AFFIRMED IN PARTAND REVERSED AND REMANDED IN PART, Opinion FiledApril 30, 1996

In The 

## (&aurl ofAppeals 

## 3fiftlfItstrtrt at Qkxas at Dallas
No. 05-95-00281-CV COLLIN COUNTY, Appellant
V. COYJOHNSON, ETAL., Appellees

On Appeal from the 354th District Court Hunt County, Texas Trial Court Cause No. 54,955 OPINION Before Justices Morris, James, and Hankinson Opinion By Justice James 

### Collin County appeals a summaryjudgment infavor ofCoy Johnson, William Don Watson, and NadineWatson. In eightpoints of error, Collin County contends generallythe trial court erred in granting summary judgment because: (1) the motion for summary judgment did not address all ofCollin County's claims; (2) Collin County had a statutory%tj^



### lien and a contract with the insuredgiving it a subrogation right; (3) Collin Countywas not 

### required tointervene in theunderlying lawsuit; (4)the doctrine ofcollateral estoppel does not apply; and (5) there was no evidence or, alternatively, insufficient evidence to show Nadine's damages exceededherrecovery. Collin County also contends thetrial court erred 

### indenying its motion for summaryjudgment. We affirm in partand reverse and remand in part.
BACKGROUND 

### William Watson was an employee of Collin County. William received health insurance forhimselfand hiswife, Nadine, from the Collin CountyInsurance Fund. Nadine 

### was injured in an automobile accident onAugust 10, 1989. TheCollin County Insurance 

### Fundpaid Nadine's medical expenses in theamount of$30,279.82. OnFebruary 12, 1990, William signed a subrogation agreementinconnectionwith theinjuries sufferedbyNadine. Nadinefiled apersonalinjurylawsuit againstTexomaAdvertising Co.,Inc. and Jerry Andrew Rodaway. William was not a party to this lawsuit. By letter dated February 22, 1990, CollinCountynotifiedtheWatsons andAmericanStatesInsurance Company, Texoma Advertising's insurer, of its subrogation interest. A mediation session was scheduled for 

### September 26, 1992. On September 24, 1992, Kevin Martin, Risk Manager for Collin County, sent an overnight letter to Johnson, Nadine's attorney. Martin's letter notified Johnson of Collin County's subrogation interest. 

### Thepersonal injury lawsuit settled for$275,000. Theparties put$30,279.82 into the

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### registry of the court. Shortly after the mediation, Collin County contacted American States and learned that the money had been placed into the registry of the court. On October 6, 1992, Nadine filed a motion to release funds. The trial court granted the motion and released the $30,279.82 to Nadine. Martin sent letters to Johnson on December 1, 1992 and January 4, 1993 inquiring 

### why Collin County had not received the $30,279.82 that had been placed in the registry of the court. Johnson sent a reply letter on January 8, 1993 stating that the trial court had released the funds to Nadine. On February 26, 1993, Martin sent Johnson a letter 

### demanding payment of $30,279.82. This lawsuit followed. Appellees and Collin County both moved for summary judgment. The trial court granted appellees' motion and denied Collin County's motion.
STANDARD OF REVIEW The standard of review in a summaryjudgment case is well established. See Tex. R. Civ. P. 166a(c); Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); Rodriguez v.Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex. 1989); Nixon v. Mr.PropertyManagement Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985); Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983); City of Houston v. ClearCreekBasin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979); Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). When the trial court does not specify the grounds upon which it grants summary judgment, we affirm the trial court's 

### judgment if any of the movant's grounds support the summary judgment. Carr v. Brasher,

-3-776 S.W.2d 567, 569 (Tex. 1989). If a movant does not show its entitlement to judgment
as a matter of law, we must remand the case to the trial court. Gibbs v. General Motors Corp., 450 S.W.2d 827, 829 (Tex. 1970). 

