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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Szabo v. Municipality of Anchorage (3/7/2014) sp-6873

Szabo v. Municipality of Anchorage (3/7/2014) sp-6873

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  




                                                        )        Supreme Court No. S-14750  

                   Appellants,                          )  

                                                        )        Superior Court No. 3AN-08-09925 CI  

         v.	                                            )  

                                                        )        O P I N I O N  


                                                        )        No. 6873 - March 7, 2014  

                   Appellee.	                           )


                   Appeal from the Superior Court of the State of Alaska, Third  


                   Judicial District, Anchorage, John Suddock, Judge.   

                   Appearances: Kenneth P. Jacobus, Anchorage, for Appellant.  

                   Dean Gates, Assistant Municipal Attorney, and Dennis A.  


                   Wheeler, Municipal Attorney, Anchorage, for Appellee.  

                   Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                   Bolger, Justices.  

                   STOWERS, Justice.  


                   In February 2010 the superior court issued a final order requiring David and  

Jane Szabo to pay $311,000 in unpaid fines assessed by the Municipality of Anchorage  


for failing to remove junk stored on their property.  The Szabos did not appeal the order.  


In February 2011 they filed an Alaska Civil Rule 60(b) motion for relief from judgment.  


The  superior  court  denied  the	  motion  and  also  denied  a  subsequent  motion  for  


reconsideration.  The Szabos now appeal, arguing that the fines assessed in this case are  


----------------------- Page 2-----------------------

unconstitutionally  excessive  and  the  municipal  code  provision  under  which  the  


Municipality  proceeded  is  unconstitutional.    Because  we  conclude  that  the  Szabos'  

claims do not assert a basis for relief under any section of Rule 60(b), we affirm.  


                    David and Jane Szabo own approximately 1.5 acres in the Bear Valley  


                                                                              business  out  of  their  home.    The  

neighborhood  of  Anchorage.    David  runs  a  junk                                                   

Szabos' property has been zoned R-6 - "low-density residential"2 - during the entire  


time they have owned the property.   Storage yards and outdoor warehousing are not  

permitted in an R-6 district.3  


                    In the summer of 2002 the Municipality of Anchorage (the Municipality)  


received a complaint that the Szabos were using their property as a "Junk/Salvage Yard."  


The Municipality investigated the complaint and determined that it was well-founded.  

On August 29, 2002, the Municipality sent the Szabos a letter informing them that the  


property was not compliant with the zoning code and requiring that they remove the junk  


within 10 days or face a $300 fine.  The Municipality subsequently worked with David  


to encourage him to clean up the junk, but the Szabos made little progress over the next  

few months.  The Municipality inspected the property in May 2003.  The inspection  

revealed 24 vehicles, numerous car parts, construction materials, plumbing supplies,  

electric parts, various metal materials, electronics, and other household items.  


                    In August 2003 the Municipality issued an enforcement order  requiring the  

Szabos to bring their property into compliance by October 15, 2003, and informing them  

          1         The term "junk" was used by both parties and the superior court to refer to                        

the material the Szabos kept on their property.  

          2         Anchorage Municipal Code (AMC) 21.40.080(A).  

          3         AMC 21.40.080(A)-(E).  

                                                              -2-                                                        6873

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that the Municipality could assess fines of up to $250 per day if they failed to do so.  The  

Szabos attempted to appeal the zoning decision, but they failed to submit the required  


$500 filing fee and their appeal was rejected.  It is undisputed that they did not attempt  

to correct their mistake.  

                    In May 2004, after the Municipality sent the Szabos another noncompliance  


letter,  David began working with the Municipality, developing a plan to clean up the  


property by October.  Two days after the October deadline, David admitted the cleanup  

was  not  complete  and  asked  for  more  time  to  show  substantial  progress.                                         The  


Municipality assessed a one-day $250 fine but reached a new agreement with David  


involving inspections aimed at avoiding further fines.  Over the next several months the  


Szabos  made  incremental  progress  removing  the  junk.    But  in  January  2005  the  


Municipality received reports that the Szabos had brought additional junk onto their  


                    In  August  2006,  after  observing  no  progress  in  the  cleanup  effort,  the  

Municipality          informed        the    Szabos        that    it   would       resume       assessing        fines     for  

noncompliance.  The Municipality assessed $2,500 in fines on October 31, November  


13, and November 29, each for ten-day increments of noncompliance.  On June 27, 2008,  


the Municipality assessed a $218,250 fine for noncompliance from November 17, 2006  

to June 27, 2008, a total of 873 days.  

