Wednesday, February 11, 2026
State of Ohio v. Leander Bissell, Case No. 2024-1770
Eighth District Court of Appeals (Cuyahoga County)
In the matter of the review of Duke Energy Ohio Inc.’s Distribution Capital Investment Rider, Case No. 2025-0620
Public Utilities Commission of Ohio
RiverSouth Authority et al. v. Patricia Harris, tax commissioner of Ohio, et al., Case No. 2025-0671
Ohio Board of Tax Appeals
Sheetz Inc. et al. v. City of Centerville et al., Case No. 2025-0753
U.S. District Court for the Southern District of Ohio
Was Murder Sentence Justified for Driver Who Struck Firefighter on Highway?
State of Ohio v. Leander Bissell, Case No. 2024-1770
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Does state criminal law define the mental state of “knowingly” to mean a person is aware that their conduct will more likely than not cause a certain result?
BACKGROUND:
Around 8:15 p.m. on a November 2022 evening, a pickup truck and a car collided on Interstate 90 in a section known as the Cleveland Memorial Shoreway. I-90 is a divided highway with four lanes in each direction. The car ended up on its side in the berm to the left of the far left lane against the barrier separating the eastbound and westbound lanes. The pickup truck pulled over to the opposite side of the road to the shoulder by the far right lane. Because the accident occurred near an on-ramp between Cleveland and Bratenahl, police from both departments responded quickly to the scene.
Officers designated the four lanes as Lanes 1 through 4, with Lane 1 being the innermost lane where the car flipped over, Lane 2 the middle-left lane, Lane 3 the middle-right lane, and Lane 4 the far-right lane. Officers placed their cruisers in Lanes 1 and 2 in a staggered fashion, extending nearly one quarter of a mile from the accident scene. This allowed motorists to continue to travel in the two right lanes, Lanes 3 and 4. The cruisers had flashing lights on, but no officers were out of their vehicles directing traffic, nor were there cones or other measures used to direct traffic.
An Ohio Department of Transportation traffic camera captured images of the site, as did the dashboard and body cameras of responding officers. A semi-truck driver in Lane 4 was also recording the accident scene with his cellphone. Within three minutes of the police closing off the two left lanes, a Cleveland Fire Department fire truck arrived on the scene. Firefighter Johnny Tetrick drove the vehicle and parked it in Lane 1. Three other firefighters joined Tetrick in responding to the accident.
The firefighters discovered there was no driver in the flipped car on the berm. Officers learned the driver had fled. The driver of the pickup truck was still in the passenger seat when police and firefighters arrived. The pickup truck driver identified himself as an off-duty Cleveland police officer. A teenager who was a passenger in the car was sitting in the bed of the pickup truck.
Tetrick and another firefighter crossed Lanes 3 and 4, waving traffic to stop, so they could check on the pickup driver and the teen. Within a minute of checking with the two, the firefighters began to walk back toward their truck. The firefighters crossed in front of the semi-truck driver in Lane 4, who was videoing the scene.
Leander Bissell was driving in the eastbound lanes and was slowed by the traffic. He went around a cruiser parked in Lane 2 and maneuvered around other cruisers, veering into Lane 1 to avoid being stopped by traffic. Bissell was driving in Lane 2 at about 49 mph when Tetrick walked from Lane 4 to Lane 3 and into Lane 2. Tetrick bent down to pick up some debris in the road. He had his back to Bissell when Bissell struck him. Tetrick died from the injuries. Bissell continued driving and was later arrested at his home. He denied any knowledge of the accident.
Driver Charged With Murder of Firefighter
Bissell was indicted for felony murder, two counts of felonious assault, involuntary manslaughter, failure to comply with an officer’s order, aggravated vehicular homicide, and failure to stop at the scene of an accident. Bissell opted for a bench trial, and the judge found him guilty on all counts. The court sentenced him for felony murder based on committing felonious assault and imposed a 15-year-to-life prison sentence. The court also sentenced him to another year in prison for failure to comply and failure to stop at the scene of the accident, for a total of 16 years to life in prison.
