Michelle Kaplowitz v. Lone Star Tan GP, LLC LST Austin I, LTD And Ashley Alvillar

Reversed and Remanded in Part and Affirmed in Part and Memorandum
Opinion filed October 19, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00329-CV
MICHELLE KAPLOWITZ, Appellant
V.
LONE STAR TAN GP, LLC; LST AUSTIN I, LTD; AND ASHLEY
ALVILLAR, Appellees
On Appeal from the 26th District Court
Williamson County, Texas
Trial Court Cause No. 18-0550-C26
MEMORANDUM OPINION
Appellant Michelle Kaplowitz appeals the trial court’s order granting
traditional summary judgment in favor of appellees Lone Star Tan GP (“Lone Star”),
LST Austin I, LTD (“LST”), and Ashley Alvillar (collectively “Defendants”). In
three issues Kaplowitz asserts the trial court erred in (1) striking her affidavit
attached to the response to motion for summary judgment; (2) dismissing her
negligence claims based on the exclusive-remedy defense; and (3) dismissing her
intentional infliction of emotional distress claim. Concluding the trial court erred in
striking Kaplowitz’s affidavit and dismissing Kaplowitz’s negligence claims, but not
her intentional infliction of emotional distress claim, we affirm in part and reverse
and remand in part.
BACKGROUND
On February 23, 2017, Kaplowitz began employment in a tanning salon
named Palm Beach Tan. The store was located at 5001 183A Toll Road, Cedar Park,
TX 78613. According to Kaplowitz’s petition, she was working at the store on May
27, 2017 while talking on the phone with the store manager, Ashley Alvillar. Alvillar
allegedly “lost her temper and verbally assaulted Kaplowitz,” who became
distressed and experienced a non-epileptic seizure, which caused her to fall and hit
her head. Kaplowitz alleged in her petition that, due to a previous brain injury, she
experienced seizures when subjected to stressful situations. On the day of the
incident Alvillar filed an injury report, which listed LST and Lone Star as
Kaplowitz’s employers.
Kaplowitz filed suit against Lone Star, LST, and Alvillar1 alleging intentional
infliction of emotional distress (“IIED”) and negligence. Kaplowitz further alleged
that Lone Star and LST were vicariously liable for the actions of their employee,
Alvillar. All three defendants filed answers asserting, inter alia, that their liability
for Kaplowitz’s negligence claims was precluded by the exclusive remedy provision
of the Texas Workers’ Compensation Act (“TWCA”). See Tex. Lab. Code §
408.001. Defendants further alleged that Kaplowitz could not recover on her IIED
claim because the gravamen of her complaint could be addressed by another
1
Kaplowitz initially filed suit against Palm Beach Tan, but later amended her petition as
Palm Beach Tan was not her or Alvillar’s employer.
2
common-law tort.
On February 18, 2020, Defendants filed their first amended motion for
traditional summary judgment. In the motion, Defendants alleged that Kaplowitz
was an employee of Lone Star, and “its related entity LST Austin I, LTD, as a
franchisee of Palm Beach.” The motion further alleged that both Lone Star and LST
were insured for workers’ compensation. In support of their motion for summary
judgment Defendants relied on (1) a franchise agreement executed on March 18,
2014 between Palm Beach Tan and Lone Star; (2) an assignment and assumption
agreement between Palm Beach, Lone Star and LST executed May 8, 2019; (3) a
relocation amendment dated January 9, 2017 relocating “Store AUS004” from 1700
West Parmer Lane, Ste 600, Austin, TX 78727 to 5001 183A Toll Road, Cedar Park,
TX 78613; (4) a workers’ compensation insurance policy listing LST as the insured;
(5) the aforementioned injury report; and (6) a hiring packet, which showed Lone
Star was Kaplowitz’s employer.
