United States District Court, N.D. Illinois, Eastern Division
December 13, 2005.
JOSIE CRUZ, Plaintiff,
GLOBE REALTY MANAGEMENT CO., Defendant.
The opinion of the court was delivered by: JAMES HOLDERMAN, District Judge
MEMORANDUM OPINION AND ORDER
On December 23, 2003, plaintiff Josie Cruz ("Cruz"), filed a
two count complaint against defendant Globe Realty Management Co.
("Globe"), pursuant to Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794. (Dkt. No. 1). Globe answered the complaint
and discovery proceeded in the case. (Dkt. No. 7). After a period
of discovery, and with the assistance of Magistrate Judge Ashman,
the parties in early March 2005 settled the case. Included in the
settlement agreement was Globe's agreement to install, among
other things, an outdoor ramp and an indoor wheelchair lift to
accommodate the residents, including Cruz, at 6920 South Crandon
Avenue. The agreed upon items were not installed in the building
in the time frame by the parties. Plaintiff Cruz, in turn, sought
an order to show cause which has now been resolved. (Dkt. Nos.
31, 34). On November 4, 2005, Cruz filed the pending motion
seeking compensation, attorneys fees' and costs resulting from
Globe's alleged breach of the parties' settlement agreement.
(Dkt. No. 35). For the reasons set forth below, Cruz's motion for
compensation, attorneys' fees and costs is granted. BACKGROUND
Cruz lives at 6920 South Crandon Avenue in Chicago, Illinois.
(Dkt. No. 36-2, at pg. 1). She has a physical disability and
relies on a motorized scooter for mobility. (Id.) 6920 South
Crandon is a multifamily apartment building owned by Globe that
receives a federal housing subsidy. (Id.) As alleged in Cruz's
initial complaint, 6920 South Crandon "was not accessible to
people with disabilities in that the front door could be entered
only by stairs. This in turn required Cruz to use an inconvenient
and, for her, dangerous delivery ramp leading to the basement."
(Dkt. No. 36-1 at pg. 1).
As mentioned above, after several months of discovery, the
parties entered into a settlement agreement dated March 3, 2005
and this court entered an agreed order of dismissal on March 15,
2005. (Dkt. Nos. 22, 23). This court's March 15, 2005 order: (1)
instructed the parties to comply with the terms of the March 3,
2005 settlement agreement, (2) explicitly stated that this court
retained jurisdiction for the purpose of enforcing the terms of
the settlement agreement through March 30, 2006, and (3)
otherwise dismissed the case with prejudice with each party to
bear its own attorneys' fees and costs. (Dkt. No. 23).
The settlement agreement required Globe to build an outdoor
concrete ramp and indoor wheelchair lift at the main, front
entrance of 6920 South Crandon Street by May 30, 2005. (Dkt. No.
36-2 at pg. 2). If Globe was unable to meet the May 30, 2005
deadline, Globe was required to inform Cruz's counsel in writing
of: (1) the efforts made to comply with the deadline, (2) the
reasons for the delay, (3) the date that Globe reasonably
expected to complete the work, and (4) the reasons why Globe
believed the work would be completed by that future time. (Id.
at pg. 2-3). The settlement agreement required the parties to endeavor in
good faith to informally resolve any differences over the
implementation of the settlement agreement. (Id. at pg. 3).
However, Cruz had a right to seek from this court any appropriate
remedies for any breaches of the settlement agreement by Globe if
the parties could not resolve their differences. (Id. at pg.
4). She was also authorized to seek attorneys' fees incurred for
any litigation that she had to undertake in response to a breach
by Globe. (Id.)
Although Globe promised in the settlement agreement to
completed the project by May 30, 2005, the project was not
completed until October 27, 2005. Cruz could not access her home
via the front entrance of 6920 South Crandon until the entire
project was completed because she needed both the wheelchair ramp
and lift for access. Cruz did not benefit from any partial
performance by Globe that occurred before October 27, 2005. Cruz
argues that Globe breached the settlement agreement through its
continued delays and the need for her to return to this court and
seek judicial assistance in enforcing the settlement agreement.
