                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 GUADALUPE P. PEREZ,                              §
                                                                  No. 08-12-00037-CV
                              Appellant,          §
                                                                      Appeal from the
 v.                                               §
                                                               County Court at Law No. 3
 OLD WEST CAPITAL CO., Assignee of                §
 Hudson & Keyse, L.L.C.,                                        of Tarrant County, Texas
                                                  §
                              Appellee.                          (TC#2007-058909-3-A)
                                                  §

                                           OPINION

       Guadalupe Perez appeals the trial court’s denial of a bill of review. Perez brings three

issues: (1) the trial court erred in denying the bill of review based on lack of service where

evidence established the process server failed to comply with the Rule 106 order; (2) the evidence

was legally and factually insufficient to support the findings of fact; and (3) the conclusions of law

were erroneous as a matter of law. For the reasons set out below, we affirm.

                                          BACKGROUND

       Perez filed a petition for bill of review against Old West Capital Co. from a default

judgment in July 2008. In her bill of review, Perez alleged: (1) she did not reside at 1501 N.

Sylvania Avenue, Ft. Worth, where service of process was effectuated; and (2) the process server

did not comply with the trial court’s order for substitute service.
         In the underlying case, the trial court authorized substitute service upon Guadalupe Perez

pursuant to Rule 106 of the Texas Rules of Civil Procedure. The trial court’s order authorized

service by: “Attaching a true copy of this Order, the Citation and the Original Petition securely to

the front door or entry way . . .” at 1501 N. Sylvania Ave., Ft. Worth, Texas.1

         On the hearing on Perez’s bill of review, the process server, Rudolf Jackson testified he

first went to the Sylvania address to serve Guadalupe Perez in February 2008. Upon arrival, he

saw there was no walkway to the front of the house and the front porch had “wrought iron

restraints” surrounding it. In addition, the front wrought iron had a rusty padlock which indicated

to Jackson the door was unused. As a result, he could not reach the front door of the house.

However, there was a paved sidewalk leading to a door on the side of the house. The side door

had a screen with wrought iron and a wooden door behind the screen. According to Jackson, it

appeared to him the side door was the main entry, because it had a sidewalk and steps from the

curb to the side entrance unlike the front door.

         At that time, a woman answered the door at the side entrance, she identified herself as

Alice Perez. She told Jackson that Guadalupe Perez was not home but Jackson should return on a

weeknight. Jackson gave Alice Perez his business card. Jackson found a telephone number for

Guadalupe Perez, and left three messages to return his call. Over the next month, Jackson

returned to the Sylvania address on three more occasions, once in the evening and twice in the

morning.      Each time, there was no answer and he left a handwritten note on the door.

Subsequently, Jackson prepared his affidavit in support of substitute service pursuant to

TEX.R.CIV.P. 106.


1
  This order is dated April 17, 2007. While not stated clearly in the record before this Court, the year appears to be
incorrect, as the underlying suit was not filed until December of 2007.
                                                          2
       Based on his observations, Jackson believed that the side entrance was the main entry of

the home. Jackson put the citation and petition in a plastic bag, sealed it, and attached the bag

with duct tape to the wrought iron of the screen door at the side entrance of the house on Sylvania.

In the return of service attested to by Jackson, he indicates that in May 2008, citation was served by

“attaching to the front entrance of the address listed above, per Order for Substitute Service . . . .”

       Perez stated she never received notice of the lawsuit. Perez moved to Weatherford, Texas

in 2007 and did not reside at the Sylvania Avenue address in 2008. Perez introduced a number of

exhibits which indicated she resided with her husband in Weatherford. Perez admitted to first

acquiring the Sylvania property in 2005 and conveyed it to her daughter in 2006. In October

2008, her daughter conveyed the house back to Perez. Perez said her son and daughter-in-law

lived at the Sylvania house. However, Perez would return to the Sylvania house every two or

three days to check the mail.

