Poland v. Poland , 2017 Ark. App. 178 ( 2017 )


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                    ARKANSAS COURT OF APPEALS
    
                                       DIVISIONS I, II, III
                                         No. CV-16-414
    
    
                                                   Opinion Delivered:   March 15, 2017
    
                                  APPEAL FROM THE PULASKI
    CHRISTOPHER CHAD POLAND       COUNTY CIRCUIT COURT,
                       APPELLANT THIRTEENTH DIVISION
                                  [NO. 60DR-15-5302]
    V.
                                  HONORABLE W. MICHAEL REIF,
                                  JUDGE
    MEREDITH POLAND
                         APPELLEE AFFIRMED; MOTION DENIED
    
    
                                KENNETH S. HIXSON, Judge
    
           Appellant Christopher Chad Poland (Chad) appeals from an order of protection that
    
    prohibited him from contacting his wife and limited his contact with his daughter for a
    
    period of one year. Chad’s wife is appellee Meredith Poland (Meredith), to whom he has
    
    been married for fourteen years. The parties have one ten-year-old daughter. Chad’s only
    
    argument on appeal is that there was insufficient evidence to support the order of protection
    
    because there was a lack of evidence that he committed domestic abuse against either his
    
    wife or his daughter. We affirm.
    
           When a petition for a protective order is filed under the Domestic Abuse Act, the
    
    trial court may provide relief to the petitioner upon a finding of domestic abuse. Ark. Code
    
    Ann. § 9-15-205(a) (Repl. 2015). Pursuant to Arkansas Code Annotated section 9-15-
    
    103(3)(A), “domestic abuse” is defined as “[p]hysical harm, bodily injury, assault, or the
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    infliction of fear of imminent physical harm, bodily injury, or assault between family or
    
    household members.”
    
           Our standard of review following a bench trial is whether the trial court’s findings
    
    are clearly erroneous. Simmons v. Dixon, 
    96 Ark. App. 260
    , 
    240 S.W.3d 608
     (2006). A
    
    finding is clearly erroneous when, although there is evidence to support it, the reviewing
    
    court on the entire evidence is left with a definite and firm conviction that a mistake has
    
    been committed. Id. Disputed facts and determinations of credibility are within the
    
    province of the factfinder. Id.
    
           This case was initiated by Meredith against Chad on December 30, 2015, when she
    
    filed a petition and affidavit for an order of protection. Meredith’s affidavit alleged that
    
    beginning in September 2015 the parties’ marriage had become tumultuous, with Chad
    
    frequently yelling at her and berating her. Meredith documented several confrontations
    
    brought on by Chad, which culminated on December 11, 2015. During this confrontation,
    
    Chad yelled and screamed at Meredith, and she and her daughter wanted to leave. After
    
    Meredith went outside to make a phone call, Chad locked her out of the house. Meredith
    
    called the police. When the police arrived, they arranged for Meredith and the daughter to
    
    leave the home.
    
           Based on these allegations, the trial court entered an ex parte temporary order of
    
    protection against Chad on December 30, 2015, temporarily prohibiting him from
    
    contacting Meredith or his daughter. A final hearing was held on January 13, 2016.
    
           On January 13, 2016, the trial court entered a final order of protection, effective for
    
    one year. By this time, Meredith and her daughter were living in the family home, and
    
    
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    Chad had moved out and was living with his parents. In the final order, the trial court
    
    found that Meredith and the daughter were in immediate and present danger of domestic
    
    abuse. Chad was prohibited from contacting Meredith, and he was excluded from her
    
    residence and place of employment. Chad was also restricted from contacting his daughter,
    
    with the exception of reasonable phone and text contact, along with supervised visitation
    
    every other weekend to be supervised by Chad’s parents.
    