This court participated through the holding of status hearings
on August 2, 2005 and August 23, 2005, (Dkt. Nos. 27, 28),
granting Globe's motion for modification of the agreed order to
extend time for the completion of the project on October 6, 2005,
(Dkt. No. 33), and providing a forum for Cruz to file her October
4, 2005 motion for a rule to show cause why Globe should not be
held in contempt for violation of the settlement agreement. (Dkt.
On October 27, 2005, this court mooted Cruz's October 4, 2005
rule to show cause motion when Globe represented during the
status hearing that the wheelchair ramp and lift were both in
place and operational. (Dkt. No. 34). Despite mooting Cruz's
motion, this court did, however, allow Cruz leave to file the
present motion for compensation, attorneys' fees and costs at the October 27, 2005 status hearing. (Id.)
Cruz argues in her present motion that "[i]n resolving [her
initial lawsuit], and in exchange for immediate safe access to
her building, [she] gave up remedies she could have otherwise
sought at trial, including compensatory damages. . . . Despite
this agreement, however, [Cruz] did not realize the benefits of
this exchange for over six months and only after [this court's]
intervention." (Dkt. No. 36-1 at pg. 2). Cruz seeks $14,139.54 in
attorneys' fees and costs and $8,000.00 in compensatory damages
for Globe's alleged violation of the March 3, 2005 settlement
agreement. (Dkt. No. 36-1 at pg. 1). Globe counters that Cruz's
motion should be denied because Cruz is not a "prevailing party,"
most of Cruz's requested fees and costs are not reasonable, and
Cruz is not entitled to compensatory damages because the
agreement was never breached.
A. The Court's Subject Matter Jurisdiction
"Settlement agreements are contracts," Seymour v. Hug, No. 04
C 2041, 2005 WL 3019418, at *13 (N.D. Ill. Nov. 8, 2005) (citing
Laserage Tech. Corp. v. Laserage Lab. Inc., 972 F.2d 799, 802
(7th Cir. 1992); McCall-Bey v. Franzen, 777 F.2d 1178, 1186
(7th Cir. 1985)), and "[d]isputes about settlement contracts must
be resolved in state court, unless they independently satisfy the
requirements of federal jurisdiction." Goulding v. Global Med.
Prod. Holdings, Inc., 394 F.3d 466, 467-68 (7th Cir. 2005)
(citing Peacock v. Thomas, 516 U.S. 349 (1996); Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375 (1994)). "A
settlement agreement, unless it is embodied in a consent decree
or some other judicial order or unless jurisdiction to enforce
the agreement is retained (meaning that the suit has not been
dismissed with prejudice), is enforced just like any other contract." Lynch, Inc. v. SamataMason Inc.,
279 F.3d 487, 489 (7th Cir. 2002) (emphasis in original) (citing
Kokkonen, 511 U.S. at 380-81; Jessup v. Luther, 277 F.3d 926,
929 (7th Cir. 2002)).
The parties' March 3, 2005 settlement agreement required that
the order dismissing the action shall state that this court
retains jurisdiction. (Dkt. No. 36-2 at pg. 10). This court's
March 15, 2005 agreed order explicitly noted that the court was
retaining jurisdiction for the purposes of enforcing the terms of
the settlement agreement through March 30, 2006. (Dkt. No. 23 at
¶ 2). This court has subject matter jurisdiction to consider
Cruz's pending motion alleging that Globe breached the settlement
B. Globe's Breach of the Settlement Agreement
Although Globe failed to complete the project until October 27,
2005, Globe argues that it did not breach the settlement
agreement. Globe argues that the original May 30th deadline was
extended to June 30th by consent of the parties and again
extended to October 4th and October 27th by court order.
As contracts, "[i]ssues regarding the formation, construction,
and enforcement of settlement agreements are governed by state contract law."
Sims-Madison v. Inland Paperboard and Packaging, Inc.,
379 F.3d 445, 448 (7th Cir. 2004) (citing Pohl v. United Airlines, Inc.,
213 F.3d 336, 338 (7th Cir. 2000)). The settlement agreement
states that it shall be "interpreted, enforced and governed under
Illinois law." (Dkt. No. 36-2 at ¶ 14).