Bissell appealed his convictions and sentence to the Eighth District Court of Appeals. In a 2-1 decision, the Eighth District found that the prosecution failed to prove that Bissell committed felonious assault because they were unable to prove Bissell acted “knowingly” when he caused serious physical harm to Tetrick. The Eighth District determined Bissell was guilty of the lesser-included charges of involuntary manslaughter based on the crime of reckless assault of a firefighter. The appeals court remanded the case to the trial court for resentencing.
The Cuyahoga County Prosecutor’s Office appealed the Eighth District’s decision to the Supreme Court of Ohio, which agreed to hear the case.
Driver Acted Knowingly When Striking Firefighter, Prosecutor Asserts
The prosecutor quotes from the decision of the dissenting judge from the Eighth District, who concluded that Bissell acted knowingly and his actions “were no different than closing one’s eyes and pressing the accelerator.” The prosecutor claims the Eighth District majority used the wrong standard for knowing conduct when it found that Bissell acted recklessly, not knowingly.
The office notes that Ohio law defines mental states for criminal purposes in R.C. 2901.22. A person acts “purposely” when it is the person’s “specific intention to cause a certain result.” A person acts “knowingly” when, regardless of the purpose, the person is aware that “the person’s conduct will probably cause a certain result or will probably be of a certain nature.” And a person acts “recklessly” when, “with heedless indifference to the consequences,” the person’s conduct “is likely to cause a certain result or is likely to be of a certain nature.”
The prosecutor maintains that the trial court didn’t have to find that Bissell intended to harm Tetrick, only that he was aware of the risk of causing harm to Tetrick. Because “knowing” involves awareness that an action will probably cause a certain result, there was enough evidence to show Bissell was aware his actions could cause an injury, the prosecutor argues. Bissell didn’t have to be certain of a result, but had to be aware it was more likely than not that driving around the officers, using Lane 2 when nearly all other drivers were in the two far right lanes, and driving faster than others, could cause harm to a first responder, the prosecutor asserts.
The prosecutor argues that the Eighth District interpreted “knowing” using definitions adopted by federal courts and by the Model Penal Code, which Ohio used to develop its criminal mental states. In the model code, “knowing” involves an awareness that the person is “practically certain that his conduct will cause such a result,” the office notes. Ohio’s language is not the same, and makes “knowing” more similar to “reckless” conduct. The only difference between “reckless” and “knowing” in Ohio is the degree of awareness, the office asserts. Reckless conduct requires only an awareness that the risk is “likely,” while knowing conduct requires a slightly higher “more likely than not” level, the prosecutor maintains.
A veteran trial judge considered Bissell’s state of mind when the action occurred and found he acted knowingly, which was sufficient to find him guilty of felonious assault and murder based on committing a felony, the prosecutor notes. Because the conclusion was rational, the trial court’s verdict should stand, the prosecutor maintains.
Impatient Actions Were at Most Reckless, Driver Argues
Bissell argues his actions as an impatient driver were at most reckless, and the state failed to prove he acted knowingly. Bissell notes the evidence from the semi-truck driver’s cellphone and the body cameras of responding officers paints a disorganized scene in which no police officer was taking any action to direct traffic. Bissell asserts that the video footage shows 28 other cars resuming the use of Lane 2 after passing a cruiser blocking the lane.
The cameras also showed that a responding officer had to “lock eyes” with drivers in Lanes 3 and 4 to get them to stop temporarily so that he could drive over to the pickup truck, and video shows Tetrick and the other firefighter also waving at drivers to stop as they crossed the two lanes. Given all indications that the accident occurred in the left lanes, Bissell did not expect a firefighter to emerge from moving traffic on the right.
Bissell argues that the Eighth District found that the definition of “reckless” in R.C. 2901.22 involves an element of chance, that an actor proceeds despite knowing there is likely a risk of a certain result. Knowing conduct requires a degree of certainty, not absolute certainty, but more of a “high probability,” according to the Eighth District. Bissell notes the appeals court correctly found that he wasn’t aware that driving in Lane 2, after several other cars had already done so, would lead to the high probability of striking a pedestrian crossing from the right when the accident occurred on the left.
The appeals court also correctly identified reckless behavior as making a deliberate decision to endanger another person, even though the person knows some risk is likely, Bissell asserts. He maintains that his actions were at most reckless, and his potential criminal sentence of 3 to 11 years in prison is the most that is warranted.
