COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00301-CV
DEBORAH OLSON MONTOYA APPELLANT
V.
BLUEBONNET FINANCIAL ASSETS APPELLEE
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FROM THE 30TH DISTRICT COURT OF W ICHITA COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant Deborah Olson Montoya appeals the trial court’s grant of summary
judgment in favor of appellee Bluebonnet Financial Assets. W e affirm in part and
reverse in part.
1
… See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
Chase Bank USA, N.A. issued a credit card to Montoya, who made purchases
with the card and subsequently defaulted on her account. On November 3, 2006,
Chase Bank sold the account to CreditMax LLC. CreditMax then sold Montoya’s
account to Bureaus Investment Group Portfolio No. 10, LLC. Bureaus Investment
Group Portfolio No. 10, LLC sold Montoya’s account to Creditor Holdings, LLC d/b/a
Bluebonnet Financial Assets. Bluebonnet then sued Montoya for the unpaid account
balance on September 24, 2008.
Montoya answered the suit and filed her own counterclaim for a declaratory
judgment, alleging that Bluebonnet’s filing the suit was wrong and was intended to
harass, intimidate, and cause her financial harm; she also filed a counterclaim for
violations of the finance code and the Texas Deceptive Trade Practices Act (DTPA),
as well as intentional infliction of emotional distress.
Bluebonnet filed a crossclaim, denying the allegations in Montoya’s
counterclaim, alleging that Montoya’s counterclaim was “groundless and brought in
bad faith for purposes of harassment,” and seeking attorney’s fees and court costs.
Bluebonnet also served Montoya with discovery requests, including interrogatories,
requests for admissions, and requests for production of documents and things.
Montoya provided responses to the requests for admissions but did not respond to
Bluebonnet’s other discovery requests. Bluebonnet filed a combined traditional and
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no-evidence motion for summary judgment on February 18, 2009, which the trial
court granted. Montoya now appeals.
III. Discussion
A. Public policy challenges
In her first two issues, Montoya argues that, as a matter of public policy, credit
card debt should not be assignable to third-party debt collectors and that debt
collectors should not be able to recover on these delinquent credit card accounts via
the stated account cause of action. Montoya did not raise these issues in the trial
court; instead, she argues them for the first time in this appeal. To preserve a
complaint for appellate review, a party must have presented to the trial court a timely
request, objection, or motion that states the specific grounds for the desired ruling,
if they are not apparent from the context of the request, objection, or motion. Tex.
R. App. P. 33.1(a); see also Tex. R. Evid. 103(a)(1). If a party fails to do this, error
is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W .2d 711,
3
712 (Tex. 1991) (op. on reh’g).2 Because Montoya’s public policy arguments are
unpreserved, we do not address them. We overrule her first and second issues.
B. Bluebonnet’s “Traditional” Motion for Summary Judgment
In part of her third issue, Montoya argues that Bluebonnet was not entitled to
summary judgment because the evidence did not conclusively establish all essential
elements of its account stated cause of action. In her fourth issue, Montoya claims
that Bluebonnet was not entitled to summary judgment on its quantum meruit claim
because the evidence established that the parties were in an express contractual
relationship, and she disagrees with the amount claimed. And in her sixth issue, she
complains that Bluebonnet was not entitled to summary judgment on either its
traditional or no-evidence summary judgment motions.
1. Standard of Review
W e review a summary judgment de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W .3d 844, 848 (Tex. 2009). W e consider the
2
… Error is not waived if it falls within the narrow category of “fundamental
error,” which requires no trial court predicate for appellate review. In re B.L.D., 113
S.W .3d 340, 350 (Tex. 2003), cert. denied, 541 U.S. 945 (2004). Fundamental error
exists in those instances in which error directly and adversely affects the interest of
the public generally, as that interest is declared by the statutes or constitution of our
state, or instances in which the record affirmatively and conclusively shows that the
court rendering the judgment was without jurisdiction of the subject matter. Mack
Trucks, Inc. v. Tamez, 206 S.W .3d 572, 577 (Tex. 2006). Montoya does not contend
on appeal that the issue of third-party debt collectors’ suing to collect on delinquent
accounts is one that invokes the fundamental-error doctrine, and we decline to so
hold.
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evidence presented in the light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if reasonable jurors could, and disregarding evidence
contrary to the nonmovant unless reasonable jurors could not. Id. W e indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc.
v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff is entitled to summary
judgment on a cause of action if it conclusively proves all essential elements of the
claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W .2d 59, 60
(Tex. 1986).
