National Property Holdings, L.P., Michael Plank and Russell Plank v. Gordon Westergren

IN THE SUPREME COURT OF TEXAS
════════════
NO. 13-0801
════════════

NATIONAL PROPERTY HOLDINGS, L.P., MICHAEL PLANK
AND RUSSELL PLANK, PETITIONERS,

v.

GORDON WESTERGREN, RESPONDENT

═══════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
═══════════════════════════════════════════

PER CURIAM

This dispute involves a mediated settlement agreement, an oral side agreement, and a

subsequent written release. A pivotal issue is whether Gordon Westergren released his claims for

breach of the oral side agreement or whether, as he insists and the jury found, he was fraudulently

induced into signing the release. On that issue, we conclude that Westergren’s fraudulent

inducement defense must fail as a matter of law because the record conclusively establishes that

he had a reasonable opportunity to read the release before he signed it and elected not to do so. We

also conclude that the oral side agreement did not satisfy the statute of frauds and that Westergren

did not breach the mediated settlement agreement or the release by filing this suit. For these

reasons, we reverse in part and affirm in part the court of appeals’ judgment and reinstate in part

the trial court’s take-nothing judgment and award of costs.

The facts giving rise to the parties’ claims relate to a 190-acre tract of land in La Porte,

Texas. The parties hotly dispute the facts, but because we are reviewing the reversal of a judgment
notwithstanding a jury verdict in favor of Westergren, we “credit evidence favoring the jury verdict

if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.”

Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009) (quoting Cent. Ready

Mix Concrete Co., Inc. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007)). The evidence favoring the jury

verdict establishes that Westergren was the first to enter into an option contract to purchase the

highly desired property. When he discovered that the owner had later entered into similar option

contracts with two other interested buyers, he sued all three and filed a lis pendens against the

property, preventing any further development or sale (the Haynsworth litigation). The three

defendants appeared and filed counterclaims. Meanwhile, several developers, including National

Property Holdings, L.P. (NPH), were also interested in acquiring the property but could not pursue

it while the Haynsworth litigation remained pending. In an apparent attempt to overcome that

obstacle, Russell Plank, who was NPH’s consultant, contacted Westergren’s attorney and offered

to help pay Westergren’s attorney’s fees in the Haynsworth litigation. When asked why NPH

would do that, Plank replied: “[because] we’re going to be partners.” Consistent with Plank’s call,

NPH and Plank each sent Westergren’s attorney a $5,000 check.

When the lawsuit later went to mediation, Plank attended on behalf of NPH, although NPH

was not a party to the suit. The mediation was successful: NPH agreed to purchase the property,

and all defendants agreed to release their rights to the property and their counterclaims against

Westergren. All of the parties later memorialized the settlement in a written Mediated Settlement

Agreement (MSA), in which Westergren and the defendants agreed to release any lis pendens and

all claims asserted by and between the parties, including any cross-claims and counterclaims, and

NPH agreed to purchase the property. Separately, in exchange for Westergren’s agreement to settle

the lawsuit, release the lis pendens, and allow NPH to purchase the property, Plank orally promised

2
Westergren that he would become a partner with Plank and his brother Michael, who was president

of NPH’s corporate general partner, and would receive $1 million plus an interest in the profits

from NPH’s development and future sale of the property (the oral contract). The MSA did not

memorialize the oral promises that Plank made to Westergren. After Westergren released the lis

pendens and the parties dismissed the suit, NPH and an affiliated company purchased the property.

A few months later NPH sold 20 of the 190 acres. When Westergren asked for the promised $1

million and a share of the profits, Plank replied that they could only pay Westergren $500,000

“right now.”

