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May 26, 2000
Volume 6 -- Number 079

What follows is the case style or name, first paragraph, author's
name, and the names of attorneys for the parties of each opinion
released eletronically today to TBALink.
- This Issue (IN THIS ORDER):
-
| 00 |
New Opinion(s) from the Tennessee Supreme Court |
| 02 |
New Opinion(s) from the Tennessee Supreme Court Workers' Compensation
Panel |
| 01 |
New Document(s) or Proposed Rule(s) from the Tennessee Supreme
Court |
| 10 |
New Opinion(s) from the Tennessee Court of Appeals |
| 12 |
New Opinion(s) from the Tennessee Court of Criminal Appeals |
| 00 |
New Opinion(s) from the Tennessee Attorney General (PDF format)
|
| 00 |
New Judicial Ethics Opinion(s) |
| 00 |
New Formal Ethics Opinion(s) from the Board of Professional Responsibility
|
-
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Lucian T. Pera
Editor-in-Chief, TBALink

BRENDA K. BASCKO
VS.
ST. PAUL FIRE and MARINE
INSURANCE COMPANY and A.J.
METLER HAULING & RIGGING
COMPANY, INC.
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellants: For the Appellee:
Deborah L. Fulton Scott D. Hall
Beverly D. Nelms 105 East Bruce Street
PO Box 39 Sevierville, Tennessee 37862
Knoxville, Tennessee 37901
Judge: PEOPLES
First Paragraph:
This workersÕ compensation appeal has been referred to the Special
WorkersÕ Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated ¤ 50-6-225(e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law.
http://www.tba.org/tba_files/TSC_WCP/BasckovStPaul.wpd
JAMES E. FLEENOR
VS.
GRAND PIANO AND FURNITURE
COMPANY
Court:TSC - Workers Comp Panel
Attorneys:
For the Appellant: For the Appellee:
J. Eddie Lauderback Robert Payne Cave
Herndon, Coleman, Brading & McKee 104 North College Street
104 E. Main Street Greeneville, Tennessee 37743
P.O. Box 1160
Johnson City, Tennessee 37605-1160
Judge: PEOPLES
First Paragraph:
This workersÕ compensation appeal has been referred to the Special
WorkersÕ Compensation Appeals Panel of the Supreme Court in accordance
with Tennessee Code Annotated ¤ 50-6-225(e)(3) for hearing and
reporting to the Supreme Court of findings of fact and conclusions of
law. Grand Piano and Furniture Company (hereafter ÒGrand PianoÓ) has
appealed an award to James E. Fleenor of 80 per cent disability to the
body as a whole. The sole issue is whether the trial court erred in
finding that Mr. Fleenor sustained a compensable injury.
http://www.tba.org/tba_files/TSC_WCP/fleenorvgrandpiano.wpd
IN RE: AMENDMENT TO RULE 9, S 24.3
RULES OF THE SUPREME COURT OF TENNESSEE
Court:TSC - Rules
First Paragraph:
Rule 9, S 24.3, Rules of the Supreme Court, governing disciplinary
enforcement, amended April 28, 2000, is hereby vacated and replaced
with the following:
In the event that a judgment of disbarment, suspension, public
censure, private reprimand, temporary suspension, disability inactive
status, reinstatement, or denial of reinstatement results from formal
proceedings, the Board shall assess against the respondent attorney
the costs of the proceedings, including court reporter's expenses for
appearances and transcription of all hearings and depositions, the
expenses of the hearing committee in the hearing of the cause, and the
hourly charge of disciplinary counsel in investigating and prosecuting
the matter.
http://www.tba.org/tba_files/TSC_Rules/Rule9,_24_3order.wpd
BURMAH KAYE GREEN AMONETTE
VS.
EUGENE JUNIOR AMONETTE
Court:TCA
Attorneys:
William L. Draper, Cookeville, Tennessee, for the appellant, Eugene
Junior Amonette.
Donna Simpson Massa, Cookeville, Tennessee, for the appellee, Burmah
Kaye Green Amonette.