2. Account Stated
A party is entitled to relief for a stated account when (1) transactions between
the parties give rise to indebtedness of one to the other; (2) an agreement, express
or implied, between the parties fixes an amount due; and (3) the one to be charged
makes a promise, express or implied, to pay the indebtedness. Dulong v. Citibank
(S.D.), N.A., 261 S.W.3d 890, 893 (Tex. App.—Dallas 2008, no pet.). Montoya
asserts that the parties did not have an agreement that fixed the amount due
because she did not agree that the sum of $10,058.07 was the amount owing on the
account.
Bluebonnet’s summary judgment evidence included Montoya’s credit card
statements from April 2005 to June 2006; the last statement shows a $9,101.76
balance due. The November 3, 2006 bill of sale from Chase Bank’s sale of the
account to CreditMax shows a $10,058.07 final balance due. The sale documents
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for the next two sales of the account—from CreditMax to Bureaus Investment Group
Portfolio No. 10 and then from Bureaus Investment Group Portfolio No. 10 to
Bluebonnet—also list the amount due as $10,058.07. Theadora Stroo, Bluebonnet’s
manager, stated in her affidavit that Bluebonnet’s claim against Montoya for
$10,058.07 was “just and true” and that “all just and lawful offsets, payments[,] and
credits have been allowed.”
However, the record does not contain statements itemizing the increases in
the balance for any of the months between the June 2006 statement and the
November 2006 sale, nor is the method of calculating interest included to explain the
$956.31 difference between what Montoya owed in June and what was sold by
Chase Bank in November.3 Therefore, Bluebonnet’s own summary judgment
evidence creates a fact issue with regard to the fixed amount due. See Dulong, 261
S.W .3d at 893. W e sustain this portion of Montoya’s third issue. See, e.g., FFP
Mktg Co. v. Long Lane Master Trust IV, 169 S.W.3d 402, 412–13 (Tex. App.—Fort
W orth 2005, no pet.) (holding, in context of collection on notes, that since an
ambiguity existed in the summary judgment proof as to the amount due, reversal
was appropriate). Because of our disposition of this portion of Montoya’s third issue,
we need not address her other contentions with regard to Bluebonnet’s traditional
3
… Montoya does not contest that she had an agreement with Chase Bank.
However, the record does not contain evidence of all the terms and conditions of the
parties’ agreement from which we might have been able to determine how the
difference between the two figures was derived.
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motion for summary judgment for account stated in the remainder of her third issue.
See Tex. R. App. P. 47.1.
3. Quantum Meruit
Quantum meruit is an equitable remedy independent of a particular contract,
and a party may recover under quantum meruit only when there is no express
contract covering the services or materials furnished. Jaramillo v. Portfolio
Acquisitions, LLC, No. 14-08-00939-CV, 2010 W L 1197669, at *7 (Tex.
App.—Houston [14th Dist.] Mar. 30, 2010, no pet.) (mem. op). To recover under
quantum meruit, a plaintiff must prove that (1) valuable services were rendered or
materials furnished, (2) to the defendant, (3) which the defendant used and enjoyed,
(4) under circumstances that reasonably notified the defendant that the plaintiff
expected to be paid for the services or materials. Id. The measure of recovery for
a quantum meruit claim is the reasonable value of the services or materials
furnished. Lamajak, Inc. v. Frazin, 230 S.W .3d 795, 796 (Tex. App.—Dallas 2007,
no pet.); Hudson v. Cooper, 162 S.W .3d 685, 688 (Tex. App.—Houston [14th Dist.]
2005, no pet.).
Notwithstanding whether the credit card statements and other documents
entered in evidence by Bluebonnet establish an express contractual relationship that
would preclude Bluebonnet’s quantum meruit claim, they also show the reasonable
value of the services or materials furnished to Montoya as $9,101.76, and not the
$10,058.07 claimed by Bluebonnet. Therefore, the same fact issue precluding
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summary judgment on Bluebonnet’s account stated claim also precludes summary
judgment on its quantum meruit claim. See Lamajak, 230 S.W .3d at 796. W e
sustain Montoya’s fourth issue and the portion of her sixth issue pertaining to
Bluebonnet’s traditional summary judgment.
