Opinion
Case No. 09-18085 Adversary Case No. 10-1069
02-03-2012
In Re KENNETH T. MULLEN, JR. RITA M. MULLEN Debtors KEN BUILDERS SUPPLY, INC. Plaintiff v. KENNETH T. MULLEN, JR. RITA M. MULLEN Defendants
This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
_____________
Jeffery P. Hopkins
United States Bankruptcy Judge
Chapter 7
Judge Hopkins
MEMORANDUM OF DECISION
ON JUDGMENT OF NONDISCHARGEABILITY
This is an action to determine the dischargeability of debt arising from the Defendants' operation of a business. Based upon the evidence presented at trial, the Plaintiff is entitled to a nondischargeable judgment in the amount of $87,023.86.
FACTS
The Defendants, Kenneth and Rita Mullen, are chapter 7 debtors. Ken Mullen is a 25% shareholder of Dutch Mullen Construction, Inc. ("Mullen Construction"). Mullen Construction performed interior finish work in the construction industry. It is no longer in business. The Plaintiff, Ken Builders Supply, Inc. ("Builders Supply"), supplied Mullen Construction with materials on credit.
Mullen Construction was a family business. In addition to Ken Mullen, his brother and his parents each owned a 25% interest in the company. The parents retired from the business in 2002, retaining their equity interest. Thereafter, Ken Mullen operated Mullen Construction while his brother worked as the field superintendent. Ken Mullen handled sales, billing, receivables, payables and supplier relations. Rita Mullen provided clerical support. She was not an owner or officer of Mullen Construction.
Mullen Construction and Builders Supply enjoyed a ten to fifteen year relationship. When Mullen Construction payables to Builders Supply aged more than ninety days ("Overdue Payables") Ken Mullen would execute a personal promissory note in favor of Builders Supply for the Overdue Payables. This occurred on at least three occasions. When it occurred Builders Supply would reclassify the indebtedness as a note receivable owed by Ken Mullen, not Mullen Construction. In every instance except the last, the notes were paid in full with only a few missed payments along the way.
The final note was executed on February 6, 2008. Both Ken Mullen and Rita Mullen signed this note. The February 6, 2008 note ("Note") obligated the Mullens to pay $195,000, being the approximate amount of the Overdue Payables at the time. The Mullens' payments on the Note were sporadic.
Subsequent to the execution of the Note, Mullen Construction made payments on two credit card accounts in the name of Rita Mullen and one credit card account in the name of Mr. & Rita Mullen. The payments totaled $87,023.86. Rita Mullen made the payments at the direction of Ken Mullen.
In February of 2009, Builders Supply asked Mullen Construction to provide a list of its pending receivables. When deciding whether to continue providing goods on credit, Builders Supply based its decision upon this information. Ken Mullen responded by providing a hand-written list of receivables outstanding as of February 20, 2009, and receivables to be billed by the end of March 2009 ("Receivables List"). The Receivables List itemized the outstanding receivables by customer. At the time, Builders Supply did not contact any of the customers listed to verify the information.
In March of 2009, Builders Supply received a letter from Ken Mullen, acting on behalf of Mullen Construction. The letter proposed a "business plan" whereby Mullen Construction would repay Builders Supply for "120 day old invoices" over a period of thirty-six months ("Business Plan"). The Business Plan also stated an intent to resume monthly payments on the Note, which Ken Mullen conceded to be in arrears.
The Mullens filed a chapter 7 petition on December 2, 2009. By that time, Mullen Construction was closed and owed $339,776.19 to Builders Supply. Additionally, the Mullens owed $124,822.00 to Builders Supply on the Note.
ISSUE
The issue presented is whether Builders Supply is entitled to a nondischargeable judgement pursuant to 11 U.S.C. § 523(a)(2) and/or (6).
DISCHARGE EXCEPTIONS STRICTLY CONSTRUED
Discharge exceptions are strictly construed against the creditor, who bears the burden of proof by a preponderance of the evidence. In re Rembert, 141 F.3d 277, 281 (6th Cir. 1998).