Judge: CANTRELL
First Paragraph:
This appeal arises from the trial court's refusal to grant the
appellant's request for the continuance of a divorce proceeding. The
appellant contends that there was no reliable evidence at the trial to
establish his income and, as a result, the trial court could not reach
a fair judgment. We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCA/amonettebkg.wpd
THE GALLERIA ASSOCIATES, L.P.
VS.
WILLIAM MOGK, III, et al.
Court:TCA
Attorneys:
A. Scott Derrick, Nashville, Tennessee, for the appellant, The
Galleria Associates, L.P.
Thomas L. Whiteside, Nashville, Tennessee, for the appellees, William
Mogk, III and Marilyn Mogk.
Judge: CANTRELL
First Paragraph:
This is an action against a guarantor of a commercial lease. After a
hearing, the trial court dismissed the landlord's complaint finding
that the guaranty lacked consideration and that the landlord had
failed to offer proof regarding handwritten portions of the lease
addressing the commencement date of the lease. The landlord contends
that the trial court erred in both respects. We agree, and reverse
the judgment of the trial court and remand the cause for the
assessment of damages and attorney fees.
http://www.tba.org/tba_files/TCA/galleriaassoc.wpd
LAWRENCE T. HOWARD, et al.
VS.
VITA NORWOOD, et al.
Court:TCA
Attorneys:
D. Russell Thomas and Herbert M. Schaltegger, Murfreesboro, Tennessee,
for the appellants, Lawrence T. Howard and Sharon E. Howard.
John Thomas Feene and Catheryne L. Grant, Nashville, Tennessee, for
the appellees, Vita Norwood and Samuel Norwood.
Judge: FARMER
First Paragraph:
In this negligence action, Plaintiffs Lawrence T. Howard and his wife,
Sharon E. Howard, have appealed the trial court's final judgment
denying their motion for new trial and/or for judgment in accordance
with their previous motions for directed verdicts. The Howards filed
this lawsuit after Lawrence Howard was involved in a multi-vehicle
collision on Interstate 24 in Rutherford County. The Howards
originally sued Cari P. Thornton and her husband, Michael E. Thornton,
as well as Vita Norwood and her father, Samuel Norwood. The Howards
settled their claims against the Thorntons prior to trial. At the
trial's conclusion, the jury returned a verdict finding that none of
the parties were at fault in the vehicle accident. The jury also
found that the Howards had suffered no damages as a result of the
accident and that Samuel Norwood was not liable for any fault
attributable to Vita Norwood pursuant to the Family Purpose Doctrine.
The trial court entered a judgment in accordance with the jury's
verdict and denied the Howards' post-trial motion. We affirm the
trial court's judgment in its entirety.
http://www.tba.org/tba_files/TCA/howardlt.wpd
DOROTHY J. JOHNSTON
VS.
FRED E. COWDEN, JR.
Court:TCA
Attorneys:
Lionel R. Barrett, Jr., Nashville, Tennessee, for the appellant,
Dorothy J. Johnston.
John P. Branham & Kathryn E. Barnett, Nashville, Tennessee, for Fred
E. Cowden, Jr. Deceased, by Fred E. Cowden, Sr., as Executor of the
Estate of Fred E. Cowden, Jr.
Judge: COTTRELL
First Paragraph:
This legal malpractice action was filed against the estate of a
deceased attorney who allegedly failed to file a civil action and a
claim for compensation under the Criminal Injuries Compensation Act on
the plaintiff's behalf. Implicitly applying the Dead Person's
Statute, Tenn. Code Ann. S 24-1-203, the trial court granted the
estate's motion for summary judgment on a finding that the deceased
attorney was never retained. We affirm.
http://www.tba.org/tba_files/TCA/JohnstonD.wpd
BRUCE L. KINNARD
VS.
LARRY W. TAYLOR, et al.
Court:TCA
Attorneys:
Dicken E. Kidwell, Murfreesboro, For Appellant
William G. McCaskill, Jr., Nashville, For Appellees
Judge: CRAWFORD
First Paragraph:
This is a personal injury case, and the jury returned a verdict for
plaintiff. Plaintiff appeals asserting that the trial court erred in
failing to grant a new trial because of the alleged inadequacy of the
verdict.
http://www.tba.org/tba_files/TCA/kinnardb.wpd
CARSON MADISON, ET AL.