C. Bluebonnet’s No-Evidence Motion for Summary Judgment
Bluebonnet moved for a no-evidence summary judgment on Montoya’s
counterclaims, arguing that there was “no evidence of each and every element of
each of [Montoya’s] causes of action in her counterclaim.” In her fifth issue, Montoya
asserts that the no-evidence summary judgment was improper because an adequate
time for discovery had not passed. In part of her sixth issue, she challenges the no-
evidence summary judgment by arguing that Bluebonnet either incorrectly set out
the elements or altogether failed to set out the elements of her counterclaims for
intentional infliction of emotional distress, finance code violations, and DTPA
violations.4 She further argues that the motion failed to properly identify those
elements of her causes of action for which there was no evidence.
1. Standard of Review
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground that
there is no evidence to support an essential element of the nonmovant’s claim or
4
… Montoya does not challenge the trial court’s grant of summary judgment
on her declaratory judgment counterclaim.
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defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements
for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 S.W .3d 306, 310
(Tex. 2009). The trial court must grant the motion unless the nonmovant produces
summary judgment evidence that raises a genuine issue of material fact. See Tex.
R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).
W hen reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W .3d 291, 292 (Tex. 2006). W e review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton, 249 S.W .3d at 426 (citing City of Keller v. W ilson, 168
S.W .3d 802, 822 (Tex. 2005)). W e credit evidence favorable to the nonmovant if
reasonable jurors could, and we disregard evidence contrary to the nonmovant
unless reasonable jurors could not. Timpte Indus., Inc., 286 S.W .3d at 310 (quoting
Mack Trucks, Inc., 206 S.W .3d at 582). If the nonmovant brings forward more than
a scintilla of probative evidence that raises a genuine issue of material fact, then a
no-evidence summary judgment is not proper. Smith v. O’Donnell, 288 S.W .3d 417,
424 (Tex. 2009).
2. Adequate Time for Discovery
W hen a party contends that it has not had an adequate opportunity for
discovery before a summary judgment hearing, it must file either an affidavit
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explaining the need for further discovery or a verified motion for continuance. See
Tenneco Inc. v. Enter. Prods. Co., 925 S.W .2d 640, 647 (Tex. 1996) (citing Tex. R.
Civ. P. 166a(g), 251, 252). Montoya did neither.
The decision to allow Montoya more time for discovery was within the trial
court’s discretion. See id. Particularly in light of the fact that Montoya had provided
no response to the bulk of Bluebonnet’s discovery requests—including requests for
any and all documents supporting her allegations against Bluebonnet and
interrogatories seeking the reasons behind her claim that she did not owe
Bluebonnet on the account as alleged—the trial court could have reasonably
concluded that more time would not result in any additional discovery. W e hold that
the trial court did not abuse its discretion by determining that an adequate time for
discovery had passed with regard to Bluebonnet’s no-evidence motion for summary
judgment, and we overrule Montoya’s fifth issue.5
3. No Evidence Raising a Genuine Issue of Material Fact
Rule 166a(i) does not require a party moving for a no-evidence summary
judgment to state all the elements of its opponent’s claims, but it does require the
motion to “state the elements as to which there is no evidence.” Tex. R. Civ. P.
5
… In her fifth issue, as part of her argument that she did not have an
adequate time for discovery, Montoya points out that Bluebonnet filed a crossclaim
against Montoya six days before it filed its motion for summary judgment. However,
she does not argue that summary judgment was inappropriate on the crossclaim.
Therefore, we affirm the trial court’s grant of summary judgment and award of
attorney’s fees on this claim.
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166a(i). The trial court must grant the motion unless the nonmovant produces
summary judgment evidence that raises a genuine issue of material fact. See Tex.
R. Civ. P. 166a(i) & cmt.; Hamilton, 249 S.W .3d at 426. If the nonmovant brings
forward more than a scintilla of probative evidence that raises a genuine issue of
material fact, then a no-evidence summary judgment is not proper. Smith, 288
S.W .3d at 424.
a. Intentional Infliction of Emotional Distress
Montoya’s counterclaim for intentional infliction of emotional distress requires
proof that (1) the defendant acted intentionally or recklessly, (2) the defendant’s
conduct was extreme and outrageous, (3) the defendant’s actions caused the
plaintiff emotional distress, and (4) the resulting emotional distress was severe.
Tiller v. McLure, 121 S.W .3d 709, 713 (Tex. 2003). “Severe emotional distress”
means distress so severe that no reasonable person could be expected to endure
it without undergoing unreasonable suffering. Union Pac. R.R. Co. v. Loa, 153
S.W.3d 162, 170 (Tex. App.—El Paso 2004, no pet.). Any party seeking recovery
for mental anguish, even when advancing a cause of action that does not require the
“severe” damages required for intentional infliction of emotional distress, must prove
more than “mere worry, anxiety, vexation, embarrassment, or anger.” Parkway Co.
v. Woodruff, 901 S.W .2d 434, 444 (Tex. 1995).