          A.        The Superior Court's Orders  


                    In August 2008 the Municipality filed an action in the superior court for  


abatement, injunctive relief, and civil penalties totaling $226,000, as well as "$250 per  


day for each day from June 28, 2008  until  the violations are abated."  The Szabos,  


proceeding pro se, answered and denied all of the Municipality's allegations.  They also  

counterclaimed,            alleging      among        other      things:         (1)    the    "Municipal          Code       is  


unconstitutional";  (2)  they  "have  not  had  the  financial  resources  to  comply";  and  

                                                              -3-                                                        6873

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(3)  "[t]he  'fine'  of  $250  per  day  is  unreasonable  to  the  point  of  'cruel  and  unusual  


punishment.' "  The Szabos requested that the court issue an order dismissing all fines  

and fees, contingent on their compliance by September 30, 2009.  


                    The Municipality moved for summary judgment, arguing that the Szabos'  


ongoing code violations were irrefutable and that the Szabos had ample opportunity to  


appeal the original enforcement order and comply.  The Szabos did not dispute that the  

property was not in compliance with code requirements, but reiterated that the fines were  

"illegally excessive" and that the zoning ordinance and compliance procedures were  

constitutionally deficient.  


                    On June 3, 2009, the superior court granted the Municipality's motion for  


summary judgment and ordered the Szabos to clean up the property within 20 days.  The  


court withheld judgment on the issue of fines, signaling its intent to address the issue  

after abatement was completed.  The court found that there were no genuine issues of  

material fact that the Szabos "have a long history of storing junk, vehicles, equipment  

and other materials on their property" in violation of the zoning ordinance and "there  


 [had]   been   no   apparent   change   in   uses   and   condition   of   the   property   since  

September 8, 2003."  

                    The court held an evidentiary hearing on January 25, 2010, to address the  


Municipality's motion for imposition of penalties.  The Szabos objected to the hearing  


on the grounds that they were not prepared because they believed the hearing was going  

to be a status hearing rather than an evidentiary hearing.  At the hearing the parties  

disagreed about how much of the junk had been removed; the Szabos contended it was  

around 50%, and the Municipality contended that it was around 10%.  


                    In February 2010 the superior court issued its supplemental order and final  


judgment requiring the Szabos to pay the Municipality $226,000 in fines for the period  


of noncompliance ending June 27, 2008, and $85,000 for the period of noncompliance  

                                                             -4-                                                       6873

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from  June  28,  2008,  through  June  3,  2009.    The  Szabos  did  not  appeal  the  final  



          B.        Motion For Relief  


                    In  early  2011  the  Szabos  hired  an  attorney  to  represent  them,  and  on  

February         23,     2011,      they      filed     a    motion       for     relief     from      judgment         under  


Civil Rule 60(b)(1), (4), (5), and (6).  The Szabos argued that the superior court should  


grant relief:  (1) under Rule 60(b)(1) because the January 2010 hearing was an unfair  

surprise; (2) under Rule 60(b)(4) because the January 2010 hearing and the daily $250  

fine  violated  procedural  due  process,  and  thus  the  judgment  was  void;  (3)  under  

Rule  60(b)(5)  because  the  judgment  was  inequitable;  and  (4)  under  Rule  60(b)(6)  


because the judgment was tainted by "massive" substantive due process violations.  The  


superior court ordered another evidentiary hearing in May 2011 in light of the Szabos'  


apparent mistaken  belief that the January 2010 hearing would not be an evidentiary  


                    In  April  2012  the  superior  court  issued  an  order  denying  the  Szabos'  

Rule 60(b) motion for relief.  The superior court rejected the Szabos' constitutional  


challenge  to  AMC  21.25.050(E),   concluding  that  their  case  did  not  involve  that  

regulation, which only  governs an action by a private citizen to judicially enforce a  


zoning ordinance.  The court also rejected the Szabos' argument that the fines imposed  


were unconstitutionally excessive, finding that "failure to pursue this issue on direct  


appeal is fatal."  The Szabos filed a motion for reconsideration, which the superior court  

also denied.  



