                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                         In re the Matter of:
               GLASS & GARDEN DRIVE-IN CHURCH
               _____________________________________
        GLASS & GARDEN DRIVE-IN CHURCH; DAVID NOKES;
        MARK REEGA; RICK BLACK; and JACOB NEVZOROFF,
                        Petitioners/Appellants,

                                         v.

                   CLASSIS OF THE SOUTHWEST, R.C.A.,
                            Respondent/Appellee.

                              No. 1 CA-CV 14-0525
                                FILED 1-19-2016


            Appeal from the Superior Court in Maricopa County
                           No. CV2013-015209
                 The Honorable J. Richard Gama, Judge

                                   AFFIRMED


                                    COUNSEL

Joseph W. Charles, P.C., Glendale
By Joseph W. Charles
Counsel for Petitioners/Appellants

Lewis Roca Rothgerber Christie LLP, Phoenix
By Robert G. Shaffer, Amanda L. Thatcher
Counsel for Respondent/Appellee
                           GLASS et al. v. CLASSIS
                            Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Lawrence F. Winthrop joined.


H O W E, Judge:

¶1             David Nokes, Mark Reega, Rick Black, Jacob Navzoroff, and
the Glass & Garden Drive-In Church appeal the trial court’s order granting
the Classis of the Southwest, Reformed Church in America’s (the “Classis”)
motion to dismiss for lack of subject matter jurisdiction. For the following
reasons, we affirm.

                  FACTS AND PROCEDURAL HISTORY

               1. The Reformed Church in America

¶2             The Reformed Church in America (“RCA”) “minister[s] to the
total life of all people by preaching, teaching, and proclamation of the
gospel of Jesus, Christ, the Son of God, and by all Christian good works.”
The religious organization is governed by its own constitution and the Book
of Church Order (“BCO”), which contains the RCA’s government structure,
disciplinary and judicial procedures, bylaws and special rules of order of
the General Synod, and formularies. The RCA is composed of a hierarchical
structure of tribunals which consist of, in ascending order: (1) the
consistory, a local church’s governing body; (2) the classis, an assembly and
judicatory body superintending local churches in a designated area; (3) the
regional synod, an assembly and judicatory body superintending groups of
designated regional classes; and (4) the General Synod, the RCA’s highest
assembly and judicatory body. The RCA’s governing bodies “exercise
judicial as well as legislative powers,” and “[t]he governmental functioning
of these offices takes place, not apart from, but in harmony with the
understanding of the mission of the church and the nature of its ministry.”

¶3            Article 7 of the BCO provides the RCA with a process, known
as “supersession,” by which it may remove a local church’s consistory and
install new leadership: “The classis shall have the authority to supersede a
consistory in the administration of a local church, when, in its judgment,
there are conditions in that church which make it unable to fulfill the
functions of a local church . . . .” Article 7, section 12, subsection j identifies



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one of these conditions: the “consistory requests supersession.” The act of
supersession “shall dissolve the consistory and otherwise terminate the
formal organization of that church and [the classis shall] take such steps as
may be necessary to bring that church, its ministry, and its property under
the direct administration of the classis.”

¶4             Before superseding a consistory, however, the classis “shall
notify the church of its intention and summon the governing body to show
cause why that consistory should not be dissolved and the church and its
property be administered under the direction and supervision of the
classis.” But if the basis for supersession is by request, the consistory “need
not show why it should not be dissolved and may, instead, advise the
classis of its approval of this action.” The classis’s notice shall provide,
among other things, that the local “church shall not have a consistory, but
the classis shall designate those persons, not necessarily members of that
church, who shall exercise the functions of a consistory . . . .” Moreover,
“[t]hese persons shall serve the church in the same capacity as a consistory
until such time as the life of the church has reached an end or a consistory
for the church is reconstituted.” After superseding a consistory, the classis
“shall have the authority” to take “the church under its direction by
appointing such trustees as are required for the protection, preservation,
management and ownership of the property during such time as the classis
shall determine.”