Defendants further asserted in their motion for summary judgment that
Kaplowitz’s pleadings showed her claims gave rise to alternative means of recovery
other than IIED. Because IIED is a gap-filler tort, Defendants asserted the tort was
not available to Kaplowitz because she has another common-law remedy to address
her alleged injuries. Defendants further asserted that Kaplowitz could not maintain
an IIED claim because Alvillar’s alleged actions did not rise to the level of extreme
and outrageous conduct as a matter of law.
Kaplowitz responded to Defendants’ motion urging that Defendants had not
conclusively established the affirmative defense of the exclusivity provisions of the
Texas Labor Code because Lone Star, Kaplowitz’s employer, did not maintain
workers’ compensation insurance as only LST was listed as an insured on the policy.
Kaplowitz further alleged that the store where she was allegedly injured in Cedar
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Park, Texas, was not listed on the insurance policy. In Kaplowitz’s response she
relied on (1) her affidavit in which she averred that she was told she would not be
covered by workers’ compensation; and (2) the deposition testimony of Trevor
Klepper, corporate representative of Lone Star and LST in which Klepper testified
that the policy attached to the motion for summary judgment was the entire policy
and Klepper did not know if Lone Star maintained a separate policy.
As to Kaplowitz’s claim of IIED she asserted that she was entitled to plead
her negligence and IIED claims in the alternative under the Rules of Civil Procedure,
and that Alvillar’s alleged “verbal assault” raised a fact issue as to whether her
conduct could be deemed extreme and outrageous.
The trial court granted Defendants’ motion for summary judgment and
dismissed all Kaplowitz’s claims. Kaplowitz appealed, and in three issues,
challenges the trial court’s summary judgment order.
ANALYSIS2
A. Standard of Review
To be entitled to summary judgment under Rule 166a(c), a movant must
establish there is no genuine issue of material fact so that the movant is entitled to
judgment as a matter of law. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). We take as true all evidence favorable to the
nonmovant and resolve any doubt in the nonmovant’s favor. 20801, Inc. v. Parker,
249 S.W.3d 392, 399 (Tex. 2008). We consider the evidence presented in the light
2
The Texas Supreme Court ordered the Third Court of Appeals to transfer this case to our
court. Under the Texas Rules of Appellate Procedure, “the court of appeals to which the case is
transferred must decide the case in accordance with the precedent of the transferor court under
principles of stare decisis if the transferee court’s decision otherwise would have been inconsistent
with the precedent of the transferor court.” Tex. R. App. P. 41.3.
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most favorable to the nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could, and disregarding evidence contrary to the nonmovant unless
reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc., 289
S.W.3d at 848. A defendant moving for summary judgment on an affirmative
defense must prove conclusively the elements of the defense. Shah v. Moss, 67
S.W.3d 836, 842 (Tex. 2001).
B. Exclusivity Defense Under the Texas Labor Code
The Texas Workers’ Compensation Act (“TWCA”) was adopted to provide
prompt remuneration to employees who sustain injuries in the course and scope of
their employment. Hughes Wood Prods. v. Wagner, 18 S.W.3d 202, 206 (Tex.
2000). An employer has the option of providing workers’ compensation insurance
for employees and becoming a subscriber under the TWCA, or not providing
workers’ compensation insurance and remaining a nonsubscriber. Tex. Lab. Code §
406.002(a); Port Elevator–Brownsville, L.L.C. v. Casados, 358 S.W.3d 238, 241
(Tex. 2012).
If the employer is a subscriber, the TWCA allows employees to recover
workers’ compensation benefits for injuries in the course and scope of employment
without proving fault by the employer and without regard to their negligence or that
of their coworkers. Id. In exchange, the TWCA prohibits an employee from seeking
common law remedies from his employer for personal injuries sustained in the
course and scope of his employment. Hughes Wood Prods., 18 S.W.3d at 207.
“Recovery of workers’ compensation benefits is the exclusive remedy of an
employee covered by workers’ compensation insurance coverage or a legal
beneficiary against the employer or an agent or employee of the employer for the
death of or a work-related injury sustained by the employee.” Tex. Lab. Code §
408.001(a).