### When both parties move for summary judgment, each party "bears the burden of establishing that it is entitled to judgment as a matter of law." Guynes v. Galveston County, 861 S.W.2d 861, 862 (Tex. 1993). However, if the trial court grants one motion and denies the other, we may render the judgment the trial court should have rendered. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988). JOHNSON AND THE WATSON'S MOTION FOR SUMMARY JUDGMENT

In its first point of error, Collin County contends generally that the trial court erred in granting appellees' motion for summary judgment. Appellees moved for summary judgment on the grounds of failure to intervene, collateral estoppel, and no right of equitable subrogation.
A. Intervention In its fourth point oferror, Collin County contends the trial court erred in granting summaryjudgmentbecause it was notrequired to intervene in the underlying personal injury lawsuit. We agree. Appellees did not cite any authority for this proposition in the trial 

### court. Our own research fails to find a case requiring intervention in a fact situation similar to this case. Collin County relies on aworker's compensation case holding that intervention 

### is not necessary. Travelers Ins. Co. v.Seidel, 705 S.W.2d 278, 281 (Tex. App.—SanAntonio

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1986, writ dism'd). Seidel points to the fact that the statute providing worker's compensation carriers with the right to reimbursementis silent as to intervention. Id. Here, too, the statute providing political subdivisions with a right to subrogation is silent as to intervention. See Tex. Loc. Gov't Code Ann. § 172.015 (Vernon Supp. 1996). Because case law does not require intervention in this situation and the statute providing the right to subrogation is silent as to intervention, we conclude Collin County was not required to intervene in the underlying lawsuit in order to bring a subrogation action. Collin County's fourth point of error is sustained. B. Collateral Estoppel In its fifth point of error, Collin County contends the trial court erred in granting summaryjudgment because it was not collaterally estopped from seeking subrogation. To invoke the doctrine of collateral estoppel, a party must establish: (1) the facts sought to be litigated in the present action were fully and fairly litigated in the prior action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action. Bonniwellv. BeechAircraft Corp., 663 S.W.2d 816, 818 (Tex. 1984). In applying these factors, we conclude the doctrine of collateral estoppel does not apply to this case. First, although Collin County's subrogation right was litigated at the 

### hearing on the motion to release funds, Collin County was not present at that hearing nor was it informed of the hearing. Second, Collin County's subrogation right was not essential

-5-to the judgment in Nadine's personal injury action. Third, the parties were not cast as adversaries in the first action because Collin County was not a party to the first action. The 

### factors necessary to invoke the doctrine of collateral estoppel do not exist in this case. The trial court erred in granting appellees' motion for summary judgment on the ground that 

### Collin County is collaterallyestoppedfrom seeking subrogation. We sustain Collin County's fifth point of error. C. Equitable Subrogation Right 

### In Collin County's seventh point oferror, it contends the trial court erred in granting summary judgment on the ground that it does not have an equitable right of subrogation. 

### Appellees contend Collin County has no equitable right of subrogation because Nadine's damages exceeded her recovery. Insurers have a right of equitable subrogation to prevent an insured from receiving 

### a double recovery. Ortiz v. Great Southern Fire &Cas. Ins. Co., 597 S.W.2d 342, 343 (Tex. 1980). An insurer's right to subrogation derives from the rights of the insured and islimited to those rights. Interstate FireIns. Co. v.First Tape, Inc., 817 S.W.2d 142, 145 (Tex. App.- Houston [1st Dist.] 1991, writ denied). Recovery of medical expenses is community property. Graham v. Franco, 488 S.W.2d 390, 396 (Tex. 1972); Dawson v. Garcia, 666 S.W.2d 254, 266 (Tex. App.--Dallas 1984, no writ). Assuming Nadine did recover for past medical expenses, then William did receive a double recovery and Collin County does have
a subrogation right.

