Opinion issued April 22, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00617-CV
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SIMON RAMIREZ, Appellant
V.
COLONIAL FREIGHT WAREHOUSE CO. INC., Appellee
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Case No. 2011-20238
OPINION
Simon Ramirez appeals a no-evidence summary judgment granted to
Colonial Freight Warehouse Co., Inc. on his personal injury suit. In two issues,
Ramirez contends that the trial court erred in granting summary judgment because
Ramirez produced evidence sufficient to raise a genuine issue of material fact on
each challenged element of his negligence claim. We conclude that Ramirez has
raised a genuine issue of material fact on each element, precluding summary
disposition of his claim. We, therefore, reverse and remand.
Background
Ramirez, a truck driver, was struck by a truck while walking across the
fueling area of a truckstop. The truck that struck him was driven by a Colonial
Freight employee, Winnfred Lipsius. Ramirez described the accident in his
deposition, which he attached as evidence to his summary judgment response.
According to Ramirez’s testimony, the Colonial Freight truck sat idling in the
parking lot of the truckstop. Before walking in front of the stopped vehicle,
Ramirez attempted to make eye contact with the truck’s driver, Lipsius, to ensure
Lipsius could see him. Ramirez testified that Lipsius was looking to his left and
never turned forward to see Ramirez standing at the front, passenger side of his
truck. When Ramirez could not get Lipsius’s attention, Ramirez walked in front of
the vehicle, leaving a distance of about five feet between the truck and himself. But
Lipsius’s truck pulled forward before Ramirez made it across. Ramirez heard the
truck “throttle up” and jumped to move out of the way. The truck’s front,
passenger side struck him.
Ramirez also testified about his injuries. Upon impact, he fell to his knees
then “pulled [him]self up” unassisted. He had been carrying two milkshakes in his
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hands when the accident occurred. The impact and fall did not cause him to drop
either shake. Nonetheless, he said, “I felt hurt.” He lay down in his truck bunk,
“already feeling . . . the pain.” He had a cut on his elbow that was bleeding, and his
left shoulder was red and bruised. He testified that his shoulder hurt immediately:
“[I]t was just hurting, you know, bullets in the back. And my arm was numb.”
Also, his neck hurt. He took ibuprofen and drove from Houston, where the
accident occurred, to Brownsville later that day.
The next morning, he felt like he “couldn’t get up.” He was examined three
days after the injury by Dr. Orso, who ordered x-rays. Ramirez understood from
his conversation with Dr. Orso that he was hurt, that the discs in his spine were out
of place, and that he would need additional treatment. Though he was told to return
to Dr. Orso’s office in two weeks, he did not. He next saw Dr. Bettencourt who
performed a procedure on his neck. Later he saw Dr. Aggarwal who gave him
injections in his neck. Eventually he had neck surgery and shoulder surgery.
Lipsius testified in his deposition, which also was attached as summary
judgment evidence, that he had pulled his truck forward from the fueling station to
a yellow line that designates where trucks need to stop to leave room for another
truck to enter the fueling station behind them. He then decided he wanted
something to drink and went inside the store. When he saw the long line, he went
back to his truck, which was still parked in the fueling area. He started the truck,
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released the air brake, and then looked both directions. When he looked left he saw
a truck next to him and waited to see if it was going to exit the fueling area first.
When that truck stopped, Lipsius removed his foot from the brake, and his truck
moved forward one or two feet. Immediately after that, he saw Ramirez “spinning
out from in front of [his] truck . . . .” He had not seen Ramirez before then. Lipsius
admitted that he did not look around again between the time that his attention was
focused on the other truck and the moment he began accelerating. He further
admits that his truck hit Ramirez.
Lipsius also testified that he had a total of eight “incidents” listed on his
driving report, which details prior incidents, accidents, tickets, and reasons for
leaving various employers. He described four of these incidents, which occurred
over a six-year period. The last involved an accident in which his truck hit a
guardrail, caught on fire, and “burn[ed] to the ground.” According to Lipsius’s
deposition testimony, with eight incidents on his report, “nobody else would
touch” him.
Lipsius testified that he applied online to drive for Colonial Freight and that
Colonial Freight did not ask for references. No one at Colonial Freight inquired
about his driving history or past accidents. Lipsius testified that he told the
Colonial Freight “safety/recruiting” employee about the guardrail accident and that
he was fired as a result, and she told him “not to say anything” about that accident
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to anybody else in the company. He eventually told the company owner about the
incident and was told “not to worry about it.”
