                                                                                                               ACCEPTED
                                                                                                          06-14-00040-CV
                                                                                                  SIXTH COURT OF APPEALS
                                                                                                       TEXARKANA, TEXAS
                                                                                 WANDA MCKEE FOWLER 3/25/2015 5:10:10 PM
                                                                                 fowler@wrightclose.com    DEBBIE AUTREY
                                                                                                                   CLERK
                                                                                 Retired Justice of the
                                                                                 14th Court of Appeals 1995 – 2008
                                                                                 Direct: (713) 490-4025


March 25, 2015                                                                       RECEIVED IN
                                                                                6th COURT OF APPEALS
                                                                                  TEXARKANA, TEXAS
Court of Appeals                                                                3/25/2015 5:10:10 PM
Sixth Appellate District of Texas                                                   DEBBIE AUTREY
                                                                                        Clerk
Attn.: Debra K. Autrey, Clerk
Bi-State Justice Building
100 North State Line Avenue #20
Texarkana, Texas 75501

      Re:    No. 06-14-00040-CV; Tillerd Ardean Smith, Medallion Transport &
             Logistics, LLC, and Tomy Rushing d/b/a Rushing Transport Services,
             Inc. v. Brandi Williams
Dear Ms. Autrey:

       I am writing to advise the Court of a recent Texas Supreme Court opinion
that is relevant to the above-referenced appeal. See Wackenhut Corp. v. Gutierrez,
No. 12-0136, 2015 WL 496301, at *1 (Tex. Feb. 6, 2015) (per curiam) (attached
hereto). Because this new authority issued after the parties completed their briefing
and because this case is set for submission by oral argument on April 1, 2015,
please forward this letter and its attachment to Chief Justice Morriss and Justices
Moseley and Burgess at your earliest convenience.

       For the third time in a little more than six months, the Texas Supreme Court
has reversed a judgment because the jury charge included an improper spoliation
instruction. See Wackenhut, 2015 WL 496301, at *5; Petroleum Solutions, Inc. v.
Head, No. 11-0425, 2014 WL 7204399, at * 5–6 (Tex. Dec. 19, 2014); Brookshire
Brothers, Ltd. v. Aldridge, 438 S.W.3d 9, 30 (Tex. 2014). The most recent case,
Wackenhut, involved a collision between a charter bus and a car. 2015 WL 496301
at *1. The bus was equipped with four video cameras that automatically looped
over and erased previously recorded data every seven days. Id. One of the cameras
may have captured the moment of impact, but the bus company failed to prevent
the recording system from automatically looping over the video. Id.

      Almost two years after the accident, the driver of the car sued the bus
company for negligence and sought damages for injuries sustained in the collision.
Id. The driver filed a pretrial motion for spoliation of evidence, seeking sanctions
against the bus company for the intentional or negligent destruction of the video
                                         WRIGHT & CLOSE, LLP
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Court of Appeals
Sixth Appellate District of Texas
Attn.: Debra K. Autrey, Clerk
March 25, 2015
Page 2

recording. Id. At the close of evidence, the trial court found the bus company had
negligently destroyed evidence and submitted a spoliation instruction to the jury. 1
Id. The jury found in the driver’s favor, and the bus company appealed.

        In a per curiam opinion, the Texas Supreme Court held the spoliation
instruction should not have been given because the bus company’s failure to
preserve the video recording, even if negligent, did not completely deprive the
driver of the ability to present his claims. Id. at *4 (applying rule from Brookshire
Brothers, 490 S.W.3d at 23–26, that spoliation instruction may be submitted only
if (1) spoliating party acted with intent to conceal discoverable evidence or (2)
spoliating party acted negligently and caused nonspoliating party to be irreparably
deprived of any meaningful ability to present claim or defense). The evidence at
trial included the testimony of both drivers and an eyewitness; statements prepared
by the drivers and the witness at the time of the accident; testimony of the
responding police officer; the police report; the bus company’s report to its
corporate headquarters; photos of the vehicles and the accident scene; and
extensive medical records.2 Id.