-6-Collin County has the burden to show that Nadine did recover for past medical 

### expenses. See Ortiz, 597 S.W.2d at 344. In Ortiz, a fire damaged the Ortiz home and its contents. The Ortizes purchased a fire insurance policy on their house from Great Southern Fire and Casualty Insurance Company. They did not purchase insurance covering the 

### contents of their house. Great Southern paid $4,000 for repairs to the house. The Ortizes sued Stacy-Mason, Inc. alleging the fire was caused by the negligent placement of carpet padding. They alleged damages in the amount of at least $4,000 to their house and at least 

### $11,614 to their personal property. The parties settledfor $10,000. The trial courtgranted Great Southern's subrogation 

### claim for $4,000. Id. at 343. The court of appeals affirmed. The supreme court reversed, holding that an insurer is not entitled to subrogation ifthe insured's loss is in excess of the amounts recovered from the insurer and the third party causing the loss. Id. However, if any portion of the settlement agreement is intended as compensation for damage covered by the insurer, the insurer would be entitled to subrogation to the extent that the sum of insurance collected plus the amount allocated in the settlement agreement to the covered damage exceeded the insured's loss. Id. at 344. It is the insurer's burden to show what amount, if any, ofthe settlement proceeds was allocated to the covered loss. Id. Because 

### Great Southern failed to show what portion, if any, of the $10,000settlementwas allocated for real property loss, it did not have a subrogation right to the settlement proceeds. Id. We do not know what damages Nadine sought in her lawsuit. In her motion to

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### release funds, Nadine outlined damages inexcess of $1million. Of that amount, $43,101.01 was for past medical expenses. Nadine settled for $275,000. Collin County had the burden to show what portion, if any, of that settlement amount was intended as recovery for past medical expenses. See Ortiz, 597 S.W.2d at 344. 

### Appellees contend that equitable subrogation does not apply in this case because 

### Nadine's damages exceeded her recovery. After the parties settled, $30,279.82 was placed 

### into the registry of the court. That amount was the exact amount that the Collin County Insurance Fund paid for Nadine's medical expenses. Collin County contends that the 

### placement of the moneyinto the registry of the courtshows that $30,279.82 of the $275,000 settlementwas allocated for past medical expenses. We conclude that a fact issue has been raised precluding summaryjudgment on this ground. We sustain Collin County's seventh point of error.
D. Conclusion We conclude the trial court erred in granting appellees' motion for summary judgment. Accordingly, we sustain Collin County's first, fourth, fifth, and seventh points of
error. Because of our disposition ofthese points oferror, we do not reach Collin County's second, third, and sixth points of error. COLLIN COUNTY'S MOTION FOR SUMMARY JUDGMENT In its eighth point of error, Collin County complains of the denial of its motion for summaryjudgment. In its second amended petition, Collin County raised nine causes of

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### action: (1) breach of contract by William; (2) tortious interference by all appellees; (3) 

### violation of the deceptive trade practices act by Johnson; (4) fraud by all appellees; (5) conversion by all appellees; (6) negligence by all appellees; (7) negligent and intentional misrepresentation by all appellees; (8) civil conspiracy by all appellees; and (9) attorney malpractice by Johnson. Collin County sought summaryjudgment on all of its claims. The summaryjudgment evidence consisted of: (1) the subrogation agreement signed 

### by William; (2) the February 22, 1990 letter from Martin to American States; (3) the September 24, 1992overnight letterfrom Martin to Johnson; (4) the December 4, 1992 and 

### January 4, 1993 letters from Martin to Johnson; (5) the January 8, 1993 letter from Johnson to Martin with both motion and order to release funds attached; (6) the January 20, 1993 

### letter from Martin to Johnson; (7) the Martin affidavit; and (2) the two Johnson affidavits. A. Attorney Malpractice Collin County contends Johnson was negligent, committing attorney malpractice. 

### Specifically, Collin County contends Johnson was negligent in: (1) failing to tender the $30,279.82 owed to Collin County; (2) failing to inform Collin County that Nadine filed a 

### motion to release funds; (3) failing to advise Collin County of a conflict of interest; (4) failing to pay the money recovered on Collin County's behalfupon request; (5) failing to advise Collin County he would not represent it at the mediation; and (6) failing to advise Collin County that he would not undertake representation of Collin County. Johnson counters that he never had an attorney-client relationship with Collin County.

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A cause of action for attorney malpractice is based on negligence. Cosgrove v. 