                    AMC 21.25.050(E) provides that "any person may commence an action in  


superior court to enforce a compliance order" and sets out the judicial process for such  


                                                               -5-                                                           6873  

----------------------- Page 6-----------------------


                    The Szabos appeal both the denial of their Rule 60(b) motion and the denial  

of their motion for reconsideration.  


                    We review denial of Rule 60(b) motions, except for those brought under  

                     5                                  6 


Rule 60(b)(4),  for abuse of discretion.   But because the superior court has no discretion  



to extend the deadline for filing a motion under Rule 60(b)(1), (2), and (3),  whether the 

superior court properly denied a motion under those subsections for untimely filing raises  


only a question of fact - whether the court correctly found that the time for filing had  


                                                                   "We review the superior court's decision  

expired - which we review for clear error. 


on  a  Rule  60(b)(4)  motion  de  novo  because  the  validity  of  a  judgment  is  strictly  a  

                          9  "We review the denial of a motion for reconsideration for abuse of  


question of law."  



                    The Szabos argue that the January 2010 hearing was improperly noticed,  


          5         See Blaufuss v. Ball, 305 P.3d 281, 285 (Alaska 2013).  

          6         Dickerson v. Goodman , 161 P.3d 1205, 1207 (Alaska 2007).  

          7         Vezey v. Green, 171 P.3d 1125, 1129 (Alaska 2007) (citing                            Farrell v. Dome  

Labs. , 650 P.2d 380, 384 (Alaska 1982); Alaska R. Civ. P. 6(b)).  

          8         E.g. Peterson v. Ek , 93 P.3d 458, 463 (Alaska 2004).  



                    Blaufuss , 305 P.3d at 285 (quoting Lesnoi, Inc. v. Merdes & Merdes, P.C. ,  

307 P.3d 879 (Alaska 2013)) (internal quotation marks omitted).  



                    Alaskan Adventure Tours, Inc. v. City and Bor. of Yakutat , 307 P.3d 955,  

959 (Alaska 2013).  

                                                              -6-                                                        6873

----------------------- Page 7-----------------------

ausing surprise or voiding the judgment;11 that the fines were inequitable and beyond  



their  ability  to  pay;  and  that  the  fines  were  unconstitutionally  excessive. 

Municipality responds that the procedures followed by the Municipality and the superior  


court did not violate the Szabos' constitutional due process rights, and the fines did not  

violate the excessive fine provisions of the United States or Alaska Constitutions.  


                    Correctly understood, the Szabos' current appeal is only from the denial of  


their   Rule   60(b)   motion   for   relief   from   judgment   and   subsequent   motion   for  


reconsideration.  Thus, our review is limited to whether the Szabos are entitled to relief  


for one of the specific reasons enumerated in Rule 60(b).  Because the Szabos fail to cite  


any provision of Rule 60(b) on appeal, we will analyze their claims within the framework  



of the provisions they argued in the superior court - Rule 60(b)(1), (4), (5), and (6). 

          11        The superior court considered this argument, which the Szabos made in  

untimely motions to dismiss filed after their Rule 60(b) motion, in its order denying the  


Szabos' motion for relief from judgment.  We will consider the argument to the extent  


it can be viewed as supporting the Rule 60(b) motion.  



