City of Houston v. Lourdes N. Ayala Appeal from 190th District Court of Harris County (opinion)

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Reversed and Rendered and Majority and Concurring Opinions filed June 17, 2021. In The Fourteenth Court of Appeals NO. 14-20-00164-CV CITY OF HOUSTON, Appellant V. LOURDES N. AYALA, Appellee On Appeal from the 190th District Court Harris County, Texas Trial Court Cause No. 2018-49460 MAJORITY OPINION In this interlocutory appeal from an order denying a plea to the jurisdiction, we consider several issues arising out of an incident where the plaintiff, Lourdes Ayala, slipped and fell on a liquid substance while on premises owned by the defendant, the City of Houston. We conclude that the trial court lacked jurisdiction over Ayala’s premises liability claim because the evidence conclusively established that Ayala was a licensee and the City had no actual knowledge of the dangerous condition. We also conclude that Ayala’s other claim for negligent activity fails as a matter of law because the claim is based on the slip-and-fall incident and not on the City’s contemporaneous conduct. We therefore reverse the trial court’s order and render judgment dismissing Ayala’s claims for want of jurisdiction. BACKGROUND The incident at issue occurred at Bush Intercontinental Airport. Ayala alleged that she was disembarking an escalator in one of the airport’s terminals when she slipped and fell on an “orange foreign substance at the bottom of the escalator, which she did not see until after she had fallen.” Based on the injuries arising out of this incident, Ayala sued the City, asserting both a premises liability claim and a negligent activity claim. The City filed a plea to the jurisdiction in which it argued that Ayala’s suit was barred by governmental immunity. The City recognized that its immunity can be waived under the Texas Tort Claims Act (“TTCA”), but the City argued that Ayala could not establish a valid waiver under that statute because Ayala did not pay to use the airport premises and because the City had no actual knowledge of the orange foreign substance until after Ayala had slipped and fallen. The City also argued that Ayala’s negligent activity claim was fatally defective because such claims are not recognized under the TTCA. Ayala filed a response. In addition to arguing that there was evidence that the City actually knew of the orange foreign substance, Ayala argued that she was also an invitee of the airport because she had purchased a plane ticket, which entitled her to the use of the airport premises. Ayala did not address the City’s remaining argument about her negligent activity claim. The trial court denied the City’s plea, and this interlocutory appeal followed. 2 PREMISES LIABILITY CLAIM I. Applicable Law Under the common law doctrine of sovereign immunity, the state is immune from suit, which means that it cannot be sued in its own courts without its consent. See City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011). Governmental units in the state enjoy the same type of immunity, although their immunity is known as “governmental immunity.” See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). The City is a governmental unit, which means that it cannot be sued absent a waiver of its governmental immunity. See Tex. Civ. Prac. & Rem. Code § 101.001(3)(B). One such waiver can be found under the TTCA, which provides that a governmental unit is liable for “personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” See Tex. Civ. Prac. & Rem. Code § 101.021(2). Absent certain exceptions not applicable here, the TTCA further provides that “if a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.” See Tex. Civ. Prac. & Rem. Code § 101.022(a). Our court has construed this final phrase as meaning that if the claimant pays for the use of the premises, then the governmental unit owes the same duty of care that a premises owner would owe to an invitee. See Univ. of Tex. Med. Branch at Galveston v. Davidson, 882 S.W.2d 83, 85 (Tex. App.—Houston [14th Dist.] 1994, no writ) (“Although the Act does not specifically state, case law interpreting the Act has held that if the claimant pays for use of the premises, then 3 § 101.022(a) imposes upon the State the same duty of care a private landowner owes an invitee.”). A premises owner owes a less demanding duty to a licensee than to an invitee. In the case of a licensee, the premises owner must not injure the licensee by willful, wanton, or grossly negligent conduct, and the premises owner must use ordinary care either to warn the licensee of, or to make reasonably safe, a dangerous condition of which the premises owner is actually aware and the licensee is not. See State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). In the case of an invitee, the duty is largely the same, except