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Alabama River Group, Inc. v. Conecuh Timber, Inc.

Supreme Court of Alabama

September 29, 2017

Alabama River Group, Inc., and George Landegger
v.
Conecuh Timber, Inc., et al.

         Appeal from Monroe Circuit Court (CV-10-900079)

          PARKER, Justice.

         Conecuh Timber, Inc., Ayres Forestry, Inc., BAR Forest Products, LLC, Dry Creek Loggers, Inc., Pea River Timber Company, Inc., Pineville Timber Co., LLC, and THE Timber Company, LLC (sometimes referred to as "TTC") (hereinafter collectively referred to as "the wood dealers"), sued Alabama River Group, Inc. ("ARG"), and ARG's chairman and chief executive officer George Landegger (hereinafter collectively referred to as "the ARG defendants"[1]) in the Monroe Circuit Court, asserting various claims arising from transactions between the wood dealers and ARG's predecessors; the transactions were affected by a short-lived subsidy program administered by the United States Department of Agriculture's Farm Service Agency ("the FSA") known as the Biomass Crop Assistance Program ("BCAP").[2] Following a jury trial, a judgment was entered against the ARG defendants awarding the wood dealers $1, 092, 692.71 in compensatory damages and $7, 000, 000 in punitive damages. The trial court reduced the punitive-damages award by virtue of the statutory cap in § 6-11-21, Ala. Code 1975, resulting in a total judgment of $6, 395, 489.37. The ARG defendants filed posttrial motions, which, after a hearing, the trial court denied. The ARG defendants appeal.

         I. Facts and Procedural History

         As part of the Food, Conservation, and Energy Act of 2008, also known as the 2008 Farm Bill, the United States Congress created BCAP to help stimulate the development of renewable "bioenergy" sources and to assist agricultural- and forest-land owners and operators with the use of eligible material in a "biomass conversion facility" ("BCF").[3] As one element of BCAP, a wood dealer delivering eligible biomass materials to a qualified BCF was eligible to receive a subsidy from the FSA if the biomass material was subsequently used for generating energy. The FSA first announced details of BCAP in the summer of 2009.

         On October 28, 2009, the FSA published a notice outlining what biomass materials were eligible for a BCAP subsidy ("the BCAP materials list"). As concerns this case, the BCAP materials list authorized the payment of a subsidy for eligible timber products such as tree branches, treetops, wood chips, and bark; however, the BCAP materials list specifically enumerated materials that were not eligible for a BCAP subsidy, including what is known in the timber and paper-making industries as "black liquor."[4]

         On October 29, 2009, the day after the FSA released the BCAP materials list, the United States Department of Agriculture ("the USDA") discussed BCAP in a telephone conference call with representatives of the timber and paper- making industries, including Landegger. During the call, an FSA official responded to a written question about black liquor by stating that "black liquor is not going to be eligible" for the BCAP subsidy and that, "[i]f a wood residue or pulp material is brought to a pulp mill, the component of that would be turned into black liquor and would not be an eligible material." Landegger asked why black liquor was ineligible, stating he was "not sure what the rationale was for removing black liquor as an eligible material or pulp as a byproduct." The official responded that all the details of BCAP were still being worked out in the regulatory process and that there could be substantial changes in the forthcoming rules.

         Although BCAP did not provide any direct benefits to pulp-mill owners, Landegger decided to participate in the program by obtaining certification for two pulp mills operated by Landegger's companies in Monroe County, Alabama (the two companies eventually became ARG).[5] The ARG mills were thereafter certified by the FSA as qualified BCFs under BCAP. To qualify as a BCF, the ARG pulp mills entered into an agreement with the USDA to follow the rules and regulations governing BCAP and to certify for BCAP subsidies only eligible materials listed on the BCAP materials list. ARG thereafter advertised its BCF status and promoted BCAP to wood dealers throughout its area of operation, explaining to them that they could receive BCAP subsidies for eligible wood products delivered to the ARG pulp mills.

         ARG also explained to those wood dealers, however, that it would pay a reduced, below market price for wood products delivered to ARG mills that were eligible for BCAP subsidies, with the expectation that the BCAP subsidies would make up for that discount and provide an additional profit for wood dealers as well. ARG further represented that, if the BCAP subsidies were not paid to wood dealers or were lower than expected, it would pay the "difference" and make wood dealers "whole." The parties dispute, however, whether the "difference" ARG agreed to pay was the difference between the below market price ARG paid and the actual market price in effect at that time or the difference between the below market price ARG paid and the net price the wood dealers expected to get after the advertised BCAP subsidies were paid.

         As an example of ARG's BCAP-related transactions with the wood dealers, one of those dealers -- Ayres Forestry -- was receiving $39 per ton for wood products delivered to the ARG pulp mills before the start of BCAP. An ARG representative explained that Ayres Forestry would receive only $31 per ton from ARG for delivering wood products on the BCAP materials list, but it would also receive a BCAP subsidy of $12.12 per ton from the FSA, thus resulting in a net gain of $4.12 per ton for Ayres Forestry (and an $8 savings per ton for ARG). To receive the BCAP subsidy, Ayres Forestry had to submit to the local FSA office a form, copies of the sales contracts, and sales receipts signed by the ARG mills in their capacity as a BCAP-qualified BCF and reflecting the amount of eligible material delivered. ARG, as a BCF, was required to measure moisture content and tonnage and other relevant qualities of the wood delivered and to certify how much of the wood was eligible under BCAP. ARG required Ayres Forestry and the other wood dealers to use a system by which drivers delivering "BCAP wood" to ARG had to use a card of a particular color.

         ARG concluded that there was some ambiguity in the interpretation of the BCAP materials list, specifically whether it barred the payment of a BCAP subsidy for the delivery of only processed black liquor but not materials converted into black liquor. The FSA had stated its intent in the above-referenced conference call that it would not approve wood used for black liquor. Moreover, ARG's chief financial officer and Landegger's son-in-law, Arick Rynearson, sent an e-mail to Landegger warning that "USDA has made their intent clear -- they want to exclude black liquor." "We can push it, " Rynearson wrote, "but I suspect that in the end, we will end up only having our bark and forest residue qualify." Nevertheless, ARG, with approval from Landegger, made the decision to certify as eligible materials for BCAP subsidies those wood materials that would ultimately be converted into black liquor.