VS.
PICKETT COUNTY BANK and TRUST CO., ET AL.
Court:TCA
Attorneys:
Phillips M. Smalling, Byrdstown, Tennessee, for the appellants, Carson
Madison and Carolyn Madison.
Daniel H. Rader, III, Cookeville, Tennessee, for the appellees,
Pickett County Bank and Trust Co. and Union Planters Bank of The
Cumberlands.
Judge: CAIN
First Paragraph:
This is an appeal by Plaintiffs from summary judgment dismissing their
complaint against a commercial bank in a premises liability case
predicated on allegations of violation of a duty to maintain the
premises in a safe condition. We affirm the trial court.
http://www.tba.org/tba_files/TCA/MadisonCarson.wpd
LESLIE ANN RICHARD (GOFF)
VS.
DAVID WAYNE RICHARD
Court:TCA
Attorneys:
John M. L. Brown, Nashville, Tennessee, for the appellant, Leslie Ann
Richard (Goff).
Jennifer Davis Roberts, Dickson, Tennessee, for the appellee, David
Wayne Richard.
Judge:
First Paragraph:
This appeal involves a contentious dispute over the custody of a
five-year-old child. Six months after the Chancery Court for Cheatham
County awarded custody of the child to her mother, the child's father
filed a petition to change custody because the mother's boyfriend was
living with the mother and child. Following a bench trial, the trial
court changed custody from the mother to the father. The mother has
appealed from this decision. We have determined that the order
granting the father custody of the child should be reversed because
the evidence preponderates against the finding that there was a
material post-divorce change in the child's circumstances that
warranted a change in the custody arrangement.
http://www.tba.org/tba_files/TCA/Richardla.wpd
RONALD C. ROWE
VS.
WANDA J. ROWE
Court:TCA
Attorneys:
Ronald C. Rowe, Nashville, Tennessee, Pro Se
Wanda J. Rowe, Tullahoma, Tennessee, Pro Se
Judge: CANTRELL
First Paragraph:
A prison inmate filed a complaint for irreconcilable differences,
together with a Marital Dissolution Agreement that he and his wife had
signed. He took no further legal steps, and after five months,
without notice to him, the trial court dismissed the complaint for
failure to prosecute.
http://www.tba.org/tba_files/TCA/rowerc.wpd
PAUL E. RUTHERFORD
VS.
DONAL CAMPBELL, et al.
Court:TCA
Attorneys:
Paul E. Rutherford, Wartburg, Tennessee, pro se.
Paul G. Summers, Michael E. Moore and Michael L. Haynie, Nashville,
Tennessee, for the appellees, Donal Campbell, et al.
Judge: CAIN
First Paragraph:
Prisoner/Petitioner seeks declaratory judgment that he is entitled to
sentence reduction credits on four concurrent 20 year sentences for
rape of a child. The chancellor dismissed his complaint and he timely
appealed. Inasmuch as Tennessee Code Annotated section 39-13-523
specifically prohibits application of sentence reduction credits to
reduce sentences of "child rapists" as defined therein, the dismissal
is affirmed.
http://www.tba.org/tba_files/TCA/RutherfordPaulE.wpd
EDDIE WILLIAMS, JR.
VS.
RICKY BELL, et al.
Court:TCA
Attorneys:
Ricky Bell, Henning, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, Pamela S. Lorch, Assistant Attorney General, for
the appellee, State of Tennessee
Judge: CANTRELL
First Paragraph:
A prisoner filed suit against eight employees of the Department of
Correction, claiming numerous violations of his civil rights. The
trial court dismissed the suit for failure to comply with Tenn. Code.