The settlement agreement required Globe to construct the ramp
and lift by May 30, 2005. (Id. at ¶ 1). Globe was required to
notify Cruz's attorneys in writing "if Globe is unable to meet
the [May 30, 2005] deadline due to issues beyond its control such
as weather, the unavailability of a contractor, city permitting,
or the unavailability of necessary parts or supplies." (Id. at
¶ 4). Globe's notification did not automatically extend the
deadline, but instead the parties were to attempt to agree on an
extension and the parties were allowed to seek this court's
assistance in resolving any issues related to any needed
extensions. The settlement agreement is open ended in its
discussion of extensions and does not contain a final date from
which no additional extension would be allowed.
"In Illinois, where a contract does not specify a time for
performance of a particular obligation, a `reasonable time' is
implied." Nelson v. Sotheby's Inc., 128 F. Supp. 2d 1172, 1176
(N.D. Ill. 2001) (citing Clay v. Harris, 592 N.E.2d 1154, 1158
(Ill.App.Ct. 1992)). "A reasonable time [is] such time as is
necessary to do conveniently what the contract requires."
Wilmette Parterns v. Hamel, 594 N.E.2d 1177, 1184
(Ill.App.Ct. 1992) (citing Yale Dev. Co. v. Aurora Pizza Hut, Inc.,
420 N.E.2d 823 (Ill.App.Ct. 1981)). "What constitutes a reasonable
time is determined by all of the conditions and circumstances
surrounding the contract and the performance thereof." Grand
Nat'l Bank v. Vill. of Round Lake Beach, No. 96 C 2790, 1997 WL
12796, at *7 (N.D. Ill. Jan. 10, 1997) (citing U.A.W. v. Randall
Div. of Textron, Inc., 5 F.3d 224 (7th Cir. 1993); Wilmette Parterns, 594 N.E.2d at 1184).
The agreement set an initial deadline of May 30, 2005, one and
one-half months after the court's dismissal order, for the
completion of the project. Although the parties agreed to an
initial extension, it is unreasonable to conclude that Cruz
willingly consented to an extension of almost five more months
through October 27, 2005. Cruz wanted the ramp and lift completed
as soon as possible because her alternative route through the
basement was both dangerous and inconvenient. Cruz had hoped that
the project would take the agreed upon one and one-half months to
complete but it ultimately took seven months. Globe's failure to
complete the project was partially due to Globe's negligence in
planning for the project and following through with its
contractors. Globe delay is unreasonable, it has breached the
agreement and therefore this court turns to a consideration of
what is the appropriate compensation for Cruz.
C. Appropriate Compensation for Globe's Breach
1. Compensatory Damages for Cruz
Cruz seeks $8,000.00 in compensatory damages to compensate her
for the alleged pain, suffering and inconvenience she experienced
through Globe's breach of the settlement agreement. Globe argues
that Cruz should receive nothing because her injuries are only
emotional distress and Illinois law does not ordinarily allow
emotional distress damages for breach of contract injuries.
"The purpose of compensatory tort damages is to compensate; it
is not the purpose of such damages to punish defendants or bestow
a windfall upon plaintiffs." Arthur v. Catour, 833 N.E.2d 847,
856 (Ill. 2005). "When seeking damages, the plaintiff must
establish damages were sustained and there was a reasonable
basis for calculation of the damages. Damages cannot be based on conjecture or speculation." Decatur Imaging Center v.
Ames, 608 N.E.2d 1198, 1202 (Ill.App.Ct. 1992) (emphasis in
original) (citing Keno & Sons Construction Co. v. La Salle Nat'l
Bank, 574 N.E.2d 151, 153 (Ill.App.Ct. 1991); Wehmeier v. UNR
Indus., Inc., 572 N.E.2d 320, 339 (Ill.App.Ct. 1991)).
Globe's breach resulted in Cruz taking a more dangerous route
into her building through the basement. This alternative route
was not always available when the basement entrance was locked or
the basement elevator was out of order and when this occurred
Cruz was forced to call the Chicago Fire Department or seek other
residents to assist her up the main steps. (Dkt. No. 36 at pg.
10). Cruz's counsels have asserted in the memorandum filed in
support of Cruz's recovery of compensatory damages that "these
circumstances are not minor, infrequent inconveniences; they
caused Cruz great stress in her daily living and prevent[ed] her
from enjoying her residence to the same extent afforded those in
her building without disabilities." (Id. at pg. 10-11).