         This decision allowed ARG to calculate approximately 50-55% of a tree as eligible under the BCAP materials list, rather than approximately 10-12% of a tree that otherwise would be eligible, thus resulting in higher subsidy payments for the wood dealers and, presumably, more profit for all the parties. In early December 2009, ARG processed an initial "test" load delivered by a wood dealer (not one of the plaintiffs) pursuant to this interpretation of the BCAP materials list. ARG provided the wood dealer with a delivery ticket stating that 54% of the "bone dry tons" of the wood delivered to ARG qualified for the BCAP subsidy. The FSA state office paid the full subsidy on that 54% certification. On December 21, 2009, ARG began processing timber products in this same manner for approximately 50 different wood dealers who agreed to haul wood to ARG. The wood dealers testified at trial that they were ignorant of the fact that ARG was including in its calculation of eligible materials wood products ARG used in the production of black liquor.

         On January 21, 2010, after someone apparently complained to the FSA about ARG, the FSA suspended ARG from participating in BCAP and halted relevant BCAP subsidies to wood dealers who hauled to ARG, explaining in an e-mail sent to county FSA offices that "there may be possible discrepancies in the methods used by [ARG] to determine the percentage of product that is being used for biomass." ARG thereafter learned that the suspension was caused by its decision to certify for a BCAP subsidy material that was being converted to black liquor. ARG immediately began working to get the suspension lifted, and ARG officials, including Landegger, subsequently met with FSA officials in Washington, D.C., to explain their interpretation of the BCAP materials list and to attempt to resolve the dispute and ARG's suspension.

         While it worked to reverse the suspension, ARG told the wood dealers that the suspension was just the result of a misunderstanding and encouraged them to continue to deliver their products to the ARG pulp mills, even though the suspension meant no BCAP subsidies would be paid for wood delivered to ARG. For instance, wood dealer John Ayres of Ayres Forestry testified that, after ARG was suspended, Mark Bond of ARG told Ayres: "We are not really kicked out. Everything was legal. We got the formula approved by the FSA. Just a misunderstanding. We are going to get put back in the program." Accordingly, in order ostensibly to "help" the wood dealers with their decreased cash flow after ARG's suspension from BCAP, ARG agreed to "advance" the wood dealers the difference between the lower, below market rate ARG was paying and the market rate for all deliveries made during the suspension. ARG drafted promissory notes for those advances and required the wood dealers to sign them in order to receive the advance payments. ARG claimed at trial that it did not intend to demand payment on the notes if the BCAP subsidies were not paid to the wood dealers.

         On February 8, 2010, the FSA published for public comment its proposed rules governing BCAP. The proposed rules explicitly provided that black liquor was "not an eligible material" and that BCAP subsidies would not be paid for "[e]ligible material delivered to a qualified [BCF] used to produce black liquor." The proposed rules were to become final in October 2010.

         On February 24, 2010, the deputy administrator for farm programs of the FSA revoked ARG's status as a qualified BCF and tentatively found (1) that ARG had engaged in a scheme or artifice to present false information to the FSA in connection with BCAP and (2) that ARG was liable for the amount of BCAP subsidies that had been improperly paid to wood dealers based on ARG's certification as eligible for a BCAP subsidy materials that were delivered to ARG and converted into black liquor. ARG appealed the FSA's decision. While ARG's appeal was pending, many wood dealers continued to deliver wood products to ARG and to file requests for BCAP subsidies with the FSA, continuing to do so through April 2010 -- when BCAP ended for the fiscal year -- with the hope that the FSA would reconsider its decision to terminate ARG's involvement in BCAP. On March 1, 2010, ARG once again began paying wood dealers full market price for delivered materials.

         In November 2010, Landegger, on behalf of ARG, formally entered into a settlement with the FSA resolving the dispute over BCAP subsidies that had been improperly paid to wood dealers based on ARG's certification as eligible for a BCAP subsidy materials that ARG turned into black liquor and settling all outstanding requests for BCAP subsidies made by wood dealers for materials delivered to ARG after ARG's suspension on January 21. Pursuant to this settlement, the FSA agreed to withdraw its previous finding that ARG had engaged in a scheme to submit false information to the FSA and to reverse ARG's January 21 suspension and February 24 termination from BCAP as a qualified BCF. The FSA and ARG also agreed that the amount of the BCAP subsidy for all deliveries before January 21 would be recalculated to exclude payments for materials converted to black liquor and that this same formula would be used to calculate the subsidies wood dealers were entitled to for products delivered after January 21. ARG agreed to set up an account of $2.4 million from which payments would be made to the FSA and then to wood dealers who did not receive BCAP subsidies for wood delivered to ARG because of the suspension. The outstanding BCAP subsidies for wood products delivered after January 21, however, would be subtracted from overpayments made before January 21, and the FSA agreed to make additional BCAP subsidy payments to any given wood dealer only to the extent the amount owed exceeded the amount of previous overpayment. If a wood dealer still had an overpayment thereafter, ARG agreed to reimburse the FSA for that amount.

         On October 6, 2010, before ARG entered into its settlement with the FSA, the wood dealers sued ARG, Landegger, and Steve Harris -- the president of an ARG affiliate involved in the operation of ARG's pulp mills -- in the Monroe Circuit Court, asserting breach-of-contract, negligence, wantonness, and multiple fraud claims. The wood dealers alleged fraudulent misrepresentation against all defendants but alleged breach of contract against only "[ARG] and/or fictitious defendants A-L, " excluding Landegger and Harris. The gravamen of the wood dealers' complaint was that ARG had made various misrepresentations to them related to its participation in BCAP in order to induce them to sell wood products to ARG at a reduced price and that they had suffered economic damage as a result.

         ARG, Harris, and Landegger filed an answer denying the allegations, and ARG asserted counterclaims against all the wood dealers except Pineville Timber Co. and THE Timber Company based on the promissory notes those entities had executed for funds ARG advanced them during the time the FSA was not paying BCAP subsidies for timber products delivered to ARG. The wood dealers denied those counterclaims. The wood dealers amended their complaint and added additional plaintiffs, and ARG filed amended counterclaims against six of the wood dealers.