### Grimes, 11A S.W.2d 662, 664 (Tex. 1989). To maintain an attorney malpractice action 

### against Johnson, Collin County had to establish that it was Johnson's client. Parker v. Carnahan, 772 S.W.2d 151, 156 (Tex. App.-Texarkana 1989, writ denied). The legal relationship of attorney and client is purely contractual and results from the mutual agreement and understanding of the parties concerned. Id. The attorney-clientrelationship may be either express or implied from the conduct of the parties. Id. It is sufficient ifboth parties, explicitly or by their conduct, manifest an intention to create an attorney-client relationship. Id. In the absence of evidence that an attorney knew that the parties had assumed that he was representing them in a matter, the attorney has no affirmative duty to inform the party that he is not the party's attorney. Dillardv.Broyles, 633 S.W.2d 636, 643 (Tex. App.- -Corpus Christi 1982, writ refd n.r.e), cert, denied, 103 S. Ct. 3539 (1983). An attorney may be obligated to inform a party he is not representing the party even though no facts prove an attorney-client relationship. See Parker, 772 S.W.2d at 157. This duty to advise arises if the fact finder determines that the attorney was aware or should have been aware that the attorney's conductwould have led a reasonable person to believe that he was being represented by the attorney. Id. Where there is no evidence that the attorney was aware 

### the party assumed that he was the party's attorney in the matter, no duty to affirmatively deny the representation arises. Dillard, 633 S.W.2d at 643.

-10-To support its position that an attorney-client relationship existed, Collin County relies on Martin's affidavit, Martin's September 24, 1992letter to Johnson, and the motion to release funds. In his affidavit, Martin states that it was his understanding and good faith beliefthat Johnson represented Collin County at the mediation. Martin's good faith belief
was apparently based on Johnson's failure to decline to represent Collin County. Two days prior to the mediation, Collin County sent its first letter to Johnson informing him of its subrogation interest. This letter states, in part, "We wish to recover the amount we have paid out, along with any attorney fees you may be charging us for this recovery." Collin County also relies on the language in the motion to release funds that alternatively requests 

### recovery of attorney's fees in the event the trial court determined that Collin County was entitled to a subrogation right. Johnson filed two counter affidavits, one attached to appellees' motion for summary judgment and the other attached to their response to Collin County's motion for summary judgment. In his affidavits, Johnson denies the existence ofan attorney-client relationship. Johnson always stated to any representative ofCollin County that he was not representing Collin County. Johnson stated that the money was placed into the court registry at the insistence of Texoma Advertising and Rodaway. Johnson and Nadine consistently maintained that Collin County did not have a subrogation interest in the money. The record is devoid of any facts that Johnson knew or should have known Collin 

### County believed Johnson represented it in the mediation or thereafter. Johnson was one

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### ofseveralpersons CollinCountyadvisedofits subrogationinterest. CollinCountycontacted American States Insurance more than two years prior to contacting Johnson. After the 

### mediation, Collin County contacted American States Insurance, notJohnson, to determine the outcome. This conduct ofCollin Countyindicates that it waslooking toAmerican States Insurance rather than to Johnson to protect its subrogation interest. This evidence fails to establish as a matter of law that Collin County and Johnson, 

### through their conduct, manifested anintent tocreate anattorney-client relationship. This evidence also fails to establish as a matter of law that Johnson had an affirmative duty to 

### inform Collin County that hewas not itsattorney. SeeDillard, 633 S.W.2d at 643. Because 

### Collin County failed to prove as a matter oflaw that an attorney-client relationship exists between Johnson and Collin County, Collin County is not entitled to summaryjudgment on its claim of legal malpractice. B. Violation ofthe Deceptive Trade Practices Act 

### Collin County contends Johnson violated thedeceptive tradepractices actwhen (1) herepresented to Collin County that hewould represent its interests at themediation and (2) hefiled themotiontorelease funds andobtained an orderreleasingthefunds toNadine without giving Collin County priornotice. A party maybe heldliable under the deceptive 