¶5             Under the BCO, a consistory or one of its members may
challenge the classis’s supersession decision by filing a complaint against
the classis, alleging that the classis’s decision violated or failed to comply
with the RCA’s constitution or other laws and regulations of the church.
After the lower judicatory body renders a judgment, the consistory or one
of its members may then appeal the judgment by filing a notice of appeal
and transferring the complaint to the next higher judicatory body. The
regional synod is the final court of appeal for all cases originally heard by a
board of elders, but the General Synod may hear a case if one delegate from
each regional synod provides written notice that “just cause” exists for
appealing the case to the General Synod.

              2. The Glass & Garden Drive-In Church

¶6            Under the RCA’s constitution and BCO, local churches are an
integral and subordinate part of the larger church. They “together delegate
authority to classes and synods, and having done so, they also bind
themselves to be subject together to these larger bodies in all matters in
which the common interests of the many churches are objects of concern.”


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                           Decision of the Court

The Glass & Garden Drive-In Church (“the Garden”) is a local church
founded “for the primary object of carrying out the purposes and principles
of the Reformed Church in America.” The Garden’s primary purpose is to
create a church “wherein the members shall worship and labor together
according to discipline, rules and usages of the [RCA] as from time to time
authorized and declared by the General Synod of said [RCA].”

¶7              The Garden’s “Consistory Bylaws” from as recently as 2011
have provided that the church “is affiliated with the Reformed Church in
America” and “[i]n keeping with RCA policy, the name of the governing
board of The Garden is the ‘Consistory.’” Moreover, the Garden’s
“consistory will operate with the following rules of order and in keeping
with the Constitution of the RCA and the Book of Church Order (BCO) as
published yearly by the RCA.” The consistory’s general responsibilities
include, but are not limited, to: (1) governing “the spiritual and business
affairs of the congregation in accordance with the constitution”; (2) serving
“as trustees of the church property in accordance with the constitution”;
and (3) promoting “the work and welfare of the church as a member of the
Classis of the Southwest, and the RCA.”

              3. The Garden’s Request for Supersession

¶8           In 2013, Mr. Nokes, a member of the Garden’s consistory and
on behalf of the consistory, sent a letter to the Classis, requesting
supersession pursuant to the BCO:

       Yesterday, June 2, 2013, the Consistory of the Garden Church,
       in a special meeting and in accordance with
       Article 7 Section 12 paragraph j of the Reformed Church in
       America Book of Church Order, voted unanimously to
       request supersession from the Classis.

       Pastors Jim Poit, Gary Jarvis, and Mr. Wayne Ribbens were in
       attendance, and are informed of this decision, along with
       pastors Gene James, Larry Brasen, Kim Hicks, Cassie Peters
       and David Nokes, who comprise of the Garden Consistory.

¶9           In accordance with the BCO, the Classis held a meeting “to
acknowledge receipt of correspondence received from [the Garden’s]
Consistory and take action as appropriate.” The Classis asked for comments
from the Garden’s representatives, and then-Pastor Gene James
commented on the circumstances leading to the Garden’s request.
Afterwards, the Classis recommended, “consistent with the [RCA BCO]
Chapter 1, Part 2, Section 12, para J, that the Classis of the Southwest honor


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                           Decision of the Court

the request from [the Garden] for Supersession.” The Classis voted
unanimously to grant the Garden’s request and select persons to serve as
the Garden’s trustees and “be designated to exercise the functions of [the
Garden’s] consistory,” “consistent with the [RCA BCO] Chapter 1, Part 2,
Section 13, para d, and Chapter 1 Part 2 Section 14, para, a & b.”

¶10            Soon after, Pastor James announced in a letter to the Garden’s
membership that he was leaving and provided the background for the
supersession request. Pastor James explained that over the last few years,
the Garden had made “numerous attempts to increase the attendance,” but
“[d]espite [their] efforts . . . , many came and many left,” and the “[o]ngoing
financial deficits resulted in [the] church asking the Classis to supersede.”
He stated that a sister church had “underwent supersession recently and
after they closed the church, another church leased the property and within
one year they had to expand to 2 services to accommodate their growth and
they have since purchased the property.” The pastor was “encouraged by
that result” and did “not want to stand in the way of a similar result here at
[their] church. [Their] property [was] much too big and costly for [their]
current numbers.” Mr. Nokes left the Garden around the same time that
Pastor James did.