         A lengthy pretrial process ensued, during which the ARG defendants broadly allege that the trial court failed to properly manage the case. See, e.g., the ARG defendants' brief, at pp. 2-5. By agreement of the parties, a trial date was finally set for August 24, 2015. On May 26, 2015, approximately one month after that trial date had been set, a New York federal district court sentenced Landegger to two months in federal prison followed by six months of home confinement in Connecticut for an unrelated criminal matter.[6]Landegger began serving his sentence on June 24, 2015, and, on June 26, 2015, the ARG defendants and Harris moved the trial court to continue the trial until at least February 2016 so that Landegger could attend and participate. The trial court denied the motion.

         The trial began on August 24, 2015. During the course of the trial, the wood dealers dropped their deceit, negligence, and wantonness claims. The trial court ultimately charged the jury only on the wood dealers' misrepresentation and breach-of-contract claims, as well as ARG's counterclaims based on the promissory notes executed by some of the wood dealers. As to the breach-of-contract claim, the trial court gave charges on both express and implied contracts, over the objection of the ARG defendants to the implied-contract charge. As to the wood dealers' misrepresentation charge, the ARG defendants sought, over the objection of the wood dealers, an instruction on promissory fraud. The trial court declined to give the promissory-fraud instruction. The trial court instructed the jury with respect to the verdict form as follows:

"There are three defendants. And you can find against one or all three, defendant Alabama River Group, Inc., defendant Steven Harris, and defendant George Landegger.
"And these are compensatory damages, which would be returned under -- if you find the plaintiffs, they had a contract and it was breached by the defendants, or if you find that the defendants committed fraud."

         On August 31, 2015, the jury returned a general verdict in favor of the wood dealers and against ARG and Landegger for $8, 092, 692.71 -- a combined total of $1, 092, 692.71 in compensatory damages and $7, 000, 000 in punitive damages. The jury found Harris not liable on all claims against him. The jury also ruled against ARG on its counterclaims. On September 3, 2015, the trial court entered a judgment consistent with the jury's verdict. However, in accordance with the statutory cap on punitive damages set forth in § 6-11-21, Ala. Code 1975, the trial court subsequently reduced the punitive damages awarded, resulting in a total judgment of $6, 395, 489.37.

         On October 5, 2015, the ARG defendants filed postjudgment motions, including a motion for a judgment as a matter of law, a motion for a new trial, and a motion for remittitur of the compensatory and punitive damages. After a December 3, 2015, Hammond/Green Oil[7] hearing, the trial court denied all motions. ARG and Landegger appealed.

         II. Standards of Review

"This Court reviews de novo the grant or denial of a motion for a [judgment as a matter of law], determining whether there was substantial evidence, when viewed in the light most favorable to the nonmoving party, to produce a factual conflict warranting jury consideration. Alfa Life Ins. Corp. v. Jackson, 906 So.2d 143, 149 (Ala. 2005) (citing Ex parte Helms, 873 So.2d 1139, 1143-44 (Ala. 2003)). '"'[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'"' Dolgencorp, Inc. v. Hall, 890 So.2d 98, 100 (Ala. 2003) (quoting Wal-Mart Stores, Inc. v. Smitherman, 872 So.2d 833, 837 (Ala. 2003), quoting in turn West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989))."

Jones Food Co. v. Shipman, 981 So.2d 355, 360-61 (Ala. 2006).

          In reviewing a trial court's rulings on jury instructions, a motion for new trial, a motion for a continuance, and exclusion of evidence, this Court considers whether the trial court exceeded its discretion. Wood v. Hayes, 104 So.3d 863, 870 (Ala. 2012); Arthur v. Bolen, 41 So.3d 745, 749 (Ala. 2010); Wright Therapy Equip., LLC v. Blue Cross & Blue Shield of Alabama, 991 So.2d 701, 705-706 (Ala. 2008); Kult v. Kelly, 987 So.2d 551, 555 (Ala. 2007); and Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330, 334 (Ala. 2006). Generally, "'a jury verdict is presumed to be correct, and that presumption is strengthened by the trial court's denial of a motion for a new trial.'" Line v. Ventura, 38 So.3d 1, 8 (Ala. 2009) (quoting Delchamps, Inc. v. Bryant, 738 So.2d 824, 830-31 (Ala. 1999)). We "'must consider the evidence in the light most favorable to the prevailing party, and ... will set aside the verdict only if it is plainly and palpably wrong.'" Id.

         In reviewing damages, this Court reviews an award of punitive damages de novo and with no presumption of correctness to "ensure that all punitive damage awards comply with applicable procedural, evidentiary, and constitutional requirements, and to order remittitur where appropriate." § 6-11-21(i), Ala. Code 1975. See also §§ 6-11-23(a) and 6-11-24(a), Ala. Code 1975; Schaeffer v. Poellnitz, 154 So.3d 979, 986 (Ala. 2014). We review an award of compensatory damages, however, to consider whether the jury exceeded its discretion, "viewing the evidence from the plaintiff's perspective." First Commercial Bank v. Spivey, 694 So.2d 1316, 1326 (Ala. 1997). In the absence of a "flawed" verdict -- which this Court has defined as a verdict influenced by "'misconduct, bias, passion, prejudice, corruption, improper motive, or cause not consistent with the truth and the facts'" -- we have "'no statutory authority to invade the province of the jury in awarding compensatory damages.'" Hornady Truck Line, Inc. v. Meadows, 847 So.2d 908, 922 (Ala. 2002) (quoting Pitt v. Century II, Inc., 631 So.2d 235, 240 (Ala. 1993)).

         III. Discussion

         On appeal, ARG and Landegger argue that they were entitled to a judgment as a matter of law on some of the wood dealers' claims or, in the alternative, that they are entitled to a new trial based on errors they allege the trial court committed (1) in charging the jury, (2) in denying their request for a continuance so Landegger could attend the trial, and (3) in excluding certain evidence at trial. ARG and Landegger also argue, alternatively, that this Court should further remit both the compensatory and punitive damages awarded the wood dealers.

         A. Misrepresentation Claims Against ARG

         The ARG defendants first argue that the trial court erred in denying their motions for a judgment as a matter of law ("JML") because, they say, the wood dealers failed to produce at trial substantial evidence of a misrepresentation of existing material fact. Specifically, the ARG defendants make the following arguments: (1) that the evidence at trial showed merely that the alleged misrepresentations made to the wood dealers were either actually true or not material and (2) that the alleged misrepresentations concerned acts or events to occur in the future, sounding in promissory fraud rather than misrepresentation.