Bluebonnet asserted in its motion for summary judgment that there was no
evidence of mental anguish or emotional distress caused to Montoya. Montoya, in
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turn, points to her affidavit attached to her response to Bluebonnet’s motion as
raising more than a scintilla of evidence of her claim. Montoya stated in her affidavit
that she had received “obnoxious and unpleasant” phone calls from Bluebonnet’s
attorney and that the creditor had deceived her with regard to the interest rate
charged on her credit card balance. Montoya stated that as a result, she had been
injured “in having to defend this suit, in damage to my credit, in mental anguish,
[and] in aggravation of my existing painful physically debilitating conditions.” She
provides no facts explaining either the nature or degree of her “mental anguish” or
the details of her “debilitating conditions” and how they were aggravated. These
unsupported, conclusory statements are not proper summary judgment evidence.
See El Dorado Motors, Inc. v. Koch, 168 S.W .3d 360, 366 (Tex. App.—Dallas 2005,
no pet.); Dolcefino v. Randolph, 19 S.W .3d 906, 930 (Tex. App.—Houston [14th
Dist.] 2002, pet. denied). Further, these general statements of “mental anguish” and
“aggravation” do not rise to the level of distress so severe that no reasonable person
could be expected to endure it. See Union Pac., 153 S.W .3d at 170. Because
Montoya did not produce more than a scintilla of evidence of severe emotional
distress, we hold that the trial court did not err by granting a no-evidence summary
judgment on Montoya’s intentional infliction of emotional distress claim.
b. Finance Code Violations
Montoya also brought a counterclaim alleging that Bluebonnet had violated
sections 392.301 and 392.302 of the finance code, which prohibit debt collectors
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from using threats, coercion, harassment, or abuse to collect debts. Tex. Fin. Code
Ann. §§ 392.301–.302 (Vernon 2006). Montoya alleged that this counterclaim had
arisen from the misrepresentations made to her at the time that she agreed to enter
into credit card transactions with Chase Bank and from Bluebonnet’s conduct with
regard to debt collection actions. Bluebonnet’s summary judgment motion
challenged this counterclaim by asserting that there was no evidence of any conduct
violating these sections. In response, Montoya again relied upon her affidavit to
provide evidence of her counterclaim.
In her affidavit, Montoya stated that she had received letters and “obnoxious
and unpleasant” phone calls from Bluebonnet’s lawyer’s office. She claimed that
she had repeatedly told the callers to contact her attorney, leave her alone, and quit
calling her. Nevertheless, after she had been served with the underlying lawsuit,
Bluebonnet’s lawyer left her a phone message stating, “Now that you’ve been
served[,] please contact our office immediately.” Bluebonnet’s lawyer called
Montoya again after Montoya’s lawyer filed an answer in the suit, but Montoya told
the caller to contact her attorney and hung up the phone on the caller.
W hile Bluebonnet’s counsel’s phone calls may have been unwelcome and
uninvited, Montoya’s affidavit contains no allegation that Bluebonnet or its counsel
used or attempted to use threats or coercion or that they oppressed or abused her.
See Tex. Fin. Code Ann. §§ 392.301–.302. Section 392.302 prohibits debt
collectors from making repeated or continuous phone calls with the intent to harass
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a person at the called number, but even if Montoya’s affidavit is some evidence of
repeated or continuous phone calls, it nevertheless provides no facts showing that
Bluebonnet’s counsel made the phone calls with the intent to harass her. See id.
§ 392.302(4). Because Montoya did not produce more than a scintilla of evidence
that Bluebonnet used statutorily prohibited debt collection methods, we hold that the
trial court did not err by granting a no-evidence summary judgment on Montoya’s
finance code violation claim.
c. DTPA Violations
Montoya’s DTPA counterclaim alleged that Bluebonnet was liable under the
DTPA based on misrepresentations made by the original credit card issuer and on
the finance code violations discussed above. The DTPA authorizes a consumer to
sue when a false, misleading, or deceptive act or practice upon which the consumer
detrimentally relies is a producing cause of economic damages or damages for
mental anguish. See Tex. Bus. & Com. Code Ann. § 17.50(a) (Vernon Supp. 2009).
Bluebonnet’s no-evidence motion for summary judgment challenged several
elements of Montoya’s DTPA counterclaim, including damages.
