ACCEPTED 03-14-00738-CV 4871792 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/13/2015 5:29:40 PM JEFFREY D. KYLE CLERK
RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS April 13, 2015 4/13/2015 5:29:40 PM JEFFREY D. KYLE Via e-file Clerk Amalia Rodriguez-Mendoza Travis County District Clerk P.O. Box 679003 Austin, TX 78767-9003
Re: Request to supplement Clerk’s Record RLJ II-C Austin Air, LP; RLJ II-C Austin Air Lessee, LP; RLJ Lodging Fund II Acquisitions, LLC v. Elness, Swenson, Graham Architects, Inc., et. al. Cause No. D-1-GN-10-002325 in the 200th District Court of Travis County, Texas
Dear Ms. Rodriguez-Mendoza:
Plaintiffs, RLJ II-C Austin Air, LP, RLJ II-C Austin Air Lessee, LP and RJL Lodging Fund II Acquisitions, LLC (collectively, “Plaintiffs”), have appealed by way of cross-appeal the above case to the Court of Appeals for the Third District of Texas at Austin.
On December 15, 2014, Plaintiffs e-filed an amended and supplemental designation of the Clerk’s Record. Plaintiffs believe that one of the documents requested, Plaintiffs’ Response to Defendants’ Motion to Strike the Expert Testimony of Paul Hornsby, filed on April 25, 2014, was inadvertently omitted from the Clerk’s Record when transferred to the Third Court of Appeals.
Plaintiffs’ December 15, 2014 request, as well as the attached docket sheet indicating the pleading to be included in the Clerk’s Record, are attached hereto. Note that the request for the inclusion of Plaintiffs’ Response to Defendants’ Motion to Strike the Expert Testimony of Paul Hornsby to be included in the Clerk’s Record is on the last page of the December 15, 2014 letter.
Plaintiffs stand ready to pay you in advance for the preparation of the supplemental Clerk’s Record upon your advice of the amount, or to make whatever deposit your office requires for the preparation of the supplemental Clerk’s Record.
Therefore, please include the following in the supplemental Clerk’s Record:
1. PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO STRIKE THE EXPERT TESTIMONY OF PAUL HORNSBY, filed April 25, 2014; and
2. A copy of this letter. April 13, 2015 Page 2
If you have any questions or concerns or if I may be of any assistance to you in the preparation of the supplemental Clerk’s Record, please do not hesitate to let me know.
Thanking you for your attention to this matter.
Very truly yours,
/s/ Michael W. Huddleston
Michael W. Huddleston
cc: Via e-file Gregory N. Ziegler Weston M. Davis MacDonald Devin, P.C. 3800 Renaissance Tower 1201 Elm Street Dallas, TX 75270-2130 gziegler@macdonalddevin.com wdavis@macdonalddevin.com
Via email Elizabeth Medina elizabeth.medina@traviscountytx.gov
Via U.S. Mail Mr. Albert Alvarez, Court Reporter 345th Civil District Court P.O. Box 1748 Austin, Texas 78767
Via e-file Third Court of Appeals 12/15/2014 4:13:49 PM Amalia Rodriguez-Mendoza District Clerk son Nlfrmfis;Gounty MUNSCH HARDT KOPF & HARR PC DaH:.$ R,~~s~~~-g~g~2325 ATTORNEYS & COUNSElORS
DALLAS I HOUSTON ! AUSTIN
December 15, 2014
Amalia Rodriguez-Mendoza (viae-filing) Travis County District Clerk P.O. Box 679003 Austin, TX 78767-9003
Re: Designation of documents to be included in the Clerk's Record in RLJ II-C Austin Air, LP; RLJ II-C Austin Air Lessee, LP; RLJ Lodging Fund II Acquisitions, LLC v. Elness, Swenson, Graham Architects, Inc., et. al. Cause No. D-1-GN-10-002325 in the 200th District Court of Travis County, Texas
Dear Ms. Rodriguez-Mendoza:
This letter amends and supplements the designation of the Clerk's Record filed by Plaintiffs on November 25, 2014. Additionally, please see the attached Docket Sheet with all requests clearly marked.