         By statute, misrepresentation claims are a type of legal fraud: namely, "[m]isrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party." § 6-5-101, Ala. Code 1975. This Court has articulated the elements of a misrepresentation claim as follows:

"1) [A] misrepresentation of material fact, 2) made willfully to deceive, recklessly, without knowledge, or mistakenly, 3) which was reasonably relied on by the plaintiff under the circumstances, and 4) which caused damage as a proximate consequence. See Foremost Ins. Co. v. Parham, 693 So.2d 409, 421-22 (Ala. 1997)(citing § 6-5-101, Ala. Code 1975, and Harrington v. Johnson-Rast & Hays Co., 577 So.2d 437 (Ala. 1991))."

Bryant Bank v. Talmage Kirkland & Co., 155 So.3d 231, 238 (Ala. 2014).

         On appeal, the parties do not dispute the sufficiency of the evidence as to all the elements of misrepresentation. No arguments are presented concerning the degree of falsity (second element), reasonable reliance (third element), or causation (fourth element). The ARG defendants focus on the first element of misrepresentation; they argue that the wood dealers offered no evidence of a misrepresentation of material existing fact. Any alleged misrepresentation made by the ARG defendants, they argue, was either true, not material, or mere opinion. Specifically, the ARG defendants point to the alleged representations by the ARG defendants (1) that ARG "had become properly qualified facilities for BCAP, " which the ARG defendants claim was a true statement; (2) that the wood dealers' wood materials were eligible for BCAP subsidies, which the ARG defendants claim was also a true statement; and (3) that ARG's suspension from BCAP was "just a misunderstanding, " which the ARG defendants claim was merely a statement of opinion or prediction. Thus, argue the ARG defendants, there was no, or at least not substantial, evidence in the trial court to support a misrepresentation claim.

         The wood dealers respond that the trial court had before it substantial evidence of several false and material representations and that, on appeal, the ARG defendants selectively take out of context certain statements in the record to support their arguments. The wood dealers do not dispute that ARG's mills were, at least initially, qualified BCFs; in fact, the amended complaint expressly alleged that the ARG defendants applied to the FSA and were "approved to be a qualified energy conversion facility." Rather, the wood dealers alleged that the qualification of ARG's mills as BCFs was a threshold representation upon which the rest of the misrepresentations made to the wood dealers largely depended. As the amended complaint alleged:

"In 2009, [the ARG] [d]efendants approached [the wood dealers] regarding the purchase of eligible materials for BCAP. [The ARG] [d]efendants represented that APP [Alabama Pine Pulp Company, Inc.] and ARP [Alabama River Pulp Company, Inc.] had become properly qualified facilities for BCAP. [The ARG] [d]efendants also stated that in order to sell wood to [ARG], [the wood dealers] would be required to reduce the price of their wood below market rates. In exchange for the reduction in price, [the ARG] [d]efendants ensured that [the wood dealers] would receive the BCAP matching payments, which, according to [the ARG] [d]efendants, would be well over the required reduction in price, and would result in higher profit for [the wood dealers]. [The ARG] [d]efendants also represented that [the wood dealers] would be paid the amounts agreed upon, including the amount due under BCAP, even if [the wood dealers] did not receive their BCAP matching payment."

         Seen in context, the ARG defendants' representation about its mills' BCAP qualification was never alleged to be a false statement in itself, but it was alleged to be a material predicate for the alleged misrepresentations that followed. In the words of the trial court, "[b]y becoming qualified in [BCAP], [the] ARG [defendants] aimed to take advantage of federal matching payments for eligible materials delivered to ARG by wood dealers and used by ARG to make energy." Therefore, although we agree with the ARG defendants that their representation that the ARG mills were each a "qualified facility for BCAP" was, standing alone, a true statement, we agree with the wood dealers that it was also material to the series of misrepresentations allegedly made to the wood dealers about BCAP and the parties' respective roles in it.

         In response to the ARG defendants' next argument -- that the representation that the wood dealers' products delivered to ARG were eligible for BCAP subsidies was true -- the wood dealers respond that the statement was only partially true: although a portion of the wood delivered was eligible for a BCAP subsidy, wood that was converted to black liquor was not. The evidence submitted below indicates that the FSA did not consider wood converted to black liquor to be an eligible material under the BCAP materials list, that black liquor was expressly listed as an ineligible material on the BCAP materials list, and that ARG and Landegger knew the FSA's position on black liquor and material converted to black liquor. Nevertheless, unbeknownst to the wood dealers, ARG included wood material used to make black liquor in its BCAP subsidy calculations and then expressly used this larger subsidy "formula" to induce the wood dealers to deliver their wood to ARG's mills instead of its competitors' mills. For example, John Ayres of Ayres Forestry testified that ARG told him "that [ARG] had a formula that was better than the other mills and that if I hauled wood to them, that I would get paid about two more dollars a ton than if I hauled wood" elsewhere. When asked if ARG mentioned "that they put black liquor in the formula" or if he otherwise knew that, Ayres responded: "No." Wade Rolison of BAR Forest Products testified that, when ARG explained that, under BCAP, BAR's sale price would be lowered $8 per ton, Rolison was assured that ARG "had gotten approved, " showed them the ticket from the "test run" by another wood dealer, and told Rolison he would receive about $4 more per ton under BCAP if they sold to ARG. Malcolm Smith of Conecuh Timber was asked on cross-examination whether he understood that the reason ARG was "claiming a higher percentage of the wood as eligible" for a BCAP subsidy was because of the inclusion of material used to make black liquor. Smith responded: "None of that was ever mentioned in our meeting, nothing about black liquor. ... [ARG] told me that that was their formula for the BCAP. ... I didn't know anything about a formula." Mackey Bruce of Pea River was asked whether he knew anything about "the formula that [ARG] was giving" him to support the prices it quoted him. Bruce replied: "Absolutely not." He was asked whether ARG told him "they were running this risk trying to include black liquor in that." Bruce stated: "I had no idea." When Tommy Mosley of Pineville Timber expressed doubts that he would get a higher price after the BCAP subsidy was paid, ARG assured him that "'[i]t works'" and stated that ARG had "sent a test load through" and "'[t]hey paid it. Everything is fine.'" David Wright of THE Timber Company was induced to sell to ARG at its reduced price for BCAP because of ARG's assurance that, after the BCAP subsidy, "it was more money than the other mills the way they were doing their formula. They were the experts, you know. And so I was not the expert." The evidence at trial demonstrated that ARG represented to the wood dealers that they would receive a higher BCAP subsidy by selling to ARG, even though ARG's proprietary "formula" included a substantial amount of material that was ineligible for a BCAP subsidy.