PREDICATE ACTS
Builders Supply predicates its claims on four acts: (1) the Mullens' execution of the Note; (2) Mullen Construction's submission to Builders Supply of the Receivables List, prepared and tendered by Ken Mullen; (3) Mullen Construction's submission to Builders Supply of the Business Plan, prepared and tendered by Ken Mullen; and (4) Mullen Construction's payment of the Mullens' credit card debt, by Rita Mullen at the direction of Ken Mullen.
SECTION 523(A)(2)
Three of the predicate acts involve a statement in writing. The Court will address the written statements first.
I. Section 523(a)(2)(B)
Builders Supply argues that each of the three writings misrepresented the Mullens' and/or Mullen Construction's financial condition. Written statements of financial condition must be analyzed under § 523(a)(2)(B) alone, not § 523(a)(2)(A). See CSM Fed. Credit Union v. Lange (In re Lange), 40 B.R. 554, 556 (S.D. Ohio 1984) (noting mutual exclusivity of subsections (A) and (B), as provided by legislative history); accord In re Lauer, 371 F.3d 406, 413 (8th Cir. 2004); In re Barrack, 217 B.R. 598, 605 (B.A.P. 9th Cir. 1998).
The five elements of a § 523(a)(2)(B) claim include: (1) a written statement; (2) that is materially false; (3) concerning the financial condition of the debtor or an insider; (4) upon which creditor reasonably relied; and (5) published with an intent to deceive. In re Kakde, 382 B.R. 411, 419 (Bankr. S.D. Ohio 2008).
Builders Supply failed to prove that any of the written statements were false.
A. The Note
Builders Supply does not suggest that the express terms of the Note were false. It simply argues that the Mullens never intended to pay the Note, thereby misrepresenting their ability to pay. Ken Mullen testified to the contrary. At the time of execution, Ken Mullen believed that Mullen Construction could and would repay the debt. This is consistent with the payment history on the two prior notes. Moreover, the Mullens made substantial payments on the Note, reducing the principal balance from $195,000 to $124,822.
B. The Receivables List
Jill Detrick, the credit manager for Builders Supply, attempted to verify the accuracy of the Receivables List after the Mullens filed their bankruptcy petition. She discovered that at least one of the listed accounts had been paid by that time, in December of 2009. Yet, there is no proof that any of the accounts had been paid at the time the Receivables List was submitted to Builders Supply in March of 2009.
Ms. Detrick acknowledged that: (1) she did not audit the Receivables List in March; (2) she did not know whether the Receivables List was correct in March; and (3) one would expect March receivables to be paid by December, in the ordinary course of business.
C. The Business Plan
Builders Supply believes the Business Plan sets forth a false payment amount and/or a false cash flow representation. The Business Plan states that Mullen Construction proposes to pay Builders Supply $8,478 for thirty-six months to retire invoices older than 120 days. It also states an intent to resume payments on the overdue Note.
Like the Note, it is difficult to say that the terms of the Business Plan are false. It is merely an offer to refinance, which was never formally accepted by Builders Supply. Similar to the Note, Builders Supply believes there was no intent to comply with the terms. To the contrary, there is evidence of an attempt to comply. The Business Plan lists the balance of the Note as $168,000. Approximately nine months later, when the Mullens filed their bankruptcy petition, the balance of the Note had been paid down to $124,822.00.
II. Section 523(a)(2)(A)
The single predicate act that did not involve a written statement is Mullen Construction's payment of the Mullens' credit card debt. The credit card payments will be addressed under § 523(a)(6).
III. No Proof of Property Obtained by Alleged Fraud
The greatest impediment to Builders Supply' claims under either subsection of § 523(a)(2) is its failure to prove the amount of goods, if any, delivered to Mullen Construction in reliance upon the alleged fraud. A debt related to the provision of goods on credit is nondischargeable under § 523(a)(2) only "to the extent" that goods were "obtained by" conduct governed by subsections (A) or (B).