Attorney General’s Office Permitted to Join Oral Arguments
An amicus curiae brief supporting the prosecutor’s position was submitted by the Ohio Attorney General’s Office. The Court has permitted the attorney general to share oral argument time with the prosecutor.
Friend-of-the-Court Briefs Submitted
The Ohio Prosecuting Attorney Association submitted an amicus brief in support of the Cuyahoga County prosecutor, and a joint brief in support of the prosecutor was filed by the Fraternal Order of Police of Ohio, Inc. and the Ohio Association of Professional Fire Fighters.
A brief supporting Bissell’s position was submitted by three Ohio criminal law professors.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Michael Wajda, mwajda@prosecutor.cuyahogacounty.us
Representing Leander Bissell: Timothy Sweeney, tim@timsweeneylaw.com
Representing the Ohio Attorney General’s Office: Mathura Sridharan, mathura.sridharan@ohioago.gov
Was Electric Company Entitled to Adjust Amount for Rider Due to Math Error?
In the matter of the review of Duke Energy Ohio Inc.’s Distribution Capital Investment Rider, Case No.2025-0620
Public Utilities Commission of Ohio
ISSUE: Did the Public Utilities Commission of Ohio allow retroactive ratemaking by permitting an electric utility to collect additional revenue through a rider to compensate for an earlier math error?
BACKGROUND:
The Public Utilities Commission of Ohio (PUCO) approved a “distribution capital investment” (DCI) rider for Duke Energy of Ohio. The rider allows Duke Energy to recover from consumers the costs of its capital spending on investments in electric distribution infrastructure. The rider includes a calculation involving “accumulated deferred income taxes” (ADIT).
The DCI rider is audited annually, and the PUCO hired Blue Ridge Consulting Services in July 2023 to conduct the audit for July 1, 2022, through June 30, 2023. Blue Ridge concluded that the DCI rider wasn’t calculated, as required, based on the ADIT submitted in Duke Energy’s last rate case approved by the PUCO. The incorrect ADIT that was instead used lowered the base rates charged by Duke Energy to consumers and led to an under-collection of $14 million through the rider.
Duke Energy proposed an adjustment to the rider to reflect the correct amounts and recover lost costs. The Office of the Ohio Consumers’ Counsel, which represents residential customers, objected to the adjustment. Duke Energy and the PUCO staff proposed a settlement that included the adjustment for the ADIT error. Following a hearing, the PUCO in January 2025 approved the settlement.
The consumers’ counsel appealed the decision to the Supreme Court of Ohio, which must hear this type of appeal.
Adjustments Shouldn’t Be Made for Company’s Math Error, Consumer Group Contends
The consumers’ counsel argues Duke Energy shouldn’t be compensated for its math error by allowing it to charge customers more through the DCI rider. The consumers’ counsel notes that draft audits from Blue Ridge recommended that the company be required to submit arguments as to why the proposed ADIT adjustment wasn’t retroactive ratemaking, which is prohibited by state law. However, that language didn’t appear in the final audit report, the group states.
By allowing Duke Energy to recover $14 million caused by its own math error, the PUCO is also engaging in retroactive ratemaking, the consumers’ counsel contends. “Consumers should not be charged retroactive rates to make up for a $14 million utility mistake,” the consumers’ counsel’s brief maintains.
DCI Rider Allows Adjustment for Error, Utility Regulator Argues
The PUCO counters that there is no retroactive ratemaking because no changes were made to Duke Energy’s base rates. Instead, the commission argues, the DCI rider is separate from the base rates charged to customers and is calculated based on a different mechanism, which allows for periodic adjustments. The adjustment to the rider simply permits Duke Energy, going forward, to recover the correct amounts based on corrected calculations, the PUCO asserts.
While Duke Energy was permitted to make adjustments to the DCI rider, the company won’t recover any additional revenue through its base rates, the PUCO maintains. The adjustment is simply a “reconciliation,” the commission argues. It explains that the terms of the rider note it is “subject to reconciliation, including, but not limited to, refunds or additional charges to customers, ordered by the Commission as the result of audits by the Commission ….”