        In deciding whether the trial court’s error was reversible, the Court observed
that “‘the likelihood of harm from the erroneous [spoliation] instruction [was]
substantial.’” Id. (quoting Brookshire Brothers, 438 S.W.3d at 29). The evidence
as to the cause or contributing causes of the accident was disputed. The driver
testified he was driving slowly because of rain, but the bus company employees
testified the driver was speeding. Id. And the driver’s counsel emphasized
spoliation in his opening statement and closing argument, telling the jury:

                 [B]ecause of that, you may presume—you are free to
                 look at this and say that videotape, had they shown it, it
                 would have shown you that what the driver of that bus is
                 saying and what . . . the co-driver, is saying is against

1
    The instruction, which was not as harsh as the one given in this case, read: “Parties to a lawsuit are under a duty
    to preserve evidence that they know or should know is relevant to the dispute. In this case, The Wackenhut
    Corporation negligently failed to preserve the video on the bus, and it did so while there was an anticipation of
    litigation and while it had a duty to preserve evidence. You may, therefore, presume that the videotape was
    unfavorable to The Wackenhut Corporation.” Id. at *1 n.2 (emphasis added).
2
    For the reasons why the alleged spoliation of driver logbooks and waybills in this case did not deprive Plaintiff
    of the ability to present her claims, please see the appellants’ brief at pages 34 to 35.
Court of Appeals
Sixth Appellate District of Texas
Attn.: Debra K. Autrey, Clerk
March 25, 2015
Page 3

             them. It’s not the way they said. It’s the way [the driver]
             said it happened.

The Court concluded the trial court’s error probably caused the rendition of an
improper judgment, set aside the $1.2 million judgment for the driver, and
remanded the case for a new trial. Id. at *4–5.

       The trial court’s error in instructing the jury that Medallion “intentionally
withheld documents or destroyed evidence material to this case” warrants the same
result here. (CR 635) Just as in Wackenhut, liability for the collision was disputed.
Plaintiff claimed that Smith’s fatigue caused the accident, but Medallion and Smith
claimed that Plaintiff was driving too fast on a dark section of a curving road and
therefore was unable to take defensive measures or realize Smith’s truck might be
turning left. (3 CR 73–77; 4 CR 54) And Plaintiff’s counsel employed the same
tactics as in Wackenhut, repeatedly emphasizing spoliation in voir dire, in opening
statement, throughout trial, and in closing argument. Counsel specifically pointed
out the spoliation instruction to the jury in his closing argument, and at least four
pages of the record of that argument are occupied with counsel’s discussion of
logbooks and waybills. (7 RR 152–55, 157–58) Despite the lack of evidence that
Medallion intentionally destroyed or withheld material evidence, Plaintiff’s
counsel told the jury:
             And when I asked him: Sir, you knew you were going to
             come in this courtroom in Marshall, Texas; you knew the
             issue was a log book; yet did you think to look?

             Do you really think he didn’t look? Do you really think
             that somebody didn’t look at those documents and not
             just send them to us? You know why they didn’t send
             them to us? Because they knew, if the[y] did, I was going
             to be able to prove that he was fatigued. They knew it.
             So they’re like: Okay. If we send it, he’s got us for sure.
             If we don’t send it, guess what? We’re just going to say
             we just made a mistake and destroyed it and the jury
             might have some question in their mind.
Court of Appeals
Sixth Appellate District of Texas
Attn.: Debra K. Autrey, Clerk
March 25, 2015
Page 4

             Ladies and Gentlemen, you know better than that.

(7 RR 155)
        At one point, even though no exemplary damage questions were submitted,
counsel went so far as to urge jurors to punish Medallion not for the accident but
for its recordkeeping practices:
             And you remember when I had Mr. Winney on the stand,
             I said: This is bad stuff.

             All right, Mr. Goudarzi. You’re right. He falsified the
             logs. That’s bad stuff.

             Well, what are you going to do about it?

             I’m going to think about it when I get back to North
             Carolina.

             Well, you know what’s going to make him think about it?
             Your verdict. And you know what? To be quite honest
             with you, it’s got to be a big verdict, because if it’s not,
             this gentleman and this gentleman (indicating), they’re
             not going to worry about it.

             They’re going to say: We pulled a hat trick off again.