                    The Szabos also argue that the superior court erred by concluding that it  

was required to enforce the daily $250 fines because AMC 21.25.050(E) violates due  

process.  But AMC 21.25.050(E) is irrelevant to the Szabos' case. The administrative  

proceedings   in   this   case   were   governed   by   AMC   21.25.050(A)   and   (C),   not  

AMC  21.25.050(E).    AMC  21.25.050(E)  relates  only  to  private  enforcement  of  

Municipal  ordinances,  regulations,  or  orders.    The  Szabos'  case  involved  a  public  


enforcement  action  initiated  by  the  Municipality  against  the  Szabos.                                   The  initial  


enforcement order was issued on Municipality letterhead, and the enforcement officer  

identified  herself  as  a  "Land  Use  Enforcement  Officer."    The  Municipality  never  

mentioned  AMC  21.25.050(E).    Because  the  Municipality  properly  brought  its  

compliance  action  under  AMC  21.25.050(A)  and  (C),  we  do  not  consider  whether  


AMC 21.25.050(E) is unconstitutional.  

          13        These  subsections  allow  relief  for  "mistake,  inadvertence,  surprise  or

excusable neglect"; a void judgment; inequity of continued enforcement of the judgment;


                                                             -7-                                                        6873

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          A.	        The  Superior  Court  Did  Not  Clearly  Err  By  Finding  That  Relief  

                     Under Rule 60(b)(1) Was Time Barred.  

                     In the superior court, the Szabos argued that they were entitled to relief  

under  Rule  60(b)(1)  -  "mistake,  inadvertence,  surprise  or  excusable  neglect"  -  

because  the  January  2010  hearing  was  an  unfair  surprise,  and  because  they  did  not  

receive  "adequate  and  meaningful  notice  of  the  subject  of  the  proceedings."    The  


superior court concluded that their motion for relief under Rule 60(b)(1) was untimely.  


The Szabos do not clearly raise their unfair surprise argument again on appeal, but, to  

the extent that they do, the superior court did not clearly err by concluding that the  

motion for relief was untimely, and we affirm.  


                     Motions for relief under Rule 60(b)(1) must be brought no later than one  


year after notice of a judgment or order.                       "[T]he date of notice is the date shown on the  



clerk's   certificate   of   distribution."                    Courts   have   no   discretion   to   extend   the  



Rule 60(b)(1) deadline.                Here, the distribution dates for the superior court's final orders  


were June 4, 2009, and February 19, 2010.  The Szabos did not file their motion for relief  


or a catch-all category for "any other reason justifying relief from the operation of the  

judgment." Alaska R. Civ. P. 60(b)(1), (4), (5) & (6).  

           14	       Alaska R. Civ. P. 60(b).  

           15	       Alaska R. Civ. P. 58.1(c)(1)(ii).  

           16        Vezey v. Green, 171 P.3d 1125, 1129 (Alaska 2007) (citing                              Farrell v. Dome   

Labs. ,  650  P.2d  380,  384  (Alaska  1982);  Alaska  R.  Civ.  P.  6(b)).    Civil  Rule  6(b)  

provides that a court "may not extend the time for taking any action under Rules 50(b),  


52(b), 59(b), (e), and (f), and 60(b), except to the extent and under the conditions stated  


in them."  Rule 60(b) provides that motions may be brought under subsections (4), (5),  

and (6) "within a reasonable time," but that motions under subsections (1), (2), and (3)  


must be brought "not more than one year after the date of notice of the judgment or  



                                                                -8-	                                                        6873

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until February 23, 2011.  Because the Szabos did not file their motion for relief under  

Rule 60(b)(1) until more than one year after they received notice of both orders, the  

superior court properly found their motion untimely.  

          B.       The Szabos Are Not Entitled To Relief Under Rule 60(b)(4).  

                   In their motion to the superior court, the Szabos argued that they were  

denied  procedural  due  process,  rendering  the  court's  final  judgment  void.                                  The  

Municipality argued that there was no procedural due process violation because the  

Szabos had a "full and fair opportunity to litigate the merits prior to the court's Final  

Judgment and Order."  The superior court concluded that the Szabos' procedural due  

process rights were not violated because they had ample notice of the January 2010  


evidentiary hearing and they had an opportunity to appeal.  The Szabos appear to again  

argue that the judgment is void based on a due process violation.17  


                   Although Rule 60(b)(4) allows a party to seek relief from a void judgment,  



including when the issuing court violated due process,                         the rule "is not a substitute for  

                                                     19   "In the interests of finality, the concept of void  


a party failing to file a timely appeal."  

judgments is narrowly construed." 20 

                    It is indisputable that the Szabos had notice of the hearing, which both  

parties requested the court to reschedule numerous times.  The Szabos' belief that the  

          17       The Szabos do not clearly tie their arguments on appeal to the specific  

reasons justifying relief under Rule 60(b), but their due process argument most clearly  


supports a Rule 60(b)(4) argument that the superior court's order is void.  

