Summary Judgment in Tennessee after Hannan v. Alltel

The Supreme Court's decision in Hannan v. Alltell provides a new interpretation of the summary judgment standard in Tennessee. Learn more about the decision in a TennBarU webcast on Wednesday, Nov. 12, featuring Professor Judy Cornett of the University of Tennessee College of Law. Cornett is an expert in this area of the law and is cited in the court's majority and dissenting opinions. The one-hour program begins at 11 a.m. central time.

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TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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AMPHARM, INC. v. EASTLAND PHARMACY SERVICES, LLC ET AL. v. AMERICAN HEALTH CENTERS, INC.

Court: TCA

Attorneys:

Robert L. DeLaney, Nashville, Tennessee, for the appellant, Eastland Pharmacy Services, LLC et al.

C.J. Gideon, Jr. and Kelly R. Thomas, Nashville, Tennessee, for the appellees, AmPharm, Inc. and American Health Centers, Inc.

Judge: BENNETT

Company A sued company B for breach of contract and unjust enrichment. Company B filed a third- party complaint against company A's parent company for wrongful withdrawal from partnership. Company A and its parent company sought to hold the sole owner of company B personally liable. The trial court granted a motion for summary judgment in favor of company A and its parent company on all issues, including the personal liability of company B's owner. We affirm as to the liability of company B, but reverse as to the imposition of personal liability on the company owner.

http://www.tba2.org/tba_files/TCA/2008/ampharm_110608.pdf


ANTHONY SIRCY AND ANESTHESIOLOGISTS PROFESSIONAL ASSURANCE COMPANY v. JERRY WILSON

Court: TCA

Attorneys:

Michael Gigandet, Pleasant View, Tennessee, for the appellant, Anesthesiologists' Professional Assurance Company.

Hugh Green and John Meadows, Lebanon, Tennessee, for the appellee, Anthony Sircy.

Judge: DINKINS

Workers compensation carrier, intervening Plaintiff in a suit to recover for personal injuries sustained by employee of its insured, appeals the Trial Court's action in awarding one-third of the proceeds of settlement of damage suit to counsel for the injured employee as attorney fees. Finding no error in the action of the trial court, we affirm.

http://www.tba2.org/tba_files/TCA/2008/sircya_110608.pdf


JOYCE TRAIL v. STATE OF TENNESSEE, DEPARTMENT OF COMMERCE AND INSURANCE, (Insurance Division)

Court: TCA

Attorneys:

Robert L. Huskey, Manchester, Tennessee, for appellant, Joyce Trail.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Laura T. Kidwell, Assistant Attorney General, and Sarah A. Hiestand, Senior Counsel, Nashville, Tennessee, for appellee, State of Tennessee, Department of Commerce and Insurance.

Judge: FRANKS

The Commissioner revoked appellant's license to sell insurance and fined her $7,000.00. Appellant petitioned for review by the Trial Court, who affirmed the determination made by the Commissioner. On appeal, we affirm the Judgment of the Trial Court.

http://www.tba2.org/tba_files/TCA/2008/trailj_110608.pdf


JAMES M. WALKER v. JENNY C. (WALKER) STEVENS

Court: TCA

Attorneys:

Imogene W. Bolin, Symrna, Tennessee, attorney for the Appellant, Jenny C. (Walker) Stevens.

Gregory D. Smith, Clarksville, Tennessee, attorney for the Appellee, James M. Walker.

Judge: DINKINS

Father, primary residential parent of the two children of the parties, filed a petition for contempt against Mother alleging failure to pay child support and medical bills; Father also sought modification of the child support award. In response, Mother filed a counter-petition seeking to be named primary residential parent as to the daughter only, asserting that there had been a material change in circumstances justifying such relief. Following a hearing, the trial court ordered a recalculation of child support but otherwise denied the relief requested by both parties. Mother appeals the trial court's determination that she failed to prove a material change in circumstances and the court's exclusion of the court reporter during the testimony of Daughter. Finding no reversible error, the decision of the trial court is affirmed.

http://www.tba2.org/tba_files/TCA/2008/walkerj_110608.pdf


MUHAMMAD ZIYAD v. ESTATE OF WILLIAM B. TANNER, SR.