Plaintiffs, RLJ II-C Austin Air, LP, RLJ II-C Austin Air Lessee, LP and RJL Lodging Fund II Acquisitions, LLC (collectively, "Plaintiffs"), are appealing by way of cross-appeal the above case to the Court of Appeals for the Third District of Texas at Austin. Defendant Elness, Swenson, Graham Architects, Inc. ("Defendant") filed its Notice of Appeal on November 12, 2014. Plaintiffs filed their cross notice of appeal pursuant to Texas Rule of Appellate Procedure 25.1(a) and 26.1(d) on Tuesday, November 25, 2014.
Plaintiffs stand ready to pay you in advance for the preparation of the Clerk's Record upon your advice of the amount or to make whatever deposit your office requires for the preparation of the Clerk's Record.
Pursuant to Texas Rule of Appellate Procedure 34.5(a) and (b), Plaintiffs request that, in addition to any other document required by the Texas Rules of Appellate Procedure, the following documents be included in the Clerk's Record:
Amended Request to Correct Errors Concerning Title of Documents and/or Dates Filed:
1. PLAINTIFFS' SEVENTH AMENDED ORIGINAL PETITION, filed on February 18, 2014.
2109 December 15, 2014 Page2
2. ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S SECOND AMENDED ANSWER AND ORIGINAL COUNTERCLAIM FOR DECLARATORY JUDGMENT, filed on October 1, 2012.
3. PLAINTIFFS' OBJECTION TO THE REPORT AND TESTIMONY OF, AND MOTION TO EXCLUDE ESG'S DESIGNATED EXPERT GRANT A. SIMPSON, filed on April 7, 2014.
4. BUSINESS RECORDS AFFIDAVIT, filed April21, 2014.
5. PLAINTIFFS' MOTION TO COMPEL RESPONSIVE DOCUMENTS FROM ESG, filed April24, 2014.
6. PLAINTIFFS' MOTION IN LIMINE, filed April25, 2014.
7. LETTER FROM WDGE YELENOSKY REGARDING MOTIONS IN LIMINE, filed May 1, 2014.
8. ORDER REGARDING MOTIONS TO STRIKE EXPERT TESTIMONY, filed May 1, 2014.
9. PLAINTIFFS' SUPPLEMENTAL MOTION TO STRIKE THE EXPERT TESTIMONY OF TIM WESTON, filed May 5, 2014.
10. PLAINTIFFS' MOTION IN LIMINE, filed May 5, 2014.
11. PLAINTIFFS' MOTION FOR LEAVE TO AMEND THEIR DESIGNATION OF WITNESSES FOR TRIAL, filed May 12,2014.
12. PLAINTIFFS' FIRST AMENDED PROPOSED WRY INSTRUCTIONS, DEFINITIONS AND QUESTIONS, filed May 13, 2014.
13. INSTRUCTION- SIGNED BY JUDGE YELENOSKY, filed May 16, 2014.
14. QUESTION, filed May 16, 2014.
15. JURY'S QUESTION FORMS, filed May 16, 2014.
16. CHARGE OF THE COURT, filed May 16, 2014.
17. OBJECTIONS TO DEFENDANT'S DESIGNATIONS, filed May 16, 2014.
18. PLAINTIFFS' OBJECTIONS AND COUNTER-DESIGNATIONS TO CROSS DESIGNATIONS OF PAGE AND LINE TESTIMONY, filed May 16,2014.
19. JURY'S QUESTION FORMS, filed May 15, 2014.
2110 December 15, 2014 Page 3
20. PLAINTIFFS' RESPONSE TO ESG'S MOTION FOR APPLICATION OF SETTLEMENT CREDIT, filed June 2, 2014.
21. LETTER FROM JUDGE YELENOSKY ON SETTLEMENT CREDIT, filed June 13, 2014.
22. PLAINTIFFS' AMENDED MOTION FOR ATTORNEYS' FEES AND COSTS, filed July 3, 2014.
23. PLAINTIFFS' NOTICE OF SCRIVENER'S ERROR IN AMENDED MOTION FOR ATTORNEYS' FEES AND COSTS, filed July 17, 2014.
24. RLJ'S MOTION FOR WDGMENT AND JUDGMENT NOTWITHSTANDING THE VERDICT ON QUESTION 1, filed July 30, 2014.
25. PLAINTIFFS' AMENDED MOTION FOR RECONSIDERATION IN LIGHT OF FIFTH CIRCUIT'S RECENT GE CAPITAL OPINION, filed August 1, 2014.