Ramirez sued Colonial Freight, alleging that the accident caused his personal
injuries and required subsequent surgical procedures to his neck and shoulder.
Colonial Freight moved for no-evidence summary judgment, contending that
Ramirez had no evidence of the breach and causation elements of his negligence
claim and, therefore, also had no evidence on two elements of his negligent
entrustment and negligent hiring claims. Ramirez responded, attaching as evidence
his and Lipsius’s depositions. Ramirez did not file his own affidavit or an affidavit
from any physician in response to the summary judgment motion. The trial court
granted Colonial Freight’s motion without specifying the element for which
Ramirez failed to produce evidence. Ramirez appealed.
Standard of Review
In a Rule 166a(i) no-evidence summary judgment, the movant contends that
no evidence exists as to one or more essential elements of the nonmovant’s claims,
upon which the nonmovant would have the burden of proof at trial. TEX. R. CIV. P.
166a(i). The nonmovant has the burden to present evidence raising a genuine issue
of material fact on the challenged elements. Id. A no-evidence summary judgment
is essentially a pre-trial directed verdict. Bendigo v. City of Houston, 178 S.W.3d
112, 113–14 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
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On review, we ascertain whether the nonmovant produced more than a
scintilla of probative evidence to raise a genuine issue of material fact. Aleman v.
Ben E. Keith Co., 227 S.W.3d 304, 308 (Tex. App.—Houston [1st Dist.] 2007, no
pet.). More than a scintilla exists if the evidence “‘rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions.’” King Ranch,
Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharm.,
Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). If the evidence does no more
than create a mere surmise or suspicion of fact, less than a scintilla of evidence
exists. Havner, 953 S.W.2d at 711–12. To defeat a no-evidence motion for
summary judgment, the nonmovant is not required to marshal its proof; his
response need only point out evidence that raises a fact issue on the challenged
elements. TEX. R. CIV. P. 166a(i) cmt.; Saenz v. S. Union Gas Co., 999 S.W.2d
490, 493–94 (Tex. App.—El Paso 1999, pet. denied).
Ramirez’s Summary Judgment Evidence
Colonial Freight’s motion focused on the breach and proximate cause
elements of negligence. In response, Ramirez attached Lipsius’s deposition
transcript and his own deposition transcript, contending that Lipsius’s testimony
raised an issue of material fact on the breach element while his testimony raised an
issue on causation by establishing the nature and extent of his injuries and that the
“onset of painful symptoms began at the moment of the incident.” We must
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determine whether Ramirez’s summary judgment evidence raised an issue of
material fact on each of the challenged elements of his negligence claim.
Breach Element
Colonial Freight moved for no-evidence summary judgment on the breach
element of the negligence claim, arguing that there was no evidence that Lipsius’s
conduct fell below the standard of care of a driver or violated a statute.
A negligence cause of action has three elements: (1) a legal duty, (2) breach
of that duty, and (3) damages proximately resulting from the breach. See Praesel v.
Johnson, 967 S.W.2d 391, 394 (Tex. 1998). A person owes another the duty to act
as a reasonably prudent person would act under the same or similar circumstances
regarding a reasonably foreseeable risk. Colvin v. Red Steel Co., 682 S.W.2d 243,
245 (Tex. 1984).
Colonial Freight challenges the second element of Ramirez’s negligence
claim: breach of the duty of reasonable care. Ramirez’s summary judgment
response identified specific portions of Lipsius’s deposition testimony that he
claims raised a fact issue. Lipsius testified that he looked both directions before
attempting to drive away from the truckstop. When he looked left, he saw a truck
next to him and waited to see if it was going to exit the fueling area first. When
that truck did not go, Lipsius removed his foot from the brake, and his truck moved
forward one or two feet. Lipsius admitted that he did not look around again
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between the time that his attention was focused on the other truck and the moment
he began accelerating.
Viewing this evidence in the light most favorable to the nonmovant,
reasonable and fair-minded people could differ in their conclusions about whether
Lipsius was negligent in failing to look out for pedestrians near his truck before
accelerating. See City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)
(stating that evidence is to be viewed in light most favorable to nonmovant).
Accordingly, we conclude that Ramirez raised a genuine issue of material fact on
the breach element of his negligence claim to avoid summary judgment on that
issue.
Causation Element
To establish causation in a personal injury case, a plaintiff must prove that
the defendant’s conduct caused an event and that the event caused the plaintiff to
suffer compensable injuries. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497,
499 (Tex. 1995).