       In 2007 and 2008, Perez and her husband claimed the Sylvania property as their homestead

with an over 65 exemption for the property taxes. The Sylvania address was listed on Perez’s

driver’s license. The telephone number at the Sylvania address was listed in her and her

husband’s name. The telephone number Jackson called was her telephone number at the Sylvania

house. Perez did not receive mail in Weatherford, she used the Sylvania property as her mailing

address. In 2008, Perez’s mail received at the Sylvania address included: (1) property tax

statements; (2) bank statements; and (3) insurance bills. Perez paid the gas and electricity bill at

the Sylvania house and had a key to the property. Under direct examination she stated she did not

sleep at the Sylvania house. However, during her cross examination, she admitted, occasionally,

she would spend the night at the house “[i]f the weather was real bad.” Perez stated she did not


                                                  3
use the front door, but the side entrance for entry.

       According to Perez’s husband, in 2008, each of their vehicles was registered to the

Sylvania address. Further, he, like Perez, used the side door or, sometimes, a back door but not

the front door for entry into the home. Although he accompanied Perez almost every time she

went to the house, he did not recall finding any papers attached to the side door. However, he

stated he has Alzheimer’s and “can’t even remember my name sometimes.”

       The trial court entered an order denying the bill of review on October 13, 2011. Perez

requested findings of fact and conclusions of law and a motion to reconsider. The court issued

one finding of fact and two conclusions of law:

                                        I.    FINDINGS OF FACT

   1. Plaintiff Guadalupe P. Perez was duly served by substituted service on May 20, 2008 at
      1501 N. Sylvania Road, Fort Worth, Tarrant County, Texas 76111.

                                  II.        CONCLUSIONS OF LAW

   1. The method of service used in Cause 2007-058909-3 in this Court complied with the
      Court’s Rule 106 Order for substituted service and was reasonably effective to give
      Guadalupe P. Perez notice of said suit.
   2. Guadalupe P. Perez has failed to present any credible corroborating evidence that
      substituted service in Cause 2007-058909-3 in this Court was not duly and properly
      effected upon her.

The motion to reconsider was overruled by operation of law. This appeal follows.

                                             Bill of Review

       Perez first contends that the trial court erred by denying the bill of review, based on the

process server’s failure to strictly comply with the order permitting substitute service.

Specifically, Perez argues Jackson failed to comply with the order by taping the citation and

petition to the side entrance instead of the front door.


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                           Standards of Review and Applicable Law

       A bill of review is an independent action to set aside a judgment that can no longer be

challenged by a motion for new trial or appealed. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924,

926-27 (Tex. 1999). A bill of review is usually a direct attack on a previous trial court’s judgment

that is no longer subject to an appeal or a motion for new trial. Fernandez v. Frost Nat’l Bank,

315 S.W.3d 494, 504 (Tex. 2010); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.

2003); Pursley v. Ussery, 937 S.W.2d 566, 567 (Tex.App.--San Antonio 1996, no writ).

       In reviewing the granting or denial of a bill of review, every presumption is indulged in

favor of the court’s ruling, which will not be disturbed unless it is affirmatively shown that there

was an abuse of discretion. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex.App.--Houston

[14th Dist.] 2002, no pet.). The trial court may be reversed for abusing its discretion only if it has

acted in an unreasonable or arbitrary manner, or without reference to any guiding rules and

principles. Id. at 293. A trial court does not abuse its discretion as long as its decision is within

the zone of reasonable disagreement.          PPC Transp. v. Metcalf, 254 S.W.3d 636, 641

(Tex.App.--Tyler 2008, no pet.), citing Natural Gas Pipeline Co. of Am. v. Pool, 30 S.W.3d 618,

632 (Tex.App.--Amarillo 2000), rev’d on other grounds, 124 S.W.3d 188 (Tex. 2003).