           At the final hearing, Meredith stated that the parties’ marriage had become intolerable
    
    and that they were going through a divorce. Meredith testified about numerous incidents
    
    where Chad had berated, physically assaulted, and threatened her. According to Meredith,
    
    Chad had hit her legs while she was in bed, which caused bruising. Meredith also testified
    
    that Chad owned two guns, which were usually within his reach, and that she was afraid of
    
    him. She said that on several occasions Chad waved a gun at her. This happened twice
    
    between September and December of 2015. This would happen during his screaming
    
    episodes, and Meredith testified that, on one occasion, Chad said that maybe he would just
    
    go ahead and shoot everybody. According to Meredith, there were also times when he
    
    would raise his fist at her. She further stated that, “as for my daughter, he has threatened to
    
    whip her ass.”
    
           Vicki Garcia, one of the parties’ neighbors, testified on behalf of Meredith. Vicki
    
    stated that during the latter months of the parties’ marriage she witnessed unsettling
    
    arguments where Chad would scream at Meredith and berate her. Vicki had twice called
    
    the police to report disturbances, and she expressed concern for the safety of both Meredith
    
    and the parties’ daughter.
    
    
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           Chad testified on his own behalf, and he acknowledged a difficult marriage over the
    
    past few months after he suspected that Meredith had been cheating on him.                 He
    
    acknowledged saying a “few choice words” to Meredith, but he denied ever threatening,
    
    berating, or abusing her. He indicated that Meredith’s allegations were all fabricated and
    
    that she had no reason to be afraid of him.
    
           In this appeal, Chad argues that the order of protection should be reversed because
    
    there was insufficient evidence that he committed domestic abuse as defined in the Domestic
    
    Abuse Act. He contends that he did not assault or cause bodily injury to anyone, nor did
    
    he inflict imminent fear of physical harm or bodily injury. Although he may have been
    
    verbally aggressive and controlling at times, Chad posits that this was insufficient to sustain
    
    a protective order where there was an absence of any physical violence or threats of violence.
    
    Chad asserts that Meredith was being untruthful and used the domestic-abuse proceedings
    
    as leverage to obtain possession of the parties’ house and limit his contact with his daughter.
    
    Chad also contends that, even were we to conclude that he committed domestic abuse
    
    against his wife, there was no evidence that he committed domestic abuse against his
    
    daughter and that, at a minimum, we should reverse the protective order as it pertains to his
    
    daughter.
    
                                             I.       Mootness
    
           As a threshold matter, we must determine whether the issue before us is moot.
    
    Although the issue of mootness has not been raised by the parties, it is an issue that we raise
    
    on our own motion. Scoggins v. Medlock, 
    2010 Ark. App. 401
    . Generally, a case becomes
    
    moot when any judgment rendered would have no practical effect upon a then-existing
    
    
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    legal controversy. Davis v. Brushy Island Pub. Water Auth., 
    375 Ark. 249
    , 
    290 S.W.3d 16
    
    (2008).
    
           In this case the dissenting judges, relying on Gee v. Harris, 
    94 Ark. App. 32
    , 
    223 S.W.3d 88
     (2006), would dismiss this appeal as moot because, by the time the case was
    
    submitted to our court, the one-year order of protection had expired. We, however, hold
    
    that the appeal is not moot because of the collateral consequences that attend a finding of
    
    domestic abuse. In Newton v. Tidd, 
    94 Ark. App. 368
    , 
    231 S.W.3d 84
     (2006), our court
    
    perceptively observed that although the issuance of an order of protection is not a criminal
    
    matter, “criminal or not, there is and should be a degree of opprobrium attached to a finding
    
    that a person has committed acts of domestic abuse.”
    
           In Gee v. Harris, supra, the term of the order of protection being appealed had expired
    
    shortly before the case was submitted to our court. In dismissing that appeal, we wrote:
    
                   A case becomes moot if a controversy ceases to exist between the parties at
           any stage of the legal proceedings, including the appeal. As a general rule, the
           appellate courts of this state will not review issues that are moot. To do so would be
           to render advisory opinions, which we will not do. Generally, a case becomes moot
           when any judgment rendered would have no practical legal effect upon a then-
           existing legal controversy. Our courts have recognized two exceptions to the mootness
           doctrine. The first exception involves issues that are capable of repetition, yet evade review,
           and the second exception concerns issues that raise considerations of substantial public interest,
           which if addressed would prevent future litigation.
                   As far as the underlying order of protection that is being appealed, neither
           exception is applicable. The order has expired and thus there is no remedy for Gee—
           even if we held that the trial court erred—because the damage, if there was any, has
           already been done and cannot be undone. Because any judgment rendered would
           have no practical legal effect upon an existing legal controversy, we dismiss Gee’s
           appeal as moot.
    