¶11            In late October, the Classis appointed Classis members to the
Garden’s trustees’ board and filed a notice of officer change for the Garden
with the Secretary of State. After Mr. Nokes was locked out of the Garden,
his attorney sent the Classis a letter, stating that a Classis member
“absconded with Mr. Nokes’ private financial records and made inquiries
which insinuated wrongdoing on the part of Mr. Nokes.” Mr. Nokes
demanded $150,000 in compensation, in light of his “continued assistance
to the RCA, which resulted in the contribution, of, literally, millions of
dollars to the classis retirement fund.” The Classis rejected the demand.

              4. The Litigation Regarding the Garden

¶12            Mr. Nokes and former members of the Garden who had left
the church before Mr. Nokes, Mark Reega, Rick Black, and Jacob Navzoroff
(collectively, “Petitioners”) sued the Classis in their individual capacities
and on behalf of the Garden. Petitioners requested that the trial court
appoint them as the Garden’s directors pursuant to the church’s articles of
incorporation and A.R.S. § 10–3160, which provides for judicial relief in
matters relating to corporations. They also alleged that the Garden had
“suspended” the BCO in 2007 and had been “operat[ing] outside the
authority of the classis.” The Classis moved to dismiss the complaint,
arguing that the court lacked subject matter jurisdiction to decide the


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                          GLASS et al. v. CLASSIS
                           Decision of the Court

church governance dispute under the “ecclesiastical abstention” doctrine.
The Classis argued alternatively that if the court had jurisdiction, the court
could not grant the requested relief under A.R.S. § 10–3160 because
(1) Petitioners did not have standing because they were not the Garden’s
directors and (2) the Garden’s affairs were governed by religious doctrine,
which the statute recognized as the controlling authority.

¶13            Petitioners then amended their complaint to add claims of
injunctive and declaratory relief and conversion, alleging that the Classis
improperly took the Garden’s assets and property and requested return of
all property. The assets and property “titled” to the Garden included the
building, a van, bank accounts, corporate records, and “other church
records including the baptismal and marriage information of the [Garden’s]
congregants.” Petitioners then attempted to amend their complaint to add
ejection and quiet title claims. The Classis objected to Petitioners’ second
amended complaint, arguing that the amendments were futile because
(1) Petitioners were not the Garden’s directors and therefore had no
authority to bring an action on its behalf and (2) defects in a court’s subject
matter jurisdiction could not be cured.

¶14           At oral argument on the motion to dismiss, the trial court
acknowledged Petitioners’ second amended complaint, but agreed with the
Classis that any amendment was futile. The court then granted the motion
to dismiss pursuant to Arizona Rule of Civil Procedure 12(b)(1), concluding
that the ecclesiastical abstention doctrine deprived it of subject matter
jurisdiction and that it had no authority to appoint or install new church
leadership. The court found “for constitutional purposes, that the RCA
[was] a hierarchical church and further that its governance, including the
supersession process, [was] an ecclesiastical matter.” It also found that “as
a local RCA affiliated church, [the Garden] [was] subject to its ecclesiastical
law.” Thus, the court “decline[d] to exercise secular jurisdiction over the
on-going supersession process and [would] defer to this hierarchical
church’s decision on this ecclesiastical governance issue.” Petitioners timely
appealed.

                               DISCUSSION

¶15            Petitioners argue that the trial court erred in granting the
Classis’s motion to dismiss pursuant to Rule 12(b)(1). They contend that the
ecclesiastical abstention doctrine does not apply because Arizona has
adopted the “neutral principles of law” doctrine, which allows the trial
court to address the subject matter in this case. We review de novo orders
dismissing cases for lack of subject matter jurisdiction. State ex rel.