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The exclusive-remedy provision is an affirmative defense. Warnke v. Nabors
Drilling USA, L.P., 358 S.W.3d 338, 343 (Tex. App.—Houston [1st Dist.] 2011, no
pet.). To show that a common-law claim is barred by the TWCA, the defendant must
show that the injured worker was (1) its employee at the time of the work-related
injury, and (2) covered by workers’ compensation insurance. Phillips v. Am.
Elastomer Prods., L.L.C., 316 S.W.3d 181, 187 (Tex. App.—Houston [14th Dist.]
2010, pet. denied). Once these requirements are satisfied, the exclusive remedy
provision is triggered, and all employee claims of work-related negligence and gross
negligence are barred. Warnke, 358 S.W.3d at 343.
I. The trial court erred in striking Kaplowitz’s affidavit attached to the
response to motion for summary judgment.
In Kaplowitz’s first issue she challenges the trial court’s ruling on the
defendants’ objections to her summary judgment evidence. In response to the motion
for summary judgment Kaplowitz attached a declaration in which she averred,
“When I was trained to work at Palm Beach Tan in Cedar Park, Texas, I was told by
the person who trained me that I would not be covered by workers’ compensation
insurance.” Defendants filed an objection to the declaration contending that the
declaration contained “blanket, conclusory statements of fact from an interested
party” and did not constitute proper summary judgment proof. Defendants further
objected that the declaration should be struck because it lacked specificity and could
not be readily controverted.
A conclusory statement is one that expresses a factual inference without
providing underlying facts to support that conclusion. See, e.g., Arkoma Basin Expl.
Co. v. FMF Assocs. 1990–A, Ltd., 249 S.W.3d 380, 389 n. 32 (Tex. 2008). Affidavits
containing conclusory statements that fail to provide the underlying facts supporting
those conclusions are not proper summary judgment evidence. Nguyen v. Citibank,
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N.A., 403 S.W.3d 927, 931 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). To
avoid being conclusory, an affidavit must contain specific factual bases, admissible
in evidence, from which any conclusions are drawn. Southtex 66 Pipeline Co. v.
Spoor, 238 S.W.3d 538, 542 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).
Defendants argue Kaplowitz’s declaration is conclusory because Kaplowitz
failed to give “further detail or background information, including the identity of this
alleged person or said person’s relation to Defendants. . ..” We do not agree that
Kaplowitz’s statement was a factual conclusion. Kaplowitz’s statement that the
person who trained her at Palm Beach Tan explained that she would not be covered
by workers’ compensation insurance is a statement of fact, not an inference from
unstated facts. On appeal, Defendants argue this statement cannot be readily
controverted because Kaplowitz did not state the name of the person who trained
her. Kaplowitz’s statement could be readily controverted by Lone Star’s employee
who trained Kaplowitz.
We conclude that this statement is not conclusory and raises a genuine issue
of material fact on whether Kaplowitz’s employer was covered by workers’
compensation insurance at the time of her injury. See Padilla v. Metro. Transit Auth.
of Harris County, 497 S.W.3d 78, 85–86 (Tex. App.—Houston [14th Dist.] 2016,
no pet.) (holding that minute detail in affidavit was unnecessary to render testimony
non-conclusory). We sustain Kaplowitz’s first issue.
II. Defendants did not conclusively establish that Kaplowitz’s employer
provided workers’ compensation insurance.
Lone Star and LST asserted they were both Kaplowitz’s employers and were
covered by workers’ compensation insurance. Kaplowitz contends there is a fact
question on both scores. Because this case was decided on summary judgment, the
defendants must establish each of their contentions as a matter of law. See Garza v.
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Exel Logistics, Inc., 161 S.W.3d 473, 475 (Tex. 2005).