Customers Have Benefited From Error, Company Maintains
Duke Energy, which was allowed to intervene in the appeal, explains that two terms used in this matter aren’t interchangeable. The “rate base” is the dollar value of a utility’s property, plant, and equipment. The ADIT is a credit made when determining the rate base. The rate base is then used to calculate “base rates,” which are charged to customers.
– Kathleen maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Office of the Ohio Consumers’ Counsel: John Finnigan Jr., john.finnigan@occ.ohio.gov
Representing the Public Utilities Commission of Ohio from the Ohio Attorney General’s Office: Thomas Lindgren, thomas.lindgren@ohioago.gov
Representing Duke Energy Ohio Inc.: Elizabeth Brama, ebrama@taftlaw.com
Is City Parking Garage Operated by For-Profit Business Tax Exempt?
RiverSouth Authority et al. v. Patricia Harris, tax commissioner of Ohio, et al., Case No. 2025-0671
Ohio Board of Tax Appeals
ISSUES:
- Is real property that is owned by a political subdivision, leased to another political subdivision, and used exclusively for public purposes exempt from taxation?
- Does a property owner or lessee that hires a management company to operate the property’s day-to-day activities retain direction or control of the property?
BACKGROUND:
RiverSouth Authority was created to govern the redevelopment and revitalization of an area called the Scioto Peninsula in Columbus. Under state law, RiverSouth is a “new community authority” and a political subdivision. In September 2016, RiverSouth signed a 40-year lease with the city on a parcel in the Scioto Peninsula area. RiverSouth leased part of the property back to the city to facilitate the construction of an underground parking garage with 660 spaces.
In October 2017, the city signed an agreement with the nonprofit corporation Capital South Urban Redevelopment Corporation to manage the garage. Capital South was paid a fixed fee for managing the garage and providing affordable parking for downtown employees, guests, and residents. The responsibilities included establishing hours of operation, setting parking rates, keeping the garage in repair, and providing security.
Capital South was permitted to enlist an operator to perform some or all of its obligations and hired a private company, LAZ Parking Midwest, to manage the garage. The company was paid a fixed management fee. The agreement stated that LAZ Parking couldn’t be compensated based on profits made from garage operations.
Redevelopment Authority Requests Tax Exemption for Garage
RiverSouth applied to the Ohio tax commissioner in January 2019 requesting a property tax exemption for the garage. The tax commissioner denied the exemption in August 2021, finding that it applies only to charitable, public, or educational institutions, and LAZ Parking, which had exclusive control of the garage on a day-to-day basis, was a for-profit business. The commissioner also determined the garage didn’t qualify for a tax exemption that is allowed for a public property used exclusively for a public purpose.
RiverSouth appealed to the Board of Tax Appeals (BTA), which also determined that RiverSouth wasn’t entitled to a tax exemption for the garage, but for a different reason. The BTA concluded the garage was under the direction and control of Capital South. To qualify for the tax exemption, the garage must be under a political subdivision’s direction and control, but Capital South isn’t a political subdivision, disqualifying the garage from the exemption, the BTA found.
RiverSouth appealed to the Supreme Court of Ohio, which decided to hear oral arguments in the tax case.
Garage Is Public Property Used for Public Purpose, Development Authority Argues
RiverSouth maintains it is a political subdivision that owns the garage and leases it to the city. Publicly owned parking facilities that are open to the public qualify as public property used for a public purpose, RiverSouth notes. The garage, as a public property used for a public purpose, entitles RiverSouth to the tax exemption, RiverSouth argues. It also asserts that paying LAZ Parking a flat fee through a management agreement to operate the garage isn’t a lease. Leases have an element of ownership that would make the garage no longer a public property used for a public purpose.
RiverSouth adds that the city ultimately controls the garage, with Capitol South managing it. Citing the Supreme Court of Ohio ruling in Cincinnati v. Testa (2015), RiverSouth argues a property owner that hires a management company still retains direction or control of the property. Since the city directs or controls the property, the garage should be exempt from property taxes, RiverSouth concludes.
