Roger Perry and Doris Perry v. Donald Van Hise and Josephine Van Hise, Individually and D/B/A Van Hise Construction Company ( 1998 )

ROGER PERRY and DORIS PERRY, )
)
Plaintiffs/Appellants, )
) Warren Chancery
VS. ) No. 6025
)
DONALD VAN HISE and JOSEPHINE )
VAN HISE, individually, and d/b/a )
VAN HISE CONSTRUCTION ) Appeal No.
COMPANY, ) 01-A-01-9705-CH-00227
)
Defendants/Appellees, )
FILED
IN THE COURT OF APPEALS OF TENNESSEE February 6, 1998
MIDDLE SECTION AT NASHVILLE
Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM CHANCERY COURT
AT MCMINNVILLE, TENNESSEE
HONORABLE CHARLES HASTON, JUDGE
Aubrey Harper, BR: 015817
P.O. Box 588
McMinnville, TN 37110
ATTORNEY FOR PLAINTIFFS/APPELLANTS
J. Hilton Conger, BR: 3607 Thomas Bratcher, BR: 3869
200 South Third Street P.O. Box 568
Smithville, TN 37166 McMinnville, TN 37110
ATTORNEYS FOR DEFENDANTS/APPELLEES
MODIFIED, AFFIRMED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WALTER W. BUSSART, JUDGE
ROGER PERRY and DORIS PERRY, )
)
Plaintiffs/Appellants, )
) Warren Chancery
VS. ) No. 6025
)
DONALD VAN HISE and JOSEPHINE )
VAN HISE, individually, and d/b/a ) Appeal No.
VAN HISE CONSTRUCTION ) 01-A-01-9705-CH-00227
COMPANY, )
)
Defendants/Appellees, )
OPINION
This appeal involves the construction of a home. Plaintiffs engaged one of the
defendants, Donald Van Hise, (hereafter, the defendant) to construct a home on their property.
On May 24, 1994, defendant signed a proposal to construct the house, reserving the right to
withdraw the proposal within 30 days, if not accepted by plaintiff. One of the plaintiffs signed
an acceptance of the proposal. The other did not. On June 25, 1994, defendant tendered another
proposal on different terms, which proposal was accepted by both plaintiffs. The second
proposal contained an estimated time of completion of 3-1/2 - 4-1/2 months. Both proposals
contained a base contract price subject to revision for changes during construction. Both
contracts refer to “plans and specifications” but the record contains no plan and only a partial set
of specifications. The plans and specifications were not specifically prepared for plaintiffs, but
were “generic,” that is, sold on the general market, to be altered as desired; and alterations were
made, producing part of the present controversy.
Promptly after the second proposal was accepted, defendant began excavation which was
delayed by unseasonable rains. Other delays resulted from mistakes or misunderstandings
regarding details of construction. Plaintiff, Roger Perry, (hereafter plaintiff), met with defendant
once weekly on the job to discuss details and progress of construction which was proceeding
slowly because of change orders and other difficulties. Plaintiff made partial payments to
defendant to the total amount of $110,000, but refused to make further payment because of
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dissatisfaction with progress and quality of work. Defendant declined to proceed with
construction without further payment on the contract price.
Plaintiffs sued defendant for damages for abandonment of the work, and cost of
completion. Defendant filed a counter-complaint alleging a $30,551.00 unpaid balance of agreed
price of construction, $15,508.00 cost of changes in construction, and for lien upon the land.
On July 14, 1995, Ralph Griffin, d/b/a Ole South Carpets and Furniture was permitted
to intervene to assert a lien claim of $6,686.43 for tile installed and carpet ordered, but not
installed. Plaintiff’s answer admitted the installation of the tile and selection of the carpet, but
denied liability for either. Defendant’s answer denied ordering the tile or carpet and denied
liability therefor.