(7 RR 157–58)

       This record plainly establishes that the trial court’s error in submitting a
spoliation instruction probably caused the rendition of an improper judgment.
Accordingly, for all the reasons stated herein and in appellants’ prior briefing, the
Court should follow the Texas Supreme Court’s recent decisions on spoliation and
remand this case for a new trial.

       All counsel of record are being copied on this letter. Thank you for your
attention to this matter.
Court of Appeals
Sixth Appellate District of Texas
Attn.: Debra K. Autrey, Clerk
March 25, 2015
Page 5


                                    Respectfully Submitted,

                                    /s/ Wanda McKee Fowler
                                    Wanda McKee Fowler

                                    Attorney for Appellants


cc: Via Electronic Service

David M. Gunn
Erin H. Huber
BECK REDDEN LLP
1221 McKinney, Suite 4500
Houston, TX 77010
dgunn@beckredden.com
ehuber@beckredden.com

John R. Mercy
MERCY CARTER TIDWELL LLP
1724 Galleria Oaks Drive
Texarkana, Texas 75503
jmercy@texarkanalawyers.com

Brent Goudarzi
Geoffrey G. Hoover
GOUDARZI & YOUNG
P.O. Box 910
Gilmer, Texas 75644
brent@goudarzi-young.com
ghoover@goudarzi-young.com

Counsel for Appellant
Wackenhut Corporation v. Gutierrez, --- S.W.3d ---- (2015)




                                                                    Jesus M. Dovalina, Law Offices of Jesus M. Dovalina,
                   2015 WL 496301                                   P.C., Del Rio, Kimberly S. Keller, Keller Stolarczyk PLLC,
    Only the Westlaw citation is currently available.               Boerne, for Respondent.
              Supreme Court of Texas.
                                                                    Opinion
           Wackenhut Corporation, Petitioner,
                          v.                                        PER CURIAM
           Jesse James Gutierrez, Respondent
                                                                     *1 This personal injury suit raises two issues pertaining to
              No. 12–0136 | OPINION                                 the trial court's submission of a spoliation jury instruction.
             DELIVERED: February 6, 2015                            First, we consider whether the party opposing the instruction
                                                                    preserved error by responding to a pretrial motion for
Synopsis                                                            sanctions but later failing to formally object to the
Background: Motorist brought personal injury action                 instruction's inclusion in the jury charge until after it was
arising from accident involving charter bus and motorist's          read to the jury. Second, if error was preserved, we must
automobile. Following a jury trial, the 63rd Judicial District      determine whether the trial court committed reversible error
Court, Val Verde County, Enrique Fernandez, J., entered             by submitting the instruction. We answer both questions in
judgment in favor of motorist. Bus company appealed. The            the affirmative.
San Antonio Court of Appeals, 358 S.W.3d 722, affirmed.
Bus company filed petition for review.                              Wackenhut Corporation owned and operated a charter
                                                                    bus that collided with a car driven by Jesse Gutierrez.
                                                                    Wackenhut's bus was equipped with four video cameras
                                                                    that recorded while the bus was running but not when the
Holdings: The Supreme Court held that:
                                                                    bus's power was turned off. After 168 hours—or seven days
                                                                    —of recording, the videos automatically looped over and
[1] bus company preserved for appellate review its claim that
                                                                    erased previously recorded data. One of the cameras was
trial court erred by submitting spoliation jury instruction;
                                                                    positioned so that it may have captured the actual impact, 1
[2] motorist was not irreparably deprived of any meaningful         but Wackenhut did not preserve this recording, and it was
ability to present his claim by bus company's failure to            eventually looped over.
preserve bus's video recordings, and thus spoliation jury
instruction was unwarranted; and                                    Two days after the accident, Gutierrez personally delivered a
                                                                    letter to Wackenhut detailing his recollection of the collision.
[3] trial court's error of submitting spoliation jury instruction   In the letter, Gutierrez stated that he believed Wackenhut's
constituted reversible error.                                       driver had caused the accident, and that Gutierrez had
                                                                    been taken to the hospital and would follow up with his
                                                                    doctor. Wackenhut completed a “General Liability Notice of
Petition granted; judgment of Court of Appeals reversed and         Occurrence/Claim” and sent it along with Gutierrez's letter to
remanded.                                                           the company's corporate headquarters.