Defendants’ summary judgment evidence reflects that Kaplowitz was
employed by Lone Star. The hiring packet attached to Defendants’ motion contains
no mention of LST. Defendants rely on extraneous documents as evidence that
Kaplowitz was employed by both Lone Star and LST. First, Defendants refer to
Kaplowitz’s answers to interrogatories in which she stated that she worked at “Palm
Beach Tan, The Parke, 5001 183A L-200, Cedar Park, Texas 78613.” Next,
Defendants refer to the franchise agreement between Lone Star Tan, Ltd.—not a
party to this suit—and Palm Beach Tan—also not a party, which lists Palm Beach
Tan as the franchisor and Lone Star Tan, Ltd, as the franchisee. Finally, Defendants
rely on an assignment and assumption agreement signed two years after Kaplowitz’s
injury, in which LST assumed all rights, liabilities, and obligations from Lone Star
Tan, Ltd.
The TWCA defines “employee” as “each person in the service of another
under a contract of hire, whether express or implied, or oral or written.” Tex. Lab.
Code § 401.012(a). An “employer” is “a person who makes a contract of hire,
employs one or more employees, and has workers’ compensation insurance
coverage.” Id. § 401.011(18). Although determining whether a plaintiff is the
defendant’s employee is ultimately a matter of applying these statutory definitions,
courts have not often found the definitions alone to be dispositive. Frequent litigation
over the exclusive-remedy provision has yielded a large body of case law addressing
whether the plaintiff was the defendant’s employee for workers’ compensation
purposes. See Waste Mgmt. of Tex., Inc. v. Stevenson, 622 S.W.3d 273, 277 (Tex.
2021). Under those cases, “[t]he test to determine whether a worker is an employee
rather than an independent contractor is whether the employer has the right to control
the progress, details, and methods of operations of the work.” Limestone Prods.
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Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002). An employee may
have more than one employer within the meaning of the TWCA and each employer
may raise the exclusive remedy provision as a bar to the employee’s claims. See
Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 143, 148 (Tex. 2003); see also
Garza, 161 S.W.3d at 476.
In Wingfoot and Garza, the injured worker was employed by a temporary
employment agency (general employer), which agreed to provide another company
(client company) with temporary workers. The injured worker sustained a work-
related injury while working on the premises of the client company. Wingfoot, 111
S.W.3d at 135; Garza, 161 S.W.3d at 474. In Wingfoot, the supreme court held that
the exclusive remedy provision applied to a general employer because the injured
worker and the general employer fell within the respective definitions of “employee”
and “employer” under the TWCA. 111 S.W.3d at 149. In Garza, the undisputed
evidence established that at the time the worker was injured, he was working on the
client company’s premises, in the furtherance of the client company’s day-to-day
business, and the details of the work that caused his injury were specifically directed
by the client company. 161 S.W.3d at 177. Thus, the client company was the
employer of the injured worker for the purposes of the exclusive remedy provision.
Id.
In this case, there is no dispute as to whether Kaplowitz was an employee or
independent contractor. The dispute centers on who employed Kaplowitz. The
documents attached to Defendants’ motion for summary judgment do not
conclusively establish that Kaplowitz was employed by LST or by both LST and
Lone Star at the time of the injury. The hiring packet signed by Kaplowitz lists Lone
Star as her employer. The only documents relied on by Defendants that could reflect
LST and Lone Star as Kaplowitz’s employers are the assignment and assumption
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agreement and the injury report filled out by Alvillar. In contrast, the record reflects
that Lone Star alone was Kaplowitz’s employer, and LST did not assume Lone Star
Tan, Ltd’s obligations until two years after Kaplowitz was injured. Because there is
conflicting evidence in the summary-judgment record, Defendants have not
conclusively proved that Kaplowitz was employed by LST or by both Lone Star and
LST.
The summary judgment evidence also includes a workers’ compensation
insurance policy listing the insured as LST. The policy contains no mention of Lone
Star. The policy also does not list the premises on which Kaplowitz was working
when she was allegedly injured.