Globe is correct that Cruz cannot recover for emotional damages
caused by Globe's breach of contract unless Globe has committed
an independent tort with malice, wantonness or oppression. See
Park v. Wells Fargo Home Mortgage, Inc., 398 F.3d 937, 940-42
(7th Cir. 2005) (citing Illinois law). Cruz, however, should
receive compensation for her non-emotional damages in terms of
the inconvenience resulting from the need to use the basement
route and her need to wait for the Chicago Fire Department or
others to take her up the front stairs when the basement route
Cruz does not explain how she arrives at the $8,000 figure or
how that figure is reasonable. The court concludes that a
compensation award to Cruz of $300 is reasonable. The court
arrives at the $300 figure based on the representations made by
counsel in open court during the October 27th status hearing that Cruz's rent is
approximately $300 since she lives in a government subsidized
building. The first deadline for completion of the project was
May 30, 2005, one and one-half months after the settlement
agreement was enacted by the court. Even considering the
possibility of reasonable extensions, Cruz was being denied the
benefit of her bargain under the settlement agreement by July 31,
2005. It took approximately three months until October 27, 2005
for her to receive the benefit of her bargain under the
settlement agreement. The $300 amount is reimbursement to Cruz of
the portion of the rent for the three month period of August,
September and October 2005 when Cruz was denied the appropriate
and reasonable access that she had paid for in her rent and had
been promised to her by Globe in the settlement agreement. The
$300 should be paid to Cruz by noon on December 23, 2005.
2. Attorneys' Fees and Costs
Cruz seeks $14,139.54 in attorneys' fees and costs incurred by
her attorneys during their efforts to enforce the settlement
agreement. Globe counters that Cruz is not entitled to any
attorneys' fees and costs because she not a prevailing party and
it argues alternatively that Cruz's requested amount is
a. Prevailing Party Status
Paragraph Nine of the settlement agreement states that "in the
event of litigation claiming breach of this Agreement, attorneys'
fees incurred in connection with such litigation shall be
recoverable by the prevailing party to the same extent allowed
under 29 U.S.C. § 794a." (Dkt. No. 36 at ¶ 9). The parties also
agreed that "each party shall bear its own attorneys' fees,
except as stated in paragraph nine" of the agreement. (Id. at ¶
Title 29, United States Code, Section 794a(b), the section
incorporated by the parties' into their agreement, states that "the court, in its discretion,
may allow the prevailing party, . . . a reasonable attorney's
fee." 29 U.S.C. § 794a(b). Section 794a(b) is patterned on the
language contained in 42 U.S.C. § 1988 and therefore this court
shall turn to the Seventh Circuit's civil rights cases defining
the term "prevailing party." Jones v. Illinois Dep't of Rehab.
Serv., 689 F.2d 724, 730 n. 8 (7th Cir. 1982).
"To be a considered a prevailing party, one must have
`prevailed on the merits of at least some of his claims. . . .
Thus, the [Supreme Court] has held that a litigant is a
prevailing party when he has obtained a judgment on the merits, a
settlement agreement enforced through a consent decree or some
other judicially sanctioned change in the legal relationship of
the parties." Dupuy v. Samuels, 423 F.3d 714, 719 (7th Cir.
2005) (citing Buckhannon Bd. of Care Home, Inc. v. West Virginia
Dep't of Health and Human Res., 532 U.S. 598, 605 (2001);
Hanrahan v. Hampton, 446 U.S. 754, 758 (1980); Palmetto
Properties, Inc. v. County of DuPage, 375 F.3d 542, 548 (7th
Cruz argues that entry of the settlement agreement resolving
the original lawsuit is sufficient to vest her with prevailing
party status for her pending attorneys' fee claim. The Seventh
Circuit in T.D. v. LaGrange School Dist. No. 102, held that
"some settlement agreements, even though not explicitly labeled
as a `consent decree' may confer `prevailing party' status, if
they are sufficiently analogous to a consent decree."
349 F.3d 469, 478 (7th Cir. 2003) (citing Smyth ex re. Smyth v. Rivero,
282 F.3d 268, 281 (4th Cir. 2002)). "A settlement short of a
consent decree may qualify if, for instance, the terms of the
settlement were incorporated into the dismissal order and the
order was signed by the court rather than the parties, or the
order provided that the court would retain jurisdiction to
enforce the terms of the settlement. Petersen v. Gibson, 372 F.3d 862, 866-87 (7th Cir.