    Gee v. Harris, 94 Ark. App. at 33−34, 223 S.W.3d at 88−89 (emphasis added) (citations
    
    omitted).
    
    
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           However, six years after Gee v. Harris was decided, we introduced a third commonly
    
    held exception to mootness—“collateral consequences”—in the context of a felony criminal
    
    case where the sentence was served before the appeal was submitted. In McPeak v. State,
    
    
    2012 Ark. App. 234
    , at 1−2, 
    406 S.W.3d 430
    , 432, we wrote:
    
           McPeak asserts that despite his completing the confinement portion of his sentence,
           his case is not moot for appellate review because of the collateral consequences that attend
           a felony conviction. The State concedes the point, and we agree. See Pennsylvania v.
           Mimms, 
    434 U.S. 106
    , 108 n. 3, 
    98 S. Ct. 330
    , 
    54 L. Ed. 2d 331
     (1977) (citing prior
           United States Supreme Court cases holding “that the possibility of a criminal
           defendant’s suffering ‘collateral legal consequences’ from a sentence already served
           permits him to have his claims reviewed here on the merits”); Ginsberg v. State of
           N.Y., 
    390 U.S. 629
    , 633 n. 2, 
    88 S. Ct. 1274
    , 
    20 L. Ed. 2d 195
     (1968) (noting that
           “St. Pierre [v. United States, 
    319 U.S. 41
    , 43, 
    63 S. Ct. 910
    , 
    87 L. Ed. 1199
     (1943)]
           also recognized that the case would not have been moot had ‘petitioner shown that
           under either state or federal law further penalties or disabilities can be imposed on
           him as result of the judgment which has now been satisfied’”).
    
    (emphasis added). Hence, it is clear that in the context of a felony conviction, by simply
    
    serving the sentence, the defendant’s appeal is not rendered moot on the underlying
    
    conviction.
    
           Similarly, in the context of a misdemeanor conviction and criminal contempt, our
    
    supreme court recently held in a plurality opinion, Thompson v. State, 
    2016 Ark. 383
    , 
    503 S.W.3d 62
    , that the mootness doctrine does not bar a direct appeal from a misdemeanor
    
    conviction even when the appellant had already served his sentence. The supreme court
    
    noted in that case that a person convicted of a misdemeanor has the right to appeal pursuant
    
    
    
    
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    to Rule 1(a) of the Arkansas Rules of Appellate Procedure−Criminal, and that under Rule
                                                                                1 2
    1(c) that right is not extinguished even upon the death of the appellant.
    
           Although there is a split of authority among other states as to whether an appeal from
    
    an expired order of protection is moot, the Connecticut Supreme Court indicated in Putman
    
    v. Kennedy, 
    279 Conn. 162
     (2006), that the majority of states that have considered the issue
    
    have concluded that appeals from domestic-violence restraining orders are not rendered
    
    moot by their expiration. In Putman, the court concluded that it was reasonably possible
    
    that adverse collateral consequences of the domestic-violence restraining order may occur
    
    and, therefore, that the appeal was not rendered moot by virtue of the expiration of the
    
    order during the pendency of the appeal.
    
