IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-23
Filed 6 August 2024
Franklin County, No. 21 CVS 470
SANDRA CHAPPELL, ADMINISTRATOR OF THE ESTATE OF SUSAN RENEE CHAPPELL (deceased), Plaintiff,
v.
SHEMARO DEANN WEBB and LADOROTHY BREANNA FOREMAN, Defendants.
Appeal by defendants from judgment entered 28 April 2023 by Judge Cynthia
K. Sturges in Franklin County Superior Court. Heard in the Court of Appeals 15
May 2024.
Bennett Guthrie PLLC, by Mitchell H. Blankenship, Rodney A. Guthrie, and Joshua H. Bennett, for defendants-appellants.
White & Stradley, PLLC, by J. David Stradley and Ann C. Ochsner, and Henson Fuerst, P.A., by Thomas Henson, Jr., for plaintiff-appellee.
DILLON, Chief Judge.
This case arises from a tragic two-vehicle accident resulting in the fatality of
the driver of one of the vehicles. At the conclusion of the trial, the estate of the
deceased victim was awarded $40 million in compensatory and punitive damages
from two defendants: the intoxicated driver of the other vehicle and the owner of that
other vehicle. After careful review, we conclude the trial was free from reversible
error and affirm the trial court’s rulings on Defendants’ post-trial motions. CHAPPELL V. WEBB
Opinion of the Court
I. Background
On the evening of 18 September 2020, Defendant Shemaro Deann Webb was
driving a Nissan Altima southbound on US Highway 401 toward Raleigh while under
the influence of alcohol. Defendant LaDorothy Breanna Foreman was a passenger
and owned the Nissan Altima.
On the same highway, Susan Renee Chappell was driving northbound.
At some point, Defendant Webb crossed the center line of the highway while
attempting to pass another southbound vehicle in a no-passing zone. Her vehicle
collided head-on with Ms. Chappell’s vehicle in the northbound lane. Ms. Chappell
died later that night due to injuries sustained in the accident.
Plaintiff Sandra Chappell, as the administrator of Ms. Chapell’s estate,
brought a wrongful death suit against Defendants, seeking to recover damages
pursuant to North Carolina’s wrongful death statutes. Plaintiff alleged that
Defendant Webb was negligent in driving the vehicle and that Defendant Foreman
was negligent by entrusting Defendant Webb with her vehicle.
At the conclusion of the trial, the jury returned verdicts against Defendants.
The jury found Defendants jointly and severally liable for $15 million in
compensatory damages. The jury found the driver Defendant Webb liable for $5
million in punitive damages and the vehicle owner Defendant Foreman liable for $20
million in punitive damages. The trial court entered a judgment consistent with the
verdicts. Defendants moved for post-trial relief from the judgment. Defendant
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Foreman separately moved for a judgment notwithstanding the verdict (“JNOV”).
The trial court denied both motions. Defendants appeal.
II. Analysis
On appeal, Defendant Foreman argues that the trial court erred in denying
her motion for JNOV. And both Defendants argue that the trial court erred in
denying their other post-trial motions for relief from the large jury verdicts. We
address each argument in turn.
A. Negligent Entrustment Claim & Motion for JNOV
We first address the vehicle owner Defendant Foreman’s argument that she
was entitled to JNOV. She contends Plaintiff did not present sufficient evidence to
prove negligent entrustment. Alternatively, she contends that, even if there was
sufficient evidence to show she was liable for negligent entrustment, there was
insufficient evidence warranting an award of punitive damages against her.
Whether a party is entitled to a motion for JNOV is a question of law, which
we review de novo. Est. of Savino v. Charlotte-Mecklenburg Hosp. Auth., 375 N.C.
288, 293, 847 S.E.2d 677, 681 (2020). As our Supreme Court has instructed:
In making its determination of whether to grant the motion, the trial court must examine all of the evidence in a light most favorable to the nonmoving party, and the nonmoving party must be given the benefit of all reasonable inferences that may be drawn from that evidence. If, after undertaking such an analysis of the evidence, the trial judge finds that there is evidence to support each element of the nonmoving party’s cause of action, then the motion for [JNOV] should be denied.