                                      6
                           GLASS et al. v. CLASSIS
                            Decision of the Court

Montgomery v. Mathis, 231 Ariz. 103, 109 ¶ 18, 290 P.3d 1226, 1232 (App.
2012). Subject matter jurisdiction “refers to a court’s statutory or
constitutional power to hear and determine a particular type of case.” State
v. Maldonado, 223 Ariz. 309, 311 ¶ 14, 223 P.3d 653, 655 (2010). “In resolving
a subject matter jurisdiction challenge, the trial court may take evidence and
resolve factual disputes essential to its disposition of the motion without
converting the motion into one for summary judgment.” Church of Isaiah 58
Project of Ariz., Inc. v. Laz Paz Cty., 233 Ariz. 460, 463
¶ 9, 314 P.3d 806, 809 (App. 2013). The existence of a factual dispute does
not require denying the motion. Gatecliff v. Great Republic Life Ins. Co., 154
Ariz. 502, 506, 744 P.2d 29, 33 (App. 1987). Because the ecclesiastical
abstention doctrine divests the court of subject matter jurisdiction, the trial
court did not err in granting the Classis’s motion to dismiss pursuant to
Rule 12(b)(1).

¶16             The ecclesiastical abstention doctrine is embedded in the free
exercise and establishment clauses of the First Amendment to the United
States Constitution, Serbian E. Orthodox Diocese for U.S.A. & Can. v.
Milivojevich, 426 U.S. 696, 708–09 (1976), which applies to the states by its
incorporation into the due process clause of the Fourteenth Amendment,
Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 876–77 (1990). These
amendments permit “religious organizations to establish their own rules
and regulations for internal discipline and government, and to create
tribunals for adjudicating disputes over these matters.” Milivojevich, 426
U.S. at 724. As a result, civil courts cannot “inquire into internal
organizational disputes between different factions of a religious
organization or into property disputes that would require interpreting
religious doctrine or practice.” Rashedi v. Gen. Bd. of Church of the Nazarene,
203 Ariz. 320, 323–24 ¶ 14, 54 P.3d 349, 352–53 (App. 2002). Rather, they
“must accept the decisions of the highest judicatories of a religious
organization of hierarchical polity on matters of discipline, faith, internal
organization, or ecclesiastical rule, custom, or law.” Id. at 324 ¶ 15, 54 P.3d
at 353; see also Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in
N. Am., 344 U.S. 94, 116 (1952) (“[Watson v. Jones, 80 U.S. 679 (1871),
establishes that the ecclesiastical abstention doctrine] radiates . . . a spirit of
freedom for religious organizations, an independence from secular control
or manipulation, in short, power to decide for themselves, free from state
interference, matters of church government as well as those of faith and
doctrine.”).

¶17            Arizona’s ecclesiastical abstention doctrine provides even
broader protection: the doctrine precludes civil courts from inquiring into
“ecclesiastical matters,” regardless whether the church is hierarchical or


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                            Decision of the Court

congregational and whether the dispute has been addressed by an
adjudicatory body within the church. See Ad Hoc Comm. of Parishioners of
Our Lady of Sun Catholic Church, Inc. v. Reiss, 223 Ariz. 505, 512 ¶ 18, 224 P.3d
1002, 1009 (App. 2010); Rashedi, 203 Ariz. at 323 ¶ 14, 54 P.3d at 352.
“Ecclesiastical matters” include those that concern “theological
controversy, church discipline, ecclesiastical government, or the conformity
of the members of the church to the standard of morals required of them.”
Reiss, 223 Ariz. at 511–12 ¶ 16, 224 P.3d at 1008–09. Thus, “[i]f the subject
matter of [a party’s] dispute is ecclesiastical, we lack jurisdiction to resolve
those claims.” Id. at 512 ¶ 18, 224 P.3d at 1009. A court that lacks subject
matter jurisdiction cannot adjudicate the action. Maldonado, 223 Ariz. at 311
¶ 14, 223 P.3d at 655. The court must therefore dismiss the action, and all
other motions are deemed moot. See Reiss, 223 Ariz. at 510 ¶ 10, 224 P.3d at
1007.

