2014 UT App 184
_________________________________________________________
THE UTAH COURT OF APPEALS
WESTMONT MIRADOR LLC,
Plaintiff, Appellant, and Cross-appellee,
v.
MATTHEW SHURTLIFF, WHITNEY SHURTLIFF, AND SYDNIE
SHURTLIFF,
Defendants, Appellees, and Cross-appellants.
Opinion
No. 20130213-CA
Filed August 7, 2014
Second District Court, Ogden Department
The Honorable W. Brent West
No. 110901882
Charles A. Schultz, Attorney for Appellant and
Cross-appellee
Dwayne A. Vance, Attorney for Appellees and
Cross-appellants.
SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in
which JUDGE GREGORY K. ORME and SENIOR JUDGE RUSSELL W.
BENCH concurred.1
GREENWOOD, Senior Judge:
¶1 Westmont Mirador LLC (Westmont), Matthew and Whitney
Shurtliff (the Shurtliffs), and Sydnie Shurtliff (Sydnie) raise several
1. The Honorable Pamela T. Greenwood and the Honorable Russell
W. Bench, Senior Judges, sat by special assignment as authorized
by law. See generally Utah Code Jud. Admin. R. 11-201(6).
Westmont Mirador v. Shurtliff
arguments on appeal arising from the trial court’s decision on a
disputed residential rental agreement. We affirm.
BACKGROUND
¶2 The Shurtliffs, as renters, signed a uniform residential rental
agreement with Westmont, as landlord, on August 6, 2009, that
expired by its own terms on August 31, 2010 (the August
agreement). In conjunction with the August agreement, the
Shurtliffs paid Westmont a $300 deposit, $150 of which was
nonrefundable. They paid Westmont an additional $200
nonrefundable pet fee on October 19, 2009, when they got a dog.
The Shurtliffs paid rent through August 31, 2010, and moved out
sometime before that date.
¶3 Westmont filed a lawsuit against the Shurtliffs and Sydnie,
in her capacity as the Shurtliffs’ guarantor, based on its contention
that the Shurtliffs signed a new uniform residential rental
agreement on October 19, 2009, when they submitted their $200 pet
fee, and that the October agreement extended the term of their
lease through November 30, 2010 (the October agreement).
Westmont produced a document that it claims is a copy of the
October agreement, bearing the Shurtliffs’ signatures. The Shurtliffs
denied ever signing this agreement and disavowed the authenticity
of the signatures on the document.
¶4 Westmont’s claims against the Shurtliffs totaled $1,212.14 for
breach of the October agreement. It sought reimbursement for
$181.92 in lost rent, $650 for repayment of a rent special that the
Shurtliffs’ breach disqualified them for, $150 for the cost of re-
renting the unit, $300 for damages to the unit, and $80.22 for
unpaid utilities, minus the $150 refundable portion of the Shurtliffs’
initial security deposit.
¶5 The trial court made “no finding as to whether or not the
October [agreement] was a forgery or a valid contract” but noted
“that there is no evidence that Westmont, or [anyone] representing
Westmont either forged the October [agreement], or had any
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motivation to do so.” At the same time, the court declined to find
that the Shurtliffs signed the October agreement and denied
Westmont’s claims for damages based on a breach of the October
agreement. The court adjudicated the rights of the parties with
reference to the August agreement and awarded Westmont $300
for damages done to the unit during the Shurtliffs’ tenancy, $80.22
for the unpaid utilities, and $160 for costs incurred in litigating the
case. The trial court applied the $150 refundable portion of the
Shurtliffs’ security deposit toward the judgment, bringing the total
judgment to $390.22. The trial court recognized that the August
agreement “specifically provides for the award of attorneys fees to
the prevailing party” but declined to award any based on its
determination that “[n]either side prevailed completely.”
Westmont appeals the trial court’s ruling, and the Shurtliffs and
Sydnie cross-appeal.
ISSUES AND STANDARDS OF REVIEW
¶6 Westmont, the Shurtliffs, and Sydnie challenge the trial
court’s refusal to award attorney fees, each asserting a claim for
attorney fees under the August agreement as the prevailing party.