          18       Leisnoi, Inc. v. Merdes & Merdes, P.C. , 307 P.3d 879, 891 (Alaska 2013)  


(citing Holt v. Powell , 420 P.2d 468, 471 (Alaska 1966)).  

          19       Blaufuss v. Ball , 305 P.3d 281, 285 (Alaska 2013) (quoting Cook v. Cook,  


249 P.3d 1070, 1083 (Alaska 2011)).  

          20       Leisnoi, Inc. , 307 P.3d at 891.  


                                                           -9-                                                    6873

----------------------- Page 10-----------------------

hearing  would  only  be  a  status  hearing  is  difficult  to  understand  given  the  many  


communications between the parties and the court.  And even if their confusion was the  


result of a deficiency of notice, it was remedied by the fact that the superior court held  


another evidentiary hearing in May 2011 to allow the Szabos to present any evidence that  


they were unprepared to present in January 2010. Because the Szabos received adequate  


notice and the superior court held an additional evidentiary hearing, the January 2010  

evidentiary  hearing  did  not  violate  due  process.    Accordingly,  the  superior  court  

correctly concluded that the Szabos were not entitled to relief from judgment under  

Rule 60(b)(4).  


          C.	       The Superior Court Did Not Abuse Its Discretion By Concluding That  

                    The Szabos Were Not Entitled To Relief Under Rule 60(b)(5).  


                    In the superior court the Szabos argued that the judgment was inequitable  


because they did not have the ability to pay.  The superior court found that the Szabos  


"made no showing of inequity . . . within the meaning of [Rule] 60(b)(5)" and cited no  

change  in  conditions  that  would  make  continued  enforcement  of  the  judgment  


inequitable.  The Szabos do not directly argue that the judgment is inequitable under  

Rule 60(b)(5), but the argument may be inferred from their contention that the fine is  

unconstitutionally excessive and beyond their ability to pay.  


                    Rule 60(b)(5) allows relief from a judgment where "it is no longer equitable  


that the judgment should have prospective application."  A motion "seeking relief from  


the prospective application of a judgment requires the court to balance the equities and  

decide  whether  relief  is  warranted."21  A  party  may  only  prevail  on  a  Rule  60(b)(5)  

          21        Cox v. Floreske, 288 P.3d 1289, 1293 (Alaska 2012); see, e.g., Dixon v.  


Pouncy , 979 P.2d 520, 526 (Alaska 1999) (prospective application of child support order  


was inequitable after DNA test ruled out paternity).  

                                                              -10-	                                                          6873  

----------------------- Page 11-----------------------

motion where  a change in conditions renders prospective application of a judgment  


                    The  Szabos  never  alleged  any  change  in  circumstances  that  made  


prospective  application  of  the  judgment  inequitable.    Indeed  no  such  change  in  


circumstances is apparent; there was no indication the Szabos had made any substantial  


progress towards cleaning up the property.  Because the Szabos made no showing of a  


change in circumstances, we conclude that the superior court did not abuse its discretion  

by denying relief under Rule 60(b)(5).  


          D.	       The Superior Court Did Not Abuse Its Discretion By Concluding That  

                    The Szabos Were Not Entitled To Relief Under Rule 60(b)(6).  

                    The Szabos argue that the fines imposed against them are unconstitutionally  



excessive  under  the  Eighth  Amendment  to  the  United  States  Constitution 

article I, section 12 of the Alaska Constitution24 because the fines are disproportionate  


to their offense and effectively result in a forfeiture of their property.  The Municipality  


argues that there is no requirement that civil penalties be strictly proportionate to the  

offense, citing federal precedent upholding similarly large fines.  The superior court  

concluded that the Szabos should have made their excessive fines argument on direct  


appeal and that their failure to do so was fatal.   Because this claim does not clearly  


support relief under any other clause of Rule 60(b), we analyze it under Rule 60(b)(6).  