Court: TCA

Attorneys:

Michael F. Pleasants, Memphis, TN, for Appellant

William Ernest Norcross, Alisa L. Simmons, Cordova, TN, for Appellee

Judge: HIGHERS

This appeal involves a claim against a decedent's estate for one million dollars. The probate court denied the claim on various grounds, and we affirm.

http://www.tba2.org/tba_files/TCA/2008/ziyadm_110608.pdf


ANTHONY BROWN v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

James T. Powell, Union City, Tennessee, for the appellant, Anthony Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: TIPTON

The petitioner, Anthony Brown, was denied post-conviction relief by the Circuit Court for Obion County from his convictions for first degree murder, especially aggravated robbery, and especially aggravated burglary and the resulting effective sentence of life without parole in the Department of Correction. He appeals and contends that he is entitled to post-conviction relief because (1) he was denied the effective assistance of counsel, and (2) the state engaged in improper closing argument. We affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCCA/2008/browna_110608.pdf


STATE OF TENNESSEE v. MARCUS CONNER

Court: TCCA

Attorneys:

Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Marcus Conner.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Charles Frank Crawford, Jr., District Attorney General; Hollyn Hewgley and Ann L. Filer, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Marcus Conner, appeals from the sentencing decision of the Lincoln County Circuit Court. In June 2007, the Defendant entered guilty pleas to three counts of selling .5 grams or more of cocaine, Class B felonies, and two counts of selling less than .5 grams of cocaine, Class C felonies. Following a sentencing hearing, the trial court imposed an effective fourteen-year sentence as a Range I, standard offender and ordered the Defendant to serve his sentence in the Department of Correction. On appeal, the Defendant argues that a sentence of community corrections was appropriate. After review, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/connerm_110608.pdf


DAVID D. COX v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

David Cox, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; and Mike Dunavant, District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

Petitioner, David Cox, appeals the trial court's summary dismissal of his petition for writ of habeas corpus relief in which he alleged that his sentence in case number C-9881 in Blount County Circuit Court for facilitation of delivery of cocaine has expired. After a thorough review, we affirm the judgment of the habeas court.

http://www.tba2.org/tba_files/TCCA/2008/coxd_110608.pdf


STATE OF TENNESSEE v. ANDRE DAVIS

Court: TCCA

Attorneys:

Phyllis Aluko (on appeal); Rusty White and William Yonklowski (at trial), Assistant District Public Defenders, attorneys for appellant, Andre Davis.

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; James Wax and Michelle Parks, Assistant District Attorneys General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The defendant, Andre Davis, was convicted by a Shelby County jury of voluntary manslaughter, a Class C felony. The trial court sentenced the defendant to fourteen and one-half years as a Range III, persistent offender. In this appeal as of right, the defendant argues that the evidence is insufficient to support his conviction for voluntary manslaughter, that the trial court erred in admitting a non-testifying witness's statement from a police report to impeach the defendant's testimony, that the trial court erred in excluding evidence of the victim's prior acts of violence and gang affiliation, that the sentence imposed by the trial court is excessive, and that these cumulative errors deprived the defendant of his right to a fair trial and due process. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/davisa_110608.pdf


STATE OF TENNESSEE v. JOHN WILLIAM GAY

Court: TCCA

Attorneys:

Richard Hughes, Public Defender, and Larry Wright, Assistant Public Defender, Cleveland, Tennessee, for the appellant, John William Gay.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; R. Steven Bebb, District Attorney General; and John O. Williams and Stephen Monte Hatchett, Assistant District Attorneys General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, John William Gay, was convicted by a jury of reckless endangerment with a deadly weapon, a Class E felony, attempted aggravated arson, a Class B felony, and two counts of reckless aggravated assault, Class D felonies. The defendant was sentenced to two years for his reckless endangerment conviction, nine years for his attempted aggravated arson conviction, and four years for each reckless aggravated assault conviction. His sentences were ordered to run concurrently for a total effective sentence of nine years. On appeal, the defendant argues that there was insufficient evidence to sustain his conviction for attempted aggravated arson. Following our review of the parties' briefs, the record, and the applicable law, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/gayj_110608.pdf