After hearing the cause without a jury, the Trial Judge filed a memorandum stating:
Having heard the proof at trial and rereading the
transcribed testimony, the Court is of the opinion that there
was a contract to build a home based upon a generic house
plan. The Owner testified on direct that he authorized no
changes in these plans and complains of poor workmanship
and delays. However, on review of the proof, it appears that
the Owner did authorize several changes, moved doors,
windows, altered designs, materials, exceeded budget in many
areas, but denied so doing until confronted with exhibits in
his own handwriting authorizing the changes.
Apparently most delays were caused by the Owner
himself. Subcontractors and the Contractor met with the
Owner during construction to let him (Owner) air his
objections, but he would not specify what was wrong,
allowing on occasions the subcontractors to almost complete
a project before telling them that a change was necessary, thus
greatly increasing the costs. The Owner’s credibility as a
witness in his own behalf was severally damaged by these
revelations during the trial. For example, the air conditioning
system was put in through Carrier Corporation, by whom the
Owner is employed, and when this vendor was not paid, the
Seller would not complete the final electrical inspection. The
owner then approached the local electric company stating that
he had put in the system personally, which is not borne out by
the testimony.
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As for damages, the Contractor sues only for actual
expenses and it would be inequitable to allow the Owner to
take advantage of the Contractor’s hard work.
When the charges reached Fifteen Thousand, Five
Hundred, Eight, and no/100 ($15,508.00) Dollars and the
Owner refused to agree to pay, the Contractor was at his
mercy. The Court finds the Contractor to be the more
credible witness and determines that he has absorbed
considerable expenses. It is, Therefore,
ORDERED that the Owner did authorize the charges
and should be held responsible for the additional cost of
Fifteen Thousand, Five Hundred, Eight & no/100
($15,508.00) Dollars, plus the Thirty Thousand, Five
Hundred, Fifty One and no/100 ($30,551.00) Dollars actual
expenses proved by the Contractor.
As for the intervening party, carpet supplier,
apparently their bill is not included in the Thirty Thousand,
Five Hundred, Fifty One and no/100 ($30,551.00) Dollars
paid by the Contractor, however the materials were used in
the Owner’s house. These figures total Four Thousand, Four
Hundred, Fifty Three and no/100 ($4,453.00) Dollars, and
because the costs to repair the items in controversy at the
home are approximately the same amount as the carpet
supplier’s bill, It is, Therefore
ORDERED that the Contractor pay this bill, but not be
required to make any repairs.
The Contractor’s Cross-Petition is dismissed at his
costs.
The “Final Decree” of the Trial Court stated:
This cause came on to be heard before the Honorable
Charles D. Haston, Circuit Judge, and the Court having filed
its memorandum opinion and findings of fact, which is
incorporated herein by reference thereto, and the pleadings are
amended to conform to the proof. It is, accordingly,
ORDERED and ADJUDGED that the counter-
defendants have and recover of the plaintiffs, Roger Perry and
Doris Perry, the sum of Fifteen Thousand, Five Hundred
Eight Dollars ($15,508) representing additional costs incurred
by the contractor due to changes requested by the owner,
together with the sum of Thirty Thousand, Five Hundred
Fifty-one Dollars ($30,551) representing actual costs incurred
by the contractor which remain unpaid, for a total of Forty-six
Thousand, Fifty-nine Dollars ($46,059), together with
prejudgment interest thereon at the rate of ten percent (10%)
from February 14, 1995, the last date upon which any
payment was made by the owner to the contractor.
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It is further ORDERED that said sum is a lien on the
plaintiff’s house and lot and the counter-plaintiff is entitled to
have said lien enforced by the sale thereof, unless previously
paid and discharged.
The intervening petitioner, Ralph Griffith, d/b/a Ole
South Carpets and Furniture, is awarded judgment against the
contractor, Donald Van Hise and wife, Josephine Van Hise,
in the amount of Four Thousand, Four Hundred Fifty-three
Dollars ($4,453) which amount shall be deducted by the Clerk
and Master from the proceeds due the contractor, from the
sale of the property.
On motion to alter or amend, pre-judgment interest was stricken from the judgment.
On appeal, defendant’s object to consideration of the issues presented by plaintiff’s for
lack of clarity, citing Tortorich v. Erickson, Tenn. 1984, 6578 S.W.2d 190.