### tradepractices actif: (1) hefails to disclose informationto a consumer concerning services which was known at the time of the transaction; (2) if such failure was intended to induce the consumer into a transaction; and (3) the consumer would not have entered into the

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### & (b)(23) (Vernon 1987 & 1996Supp.). A consumer is someone who seeks or acquires by 

### purchase or lease, anygoods or services. Tex. Bus. &Com. Code Ann. § 17.45 (4) (Vernon 1987). The deceptive trade practices act does include legal services. DeBakey v.Staggs, 612 S.W.2d 924, 925 (Tex. 1981) (per curiam). A consumer of legal services is someone who 

### either purchases or has an agreement to purchase legal services. SeeRoberts v.Burkett, 802 S.W.2d 42, 47 (Tex. App.-Corpus Christi 1990, no writ). We previously held that Collin County failed to prove an attorney-client relationship existed between itself and Johnson. Collin County has likewise failed to prove as a matter 

### of lawthatit eitherpurchased or had an agreement to purchase legal services from Johnson. See Roberts, 802 S.W.2d at 47. Without proving consumer status, Collin County was not entitled to summaryjudgment on its cause of action under the deceptive trade practices act.
C. Breach ofContract Collin County asserts William breached the contract when Nadine obtained the release of the funds from the registry of the court. Collin County had a subrogation 

### agreement with William. Pursuant to that agreement, William agreed to repay the Collin County Insurance Fund any money he or his dependent may recover from a third party as 

### reimbursement for medical expenses paid by Collin County. The elements of a breach of contract claim are: (1) a contract between the parties; (2) a breach by the defendant; and 

### (3) damages resulting from the breach. Snyderv. EanesInd.SchoolDist., 860 S.W.2d 692,

-13-695 (Tex. App.-Austin 1993, writ denied). 

### William's duty under the subrogation agreement was to repay the Collin County Insurance Fund in the event he or Nadine recovered from a third person for the damages 

### Nadine sustained in the August 10, 1989 automobile accident. Collin County alleged William breached his agreement when the $30,279.82 was released to Nadine. Nadine's obtaining the release of the money did not constitute a breach of the subrogation agreement 

### byWilliam, because William's duty under his contract withCollin County arose only after he or Nadine received the funds. Because Collin County failed to allege facts to establish
a breach of William's contract with Collin County, the trial court properly denied Collin County's motion for summary judgment on its breach of contract cause of action.
D. Tortious Interference 

### Collin County contends Johnson, acting with malicious intent, induced William to 

### breach his subrogation agreement, damaging Collin County in the amount of $30,279.82. Further, Collin County alleges that appellees conspired by concerted action to cause the breach of contract that resulted in its damages. 

### To establish tortious interference with a contract, a plaintiff must show: (1) a contract existed that is subject to interference; (2) the act of interference was willful and intentional; (3) such intentional act was a proximate cause of the plaintiff's damages; and 

### (4) actual damage occurred. Central Savings &Loan Ass'n v. Stemmons Northwest Bank, NA., 848 S.W.2d 232, 241 (Tex. App.-Dallas 1992, no writ). A person cannot tortiously

•14-interfere with his own contract. FrostNat'IBank v. Matthews, 713 S.W.2d 365, 369 (Tex. 

### App.—Texarkana 1986, writ ref'd n.r.e.). 

### The summaryjudgmentrecord is devoid of any evidence of awillful interferencewith the subrogation agreement. Collin County failed to establish as a matter of law the 

### necessary elements of its tortious interference cause of action. The trial court properly denied summaryjudgment on Collin County's tortious interference cause of action.
E. Fraud 

### Collin County contends all appellees committed fraud when they concealed the motion to release funds. The elements of fraud are: (1) a material representation, which was false, and which was either known to be false when made or was asserted without 

### knowledge of its truth; (2) that was intended to be acted upon; (3) that was relied upon; and (4) that causedinjury. Sears, Roebuck &Co. v. Meadows, 877 S.W.2d 281, 282 (Tex. 1994) (per curiam). 