26. PLAINTIFFS' RESPONSE TO ESG'S MOTION FOR JUDGMENT AND AFFIDAVIT OF GREG N. ZIEGLER, filed August 5, 2014.
27. PLAINTIFFS' LETTER TO COURT ENCLOSING DRAFT FINAL JUDGMENT, filed August 13, 2014.
28. ORDER DENYING RLJ'S MOTION FOR WDGMENT NOTWITHSTANDING THE VERDICT ON QUESTION 1, filed August 14, 2014.
29. FINAL JUDGMENT, filed August 14, 2014.
30. PLAINTIFF'S MOTION FOR NEW TRIAL, filed September 12,2014.
31.
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ACCEPTED 03-14-00738-CV 4871792 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/13/2015 5:29:40 PM JEFFREY D. KYLE CLERK
RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS April 13, 2015 4/13/2015 5:29:40 PM JEFFREY D. KYLE Via e-file Clerk Amalia Rodriguez-Mendoza Travis County District Clerk P.O. Box 679003 Austin, TX 78767-9003
Re: Request to supplement Clerk’s Record RLJ II-C Austin Air, LP; RLJ II-C Austin Air Lessee, LP; RLJ Lodging Fund II Acquisitions, LLC v. Elness, Swenson, Graham Architects, Inc., et. al. Cause No. D-1-GN-10-002325 in the 200th District Court of Travis County, Texas
Dear Ms. Rodriguez-Mendoza:
Plaintiffs, RLJ II-C Austin Air, LP, RLJ II-C Austin Air Lessee, LP and RJL Lodging Fund II Acquisitions, LLC (collectively, “Plaintiffs”), have appealed by way of cross-appeal the above case to the Court of Appeals for the Third District of Texas at Austin.
On December 15, 2014, Plaintiffs e-filed an amended and supplemental designation of the Clerk’s Record. Plaintiffs believe that one of the documents requested, Plaintiffs’ Response to Defendants’ Motion to Strike the Expert Testimony of Paul Hornsby, filed on April 25, 2014, was inadvertently omitted from the Clerk’s Record when transferred to the Third Court of Appeals.
Plaintiffs’ December 15, 2014 request, as well as the attached docket sheet indicating the pleading to be included in the Clerk’s Record, are attached hereto. Note that the request for the inclusion of Plaintiffs’ Response to Defendants’ Motion to Strike the Expert Testimony of Paul Hornsby to be included in the Clerk’s Record is on the last page of the December 15, 2014 letter.
Plaintiffs stand ready to pay you in advance for the preparation of the supplemental Clerk’s Record upon your advice of the amount, or to make whatever deposit your office requires for the preparation of the supplemental Clerk’s Record.
Therefore, please include the following in the supplemental Clerk’s Record:
1. PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO STRIKE THE EXPERT TESTIMONY OF PAUL HORNSBY, filed April 25, 2014; and
2. A copy of this letter. April 13, 2015 Page 2
If you have any questions or concerns or if I may be of any assistance to you in the preparation of the supplemental Clerk’s Record, please do not hesitate to let me know.
Thanking you for your attention to this matter.