       To prevail on a bill of review, a petitioner must plead and prove: (1) a meritorious

defense; (2) that he or she was prevented from making due to the fraud, accident, or wrongful act

of his or her opponent; and (3) that the failure to appear was unmixed with any fault or negligence

of his or her own. Ross v. Nat’l Ctr. for the Employment of the Disabled, 197 S.W.3d 795, 797

(Tex. 2006). Further, the petitioner must normally show that he or she exercised due diligence to

assert all adequate legal remedies before filing the bill of review. Caldwell v. Barnes, 975 S.W.2d


                                                  5
535, 537 (Tex. 1998).

       However, the absence of proper service modifies the elements of a bill of review. When a

party has not been properly served, that party “is entitled to a bill of review without a further

showing, because the Constitution discharges the first element, and lack of service establishes the

second and third.” Ross, 197 S.W.3d at 797. This is true even if a party becomes aware of the

proceedings and fails to participate. A party, who has acquired knowledge but was not properly

served, has no duty to participate in the proceedings. Caldwell v. Barnes, 154 S.W.3d 93, 97 n.1

(Tex. 2004); Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990)(“[M]ere knowledge of a pending

suit does not place any duty on a defendant to act.”). Although diligence is required from

properly served parties or those who have appeared, those not properly served have no duty to act.

Ross, 197 S.W.3d at 797-98.

       Rule 106 of the Texas Rules of Civil Procedure provides for substituted service in certain

circumstances:

       (b)       Upon motion supported by affidavit stating the location of the defendant’s
                 . . . usual place of abode or other place where the defendant can probably be
                 found . . . the court may authorize service

             (1) by leaving a true copy of the citation, with a copy of the petition attached,
                 with anyone over sixteen years of age at the location specified in such
                 affidavit, or

             (2) in any other manner that the affidavit or other evidence before the court
                 shows will be reasonably effective to give the defendant notice of the suit.

TEX.R.CIV.P. 106(b).

       The Supreme Court of Texas has held actual notice is not only unnecessary, but is

in fact, contrary to Rule 106(b)’s underlying rationale:

       Under Rule 106(b), a court may authorize substituted service only after a plaintiff

                                                   6
       has unsuccessfully tried to effect personal service or service . . . as required by Rule
       106(a). TEX.R.CIV.P. 106(b). A plaintiff may resort to substituted service only
       upon the failure of these methods which provide proof of actual notice. Thus, to
       require proof of actual notice upon substituted service would frustrate Rule
       106(b)’s purpose of providing alternate methods for plaintiffs . . . . In fact, the rule
       itself contemplates other procedures which will not necessarily furnish evidence of
       actual notice. The rule allows service by leaving a copy of the citation and petition
       with someone over the age of sixteen at the defendant’s place of abode as stated in
       the affidavit. TEX.R.CIV.P. 106(b)(1). This method of substituted service
       provides no evidence in the record of when defendant received actual notice, but
       rather only provides proof of when plaintiff actually left the copies with someone in
       compliance with the rule. Service by mail achieves a similar result because it
       allows a plaintiff to properly post a return of service which demonstrates that the
       plaintiff has precisely followed the court’s order of service by means reasonably
       calculated to provide actual notice.

State Farm Fire and Cas. Co. v. Costley, 868 S.W.2d 298, 298-99 (Tex. 2003).

       Rule 107 requires an adequate return of service before a court may grant a default

judgment. TEX.R.CIV.P. 107(a)-(h). Rule 107 provides that “[w]here citation is executed by an

alternative method as authorized by Rule 106, proof of service shall be made in the manner ordered

by the court.” TEX.R.CIV.P. 107(f). In those cases where the order for substituted service does

not set out a specific manner of proof of service, Rule 107 controls what constitutes proper service.

Bautista v. Bautista, 9 S.W.3d 250, 251 (Tex.App.--San Antonio 1999, no pet.)(“Although

substituted service was authorized under rule 106 in this case, the order did not specify a different

manner of proving service; therefore, proof of service in accordance with rule 107 is required.”).