that the premises owner is held to a greater standard on the knowledge element: Regardless of whether the invitee was aware of the dangerous condition, the premises owner must use ordinary care to protect the invitee of a dangerous condition about which the premises owner actually knew or reasonably should have known. Id. Ayala did not plead that the City had engaged in willful, wanton, or grossly negligent conduct, or that she was either a licensee or an invitee, but she did plead that the City had actual knowledge of the orange foreign substance. That pleading satisfied Ayala’s burden of affirmatively demonstrating the trial court’s jurisdiction because it alleged a valid waiver of immunity. See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003) (“In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.”). In its plea to the jurisdiction, the City sought to negate Ayala’s allegation by producing evidence that it did not have actual knowledge of the orange foreign substance before Ayala slipped and fell. The City also argued in its plea that Ayala was a licensee. Based on those two points, the City urged the trial court to dismiss 4 Ayala’s claim because the negation of actual knowledge meant that the claim lacked an essential jurisdictional element. To prevail on its plea to the jurisdiction, the City had the initial burden of negating the existence of a jurisdictional fact, such as its actual knowledge of the dangerous condition. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). If that burden was satisfied, then the burden shifted to Ayala to present evidence sufficient to raise a genuine issue of material fact about that jurisdictional element. Id. at 227–28. This standard essentially mirrors that of a traditional motion for summary judgment. Id. at 228. Consistent with that standard, we review the trial court’s ruling de novo, and we consider all evidence presented in the light most favorable to Ayala, the nonmovant. Id. Because the City’s plea depended upon a showing that Ayala was a licensee and not an invitee, we begin by addressing the threshold issue of whether Ayala paid for the use of the airport premises. II. Ayala did not pay for the use of the airport premises. The evidence was undisputed that Ayala booked a flight from Seattle, Washington to Jacksonville, Florida, with a connecting flight here in Houston. The slip-and-fall incident occurred as Ayala was attempting to make that connecting flight. The City argued in its plea that Ayala’s purchase of her plane ticket did not constitute a payment for the use of the airport premises. That argument tracks the holdings of other courts that have also reviewed slip-and-fall claims occurring in airports. For example, in City of Dallas v. Davenport, 418 S.W.3d 844 (Tex. App.— Dallas 2013, no pet.), the court of appeals held that the purchase of a plane ticket did 5 not confer status on the plaintiff as an invitee of the airport. Id. at 848. The court determined that the plaintiff’s ticket payment was “merely related” to the airport premises, and that the plaintiff could not be treated as an invitee under the TTCA because his payment was not “specifically for entry onto and use of the premises.” Id. The holding in Davenport was adopted by our sister court in City of Houston v. Crawford, No. 01-18-00179-CV, 2018 WL 4868306 (Tex. App.—Houston [1st Dist.] Oct. 9, 2018, no pet.) (mem. op.), which agreed that a ticketholder was only a licensee because she had not paid for the specific use of the airport premises. Id. at *3. Even before Davenport and Crawford, the Texas Supreme Court reviewed a slip-and-fall case where the parties jointly agreed that the ticketholder was only a licensee. See City of Dallas v. Thompson, 210 S.W.3d 601, 602–03 (Tex. 2006) (per curiam). The Supreme Court never questioned the correctness of that agreement, which tacitly signaled that the purchase of a plane ticket does not amount to a fee for the use of the airport premises. Id. (considering only whether the city had actual knowledge of the dangerous condition). These court decisions are consistent with the policy of this state, which is that statutory waivers of immunity should be construed narrowly. See Tex. Gov’t Code § 311.034; Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008). In keeping with that policy, we likewise conclude that when a claim arises from a condition of real property (other than a special defect, which is not at issue here), the governmental unit does not owe the same duty to the claimant as a private premises owner would owe to an invitee unless the claimant specifically paid for the use of the premises. 