Very truly yours,
/s/ Michael W. Huddleston
Michael W. Huddleston
cc: Via e-file Gregory N. Ziegler Weston M. Davis MacDonald Devin, P.C. 3800 Renaissance Tower 1201 Elm Street Dallas, TX 75270-2130 gziegler@macdonalddevin.com wdavis@macdonalddevin.com
Via email Elizabeth Medina elizabeth.medina@traviscountytx.gov
Via U.S. Mail Mr. Albert Alvarez, Court Reporter 345th Civil District Court P.O. Box 1748 Austin, Texas 78767
Via e-file Third Court of Appeals 12/15/2014 4:13:49 PM Amalia Rodriguez-Mendoza District Clerk son Nlfrmfis;Gounty MUNSCH HARDT KOPF & HARR PC DaH:.$ R,~~s~~~-g~g~2325 ATTORNEYS & COUNSElORS
DALLAS I HOUSTON ! AUSTIN
December 15, 2014
Amalia Rodriguez-Mendoza (viae-filing) Travis County District Clerk P.O. Box 679003 Austin, TX 78767-9003
Re: Designation of documents to be included in the Clerk's Record in RLJ II-C Austin Air, LP; RLJ II-C Austin Air Lessee, LP; RLJ Lodging Fund II Acquisitions, LLC v. Elness, Swenson, Graham Architects, Inc., et. al. Cause No. D-1-GN-10-002325 in the 200th District Court of Travis County, Texas
Dear Ms. Rodriguez-Mendoza:
This letter amends and supplements the designation of the Clerk's Record filed by Plaintiffs on November 25, 2014. Additionally, please see the attached Docket Sheet with all requests clearly marked.
Plaintiffs, RLJ II-C Austin Air, LP, RLJ II-C Austin Air Lessee, LP and RJL Lodging Fund II Acquisitions, LLC (collectively, "Plaintiffs"), are appealing by way of cross-appeal the above case to the Court of Appeals for the Third District of Texas at Austin. Defendant Elness, Swenson, Graham Architects, Inc. ("Defendant") filed its Notice of Appeal on November 12, 2014. Plaintiffs filed their cross notice of appeal pursuant to Texas Rule of Appellate Procedure 25.1(a) and 26.1(d) on Tuesday, November 25, 2014.
Plaintiffs stand ready to pay you in advance for the preparation of the Clerk's Record upon your advice of the amount or to make whatever deposit your office requires for the preparation of the Clerk's Record.
Pursuant to Texas Rule of Appellate Procedure 34.5(a) and (b), Plaintiffs request that, in addition to any other document required by the Texas Rules of Appellate Procedure, the following documents be included in the Clerk's Record:
Amended Request to Correct Errors Concerning Title of Documents and/or Dates Filed:
1. PLAINTIFFS' SEVENTH AMENDED ORIGINAL PETITION, filed on February 18, 2014.
2109 December 15, 2014 Page2
2. ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S SECOND AMENDED ANSWER AND ORIGINAL COUNTERCLAIM FOR DECLARATORY JUDGMENT, filed on October 1, 2012.
3. PLAINTIFFS' OBJECTION TO THE REPORT AND TESTIMONY OF, AND MOTION TO EXCLUDE ESG'S DESIGNATED EXPERT GRANT A. SIMPSON, filed on April 7, 2014.