A trial court’s determination of which party, if any, is the
prevailing party entitled to attorney fees under a contract “is a
decision left to the sound discretion of the trial court and reviewed
for an abuse of discretion.” Giles v. Mineral Res. Int'l, Inc., 2014 UT
App 37, ¶ 9, 320 P.3d 684 (citation and internal quotation marks
omitted); see also Neff v. Neff, 2011 UT 6, ¶ 48, 247 P.3d 380.
¶7 Next, Westmont challenges the trial court’s failure to find
that the Shurtliffs signed the October agreement. “Failure of the
trial court to make findings on all material issues is reversible
error.” Hill v. Estate of Allred, 2009 UT 28, ¶ 59, 216 P.3d 929
(citation and internal quotation marks omitted). However, “[i]t is
sufficient if from the findings [the trial court] makes there can be no
reasonable inference other than that it must have found against
such allegations.” Id. (citation and internal quotation marks
omitted).
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¶8 Last, Westmont contends that the trial court erred by
refusing to impose rule 11 sanctions against Sydnie and her
attorney for filing an untimely motion to alter or amend the
judgment. “In reviewing a trial court’s determination of whether
a rule 11 violation has occurred, we apply different standards of
review to different aspects of that determination. Findings of fact
are reviewed under a clear error standard, while conclusions of law
are reviewed for correctness.” Archuleta v. Galetka, 2008 UT 76, ¶ 6,
197 P.3d 650.
¶9 On cross-appeal, in addition to their claim for attorney fees,
the Shurtliffs argue that the trial court erred by failing to apply the
nonrefundable portion of their security deposit toward the
damages the trial court awarded Westmont. “If a contract is
unambiguous, a trial court may interpret the contract as a matter
of law, and we review the court’s interpretation for correctness.”
Sharon Steel Corp. v. Aetna Cas. & Sur. Co., 931 P.2d 127, 134 (Utah
1997) (citation and internal quotation marks omitted).
ANALYSIS
I. Attorney Fees
¶10 “In Utah, attorney fees are awardable only if authorized by
statute or contract.” R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 17, 40
P.3d 1119 (citation and internal quotation marks omitted). Here, the
August agreement contains an attorney fees provision that states,
in relevant part,
If legal action is taken by either party to enforce this
agreement, or to enforce any rights arising out of the
breach of this agreement . . . , the prevailing party
shall be entitled to all costs incurred in connection
with such action, including a reasonable attorney’s
fee, court costs, filing fees, interest, and collection
costs, with or without suit.
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Both Westmont and the Shurtliffs assert that they were the
prevailing party as to their claims against each other and that they
are accordingly entitled to an award of fees under the August
agreement. Sydnie asserts that she prevailed on Westmont’s claim
against her and is therefore also entitled to attorney fees under the
August agreement.
A. Westmont’s and the Shurtliffs’ Claims for Attorney Fees
¶11 Identification of which party prevailed, for purposes of
awarding attorney fees, may not be “manifestly obvious,” in which
case, “when interpreting contractual ‘prevailing party’ language,
a court should employ a flexible and reasoned approach” that
allows room for common sense to guide a court’s decision. Giles v.
Mineral Res. Int'l, Inc., 2014 UT App 37, ¶ 10, 320 P.3d 684 (citations
and internal quotation marks omitted). A court “should take into
consideration the significance of the net judgment in the case and
the amounts actually sought[,] . . . balanc[ed] . . . proportionally
with what was recovered.” Id. (alterations and omissions in
original) (citation and internal quotation marks omitted). Other
factors a trial court may consider in identifying a prevailing party
include,
(1) contractual language, (2) the number of claims,
counterclaims, cross-claims, etc., brought by the
parties, (3) the importance of the claims relative to
each other and their significance in the context of the
lawsuit considered as a whole, and (4) the dollar
amounts attached to and awarded in connection with
the various claims.
