Court affirms wife’s self-help eviction of mistress


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scornedA Canadian husband and wife, Paul and Beverly Cutler owned a townhome in Wellington Florida. The husband signed a lease with a Mr. and Mrs. Roger Pelletier listed as the tenants. In reality. the property was occupied by Mrs. Pelletier and her single friend Pamela Caputo.   Ms. Caputo was Mr. Cutler’s mistress and no rent was ever paid.   When Mrs. Cutler discovered this, she had the locks changed and the ladies belongings removed to the garage.

The ladies then proceeded to sue the Cutlers for wrongful eviction and the theft of some items they claimed were missing. The court entered a judgment against the Cutlers for $178,500 as treble compensatory damages and $300,200 as punitive damages. The sting of a mistress scorned!

Most of that sting was reversed on appeal.  The 4th District Court of Appeal ruled that as Mrs. Cutler did not sign the lease to the jointly owned townhome, that Pelletier and Caputo,   were “guests” of Mr. Cutler, but not lawful tenants. Property held by husband and wife as tenants by the entireties cannot be leased without both spouses joining in the contract. Thus, the judgment for unlawful eviction was overturned. The court also noted that the civil theft statute was changed after the complaint was filed, but before the judgment was entered eliminating punitive damages, so that portion of the judgment was also reversed. The case was remanded to determine the actual value of the missing items at the time of loss, rather than their replacement cost and the judgment was reduced to $12,510.00 plus interest.



District Court of Appeal of Florida,
Fourth District.

507 So.2d 676

12 Fla. L. Weekly 1255

Damages for dog bite


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dog Defendant’s dog attached Plaintiff’s cat in Plaintiff’s garage. As a result Plaintiff incurred $6500 in veterinary bills before the cat died.   Plaintiff sued Defendant

Defendant argued that the measure of damages should be the market value of the cat. The court noted that Section  Florida Statutes, “Dog owner’s liability for damages to persons, domestic animals, or livestock” provides “Owners of dogs shall be liable for any damage done by their dogs to a person or to any animal included in the definitions of “domestic animal” and “livestock” as provided by s. 585.01.   Thus the owner of a dog is cast virtually in the role of an insurer and is strictly liable for the damage done by his dog.

In cases of injury to animals, the plaintiff ought to recover for expenses reasonably incurred in efforts to cure them in addition to the diminution in their value or their whole value when they are finally lost. The traditional restriction in personal property cases that the cost of repair should not exceed the market or ‘intrinsic’ value of the property should not be applied in a case whether neither market nor ‘intrinsic’ value is capable of calculation and a living creature is involved. However, the court found that as the cat was seventeen years old, $6500 in medical care was excessive, and only awarded $2500.00.

MEACOMES, vs. MORALES, County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. September 22, 2004. 11 Fla. L. Weekly Supp. 1073a

Tenant can not sue for security deposit before moving out.


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Landlord filed an eviction on April 10, 2014. Six days later tenant filed a suit for the return of her security deposit.  A Writ of Possession was issued in the landlord’s eviction and returned executed on May 2, 2014.

Fla. Stat. §83.49 of the Florida Residential Landlord and Tenant Act gives a landlord fifteen (15) days from the time property is vacated to return a security deposit or otherwise gives thirty (30) days to impose a claim on it.

A statutory cause of action cannot be commenced until the claimant has complied with all the conditions precedent. Inv. & Income Realty, Inc. v. Bentley, 480 So.2d 219 (Fla. 5th DCA, 1985), citing Ferry-Morse Seed Co. v. Hitchcock, 426 So.2d 958 (Fla. 1983). In a case seeking the return of a security deposit, the condition precedent is obviously giving the landlord enough time to comply with Fla. Stat. §83.49.

The court ruled that  because the tenant  filed her lawsuit prior to possession of the property being returned to the landlord on May 2, 2014,   the conditions precedent to filing the suit had not been met, and her claim was not ripe. The Court’s jurisdiction had not been perfected, and therefore the court dismissed the tenant’s suits without prejudice and awarded the landlord attorneys fees and costs as the prevailing party.