Ramirez contends that he properly defeated Colonial Freight’s summary
judgment motion challenging his evidence on the causation element because his
deposition established the nature and extent of his injuries and the “onset of painful
symptoms began at the moment of the incident.” Ramirez referred to his attached
deposition in his summary judgment response; however, he did not refer to any
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portion of the deposition with specificity. He also did not rely on expert testimony
to establish causation.
We consider first whether Ramirez’s nonspecific reference to his deposition,
attached in its entirety as summary judgment evidence, adequately pointed out that
evidence to the trial court for consideration in ruling on the summary judgment
motion.
A. Whether Ramirez’s reference to evidence was adequate
A general reference to a voluminous summary judgment record is
inadequate to meet the evidentiary burden in a summary judgment. See Rogers v.
Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex. 1989) (“Such a general reference to
a voluminous record which does not direct the trial court and parties to the
evidence on which the movant relies is insufficient.”); Eaton Metal Prods., L.L.C.
v. U.S. Denro Steels, Inc., No. 14-09-00757-CV, 2010 WL 3795192, *6 (Tex.
App.—Houston [14th Dist.] Sept. 30, 2010, no pet.) (holding that “[b]lanket
citation to voluminous records” of approximately 700 pages was improper and did
not raise a fact issue). This Court similarly has held that a trial court did not abuse
its discretion in refusing to consider summary judgment evidence attached to a
summary judgment response when the nonmovant attached a complete deposition
transcript that was over 500 pages in length without referring the trial court to any
specific portion of the deposition. Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex.
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App.—Houston [1st Dist.] 1996, no writ); cf. Nicholson v. Naficy, 747 S.W.2d 3, 4
n.1 (Tex. App.—Houston [1st Dist.] 1987, no writ) (refusing to consider testimony
from deposition in appellate record that “was not cited, quoted, [or] attached to any
motion or response” as summary judgment evidence).
The deposition here, however, was attached and was not voluminous. It
consisted of 110 total pages of testimony. Ramirez’s testimony about his injuries
began on page 56 and concluded by page 102.
We have previously noted that when a party attaches as summary judgment
evidence a complete deposition transcript that is brief and provides a description of
the facts sufficient to “connect . . . the facts to the challenged elements of the
cause,” the party has met its burden to point the trial court to evidence raising a
fact issue. See Aleman, 227 S.W.3d at 309–10 (stating that “sheer brevity of the
evidence cited served to adequately ‘connect . . . the facts to the challenged
elements of the causes of action’” and, therefore, holding that party met “minimum
requirements” of Rule 166a(i) to point out evidence that raises fact issue on
challenged elements) (quoting Brewer & Pritchard, P.C. v. Johnson, 7 S.W.3d
862, 869 (Tex. App.—Houston [1st Dist.] 1999), aff’d, 73 S.W.3d 193 (Tex.
2002)). Similarly, in Stephens v. Precision Drilling Oilfield Servs. Corp., No. 01-
11-00326-CV, 2013 WL 1928797, at *7 (Tex. App.—Houston [1st Dist.] May 9,
2013, no pet.) (mem. op.), this Court held that a general reference to all unattached
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pleadings, arguments, and evidence is insufficient to invoke particular evidence for
summary-judgment purposes but an express reference to a short affidavit is
sufficient to point out that piece of evidence and have it considered. Id. (citing
Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207–08 (Tex. 2002)); see
also Barraza v. Eureka Co., a Div. of White Consol. Indus., Inc., 25 S.W.3d 225,
229–30 (Tex. App.—El Paso 2000, pet. denied) (holding that general reference to
non-voluminous deposition transcripts and other evidence of less than 300 pages
attached as summary judgment evidence was adequate); Gallegos v. Johnson, No.
13-07-00603-CV, 2010 WL 672934, at *6 (Tex. App.—Corpus Christi Feb. 25,
2010, no pet.) (mem. op.) (holding that nonspecific reference to 185 pages of
deposition transcripts in summary judgment response was sufficient because record
was not voluminous and a “mere cursory review of the deposition testimony . . .
raised issues of material fact regarding the underlying” claim).
Ramirez attached his own deposition as summary judgment evidence and
referred the trial court to it, stating that it contained evidence of the nature and
extent of his injuries and that his symptoms began with this accident. Ramirez
testified that he suffered back and shoulder pain immediately after the impact and
that it continued until he sought medical attention from Dr. Orso three days later.
Ramirez’s testimony on these issues begins on the 56th page of his deposition.
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We conclude that Ramirez’s nonspecific reference to his deposition
testimony was adequate, given the brevity of the deposition and lack of complexity
of issues raised and addressed in the deposition. Aleman, 227 S.W.3d at 309–10.