¶18            Here, Petitioners alleged in their first amended complaint that
“the classis through an ecclesiastical procedure known as ‘supersession’
attempted to not only dissolve the [Garden] corporate form, but also sought
to seize real and personal property titled and possessed by the [Garden].”
Thus, Petitioners requested judicial appointment as the Garden’s directors;
injunctive relief to prevent the Classis “from continuing any confiscation of
any property rightfully belonging” to the Garden and commanding that the
Classis return all the Garden’s property; declaratory relief that all the
property “seized” by the Classis belongs to the Garden; and damages for
the Garden’s property previously converted and continuing to be
converted. We decline to address these counts, however, because the core
issue in all of them involve internal organizational disputes between
Petitioners and the Classis, specifically involving the Garden’s consistory’s
on-going supersession process, and resolution of this issue would require
the court to inquire into the church’s ecclesiastical governance and to
interpret religious doctrine and practice.

¶19           The Garden’s formation and the procedures undertaken by its
consistory to request supersession demonstrate how the core issue here is
purely an “ecclesiastical matter” concerning the church’s governance. First,
the Garden was formed to carry out the RCA’s purposes and principles,
and under the RCA hierarchy, the Garden’s consistory—its governing
body—is subject to the RCA’s constitution and BCO. Correspondingly, the
Garden’s articles of incorporation and bylaws recognize the local church’s
existence as a subordinate part of the RCA religious organization, and both
documents provide that the church would operate consistently with the
RCA’s constitution and BCO. Further, by doing so, the Garden’s consistory
subjected itself to the constitution and BCO, including the BCO provision


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                          GLASS et al. v. CLASSIS
                           Decision of the Court

providing that the Classis may remove the Garden’s consistory through the
supersession process. Thus, the reorganization of any local church’s
consistory under the BCO—including the Garden’s consistory’s
reorganization through the supersession process—involves a matter of
internal church governance, “an issue at the core of ecclesiastical affairs.”
Milivojevich, 426 U.S. at 721–22 (“[R]eligious freedom encompasses the
power of religious bodies to decide for themselves, free from state
interference, matters of church government as well as those of faith and
doctrine.”) (internal quotation marks and parentheses omitted).

¶20             Second, contrary to Petitioners’ claim that the Garden’s
consistory had suspended the BCO in 2007, its consistory turned to the
Classis in 2011 when the Garden was facing difficulty.
Mr. Nokes wrote a letter to the Classis and requested supersession pursuant
to “Article 7 Section 12 paragraph j of the Reformed Church in America
Book of Church Order.” Following the procedures the BCO dictated, the
Classis notified the local church’s members and held a meeting to discuss
receipt of its request for supersession and asked for an explanation from the
Garden’s consistory. At that meeting, the Classis heard comments from the
Garden’s consistory and discussed the supersession request with them.
Only after reaching an agreement with the Garden’s consistory for
supersession did the Classis voted to accept the consistory’s request. In
further accordance with the BCO, the Classis later appointed persons to
serve as the Garden’s trustees to exercise the functions of the Garden’s
consistory.

¶21            Petitioners counter that the issue here centers on a property
dispute, not on inter-governmental affairs, and can be resolved by resorting
to the “neutral principles of law” doctrine, which would not run afoul of
the First Amendment. The United States Supreme Court has recognized
that “a State is constitutionally entitled to adopt neutral principles of law as
a means of adjudicating a church property dispute.” Jones v. Wolf, 443 U.S.
595, 604 (1979). Depending on the circumstances, “civil courts can resolve
at least some church-related disputes through neutral principles of law so
long as the case is resolved” without inquiry into religious doctrine or
internal organizational disputes. Reiss, 223 Ariz. at 512–13 ¶¶ 19–20, 224
P.3d at 1009–10. But the First Amendment “commands civil courts to decide
church property disputes without resolving underlying controversies over
religious doctrine.” Presbyterian Church in U.S. v. Mary Elizabeth Bull Hull
Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969).