NESBITT v. JOHN,  Volusia County Court,  May 28, 2014. 21 Fla. L. Weekly Supp. 1049d

Who may sign the eviction complaint?


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Portrait of Hancock by John Singleton Copley, c. 1765

The Florida Residential Landlord Tenant statute defines “landlord”  as “the owner or lessor of a dwelling unit.”  §83.43(3) F.S. The “landlord”  may be the plaintiff in an eviction complaint.  Who may sign the complaint on behalf of the landlord is as follows:

Corporation:  complaint must be signed by an attorney.  The corporation must be in good standing.

Multiple landlords: where there is more than one landlord on the lease,  all of the landlords must be named plaintiffs. York v. Fleaane, 7 Fla. L. Weekly Supp. 287 (Broward County, 1999)

Partnership: complaint must be signed by a general partner or an attorney.  May not be signed by a limited partner.

Proprietorship:  complaint must be signed by an attorney

Property Manager: In 1992 the Florida Supreme Court ruled that a property manager also had standing to file an eviction if

1) the eviction is residential

2)  The eviction is for nonpayment of rent.  This means the manger may not file an eviction for breach of lease or holdover. See Heneo v. Hammer, 18 Fla. L. Weekly Supp. 1179 (Orange County 2011).

3) The eviction is for possession only and does not request a money judgment

4) the eviction is not contested. An eviction is considered “contested”  if a hearing is required. Florida Bar Advisory Opinion 627 So.2d 485 (Fla. 1993).  If an eviction is contested the Plaintiff must hire a lawyer.

5) The property manager must have written authorization from the owner.  If there is no written  authorization or the authorization is found to be forged,  the case will be dismissed and the tenant entitled to fees and costs.  If the court finds the authorization was forged,  the manager could be held in contempt of court and fined or jailed.

The property manager may sign the 3 day notice, complaint, and motion for default.

A property manager may use ONLY Florida Supreme Court issued forms.

Trust: Complaint must be signed by trustee or an attorney

Subsequent foreclosure action filed more than five years later by subsequent mortgage holder is barred by statute of limitations.


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DOHA previous mortgage holder filed a suit against the borrowers on December 5, 2007, alleging that the borrowers had defaulted on their mortgage on January 1, 2007 and electing to accelerate payment of the balance. The complaint specifically declared the full amount payable under the note and mortgage to be due. However, the action was dismissed without prejudice for lack of prosecution in 2009. On June 19, 2013, the assignee of the mortgage and note, filed a new suit to foreclose the mortgage.

The court ruled that the filing of the prior lawsuit in 2007 triggered the running of the statute of limitations with respect to the entire balance of the mortgage and note. See Central Home Trust Co. v. Lippincott, 392 So. 2d 931 (Fla. 5th DCA 1980) (“Examples of acceleration are a creditor’s sending written notice to the debtor, making an oral demand, and alleging acceleration in a pleading filed in a suit on the debt.”) (emphasis added); Locke v. State Farm Fire and Casualty Co., 509 So. 2d 1375 (Fla. 1st DCA 1987) (holding that the mortgagee had not enforced the optional acceleration clause in the mortgage until it filed its foreclosure complaint); Jaidon v. Equitable Life Assurance Soc’y, 136 So. 517 (Fla. 1931) (“[T]he mere filing of suit to enforce the mortgage by foreclosure may sufficiently show his election to exercise his option to accelerate.”). Furthermore, the dismissal without prejudice of the prior lawsuit did not toll the limitations period. See Barrentine v. Vulcan Materials Co., 216 So. 2d 59 (Fla. 1st DCA 1968); see also Hamilton v. Largo Paint and Decorating, Inc., 335 So. 2d 623 (Fla. 2d DCA 1976) (“It appears settled in Florida that when an action is dismissed for lack of prosecution the time during which it is pending does not toll a statute of limitations and cannot be deducted from the total elapsed time in computing such statute.”). Because the prior mortgagee exercised its right to accelerate the entire balance due under the note and mortgage when it filed its complaint on December 5, 2007, the five-year statute of limitations period began to run on that date and subsequently lapsed on December 5, 2012.