When Plank and Westergren later met, Plank presented a $500,000 check from NPH, and

in return, Westergren signed a release. The title of the document, stated in bold and underlined

capital letters, read “AGREEMENT AND RELEASE.” The release stated that Westergren

agreed to relinquish any and all interest in the property and all claims against NPH, Michael Plank,

and other listed parties in exchange for the total payment of $500,000. Without reading the release,

Westergren signed it in front of a notary and accepted the check. Several months later, after

Westergren had not received any additional payments, he reviewed the release and discovered

what he had signed. When NPH, Plank, and Plank’s brother Michael (collectively, the Plank

parties) refused to make any additional payments, Westergren filed this suit against them, asserting

claims for breach of the oral contract, breach of partnership duties, common law and statutory

fraud, and attorney’s fees. The Plank parties asserted that Westergren had released all claims by

signing the release and that the oral contract was unenforceable under the statute of frauds. They

also filed counterclaims for breach of contract, asserting that Westergren breached the MSA and

the release by filing this suit against them.

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 The jury found in Westergren’s favor on all claims, although it also found that the Plank

parties’ statutory and common law fraud caused Westergren “$0.00” damages. On the Plank

parties’ motion, however, the trial court granted a judgment notwithstanding the verdict and

entered a take-nothing judgment as to all parties, assessing costs against Westergren. Westergren

appealed and the Plank parties filed cross-appeals. With one justice dissenting, the court of appeals

concluded, inter alia, that there was more than a scintilla of evidence to support the jury’s findings

that (1) an oral contract existed between Westergren and Plank, (2) Plank breached the oral

contract, (3) NPH paid the $500,000 pursuant to the oral contract (not as consideration for the

release), (4) this partial performance excepted the oral contract from the statute of frauds, (5) Plank

fraudulently induced Westergren to sign the release, and (6) Westergren did not breach the MSA

or the release by suing the Plank parties. Having found in Westergren’s favor on his breach of

contract claim, the court concluded that it did not need to address his claims for common law and

statutory fraud and for breach of partnership duties. The court awarded costs to Westergren and

remanded the case for a new trial on Westergren’s claim for attorney’s fees.

Before this Court, the Plank parties contend that the evidence was legally insufficient to

support the jury’s finding that Plank fraudulently induced Westergren to sign the release, the

release was therefore valid and extinguished all claims under the oral contract, and the jury’s

related findings are thus irrelevant and cannot support the judgment. To overcome the jury’s

verdict, the Plank parties must show that there was no evidence to support the jury’s finding of

fraudulent inducement, no reasonable jury could conclude otherwise, and thus the release was

valid as a matter of law. Tanner, 289 S.W.3d at 830.

Fraudulent inducement “is a particular species of fraud that arises only in the context of a

contract.” Haase v. Glazner, 62 S.W.3d 795, 798 (Tex. 2001). To prove that Plank fraudulently

4
induced him to sign the release, Westergren had to establish that (1) Plank “made a material

representation”; (2) Plank’s “representation was false and was either known to be false when made

or made without knowledge of its truth”; (3) Plank’s “representation was intended to be and was

relied upon by the injured party”; and (4) Westergren’s “injury complained of was caused by the

reliance.” In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 678 (Tex. 2009) (citing Am. Tobacco

Co. v. Grinnell, 951 S.W.2d 420, 436 (Tex. 1997)); Schlumberger Tech. Corp. v. Swanson, 959

S.W.2d 171, 181 (Tex. 1997). The Plank parties argue that there is no evidence to establish the

fourth element in this case. Specifically, they contend that no evidence supports a finding that

Westergren’s reliance on Plank’s representations was “justifiable,” because the release’s plain

language conflicted with Plank’s representations, and Westergren had ample opportunity to read

the release and chose not to do so.

At trial, Westergren admitted that he did not read the release before he signed it and

accepted the $500,000 check. Specifically, he explained that:

- In a telephone conversation before the meeting at which Plank delivered the $500,000
check, Plank told Westergren that the check would be payment of the first half of the
$1 million that Plank had promised in the oral contract;
- At the meeting, Plank never mentioned that the document was a release, and instead
told Westergren that the release “was a receipt. It’s nothing. You don’t have to worry
about it”;
- Plank also told Westergren he would get “the other half” of the $1 million when “we
get another building coming out of the ground”;
- Westergren did not read the release because he was “in a hurry” and did not have his
reading glasses with him;
- Although he wore a watch that had a magnifying glass, which he could have used to
read the release, he did not use it;
- He did not ask Plank or the notary to read the release to him; and
- Instead, he relied on Plank’s statements and representations and signed the release
without reading it first.