Ramirez also relied on medical records to demonstrate his injuries. Ramirez
did not attach these records to his summary judgment response. Instead, he referred
to the records previously filed with the trial court as attachments to Texas Civil
Practice and Remedies Code section 18.001 affidavits. TEX. CIV. PRAC. & REM.
CODE ANN. § 18.001 (allowing uncontroverted affidavits of medical expenses to
support finding of fact by judge or jury that amount charged was reasonable and
service was necessary). In total, there were 27 pages of medical records from four
doctors.
Colonial Freight contends that the medical records were not part of the
summary judgment record and, therefore, could not be used as evidence to defeat
its motion when the trial court made its ruling. Colonial Freight further contends
that Ramirez waived any argument that the records can be considered on appeal
because he did not challenge the trial court’s denial of his motion to reconsider the
grant of summary judgment to Colonial Freight.
A nonmovant responding to a summary judgment motion is not required to
“needlessly duplicate evidence [that is] already found in the court’s file.” Saenz,
999 S.W.2d at 494. Instead, he can request in his motion that the trial court take
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judicial notice of evidence already in the record or, alternatively, incorporate that
evidence in his motion by reference. Steinkamp v. Caremark, 3 S.W.3d 191, 194–
95 (Tex. App.—El Paso 1999, pet. denied); Fears v. Tex. Bank, 247 S.W.3d 729,
734–35 (Tex. App.—Texarkana 2008, pet. denied); Sadler v. Tex. Farm Bureau
Mut. Ins. Cos., No. 04-12-00789-CV, 2013 WL 4736392, at *3 (Tex. App.—San
Antonio Sept. 4, 2013, no pet.) (mem. op.).
Incorporating by reference does not require “magic language”; instead, the
nonmovant simply must alert the court that previously filed documents are being
relied upon and make the court aware of which ones are to be considered.
Steinkamp, 3 S.W.3d at 194; see Saenz, 999 S.W.2d at 494. Ramirez stated in his
summary judgment response that “Plaintiff[’s] medical and billing records . . . have
been produced to all Defendants and have been on file with this Court pursuant to
TEX. CIV. PRAC. & REM. CODE ANN. § 18.001.” Ramirez argued that these records
raised an issue of material fact on proximate cause. That reference was adequate to
include the medical records in Ramirez’s summary judgment evidence that was
before the trial court when it ruled. Because the records were incorporated in
Ramirez’s summary judgment response, Colonial Freight’s waiver argument is
overruled.
Having concluded that the references to the deposition testimony and the
medical records were adequate to bring them within the summary judgment
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evidence, we consider next whether Ramirez’s evidence raised an issue of material
fact to defeat Colonial Freight’s no-evidence summary judgment motion on
causation absent expert testimony.
B. Causal link between incident and injuries
Non-expert evidence can be sufficient to support a finding of causation “in
limited circumstances where both the occurrence and conditions complained of are
such that the general experience and common sense of laypersons are sufficient to
evaluate the conditions and whether they were probably caused by the occurrence.”
Guevara v. Ferrer, 247 S.W.3d 662, 668 (Tex. 2007); see also Figueroa v. Davis,
318 S.W.3d 53, 60–61 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (holding
that, in some circumstances, lay testimony can establish logically traceable
connection between event and condition and be sufficient proof of causation). The
evidence must be adequate to allow a layperson, using general experience and
common sense, to determine the causal relationship with reasonable probability.
Guevara, 247 S.W.3d at 668.“[L]ay testimony establishing a sequence of events
which provides a strong, logically traceable connection between the event and the
condition is sufficient proof of causation.” Morgan v. Compugraphic Corp., 675
S.W.2d 729, 733 (Tex. 1984); Guevara, 247 S.W.3d at 669 (holding that lay
testimony was legally sufficient to support jury’s finding that at least some of
medical expenses were causally related to automobile accident that same day); see
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also Sw. Bell Tel., L.P. v. Valadez, No. 2-07-129-CV, 2008 WL 425746, at *3
(Tex. App.—Fort Worth Feb. 14, 2008, no pet.) (holding that plaintiff’s testimony
was legally sufficient evidence of causation to support jury’s verdict given that
type and extent of injuries suffered were within layperson’s common knowledge
and expectation).