           The Arizona appellate courts are in step with Connecticut, holding that because
    
    expired orders of protection carry with them significant collateral legal and reputational
    
    consequences, they are not moot for purposes of appellate review. See Cardoso v. Soldo, 
    230 Ariz. 614
     (2012). Further, C.J.S. provides that, although under some court holdings an
    
    appeal from a domestic-abuse protection order is rendered moot by its expiration, under
    
    other authority, an appeal from an expired order is not moot when it is reasonably possible
    
    that there will be significant prejudicial collateral consequences for the person subject to the
    
    
           1
           A final order of protection is appealable pursuant to Rule 2(a)(1) of the Arkansas
    Rules of Appellate Procedure−Civil.
           2
            Thompson v. State was a 3−2−2 decision by the supreme court. Three justices held
    that the issue was not moot just because the defendant had completed his sentence prior to
    submission; two justices concurred and found that the case was not moot due to other
    exceptions of the mootness doctrine; and two justices dissented, stating that the case was
    moot because the sentence had been served. Hence, five justices held that the case was not
    moot.
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    order, including harm to the reputation and legal record of the defendant, stigma, the
    
    possibility that the petitioner might again petition for relief from domestic violence, and the
    
    possible considerations of such an order by a court as a factor in making a future custody
    
    determination. 28 C.J.S. Domestic Abuse and Violence § 34 (2017).
    
           In Arkansas, expired orders of protection may have ongoing collateral legal
    
    consequences. Arkansas Code Annotated section 9-15-201(e)(1)(C) provides that a petition
    
    for relief under the Domestic Abuse Act shall disclose “any prior filings of a petition for an
    
    order of protection under this chapter.” Thus, the issuance of a prior, albeit expired, order
    
    of protection is a circumstance a court is entitled to consider in deciding whether to issue a
    
    subsequent order of protection. An order of protection, even if expired, also has ongoing
    
    significance in a child-custody dispute. Arkansas Code Annotated section 9-13-101(c)
    
    provides:
    
          (1) If a party to an action concerning custody of or a right to visitation with a child
              has committed an act of domestic violence against the party making the
              allegation or a family or household member of either party and such allegations
              are proven by a preponderance of the evidence, the circuit court must consider
              the effect of such domestic violence upon the best interest of the child, whether
              or not the child was physically injured or personally witnessed the abuse,
              together with such facts and circumstances as the circuit court deems relevant in
              making a direction pursuant to this section.
          (2) There is a rebuttable presumption that it is not in the best interest of the child
              to be placed in the custody of an abusive parent in cases in which there is a
              finding by a preponderance of the evidence that the parent has engaged in a
              pattern of domestic abuse.
    
    This is particularly relevant in the present case because the parties were going through
    
    divorce proceedings at the time the protective order was issued, making the issues of child
    
    custody and visitation likely to arise. In addition to substantive legal collateral consequences
    
    of an expired order of protection, there are other negative consequences, including the
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    potential adverse effect on an employment application, dissemination of the information to
    
    governmental and police agencies, harm to the defendant’s reputation, and the stigma and
    
    opprobrium associated with domestic abuse.
    
           As set forth above, there may be collateral consequences of a protective order entered
    
    under the Domestic Abuse Act that remain after the expiration of the protective order. For
    
    that reason, we are adding the collateral-consequences exception as a third exception to the
    
    two other exceptions to the mootness doctrine noted in Gee v. Harris 3 without the necessity
    
    of overruling Gee. The issue of mootness must be decided in each case based on its facts.
    
    Therefore, even though the term of the protective order in this case has expired, the appeal
    
    is not moot herein because we hold there are collateral consequences associated with the
    
    order of protection.
    
                                    II.     Sufficiency of the Evidence
    
           Having established that this appeal is properly before this court, we now turn to
    
    Chad’s argument that there was insufficient evidence that he committed domestic abuse
    
    against his wife or his daughter. Under Arkansas Code Annotated section 9-15-103(3)(A),
    
    there must be evidence that Chad caused physical harm, bodily injury, or assault, or the
    
    infliction of fear of imminent physical harm. With regard to Meredith, there was testimony
    
    that he had hit her legs and caused bruising, which amounts to physical harm. As to both
    
    Meredith and the parties’ daughter there was testimony elicited in support of the “infliction
    
    of fear of imminent physical harm” component of domestic abuse. Although Chad denied
    
    
           3
             The first exception involves issues that are capable of repetition, yet evade review,
    and the second exception concerns issues that raise considerations of substantial public
    interest, which if addressed would prevent future litigation. See Gee, supra.
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    each of Meredith’s allegations in his testimony, the trial court specifically found that Chad
    
    was not credible. Meredith testified that Chad always had his gun near him, that he waved
    
    his gun at her on numerous occasions, and that during one screaming episode he waved his
    
    gun and stated that maybe he would just go ahead and shoot everybody. There was also
    
    evidence that Chad had at times screamed at his daughter and threatened to “whip her ass.”
    
