S.W.2d 490 (1998) (holding the Warren County Water
District to be a local government within the meaning of CALGA). The
Warren County Water District was created by the Warren County Fiscal
Court, pursuant to KRS Chapter 74. Id. at 493. In contrast, MSD was
established pursuant to KRS Chapter 76.
Rash v. Louisville &
Jefferson County Metro. Sewer Dist., Ky., 217 S.W.2d 232, 236 (1949).
29
Ky., 103 S.W.3d 46 (2003).
30
Id. at 49.
31
Id. at 51.
16
day-to-day control over LWC;32 LWC operated as a private, forprofit
corporation
from
its
establishment
by
the
General
Assembly in 1854 until Louisville purchased all of its shares of
stock;33 Louisville did not exercise its option to purchase the
entire franchise of LWC and its assets but only LWC’s stock;34
the act creating the Board of Waterworks to govern the LWC did
not change the status of LWC in relation to the city or alter
its corporate identity in any way;35 LWC may enter into contracts
or
sue
and
be
sued
but
only
in
its
own
name;36
Louisville
exercised no control over LWC’s fiscal matters;37 and any losses
occurred
by
LWC
are
not
imputed
to
Louisville
and
its
taxpayers.38
Because
Phelps
was
rendered
after
the
parties
submitted their memoranda on the motions for summary judgment
and after the hearing on the motion, the parties did not have
the opportunity to consider and address the Kentucky Supreme
Court’s
decision
32
Id. at 50-51.
35
Id. at 50.
36
Id. at 50-51.
37
Id. at 51.
38
For
Id. at 49.
34
Phelps.
Id.
33
in
Id.
17
this
reason,
they
did
not
address many of the factors which that court found relevant in
determining that LWC is not a local government under CALGA.
The
circuit
the
court
also
did
not
address
these
factors
or
ramifications of the Phelps case in its order and decision.39
Therefore, we vacate the circuit court’s decision that MSD is a
local
agency
within
the
meaning
of
CALGA
and
remand
for
reconsideration in light of Phelps v. Louisville Water Company.40
Of the two remaining claims against MSD which might be
covered by local governmental immunity, the first claim is for
failure to properly maintain its drainage ditches and drainage
areas.
As
noted
ministerial duty.
above,
maintaining
drainage
ditches
is
a
Therefore, local governmental immunity is not
available for MSD under KRS 65.2003 for this claim.
The circuit
erred in granting summary judgment on this claim based on this
inapplicable statutory immunity.
The second claim against MSD is for negligent trespass
due to its alleged “failure to resolve the drainage problems” on
the Maddens' property by “designing drainage ditches or other
means to properly drain the natural flow of water” from Iroquois
Park.
The Maddens disagree with the choices that MSD has made
39
We note that the Maddens filed notice of the Phelps case with the
circuit court on April 29, 2003.
However, given that this was only
six business days before the circuit court entered its opinion and
order, it is not clear whether the circuit court was, in fact,
actually made aware of this decision.
40
103 S.W.3d 46.
18
in allocating its resources.
They think that alleviating the
flooding of their residences should be a higher priority for MSD
than other projects.
when
in
the
determines
face
of
whether
However, “[t]he exercise of discretion
competing
and
how
demands,
to
the
utilize
local
or
government
apply
existing
resources”41 is listed as an example of the type of discretionary
act for which a local government is immune from tort liability
under
CALGA.
Therefore,
the
circuit
court
properly
granted
summary judgment on this claim on the basis of statutory local
governmental immunity under KRS 65.2003.
For
the
reasons
stated
above,
we
affirm
the
trial
court’s refusal to declare CALGA unconstitutional, we reverse
the summary judgments, in part, vacate, in part, and remand the
case to the circuit court for further proceedings consistent
with this opinion.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANTS:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE CITY OF LOUISVILLE:
Charles W. Miller
Louisville, Kentucky
Gregory Scott Gowen
Carrie Pearson Hall
JEFFERSON COUNTY ATTORNEY’S
OFFICE
Louisville, Kentucky
41
KRS 65.2003(3)(d).
19
BRIEF AND ORAL ARGUMENT FOR
APPELLEE LOUISVILLE AND
JEFFERSON COUNTY METROPOLITAN
SEWER DISTRICT:
Laurence Zielke
Ilam E. Smith
PEDLEY, ZIELKE, GORDINIER &
PENCE
Louisville, Kentucky
20
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