6 Here, the evidence showed that Ayala paid her airline for a trip from Seattle to Jacksonville, with a connecting flight through Houston. Ayala’s payment was not made to the City for the entry and use of the airport premises. Though her use of the airport is related to her payment of the plane ticket, it is not the type of use that the TTCA contemplated for imposing the duty owed to an invitee. Cf. State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786–87 (Tex. 1993) (per curiam) (concluding that a driver’s payment of vehicle registration and licensing fees did not make the driver an invitee on the highways because the fees were not paid for the use of the highways), abrogated on other grounds by Denton County v. Beynon, 283 S.W.3d 329 (Tex. 2009); Simpson v. Harris County, 951 S.W.2d 251, 253 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (concluding that a litigant’s payment of a court filing fee did not make the litigant an invitee of the courthouse because the fee was not a payment for the use of the courthouse). Therefore, we conclude that the City established that Ayala was a licensee, rather than an invitee. Ayala did not raise any evidence in her response that was sufficient to raise a fact issue on this point. For example, Ayala did not point to any evidence that she paid a separate fee for her entry and use of the airport premises. Instead, she only produced evidence relating to her airline’s lease with the City, which showed that the City receives payments from the airline based in part on the number of enplaning passengers. But this sort of revenue-sharing relationship is irrelevant because it does not establish that Ayala specifically paid for the use of the airport premises. See Clay v. City of Fort Worth, 90 S.W.3d 414, 417 (Tex. App.—Austin 2002, no pet.) (holding that a telephone company’s revenue-sharing agreement with a city did not confer invitee status on the company’s employee, who had been injured on the city’s premises after servicing a payphone). 7 Ayala also directs our attention to Churchman v. City of Houston, No. 01-9600211-CV, 1996 WL 544250 (Tex. App.—Houston [1st Dist.] Sept. 26, 1996, writ denied) (not designated for publication), another slip-and-fall case arising at the airport. Like Ayala, the plaintiff there was a ticketholder, and she claimed that her purchase of a plane ticket made her an invitee of the airport premises. Id. at *2. The plaintiff produced some evidence showing that the airline paid for the maintenance of certain common areas in the terminal based on the total number of enplaning passengers. Id. The court of appeals concluded that this evidence did not make the plaintiff an invitee because the plaintiff was a deplaning passenger, rather than an enplaning passenger. Id. Ayala seizes on this difference and contends that because she was an enplaning passenger, unlike the plaintiff in Churchman, then she must be treated as an invitee. We disagree. The court in Churchman did not actually hold that an enplaning passenger was an invitee, whereas a deplaning passenger was a licensee. The court merely concluded that the plaintiff’s evidence did not establish that the plaintiff was an invitee. And even if the court had made the holding that Ayala suggests, the opinion itself has no precedential value under our rules because it is unreported and dated prior to January 1, 2003. See Tex. R. App. P. 47.7(b). We also note that the same court that decided Churchman more recently held that a ticketholder making a connecting flight in Houston was just a licensee, not an invitee. See Crawford, 2018 WL 4868306, at *3. That fact pattern tracks Ayala’s fact pattern, and critically, there was no discussion at all about whether the ticketholder was an enplaning passenger or a deplaning passenger. In another point, Ayala argues that she is an invitee because she would not have been allowed into the terminal where the slip-and-fall incident occurred but for her purchase of a plane ticket. Ayala argues that a comparable analysis was 8 performed in City of McAllen v. Quintanilla, No. 13-18-00062-CV, 2019 WL 3023325 (Tex. App.—Corpus Christi July 11, 2019, no pet.) (mem. op.), which involved a bus station, rather than an airport. But that case also followed Davenport when it said that “invitee status requires payment of a specific fee for entry onto and use of public premises.” Id. at *3 (quoting Davenport, 418 S.W.3d at 847). Ayala did not present any evidence that the purchase of her plane ticket included a specific fee for entry onto and use of the airport premises. As stated above, the evidence established that the purchase was merely related to the use of the airport premises, which is too broad to confer status as an invitee under the TTCA. III. The City did not have actual knowledge of the orange foreign substance. Because Ayala was a licensee, the City owed her a duty to protect her from a dangerous condition of which it actually knew. If the City established with competent evidence that it did not actually know of the dangerous condition, then the