         ARG's representations to the wood dealers that they would receive a BCAP subsidy, even if true for part of the wood products at issue, was not true as to material used to make black liquor. It is no defense that the statements ARG made were, at best, "half-true."

"'"To tell half a truth has been declared to be equivalent to the concealment of the other half. A partial and fragmentary disclosure, accompanied by the willful concealment of material and qualifying facts is not a true statement, and is as much a fraud as an actual misrepresentation, which, in effect, it is."'"

Jackson Co. v. Faulkner, 55 Ala.App. 354, 364, 315 So.2d 591, 600 (Civ. App. 1975) (quoting American Bonding Co. of Baltimore v. Fourth Nat'l Bank, 206 Ala. 639, 641, 91 So. 480, 482-483 (1921), quoting in turn 12 Ruling Case Law §§ 70-71)). See also Restatement (Second) of Torts § 529 (1977) ("A statement containing a half-truth may be as misleading as a statement wholly false."). The record is replete with examples of ARG misrepresenting how much of the wood dealers' wood material was eligible for BCAP subsidies, and therefore misrepresenting the total price the wood dealers would receive. ARG's formula for calculating BCAP subsidies based upon material used to make black liquor was material and, indeed, necessary to its efforts to induce the wood dealers to sell to ARG at a reduced price. We disagree, therefore, with the ARG defendants and hold that there was substantial evidence below from which to conclude that ARG's statements regarding whether the wood dealers' products were eligible for the BCAP subsidy were misleading, false, and material.

         Next, the parties dispute whether ARG's repeated characterization of its suspension from BCAP as "just a misunderstanding" was actionable as misrepresentation or was merely opinion or prediction. The ARG defendants argue that the suspension was a misunderstanding with the FSA and that describing it as such was merely a statement of ARG's opinion or a prediction that the FSA would eventually agree with ARG's position. For support, the ARG defendants cite Crowne Investments, Inc. v. Bryant, 638 So.2d 873, 877 (Ala. 1994), in which this Court held that "mere statement of opinion or prediction as to events to occur in the future" will not support a fraud claim, absent proof of an intent to deceive. In Crowne, this Court held that an insurance agent's statement, "'I think we found an answer to our problem in insuring'" his client, Mickey Kennedy, was not a statement of existing fact but rather "a statement of opinion" or, at most, "the expression of a belief that the company with which Kennedy applied, Inter-American Insurance Company, would issue Kennedy insurance in the future." Id. at 876, 877.

         In the present case, however, there was sufficient evidence from which to conclude that the ARG defendants' statements were not merely an opinion or a prediction about events to occur in the future. For instance, Mark Bond of ARG assured Ayres Forestry after ARG was suspended from BCAP that "[w]e are not really kicked out. Everything was legal. We got the formula approved by the FSA. Just a misunderstanding. We are going to get put back in the program." These statements described not future events but past actions by the FSA and the current status of ARG: that the FSA had approved ARG's "formula" for eligible materials and that ARG mills were not "really kicked out" of BCAP. In Crowne, this Court found it significant in determining whether the insurance agent's statement was mere opinion that he said he "thought" he had found life-insurance coverage for his client. By contrast, ARG's alleged statements about its BCAP suspension and status were categorical, with no qualifying words of opinion such as "we think" or the like. We conclude, therefore, that there was sufficient evidence introduced from which to conclude that the ARG defendants' statements about ARG's suspension from BCAP were statements of material fact and not merely opinion or a prediction about future events. The ARG defendants' first argument that their statements were true or immaterial is unconvincing.

         The ARG defendants' next argument is that the trial court erred in denying their motion for a JML because, they say, the alleged misrepresentations concerned acts or events to occur in the future, sounding in promissory fraud rather than misrepresentation. Promissory fraud, unlike misrepresentation, is a claim "based upon a promise to act or not to act in the future." Ex parte Moulton, 116 So.3d 1119, 1144 (Ala. 2013) (citations and quotation marks omitted). To succeed on a claim of promissory fraud, the ARG defendants note, plaintiffs must prove two elements in addition to the elements of misrepresentation, namely: "proof that at the time of the misrepresentation, the defendant had the intention not to perform the act promised, and ... proof that the defendant had an intent to deceive." Id. (citations and quotation marks omitted); Bennetton Servs. Corp. v. Benedot, Inc., 551 So.2d 295, 298 (Ala. 1989); Southland Bank v. A&A Drywall Supply Co., 21 So.3d 1196, 1210-12 (Ala. 2008).

         The ARG defendants argue that the complaint alleged promissory fraud instead of misrepresentation, that the wood dealers emphasized promissory fraud in their opening statements and in trial testimony, and that the wood dealers then "waived" their promissory-fraud claim by withdrawing their claim alleging deceit and by objecting to the ARG defendants' requested jury instruction on promissory fraud. For example, the ARG defendants focus on the representations alleged in the complaint that the wood dealers "would receive" the BCAP subsidies from the FSA; that those subsidies "would be" more than the reduction in price, which "would result" in higher profits for the wood dealers; and that, after ARG was suspended from BCAP, the ARG defendants "would pay" the matching BCAP subsidies even if the FSA did not. The ARG defendants point to similar statements by the wood dealers' attorneys in opening statements and by representatives of the wood dealers who testified at trial.

         The representations at issue here, argue the ARG defendants, are like the promises made by the bank in Southland Bank that the bank "would extend a loan" to the plaintiffs. Southland Bank, 21 So.3d at 1211. This Court in Southland Bank held that "a representation to lend money in the future is a promise to perform a future act" and not "a representation of an existing fact." Id. In fact, we noted in Southland Bank that "[t]he allegations in the complaint and the testimony at trial all contemplate representations of future performance on the part of the defendants." 21 So.3d at 1210 (emphasis added). Similarly, argue the ARG defendants, their alleged misrepresentations all relate to promises to perform a future act.