Political Subdivisions Don’t Control Garage, Tax Commissioner and School Board Assert
The tax commissioner’s office argues that although it and the BTA drew different conclusions about who controls the garage, neither found that the city controls it. LAZ Parking and Capital South share control of how the garage operates, and Columbus has no control over the garage operations, the tax commissioner maintains. That means the garage isn’t used exclusively for a public purpose and can’t be tax exempt, the tax commissioner contends.
The Columbus City School District Board of Education also filed a brief in the case, agreeing with the BTA that the garage doesn’t qualify for the tax exemption because the city doesn’t direct and control the garage or retain control over the day-to-day operations.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing RiverSouth Authority: Richard Farrin, rfarrin@zhftaxlaw.com
Representing Patricia Harris, Ohio tax commissioner, from the Ohio Attorney General’s Office: Daniel Kim, daniel.kim@ohioago.gov
Representing Columbus City Schools Board of Education: Richelle Thoburn Ford, rthoburn@richgillislawgroup.com
Can Developer File Separate Lawsuits to Appeal City’s Construction Permit Rejection?
Sheetz Inc. et al. v. City of Centerville et al., Case No. 2025-0753
U.S. District Court for the Southern District of Ohio
ISSUES:
- Must a party filing an administrative appeal contesting a city council’s decision also include any claims for damages in the same appeal?
- Can a party filing an administrative appeal contesting a city’s decision also file a separate lawsuit seeking damages from the city?
BACKGROUND:
Epiphany Evangelical Lutheran Church is located on Far Hills Avenue in Centerville, near an exit ramp from Interstate 675. Epiphany owns a large parking lot to the south of the church, which also includes commercial properties. Since 1979, Hemmert Far Hills has operated Elsa’s Mexican Restaurant on the church’s commercial property. Elsa’s has become a popular restaurant in the Dayton area and has expanded to several other locations.
In 2017, Hemmert Far Hills acquired the Elsa property from Epiphany. However, Epiphany still had an easement to use the parking lot as overflow space for church services and other church activities. Across Far Hills Avenue from Epiphany is Bethany Village, a large senior living complex operated by Graceworks Lutheran Services.
In 2022, Hemmert agreed to sell the Elsa’s property to Sheetz, a national chain of gas stations, which also serves food 24 hours a day, seven days a week. The property is located in a zoning district designated by the city of Centerville as “B-2,” and the operation of a gas station and restaurant is a permitted use in a B-2 district. Sheetz presented its major site plan to demolish Elsa’s and construct a gas station on the property to the city planning commission. In August 2023, the planning commission approved the project by a 5-0 vote.
Leaders of Epiphany and Bethany Village led an effort to oppose the construction of the Sheetz. They asked the Centerville City Council to reject the planning commission’s approval of the project. In October 2023, city council voted unanimously to reject the plan, arguing that operating a 24/7 business was inconsistent with the character and use of the surrounding properties.
Under the provisions of R.C. Chapter 2506, Sheetz filed an administrative appeal with the Montgomery County Common Pleas Court in November 2023. In January 2024, Sheetz filed a separate lawsuit against Centerville, Epiphany, and Bethany Village in the common pleas court seeking civil damages and claiming the city and the opponents engaged in a civil conspiracy, tortious interference, and violated the company’s federal constitutional rights. The city successfully transferred the case to a federal district court.
In January 2025, the common pleas court overturned the city council’s decision and restored the planning commission’s approval of the site plan. The judge found there was no language in the zoning ordinance prohibiting 24/7 operations. The federal district court was notified of the common pleas court’s decision authorizing the construction of the Sheetz. The federal court then asked the parties to explain why the case should continue and to address whether it was no longer viable under the doctrine of res judicata, which prevents a second lawsuit based on the same facts.
Centerville and the Sheetz opponents told the federal court that a prior federal court decision indicated that a party must make claims for damages when pursuing an administrative appeal in state common pleas court. Sheetz argued the federal court decision conflicted with a Supreme Court of Ohio decision that found administrative appeals can’t address damages or other civil claims. Before deciding whether to move forward with Sheetz’s case, the federal court presented a certified question to the Supreme Court, asking it to clarify Ohio law on whether a successful administrative appeal by Sheetz barred the company from pursuing damages in a second lawsuit in federal court.