burden would shift to Ayala to create a genuine issue of material fact as to that jurisdictional element. Actual knowledge requires the premises owner to know “that the dangerous condition existed at the time of the accident, not merely of the possibility that a dangerous condition could develop over time.” See Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 117 (Tex. 2010) (per curiam). To prove that it lacked actual knowledge, the City attached to its plea an affidavit from the airport operations supervisor for the Houston Airport System. The supervisor attested that he is responsible for overseeing certain employees whose duties include responding to liquid spills, calls, and other customer service issues. Whenever there is an incident or response to a call in the airport terminal, these employees are required to enter a report into the Airport Safety and Operations Compliance System (“ASOCS”). The supervisor attested that he reviewed the 9 records and reports in ASOCS for the thirty days before and the thirty days after Ayala’s slip-and-fall incident and he found “no records or reports concerning notice of a dangerous condition, including water or other liquid or foreign substance, or of any person slipping and falling or of any incidents, on any escalator,” except for the record of Ayala’s incident, which was received after its occurrence. In this court, Ayala criticizes the affidavit because the underlying ASOCS records were never produced. But Ayala never objected on that same basis in the trial court, and she has not provided any citation in her brief otherwise showing that the records were requested or that their production was required. Therefore, any complaint along those lines has been waived. See Tex. R. App. P. 33.1(a). Ayala also argues that the City cannot negate actual knowledge by referring to its own maintenance logs, citing Dallas County v. Wadley, 168 S.W.3d 373 (Tex. App.—Dallas 2005, pet. denied). But that case is readily distinguishable. The court there determined that the governmental unit could not rely on its own records to negate actual knowledge because the records did not even contain an entry for the incident that gave rise to the lawsuit. Id. at 378. That reasoning does not apply here because the affiant in this case specifically attested that Ayala’s slip-and-fall incident was recorded in ASOCS, and it was the only record of a dangerous condition in a two-month period. “Although there is no one test for determining actual knowledge that a condition presents an unreasonable risk of harm, courts generally consider whether the premises owner has received reports of prior injuries or reports of the potential danger presented by the condition.” Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008) (per curiam). That rule applies here, and the supervisor’s affidavit establishes that the City did not know of the orange foreign substance that caused Ayala to slip and fall. 10 Ayala counters that the rule in Aguilar should not apply, claiming in her brief that the issue in that case “was not whether the university had actual knowledge of the condition itself, as is the case here,” but “whether the university knew the condition (a water hose lying across a sidewalk) presented an unreasonable risk of harm.” This argument is unpersuasive. If the City established that it did not have actual knowledge of the condition, then the City necessarily established that it did not have actual knowledge that the condition created an unreasonable risk of harm, which would negate an essential jurisdictional element. See Tex. Dep’t of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam) (“Under a licensee standard, a plaintiff must prove that the governmental unit had actual knowledge of a condition that created an unreasonable risk of harm, and also that the licensee did not have actual knowledge of that same condition.”). The supervisor’s affidavit establishes under Aguilar that the City had no such knowledge of the condition or of the unreasonable risk of harm that the condition created. Ayala argues next that even if the City could rely on its own records in ASOCS, the City would still have to show that its records were regularly kept, as required by Rule 803(7)(B) of the Texas Rules of Evidence. This argument fails for at least two reasons. First, Ayala did not lodge an objection under that rule in the trial court, which means that this point is waived. And second, even if this point were not waived, it would fail on the merits because the City did not offer the records themselves into evidence. Instead, the City relied on the affidavit testimony of its airport operations supervisor and on his personal knowledge of those records. This approach was deemed sufficient in Aguilar. 