STATE OF TENNESSEE v. MICHAEL LEE JEFFCOAT

Court: TCCA

Attorneys:

Glenn R. Funk, Nashville, Tennessee, for the appellant, Michael Lee Jeffcoat.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; John Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: THOMAS

The defendant, Michael Lee Jeffcoat, pled guilty to three counts of delivery of twenty-six grams or more of cocaine, a Class B felony. The trial court sentenced the defendant as a Range II, multiple offender to eighteen years in the Department of Correction on each count, with the sentences to be served concurrently. On appeal, the defendant argues that the trial court erred by denying him alternative sentencing, and he also argues that the eighteen-year sentences imposed by the trial court were excessive. After reviewing the record, we affirm the judgments of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/jeffcoatm_110608.pdf


MICHAEL JONES v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Emeteria R. Hernando, Lewisburg, Tennessee, for the appellant, Michael Jones..

Robert E. Cooper Jr., Attorney General & Reporter; Deshea Dulane, Assistant Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

This matter is before the Court upon the State's motion to dismiss or in the alternative to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. Petitioner, Michael Jones, has appealed the post-conviction court's order dismissing his petition for post-conviction relief in which Petitioner alleged that the enhancement of his sentence violated the Sixth Amendment to the United State's constitution as interpreted in Blakely v. Washington, 542 U.S. 296 (2004), Cunningham v. California, 549 U.S. 270 (2007), and State v. Gomez, 239 S.W.3d 733 (Tenn. 2007), because the trial court relied upon sentencing enhancement factors not found by a jury. Upon a review of the record in this case, we are persuaded that the post-conviction court was correct in dismissing the petition for post-conviction relief and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted, and the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/jonesm_110608.pdf


DOUGLAS V. KILLINS v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Sheri S. Phillips, Clarksville, Tennessee, for the appellant, Douglas V. Killins.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; John Carney, District Attorney General, and Art Bieber, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

Petitioner, Douglas V. Killins, was convicted of second degree murder by a Montgomery County jury. State v. Douglas V. Killins, No M2004-00341-CCA-R3-CD, 2005 WL 94422, at *1 (Tenn. Crim. App., at Nashville, Jan. 13, 2005), perm. app. denied (Tenn. May 2, 2005). The trial court sentenced Petitioner to thirty-eight years to be served as a Range II multiple offender. Id. Petitioner unsuccessfully appealed his conviction to this Court. Id. Petitioner subsequently filed a petition for post-conviction relief arguing that trial counsel provided ineffective assistance of counsel. Petitioner specifically argued that trial counsel was ineffective in not utilizing Petitioner's history of mental illness at trial. Following an evidentiary hearing, the post-conviction court denied the petition. Petitioner appealed to this Court. After a thorough review of the record, we conclude that trial counsel was not ineffective in failing to present Petitioner's history of mental illness to the trier of fact. Therefore, we affirm the decision of the post-conviction court.

http://www.tba2.org/tba_files/TCCA/2008/killinsd_110608.pdf


STATE OF TENNESSEE v. GARY KOUNS et. al.

Court: TCCA

Attorneys:

Robert E. Cooper, Jr., Attorney General & Reporter; Preston Shipp, Assistant Attorney General, and J. Michael Taylor, District Attorney General, and Dave McGovern, Assistant District Attorney General, for the appellant, State of Tennessee.

Philip A. Condra, District Public Defender, Jasper, Tennessee, for the appellees, Gary Kouns, et. al.

Judge: SMITH

The Marion County Grand Jury indicted twenty-nine individuals under Tennessee Code Annotated section 39-17-433(a)(1) for the promotion of methamphetamine manufacture for purchasing an immediate methamphetamine precursor. The defendants filed motions to dismiss the indictments based upon constitutional grounds. After an evidentiary hearing, the trial court held that the constitutional issues were not valid but also found that Tennessee Code Annotated section 39-17- 433(a)(1) did not apply to the purchase of immediate methamphetamine precursors because of the existence of Tennessee Code Annotated section 39-17-433(a)(2) which specifically refers to immediate methamphetamine precursors. The trial court went on to hold that the State could not prove one element of Tennessee Code Annotated section 39-17-433(a)(2). For these reasons, the trial court dismissed the indictments and refused any requests to amend the indictments. We have determined that the trial court was correct in its assessment that there were no valid constitutional issues with regard to the cases sub judice. However, we reverse the trial court's determination that Tennessee Code Annotated section 39-17-433(a)(1) cannot apply to immediate methamphetamine precursors. Therefore, we order the reinstatement of the indictments.