The issues on appeal are stated in plaintiffs’ brief as follows:
The issues are centered around an agreement or
contract setting out the terms of performance dealing with the
Appellants who were the Plaintiffs below and who were the
parties hiring the Appellees, the construction contractors, also
the Defendants below, to construct a residential dwelling
house.
Problems arose when the Appellants began noticing
that the period of time to complete the house was turning out
to be much longer than the 3-1/2 to 4-1/2 month period
promised by the Appellee contractor to finish the house.
Further, it was found that the foundation of the house
was built 4-1/2 inches shorter all around the house than what
the specifications called for which caused a lot of problems in
getting the walls, windows, and doors placed properly also
causing all the other dimensions to be improper.
Also, probably the key issue concerns change orders,
which the contract states that any alteration or deviation from
the specifications involving extra costs, would be executed
only upon written orders, wherein the appellants upon making
corrections and adjustments were not considering such
requests or change orders.
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Defendant’s also cite T.R.A.P. Rule 27(a)(4), Rule 6 of the Rules of this Court and
Schoen v. J. C. Bradford & Co., Tenn. App. 1982, 642 S.W.2d 427, in urging this Court to
disregard plaintiff’s arguments not supported by citation to pages of the record.
Plaintiff’s “Statement of Facts” contains only four references to the record with three
exhibits (exhibits 2, 9 and 10), and (pages 49, 108-131, and 52-55). Plaintiff’s 4-page
argument does not contain a single reference to the record.
Other than references to the shortcomings of plaintiff’s briefs, defendants’ only
response to the plaintiff’s brief reads as follows:
The Chancellor filed a memorandum opinion and
findings of fact in this cause on June 5, 1996. (R. Vol. 1, 29)
The Court found that “the owner’s credibility as a witness in
his own behalf was severely damaged by these revelations
during the trial”. In a case tried without a jury, the question
of credibility of the witnesses is exclusively for the trial judge
trying the case and cannot be reviewed by the appellant
courts. Harwell v. Harwell, 612 S.W.2d 182, 184.
This case is before the Court from a trial before the
Chancellor without the intervention of a jury; there is,
therefore, a presumption of the correctness of the judgment
below, and that judgment should be affirmed unless there is
an error of law or unless the evidence is found by this Court
to preponderate against the judgment below. Smith v.
Jarnagin, 58 Tenn. App. 668, 674, 436 S.W.2d 310, 313
(1968); Rule 13(d), TRAP.
This Court held in Airline Construction, Inc. v. Barr,
807 S.W.2d 247, 264 (Tenn. App. 1990):
“When the trial court has made a
decision which hinges on witness credibility,
then it will not be reversed unless, other than
the oral testimony of the witnesses, there is
found in the record clear, concrete, and
convincing evidence to the contrary.”
The appellant complains of poor workmanship, delays
in completion of the house, and changes which were not
authorized by a written change order. The Court found in its
memorandum opinion that the changes were authorized and,
in deed, requested by the appellants and that most of the
delays were caused by the appellants. (R. Vol. 1, 29).
Appellee presented proof through a licensed architect that the
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quality of construction met or exceeded the standard of the
construction industry in Warren County. (T.E. 226)
The Court awarded the appellee judgment in the
amount of $46,059 representing $30,551 in actual costs
incurred by the appellee which had not been paid by the
appellants together with $15,058 representing additional costs
incurred by contractor due to changes authorized by the
appellants. The final decree provides that the pleadings are
amended to conform to the proof. (R. Vol. 1, 34). Appellee
insists that the record in this cause supports the findings of the
Chancellor. The Court found the appellee to be the more
credible witness (R. Vol. 1,30), and when reviewing findings
of fact by a trial court sitting without a jury, this Court
proceeds de novo upon the record accompanied by a
presumption of correctness unless a preponderance of the
evidence is otherwise. TRAP, 13(d).
Appellee respectfully requests that this Court affirm
the decision of the trial court. Appellee further requests that
this Court designate this appeal as frivolous and tax all costs
to the appellants.