       Rule 106 allows an individual to be served “where the defendant can probably be

found . . . .” TEX.R.CIV.P. 106(b). Service may be effected on a defendant wherever he may be

found within the county and is “not limited to the address mentioned”. Garcia v. Gutierrez, 697

S.W.2d 758, 760 (Tex.App.--Corpus Christi 1985, no pet.). See also Magan v. Hughes Television

Network, Inc., 727 S.W.2d 104, 105 (Tex.App.--San Antonio 1987, no pet.)(Substituted service at


                                                  7
the address where defendant’s children lived and “it was shown that other communications

reached him by delivery at the same place.”).

         If a court finds that the rules of service have been strictly adhered to, the recital’s in the

return by the process server creates a presumption that service was accomplished. Huffeldt v.

Competition Drywall, Inc., 750 S.W.2d 272, 273 (Tex.App.--Houston [14th Dist.] 1988, no writ);

see also Min v. Avila, 991 S.W.2d 495, 501 (Tex.App.--Houston [1st Dist.] 1999, no pet.). The

presumption can be rebutted in a bill of review. Huffeldt, 750 S.W.2d at 273; Fidelity & Guar.

Ins. Co. v. Drewery Constr. Co., Inc., 186 S.W.3d 571, 573-74 (Tex. 2006). The party asserting

lack of service must corroborate it with “evidence of supporting facts and circumstances” by a

preponderance of evidence. Min, 991 S.W.2d at 501; Ward v. Nava, 488 S.W.2d 736, 738 (Tex.

1972).

                                     Application of law to facts

         At the outset, we find the term “front door” refers to what an objective visitor would regard

as being the primary entrance. C.f. State v. Somfleth, 8 P.3d 221, 226 n.7 (Or.App. 2000)(“We

use ‘front yard’ or ‘front door’ to refer to what an objective visitor would regard as being the

primary entrance to the property.”). The plain language of the Rule 106 order allowed for service

to be accomplished by “[a]ttaching a true copy of the Order, the Citation and the Original Petition

securely to the front door or entry way” at the same address.

         Unequivocally, the side door was the primary entry to the house. Perez and her husband

attested to this. Jackson observed the “front door” to the Sylvania address was inaccessible from

the sidewalk. The front door was locked with a rusty padlock and barred by the wrought iron

restraints. Jackson correctly surmised the side entry was the main entry to the house because it


                                                   8
had a sidewalk and steps leading from the curb to the side entrance. Jackson securely attached the

citation and petition to the side door. He prepared and filed a return of service which indicated

service was effectuated by “attaching to the front entrance of the address listed above, per Order

for Substitute Service . . . .”

        The trial court reasonably concluded the side entry of the house was effectively the “front

door or entry way,” or the “front entrance” of the residence. Such an inference is supported by:

(1) the existence of an unimpeded path to the side door; (2) the lack of the same to the “front” door,

which also happened to be barricaded and padlocked; and (3) it was the only entrance Perez and

her family used. The trial court commented on the service of process, stating the court was not:

        [P]articularly pleased with [Jackson’s] return of service which indicated he posted
        it on the front entrance of the address listed above. All the testimony . . . shows
        that that side entrance is the one that they used to gain access to the property.
        So I’m going to find that service was appropriate and in accordance with the
        Court’s order for substituted service. The whole point of substituted service
        obviates the need to prove actual notice because for all we know, Alice took it
        down. But it got onto the door that everybody admits was the primary entryway to
        the residence.

Clearly, Jackson complied with the court’s Rule 106 order by attaching the citation “securely to

the front door or entry way.”

        A strict reading of the term “front door” in Rule 106 in the instant case leads to an

incongruous possibility. If Jackson had attached the citation to the actual “front” door, the

documents would have had less opportunity than the side door in achieving actual notice.

        Perez argues the return of service, in which Jackson indicates he affixed the citation to the

front door, was facially incorrect because it was actually attached to the side entrance. We do not

agree the service of process in this case was legally deficient.