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Abels v. Renfro Corp., 335 N.C. 209, 214–15, 436 S.E.2d 822, 825 (1993) (internal
marks omitted).
Here, Defendant Foreman contends Plaintiff failed to prove her negligent
entrustment claim. Our Supreme Court has explained that to prove negligent
entrustment, the plaintiff must show two things, namely that (1) the defendant car
owner entrusted her car to another and (2) the car owner knew or reasonably should
have known the other person was in a condition where she was likely to cause injury
to others in her driving:
Negligent entrustment is established when the owner of an automobile entrusts its operation to a person whom he knows, or by the exercise of due care should have known, to be an incompetent or reckless driver, who is likely to cause injury to others in its use. Based on his own negligence, the owner is liable for any resulting injury or damage proximately caused by the borrower’s negligence.
Tart v. Martin, 353 N.C. 252, 254, 540 S.E.2d 332, 334 (2000) (internal citations and
marks omitted). The entrustment element “requires consent from the defendant,
either express or implied, for the third party to use the instrumentality in question.”
Bridges v. Parrish, 222 N.C. App. 320, 327, 731 S.E.2d 262, 267 (2012) (emphasis
added), aff’d, 366 N.C. 539, 540, 742 S.E.2d 794, 796 (2013).
Regarding the entrustment element, Defendant Foreman suggests that
Plaintiff must show more than that Defendant Foreman simply consented to allowing
Defendant Webb to drive her car: Plaintiff must show that Defendant Foreman
voluntarily delivered possession of her vehicle to Defendant Webb. Defendant
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Foreman cites to North Carolina Pattern Jury Instruction 102.68, which the trial
court gave to the jury and which includes a requirement that the jury find that a
negligent entruster “voluntarily gave possession” of her motor vehicle to the driver.1
Our Supreme Court’s jurisprudence, however, does not suggest that there is a
heightened burden beyond that the owner consented, either expressed or implied, to
allowing one she knew or should have known to be incompetent/reckless to drive her
car. See Bridges, 222 N.C. App. at 327, 731 S.E.2d at 267 (holding that a plaintiff
show the defendant-owner gave express or implied consent); Swicegood v. Cooper, 341
N.C. 178, 179, 459 S.E.2d 206, 206 (1995) (holding that the entrustment element is
met where it is shown the owner “had given [the driver] permission to drive the
automobile”). See also State v. Warren, 348 N.C. 80, 119, 499 S.E.2d 431, 453 (1998)
(recognizing that a “pattern jury instruction . . . has neither the force nor the effect of
law[.]”).
We conclude that the issue of Defendant Foreman’s negligent entrustment was
properly given to the jury. In so holding, we note that in answering Plaintiff’s
complaint, Defendant Foreman admitted that Defendant Webb drove her vehicle
“with [her] express knowledge, express consent, and express authorization[.]” See
Champion v. Waller, 268 N.C. 426, 428, 150 S.E.2d 783, 785 (1966) (“Facts alleged in
the complaint and admitted in the answer are conclusively established by the
1 N.C.P.I. Civil 102.68 is titled “Negligence of Owner Entrusting Motor Vehicle to Incompetent,
Careless or Reckless Person.”
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admission, it not being necessary to introduce such allegations in evidence.”). In
other words, there is no requirement that a plaintiff provide proof that the entruster
handed the keys to the driver but rather merely that the entruster at least impliedly
consented to the driver driving her car.
We further note that our General Assembly has provided that evidence of
vehicle ownership (here, Defendant Foreman’s ownership of the vehicle) is “prima
facie evidence” that the driver (here, Defendant Webb) was driving the vehicle with
the owner’s consent and knowledge:
In all actions to recover damages for . . . the death of a person, arising out of an accident or collision involving a motor vehicle, proof of ownership of such motor vehicle at the time of such accident or collision shall be prima facie evidence that said motor vehicle was being operated and used with the authority, consent, and knowledge of the owner in the very transaction out of which said injury or cause of action arose.