    Moreover, the parties’ daughter was present during many of the confrontations instigated
    
    by Chad against Meredith, causing their daughter to be apprehensive about her father as
    
    evidenced by her effort to record one of the disturbances and actually telephoning her
    
    grandmother during the confrontation. Further, the daughter indicated that she wanted to
    
    leave with her mother after the police got involved on the last day they were with him.
    
    Leaving credibility decisions to the trial court, as we must, we are not left with a definite
    
    and firm conviction that the trial court erred in finding domestic abuse and entering the
    
    protective order restricting Chad’s contact with his wife and his daughter. Therefore, the
    
    order of protection is affirmed. 4
    
                                 III.   Appellee’s Motion for Costs Incurred
                                 to Supplement Appellant’s Addendum and Abstract
    
           Finally, we address Meredith’s motion for attorney’s fees and costs associated with
    
    her supplemental abstract and addendum, which was submitted with this case. Under
    
    Supreme Court Rule 4-2(b)(1), we have the authority to make such an award to compensate
    
    the appellee for its supplementation if we determine that the appellant’s abstract and
    
    
    
           4
            Because the dissenting judges would dismiss the appeal as moot, the dissenting judges
    did not vote on the merits of whether the trial court’s finding of domestic abuse was clearly
    erroneous.
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    addendum are deficient. However, we have concluded that Chad’s abstract and addendum
    
    were sufficient for our review of the case, and that the supplemental materials provided by
    
    Meredith were not necessary. Therefore, the motion for costs is denied.
    
           Affirmed; motion denied.
    
           GRUBER, C.J., and VIRDEN, HARRISON, and GLOVER, JJ., agree.
    
           GLADWIN, WHITEAKER, VAUGHT, and BROWN, JJ., dissent.
    
           LARRY D. VAUGHT, Judge, dissenting. I dissent from the majority’s departure from
    
    precedent and its expansion of a previously narrow exception to the mootness doctrine. The
    
    issue before us is whether Chad’s appeal is moot based on the expiration of the order of
    
    protection he is appealing. In Gee v. Harris, 
    94 Ark. App. 32
    , 
    223 S.W.3d 88
     (2006), we held
    
    that although the issue of mootness had not been raised by either party, we lacked jurisdiction
    
    to review an order of protection that had expired, making the case moot. We specifically held
    
    that an expired order of protection did not meet the requirements of the two recognized
    
    exceptions to the mootness doctrine. As was the case in Gee, the order of protection against
    
    Chad has now expired, so there is no remedy available for him on appeal. Even if we found
    
    error and decided the case in Chad’s favor, “the damage, if there was any, has already been
    
    done and cannot be undone.” Gee, 94 Ark. App. at 33, 223 S.W.3d at 89. Therefore, because
    
    any judgment we might render would have no practical legal effect on an existing legal
    
    controversy, we are required to dismiss Chad’s appeal as moot.
    
           The majority holds that our precedent in Gee must be revised to incorporate a third
    
    exception to the mootness doctrine, the theory of “collateral legal consequences.” Such an
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    exception has been recognized under Arkansas law in only one case, 1 McPeak v. State, 
    2012 Ark. App. 234
    , 
    406 S.W.3d 438
    , which dealt with a felony conviction, not a civil order of
    
    protection. Neither our court nor the Arkansas Supreme Court has applied this exception in
    
    any other case. The majority’s application of the collateral-legal-consequences exception to the
    
    facts of the present case is a significant departure from precedent, weakens the mootness
    
    doctrine, and undermines the prohibition on advisory opinions.
    