http://www.tba2.org/tba_files/TCCA/2008/kounsg_110608.pdf


STATE OF TENNESSEE v. RENEE MYERS

Court: TCCA

Attorneys:

Gene G. Scott, Jr., Johnson City, Tennessee, for the appellant, Renee Myers.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General; Anthony Wade Clark, District Attorney General; and Mark K. Hill, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: MCLIN

The defendant, Renee Myers, entered guilty pleas to two counts of facilitation of second degree murder, Class B felonies. In exchange for her guilty pleas, the defendant received consecutive sentences of ten years for a total effective sentence of twenty years. On appeal, the defendant argues that the trial court erred in denying any form of alternative sentencing and imposing confinement. Following our review of the record and the parties' briefs, we affirm the trial court's sentencing decision.

http://www.tba2.org/tba_files/TCCA/2008/myersr_110608.pdf


STATE OF TENNESSEE v. LARRY DARNNELL PINEX

Court: TCCA

Attorneys:

Jeffrey Devasher, Assistant Public Defender, Nashville, Tennessee, for the appellant, Larry Darnnell Pinex.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WELLES

The Defendant, Larry Darnnell Pinex, was convicted of attempted aggravated rape, a Class B felony, attempted aggravated sexual battery, and attempted especially aggravated burglary, Class C felonies. He was sentenced as a Range III, persistent offender to twenty-five years for attempted aggravated rape and to twelve years for each of the remaining offenses. The twenty-five-year sentence was ordered to be served concurrently with the sentence for attempted aggravated sexual battery but consecutively to the twelve-year sentence for attempted especially aggravated burglary, for an effective sentence of thirty-seven years in the Department of Correction. He presents five issues for our review: (1) whether the evidence is sufficient to support his convictions for attempted aggravated sexual battery and attempted especially aggravated burglary; (2) whether the rape and battery convictions violate constitutional proscriptions against double jeopardy; (3) whether the State should have been required to make an election of offenses; (4) whether his conviction for attempted especially aggravated burglary should be modified to attempted aggravated burglary based upon Tennessee Code Annotated section 39-14-404(d); and (5) whether he received an excessive sentence. Following our review of the record and the parties' briefs, we conclude that the Double Jeopardy Clause of the Tennessee Constitution precluded convictions for both attempted aggravated rape and attempted aggravated sexual battery because the evidence showed that the Defendant made one continuous attempt to rape the victim. Consequently, we vacate the judgment of the trial court as to the Defendant's conviction for attempted aggravated sexual battery, as that offense should have been merged with the Defendant's conviction for attempted aggravated rape. We also modify the conviction for attempted especially aggravated burglary to attempted aggravated burglary and order a sentence of ten years for that offense.

http://www.tba2.org/tba_files/TCCA/2008/pinexl_110608.pdf

HAYES dissenting
http://www.tba2.org/tba_files/TCCA/2008/pinexl_DIS_110608.pdf


STATE OF TENNESSEE v. ANTHONY K. SMITH

Court: TCCA

Attorneys:

Michael T. Fort, Franklin, Tennessee, for the appellant, Anthony K. Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Ron Davis, District Attorney General, and Kim Helper, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: SMITH

After pleading guilty to aggravated assault, Appellant, Anthony K. Smith, received a sentence of five years. The trial court denied alternative sentencing and ordered Appellant to serve his sentence in incarceration. Appellant appeals, arguing that the trial court should have granted some form of alternative sentencing. We determine that the record supports the trial court's denial of alternative sentencing because of Appellant's long criminal history, in order to avoid depreciating the seriousness of the offense, and because measures less restrictive than confinement have been applied to Appellant unsuccessfully. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TCCA/2008/smitha_110608.pdf


ANTHONY DWIGHT WASHINGTON v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Charles E. Walker (on appeal) and Randall Pierce (at evidentiary hearing), Nashville, Tennessee, attorneys for appellant, Anthony Dwight Washington.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel West Harmon, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Thomas Gunn, Assistant District Attorney General, attorneys for appellee, State of Tennessee.