Again, Montoya pointed to her affidavit, in which she stated, “I have been
injured in having to defend this suit, in damage to my credit, in mental anguish, [and]
in aggravation of my existing painful physically debilitating conditions.” And again,
Montoya offered nothing in the way of facts to support these conclusory statements.
She does not provide details of any economic loss suffered as a result of the alleged
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misrepresentations, and she does not provide details of her claimed painful physical
condition or of the degree of the claimed mental anguish and its impact on her daily
life. See id.; see, e.g., St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 974
S.W .2d 51, 53 (Tex. 1998) (requiring that, to recover damages for loss of credit
reputation, a plaintiff must first show that a loan was actually denied or a higher
interest rate was charged); Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 54 (Tex.
1997) (requiring that, to recover mental-anguish damages, a plaintiff must introduce
evidence of a high degree of mental pain and distress that is more than mere worry,
anxiety, vexation, embarrassment, or anger); Bridges v. Citibank (S.D.) N.A., No. 02-
06-00081-CV, 2006 W L 3751404, at *3 (Tex. App.—Fort W orth Dec. 21, 2006, no
pet.) (mem. op.) (“Conclusory statements in affidavits are not proper summary
judgment evidence if there are no facts to support the conclusions.”) Because
Montoya did not produce more than a scintilla of evidence of damages, and because
we have already held that she did not produce more than a scintilla of evidence of
debt collection violations, we hold that the trial court did not err by granting a no-
evidence summary judgment on Montoya’s DTPA claim.
Because we have concluded that the trial court did not err by granting
Bluebonnet’s no-evidence motion for summary judgment on Montoya’s
counterclaims, we overrule the portion of Montoya’s sixth issue pertaining to this
argument.
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D. Attorney’s Fees
In her seventh issue, Montoya raises several complaints concerning the trial
court’s award of attorney’s fees to Bluebonnet. Most of these complaints were not
raised in the trial court and, therefore, are not preserved for appellate review. See
Tex. R. App. P. 33.1(a); Bushell, 803 S.W.2d at 712. However, because we have
held that Bluebonnet was not entitled to prevail on its traditional motion for summary
judgment, it was also not entitled to the $1,650 in attorney’s fees and the $296 in
court costs awarded by the trial court for prevailing on that claim. And because
Montoya is partially successful on appeal, we must reverse the judgment’s
unconditional award of $10,000 for attorney’s fees in the event of an appeal of the
summary judgment for $10,058.07.6 See Arena v. Arena, 822 S.W .2d 645, 651
(Tex. App.—Fort W orth 1991, no writ) (holding that when a decree awarding
attorney’s fees does not contain language conditioning the award upon such party’s
success in prevailing on appeal, the error is nonreversible only if that party is
completely successful on appeal, and that “[a] trial court may not penalize a party for
taking a successful appeal by taxing him with attorney’s fees if he takes it.”).
Because Montoya does not challenge the portion of the trial court’s order awarding
6
… Bluebonnet’s no-evidence motion pertained strictly to Montoya’s
counterclaim, upon which the trial court stated she would take nothing but did not
otherwise award any attorney’s fees or expenses to Bluebonnet. W e cannot
determine from the order whether the trial court intended to award part of the $1,650
in attorney’s fees and the $296 in court costs at trial and the $10,000 in attorney’s
fees on appeal for the no-evidence summary judgment.
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summary judgment to Bluebonnet on its crossclaim, we affirm the amounts awarded
in that portion of the judgment. W e sustain Montoya’s seventh issue as it pertains
to attorney’s fees and damages for Bluebonnet’s traditional motion for summary
judgment, and we overrule the remainder of Montoya’s seventh issue.
IV. Conclusion
Having sustained in part Montoya’s third, fourth, sixth, and seventh issues, we
reverse the portion of the trial court’s judgment granting traditional summary
judgment to Bluebonnet and awarding $10,058.07 in damages; $1,650 in attorney’s
fees and $296 in court costs at trial; and $10,000 in attorney’s fees in the event of
appeal. Having overruled the remainder of Montoya’s dispositive issues, we affirm
the trial court’s judgment granting no-evidence summary judgment to Bluebonnet
and granting summary judgment on Bluebonnet’s crossclaim and the amounts
awarded in support of the crossclaim summary judgment.
BOB MCCOY
JUSTICE
PANEL: DAUPHINOT, W ALKER, and MCCOY, JJ.
DELIVERED: October 28, 2010
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