N.C. Gen. Stat. § 20-71.1(a) (2023).
Finally, we note there was sufficient evidence offered from which the jury could
infer that Defendant Foreman entrusted her vehicle to Defendant Webb. Indeed, the
evidence showed that Defendant Webb was in the backseat of the vehicle sometime
prior to the accident but that at some point prior to the accident she became the driver
while Defendant Foreman came to be in the backseat.
Accordingly, the trial court did not err in denying Defendant Foreman’s motion
for JNOV.
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B. Amount of Damages/Motion for New Trial
Defendants jointly make arguments concerning the amount of compensatory
and punitive damages awarded by the jury.
First, Defendants contend that the trial court abused its discretion in denying
Defendants’ request for a new trial. Rule 59 of our Rules of Civil Procedure allows
the trial court to grant a new trial on the grounds that “excessive or inadequate
damages appear[ ] to have been given under the influence of passion or prejudice” or
“insufficiency of the evidence to justify the verdict or that the verdict is contrary to
law[.]” N.C. Gen. Stat. § 1A-1, Rule 59(a)(6)–(7) (2023).
We review a trial court’s refusal to grant a new trial based on an argument
that the damages awarded were excessive for an abuse of discretion:
It has been long settled in our jurisdiction that an appellate court’s review of a trial judge’s discretionary ruling either granting or denying a motion to set aside a verdict and order a new trial is strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the judge.
Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982). “[A]n appellate
court should not disturb a discretionary Rule 59 order unless it is reasonably
convinced by the cold record that the trial judge’s ruling probably amounted to a
substantial miscarriage of justice.” Id. at 487, 290 S.E.2d at 605.
Defendants argue that the awards must have been the result of passion or
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prejudice because “[c]ases with similar evidence have produced verdicts several
orders of magnitude lower.” Indeed, the $40,000,000 total verdict appears to be the
largest drunk driving verdict in North Carolina history.
In analyzing the verdict, we consider the compensatory and punitive awards
separately.
The jury awarded $15 million in compensatory damages.
Defendants direct us to a federal defamation case arising out of North Carolina
that was heard in the Fourth Circuit: Eshelman v. Puma Biotechnology, Inc. 2 F.4th
276 (2021). In Eshelman, the Fourth Circuit concluded that the trial court abused its
discretion in denying the defendant’s motion for a new trial. Id. at 285. The court
held that “the jury awarded excessive damages that the evidence could not justify.”
Id. at 283. In determining that the damages were excessive, the court compared the
case’s damages award to the damages awarded in similar defamation cases, noting
that “[o]ne would expect ample evidence of the harm suffered by [the plaintiff] to
support a jury award ten times the size of the largest defamation awards in North
Carolina history.” Id.
Defendants ask us to employ Eshelman’s “damages norm” test to determine if
the verdict here was excessive when compared to the evidence presented and the
typical damages awarded in these cases. Defendants point to other wrongful death
cases in which the plaintiffs presented more evidence than presented here, but where
the verdict total was much lower than the verdict total here. See, e.g., Haarhuis v.
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Cheek, 255 N.C. App. 471, 805 S.E.2d 720 (2017) ($4.25 million compensatory
damages award for drunk driving incident); Boyd v. L.G. DeWitt Trucking Co., Inc.,
103 N.C. App. 396, 405 S.E.2d 914 (1991) ($869,200 compensatory damages award
for drunk driving incident). Defendants argue that a comparison of this case to other
similar cases demonstrates that the compensatory damages award here was the
influence of passion and prejudice.