4. BUSINESS RECORDS AFFIDAVIT, filed April21, 2014.
5. PLAINTIFFS' MOTION TO COMPEL RESPONSIVE DOCUMENTS FROM ESG, filed April24, 2014.
6. PLAINTIFFS' MOTION IN LIMINE, filed April25, 2014.
7. LETTER FROM WDGE YELENOSKY REGARDING MOTIONS IN LIMINE, filed May 1, 2014.
8. ORDER REGARDING MOTIONS TO STRIKE EXPERT TESTIMONY, filed May 1, 2014.
9. PLAINTIFFS' SUPPLEMENTAL MOTION TO STRIKE THE EXPERT TESTIMONY OF TIM WESTON, filed May 5, 2014.
10. PLAINTIFFS' MOTION IN LIMINE, filed May 5, 2014.
11. PLAINTIFFS' MOTION FOR LEAVE TO AMEND THEIR DESIGNATION OF WITNESSES FOR TRIAL, filed May 12,2014.
12. PLAINTIFFS' FIRST AMENDED PROPOSED WRY INSTRUCTIONS, DEFINITIONS AND QUESTIONS, filed May 13, 2014.
13. INSTRUCTION- SIGNED BY JUDGE YELENOSKY, filed May 16, 2014.
14. QUESTION, filed May 16, 2014.
15. JURY'S QUESTION FORMS, filed May 16, 2014.
16. CHARGE OF THE COURT, filed May 16, 2014.
17. OBJECTIONS TO DEFENDANT'S DESIGNATIONS, filed May 16, 2014.
18. PLAINTIFFS' OBJECTIONS AND COUNTER-DESIGNATIONS TO CROSS DESIGNATIONS OF PAGE AND LINE TESTIMONY, filed May 16,2014.
19. JURY'S QUESTION FORMS, filed May 15, 2014.
2110 December 15, 2014 Page 3
20. PLAINTIFFS' RESPONSE TO ESG'S MOTION FOR APPLICATION OF SETTLEMENT CREDIT, filed June 2, 2014.
21. LETTER FROM JUDGE YELENOSKY ON SETTLEMENT CREDIT, filed June 13, 2014.
22. PLAINTIFFS' AMENDED MOTION FOR ATTORNEYS' FEES AND COSTS, filed July 3, 2014.
23. PLAINTIFFS' NOTICE OF SCRIVENER'S ERROR IN AMENDED MOTION FOR ATTORNEYS' FEES AND COSTS, filed July 17, 2014.
24. RLJ'S MOTION FOR WDGMENT AND JUDGMENT NOTWITHSTANDING THE VERDICT ON QUESTION 1, filed July 30, 2014.
25. PLAINTIFFS' AMENDED MOTION FOR RECONSIDERATION IN LIGHT OF FIFTH CIRCUIT'S RECENT GE CAPITAL OPINION, filed August 1, 2014.
26. PLAINTIFFS' RESPONSE TO ESG'S MOTION FOR JUDGMENT AND AFFIDAVIT OF GREG N. ZIEGLER, filed August 5, 2014.
27. PLAINTIFFS' LETTER TO COURT ENCLOSING DRAFT FINAL JUDGMENT, filed August 13, 2014.
28. ORDER DENYING RLJ'S MOTION FOR WDGMENT NOTWITHSTANDING THE VERDICT ON QUESTION 1, filed August 14, 2014.
29. FINAL JUDGMENT, filed August 14, 2014.
30. PLAINTIFF'S MOTION FOR NEW TRIAL, filed September 12,2014.
31. PLAINTIFFS' MOTION TO MODIFY WDGMENT UNDER TEXAS RULE OF CIVIL PROCEDURE 329B, filed September 12,2014.
32. ORDER DENYING RLJ'S MOTION FOR RECONSIDERATION, filed September 16, 2014.
33. ORDER DENYING PLAINTIFF'S MOTION TO MODIFY UNDER TEXAS RULE OF CIVIL PROCEDURE, filed September 19,2014.
34. ORDER DENYING PLAINTIFF'S MOTION FOR NEW TRIAL , filed September 19, 2014.
35. PLAINTIFF'S NOTICE OF APPEAL, filed November 25, 2014.
2111 December 15, 2014 Page4
36. PLAINTIFFS' LETTER requesting Reporter's Record, filed November 25, 2014.
37. A copy of this letter.
Supplemental Designations:
38. PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO STRIKE THE EXPERT TESTIMONY OF PAUL HORNSBY, filed April25, 2014.
If you have any questions or concerns or if I may be of any assistance to you in the preparation of the Clerk's Record, please do not hesitate to let me know.
Thanking you for your attention to this matter.