           As the Arkansas Supreme Court explained in Chamberlin v. State Farm Mutual Automobile
    
    Insurance Co., 
    343 Ark. 392
    , 397–98, 
    36 S.W.3d 281
    , 284 (2001), “[u]nder the doctrine of stare
    
    decisis, we are bound to follow prior case law.” The policy of stare decisis is designed to lend
    
    predictability and stability to the law. Id., 36 S.W.3d at 284; State of Ark. Office of Child Support
    
    Enf’t v. Mitchell, 
    330 Ark. 338
    , 343, 
    954 S.W.2d 907
    , 909 (1997); Parish v. Pitts, 
    244 Ark. 1239
    ,
    
    1252, 
    429 S.W.2d 45
    , 52 (1968) (superseded by statute on other grounds). It is well settled that
    
    “[p]recedent governs until it gives a result so patently wrong, so manifestly unjust, that a break
    
    becomes unavoidable.” Chamberlin, 343 Ark. at 397–98, 36 S.W.3d at 284 (quoting Mitchell, 330
    
    Ark. at 343, 954 S.W.2d at 909). Our test is whether adherence to the rule would result in
    
    “great injury or injustice.” Id., 36 S.W.3d at 284; Mitchell, 330 Ark. at 343, 954 S.W.2d at 909
    
    (quoting Indep. Fed. Bank v. Paine Webber, 
    302 Ark. 324
    , 331, 
    789 S.W.2d 725
    , 730 (1990)). I am
    
    not persuaded that the long-standing rule that an appeal of an order of protection is rendered
    
    moot by the order’s expiration will now suddenly result in “great injury or injustice.”
    
    
    
    
           1
            The only other case on which the majority relies, Thompson v. State, 
    2016 Ark. 383
    ,
    
    503 S.W.3d 62
    , was a plurality decision that neither expressly nor impliedly invoked the
    collateral-legal-consequences exception.
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           The majority relies heavily on cases from other jurisdictions that allow appeals from
    
    expired orders of protection based on the theory of collateral legal consequences. However,
    
    the majority fails to discuss the fact that many of those jurisdictions require a special
    
    proceeding wherein the defendant must prove, through the introduction of admissible
    
    evidence, the alleged collateral legal consequences in order to invoke the exception. See Putman
    
    v. Kennedy, 
    900 A.2d 1256
     (Conn. 2006). Arkansas has no such procedure, and as a result, the
    
    majority applied the collateral-legal-consequences exception in this case without any
    
    substantive evidence of the specific consequences facing Chad as a result of the order of
    
    protection. The majority argues that Chad may be at a disadvantage in future child-custody
    
    disputes or order-of-protection cases by virtue of the order at issue in this appeal, but this is
    
    mere speculation. Chad has neither argued nor presented evidence regarding either
    
    potentiality.
    
           Ultimately, the majority’s opinion rests on its conclusion that an order of protection
    
    causes harm to its subject’s reputation due to the “stigma and opprobrium associated with
    
    domestic abuse.” While that conclusion may be correct, it does not support a drastic departure
    
    from the mootness doctrine. The majority fails to distinguish the reputational harm associated
    
    with an order of protection from the reputational harm associated with any other negative
    
    court ruling. By expanding the collateral-legal-consequences exception to the mootness
    
    doctrine to cover a civil case in which we have no substantive evidence of concrete
    
    consequences, the majority has created the precedent that mootness may be overcome based
    
    on something as vague and amorphous as “social stigma” and “harm to the reputation.” This
    
    will become the exception that swallows the rule. Our holding in McPeak was limited to the
    
    
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    well-established legal consequences of a felony conviction. The majority’s expansion of that
    
    exception to cover this case undermines the mootness doctrine and will likely result in our
    
    courts issuing prohibited advisory opinions. See Shipp v. Franklin, 
    370 Ark. 262
    , 266–67, 
    258 S.W.3d 744
    , 748 (2007).
    
           GLADWIN, WHITEAKER, and BROWN, JJ., join.
    
           Worsham Law Firm, P.A., by: Richard E. Worsham, for appellant.
    
           Gill Ragon Owen, P.A., by: Sharon Elizabeth Echols and Christopher L. Travis, for
    
    appellee.
    
    
    
    
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