Our Supreme Court, however, has previously disapproved of the
implementation of a test similar to Defendants’ proposed “damages norm” test:
It would serve no purpose to engage in a great debate over the various policies which might or might not favor the adoption of a specific standard to evaluate and limit a trial judge’s discretionary power to grant a new trial if he believes the jury has awarded inadequate or excessive damages. It suffices to say that the overwhelming precedent of this court discloses no compelling reason or need for the implementation of such a rule in North Carolina. Moreover, we are not persuaded that the appellate use of a vague test to measure the “reasonable range” of a given verdict’s amount would provide a more effective, consistent or precise method of determining whether a trial judge has exceeded the bounds of discretion in the grant or denial of a new trial.
Worthington, 305 N.C. at 485, 290 S.E.2d at 604 (cleaned up). Accordingly, we cannot
adopt such a test.
Further, we note the federal case applying North Carolina law cited by
Plaintiff, where a $32.7 million compensatory damages award in a wrongful death
action was sustained though there was a lack of evidence concerning the economic
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damages suffered. See Finch v. Covil Corp., 972 F.3d 507, 516–18 (4th Cir. 2020)
(applying North Carolina law and upholding the jury verdict).
And though Plaintiff did not present evidence of Ms. Chappell’s anticipated
future income nor of her medical and funeral expenses, Plaintiff did present other
evidence to justify a compensatory award.
For instance, there was evidence concerning the pain and suffering Ms.
Chappell suffered during the last hour of her life. She suffered numerous bodily
injuries, including multiple open fractures (bones protruding through her skin); she
was conscious and experiencing pain while trapped in her vehicle (extrication by
firefighters took approximately thirty minutes) and for part of the ambulance ride;
she suffered from respiratory distress and repeatedly expressed an inability to
breathe, which would have been “extremely terrifying,” “panic inducing,” and caused
“an impending sense of doom”; and she suffered a traumatic cardiac arrest in the
ambulance en route to the hospital.
Also, Plaintiff presented evidence of Ms. Chappell’s family’s loss, particularly
the loss suffered by her two children. The jury was free to award damages based on
this evidence. Our Supreme Court has instructed that the award is not limited to
“income-focused measure[s] of damages” as may have been the case in the distant
past, but may be based on services, society, and companionship, including victims
who may not have produced an income, like “a child, homemaker or handicapped
person.” DiDonato v. Wortman, 320 N.C. 423, 429, 358 S.E.2d 489, 492 (1987).
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Our Court has previously stated that the size of the award itself cannot
establish that the jury was influenced by passion or prejudice. See Everhart v.
O’Charley’s Inc., 200 N.C. App. 142, 161, 683 S.E.2d 728, 742 (2009). Moreover,
[t]he present monetary value of the decedent to the persons entitled to receive the damages recovered will usually defy any precise mathematical computation. Therefore, the assessment of damages must, to a large extent, be left to the good sense and fair judgment of the jury—subject, of course, to the discretionary power of the judge to set its verdict aside when, in his opinion, equity and justice so require.
Brown v. Moore, 286 N.C. 664, 673, 213 S.E.2d 342, 248–49 (1975) (citations omitted).
The structure of the trial itself in this case cuts against Defendants’ argument
that the jury was influenced by passion or prejudice (in determining the
compensatory damages award). The trial was not bifurcated. Rather, this jury was
responsible for awarding both compensatory and punitive damages during one stage.
Thus, the jury knew it would have the opportunity to punish Defendants with its
punitive damages award and, therefore, would not need to (inappropriately) punish
Defendants with its compensatory damages award.
To be sure, to some people, and perhaps even to some judges, a compensatory
damages award of $15 million based on a death involving less than an hour of
suffering and where no “economic damages” evidence was introduced is excessive.
However, based on the foregoing, our review of the record, and the relevant case law,
we cannot say that the trial court abused its discretion in refusing to set aside the
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compensatory damages award and grant a new trial on that issue. See Justus v.
Rosner, 371 N.C. 818, 832, 821 S.E.2d 765, 774 (2018) (“[T]he plain language of [Rule
59] states explicitly that . . . the only relief that the trial court may award to plaintiff
[based on an excessive or inadequate compensatory damage award] is a new trial.”).
We also disagree with Defendants’ arguments concerning Plaintiff’s counsel’s
alleged “repeated inflammatory statements” as evidence that the jury awarded high
damages under the influence of passion or prejudice.