Separate Cases Necessary, Business Maintains
Sheetz cites the Supreme Court’s 1993 Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals decision. In that case, the Court ruled that civil damages couldn’t be sought in an administrative appeal. Sheetz explains the decision is logical because R.C. Chapter 2506 creates a narrow process for addressing administrative appeals. A trial court can only issue an order to “affirm, reverse, vacate, or modify” a government body’s decision. It doesn’t grant the court the authority to award damages or any other relief to those contesting the government’s actions, the business explains.
The decision and subsequent cases have allowed for separate lawsuits, and the doctrine of res judicata wouldn’t bar a court from considering different claims based on a single decision by a government body, Sheetz asserts. Sheetz explains that an administrative appeal is designed to move swiftly through the courts, while a civil lawsuit claiming damages is a more complex case that takes longer for a court to oversee. The company notes that Centerville appealed the common pleas court decision, and the Second District Court of Appeals has affirmed the decision to grant the site plan. Centerville has an appeal of the Second District’s decision pending before the Supreme Court.
The federal court noted that the Sixth U.S. Circuit Court of Appeals’ 2021 Moore v. Hiram Twp. decision directed a business owner to file his claim for damages together with his administrative appeal of a township’s decision rejecting his property use request. Sheetz explains that in response to the Moore decision, the Ohio General Assembly enacted three laws in 2023, including R.C. 713.16. The statute indicates a court’s final judgment in an administrative appeal does not prevent a party from filing a separate claim for damages in another lawsuit. The company notes lawmakers indicated they intended to override the Moore decision by enacting the law.
With the enactment of the 2023 law, the federal court shouldn’t rely on the precedent of Moore and should allow the lawsuit to move forward, Sheetz concludes.
Business Must Choose One Legal Path, City Contends
Centerville argues that the Community Concerned Citizens decision doesn’t affect Ohio’s long-standing adherence to the principles of res judicata and that Sheetz is seeking a special exception for administrative appeals. Rather, Sheetz must abide by the “election of remedies” and choose just one legal path, the city maintains. Sheetz could elect to file an administrative appeal and not seek damages from the city or the opponents, the city asserts, or it could file a civil lawsuit against them all and not file an administrative appeal. However, res judicata prevents a second lawsuit based on any claim arising out of the transaction or occurrence that was the subject of the first lawsuit, the city notes. Since Sheetz first filed an administrative appeal, it couldn’t sue the city in the subsequent case, the city maintains.
Centerville notes the circumstances in this case are almost identical to the Moore case, in which a property owner filed an administrative appeal and a subsequent civil lawsuit alleging the township violated his federal constitutional rights. The Sixth Circuit rejected the property owner’s claim that he couldn’t request damages when filing an administrative appeal. The court held that the owner had to advance all his claims in the first lawsuit or was forever barred from asserting them again in a second lawsuit.
The city also rejects the claim that the newly enacted R.C. 713.16 is applicable to this case. The city argues that the law doesn’t apply to cities operating under a charter because they are granted authority under the Ohio Constitution to make zoning and land-use decisions.
Church Supports City’s Argument
In a separate brief, Epiphany argues Ohio law required Sheetz to file any claims for damages in its administrative appeal to the common pleas court. The church largely agrees with the city’s argument that the Moore decision required both claims to be made in a single case, or that Sheetz had to make one claim and forego the other. However, Epiphany also maintains that under the Supreme Court’s 2022 Lycan v. City of Cleveland decision, which involved drivers seeking refunds of traffic-camera tickets, the Court stated that res judicata applies to administrative appeals. Because Sheetz first filed an administrative appeal with the court, the company was barred from filing a subsequent lawsuit against the city, the church, and other opponents, Epiphany maintains.
Senior Center Not Appearing Before Court
Graceworks Lutheran Services did not file a merit brief in the case and isn’t permitted to participate in oral arguments.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Sheetz Inc. et al: James Greer, jhg@biesergreer.com
Representing City of Centerville et. al: Nicholas Subashi, nsubashi@swjohiolaw.com
Representing Epiphany Evangelical Lutheran Church: Eric Rosenberg, rosenberglawoffice@gmail.com
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