Lone Star and LST assert they have established they were both named
insureds on the policy, which provided workers’ compensation insurance coverage
invoking the TWCA. Under that argument, even if LST was not Kaplowitz’s
employer the exclusivity defense would apply. The record reflects, however, that
LST was the named insured on the policy, not Lone Star. The policy lists several
workplaces as “Named Insured Workplaces.” The location where Kaplowitz was
injured does not appear on the list of insured workplaces. In their brief on appeal,
Lone Star and LST argue that Kaplowitz was employed by Lone Star, not another
entity, Lone Star, Ltd. Neither party asserted that LST, the named insured, was
Kaplowitz’s sole employer.
The undisputed evidence establishes that at the time Kaplowitz was injured
she was working on the premises located at 5001 183A Toll Road, Cedar Park, TX
78613, an address not listed on the workers’ compensation policy. There is evidence
that Kaplowitz was hired by Lone Star and that LST was a workers’ compensation
insurance subscriber. Lone Star has not come forward with a workers’ compensation
policy that lists Lone Star as an insured, nor has LST come forward with conclusive
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proof that Kaplowitz was its employee at the time of the alleged injury. While Lone
Star and LST argued they were co-employers and were both workers’ compensation
subscribers, the record does not conclusively establish those facts.
The summary judgment evidence established a genuine issue of material fact
as to whether Kaplowitz’s employer was covered by workers’ compensation
insurance. Defendants, therefore, failed to conclusively establish their affirmative
defense of the exclusive remedy doctrine. See Warnke, 358 S.W.3d at 343 (exclusive
remedy doctrine is triggered by conclusive evidence that injured worker was an
employee at the time of the work-related injury, and the employer was covered by
workers’ compensation insurance). We sustain Kaplowitz’s second issue.
III. The trial court did not err in granting summary judgment on Kaplowitz’s
claim of intentional infliction of emotional distress.
In Kaplowitz’s third issue she asserts the trial court erred in dismissing her
IIED claim based on the allegations in her petition. Defendants argued in their
motion for summary judgment that Kaplowitz could not recover on her IIED claim
because the gravamen of her complaint could be addressed by another common-law
tort. Defendants further asserted that Alvillar’s alleged conduct was not extreme or
outrageous as a matter of law.
Earlier we discussed one exception to the TWCA’s coverage—the exclusivity
defense. This issue implicates another exception, the “intentional tort” exception.
Under that exception, the TWCA does not bar recovery for intentional torts
attributable to the employer. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 609 (Tex.
1999).
To prevail on a claim for IIED, a plaintiff must prove that: (1) the defendant
acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3)
the actions of the defendant caused the plaintiff emotional distress; and (4) the
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resulting emotional distress was severe. Kroger Tex. L.P. v. Suberu, 216 S.W.3d 788,
796 (Tex. 2006); Dworschak v. Transocean Offshore Deepwater Drilling, Inc., 352
S.W.3d 191, 197 (Tex. App.—Houston [14th Dist.] 2011, no pet.). A plaintiff’s
emotional distress must be the “intended or primary consequence of the defendant’s
conduct.” Bruce, 998 S.W.2d at 611.
To be extreme or outrageous, conduct must be “so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community.” Id. at 611–
12. Meritorious claims for IIED are “relatively rare” because “most human conduct,
even that which causes injury to others, cannot be fairly characterized as extreme
and outrageous.” Suberu, 216 S.W.3d at 796 (citing Creditwatch, Inc. v. Jackson,
157 S.W.3d 814, 815 n.1 (Tex. 2005) (citing cases in which conduct was found not
to be extreme and outrageous)). It is for the court to determine, in the first instance,
whether particular conduct has met this high standard. Bruce, 998 S.W.2d at 616.