Ann. S 41-21-801, et seq., which requires inmates who file their suits
in forma pauperis to submit to the trial court a complete list of
every previous claim or lawsuit filed by the inmate. We affirm the
dismissal, but hold it to be without prejudice
http://www.tba.org/tba_files/TCA/williamse.wpd
STATE OF TENNESSEE v. KAREN BANDY
Court:TCCA
Attorneys:
Michael R. Jones, District Public Defender; and Ann M. Smith,
Assistant District Public Defender, Springfield, Tennessee, for the
appellant, Karen Bandy.
Paul G. Summers, Attorney General and Reporter; Lucian D. Geise,
Assistant Attorney General; John Wesley Carney, Jr., District Attorney
General; and Dent Morriss, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
Defendant, Karen Bandy, appeals the denial of alternative sentencing
following her best interest guilty plea to attempted second degree
murder, a Class B felony. As part of the plea agreement, the
defendant received an eight-year sentence. The manner of service was
left to the determination of the trial court. Following a sentencing
hearing, the trial court held the defendant's sentence should be
served in confinement. Upon a thorough review of the record, we
affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/bandyK.wpd
STATE OF TENNESSEE v. MORLEY D. COWAN
Court:TCCA
Attorneys:
Joseph E. Ford, Winchester, Tennessee, for the appellant, Morley D.
Cowan.
Paul G. Summers, Attorney General and Reporter; Lucian D. Geise,
Assistant Attorney General; J. Michael Taylor, District Attorney
General; and Steven M. Blount, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
Defendant, Morley D. Cowan, appeals the trial court's denial of his
request for community corrections following his nolo contendere plea
to aggravated sexual battery. Finding that one convicted of
aggravated sexual battery is statutorily ineligible for community
corrections, we affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/cowanmd.wpd
STATE OF TENNESSEE
VS.
ROBERT LEE DAY
Court:TCCA
Attorneys:
Julie A. Rice, Contract Appellate Defender (on appeal), Knoxville,
Tennessee, and Stacey Nordquist, Assistant District Public Defender
(at trial), Maryville, Tennessee, for the appellant, Robert Lee Day.
Paul G. Summers, Attorney General & Reporter, Patricia C. Kussman,
Assistant Attorney General, and John Bobo, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: WADE
First Paragraph:
The defendant, Robert Lee Day, having a lengthy history of driving
offenses, is not entitled to immediate probation on a one-year
sentence for violation of the Motor Vehicle Habitual Offender's Act.
http://www.tba.org/tba_files/TCCA/Dayrl.wpd
STATE OF TENNESSEE v. JAMES R. HORN, SR.
Court:TCCA
Attorneys:
Donna Leigh Hargrove, District Public Defender, Curtis H. Gann,
Assistant Public Defender, Shelbyville, Tennessee (on appeal), and
Andrew Jackson Dearing, III, Assistant Pubic Defender, Fayetteville,
Tennessee, (at trial), for appellant James R. Horn, Sr.
Paul G. Summers, Attorney General, Lucian D. Geise, Assistant Attorney
General, William Michael McCown, District Attorney General, Weakley E.
Barnard, Assistant District Attorney General, for appellee State of
Tennessee.
Judge: WOODALL
First Paragraph:
James Randel Horn was convicted of fraudulently obtaining a controlled
substance and failure to appear. Defendant appeals his sentence, and
alleges that the sentence is excessive and that he should have been
sentenced to community corrections. We affirm the judgment of the
trial court in all respects except for the sentence for fraud, where
we find plain error. Accordingly, we reverse DefendantÕs sentence for
fraud and remand for re-sentencing.
http://www.tba.org/tba_files/TCCA/hornjr.wpd
STATE OF TENNESSEE v. JUMBO KURI
Court:TCCA
Attorneys:
Karl Dean, District Public Defender, Jeffrey A. DeVasher, Assistant
Public Defender, Collins Hooper, Assistant Public Defender, and
Richard Tennent, Assistant Public Defender, Nashville, Tennessee, for
the appellant, Jumbo Kuri.
Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan,
Assistant Attorney General, Victor S. Johnson, III, District Attorney
General, Dan Hamm, Assistant District Attorney General, and Katie
Miller, Assistant District Attorney General, for the appellee, State
of Tennessee.