R.T. Nielson, 2002 UT 11, ¶ 25. A trial court may also appropriately
conclude that a case is a draw “where both parties obtain mixed
results” and in those cases, it may decline to award attorney fees
entirely, regardless of applicable statutory or contractual language
entitling a prevailing party to fees. Neff v. Neff, 2011 UT 6, ¶ 70, 247
P.3d 380; see also A.K. & R. Whipple Plumbing & Heating v. Guy, 2004
UT 47, ¶ 22, 94 P.3d 270.
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¶12 Here, the trial court declined to award attorney fees to either
Westmont or the Shurtliffs because “[n]either side prevailed
completely” and the issues on which it awarded damages to
Westmont were “only remotely related to the enforcement of the
lease agreement.” The court stated, “To be candid, this case should
have remained in the Small Claim’s Court. The attorney’s fees
incurred in this case, by both parties, are disproportionate to the
net award.” And “prior to trial, the Court advised both counsel that
the attorney’s fees being incurred were disproportional to any
amount that the Court would award either party should they
prevail.” Both parties accepted that risk, explaining that they were
interested in resolving “issues of principle.”
¶13 Ultimately, the court awarded Westmont less than one-third
of the damages it requested, and the amounts awarded had
nothing to do with the issue at the heart of its case—the validity of
the October agreement. Westmont explained that its primary goal
at trial was to disprove “libelous statements” that Westmont had
forged the Shurtliffs’ signatures on the October agreement. Because
the damages awarded were unrelated to Westmont’s primary
theory at trial, the trial court could reasonably conclude that
Westmont did not prevail and was not entitled to prevailing party
attorney fees.2 Likewise, the Shurtliffs did not prevail on their
2. Westmont also argues that the trial court erred by denying its
request to recover costs incurred in calling an out-of-state resident
to testify at the trial in Utah. Westmont identifies an error in the
trial court’s ruling on its post-trial motion to amend the judgment
in which the court admonishes Westmont for failing “to file a
motion and seek Court assistance” in securing alternatives to the
witness’s in-person testimony at trial. Westmont did submit such
a motion and the trial court neglected to rule on it. However,
Westmont does not present any argument as to how this oversight
by the trial court entitles it to recover its costs. Any entitlement
Westmont may have to recover costs under the August agreement
is conditioned upon its being the prevailing party at trial, as was
the case with its entitlement to attorney fees. For the same reasons
(continued...)
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cross-claim that the entire $300 security deposit and the $200 pet
fee should be used to satisfy Westmont’s damages award and that
Westmont should be ordered to refund the Shurtliffs $109.78 as the
remainder of their refundable security deposit. Although
Westmont’s failure to prove its arguments related to the October
agreement can, in a sense, be equated to the Shurtliffs prevailing on
that issue, the Shurtliffs were nonetheless saddled with a $390.22
judgment against them.
¶14 We are satisfied that the trial court based its prevailing party
determination on adequate consideration of the factors outlined
above.3 We affirm the trial court’s decision that neither party was
entitled to attorney fees as the prevailing party and decline to
award either party attorney fees on appeal. See Neff, 2011 UT 6,
¶ 70.
B. Sydnie’s Claim for Attorney Fees
¶15 Sydnie asserts that under the clear terms of the August
agreement, she prevailed on all claims brought against her by
Westmont, making her the prevailing party as to the claims in
2. (...continued)
we affirm the trial court’s prevailing party determination, we also
affirm its denial of costs to Westmont.
3. Westmont also asserts that it is entitled to attorney fees based on
the trial court’s awarding it post-judgment costs pursuant to the
provisions of the August agreement. It also argues that the trial
court abused its discretion by basing its denial of Westmont’s
request for attorney fees on the court’s “anger and frustration of
having to deal with this case.” Westmont offers no support for and
little analysis of these arguments. Cf. Teachers4Action v. Bloomberg,
552 F. Supp. 2d 414, 416 (S.D.N.Y. 2008) (recognizing that a trial
judge’s angry or impatient reactions may, at times, “be called for
or understandable”). Accordingly we do not address them. See
Utah R. App. P. 24(a)(9) (explaining the elements of an adequately
presented argument).