In Figueroa, the plaintiff hit his mouth on the steering wheel during a car
accident. 318 S.W.3d at 58, 61. The plaintiff testified that his mouth hurt, his teeth
were cracked, and, after just a couple of days, his teeth broke into pieces and fell
out. See id. at 61. The defendant argued that there was legally insufficient evidence
that the dental injury was caused by the accident. Id. at 58. This Court concluded
that the plaintiff’s lay testimony was legally sufficient evidence of causation,
stating that the evidence was “akin to the ‘pain, bone fractures, and similar basic
conditions following an automobile collision’ that the Guevara court indicated
would fall within the common experience of lay persons so that causation could
stand on lay testimony.” Id. at 61; see also Valadez, 2008 WL 425746, at *3
(holding that plaintiff’s lay testimony—that he experienced severe pain to shoulder
immediately upon falling into hole, combined with evidence that he had not had
pain before accident—sufficed to show causation).
Ramirez complained of immediate pain in his back, neck and shoulder. He
testified that he was “already feeling . . . the pain,” which was like “bullets in the
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back,” as well as numbness in his arm before he left the truckstop. The next
morning was worse; he felt like he “couldn’t get up.” Ramirez’s medical records
corroborate his deposition testimony that he complained of pain in his back and
shoulder immediately after the accident These complaints of pain and general
soreness fall within the general knowledge and experience of lay persons and are
the types of complaints that would be expected following impact with a vehicle.
Guevara, 247 S.W.3d at 668; Figueroa, 318 S.W.3d at 60–61. We conclude that
Ramirez met his burden, through lay testimony, to defeat Colonial Freight’s no-
evidence summary judgment motion on the causation element of negligence.
C. Causal link between conduct and incident
Colonial Freight also argues that Ramirez was the sole proximate cause of
the accident because he acted unreasonably by walking in front of Lipsius’s truck
without confirming that Lipsius saw him there. “Sole proximate cause” means the
“only” proximate cause; if there is more than one proximate cause of an event, no
single proximate cause can be considered the sole cause. See First Assembly of
God, Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482, 493 (Tex. App.—Dallas 2001,
no pet.) We have already concluded that Ramirez raised an issue of fact as to
whether Lipsius’s negligence caused the accident and whether the accident caused
his injuries; therefore, Colonial Freight could not, as a matter of law, obtain no-
evidence summary judgment on its sole proximate cause theory.
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We turn next to the other negligence-based claims Ramirez asserted, which
are negligent entrustment and negligent hiring.
Negligent Entrustment
Ramirez sued Colonial Freight on a negligent entrustment theory in addition
to general negligence. To prevail on a negligent entrustment theory, a plaintiff
must show (1) that the vehicle owner entrusted the vehicle (2) to an unlicensed,
incompetent, or reckless driver, (3) that the owner knew or should have known that
the driver was unlicensed, incompetent, or reckless, (4) that the driver was
negligent on the occasion in question, and (5) that the driver’s negligence
proximately caused the accident. See Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 758 (Tex. 2007); Schneider v. Esperanza Transmission Co., 744
S.W.2d 595, 596 (Tex. 1987).
Colonial Freight challenges the last two elements of Ramirez’s negligent
entrustment claim. We have already concluded that Ramirez raised an issue of
material fact on each of those issues; therefore, Colonial Freight was not entitled to
no-evidence summary judgment on this claim.
Negligent Hiring
Ramirez also contended that Colonial Freight was liable for negligently
hiring Lipsius. An employer has a general duty to adequately hire, train, and
supervise its employees. See Houser v. Smith, 968 S.W.2d 542, 544 (Tex. App.—
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Austin 1998, no pet.) A claim of negligent hiring and supervision is based on the
employer’s direct negligence: an employer who negligently hires an incompetent
or unfit individual may be directly liable to a third party whose injury was
proximately caused by the employee’s negligent or intentional act. Verinakis v.
Med. Profiles, Inc., 987 S.W.2d 90, 97 (Tex. App.—Houston [14th Dist.] 1998,
pet. denied) (citing Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v.
Akins, 926 S.W.2d 287, 294 (Tex. 1996). Colonial Freight challenges only those
elements of Ramirez’s negligent hiring cause of action related to its employee’s
negligence and proximate cause. We have determined that Ramirez raised a fact
issue on each element; therefore, Colonial Freight is not entitled to summary
judgment on this claim.
Conclusion
Having concluded that Ramirez raised a genuine issue of material fact on
each element Colonial Freight challenged in its no-evidence summary judgment
motion, we further conclude that the trial court erred in granting summary
judgment to Colonial Freight.
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The trial court’s judgment is reversed, and the cause is remanded to the trial
court for further proceedings consistent with this opinion.
Harvey Brown
Justice
Panel consists of Justices Keyes, Bland, and Brown.
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