¶22          Here, the neutral principles doctrine does not apply because
resolution of this case requires the court to resolve questions of


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                           Decision of the Court

ecclesiastical governance and religious doctrine and practice. Petitioners’
characterization of the core issue as one of property simply does not
transform this case into a church property dispute under the neutral
principles doctrine. See Milivojevich, 426 U.S. at 707–09 (rejecting neutral
principles doctrine when plaintiff sought “to have himself declared [the
church’s] Bishop”; “this case essentially involves not a property dispute but
a religious dispute the resolution of which under our cases is for
ecclesiastical and not civil tribunals”). Contrary to Petitioners’ claim that
the Classis confiscated the Garden’s property and dissolved the corporate
entity, the record shows that the Garden’s current trustees are exercising
the functions of the Garden’s consistory and the Garden, the corporate
entity, continues to hold its assets and property, including the building.

¶23           Indeed, resolution of the religious dispute here affects both
the control of the Garden’s property and its administration because the
Garden’s directors, who are members of its consistory, control the Garden,
which is the property-holding corporation. Therefore, this case essentially
involves not a church property dispute, but a religious dispute the
resolution of which under our cases is for ecclesiastical and not civil courts.
See Rashedi, 203 Ariz. at 323–24, 54 P.3d at 352–53 (“Nor can civil courts
inquire into internal organizational disputes between different factions of a
religious organization or into property disputes that would require
interpreting religious doctrine or practice.”); Dobrota v. Free Serbian
Orthodox Church St. Nicholas, 191 Ariz. 120, 124 ¶¶ 13–14, 952 P.2d 1190, 1194
(App. 1998) (providing that civil courts must abstain from deciding
disputes about any “essential part of church government”).

¶24            To support its argument, Petitioners urge us to adopt the
conclusion in Masterson v. Diocese of Northwest Texas, 422 S.W.3d 594, 608
(Tex. 2014), a case holding that under the neutral principles doctrine, the
trial court had jurisdiction to determine who owned a local church property
in dispute between the hierarchical church organization and former
parishioners because the dispute did not involve ecclesiastical matters of
church governance and the decision could be based on neutral principles.
But that case is distinguishable mainly because the dispute there involved
property ownership. See id. (“We agree with the court of appeals that the
record conclusively shows TEC is a hierarchical organization. . . . [But] we
disagree with its determination that the question of who owns the property
is inextricably linked to or determined by them.”) (emphasis added); see also
id. at 603 (“Under the neutral principles methodology, ownership of
disputed property is determined by applying generally applicable law and
legal principles.”) (emphasis added). But here, as mentioned, the ownership
of the Garden’s assets and property is not in dispute, but rather, who


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                           Decision of the Court

controls the Garden and in turn controls its assets and property. The
Garden’s control is undoubtedly an ecclesiastical matter of church
governance subject to the RCA’s constitution and BCO.

¶25            Consequently, because the ecclesiastical abstention doctrine
divests the court of subject matter jurisdiction, the trial court did not err in
granting the Classis’s motion to dismiss pursuant to Rule 12(b)(1).
Accordingly, all other issues, including whether the trial court erred in not
appointing Petitioners the Garden’s directors under A.R.S. § 10–3160 and
whether Petitioners had standing to act on behalf of the Garden as they
were not its directors, are moot. See Reiss, 223 Ariz. at 510 ¶ 10, 224 P.3d at
1007 (providing that standing issues were moot because the ecclesiastical
abstention doctrine divested the court of jurisdiction); Maldonado, 223 Ariz.
at 311 ¶ 14, 223 P.3d at 655 (providing that a court that lacks subject matter
jurisdiction cannot adjudicate the action); State v. Fimbres, 222 Ariz. 293, 302
¶ 14, 213 P.3d 1020, 1029 (App. 2009) (“[D]efects in subject matter
jurisdiction cannot be cured).

                               CONCLUSION

¶26           For the foregoing reasons, we affirm. We also award the
Classis its taxable costs upon compliance with Arizona Rule of Civil
Appellate Procedure 21.




                                  :ama




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