Judge: WOODALL
First Paragraph:
Defendant Jumbo Kuri was convicted by a jury in the Davidson County
Criminal Court of one count of reckless homicide and one count of
aggravated assault. After a sentencing hearing, the trial court
sentenced Defendant as a Range I standard offender to consecutive
terms of four years for reckless homicide and two years for aggravated
assault. Defendant raises the following issues in this appeal: (1)
whether the trial court erred when it failed to instruct the jury on
the lesser-included offense of criminally negligent homicide; (2)
whether the trial court imposed an excessive sentence for the reckless
homicide conviction; and (3) whether the trial court erred when it
imposed consecutive sentencing. The judgment of the trial court is
affirmed in part and reversed in part.
http://www.tba.org/tba_files/TCCA/kurij.wpd
STATE OF TENNESSEE v. ODUS EUGENE LONG
Court:TCCA
Attorneys:
Lionel Barrett, Nashville, Tennessee, on appeal; Edwin Sadler,
Tennessee, at trial, for the appellant, Odus Eugene Long.
Paul G. Summers, Attorney General, Todd R. Kelley, Assistant Attorney
General, Tom P. Thompson, District Attorney General, John Wootten,
Jr., Assistant District Attorney General, for the appellee, State of
Tennessee.
Judge: WOODALL
First Paragraph:
Defendant was convicted of first degree murder by a Jackson County
Jury, and sentenced to life imprisonment. Defendant now appeals as of
right, and raises three issues, arguing (1) the evidence is
insufficient to sustain his conviction because the State did not prove
premeditation; (2) the trial court committed reversible error when it
allowed a hearsay statement by the deceased into evidence; and (3) the
trial court committed reversible error when it did not allow an
audiotape to be played for the jury during deliberations, despite the
fact that the tape had been previously played and introduced into
evidence as an exhibit. While the evidence is insufficient to sustain
a first degree murder conviction, it does support a conviction for
second degree murder. However, because we also hold that the trial
court erred in issues (2) and (3), we reverse DefendantÕs conviction
and remand for a new trial.
http://www.tba.org/tba_files/TCCA/longoe.wpd
STATE OF TENNESSEE v. CARL MCKISSACK
Court:TCCA
Attorneys:
Steve McEwen, Mountain City, Tennessee, for the appellant, Carl
McKissack.
Paul G. Summers, Attorney General and Reporter, Tara B. Hinkle,
Assistant Attorney General, Jerry Woodall, District Attorney General,
and Jody S. Pickens, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
The Defendant, Carl McKissack, was tried and convicted of assault by a
Madison County jury. In this appeal as of right, the Defendant argues
that the trial court erred by permitting a prior inconsistent
statement to be used as substantive evidence and that the evidence was
insufficient to support the conviction. We hold that the trial court
erred by permitting a prior inconsistent statement to be used as
substantive evidence and that the evidence was otherwise insufficient
to support the Defendant's conviction. Accordingly, we reverse the
conviction.
http://www.tba.org/tba_files/TCCA/MCKISS~1.wpd
STATE OF TENNESSEE v. MICHAEL E. MILLS
Court:TCCA
Attorneys:
Nicholas D. Hare, Nashville, Tennessee, attorney for the appellant,
Michael E. Mills.
Paul G. Summers, Attorney General and Reporter and Russell S. Baldwin,
Assistant Attorney General, attorney for the appellee, State of
Tennessee.
Judge: SMITH
First Paragraph:
A Davidson County jury convicted the appellant, Michael Eugene Mills,
of two (2) counts of especially aggravated kidnapping and two (2)
counts of aggravated robbery. The trial court sentenced the appellant
to 37 years for each count of especially aggravated kidnapping and 18
years for each count of aggravated robbery. The court ordered that
the kidnapping counts would run consecutively to one another and the
robbery counts would run consecutively to one another; however, the
court further ordered that the kidnapping counts would run
concurrently with the robbery counts, providing for an effective
sentence of 74 years.
http://www.tba.org/tba_files/TCCA/millsmichael.wpd
STATE OF TENNESSEE v. NORMAN JEFFREY PIPKIN
Court:TCCA
Attorneys:
Mike Mosier, Jackson, Tennessee, for the appellant, Norman Jeffrey
Pipkin.