The prior acceleration of the mortgage by the predecessor in interest is operative against an assignee. See, e.g., Spencer v. EMC Mortg. Corp., 97 So. 3d 257 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D2068a]; Cadle Co. v. Rhoades, 978 So. 2d 833 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D871a]. Singleton v. Greymar Assoc., 882 So. 2d 1004 (Fla. 2004) [29 Fla. L. Weekly S481a], is inapposite and concerns only the application of res judicata in an action to collect discrete payments under an installment contract. Singleton is not only distinguishable from the facts of the instant case, it is wholly irrelevant to the issue of the statute of limitations raised by the borrowers.

BANK OF AMERICA, N.A., v. LYNN, Circuit Court, 14th Judicial Circuit in and for Bay County. October 9, 2013. 21 Fla. L. Weekly Supp. 911a

Determining what may be claimed against the security deposit


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A landlord may claim damages to the rent unit by the tenant against the security deposit. Security deposits and the notice requirements are governed by Chapter 83.49, Florida Statutes   Generally, the landlord must make a written claim by certified mail within 30 days of the date the tenant surrenders possession of the leased premises. Click here for the claim form

The landlord may deduct for any damage done by the tenant that exceeds ordinary wear and tear in light of the length of time tenant was in possession. For example, where a tenant in possession for 15 years, the landlord’s claim for replacement of carpeting and worn linoleum floor was denied. Fishbein v. Oslander, 2013. Conn. Super. Lexis 2297 (Conn. Super. New Haven 2013).


Ordinary wear and tear: The landlord may not charge for ordinary cleaning or repainting unless specified in the lease.

Routine repainting: Bronxville Props. Inc v. Luyo, 37 Misc 3d, 1214A (Justice Court Westchester County 2012); BURLEY v. MATEO, 18 Fla. L. Weekly Supp. 624a.

Routine pressure washing of driveway / patio: BURLEY v. MATEO, 18 Fla. L. Weekly Supp. 624a.

Carpet shampooing: Love v. monarch Apts., 771 P.2d 79 (Kan 1989)

Rust and grease on stove: Cuccurullo v. Scott, 2011 N.J. Super. Unpub LEXIS 2665 (Super. Ct. N.J. App. Div. 2011)., Bronxville Props. Inc v. Luyo, 37 Misc 3d, 1214A (Justice Court Westchester County 2012)

Rust around sink: Bronxville Props. Inc v. Luyo, 37 Misc 3d, 1214A (Justice Court Westchester County 2012)

Pin holes in walls: Cuccurullo v. Scott, 2011 N.J. Super. Unpub LEXIS 2665 (Super. Ct. N.J. App. Div. 2011)

Burst pipe (not caused by tenant): Miro v. Garner, 52 S.W. 3d 407 (Tex. App. Corpus Christi 2001)


Vandals_HouseNot ordinary wear and tear. Broken, stolen, or deliberately damaged items are not considered ordinary and are chargable.

Failure to return keys: Smith V. Niederriter, 18 Fla. L. Weekly Supp. 1051a.

Missing drapes: Smith V. Niederriter, 18 Fla. L. Weekly Supp. 1051a.

Graffiti: Smith V. Niederriter, 18 Fla. L. Weekly Supp. 1051a.

Replace carpet soak in honey from tenant’s beekeeping: Oak Hill Inv Co. v. Jablonski, 605 N.E. 2d 998 (Ohio App . 1995)

Remove abandoned motorcycle. Allowed removal fee, but not storage fee. Berlinger v. Suburban Apt. Mgt. Co., 454 N.E.2d 1367 (Ohio App. 1982)

Removal of authorized improvements / Failure to remove unauthorized improvements: OLDHAM INVESTMENTS, LTD., , vs. LIEBER . Palm Beach County, April 18, 2008. 15 Fla. L. Weekly Supp. 733a

The lease may also specify items to be chargeable.   BERGREN v. WYATT, Hillsborough County. 2004. Marva L. Crenshaw, Judge. 11 Fla. L. Weekly Supp. 407a

The landlord has the initial burden to prove the damage. Then the burden shifts to the tenant to prove that the damage was pre-existing. The evidence should be of damage after the tenant moved out. One court rejected photos of damage because they were taken before the tenant moved out. Wyant v. Catlin, 972 N.Y.S. 2d 147 (Justice Ct. Red Hook, 2013).