Defendants failed to object at trial to any statement made during Plaintiff’s
opening statement and closing argument that they now contest on appeal. Thus, we
review only whether the trial court committed reversible error by failing to intervene
ex mero motu because the argument “strayed far enough from the parameters of
propriety that the trial court, in order to protect the rights of the parties and the
sanctity of the proceedings, should have intervened on its own accord[.]” State v.
Huey, 370 N.C. 174, 179, 804 S.E.2d 464, 469 (2017) (citations omitted). See also
State v. Gladden, 315 N.C. 398, 417, 340 S.E.2d 673, 685 (1986) (extending this
standard of review to opening statements where no timely objection was made).
Defendants take issue with the opening statement, in which Plaintiff’s counsel
stated, “Four hundred and twelve. That is how many North Carolina citizens are
slaughtered every year by drunk drivers on our highways.” Defendants also contest
counsel’s statement that “if it wasn’t [Ms. Chappell], it could have been anybody.”
Here, we conclude these statements did not exceed the “wide latitude” afforded
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to trial counsel during opening statements. See Gladden, 315 N.C. at 417, 340 S.E.2d
at 685 (“Trial counsel is generally afforded wide latitude in the scope of the opening
statement and is generally allowed to state what he intends to show so long as the
matter may be proved by admissible evidence.”). Perhaps these statements are some
evidence that the jury’s verdict was based, at least in part, on passion and prejudice
rather than on the evidence. However, we cannot say that the trial court abused its
discretion in not making that determination based on the record before us.
The jury awarded Plaintiff $25 million in punitive damages.
We hold that that trial court did not err in failing to disturb the jury’s finding
Defendants liable for punitive damages or for the amounts awarded.
First, the evidence presented supports the jury’s finding of liability with
respect to both Defendants, as explained below.
Our General Assembly has provided that “[p]unitive damages may be awarded
. . . to punish a defendant for egregiously wrongful acts and to deter the defendant
and others from committing similar wrongful acts.” N.C. Gen. Stat. § 1D-1 (emphasis
added). That body has further provided that punitive damages may be awarded
where it has been proven that a defendant “is liable for compensatory damages” and
that the defendant engaged in “willful or wanton conduct” by “clear and convincing
evidence.” Id. § 1D-15.
Defendant Foreman argues that the issue of punitive damages based on her
negligent entrustment should not have been presented to the jury. Specifically,
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Defendant argues that the evidence presented at trial did not prove by clear and
convincing evidence that Defendant Foreman knew Defendant Webb was drunk when
she allowed Webb to drive her vehicle. We disagree. Rather, we conclude there was
evidence from which the jury could infer that Defendant Foreman knew Defendant
Webb was drunk and that Defendant Foreman acted wantonly or willfully in
negligently entrusting the vehicle to Defendant Webb.
For instance, a trooper who investigated the accident testified that she
observed open beer cans outside and inside the Nissan Altima and smelled a strong
odor of alcohol before even sticking her head inside the vehicle. An expert in blood
alcohol physiology, pharmacology, and the effects of alcohol on human performance
and behavior testified that, in his opinion, Defendant Webb was “significantly
impaired, to the point of being intoxicated” at the time of the wreck and would have
shown “very obvious signs of intoxication” at the time of the wreck and in the fifteen
to twenty minutes prior to the wreck, such as slurred speech and difficulty in
locomoting (e.g., walking, picking up items, standing upright). Defendant Webb
herself testified regarding how much she drank and admitted to smoking marijuana
as well, much of which was consumed in Defendant Foreman’s presence. Also, there
was evidence that in 2016, five years prior to the accident, Defendant Webb had been
pulled over and cited for drunk driving (to which she pleaded guilty) while driving
Defendant Foreman’s vehicle and while Defendant Foreman was a passenger.
And there is no question that there was sufficient evidence to show Defendant
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Webb’s liability for punitive damages. She drove the vehicle in an impaired state
after consuming a large amount of alcohol.