Very truly yours,
/s/ Michael W. Huddleston
Michael W. Huddleston
cc: Gregory N. Ziegler (via email) Matthew Mumm Weston Davis MacDonald Devin, P. C. gziegl er@macdonalddevin .com mmumm(Zilmacdonalddevin.com wdavis({i;maccdonalddevin.com
Elizabeth Medina (via email) Elizabeth.Medina((/)Jraviscountytx.gov
Mr. Albert Alvarez, Court Reporter (via U.S. mail) 345th Civil District Court P.O. Box 1748 Austin, Texas 78767
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ANS·RESP 4/25/2014 RESPONSE TO MOTION/PLEADING EXPERT TESTIMONY OF JOHN NYFELER - ' 4/25/2014 NOTICE . NTC:HEARING/SETTING NOTICE OF HEARING IMOTION DEFENDANT ELNESS SWENSON GRAHAM ARCHITECTS INC'S MOTION IN LIMINE 4/25/2014 MTN:LIMINE ,,.........
MOTION DEFENDANT EBCO GENERAL CONTRACTOR LTD AND EBCO WARRIOR MANAGEMENT LLC MOTION IN LIMINE 4125/2014 MTN:LIMINE
ANS·RESP RESPONSE TO MOTION/PLEADING PLAINTIFFS' RESPONSE TO DEFENDANTS MOTION TO STRIKE THE EXPERT TESTIMONY OF KYLE WORKMAN AND 4/25/2014 RICHARD REEVES ANS-RESP RESPONSE TO MOTION/PLEADING PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO STRIKE THE EXPERT TESTIMONY OF PAUL HORNSBY 4/25/2014 .. ANS-RESP PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO STRIKE THE EXPERT TESTIMONY OF DEAN READ AND KIRBY 4/25/2014 RESPONSE TO MOTION/PLEADING MEYER ANS-RESP RESPONSE TO MOTION/PLEADING PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO STRIKE THE EXPERT TESTIMONY OF DEAN READ AND KIRBY 4/25/2014 MEYER ...... ANS-RESP RESPONSE TO MOTION/PLEADING PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO STRIKE THE EXPERT TESTIMONY OF DEAN READ AND KIRBY 4/25/2014 MEYER ... ANS-RESP PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO STRIKE THE EXPERT TESTIMONY OF ANDREW DIBBLE 4/25/2014 RESPONSE TO MOTION/PLEADING
ANS-RESP PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO STRIKE THE EXPERT TESTIMONY OF ANDREW DIBBLE 4/25/2014 RESPONSE TO MOTION/PLEADING
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\ PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION TO STRIKE THE EXPERT TESTIMONY OF PAUL HORN~~.,,/· / ~~ 4/28/2014 MOTION ... MTN:DISMISS/NONSUIT PLAINTIFF'S MOTION TO DISMISS WITH PREJUDICE MOTION DEFENDANT ELNESS SWENSON GRAHAM ARCHITECTS INCS FIRST SUPPLEMENTAL MOTION IN LIMINE 4/28/2014 MTN:LIMINE
4/28/2014 OTHER ... RULE 203.2 CERTIFICATE MARK SWENSON
ORO DEFENDANTS EBCO GENERAL CONTRACTOR LTD AND EBCO EBCONVARRIOR MANAGEMENT LLCS NOTICE OF NONSUIT 4/29/2014 ORD:NTC/ORD DISMISSAL/NONSUIT OF THIRD PARTY DEFENDANT fiLCADlO CHAPA JR FORMERLY 081\ JRS CONCRETE CONSTRUCTION _, ORD:NTC/ORD DISMISSAL/NONSUIT ORDER OF DISMISSAL WITH PREJUDICE --··· _OTHER 4/28/2014 ORD . ... 5/1/2014 ...... LETIER LETTER TO JUDGE YELENOSKY (F;i'?n·nu \' OTHEH LETTER ( FROM JUDGE STEPH~!i,YE~ENOSK~) ~?.~"67LOWI4 SRVPHO. EXE SERVICE OF SUBPOENA SUBPOENA-ZACHARY BURNS I MOTION DEFENDANT ELNESS SWENSON GRAHAM ACHITECTS INC'S SECOND SUPPLEMENTAL MOTION IN LIMINE 5/2/2014 MTN:LIMINE ...........~·-'"'». -······-- PLA,.~NTIFFS' MOTION IN LIMINE ',) ;~~ MOTION ... MTN:LIMINE
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