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which she was involved. The trial court rejected her post-judgment
request for fees as untimely, stating, “Had the issue been pursued
at trial, the Court would have considered it, but, for whatever
reasons, the attorneys’ fees were not requested. The Court has no
inclination to reconsider the issue now.”
¶16 A prevailing party waives the right to attorney fees upon
“the signed entry of final judgment or order, at which time trial
issues become ripe for appeal and a party may file a timely notice
of appeal pursuant to the Utah Rules of Appellate Procedure.”
Meadowbrook, LLC v. Flower, 959 P.2d 115, 117 (Utah 1998); see also
DFI Props. LLC v. GR 2 Enters. LLC, 2010 UT 61, ¶ 18, 242 P.3d 781
(explaining that the requirement that the prevailing party submit
a request for attorney fees before the entry of a final judgment
prevents “piecemeal appeals” because otherwise “every case
involving attorney fees could potentially be the genesis of two
separate appeals—one appeal related to the merits and one appeal
related to the attorney fees award” (citation and internal quotation
marks omitted)). Sydnie first requested attorney fees in a post-trial
motion dated August 23, 2012. The trial court entered a signed,
final judgment on July 26, 2012. In her appellate briefing, Sydnie
does not address the trial court’s determination that her request
was untimely or otherwise assert any reason why this long-
standing rule should not apply here. Accordingly, we will not
disturb the trial court’s denial of Sydnie’s request for attorney fees.
II. Westmont’s Remaining Challenges
¶17 Last, Westmont challenges the trial court’s finding that it
failed to submit sufficient evidence to prove that the Shurtliffs
signed the October agreement. It also challenges the trial court’s
failure to impose sanctions against Sydnie and her attorney.
A. Findings
¶18 Westmont asserts that “[t]he indisputable facts of this case
prove that the Shurtliffs signed the October [agreement] with
Westmont, and the district court’s failure to find that they did so,
is against the weight of the indisputable evidence.”
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Although it is error for a court to fail to make
findings on all material issues raised by the pleadings
this does not mean that the court must negative
every allegation contained in the pleadings. It is
sufficient if from the findings it makes there can be
no reasonable inference other than that it must have
found against such allegations.
Patton v. Kirkman, 167 P.2d 282, 283 (Utah 1946).
¶19 In its written Findings of Fact, the trial court stated, “The
Court makes no finding as to whether or not the October
[agreement] was a forgery or a valid contract. However, the Court
finds that there is no evidence that Westmont, or [anyone]
representing Westmont either forged the October [agreement], or
had any motivation to do so.” In its final judgment, the trial court
elaborated, “[T]his case had a great deal of emotion attached to it,
by all parties . . . [, and as] indicated at trial, [Westmont] felt that its
integrity had been challenged with allegations of fraud. Therefore,
the Court’s finding on the allegation of alleged fraud is
appropriately included in the Findings and Conclusions.” Further,
the judge explicitly ruled at trial that Westmont failed to satisfy its
burden of proof and establish by a preponderance of the evidence
that the Shurtliffs did sign the document, stating, “I’ve got to be
persuaded by . . . a preponderance of the evidence that [the
October agreement] either was a forgery or it was signed and
neither one of you carried your burden of proof on that and [are
both] hurt by the fact that I don’t have an original document to
look at.” See generally Koesling v. Basamakis, 539 P.2d 1043, 1046
(Utah 1975) (“[W]here . . . the proponent has the burden of
persuading the trier of fact by a preponderance of the evidence,
that is, that the asserted proposition is more likely than not, he
carries that burden throughout the trial.”).
¶20 The court explained its determination, recognizing that
“[t]he evidence on whether or not [the October agreement] was a
forgery or whether or not it was signed . . . goes back and forth.”