         The wood dealers respond that their misrepresentation claim is one of fraud in the inducement, not promissory fraud. "'"Fraud in the inducement consists of one party's misrepresenting a material fact concerning the subject matter of the underlying transaction and the other party's relying on the misrepresentation to his, her, or its detriment in executing a document or taking a course of action."'" Farmers Ins. Exch. v. Morris, [Ms. 1121091, Feb. 12, 2016] __So. 3d__, __ (Ala. 2016) (quoting Johnson Mobile Homes of Alabama, Inc. v. Hathcock, 855 So.2d 1064, 1067 (Ala. 2003), quoting in turn Oakwood Mobile Homes, Inc. v. Barger, 773 So.2d 454, 459 (Ala. 2000)). The wood dealers argue that promises of how much money someone would receive in the future based on the present state of facts sound in misrepresentation. They cite, among other cases, Standard Furniture Manufacturing Co. v. Reed, 572 So.2d 389 (Ala. 1990), in which the employer Standard Furniture argued that its representations to an employee, James Reed, about the amount of lump-sum retirement money Reed would receive if he retired sounded in promissory fraud. This Court disagreed, stating: "The agents of Standard Furniture represented a present fact: the amount Reed would receive in the future based upon the present state of the pension fund." 572 So.2d at 392. Therefore, this Court in Standard Furniture held that Reed "needed only to prove that the facts represented were false and that they were either intentionally or recklessly misrepresented." Id.

         The wood dealers also direct us to International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala. 1977). In International Resorts, this Court upheld a judgment on a fraud claim against real-estate developers where plaintiffs Wesley Lambert and his wife signed an installment-sales contract with defendants for a particular parcel of real estate designated and marked off as lot "S-4" but were later "reassigned" a different real-estate lot. Id. at 392. We held that there was sufficient evidence in the record "from which the jury could have concluded that the defendants represented to the plaintiffs that they were buying a particular piece of real property which the plaintiffs inspected and which was represented to them to be for sale at a particular price." 350 So.2d at 394. Similarly, the wood dealers argue, the ARG defendants represented to the wood dealers what they "would receive" based on an existing set of facts: that ARG's mills were qualified BCFs and that wood materials the wood dealers hauled to them would be eligible for BCAP subsidies because, in part, their "formula" had been "approved."

         Even if, as the ARG defendants argue, there was also evidence in the record below that sounded in promissory fraud, a claim of misrepresentation is not necessarily mutually exclusive with a promissory-fraud claim. We have upheld findings of liability for both misrepresentation and promissory fraud where the record below supported each claim. See, e.g., Target Media Partners Operating Co. v. Specialty Mktg. Corp., 177 So.3d 843, 868-69 (Ala. 2013) (plurality opinion) (affirming the submission to a jury of claims of fraudulent misrepresentation and promissory fraud); Bethel v. Thorn, 757 So.2d 1154, 1160-61 (Ala. 1999) (reversing dismissal of actionable claims of promissory fraud, fraudulent misrepresentation, and fraudulent suppression); and Pinyan v. Community Bank, 644 So.2d 919, 922 (Ala. 1994) (addressing, although defendant relied heavily on the fact that some of the misrepresentations were mere promises for the future, both ordinary fraud and promissory-fraud claims alleged in complaint because there were also misrepresentations as to existing fact). The only question here, however, is not whether evidence below tended to support promissory fraud (an issue we do not decide), but whether there was presented below substantial evidence from which a jury could conclude that the ARG defendants made misrepresentations of present, material fact. We have already concluded that the record supports a misrepresentation claim. We therefore find no error in the trial court's denial of a motion for a JML on this ground and agree with the trial court that, "regardless of whether [the wood dealers] may have also had an actionable promissory fraud cause of action, there was substantial evidence in front of the jury on all of the elements of the misrepresentation claims, the only tort claim that was submitted to the jury."

         B. Claims Against Landegger

         The ARG defendants argue that the trial court erred in denying Landegger's motion for a JML on the wood dealers' breach-of-contract and misrepresentation claims. We address the ARG defendants' arguments concerning each claim in turn.

         As to the breach-of-contract claim, the parties dispute whether the wood dealers actually asserted a breach-of-contract claim against Landegger, the ARG defendants being in the curious position of arguing that the wood dealers did assert such a claim. The wood dealers dispute this, and the trial court agreed with the wood dealers in its postjudgment order, holding that "there was no such claim in the case for the court to consider for purposes of Landegger's motion for [a JML]."

         To support their argument that a breach-of-contract claim against Landegger was essentially "smuggled" into this case and survives on appeal, the ARG defendants assert both that the complaint alleges and that the trial court charged the jury with a breach-of-contract claim against Landegger. As to the complaint, the ARG defendants argue that "the count for breach of contract demanded judgment against the 'Defendants, '" which, the ARG defendants argue, included Landegger. Count four of the amended complaint provides as follows, in relevant part:

"37. At all time herein, Defendants APP [Alabama Pine Pulp Company, Inc.], ARP [Alabama River Pulp Company, Inc.], and/or Fictitious Defendants A-L were under a contractual obligation to pay the timber or wood prices agreed upon between the [wood dealers], and Defendants, including any BCAP matching payment, including those payments as represented by Defendants Landegger, Harris, and Fictitious Defendants A-L, who had actual and apparent authority to bind Defendants APP and ARP and/or Fictitious Defendants A-L to those representations, and who did thereby bind Defendants APP and ARP and/or Fictitious Defendants A-L to those representations.
"38. Defendants APP and ARP and/or Fictitious Defendants A-L breached their contractual obligations by failing and refusing to properly pay the amounts due under their agreement with [the wood dealers] thereunder.
"....
"WHEREFORE, [the wood dealers] demand judgment against Defendants in an amount of compensatory damages as will be determined by a jury at trial of this cause, plus interest and costs."

(Emphasis added.) The ARG defendants point to one word from the complaint -- "Defendants" -- to demonstrate that count four asserted a breach-of-contract claim against Landegger. The ARG defendants give no further explanation, nor do they identify which of the 12 uses of the word "defendants" in count four includes Landegger.