          22        Cox, 288 P.3d at 1293 (citing              Dewey v. Dewey           , 886 P.2d 623, 627 (Alaska  


          23        Amendment VIII of the United States Constitution  provides:  "Excessive  


bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel  and  unusual  

punishments inflicted."  



                    Article I, section 12 of the Alaska Constitution provides in part:  "Excessive  


bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel  and  unusual  

punishments inflicted."  

                                                             -11-	                                                       6873

----------------------- Page 12-----------------------

                    Rule 60(b)(6) allows a court to grant relief from an unjust judgment where  



"no other Rule 60(b) clause applies, and 'extraordinary circumstances exist.' " 

under Rule 60(b)(6) is generally only granted where a "judgment was obtained by the  

improper conduct of the party in whose favor it was rendered or the judgment resulted  


from the excusable default of the party against whom it was directed under circumstances  



going beyond the earlier clauses of the rule."                      "[I]n deciding Rule 60(b)(6) motions we  

give consideration to the following factors:  the prejudice, if any, to the non-moving  

party  if  relief  from  judgment  is  granted,  whether  any  intervening  equities  make  the  


granting of relief inappropriate, and any other circumstances relevant to consideration  



of the equities of the case."               Rule 60(b)(6) is not intended to be a substitute for proper  


litigation of a case.             

                    The  Szabos'  excessive  fines  argument  does  not  support  relief  under  

Rule 60(b)(6).  The rule is not intended to allow a party to raise legal claims that it failed  


to  bring  on  direct  appeal.                  The  Szabos  had  the  opportunity  to  challenge  the  


constitutionality  of  the  fines  on  direct  appeal  after  the  superior  court  issued  its  

supplemental order and final judgment in February 2010.  Having failed to timely appeal  

          25        Cook  v. Cook, 249 P.3d 1070, 1084 (Alaska 2011).  



                    Lacher v. Lacher , 993 P.2d 413, 419 (Alaska 1999) (quoting  O'Link v.  

O'Link, 632 P.2d 225, 229-30 (Alaska 1981)).  

          27        Juelfs  v.  Gough ,  41  P.3d  593,  597  (Alaska  2002)  (quoting Norman  v.  

Nichiro Gyogyo Kaisha, Ltd. , 761 P.2d 713, 717 (Alaska 1988)) (internal quotation  

marks omitted).  

          28        Ghete v. Anchorage, 948 P.2d 973, 976 (Alaska 1997).  

          29        See Morris v. Morris, 908 P.2d 425, 429 (Alaska 1995) (affirming trial  


court's denial of Rule 60(b) motion where appellant failed to argue that denial of Rule  


60(b) motion was in error and instead attempted to argue underlying substantive issues).  

                                                             -12-                                                       6873

----------------------- Page 13-----------------------

the  judgment,  the  Szabos  cannot  now  claim  that  the  fines  they  are  faced  with  are  

unconstitutionally excessive.  Moreover, the Municipality did not engage in improper  


conduct to obtain the original judgment.  The Municipality followed proper procedures  

in bringing an enforcement action against the Szabos, worked with the Szabos for several  


years  to  develop  a  plan  to  clean  up  their  property,  and  gave  the  Szabos  numerous  


opportunities to avoid or limit fines.  The superior court did not abuse its discretion by  

denying relief under Rule 60(b)(6).  


         E.	       The Superior Court Did Not Abuse Its Discretion By Denying The  

                   Szabos' Motion For Reconsideration.  

                   In their motion for reconsideration the Szabos reiterated the arguments  


made in their motion for relief from judgment and alleged that the superior court failed  

to  adequately  address  their  due  process  and  excessive  fine  arguments.  Because  the  


superior court adequately considered those arguments and properly denied the motion  


for relief, we conclude that the superior court did not abuse its discretion by denying the  

Szabos' motion for reconsideration.  


                   For the reasons discussed, we AFFIRM the superior court in all respects.  

                                                          -13-	                                                   6873

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