Judge: THOMAS

The petitioner, Anthony Dwight Washington, appeals as of right the Davidson County Criminal Court's denial of his petition for post-conviction relief challenging his guilty pleas to statutory rape and sale of .5 grams or more of cocaine based upon allegations of ineffective assistance of counsel and an involuntary guilty plea. The petitioner also appeals the denial of alternative sentencing pursuant to a delayed appeal granted by the trial court. Following our review, we affirm the judgment of the trial court.

http://www.tba2.org/tba_files/TCCA/2008/washingtona_110608.pdf


Application of Tennessee's Adult-Oriented Establishment Act to Strip Clubs

TN Attorney General Opinions

Date: 2008-11-06

Opinion Number: 08-170

http://www.tba2.org/tba_files/AG/2008/ag_08_170.pdf

Petition for Popular Election on County "Wheel Tax"

TN Attorney General Opinions

Date: 2008-11-06

Opinion Number: 08-171

http://www.tba2.org/tba_files/AG/2008/ag_08_171.pdf

TODAY'S NEWS

Election 2008
Legal News
Legislative News
TBA Member Services

Election 2008
Judicial races: Lots of cash, negativity, change
Judicial candidates across the country spent more than $17 million on television advertising this year, with some campaigns deteriorating to name calling and mud slinging. The most expensive races were in Alabama, where judges in one race raised a combined total of $3.8 million.
Read more from the National Law Journal on Law.com
Obama transition team full of lawyers
As President-Elect Obama begins to assemble his transition team, it's quickly apparent that lawyers will be playing big roles.
ABAJournal.com tells you who is on the list
Legal News
Business litigation issues at top of predictions list
The American Lawyer magazine asked litigators to share their predictions about the legal and political issues that could have an impact on their practice areas over the next four years. Many suggested that the legal pendulum will swing away from eight years of policies broadly sympathetic to financial institutions, pharmaceutical companies and the oil industry. But they didn't agree on everything, not surprisingly.
Find out what they said on Law.com
Victims' rights law questioned by family of slain woman
Some Knoxville families are complaining that Tennessee's victims' rights law provides victims no legal recourse should their rights be violated. "All the considerations in this system is for the criminal," father Gary Christian said Wednesday after a judge chose a hearing date despite an appeal by the surviving families of Channon Christian and Christopher Newsom to choose a different one. While the state's victim's rights law sets out a list of rights to be afforded crime victims, including the right to a speedy trial and the right to be present at all court hearings, it provides victims no legal recourse should their rights be violated.
Read more in The News Sentinel
Blount County continues talks over jail overcrowding
The Blount County budget committee was set to meet at 5 p.m. today at the Blount County Courthouse to discuss jail overcrowding. The jail was decertified in August because of overcrowding, primarily of federal inmates, according to a Tennessee Corrections Institute report.
The Daily Times has the story
TJC names scholarship winners
The Tennessee Judicial Conference Foundation has chosen the following as recipients of annual law school scholarships: Stephanie Frey of Nashville, winner of the Suzanne G. Keith Scholarship; Anne B. Davis of the University of Memphis School of Law, winner of the Judge William H. Williams Scholarship; Tyler Hagenbuch of Vanderbilt University School of Law, winner of the Judge Frank F. Drowota, III, Scholarship; Chad A. Cox of the Nashville School of Law, winner of the Judge Joseph S. Daniel Scholarship; Hannah Tippett of the University of Tennessee College of Law, winner of the Judge Houston M. Goddard Scholarship; and Aaron Chapman of the University of Tennessee College of Law, winner of the Robert Ritchie Scholarship.

Legislative News
Harwell backs out of speaker race
State Rep. Beth Harwell is taking herself out of the running to be speaker of the newly Republican State House, the Nashville Post reports this afternoon. Harwell, a Nashville representative and former GOP state party chair, had said on Wednesday that she would seek the post. But this afternoon she told the post that House Minority Leader Jason Mumpower had put together a "very well-formed coalition" for speaker.
Read more in the Nashville Post (subscription required)
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About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.

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