         As a plain reading of count four indicates, the allegations therein refer only to "Defendants APP, ARP [now collectively ARG] and/or Fictitious Defendants A-L." In paragraph 38 only "Defendants APP and ARP and/or Fictitious Defendants A-L" are alleged to have "breached their contractual obligations" to the wood dealers. The only reference to Landegger anywhere in count four is the allegation in paragraph 37 that "Landegger, Harris, and Fictitious Defendants A-L" had "actual and apparent authority to bind" and "did thereby bind Defendants APP and ARP and/or Fictitious Defendants A-L to those representations." (Emphasis added.) Landegger and Harris, therefore, are expressly excluded from the group of defendants accused of breach of contract, that group being repeatedly articulated in count four as the predecessor entities to ARG "and/or Fictitious Defendants A-L." In this context, the concluding demand for "judgment against Defendants" in count four would most naturally be read to be seeking judgment against the defendants specified in count four.[8] The ARG defendants make no arguments otherwise, and their bare assertion that the complaint alleges a breach-of-contract claim against Landegger is entirely unconvincing.

         The ARG defendants also argue that this surreptitious breach-of-contract claim against Landegger survived the trial proceedings and was submitted to the jury. They point to two excerpts from the jury instructions where, according to the ARG defendants, the trial court "expressly instructed the jury that it could find against Mr. Landegger on this claim." The ARG defendants focus on three or four uses of the plural "Defendants" by the trial court in its lengthy oral instructions. The wood dealers respond that they reiterated numerous times leading up to trial that they were not bringing a breach-of-contract claim against Landegger, beginning with their response to Landegger's summary-judgment motion. The wood dealers assert that, in the context of the entire jury charge, the evidence at trial, and their concessions, the jury instructions cannot be read as importing a breach-of-contract claim against Landegger. Finally, the wood dealers argue, the ARG defendants failed to object to the jury charge or seek clarification thereof.

         It seems doubtful to us that a claim not found in the complaint and expressly disavowed by the plaintiffs before trial would somehow be formed whole cloth by a few lines in a lengthy jury instruction. But we need not decide such a question because, as the wood dealers note and the ARG defendants do not dispute, the ARG defendants made no specific and timely objection to these portions of the trial court's oral instruction.

"Based on Rule 51, [Ala. R. Civ. P., ] this Court has stated: '[T]o preserve his argument as to the jury instruction, [the appellant] must have: (1) objected before the jury retired to consider its verdict; (2) stated the matter that he was objecting to; and (3) supplied the grounds for his objection.'"

Chestang v. IPSCO Steel (Alabama), Inc., 50 So.3d 418, 433 (Ala. 2010) (quoting Ware v. Timmons, 954 So.2d 545, 558 (Ala. 2006)). To preserve for appellate review the issue of an allegedly erroneous instruction, an appellant "must adequately state specific grounds for his objection" at the close of the court's jury instructions, McElmurry v. Uniroyal, Inc., 531 So.2d 859, 860 (Ala. 1988), and thereby permit the trial court to correct any error immediately. Chestang, 50 So.3d at 433. The ARG defendants made no such objection to the trial court's instructions as to any breach-of-contract claim allegedly existing against Landegger.

         We therefore conclude that the ARG defendants failed to adequately preserve for appellate review the issue whether the trial court's jury instructions introduced a claim of breach of contract against Landegger. Having held here that there was no breach-of-contract claim asserted against Landegger in the amended complaint, we have no reason to conclude that the trial court erred in denying Landegger's motion for a JML on this issue.

         Next, the ARG defendants argue that Landegger made no misrepresentations in this case and that the trial court therefore erred in denying his motion for a JML on this claim. The parties do not dispute that Landegger never communicated directly with the wood dealers. The parties also concede that Landegger made the decisions that "ARG would (a) treat the portion of wood used to make black liquor as BCAP-eligible, and (b) pay the [w]ood [d]ealers the market price if the FSA did not pay as expected." The ARG defendants argue that, even so, neither decision constituted participating in a misrepresentation.

         The wood dealers, citing Crigler v. Salac, 438 So.2d 1375 (Ala. 1983), respond that regardless of whether Landegger communicated directly to the wood dealers, a corporate officer like Landegger may be found individually liable for directing and participating in a fraud. In Crigler, the plaintiffs were farmers who sued Paul Crigler, the principal owner of Modern Mix, Inc., asserting that Crigler was personally liable in the storing and alleged conversion of the plaintiffs' grain stored in Modern Mix's storage bins. This Court in Crigler held that a corporate officer "'may not participate in a tort perpetrated through the agency of a corporation, or in a fraudulent injury to another, without being civilly responsible.'" 438 So.2d at 1379-80 (quoting Rudisill Soil Pipe Co. v. Eastham Soil Pipe & Foundry Co., 210 Ala. 145, 150, 97 So. 219, 223 (1923)). The Crigler Court explained:

"In order to hold an officer of a corporation liable for the negligent or wrongful acts of the corporation, 'there must have been upon his part such a breach of duty as contributed to, or helped bring about, the injury; that is to say, he must be a participant in the wrongful act.' Fletcher's Cyclopedia of Corporations, § 1137 at 208."

438 So.2d at 1380. The Crigler Court concluded that the "evidence [was] sufficient to show that Crigler, in managing Modern Mix, authorized, directed, or actively participated in the wrongful conduct, i.e. the conversion of plaintiffs' grain." Id. The wood dealers argue that, like Crigler's actions, Landegger's actions here render him personally liable.

         Landegger was the owner of the company that operated the two ARG mills, and, as Harris stated at trial, Landegger "had the final word" on the major decisions to be made on the corporate level for the parent company and the ARG mill companies. The parties concede that Landegger approved the plan for ARG to certify as eligible for a BCAP subsidy the portion of wood used to make black liquor. Evidence introduced below also indicates that Landegger directly participated in conference calls with the USDA and learned that the USDA's interpretation of the BCAP materials list was such that material used for black liquor was ineligible for BCAP subsidies. Rynearson, ARG's chief financial officer and Landegger's son-in-law, warned him of the same. Landegger admitted to knowing the risk being taken, therefore, when he approved ARG's policy of certifying for a BCAP subsidy the portion of wood used to make black liquor.