Under the facts of this case, we agree with the Plank parties that Westergren could not

justifiably rely on Plank’s statements about the content of the release, which directly conflict with

5
the content of the release itself. On its face, the release’s intent and effect is obvious and

unambiguous. Consistent with its large, bolded, capitalized, and underlined title (“AGREEMENT

AND RELEASE”), and utilizing bolded and capitalized key words within its text, the release

provided that

WESTERGREN . . . in consideration of the sum of FIVE HUNDRED
THOUSAND AND NO/100ths DOLLARS ($500,000.00), and other good and
valuable consideration, the receipt of which of considerations being hereby
acknowledged and the adequacy of which considerations being hereby confessed, .
. . does hereby fully and unconditionally RELEASE AND FOREVER
RELINQUISH any and all right, title, and/or interest . . . in or to (i) . . . the
“Subject Property;” . . . (ii) [NPH and certain affiliated companies] (collectively,
the “Owning Entities”); and (iii) any income, rent, profits, or other proceeds
related to [the property or the Owning Entities] . . . (collectively, the “Income and
Proceeds”) . . . .

In addition, and for the same consideration, the receipt of which considerations
being hereby acknowledged and the adequacy of which consideration being hereby
confessed, Westergren . . . does hereby fully and unconditionally REMISE,
RELEASE AND FOREVER DISCHARGE . . . MICHAEL J. PLANK, THE
PLANK COMPANIES, INC., the Owning Entities, and [others] . . . of and from
any and all manner of action and actions, cause and causes of action, and all claims
and demands whatsoever, . . . which [Westergren] . . . can, shall or may have for,
upon or by reason of any matter, cause [or] occurrence . . . proximately or remotely,
from the beginning of the world to and through the day of the date of this release
arising out of, relating to, or pertaining in any way, directly or indirectly, to: (i) the
Subject Property; (ii) the Owning Entities; and (iii) the Income and Proceeds.
This release is intended to release all liability described above of any character for
damages of any type or nature . . . with respect to the matters released above.

Westergren chose not to read this release before he signed it in the presence of a notary and instead

relied on Plank’s representations regarding its contents. We hold that, as a matter of law, that

reliance was not justifiable.

It is well-established that “[t]he recipient of a fraudulent misrepresentation is not justified

in relying upon its truth if he knows that it is false or its falsity is obvious to him.” RESTATEMENT

(SECOND) OF TORTS § 541 (1977). Thus, as Texas courts have repeatedly held, a party to a

written contract cannot justifiably rely on oral misrepresentations regarding the contract’s

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unambiguous terms. See, e.g., Thigpen v. Locke, 363 S.W.2d 247, 251 (Tex. 1962) (“In an arm’s-

length transaction the defrauded party must exercise ordinary care for the protection of his own

interests . . . . [A] failure to exercise reasonable diligence is not excused by mere confidence in the

honesty and integrity of the other party.”) (citation omitted). This is particularly true when the

party had a reasonable opportunity to review the written agreement but failed to exercise ordinary

care to do so. See Tex. & Pac. Ry. Co. v. Poe, 115 S.W.2d 591, 592 (1938) (holding that evidence

was legally insufficient to support a finding of fraud where party who relied on oral statement that

release was receipt had an opportunity to read the document which plainly identified itself as a

release); see also Thigpen, 363 S.W.2d at 251.