2004) (citing T.D., 349 F.3d at 478-78; Smalbein v. City of
Dayton Beach, 353 F.3d 901, 905 (11th Cir. 2003); Roberson v.
Giuliani, 346 F.3d 75, 82-83 (2d Cir. 2003)); see also, T.D.,
349 F.3d at 478-79 (quoting John T. ex rel. Paul T. v. Delaware
county Intermediate Unit, 318 F.3d 545, 558 (3d Cir. 2003) ("A
stipulated settlement could confer prevailing party status where
it (1) contained mandatory language, (2) was entitled `Order,'
(3) bore the signature of the District Court judge, not the
parties' counsel, and (4) provided for judicial enforcement.").
The settlement agreement entered on March 15, 2005 met these
four requirements and provides Cruz prevailing party status.
However, the settlement agreement waives attorneys' fees related
to the underlying claim (Dkt. No. 36 at ¶ 12), and only reserves
the right to receive attorneys fees for a later enforcement claim
if the settlement agreement was breached. The question,
therefore, is how far does Cruz's prevailing party status extend,
specifically, does her prevailing party status earned in the
settlement of the underlying claim also extend to her present
claim for attorneys' fees?
This court can mostly avoid this issue in that it is awarding
Cruz $300 for her compensation claim for the inconvenience she
suffered resulting from Globe's unreasonable breach of the
agreement and because she prevailed in obtaining the relief she
sought of having the ramp and lift installed. She is a prevailing
party and she is entitled to some level of attorneys' fees in the
This court does, however, need to decide the issue of Cruz's
status as a prevailing party in respect to the original
underlying claim because this will impact the court's
determination of what are reasonable attorneys' fees. Cruz seeks
attorneys' fees beginning in mid May 2005. As this court previously determined above, it is not reasonable to
say that Globe breached the settlement agreement until the end of
July 2005. If Cruz only obtains her prevailing party status from
this present decision holding that Globe has breached the
settlement agreement then Cruz is only entitled to attorneys fees
starting in the beginning of August 2005.
Cruz cites to King v. Illinois State Bd. of Elections,
410 F.3d 404 (7th Cir. 2005), and Alliance to End Repression v. City
of Chicago, 356 F.3d 767 (7th Cir. 2004), to support her view
that she is entitled to attorneys' fees going back to May 2005.
The Seventh Circuit in King held that "our cases make clear
that, absent some authorization in the initial judgment itself to
monitor compliance, parties who seek to protect a previous
victory still must prevail in the action or proceeding brought to
protect the victory in order to be entitled to attorneys' fees."
410 F.3d at 420.
The Seventh Circuit in Alliance noted that "attorneys' fees
incurred in efforts to monitor compliance with the consent decree
are said or assumed to be compensable even if no postjudgment
order results from the efforts. . . . [This is] best explained on
a deterrence rationale: careful monitoring reduces the likelihood
that the create will be violated." 356 F.3d at 770-71.
However, the situations discussed in King and Alliance are
somewhat different from the situation in this case. Cruz waived
her rights to attorneys' fees for the underlying claim. Thus,
there was no right to attorneys' fees to monitor the situation
because the parties were progressing under a settlement
agreement, not a consent decree. A settlement agreement may be
analogized to a consent decree in turns of determining whether
Cruz obtains prevailing party status, but that does not mean that
this entitled Cruz to attorneys' fees for monitoring compliance
with the settlement. The parties in this agreement explicitly
waived any right to attorneys' fees with the exception of attorneys' fees related to Globe's breach of the
Consequently, Cruz prevailed in this enforcement action by
receiving $300 in compensation for the breach of settlement
agreement. The settlement agreement did not specifically
authorize attorneys' fees to compensate for any type of
monitoring by her attorneys that would be equivalent to
monitoring the compliance with a consent decree or judicial
authorization of monitoring of compliance with the original
settlement. The agreement only authorized attorneys fees "in the
event of litigation claiming breach of [the] agreement." (Dkt.