         "'It is a well settled rule in this state that a person is liable for the torts which he or she commits, regardless of the capacity in which that person acts.'" Inter-Connect, Inc. v. Gross, 644 So.2d 867, 869 (Ala. 1994) (quoting Chandler v. Hunter, 340 So.2d 818, 822 (Ala. Civ. App. 1976)). Landegger certainly "cannot escape individual liability on the ground that he was acting in an official corporate capacity, " 644 So.2d at 869, or on the ground that he did not directly communicate with the wood dealers. The evidence in this case was sufficient for a jury to conclude that, in the alleged scheme of misrepresentation in this case, Landegger authorized and directed his companies and his companies' employees in at least one of the essential components of the scheme: the crucial decision that ARG would certify as eligible for BCAP subsidies wood material used to make black liquor. The trial court, therefore, properly denied Landegger's motion for a JML on the individual misrepresentation claim against him.

         C. Jury Instruction on Implied Contracts

         The ARG defendants argue next that the trial court erred in instructing the jury on both implied contracts and express contracts, which the ARG defendants argue are "generally incompatible." See Kennedy v. Polar-BEK & Baker Wildwood P'ship, 682 So.2d 443, 447 (Ala. 1996). According to the ARG defendants, they did not dispute in the trial court the existence of the express oral contracts but only the terms of those contracts, which made "recovery on a theory of implied contract ... improper." See GE Capital Aviation Servs., Inc. v. Pemco World Air Servs., Inc., 92 So.3d 749, 764 (Ala. 2012). Therefore, they allege, no jury charge on implied contract should have been given.

         The wood dealers respond that jury instructions on both implied contracts and express contracts were appropriate here because (1) the ARG defendants asserted counterclaims against the wood dealers alleging breach of an implied contract and (2) the ARG defendants "hotly contested" at trial the existence of an express contract. The wood dealers also note that in Kennedy, cited by the ARG defendants for the proposition that jury instructions on both implied contract and express contract are generally incompatible, this Court nevertheless went on to hold that both instructions may be sustained. See Kennedy, 682 So.2d at 447.

         The record shows that in the trial court the ARG defendants did dispute, or appeared to dispute, both the terms and the existence of an express contract. In their answer to the first amended complaint, the ARG defendants admitted "that the wood dealers entered into contracts to sell wood to be delivered to [ARG], " but they denied the wood dealers' assertions regarding the terms of those contracts. At trial, witnesses for the ARG defendants described the prices promised to the wood dealers as mere "estimates" or "mathematical examples, " and "not guarantees." On the other hand, the wood dealers testified that ARG promised them specific prices for their wood, testified about the prior course of dealing and the relationship between the parties, and described the general nature of the lumber industry, where agreements were often based on prior dealings. At the close of trial, the ARG defendants objected to a jury instruction on implied contract but filed in open court their own proposed jury instruction stating: "The [wood dealers] claim that the [ARG] defendants defrauded them, were negligent in contracting with them, and then breached the alleged contract. The [ARG] defendants deny that there was a contract, that they breached any alleged contract, or defrauded the [wood dealers]." (Emphasis added.) Finally, in closing arguments, one attorney for the ARG defendants concluded his portion of the arguments by stating plainly: "And when y'all go out and make your decision, there's no contract here. There's no contract. And there's certainly -- there's no fraud. And Ladies and Gentlemen, I'm going to ask you to return a verdict for all the defendants." (Emphasis added.)

         The ARG defendants concede that there was evidence below to support a claim alleging the existence of express oral contracts, but they do not dispute the wood dealers' argument that there was also evidence introduced below to support a claim alleging the existence of implied contracts. Instead, the ARG defendants appear to argue that a claim of breach of an implied contract is always improper when there is evidence of the existence of an express contract. Although generally mutually exclusive, claims of breach of both express and implied contracts may be alternatively submitted to a jury where both theories of contract were "highly disputed and remained a question of fact." Kennedy, 682 So.2d at 447. As this Court held in Kennedy:

"In this case, existence of an express contract (allegedly formed by Kennedy's acceptance by performance of Polar-BEK's unilateral offer) was highly disputed and remained a question of fact, as did the alternative existence of an implied contract. Thus, the law may recognize an implied contract where the existence of an express contract on the same subject matter is not proven. Thus, it was for the jury to decide whether an express contract existed, or an implied contract, and we conclude that the trial court properly submitted both alternative contract theories to the jury."

682 So.2d at 447. The ARG defendants simply ignore this portion of Kennedy.

         Moreover, in another case quoted by the ARG defendants, GE Capital Aviation Services, supra, this Court did not permit both claims of breach of express contract and of implied contract to proceed, not because it is never permissible, but because in that particular case the Court did not "find any evidence that would support an implied-contract theory." 92 So.3d at 764. However, in the present case, the parties disputed the terms of the alleged contracts between the parties, and, at times, the ARG defendants appeared to challenge even the existence of any contracts -- express or implied. We conclude, therefore, consistent with our holding in Kennedy, supra, that the trial court did not exceed its discretion in giving jury instructions on both alternative breach-of-contract theories -- express and implied -- to the jury.

         D. Denial of Continuance for Landegger and Excluding Portions of His Deposition

         The ARG defendants argue that the trial court erred in denying a continuance of the trial, which was scheduled and was held during the period of Landegger's home confinement in Connecticut resulting from his federal criminal conviction. The ARG defendants also argue that the prejudice of Landegger's absence was compounded by the trial court's error in excluding positive character evidence regarding Landegger, which, they assert, was triggered by the wood dealers' counsel impugning Landegger's character and "opening the door" to such evidence at trial.

         As to the first issue, the ARG defendants argue that they were denied a fair trial because of the denial of the continuance and Landegger's subsequent inability to personally defend himself and ARG at trial. On May 26, 2015, Landegger was sentenced to 60 days' imprisonment in New York followed by 6 months' home confinement in Connecticut. One month later on June 26, 2015, the ARG defendants filed a motion in the trial court to continue the scheduled trial until the following civil jury term in 2016. In their motion, the ARG defendants argued that "it does not appear that [Landegger] will be available to appear for trial before the end of February 2016, " that Landegger was "indispensable to the defense of this case, " and that his absence "would adversely affect the presentation of his case and the cases of the other defendants." The ARG defendants added in their motion that they "come to this court with hats in hand" because Landegger had "previously requested that this case be continued before he was sentenced, and that they agreed to an August 24 trial date." Landegger's home confinement began on August 24, 2015, the first day of the scheduled trial.

         On July 2, 2015, the trial court issued an order denying the ARG defendants' motion for a continuance. In its posttrial order, the ...


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