The court of appeals concluded that Westergren did not have an adequate opportunity to

review the release. Under these facts, we disagree. Westergren’s testimony conclusively

established that he had ample opportunity to read the release but instead chose to rely solely on

Plank’s representations because he was “in a hurry” and did not have his reading glasses with him.1

Yet he acknowledged that he could have used the magnifier on his watch or had someone read the

document to him, and no evidence indicates that anyone prevented him from doing so. See 409

S.W.3d 128, 151 (Frost, J., dissenting) (finding “no legal basis for the majority’s conclusion” that

Plank used “trickery or artifice” to prevent Westergren from reading the release). Instead of

excusing a party’s failure to read a contract when the party has an opportunity to do so, the law

1
The court of appeals thought it relevant that Plank knew that Westergren had an attorney and had
communicated with him but did not involve him in the drafting of the Release or send him a copy. 409 S.W.3d at 126–
28. While these facts might be relevant to the issue of whether Westergren could understand the Release had he read
it, we disagree that they could support a conclusion that he had no reasonable opportunity to read it. At a minimum,
the language of the Release unambiguously made it clear that it was a “RELEASE,” and that Westergren was releasing
all claims to the property and against NPH and Michael Plank related to the property, and there is no basis to conclude
that he was incapable of understanding that. In fact, Westergren’s ability to understand the Release is not disputed,
and his own testimony establishes that he was a sophisticated businessman who had personally participated in many
contractual transactions. Any issue over whether he needed help to understand it would be irrelevant when, by his
own admission, he made no effort to read it.

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presumes that the party knows and accepts the contract terms. See, e.g., Poe, 115 S.W.2d at 592;

Indem. Ins. Co. of N. Am. v. W.L. Macatee & Sons, 101 S.W.2d 553, 556 (1937); cf. In re Lyon

Fin. Servs., Inc., 257 S.W.3d 228, 232 (Tex. 2008); In re Prudential Ins. Co. of Am., 148 S.W.3d

124, 133–34 (Tex. 2004); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505 (Tex.

1993). Here, Westergren’s decision not to read the release and instead to rely on Plank’s

representations because he did not have his glasses and was “in a hurry” was not justifiable.

As we have recently observed, it is not the courts’ role “to protect parties from their own

agreements.” El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 810–11 (Tex.

2012). Thus, as the United States Supreme Court explained long ago:

It will not do for a man to enter into a contract, and, when called upon to respond
to its obligations, to say that he did not read it when he signed it, or did not know
what it contained. If this were permitted, contracts would not be worth the paper on
which they are written. But such is not the law. A contractor must stand by the
words of his contract; and, if he will not read what he signs, he alone is responsible
for his omission.

Upton v. Tribilcock, 91 U.S. 45, 50 (1875); see also Indem. Ins., 101 S.W.2d at 556 (“One is

presumed to intend what he does or undertakes to do by the terms of a written instrument

voluntarily signed by him.”). We conclude that Westergren’s evidence was legally insufficient to

support the jury’s finding that he justifiably relied on Plank’s representations, and thus constitutes

no evidence of fraudulent inducement to negate the release’s validity.

However, the parties also dispute the scope of the release. In particular, the jury found that

the oral contract was an agreement only between Westergren and Plank, in Plank’s individual

capacity, and Westergren argues that the release did not release any claims against Plank. We need

not resolve this issue, however, because we agree with Plank’s alternative argument that the oral

contract is unenforceable under the statute of frauds. Under the statute of frauds, “a contract for

the sale of real estate” is unenforceable unless it is in writing and signed by the person to be

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charged. TEX. BUS. & COM. CODE § 26.01. Whether a contract comes within the statute of frauds

is a question of law, which we review de novo. Dynegy, Inc. v. Yates, 422 S.W.3d 638, 642 (Tex.

2013). Westergren concedes that the contract at issue was for the sale of real estate and was not in

writing or signed, but he relies on the “partial performance exception” to the statute of frauds.

Under this exception, he contends, an otherwise unenforceable oral contract becomes enforceable

in equity if one party partially performs its obligations and “denial of enforcement would amount

to a virtual fraud.” Westergren contends that Plank partially performed his obligations under the

oral contract by paying half of the promised $1 million payment, and thus the oral contract is

enforceable in equity despite the statute of frauds.