John Knox Walkup, Attorney General and Reporter, Elizabeth T. Ryan,
Assistant Attorney General Nashville, Tennessee, Elizabeth T. Rice,
District Attorney General, Jerry Norwood, Assistant District Attorney
General, Bolivar, Tennessee, for the appellee, State of Tennessee
Judge: WADE
First Paragraph:
The defendant, Norman Jeffrey Pipkin, was charged with aggravated
assault and hunting without permission. The district attorney general
denied his application for pretrial diversion and the trial court
affirmed on a petition for certiorari. The defendant filed an
interlocutory appeal which came before this court during its March,
1998, session. This court affirmed the judgment of the trial court,
and the defendant filed a Rule 11 application. The supreme court
granted the appeal, then remanded the case back to this court for
reconsideration in light of State v. Curry, 988 S.W.2d 153 (Tenn.
1999).
http://www.tba.org/tba_files/TCCA/Pipkin.wpd
STATE OF TENNESSEE v. CLYDE TURNER
Court:TCCA
Attorneys:
Tony N. Brayton, Assistant Public Defender (on appeal), A. C. Wharton,
Jr., District Public Defender (of counsel), Mozella Ross, Assistant
Public Defender (at trial), Memphis, Tennessee, for the appellant,
Clyde Turner.
Paul G. Summers, Attorney General & Reporter, Mark E. Davidson,
Assistant Attorney General, Glen Baity, Assistant District Attorney
General, for the appellee, State of Tennessee.
Judge: WADE
First Paragraph:
The defendant, Clyde Turner, was tried for and convicted of
carjacking. In this appeal, he challenges the sufficiency of the
evidence and argues that he was denied the right of
self-representation.
http://www.tba.org/tba_files/TCCA/Turner.wpd
STATE OF TENNESSEE v. THOMAS JAMES WILLIAMS
Court:TCCA
Attorneys:
George Morton Googe and Stephen Spracher, Jackson, Tennessee, and
Clifford K. McGown, Jr., Waverly, Tennessee, for the appellant, Thomas
James Williams.
Paul G. Summers, Attorney General and Reporter, and Kim R. Helper,
Assistant Attorney General, for the appellee, State of Tennessee.
Judge: GLENN
First Paragraph:
The defendant had been placed on probation by the Madison County
Circuit Court following his guilty plea to aggravated burglary and
resulting five year sentence. A probation violation warrant was
issued charging that the defendant had failed to report to his
probation officer and had failed to report a subsequent arrest and
conviction. Following a hearing, the probation was revoked and the
defendant timely appealed. Based upon our review, we affirm the
judgment of the trial court.
http://www.tba.org/tba_files/TCCA/WILLIAT~.wpd
STATE OF TENNESSEE v. PATRICK WINGATE
Court:TCCA
Attorneys:
Hershell D. Koger, Pulaski, Tennessee, attorney for appellant, Patrick
Wingate.
Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, David H. Findley, Assistant Attorney General,
William Michael McCown, District Attorney General, and Roger G.
Crigler and Ann L. Filer, Assistant District Attorneys General, for
the appellee, State of Tennessee.
Judge: HAYES
First Paragraph:
The appellant, Patrick Wingate, appeals his Bedford County convictions
for first degree murder and aggravated arson, which resulted in
sentences of life plus twenty-five years. On appeal, he argues (1)
the evidence is not sufficient to support either conviction and (2)
the trial court erred by failing to grant a mistrial based upon the
introduction of prior bad acts of the appellant through the testimony
of a StateÕs witness. The jury returned verdicts for both
premeditated and felony murder. Although we conclude that the
evidence is not sufficient to support the juryÕs verdict that the
murder was committed with premeditation, the evidence is sufficient to
sustain their verdict for felony murder. Accordingly, finding no
error of law requiring reversal, we affirm the judgments of conviction
entered by the trial court.
http://www.tba.org/tba_files/TCCA/WingatePat.wpd

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