251 S.W.3d at 513 (“Here, the University’s Director of Health and Safety testified that there had been no incidents of pedestrians tripping on water hoses on the campus in the past five years. Additionally, the Assistant Director for Facilities, Operations, and Maintenance 11 testified that there were no rules or guidelines for the use and placement of water hoses because they had never been a problem on campus.”). Ayala makes a related argument under Rule 803(7)(C), claiming that the City could not rely on the records because there were circumstances indicating a lack of trustworthiness. But again, this argument was not preserved, and it also fails on the merits. The City was not relying on the records themselves, and the circumstances cited by Ayala relate only to inconsistencies about whether the airport’s custodial staff uses orange soap (which Ayala believes is the liquid that caused her to slip and fall). There were no inconsistencies about whether ASOCS is dutifully maintained. For the foregoing reasons, we conclude that the City satisfied its burden of showing that it did not have actual knowledge of the dangerous condition. The burden accordingly shifted to Ayala to demonstrate a genuine issue of material fact regarding that jurisdictional element. Ayala contends that she raised a fact question about the City’s knowledge during her own deposition, referring specifically to the following testimony: Q. Okay. So you stepped off of the escalator and then you slipped. Was there something that caused you to slip? A. Once I was already on the floor with my foot like that, fractured or broken, I don’t know, then I looked to see what I had stepped on and I realized that there was that liquid there. Q. The liquid? A. I realize it was soap when people came to clean it. Q. How do you—why do you think it was soap? A. Because when the lady started cleaning it, there was foam being produced and she—the lady, she herself said it. Q. What lady? A. The housekeepers, those who clean. Q. Do you know her name? 12 A. I don’t know who she is. Q. What exactly did she say? A. She said, “Oh, my God, this is soap. This is negligence by the airport.” Ayala suggests from this testimony that the orange foreign substance was actually soap, and she infers that it came from one of the airport’s custodians (and not some other person like a private traveler) based on other evidence showing that the custodians are provided with orange soap in their cleaning kits. Ayala then suggests that if a custodian spilled the soap, then the City actually knew about the dangerous condition that the spilled soap created. But these suggestions “pile speculation on speculation and inference on inference,” which is insufficient to raise a fact issue. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003) (per curiam). Ayala did not produce any direct evidence that a custodian actually spilled the soap, or that a custodian actually knew that soap had been spilled. Ayala only relies on circumstantial evidence that the soap might have originated from a custodian to establish an inference of the City’s actual knowledge. But “circumstantial evidence establishes actual knowledge only when it either directly or by reasonable inference supports that conclusion.” See City of Corsicana v. Stewart, 249 S.W.3d 412, 415 (Tex. 2008) (per curiam). For example, the court in Crawford determined that a factfinder could make a reasonable inference of actual knowledge where there was evidence that maintenance staff had placed safety cones around a greasy area of the floor (but the cones did not encompass the entirety of the defective premises). See Crawford, 2018 WL 4868306, at *5. And in another slip-and-fall case, the court determined that there was a fact issue about actual knowledge where the evidence showed both that the plaintiff had slipped on a wet floor and that a custodian was also mopping the floor nearby. See Tex. Dep’t of Public Safety v. Guzman, No. 1313 13-00590-CV, 2014 WL 6085684, at *5 (Tex. App.—Corpus Christi Nov. 13, 2014, no pet.) (mem. op.). Ayala has not cited to the existence of any comparable circumstantial evidence. There has been no showing that similar safety devices were erected in the vicinity of the escalator, or that a custodian was nearby and cleaning up a spill. Absent such evidence, a factfinder could only speculate that the City was actually aware of the spilled soap. As the City observes in its brief, the circumstances were just as plausible that the soap had leaked out of a custodian’s cleaning kit without the custodian’s actual awareness. On this record, the mere fact that the soap might have originated from a custodian does not controvert the City’s affidavit that it had no actual knowledge of a dangerous condition. Cf. City of Denton v. Paper, 376 S.W.3d 762, 766–67 (Tex. 2012) (per curiam) (holding that there was no evidence controverting the city’s affidavit that it was unaware of a pothole, even