                                                                    Almost two years after the accident, Gutierrez sued
ON PETITION FOR REVIEW FROM THE COURT OF                            Wackenhut and the bus driver for negligence, seeking
APPEALS FOR THE FOURTH DISTRICT OF TEXAS                            damages for the injuries he sustained in the collision.
                                                                    Before trial, Gutierrez filed a Motion for Spoliation of
Attorneys and Law Firms
                                                                    Evidence, requesting that Wackenhut be sanctioned because
Jaime A. Saenz, Lecia Lynne Chaney, Colvin, Chaney, Saenz           it intentionally or negligently destroyed the video recording
& Rodriguez, L.L.P., Brownsville, Michael W. Eady, Sara             of the accident. In that motion, Gutierrez argued he was
Berkeley Churchin, Thompson, Coe, Cousins & Irons, L.L.P.,          entitled to a presumption that the recording would have
Austin, for Petitioner.                                             been unfavorable to Wackenhut. In its response, Wackenhut
                                                                    argued that there was no evidence of either intentional or



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Wackenhut Corporation v. Gutierrez, --- S.W.3d ---- (2015)


negligent spoliation, that the requested sanctions—including        test for determining if a party has preserved error in the jury
the spoliation instruction—were unwarranted, and that all           charge, and that is whether the party made the trial court
evidence of the alleged spoliation should be excluded.              aware of the complaint, timely and plainly, and obtained a
                                                                    ruling.” State Dep't of Highways & Pub. Transp. v. Payne,
During trial, after Gutierrez rested, the trial court ruled         838 S.W.2d 235, 241 (Tex.1992); see also Ford Motor Co. v.
orally that Wackenhut had negligently spoliated evidence            Ledesma, 242 S.W.3d 32, 43 (Tex.2007). “The more specific
and ordered the inclusion of a spoliation instruction in the        requirements of the rules should be applied ... to serve rather
jury charge. Upon the completion of trial testimony, each           than defeat this principle.” Payne, 838 S.W.2d at 241.
party submitted a proposed jury charge and attended a formal
charge conference. During the conference, Wackenhut did              [1] Here, the record confirms that the trial court was aware
                                                               2    of, and rejected, Wackenhut's objection to the inclusion of a
not object to the spoliation instruction in the court's charge.
Immediately after the court read the charge to the jury,            spoliation instruction before the charge was read to the jury.
Wackenhut's counsel approached the bench and objected to            In its opposition to Gutierrez's pretrial motion for sanctions,
the submission of the spoliation instruction. The trial court       Wackenhut argued that (1) it had no duty to retain the video
acknowledged the objection, but did not comment further on          prior to being served with citation in this suit, (2) there
the instruction. The jury found in Gutierrez's favor, and the       was no evidence that the tape would actually have recorded
trial court rendered judgment on the verdict for $1,201,050.08      the accident, (3) there was no evidence that Wackenhut
in damages and prejudgment interest. Wackenhut appealed.            intentionally or negligently destroyed the recording because
                                                                    it was looped over in the regular course of business before
 *2 The court of appeals affirmed, overruling Wackenhut's           Wackenhut had notice of any claim, and (4) any spoliation
sole issue—that the trial court erred in submitting the             did not prejudice Gutierrez because of the availability of
spoliation instruction. 358 S.W.3d 722, 724–25. Relying on          other evidence. In turn, Wackenhut specifically argued that a
Texas Rule of Civil Procedure 272, the court held that,             spoliation instruction would be improper. The trial court ruled
because Wackenhut did not object to the instruction until after     that a spoliation instruction would be submitted to the jury.
the trial court read the charge to the jury and did not provide
a specific ground for the objection, Wackenhut waived any            [2] [3] Further, during the hearing on Wackenhut's motion
complaint it had about the instruction. Id.                         for new trial, the following conversation took place:

                                                                      [COUNSEL FOR WACKENHUT]: [T]he court made a
Wackenhut argues that, by detailing its reasons for opposing
                                                                      ruling that the instruction would go to the jury, and then
spoliation sanctions generally and a spoliation instruction in
                                                                      the court took argument on that, and that's how we ended
particular in its response to Gutierrez's pretrial motion for
                                                                      up with this particular instruction, but it was given over
sanctions, it timely made the trial court aware of its complaint.
                                                                      objection.
Because the trial court ruled on the motion, Wackenhut
contends that it was not required to later object to the jury          *3 THE COURT: [Y]ou are correct. The court heard
charge. Wackenhut further argues that the trial court abused          argument, made its ruling on the instruction.
its discretion by including the spoliation instruction in the
charge and that this error was harmful. Gutierrez counters that                                    ***
Wackenhut failed to preserve error, that the trial court acted
within its discretion, and that any error was harmless.               [COUNSEL FOR WACKENHUT]: For the record, Your
                                                                      Honor, I think it is clear that Wackenhut did object to any
We first address the issue of error preservation. The                 spoliation instruction going to the jury at all, ... and so there
procedural rules governing jury charges state in pertinent            is no waiver here. There was an objection to any instruction
part that objections to the charge “shall in every instance be        going to the jury.
presented to the court ... before the charge is read to the jury”
                                                                      THE COURT: I don't deny that, because I noted that on
and that “[a]ll objections not so presented shall be considered
                                                                      record that the objection was made to the charge....
as waived.” TEX. R. CIV. P. 272. Further, the objecting party
“must point out distinctly the objectionable matter and the         In light of Wackenhut's specific reasons in its pretrial briefing
grounds of the objection.” TEX. R. CIV. P. 274. However,            for opposing a spoliation instruction and the trial court's
we have previously explained that “[t]here should be but one        recognition that it submitted the instruction over Wackenhut's



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 2
Wackenhut Corporation v. Gutierrez, --- S.W.3d ---- (2015)


                                                                       available evidence, we hold that Gutierrez was not irreparably
objection, there is no doubt that Wackenhut timely made
                                                                       deprived of any meaningful ability to present his claim.
the trial court aware of its complaint and obtained a ruling.
                                                                       Therefore, the trial court abused its discretion by submitting
Under the circumstances presented here, application of Rules
                                                                       the spoliation instruction to the jury.
272 and 274 in the manner Gutierrez proposes would defeat
their underlying principle. See Payne, 838 S.W.2d at 241.
                                                                    [8] Finally, the trial court's error is reversible only if it
Therefore, we conclude that Wackenhut preserved error. 3
                                                                   probably caused the rendition of an improper judgment. Id.
                                                                   at 29; TEX. R. APP. P. 61.1(a). We have previously noted
 [4] Next, we turn to the propriety of the trial court's
                                                                   that, “ ‘if a spoliation instruction should not have been given,
submission of the spoliation instruction to the jury in light of
                                                                   the likelihood of harm from the erroneous instruction is
our recent decision in Brookshire Brothers, Ltd. v. Aldridge,
                                                                   substantial, particularly when the case is closely contested.’
438 S.W.3d 9 (Tex.2014). Applying the Brookshire Brothers
                                                                   ” Brookshire Bros., 438 S.W.3d at 29 (quoting Wal–Mart
framework, we hold that the trial court abused its discretion
                                                                   Stores, Inc. v. Johnson, 106 S.W.3d 718, 724 (Tex.2003)).
in submitting the instruction.
                                                                   Liability was closely contested in this case. Gutierrez claimed
                                                                   that he drove slowly because it was raining, while the
 *4 [5] [6] [7] Whether a party spoliated evidence and
                                                                   Wackenhut employees testified that Gutierrez was speeding.
whether a particular remedy is appropriate are questions of
                                                                   In addition, during his opening statement, Gutierrez's counsel
law for the trial court. Id. at 14, 20. We review a trial
                                                                   stated that “[t]here is a video camera that would have
court's imposition of spoliation sanctions under an abuse-of-
                                                                   captured ... if Mr. Gutierrez was coming speeding as they
discretion standard. Id. at 27. In Brookshire Brothers, we
                                                                   claim.... It clarifies who was telling the truth.” Further, and
articulated specific restrictions on a trial court's discretion to
                                                                   more significantly, during closing arguments, counsel placed
submit a spoliation instruction to the jury in the event it finds
                                                                   significant emphasis on the spoliation instruction:
that a party spoliated evidence. Id. at 23–26. Specifically, a
trial court may submit an instruction only if it finds that (1)                   Therefore, because of that, you may
the spoliating party acted with intent to conceal discoverable                    presume—you are free to look at this
evidence, or (2) the spoliating party acted negligently and                       and say that videotape, had they shown
caused the nonspoliating party to be irreparably deprived of                      it, it would have shown that what the
any meaningful ability to present a claim or defense. Id.                         driver of that bus is saying and what
                                                                                     Mrs. Rivera, the co-driver, is saying
Here, the trial court found that Wackenhut negligently                               is against them. It's not the way they
spoliated evidence in failing to preserve the recording. 4 Even                      said. It's the way Mr. Gutierrez said it
assuming that finding is correct, which Wackenhut disputes,                          happened.
the trial court nevertheless abused its discretion by submitting
                                                                       In light of the contested liability, counsel's statements, and
the spoliation instruction. To justify the instruction based on
this negligence finding, the spoliation must have irreparably          the highly speculative probative value of the recording, 5 the
deprived Gutierrez of any meaningful ability to present his            record reflects the significant effect the spoliation instruction
claims. This, we conclude, Wackenhut's failure to preserve             likely had on the trial. Therefore, we hold that the trial court's
the recording did not do.                                              error probably caused the rendition of an improper judgment.