In spite of the foregoing, this Court has determined to review the judgment of the Trial
Court within the limitations presented by the record and briefs.
Since the judgment of the Trial Court was entered without the intervention of a jury, the
judgment must be affirmed if the evidence found in the record does not preponderate against the
factual basis of the judgment and no error of law is found therein. T.R.A.P. Rule 13(d).
Hillsboro Plaza Enterprises v. Moon, Tenn. App. 1993, 860 S.W.2d 45; Tenn. Farmers Mutual
Liability Ins. Co., v. American Mutual Liability Ins. Co., Tenn. App. 1992, 840 S.W.2d 933; H.
M. F. Trust v. Bankers Trust Co., Tenn. App. 1991, 827 S.W.2d 296.
The evidentiary record includes the two written contracts which are exhibited to this
opinion, the admissions in the pleadings, and oral testimony with exhibits thereto. The
certificate of the Trial Clerk lists twenty-seven exhibits, but four are not found with the record
and parts of three others are missing. A significant part of the transcript is the colloquy between
the Trial Judge and counsel near the conclusion of the trial, including the following:
THE COURT: How much more we got Mr. Conger on this
direct testimony?
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MR. CONGER: I can wind it up.
THE COURT: All right. Let’s do that.
(By Mr. Conger)
Q. I’m handing you here what’s been marked as Exhibit
16 and it says the bill summary there. It totals $31,551.60.
Now, is that a total of the bills that have been unpaid, not
unpaid, but a total of the bills that have been paid to the Perry
project out of your pocket?
A. Yes, it is.
Q. You’ve got the receipts or whatever to back this up?
A. Yes, I do.
Q. But this money has actually been paid by you or --
A. Or owed by me.
Q. Or owed by you? Some of it you’ve had to sign notes
for, I believe?
A. Yes.
Q. But for example, Bob’s Central Heat and Air there has
got $5,600. Mr. Priestly testified that he hadn’t been paid but
you’ve gone out and --
A. We’ve made arrangements to pay for it.
----
THE COURT: Now, he’d been paid $107,000?
MR. CONGER: $110,000.
THE COURT: $110,000, already.
MR. CONGER: Yes, sir.
THE COURT: The total bill is 150,000. You’ve been
paid 110,000 and you have put 31,000 of your own bucks in
the house in addition to the 110,000 he paid you?
THE WITNESS: Yes.
MR. CONGER: And it’s our contention that there is
another $8,000 in changes in addition to the 50,000 that have
been already completed.
THE WITNESS: 8,900 some odd dollars. I really don’t
know.
-8-
MR. CONGER: 8,631.
THE COURT: 8,631, in addition, to the 31,000?
MR. CONGER: Yes, sir.
THE COURT: As a result of changes?
MR. CONGER: Request by Perry. Let me just go ahead
and introduce --
THE COURT: Initiated by the plaintiff?
MR. CONGER: A summary of those changes there.
THE COURT: This will be Exhibit Number 18. It’s
already been entered.
MR. CONGER: Yes. And when you see that change
order summary you’ll notice that there was actually $12,000
in changes but with credits given for the fireplace and the
vacuuming system there was $8,600.
THE COURT: That totals $39,631, assuming your
31,000.
MR. CONGER: No, the 31,000 is all we’re asking for.
$31,000, plus we think that we’re due interest on that, but
$31,000 is what we’re out-of-pocket. What we’re saying is
that the contract price, 150,000 contract price should be
increased to $158,631.00, because there’s 8,600 in changes
over and above the $150,000 contract price.
THE COURT: So the only thing that you insist is
$31,000?
MR. CONGER: And $500.
THE COURT: To pay that out of his pocket?
MR. CONGER: Yeah.
THE COURT: And that’s all you insist here today?
THE WITNESS: Yes, sir. Well, there’s the tile.
THE COURT: Yeah, we’ve got to work that out.
MR. CONGER: Well, yeah. That lady has not been
paid. If we owe it, then it’s whatever her figure was in
addition.