        Other courts of appeal have found that discrepancies on the return of service do not render

                                                  9
service ineffective. For example, minor variations in names, such as omission of periods or

corporate abbreviations, do not render service ineffective. See, e.g., Myan Management Group,

L.L.C. v. Adam Sparks Family Revocable Trust, 292 S.W.3d 750, 753 (Tex.App.--Dallas 2009, no

pet.)(dropping “Group, L.L.C.” and changing “L.L.C.” to “LLC” are not fatal to effective service).

However, alterations of a name, such that a court of appeals could not decipher whether the person

listed on the service was the same as both names indicated, do render service ineffective. See, e.g.

Lytle v. Cunningham, 261 S.W.3d 837, 840-41 (Tex.App.--Dallas 2008, no pet.)(“Chris” and

“Christopher” are distinct names). Listing a different address on the return and citation will not

render service invalid. See, e.g., Garcia v. Gutierrez, 697 S.W.2d 758, 760 (Tex.App.--Corpus

Christi 1985, no writ).

       In a recent case, In re M.C.B., 400 S.W.3d 630 (Tex.App.--Dallas 2013, no pet.)(op. on

reh’g) a party was served using substitute service under Rule 106. The return of service indicated

the citation was delivered “by 106 to door of . . . address.” However, at the default judgment

hearing, the process server testified that he had duct-taped the citation to the front door. Id. at

634. The court, in reviewing the trial court’s grant of summary judgment on the bill of review,

held the trial court was allowed to consider the testimony of the process server. Further, the trial

court could conclude the server acted in strict compliance with the Rule 106 order. Id. at 635.

Appellant’s argued the return of service was defective. In their view, the trial court’s order

required the citation be “attached or affixed” was not substantially complied with when the return

of service stated “by 106 to door.” Id. The court overruled that argument and affirmed the trial

court’s denial of the bill of review.

       Applying M.C.B., the trial court was entitled to consider Jackson’s testimony the “front


                                                10
door” was not the main entry to the residence but rather the side door. On the return of service,

Jackson indicated service was affixed to the front entrance. The court could reasonably conclude

the return of service was acceptable in complying with the Rule 106 order. More importantly, the

trial court’s Rule 106 order allowed Jackson to serve Perez at the “front door or entry way.”

Certainly, the trial court’s ruling is within the zone of reasonable disagreement and therefore, not

an abuse of discretion. PPC Transp., 254 S.W.3d at 641.

       Additionally, while Perez maintained she lived in Weatherford, the court had sufficient

evidence to find that service of process could be effected upon her at the Sylvania address. Her

son and daughter-in-law lived at the home, her mail was received there, and she had claimed the

address as her homestead. She and her husband travelled to the house at least two times a week,

staying overnight occasionally. The address was listed on her driver’s license, the telephone was

in her name, she paid two of the utilities, and she had a key to the home. Perez’s first issue is

overruled.

                           Findings of Fact and Conclusions of Law

       Perez’s second and third issues contend the evidence was legally and factually insufficient

to support the findings of fact and the conclusions of law and were erroneous as a matter of law.

We will consider these issues jointly.

                           Standard of Review and Applicable Law

       Findings of fact by a court have the same force and dignity as a jury’s answers to jury

questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court’s

findings of fact are reviewable for legal and factual sufficiency of the evidence by the same

standards that are applied in reviewing evidence supporting a jury’s answer. Ortiz v. Jones, 917


                                                11
S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).

         We may sustain a legal sufficiency challenge only when: (1) the record discloses a

complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to

prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the

opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.

1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); Robert W. Calvert,

“No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX.L.REV. 361, 362-63 (1960).

In determining whether there is legally sufficient evidence to support the finding under review, we

must consider evidence favorable to the finding if a reasonable fact finder could and disregard

evidence contrary to the finding unless a reasonable fact finder could not. Cent. Ready Mix

Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802,

807 (Tex. 2005).

         When reviewing an assertion that the evidence is factually insufficient to support a finding,

we set aside the finding only if, after considering and weighing all of the evidence in the record

pertinent to that finding, we determine that the credible evidence supporting the finding is so weak,

or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside

and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)(op. on reh’g);

Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.