The landlord may also provide in the lease that certain deposits are non-refundable, such as redecorating fees, or pet fees. If the lease does not provide the fees are non-refundable, the landlord will have to prove actual damages. The court denied the claim of a landlord for the cost of replacing the carpeting because the tenant had smoked in violation of the lease where not only did the landlord not replace the carpet, but did not even clean the carpet. Vinson v. Henley, 864 So.2d 894 (La. App. 2d Cir. 2004). Likewise, where a landlord charged to replace a lock the tenant has installed that did not match the other units, the court rejected the claim when it turned out the landlord had not actually replaced the lock. Adamsky v. Picknick, 603 A.2d 1069 (Pa. Super Ct. 1992).   The landlord should not charge for expenses not actually incurred.   Receipts for expenses paid will seldom be rejected by a court, as opposed to estimates for work not yet performed.   Remember to use move-in check lists for the tenant to indicate any pre-existing damage at the start of the lease.   Take photographs of all damage at the end of the lease.

When the tenant fails to move in


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no showTenant deposited one month’s rent toward a prospective tenancy. Upon move in, the tenant was to tender an additional two months’ rent plus security, but only showed up with two months’ rent.  The landlord rejected the partial tender and did not allow the tenant to move in. The tenant sued for his deposit.

The tenant argued 1) that the landlord was the one who breached the lease, because he did not allow him a chance to go to the bank and get the missing funds, and 2) the landlord never sent a certified letter claiming the deposit and thus had no right to claim it.

The court rejected both of these arguments 1) finding it was not credible that landlord did not give him a chance to tender the missing deposit, and 2) the requirement to send a certified letter claiming the deposit under Fla. Stat. §83.49(3)(a) did not apply for two reasons: a) as the deposit was a rent deposit, and not a security deposit, and b) because the tenant was in beach of the lease and thus not entitled to a written claim.

Entitlement to rent from a breaching tenant is governed by Florida Statute §83.595. The landlord’s options under the statute were to release the Plaintiffs from liability for any rent, or to hold the Plaintiffs liable for rent until the property is relet.  The landlord argued that he was entitled to keep the entire rent deposit simply because of the breach of lease, but presented no evidence as to if and when the property was relet. As a result, the Court concluded that the landlord had failed to meet his burden of showing entitlement to the deposit and ordered it returned to the tenant.

TAYLOR, vs. EDRI, . County Court, 17th Judicial Circuit in and for Broward County. February 4, 2013. Robert W. Lee, Judge. 20 Fla. L. Weekly Supp. 727c.

The case of the Texas Moon


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Court rules defective notice of lease violation not prejudicial to tenant,  but violations not disclosed in discovery not admissible at trial.


In January 2002, Nealy entered into a written lease agreement with SPA, a federally subsidized apartment complex regulated by Section 8 of the Housing Act of 1937, 42 U.S.C. § 1437f (2000 & Supp.2005), and Title 24 of the Code of Federal Regulations, 24 C.F.R. § 882.101 (2006). The lease also provided that SPA could terminate the tenancy for (1) a serious or repeated violation of the terms and conditions of the lease or other good cause upon provision of a notice of termination that complied with United States Department of Housing and Urban Development (“HUD”) requirements. See 24 C.F.R. § 882.101 (2006).

On April 28, 2004, SPA sent Nealy a “30 Day Notice to Vacate” the premises and listed two reasons for the notice to vacate: (1) “Owner desires possession” and (2) “Un-desirable tenant behavior.” SPA later filed suit against Nealy, citing “un-desirable tenant behavior” as the sole ground for eviction. During discovery, Nealy served a written interrogatory asking SPA to identify each act of undesirable tenant behavior on which SPA relied for evicting Nealy, including “what was done, by whom and when in breach of the lease.” SPA responded that “Ms. Nealy breached her lease by violating the rules of Southland Palms Apts. because she mooned another tenant.”