THE COURT: $4,400. Okay. Let’s see if we can
figure right here and we’ll take a few minute break. $150,000
for the total contract price. 110,000 has been paid to the
defendant actually. And then plus 8,600 in changes brought
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about or initiated by the landowner would increase this there.
The full contract price is $158,631. All you insist that you
want is your 31,000 paid out of your pocket and this
gentleman, the plaintiff, says that it cost him 62,000 to fix this
place up, to finish it all. So we’re faced with two figures
which you say you’re entitled to and he says he’s entitled to
62,000, you say that as well.
MR. CONGER: The 62,000, Judge, he’s only paid out
a 110,000.
THE COURT: Uh-huh.
MR. CONGER: Yeah, the rest of the contract. He was
due to pay that any way.
Plaintiff’s claim of $64,265 damages was supported by an estimate of $62,815 from the
insurance adjuster, a $24,500 estimate of a contractor and the testimony of Mr. Perry of $35,084
minus admitted balance of $39,914 due on the agreed base price of construction.
Defendant’s evidence supporting the findings and judgment of the Trial Judge included
testimony of defendant of the changes ordered by plaintiffs, the testimony of an architect as to
the nature of the plans and specifications and the testimony of a contractor as to the acceptable
quality of the work performed by defendant. Defendant identified a “Change Order Summary”
statement summarizing his version of charges and credits indicating $8,631.67 now due
defendant for changes agreed upon by the parties. A copy of said statement is appended to this
opinion as Exhibit 18.
The factual findings of the Trial Court include the following:
1. The parties agreed upon the construction of the house from a “generic” (or
general) plan.
2. Plaintiffs did authorize or order several changes in the plan which increased the
agreed cost of construction $15,508.00.
3. Most of the delays were caused by the plaintiffs.
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4. The balance due upon the original contract price was $30,551.00, plus the
$15,508.00 for changes, making a total of $46,059.00.
5. The cost of correcting faulty workmanship was approximately $4,453.00.
The evidence supporting a $15,508.00 increase in the contract for changed or additional
construction appears to be uncontroverted.
No specific evidence is found to support the findings of the Trial Court that the cost to
plaintiffs of correcting faulty construction was “approximately the same amount” as the bill of
the carpet supplier ($4,453.00). It does appear from the record that part of the tile and carpet
charge was an “allowance” to be furnished by the contractor without extra charge. This being
true, the contractor should be required to pay $3,200.00 of the tile carpet bill as part of his
expense of performing his original undertaking.
Mr. Van Hise testified in detail about the reasonable cost of correcting defects and
completing the contract. His estimate of the total amount due plaintiff for completing the
incomplete construction was $2,988.00.
The cross-complaint of the tile and carpet company states:
2. That in connection with his business the
defendants contacted the plaintiff with regard to ordering and
installing tile and carpeting in a new home which is owned by
the defendants, Roger Perry, and wife Doris Perry and which
is being constructed by the defendants, Donald Van Hise
Construction Company.
3. That, in connection with this order, the
plaintiff purchased certain tile and installed it in the home in
question thus causing Perry and/or Van Hise being indebted
in the amount of $4,453.49 to the plaintiff. In addition to the
above stated materials and labor, certain orders were placed
for 97 yards of carpet with the accompanying pad and with
the necessary labor to install the same totaling the amount of
$2,232.94. While the above stated tile has been installed, the
carpet and pad ordered by the defendants remains at the
plaintiff’s store because of the controversy in this case.
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4. That the defendant, Perry and/or Van Hise are
indebted to the plaintiff in the amount of $6,686.43 for
materials and labor as set out above.
Wherefore plaintiff sues the defendants, each of them
for the sum of $6,686.43 plus interest and attorney fees.
The answer of the contractor to the cross-complaint was:
Come now the defendants, Donald Van Hise and
Josephine Van Hise, individually, and d/b/a Van Hise
Construction Company, and for answer to the complaint filed
by Ralph Griffith, d/b/a Ole South Carpets and Furniture, and
say:
1. Admitted.
2. These defendants deny that they contracted
with the third-party plaintiff with regard to ordering and
installing tile and carpeting in the home of Roger and Doris
Perry.