The court found credible the evidence supporting the Shurtliffs’
position that they did not sign the document but also recognized
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that there was no evidence to support a finding that Westmont
forged the document. The court observed that each party’s theory
was reasonable and recognized that if the parties are unable to
“explain why that copy [of the October agreement] is floating
around, [the court] surely [could not] divine how it came into
creation.” Accordingly, the trial court’s findings are adequate
under the circumstances.4 See Parks v. Zions First Nat’l Bank, 673
P.2d 590, 601 (Utah 1983) (“Substantial compliance with Rule 52(a)
[of the Utah Rules of Civil Procedure] does not . . . require that the
trial court negative every allegation contained in the pleadings;
rather, the Rule is satisfied if, from the findings it (the trial court)
makes, there can be no reasonable inference other than that it must
have found against such allegations.”).
B. Sanctions
¶21 Westmont appeals the trial court’s denial of sanctions
against Sydnie for filing a motion to amend the judgment two days
4. We decline to indulge Westmont’s claim, occupying fifteen pages
of its opening brief, that “the Shurtliffs have told so many lies in
this case that nothing they say should be believed.” Cf. Mason v.
Smithkline Beecham Corp., 596 F.3d 387, 389 (7th Cir. 2010)
(admonishing the parties for submitting briefs “replete with
argumentative posturing” (internal quotation marks omitted));
Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 n.8 (Ind. Ct. App.
2002) (“Statements that amount to name-calling are not appropriate
in appellate argument.”). At best, this amounts to a challenge of the
Shurtliffs’ credibility, the determination of which we accord
significant deference to the trial court. See State v. Pinder, 2005 UT
15, ¶ 66, 114 P.3d 551. This animosity between the parties is not a
new development. See Westmont Maint. Corp. v. Vance, 2013 UT App
236, ¶¶ 7 n.4, 22, 313 P.3d 1149 (noting that the trial court awarded
attorney fees as a sanction against Westmont for filing a
defamation claim against the Shurtliffs’ attorney based on the
court’s observation that the case was an “egregious and
unwarranted use of legal process, a waste of judicial resources, and
an undue imposition upon” the Shurtliffs’ attorney).
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late and in the face of “sixty years” of precedent “unequivocally”
requiring that such a motion be filed within ten days of entry of the
judgment. Rule 11 of the Utah Rules of Civil Procedure allows the
trial court to sanction a party that the court determines has filed a
motion or other document with the court “for any improper
purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation” or if “the claims,
defenses, and other legal contentions” contained in the filing are
not “warranted by existing law or by a nonfrivolous argument for
the extension, modification, or reversal of existing law or the
establishment of new law.” Utah R. Civ. P. 11(b), (b)(1), (b)(2), (c).
“Decisions regarding rule 11 sanctions are best left in the hands of
the trial court. We therefore accord reasonable discretion to the trial
court to determine when sanctions are useful and appropriate.”
Archuleta v. Galetka, 2008 UT 76, ¶ 7, 197 P.3d 650.
¶22 Here, the trial court stated, “[Sydnie]’s motion to amend or
alter the judgment simply does not justify Rule 11 sanctions. The
motion appears to have been brought in good faith, has legal merit
and was simply in response to [Westmont’s] motion to reopen the
judgment and allow attorneys’ fees.” The record supports this
determination. Sydnie titled the challenged filing as,
“Memorandum in Opposition to Plaintiff’s Motion to Alter Or
Amend and in Support of Sydnie Shurtliff’s Motion to Amend
Judgment.” The entirety of the memorandum supporting Sydnie’s
motion, minus two paragraphs occupying half of one page in the
ten-page document, consists of her arguments in response to
Westmont’s motion to amend or alter judgment. The other two
paragraphs contain Sydnie’s request for attorney fees and
constitute the entirety of Sydnie’s argument in support of her own
motion to amend. As indicated previously, the trial court
considered Sydnie’s claim for attorney fees to possibly have merit
but determined that her request was untimely. Accordingly, we
affirm “the trial court’s ultimate determination regarding the
usefulness of sanctions in this situation.” See id. ¶ 8.