At trial, over objection by the tenant, SPA’s manager testified to additional violations,  that Nealy continuously loitered on the premises and rode a four-wheeler or tractor on the sidewalks, nearly hitting children on one occasion, and that Nealy had assaulted other tenants.


To terminate a tenancy in federally subsidized housing, federal regulations and due process both require adequate notice detailing the grounds for termination. Moon v. Spring Creek 390*390 Apartments, 11 S.W.3d 427, 433 (Tex. App.-Texarkana 2000, no pet.). The rules and regulations set forth by HUD mandate that the landlord’s termination notice “[s]tate the reasons for such termination with enough specificity to enable the [tenant] to prepare a defense.” 24 C.F.R. § 882.511(d)(2)(i) (2006); see 24 C.F.R. § 247.4(a)(2) (2006) (providing the same)., termination notices have been found to be insufficient when they contain only one sentence, are written in “vague and conclusory” language, or fail to set forth a factual statement of the reason for termination.

In the present case, the notice contained one vague and broad allegation that Nealy engaged in some type of undesirable behavior, but did not set forth the behavior SPA was complaining about. The notice also failed to notify Nealy of the dates of any incidents or of the people involved. Absent any of these details, the notice of termination failed to meet the specificity requirements outlined in the federal regulations and existing case law. We conclude the notice provided to Nealy was inadequate.

The purpose of the notice requirements under HUD is “to insure that the tenant is adequately informed of the nature of the evidence against him so that he can effectively rebut that evidence.” Escalera, 425 F.2d at 862. This purpose would not be served by allowing a tenant to assert that a court has no subject-matter jurisdiction over such an action because of an inadequate notice. For instance, assuming that a tenant received a deficient notice, yet effectively rebutted the evidence and prepared a proper defense, dismissing the case based on subject-matter jurisdiction would fail to serve the purpose of the statutory requirement. We conclude that an inadequate notice does not deprive a court of subject-matter jurisdiction and that a harm analysis better fulfills the purpose of HUD’s specificity requirements.

Nealy did file an answer and pursued pretrial discovery through written interrogatories and requests for production. Neither Nealy nor Nealy’s counsel indicated that they could not prepare a proper defense, and Nealy’s counsel did object to evidence of other alleged lease violations because counsel knew, or was under the impression, that only Nealy’s alleged mooning of other tenants formed the basis for her eviction. Finally, SPA’s manager testified that she actually met with Nealy to discuss Nealy’s undesirable tenant behavior prior to terminating the tenancy. Nealy was not harmed by the inadequate notice. See TEX.R.App. P. 44.1(a).


In discovery the SPA stated that Nealy breached her lease by violating the rules of SPA and by violated the lease addendum. It was reported that Nealy mooned another tenant.

SPA did not amend or supplement this answer prior to trial. At trial, the trial court admitted SPA’s evidence that (1) Nealy and one of her guests were the victims of two separate assaults; (2) Nealy loitered on the apartment’s premises in violation of the lease; and (3) Nealy rode a four-wheeler or tractor on the apartment sidewalks, nearly hitting children on one occasion. At all relevant times, Nealy objected to the admission of this evidence on the ground that these acts were not disclosed in discovery.

SPA was subject to Rule 193.6(a) of the Texas Rules of Civil Procedure. Rule 193.6(a) provides that a party who fails to make, to amend, or to supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, unless the court finds that there was good cause for the failure to make, to amend, or to supplement the discovery response timely, or that the other parties will not be unfairly surprised or prejudiced by the failure to make, to amend or to supplement. Id. 193.6(a). The party seeking to introduce the evidence carries the burden of establishing good cause or lack of unfair surprise or unfair prejudice. Id. 193.6(b). A finding of good cause or lack of unfair surprise or unfair prejudice must be supported by the record. Id.