1965).

         We review a trial court’s conclusions of law de novo to determine if the trial court drew the

correct legal conclusions from the facts. Bundren v. Holly Oaks Townhomes Ass’n, Inc., 347


                                                  12
S.W.3d 421, 429-30 (Tex.App.--Dallas 2011, pet. denied); Wright Grp. Architects–Planners,

P.L.L.C. v. Pierce, 343 S.W.3d 196, 199 (Tex.App.--Dallas 2011, no pet.). We must uphold

conclusions of law if “any legal theory supported by the evidence sustains the judgment.”

Bundren, 347 S.W.3d at 430. We will reverse the trial court’s judgment only if the conclusions of

law are erroneous as a matter of law. Kaplan v. Kaplan, 129 S.W.3d 666, 668 (Tex.App.--Fort

Worth 2004, pet. denied).

                  Application of Law to Court’s Findings and Conclusions

       Perez first challenges the trial court’s sole Finding of Fact that Perez was duly served by

substitute service on May 20, 2008 at 1501 N. Sylvania Road, Fort Worth, Tarrant County, Texas

76111. Perez contends Jackson did not comply with the court’s Rule 106 order and the trial court

disregarded the “strict compliance” service of process requires. She asserts the evidence allowed

for only a single inference – there was no compliance with the Rule 106 order. We disagree.

       As discussed above, the uncontested evidence demonstrates the “front door” was not used

for entry. Jackson’s observations and Perez’s testimony corroborated the fact only the side door

was used by Perez and her family as the primary entrance. Jackson attached the citation and the

accompanying petition to the main entry or “front entrance.” The trial court’s Rule 106 order

allowed process to be served on the “front door or entry way.” While the trial court expressed

some concern with Jackson’s language on the return of service, it found the citation was properly

attached to the primary entrance of the Sylvania residence. While Perez was adamant she and her

husband lived in Weatherford, there was sufficient evidence for the court to find that the Sylvania

address was where Perez could be found.

       We conclude there is more than a mere scintilla of evidence supporting the trial court’s


                                                13
finding. After consideration and weighing all the evidence presented, we are satisfactorily

convinced the credible evidence supporting that finding is not so weak as to be clearly wrong and

manifestly unjust. Pool, 715 S.W.2d at 635. We hold the sole Finding of Fact to be both legally

and factually sufficient. Perez’s second issue is overruled.

       Perez next challenges the two Conclusions of Law issued by the court, which is reviewed

de novo. As previously discussed, there is sufficient evidence to support the trial court’s finding

the method of service complied with the court’s Rule 106 order. Because the trial court’s Finding

of Fact supports Conclusions of Law Number One, the trial court did not err in reaching that

challenged conclusion.

       After extensive review of the record, we hold that the trial court did not err by entering

Conclusions of Law Number Two. Perez asserts she did not receive notice. She never used the

front door for entry into the home but only the side entrance. She visited her family often at the

home and occasionally spent the night there. Mr. Perez could not recall finding any papers

attached to the side entrance. The only corroboration to Perez’s assertion was her husband’s

testimony, but, sadly, he has Alzheimer’s and “can’t even remember [his] name sometimes.”

       In light of the evidence presented, Conclusions of Law Number Two was not so against the

great weight and preponderance of the evidence to be clearly wrong or unjust. City of Keller, 168

S.W.3d at 826; Cain, 709 S.W.2d at 176. The trial court, in its role as fact finder, was entitled to

resolve the conflicts in the evidence and to choose which testimony to believe. See City of Keller,

168 S.W.3d at 819. Given Jackson’s testimony and Mr. Perez’s weak corroboration as to the lack

of notice, we find the evidence was legally and factually sufficient to support the trial court’s

Conclusions of Law Number Two. Perez’s third issue is overruled.


                                                14
                                        CONCLUSION

       Having overruled each of Perez’s issues, the judgment of the trial court is hereby affirmed.



August 14, 2013
                                             YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.




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