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III. The Shurtliffs’ Cross-Appeal
¶23 In their cross-appeal, the Shurtliffs argue that the trial court
erred by applying only the refundable portion of their security
deposit toward the damages the court awarded to Westmont,
rather than the refundable and nonrefundable amounts, as well as
the nonrefundable $200 pet fee. The Shurtliffs’ argument depends
upon their characterization of the security deposit provision in the
August agreement as ambiguous, and they urge this court, in light
of the provision’s alleged ambiguity, to construe the provision in
their favor and against Westmont as the drafter. Cf. Wilburn v.
Interstate Elec., 748 P.2d 582, 585 (Utah Ct. App. 1988) (“[T]he
doctrine of construing ambiguities in a contract against the drafter
functions as a kind of tie-breaker, used as a last resort by the fact-
finder after the receipt and consideration of all pertinent extrinsic
evidence has left unresolved what the parties actually intended.”).
¶24 We conclude that the security deposit provision is not
ambiguous. The August agreement outlines that $150 of the $300
security deposit is refundable and $150 is nonrefundable. The terms
of the agreement provide, “The Security Deposit . . . shall secure
the performance of Resident’s obligations. Refund of Security
Deposit is dependent upon Resident fulfilling ALL of the following
conditions”—referring to things like the cleanliness of the unit at
the time the tenants vacate—“and failure to meet these conditions
will forfeit the Security Deposit.” (Emphases added.) By the plain
language of the terms of the agreement, only the $150 refundable
portion of the security deposit is capable of being refunded or
forfeited; the nonrefundable half, unsurprisingly, is not refundable
regardless of whether the Shurtliffs fulfilled their obligations under
the agreement. Furthermore, the Shurtliffs have not directed us to
any authority requiring Westmont, as the landlord, to use the
nonrefundable part of the security deposit toward repairs beyond
those constituting normal wear and tear that were precipitated by
the Shurtliffs during their tenancy. Nor have the Shurtliffs directed
us to any authority indicating that application of the nonrefundable
part of the security deposit is a prerequisite to Westmont’s use of
the refundable funds for the same types of repairs. The Utah Code
provisions cited by the Shurtliffs only require that landlords inform
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tenants in writing to explain “why any deposit refundable under
the terms of the lease . . . is being retained,” Utah Code Ann. § 57-
17-1 (LexisNexis 2012), and for landlords to clearly inform a
prospective tenant if a portion of the security deposit is
nonrefundable, id. § 57-17-2.
¶25 The Shurtliffs argue that the $200 nonrefundable pet fee they
paid should also be applied toward the damages award. The Pet
Rental Agreement, however, clearly indicates that the Shurtliffs’
up-front payment of $200 is a “[n]on-refundable pet fee,” which, in
conjunction with the $20 monthly pet rent, constitutes the price
Westmont placed on granting the Shurtliffs “the privilege of
keeping [a] pet in the apartment.” The Pet Rental Agreement also
explains that “any damages done by [the] pet will be subject to the
same provisions as the Security Deposit described in the . . .
Uniform Residential Rental Agreement,” meaning that any damage
to the apartment, regardless of whether an animal or human
occupant caused the damage, would be covered by the security
deposit provisions in the August agreement. Accordingly, the trial
court did not err by crediting only the refundable portion of the
security deposit to the damages assessed against the Shurtliffs.5
CONCLUSION
¶26 We affirm the trial court’s decision to deny Westmont and
the Shurtliffs attorney fees based on its determination that neither
party was the prevailing party. We also affirm its decision to deny
Sydnie’s request for attorney fees as untimely. The trial court did
not err by refusing to enter a finding as to whether the Shurtliffs
actually signed the October agreement given its determination that
Westmont failed to satisfy its burden of proof on the issue.
5. Although we reject the Shurtliffs’ argument on this point, we do
not consider the Shurtliffs’ cross-appeal of this issue to be frivolous,
as suggested by Westmont, and we deny Westmont’s request for
double its costs pursuant to rules 33 and 34 of the Utah Rules of
Appellate Procedure. See generally Utah R. App. P. 33; id. R. 34.
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Westmont’s request for sanctions against Sydnie was properly
denied by the trial court. Finally, the trial court correctly applied
only the refundable portion of the Shurtliffs’ security deposit
toward the damages the court awarded to Westmont. Affirmed.
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