Thus the trial court abused its discretion in admitting evidence regarding the assaults on Nealy and her guest, Nealy’s loitering on the premises, and Nealy’s driving of the four-wheeler or tractor on the apartment’s sidewalks.

Because the trial court did not find that Nealy actually mooned anyone, we conclude that reports of mooning do not fit within the grounds for evicting Nealy. We also conclude that mere reports of Nealy’s mooning others do not amount to good cause for evicting her. Had the trial court found that Nealy actually mooned others, the analysis would have been different; however, reports are nothing more than allegations, which this Court will not term as “good cause” for evicting a tenant in federally subsidized housing.

Because the reports of mooning do not fit within the grounds for evicting Nealy under the lease, we conclude that Nealy was harmed by the admission of the undisclosed evidence. Accordingly, we reverse the trial court’s judgment and remand the cause for further proceedings.

NEALY, v. SOUTHLAWN PALMS APARTMENTS, 196 S.W.3d 386 (2006), Court of Appeals of Texas, Houston (1st Dist.).

Error to deny request for jury trial on eviction action absent waiver


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12Landlord brought an action for residential eviction and damages against Tenant. Tenant’s answer sought a jury trial, claimed the 3 day notice was defective, and counterclaimed for damages. The trial court denied tenant’s request for a jury trial; found the three-day notice sufficient; entered a judgment for possession and damages against Tenant and dismissed the counterclaims for lack of subject matter jurisdiction.

The tenant appealed. The appellate court reversed, stating that jury trials were available at common law in actions for possession of real property. Baldwin Sod Farms, Inc. v. Corigan, 746 So. 2d 1198 (Fla. 4th DCA 1999). The right to a jury trial on an eviction action is preserved, absent waiver. Art. I, §22, Florida Constitution; Remax East Realty, Inc. v. Goodco Properties, 481 So.2d 1281 (Fla. 4th DCA 1986). The record fails to disclose a waiver of the right to a jury trial. Consequently, it was error to deny Ms. Lederer’s request for a jury trial.   The tenant was also awarded fees and costs for the appeal under Fla. Stat. §83.48; Rule 9.400(a), Rules of Appellate Procedure.

LEDERER, Appellant, vs. FRAVEL, Appellee. Circuit Court, 15th Judicial Circuit (Appellate-Civil) in and for Palm Beach County. Case No. AP-00-10985-AY. October 21, 2002. Appeal from the County Court in and for Palm Beach County. 9 Fla L. Weekly Supp. 822a.

Author’s note:  you can insert a jury trial waiver clause into your lease.

Protecting Tenants Under Foreclosure Act does not provide for attorneys fees


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wolfThe MEEKS were tenants of a property that was foreclosed. A Certificate of Title was issued on December 17, 2013 to RYAN HENSON #10 LAND TRUST which filed a Motion for Writ of Possession on December 20, 2013.   MEEKS, filed an Emergency Motion to Quash the Writ of Possession on January 3, 2014.

The Court issued a Final Order Quashing Writ of Possession on January 28, 2014 holding that MEEKS were bona fide tenants in possession and must be given a ninety (90) notice to vacate the property pursuant to the PTFA. Thereafter, Tenants, MEEKS, filed a Motion to Determine Entitlement to Attorney’s Fees seeking attorney’s fees pursuant to §83.48, Florida Statutes.

The Court ruled that the Emergency Motion to Quash was not based upon enforcement of any provisions of the rental agreement. The Florida Residential Landlord and Tenant Act only allows for recovery of attorney’s fees by the prevailing party in a civil action brought to “enforce the provisions of the rental agreement or this part” [ Section 83.48, Florida Statutes] .

The Emergency Motion to Quash was based solely upon the PTFA. The court ruled that the PTFA does not provide for any award of attorney’s fees. The tenant’s motion for attorney’s fees was denied.

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CITIMORTGAGE, INC., vs. LUTZ, et al,. Circuit Court, 7th Judicial Circuit in and for Volusia County. Case No. 2009 35312 CICI, Division 31. April 7, 2014. Terence R. Perkins, Judge. 21 Fla. L. Weekly Supp. 647b


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