though the city had recently completed street repairs in the area of the pothole, including a releveling of the street where the repairs had caused a depression); see also Medrano v. Home Depot Int’l, Inc., No. H-16-2570, 2017 WL 2619344, at *3 (S.D. Tex. June 16, 2017) (holding that evidence that a store employee knew that a floor-cleaning machine used water did not create an issue of material fact as to whether the store knew that the machine had left a slipping hazard on the floor). Ayala also complains that the slip-and-fall incident was captured on surveillance footage, but that the video was apparently lost by the City. Ayala did not raise this point in the trial court. Also, she has not indicated whether a person monitoring the surveillance feed could see the spilled soap, or whether the video would even show that the soap was knowingly spilled by a custodian. In one last point, Ayala contends that we should not address any of the City’s arguments regarding the duty that was owed because those arguments are merits14 based rather than jurisdictional. This point is unpersuasive. When, as here, a plea to the jurisdiction challenges the existence of jurisdictional facts, we look beyond the pleadings and consider evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, even if the evidence implicates both the court’s jurisdiction and the merits of a claim. See Tex. Dep’t of Criminal Justice v. Rangel, 595 S.W.3d 198, 205 (Tex. 2020). We conclude that Ayala failed to raise a fact question as to whether the City had actual knowledge about the orange foreign substance before her slip and fall. Because the evidence conclusively established that the City did not have such knowledge, the trial court lacked jurisdiction over Ayala’s premises liability claim and erred by failing to grant the City’s plea to the jurisdiction. NEGLIGENT ACTIVITY CLAIM The City argued in its plea to the jurisdiction that Ayala’s claim for negligent activity should be dismissed as a creative attempt to recast her claim for premises liability. The City reurges that argument here. As in the trial court, Ayala has not responded to this issue in her brief. The nature of a claim is a question of law that we consider de novo. See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 385 (Tex. 2016) (considering whether a claim was based on the use of tangible personal property or based on a premise defect). Premises liability describes a nonfeasance theory based on the owner’s failure to make the property safe, whereas negligent activity describes a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury. Id. at 388. To distinguish between these two theories of liability, the focus is on whether the injury occurred because of a condition created by an activity (premises liability), or whether the injury occurred as a contemporaneous result of the activity itself (negligent activity). Id. 15 In the context of her negligent activity claim, Ayala alleged that the City’s agents and employees were negligent by “leaving puddles of liquid at the bottom of the escalator where Plaintiff fell without properly placing warning signs”; by “disregarding the safety of Plaintiff”; and without further elaboration, by engaging in “other acts deemed negligent.” Ayala also alleged that the City itself “was negligent by failing to properly train and supervise its agents or employees, who in turn failed to warn Plaintiff of the dangerous condition causing her injuries.” None of these allegations establishes that Ayala was injured because of contemporaneous conduct. Instead, the allegations show that Ayala was injured by a condition created by activity. Because Ayala’s claim sounds in premises liability, which is barred for the reasons stated above, the trial court erred by not dismissing it. Id. at 389–91 (“If a claim is properly determined to be one for premises defect, a plaintiff cannot circumvent the true nature of the claim by pleading it as one for general negligence. . . . [S]lip/trip-and-fall cases have consistently been treated as premises defect causes of action.”); City of San Antonio v. Anderson, No. 04-20-00320-CV, 2021 WL 883472, at *4 (Tex. App.—San Antonio Mar. 10, 2021, no pet.) (mem. op.) (construing a claim for negligent use of tangible personal property as only alleging a claim for premises liability); Bexar County v. Walker, No. 04-02-00463CV, 2003 WL 179804, at *2 (Tex. App.—San Antonio Jan. 29, 2003, no pet.) (dismissing a slip-and-fall claim that was erroneously pleaded as a negligent activity claim). 16 CONCLUSION The trial court’s order denying the plea to the jurisdiction is reversed and judgment is rendered dismissing the case for want of jurisdiction. /s/ Tracy Christopher Chief Justice Panel consists of Chief Justice Christopher and Justices Spain and Wilson. 17

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