### The summaryjudgment evidence shows that Johnson, on behalf of Nadine, filed a motion to release funds and that Collin County was unaware of the filing. This evidence alone does not establish as a matter oflaw the elements offraud. The trial court properly denied summaryjudgment on Collin County's cause of action for fraud.
F. Conversion 

### Collin County contends appellees committed conversion when they obtained release of the $30,279.82 that had been set aside for Collin County. Conversion is the wrongful

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### exercise of dominion and control over another's property in denial of or inconsistent with 

### his rights. Tripp VillageJoint Venture v. MBankLincoln Centre, 11A S.W.2d 746, 750 (Tex. App.—Dallas 1989, writ denied). An action for conversion ofmoney will lie if the money 

### can beidentified as a specific chattel. Edlundv. Bounds, 842 S.W.2d 719, 727 (Tex. App.- Dallas 1992, writ denied). An action forconversion ofmoneywill not lie if anindebtedness can be discharged by the payment of money generally. Id. 

### Nadine consistently disputed Collin County's right to the $30,279.82 in the court's 

### registry. Collin County's claim forconversion fails because itfailed to establish ownership of the funds in the court's registry. Accordingly, the trial court properly denied summary judgment on Collin County's cause of action for conversion. G. Negligence 

### Collin County contends appellees were negligent infailing to notify it of the motion to releasefunds and the hearing on the motion to releasefunds. The elements ofnegligence are a duty owed by one person to another, a breach of that duty, and damagesproximately 

### caused by the breach. Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994). The summary judgment evidence fails to establish as a matter of law that appellees had a duty to notify Collin County of the motion to releasefunds and the hearing thereon. For this reason, the trial court properly denied Collin County's motion for summaryjudgment on its negligence

cause of action.

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H. Misrepresentation 

### CollinCountycontendsthatappellees' conductinobtainingrelease ofthe $30,279.82 from the trial court's registry constituted misrepresentation. The elements of 

## misrepresentation are: (1) the representationis madebythe defendantin the course ofits business or in a transaction inwhich it has apecuniary interest; (2) the defendant supplies 

### false information as aguide to others; (3) thedefendant did not exercise reasonable care 

### inobtaining or communicating the information; and (4) the plaintiff incurs damages by 

## justifiablyrelying on the representation. FirstInterstateBankofTexas v. SB.F.L, Inc., 830 S.W.2d239, 245 (Tex. App.-Dallas 1992, no writ). 

### The summaryjudgmentevidence does notestablish as amatter oflawthat appellees 

## suppliedfalse informationto either Collin County orthe trial court. Collin County did not establishits entitlementtosummaryjudgmentonits misrepresentation cause ofaction. The 

### trial court properly denied Collin County's motion for summary judgment on its misrepresentation claim. I. Conspiracy 

### Collin County contends appellees committed civil conspiracy by making claims for 

### medical payments under the Collin County Insurance Fund, claiming to represent Collin County's interest atthe mediation, andfiling afalse motiontorelease funds. The elements ofcivil conspiracy are: (1) two ormore persons; (2) anobject to beaccomplished; (3) a meeting of theminds on the object orcourse ofaction; (4) one ormore unlawful, overt

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### acts; and (5) damages as a proximate result. Central Savings &Loan Ass'n, 848 S.W.2d at
241. 

### The summaryjudgment evidence does not establish as a matter of law that appellees engaged in any unlawful act. There is no evidence that the motion to release funds contained false statements. The evidence before the trial court at the summaryjudgment 

### hearing did not establish Collin County's entitlement to summary judgment on its civil conspiracy cause of action. 

### We conclude the trial court properly denied Collin County's motion for summary judgment. We overrule Collin County's eighth point of error. CONCLUSION 

### We affirm that portion of the trial court's judgment denying Collin County's motion for summary judgment. We reverse that portion of the trial court's judgment granting 

### appellees' motion for summary judgment. We remand this cause to the trial court for proceedings consistent with this opinion.

Do Not Publish Tex. R. App. P. 90 950281F.U05

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