3. These defendants are informed and believe that
the third-party plaintiff furnished and installed tile in the
home of Roger and Doris Perry and that the Perrys placed
orders for carpeting from the third-party plaintiff; however,
these defendants deny that they placed orders with the third-
party plaintiff.
4. These defendants deny that they are indebted
to third-party plaintiff in any amount.
During oral argument, counsel for the tile and carpet supplier stated:
He was allowed $3,200 in allowance for carpeting and
tile. -- The contractor contacted my client --- and sent the
Perrys over to pick out what they wanted within this
allowance. --- he asked for $6,000.
Also during oral argument to this Court, counsel for defendants stated:
Any way you arrive at it, it ought to be about
$35,000, yeah, around $35,000. That’s what it ought to be.
Specific evidence is not found in the record to support the amount awarded to the
defendants by the Trial Court. However, the above quoted statement of counsel for defendants
to the Trial Court and this Court are deemed valid evidence which limits the amount to be
awarded. Hooper v. Rhea, Tenn. (1885), 3 Shannon Tenn. Cas. 145; Gates v. Brinkley, 72
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Tenn., 4 Lea 710 (1880); Turley v. Cooley, 3 Tenn. Cas. 68 (1979); Hammon v. Miller, 13 Tenn.
App. 458 (1931); Continental Ins. Co. v. Smith, 3 Tenn., 3 Higgins 161 (1912).
In a case heard upon oral evidence without a jury, the judgment of the Trial Judge as to
credibility of witnesses is entitled to great weight on appeal. Royal Ins. Co. v. Alliance Ins. Co.,
Tenn. App. 1985, 690 S.W.2d 568; Capital City Bank v. Baker, 59 Tenn. App. 477, 442 S.W.2d
259 (1969).
This Court finds no grounds upon which to disturb the finding of the Trial Court as to
credibility of witnesses.
The defendants’ answer denied the existence of a partnership. The defendant, Don
David Van Hise, testified under oath that he was the contractor in this case, and the sworn
counter-claim also denies the alleged partnership. There is no other evidence on the subject.
Therefore the judgment should not be in favor of Josephine Van Hise.
The non jury judgment of the Trial Court is reviewed by this Court de novo upon the
record with a presumption of correctness unless the evidence preponderates otherwise. TRAP
Rule 13(d). Except as above stated, the evidence does not preponderate otherwise.
This Court finds that the evidence supports the following findings and result:
Original agreed price of contract ..................................... $149,000.00
Changes required by buyers ............................................. 15,508.00
Total contract price .......................................................... $164,508.00
Paid by purchasers ........................................ $110,000.00
Cost of completion ....................................... 27,600.00
Credits due purchasers $137,600.00
Balance due on contract ................................................... $ 26,908.00
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Liability of contractor to tile-floor dealer
for actual deliveries .................................. $ 4,453.00
Allowance in general contract ...................... 3,200.00
Liability of contractor in excess of
allowance .................................................................. $ 1,253.00
Total due contractor from plaintiffs .............................. $ 28,161.00
The foregoing requires the defendant-contractor to pay the $4,453.00 awarded to the
intervenor and requires the plaintiffs to pay $28,161.00 to the defendant-contractor.
The judgment of the Trial Court is modified to delete the name of Josephine Van Hise
as counter-plaintiff, to award judgment in favor of Donald Van Hise against the plaintiffs for
$28,161.00, and to award judgment in favor of the intervenor, Ralph Griffin and against Donald
Van Hise in the amount of $4,453.00. As modified, the judgment of the Trial Court is affirmed.
The request for adjudication of frivolous appeal is denied. Costs of this appeal are assessed
equally, that is, one half of the costs will be paid by the plaintiffs and the other half will be paid
by Donald Van Hise. The cause is remanded to the Trial Court for entry of judgment in
conformity with this opinion and other necessary procedures.
MODIFIED, AFFIRMED AND REMANDED
___________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WALTER W. BUSSART, JUDGE
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