Generally, insensitive or even rude behavior does not constitute extreme and
outrageous conduct. Id. at 611–12. Similarly, mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities do not rise to the level of extreme
and outrageous conduct. Id. Except in circumstances bordering on serious criminal
acts, even claims stemming from heinous acts rarely have merit as intentional
infliction claims. Jackson, 157 S.W.3d at 818. It is the severity and regularity of
abusive and threatening conduct that brings it “into the realm of extreme and
outrageous conduct.” Bruce, 998 S.W.2d at 617.
“Emotional distress includes all highly unpleasant mental reactions such as
embarrassment, fright, horror, grief, shame, humiliation, and worry.” Id. at 618; see
also Havens v. Tomball Cmty. Hosp., 793 S.W.2d 690, 692 (Tex. App.—Houston
[1st Dist.] 1990, writ denied). Severe emotional distress is distress that is so severe
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that no reasonable person could be expected to endure it. Bruce, 998 S.W.2d at 618.
IIED is a gap-filler tort that was “judicially created for the limited purpose of
allowing recovery in those rare instances in which a defendant intentionally inflicts
severe emotional distress in a manner so unusual that the victim has no other
recognized theory of redress.” Hoffman–La Roche Inc. v. Zeltwanger, 144 S.W.3d
438, 447 (Tex. 2004); see also Waffle House, Inc. v. Williams, 313 S.W.3d 796, 808
(Tex. 2010) (IIED provides remedy where other traditional remedies not available).
It was “never intended to supplant or duplicate existing statutory or common-law
remedies.” Jackson, 157 S.W.3d at 816.
Where the gravamen of a complaint is covered by another common-law or
statutory tort, IIED is not available. Zeltwanger, 144 S.W.3d at 447; see also Louis
v. Mobil Chem. Co., 254 S.W.3d 602, 608 (Tex. App.—Beaumont 2008, pet. denied)
(“Where the gravamen of the complaint is really another tort, intentional infliction
of emotional distress is unavailable even if the evidence would be sufficient to
support a claim for intentional infliction of emotional distress in the absence of
another remedy.”). “Even if other remedies do not explicitly preempt the tort, their
availability leaves no gap to fill.” Jackson, 157 S.W.3d at 816. A plaintiff cannot
maintain a claim for IIED “regardless of whether he . . . succeeds on, or even makes”
the precluding claim. Zeltwanger, 144 S.W.3d at 448; see also Garcia v. Shell Oil
Co., 355 S.W.3d 768, 775–76 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (“This
is true even if plaintiff does not assert the precluding claim in her petition . . . or
asserts the displacing claim but does not prevail . . .”).
Because Kaplowitz’s claim of IIED depends on the conduct alleged in her
claims of negligence, she has another remedy. Where, as here, other tort claims are
potentially available there is simply no gap to fill and a plaintiff cannot maintain her
claim for IIED regardless of whether she succeeds on, or even makes, the precluding
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claim. See Zeltwanger, 144 S.W.3d at 448.
Kaplowitz argues that the Rules of Civil Procedure permit alternative
pleading, therefore permitting her to plead IIED and negligence claims asserting
harm from the same conduct. See Tex. R. Civ. P. 48 (permitting claims to be pleaded
in the alternative). The problem with this argument is that Kaplowitz cites the very
same conduct as causing her distress as part of her negligence claims. Kaplowitz has
a common-law remedy for Alvillar’s alleged actions and her IIED claim fails
because it is a gap-filler tort and there is no gap to fill. The trial court did not err in
granting summary judgment on this claim. See Hoffmann–La Roche, Inc., 144
S.W.3d at 447. Because Kaplowitz’s IIED claim fails as a gap-filler tort we need not
address whether Kaplowitz showed Alvillar’s conduct was extreme and outrageous
as a matter of law. We overrule Kaplowitz’s third issue.
CONCLUSION
We affirm the trial court’s summary judgment on Kaplowitz’s IIED claim.
Having sustained Kaplowitz’s first and second issues, we reverse the trial court’s
summary judgment on grounds of the exclusivity defense and remand for
proceedings consistent with this opinion.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Wise, Bourliot, and Zimmerer.
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