No. 36 at ¶ 9). She has a right to receive attorneys fees as a
prevailing party incurred as of August 1, 2005.
b. Reasonableness of Requested Attorneys Fees and Costs
This court must also review the attorneys' fees requested by
Cruz to determine that they are reasonable. "Attorneys' fees are
assigned a `lodestar' amount, [a figure which is] calculated by
multiplying the number of hours the attorney reasonably expended
on the litigation times a reasonable hourly rate." Mathur v.
Board of Tr. of Southern Illinois Univ., 317 F.3d 738, 742 (7th
Cir. 2003) (citing Hensley v. Eckerhart, 461 U.S. 424, 433
(1983); Dunning v. Simmons Airlines, Inc., 62 F.3d 863, 872
(7th Cir. 1995)). "The party seeking the fee award bears the
burden of proving the reasonableness of the hours worked and the
hourly rates claimed." Spegon v. Catholic Bishop of Chicago,
175 F.3d 544, 550 (7th Cir. 1999). The initial lodestar figure
may be further adjusted by the court based on a number of
factors.*fn2 Garcia v. City of Chicago, No. 01 C 8945,
2003 WL 22175620, at *1 (N.D. Ill. Sept. 19, 2003) (citing
Hensley, 461 U.S. at 434)).
"The determination of an attorney's `reasonable hourly rate' is
to be based on the `market rate' for the services rendered. The
burden of providing the `market rate' is on the fee applicant,
however, once the attorney provides evidence establishing his
market rate, the burden shifts to the defendant to demonstrate
why a lower rate should be awarded." Spegon, 175 F.3d at 554-55
(internal citations omitted).
"`The reasonable hourly rate (or `market rate') for lodestar
purpose is `the rate that lawyers of similar ability and
experience in their community normally charge their paying
clients for the type of work in question.'" Garcia, No. 01 C
8945, 2003 WL 22175620, at *2 (quoting Harper v. City of Chicago
Heights, 223 F.3d 593, 604 (7th Cir. 2000)). "Evidence of
`market rate' includes rates other attorneys in the area charge
paying clients for similar work, fee awards from prior cases, the
attorney's credentials, and the attorney's actual billing rate."
Id. (citing People Who Care v. Rockford Bd. of Educ., Sch.
Dist. No. 205, 90 F.3d 1307, 1311-13 (7th Cir. 1996)). "In
addition, an attorney's affidavit alone cannot establish . . .
her market rate; however, such affidavit `in conjunction with
other evidence of the rates charged by comparable lawyers is
sufficient to satisfy the plaintiff's burden.'" Id. (quoting
Harper, 223 F.3d at 604).
Cruz "may recover only those hours that [her] attorneys would
bill in the private sector." Garcia v. City of Chicago, No. 01 C 8945, 2003 WL 22175620, at
* 3 (N.D. Ill. Sept. 19, 2003) (citing Hensley,
461 U.S. at 434)). This court must exclude "hours that are excessive,
redundant, otherwise unnecessary," Id., and a petition for fees
must provide sufficient description of the type of work
performed. Kotsilieris v. Chalmers, 966 F.2d 1181, 1187 (7th
Cir. 1992). "A court should not require any more [level of detail
or itemization in the plaintiff's billings] than the level of
detail paying clients find satisfactory." Garcia, No. 01 C
8945, 2003 WL 22175620, at *3 (N.D. Ill. Sept. 19, 2003) (citing
In the Matter of Synthroid Mktg. Litig., 264 F.3d 712, 722 (7th
The court has reviewed the Cruz's attorneys' documentation in
support of her requested attorneys' fee award. Cruz has included
copies of her attorneys' billings, affidavits in support of the
reasonableness of their bill rate and information on their
education and professional backgrounds. The requested amount,
after excluding services performed before August 1, 2005 to
properly reflect this court's decision on when Cruz became a
prevailing party, is appropriate. This court awards Cruz
$11,105.17 in attorneys' fees and $419.59 in costs.*fn3 CONCLUSION
For the reasons set forth above, Cruz's motion of November 4,
2005 seeking compensation, attorneys fees' and costs resulting
from Globe's breach of the parties' settlement agreement (Dkt.
No. 35), is granted. Cruz is awarded $300 in compensation for
Globe's unreasonable breach of the settlement agreement,
$11,105.17 in attorneys' fees and $419.59 in costs. The $300 is
to be paid to Cruz by noon on December 23, 2003. The attorneys'
fees and costs are to be paid by January 13, 2006.
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