Without adopting Westergren’s description of the “partial performance exception,”2 we

conclude that, even under his theory, the exception does not apply here. As argued by Westergren,

one of the exception’s requirements is that the performance on which the party relies must be

“unequivocally referable to the agreement.” Chevalier, 213 S.W.2d at 533 (emphasis added). In

other words, the purpose of the alleged acts of performance must be to fulfill a specific agreement.

If the evidence establishes that the party who performed the act that is alleged to be partial

performance could have done so for some reason other than to fulfill obligations under the oral

contract, the exception is unavailable.

2
On the few occasions that this Court has discussed this equitable exception to the statute of frauds, we have
made it clear that it requires more than just one party’s performance of some obligation under the alleged oral contract.
See, e.g., Chevalier v. Lane’s, Inc., 213 S.W.2d 530, 533 (Tex. 1948) (noting that even “‘full performance,’ in the
sense of full payment of the consideration by the purchaser, is held not to make the contract enforceable unless
accompanied by other circumstances, such as change of possession and erection of valuable improvements”). For
example, we explained that “to relieve a parol sale of land from the operation of the statute of frauds, three things
were necessary: 1. Payment of the consideration, whether it be in money or services. 2. Possession by the vendee. And
3. The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor;
or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser
if it were not enforced. Payment of the consideration, though it be a payment in full, is not sufficient.” Hooks v.
Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921). In light of Westergren’s failure to establish that Plank’s $500,000
payment was “unequivocally referable” to the oral contract, we need not and do not provide a complete explanation
of all of the partial performance exception’s requirements here.

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 Westergren contends that Plank’s payment of $500,000 constitutes partial performance of

the oral contract in which Plank agreed to pay $1 million, and that the payment is “unequivocally

referable” only to that contract.3 This is so, he contends, “because the release itself makes sense

only in the context of an attempt to settle Westergren’s claims based on the [oral contract],” and

“the jury was free to conclude that the only thing the release might plausibly have sought to

compromise was the [oral contract] itself.” We disagree. The fact that the payment was made to

“settle” and “compromise” Westergren’s “claims based on the [oral contract]” does not mean it

was made in performance of obligations under that contract. To the contrary, it establishes that the

payment was made to avoid performance of the oral contract. On its face, the release states that

Westergren’s agreement to release all claims against the property, the “Owning Entities,” and all

“Income and Proceeds” was made “in consideration of the sum of FIVE HUNDRED

THOUSAND AND NO/100ths DOLLARS ($500,000.00), and other good and valuable

consideration, the receipt of which of considerations being hereby acknowledged and the adequacy

of which considerations being hereby confessed.” Contrary to Westergren’s arguments, the

payment cannot be unequivocally referable to the oral contract, because the release that

Westergren signed expressly states that it was made in exchange for Westergren’s agreement to

the release. Furthermore, the payment could not be performance of the oral contract because it was

made by NPH, which was not a party to the oral contract—but was a party to the release.

To find partial performance of the oral contract, the court of appeals relied upon Plank’s

oral representation that the payment was the first half of the $1 million owed under the oral

contract. A party cannot rely upon oral representations to satisfy the partial performance exception,

3
Westergren also contends that he fully performed the agreement by releasing the lis pendens and giving up his
contractual right to the property. Like the $500,000 payment, these actions are not unequivocally referable to the oral
contract where the MSA explicitly requires these acts by Westergren.

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however. Rather, the kind of performance that justifies the exception to the statute of frauds is

“performance which alone and without the aid of words of promise is unintelligible or at least

extraordinary unless as an incident of ownership, assured, if not existing.” Chevalier, 213 S.W.2d

at 533 (emphasis added). The statute of frauds “unmistakably declares a policy that parol testimony

is too unreliable for proof of certain types of agreement, and courts must give heed to that policy

as well as to considerations of an equitable character.” Id. Therefore, Westergren cannot rely on

Plank’s oral representations to support a finding that the payment was unequivocally referable to

the oral contract. We hold that there is nothing in the nature of these acts that supports a jury

finding of partial performance to except the oral contract from the statute of frauds.

In summary, we conclude that there is no evidence to support the jury’s findings that Plank

fraudulently induced Westergren to sign the release, or that the oral contract is excepted from the

statute of frauds.