The evidence presented at trial included: the testimony of both         *5 Accordingly, we grant Wackenhut's petition for review
drivers; the testimony of an eyewitness Wackenhut employee;            and, without hearing oral argument, reverse the court of
witness statements prepared by the drivers and the witness at          appeals' judgment and remand the case to the trial court for
the time of the accident; testimony of the responding police           a new trial in accordance with this opinion. TEX. R. APP. P.
officer; the police report; Wackenhut's report to its corporate        59.1.
headquarters; photos of the vehicles and the accident scene;
and extensive medical records. In light of the abundance of


Footnotes
1      The camera at issue was located outside the passenger door, viewing the side of the bus that was involved in the accident.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   3
Wackenhut Corporation v. Gutierrez, --- S.W.3d ---- (2015)


2      The instruction read: “Parties to a lawsuit are under a duty to preserve evidence that they know or should know is relevant to the
       dispute. In this case, The Wackenhut Corporation negligently failed to preserve the video on the bus, and it did so while there was an
       anticipation of litigation and while it had a duty to preserve evidence. You may, therefore, presume that the videotape was unfavorable
       to The Wackenhut Corporation.”
3      To the extent concerns exist that this holding will open the floodgates to preservation of trial error by way of pretrial motion in other
       contexts, such concerns are unfounded. A motion in limine, for example, does not preserve error on evidentiary rulings at trial because
       it does not seek a ruling on admissibility; rather, the purpose of such a motion “is to prevent the asking of prejudicial questions
       and the making of prejudicial statements in the presence of the jury” without seeking the trial court's permission. Hartford Accident
       & Indem. Co. v. McCardell, 369 S.W.2d 331, 335 (Tex.1963). And a denied pretrial no-evidence motion for summary judgment
       does not preserve a no-evidence objection to a question in the jury charge, as the latter is premised on the evidence (or lack thereof)
       presented at trial and thus cannot properly be asserted before trial. In the unique circumstances presented here, the course of the
       trial does not affect the propriety of a spoliation instruction. Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 20, 26 (Tex.2014)
       (holding that whether spoliation occurred and the propriety of a particular spoliation remedy are issues of law for the trial court and
       that evidence of spoliation is generally inadmissible at trial). And the relief Wackenhut sought in its opposition to the pretrial motion
       for sanctions—findings that it did not negligently or intentionally spoliate evidence and that the submission of a spoliation instruction
       was improper—is exactly what the trial court rejected in its oral ruling. Notably, Wackenhut's formal objection to the instruction after
       the charge was read to the jury was not to the particular wording of the instruction; such a complaint had never before been brought
       to the trial court's attention and would have been untimely. Rather, mirroring its rejected pretrial position, Wackenhut objected to
       the submission of a spoliation instruction in any form.
4      In so holding, the trial court also expressly found that the evidence did not show that Wackenhut “intentionally destroyed” the video.
5      The collision took place around 8:00 p.m. on a stormy evening with heavy rain.


End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                          4