Second, regarding the amount of the punitive damages awarded, we note that
our General Assembly has not placed a cap on such awards where the conduct
involves impaired driving. See N.C. Gen. Stat. § 1D-26. In any event, the awards in
this case total $25,000,000 and do not exceed the statutory limit of three times the
the compensatory damages award for cases generally. See N.C. Gen. Stat. § 1D-25(b).
In setting the amount, the jury must consider the purposes contained in
Section 1D-1 and may consider other matters set forth in Section 1D-35. See N.C.
Gen. Stat. §§ 1D-1, 1D-35.
The evidence offered here showed that punishing these Defendants was
appropriate since they had engaged in similar drunk driving/negligent entrustment
conduct before, as shown by the 2016 drunk driving incident. This evidence supports
a determination that a punitive damages award may be necessary to deter others as
well as these Defendants from engaging in similar conduct in the future.
As to the factors which may be considered by the jury, evidence showed that
Defendants’ conduct was “reprehensib[le,]” as the conduct involved drunk driving and
allowing one obviously impaired to drive; that there was a “likelihood . . . of serious
harm”; that Defendants had an “awareness of the probable consequences of [their]
conduct,” based on the 2016 drunk driving incident and a common sense
understanding that one should not drive while impaired; that Defendants had
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engaged in “similar past conduct” based on the 2016 incident; that “the duration of
[Defendants’] conduct was not momentary, but rather, they had been drinking for
several hours prior to driving; that “[t]he actual damages suffered” by Ms. Chappell
were high, as she lost her life; and that Defendant Foreman “conceal[ed]” her
culpability by never admitting she bore any blame. See N.C. Gen. Stat. § 1D-35(2).
Defendants take issue with a statement made by Plaintiff’s counsel during
closing, urging the jury to “speak loud” with their verdict:
The size of your verdict is the volume with which you speak. A million dollars? That won’t carry out those doors back there. A few million dollars might be heard at the town limits, but if you want your voices to be heard in Raleigh, and Durham, and Oxford, and Smithfield, or across the state, or across the nation, you’re going to have to speak louder.
Here, counsel’s statement was limited to punitive damages. We conclude that this
statement did not cross the line. The jury is entitled to “speak loud” with its punitive
damages award by sending a message of deterrence to people who consider drunk
driving or negligently entrusting a vehicle to a drunk driver. See N.C. Gen. Stat. §
1D-1 (“Punitive damages may be awarded . . . to deter the defendant and others from
committing similar wrongful acts.”). And again, we cannot say that the trial court
erred by not disturbing the punitive awards of the jury based on the record before us.
Finally, Defendant Foreman argues that her liability for punitive damages
($20 million) is disproportionately higher than that of the driver Defendant Webb ($5
million). However, there are several possible reasons why Defendant Foreman’s
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punitive damages are four times the amount of Defendant Webb’s. For instance,
Defendant Webb pleaded guilty to criminal charges arising from this accident and is
currently serving a term of imprisonment for thirteen to sixteen years, whereas
Defendant Foreman was not criminally punished. Additionally, Defendant Webb
expressed some remorse during her testimony, whereas Defendant Foreman did not
take any responsibility. We, therefore, cannot say the jury’s awards were unlawful.2
III. Conclusion
Defendants received a fair trial. There was sufficient evidence presented to
submit the issues of liability for compensatory and punitive damages to both
Defendants. The jury rendered its verdict. The trial court did not err by denying
Defendant Foreman’s motion for JNOV and it did not abuse its discretion by denying
Defendants’ motion for a new trial.
AFFIRMED.
Judges ARROWOOD and STADING concur.
2 We note that the United States Supreme Court has held that punitive damages awards
implicate Due Process concerns. See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 429 (2003); Lacey v. Kirk, 238 N.C. App. 376, 395, 767 S.E.2d 632, 646 (2014). However, Defendants made no express argument as to how the award violated their Due Process rights; and, therefore, we do not consider any such argument.
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