We now turn to Westergren’s tort claims for common law fraud, statutory fraud, and breach

of partnership duties. Although the jury found in favor of Westergren on the liability questions for

his common law and statutory fraud claims, the jury awarded him no damages for either claim.

Westergren did not appeal those findings. He therefore cannot recover damages on his fraud

claims. With respect to his partnership claim, we have held that the oral contract in which Plank

promised to make Westergren a partner with him and his brother is unenforceable under the statute

of frauds. Westergren’s claim for breach of partnership duties therefore must fail as well.

Finally, we turn to the Plank parties’ argument that the court of appeals erred in affirming

the trial court’s take-nothing judgment on their counterclaims against Westergren for breach of the

release and the MSA. The Plank parties contend that a party who releases a claim and later files

suit on that claim necessarily breaches the release agreement. We disagree. Although the Plank

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parties rely on a number of cases to support their argument, none of those cases reads a covenant

not to sue into a release that does not include such a promise. They also rely on one case in which

a court stated that a covenant not to sue can be construed as a release, arguing that the reverse must

also be true. See Dicker v. Lomas & Nettleton Fin. Corp., 576 S.W.2d 672, 675 (Tex. Civ. App.—

Texarkana 1978, writ ref’d n.r.e.) (noting that “an agreement not to sue can be construed as a

release”). Westergren, in turn, argues that the release provides only an affirmative defense because

it provides only that it “may be pleaded as an absolute and final bar to any or all suit” and does not

include an express or implied covenant not to sue or to indemnify the released parties. We must

review the MSA and release language to determine whether either agreement includes a

contractual obligation not to sue.

The intent of the MSA was to settle the suit between Westergren and the other parties to

the initial litigation, who are not before the Court in this case. We find no language in the MSA in

which Westergren agreed not to sue the Plank parties. In fact, the agreement contemplates that the

parties may bring suit by providing that the parties “may not recover attorney’s fees or costs in any

litigation brought to construe or enforce this agreement. Otherwise, if unsuccessful, the prevailing

party or parties shall be entitled to recover reasonable attorney’s fees and expenses.” This provision

indicates that a suit may be brought, even though the agreement is in effect, and in no way suggests

that filing a suit concerning the MSA’s released claims results in a breach. Therefore, Westergren’s

claims did not breach the MSA.

We also find that the release is unambiguous as to this point. The parties intended the

release “to release all liability described” within the agreement. Like the MSA, it includes no

language barring Westergren from bringing suit or stating that he would breach the release by

doing so. To the contrary, this agreement has a provision stating essentially that should a future

12
suit be brought, the release may be pleaded as an absolute bar to the suit—in other words, it

provides the parties with an affirmative defense.4 See TEX. R. CIV. P. 94 (listing affirmative

defenses, including release). Although the release provides an affirmative defense to future suits,

we cannot construe it as including a covenant not to sue where, in fact, the plain language does not

bar future suits. Just as Westergren is bound to the actual language of the release, so are the Plank

parties. The court of appeals, therefore, did not err in affirming the trial court’s judgment based on

the jury verdict in favor of Westergren on the Plank parties’ claims for breach of the MSA and

release.

We grant the Plank parties’ petition for review, and without hearing oral argument, we (1)

reverse the court of appeals’ judgment as to Westergren’s claim for breach of the oral contract,

Westergren’s claim for attorney’s fees, and the trial court’s allocation of court costs, (2) reinstate

the trial court’s judgment that Westergren take nothing on his claims for breach of the oral contract

and for attorney’s fees and the trial court’s taxing of court costs against Westergren, and (3) affirm

the court of appeals’ take-nothing judgment on Westergren’s partnership and fraud claims and on

the Plank parties’ counterclaims for breach of contract and attorney’s fees against Westergren.

TEX. R. APP. P. 59.1.

Opinion Delivered: January 9, 2015

4
The release states that it “may be pleaded as an absolute and final bar to any or all suit or suits pending or which
may hereafter be filed or prosecuted.”

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