"A discharge . . . does not discharge an individual debtor from any debt . . . for money, property, services, or . . . credit . . . to the extent obtained by [conduct governed by subsections (A) or (B)]." § 523(a)(2)(emphasis added). The phrase "to the extent obtained by" modifies the phrase "money, property, services, or . . . credit." Cohen v. De La Cruz, 523 U.S. 213, 218 (1998). Therefore, "the exception encompasses 'any debt . . . for money, property, services, or . . . credit, to the extent [that the money, property, services, or . . . credit is] obtained by' fraud." Id. The creditor must prove "that specific money or property has been obtained by fraud[.]" Id. (emphasis added). Thereafter, any debt that is "traceable to that sum" is nondischargeable. Id. at 219.
The parties stipulated the total debt owed by Mullen Construction and the Mullens. But that is a different matter from the amount of goods delivered in reliance upon the alleged fraud. For example, the record provides that the Mullens owe $124,822. This debt is related to the Note, which was a promise to pay the overdue debt on goods delivered prior to the execution of the Note or the submission of the Receivables List and Business Plan. Similarly, the Business Plan references a $305,232.53 debt for goods previously delivered. Builders Supply needed to provide testimony or exhibits establishing the amount of goods delivered subsequent to the alleged fraud. It failed to do so.
Builders Supply filed a pretrial exhibit list that included an account statement. See Docs. 22 & 31. In advance of trial Builders Supply provided the Court with unfiled courtesy copies of the proposed exhibits. Proposed Exhibit 9 is an account statement. The account statement appears to provide an itemization of all unpaid invoices, indicating the date and amount of each invoice. Builders Supply never moved for the admission of the exhibit at trial. Therefore, it is not part of the record. Even if the exhibit had been admitted, it does not indicate the delivery date of the goods.
IV. Section 523(a)(2) Conclusion
Strictly construing § 523(a)(2) against Builders Supply, the Court finds no basis for a nondischargeable judgment under this section.
SECTION 523(A)(6)
Section 523(a)(6) renders nondischargeable debts for "willful and malicious injury." A debt is discharged unless both willfulness and maliciousness are established. In re Markowitz, 190 F.3d 455, 463 (6th Cir. 1999). Willfulness requires proof that the actor desired to cause the injury or believed that the injury was substantially certain to result. Id. at 464. Maliciousness requires an act done "in conscious disregard of one's duties or without just cause or excuse." Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir. 1986).
I. The Note, Receivables List, and the Business Plan
With respect to the execution of the Note and the submission of the Receivables List and the Business Plan, there is no proof of willfulness. Upon review of the record, the Court does not believe that the Mullens executed the Note, the Receivables List or the Business Plan with the intent to injure Builders Supply. Nor is the Court persuaded that the Mullens believed an injury to Builders Supply was substantially certain to occur. On two previous occasions, Ken Mullen successfully used a promissory note to retire Overdue Payables. Ken Mullen believed that Mullen Construction could and would repay the last Note. Moreover, substantial payments were made to Builders Supply subsequent to the Note, the Receivables List and the Business Plan.
Section 523(a)(6) "triggers in the lawyer's mind the category of 'intentional torts,' as distinguished from negligent or reckless torts." Markowitz, 190 F.3d at 464. Strictly construing the evidence against Builders Supply, the Court does not believe that the execution of the Note or the submission of the Receivables List and the Business Plan rises to the level of an intentional tort.
II. Mullen Construction's Payment of the Mullens' Credit Card Debt
According to the Sixth Circuit, an individual's misappropriation of corporate assets may result in a § 523(a)(6) judgment against the individual in favor of a corporate creditor. See Sanderson Farms, Inc. v. Gasbarro, 299 F.App'x 499 (6th Cir. 2008). Sanderson Farms emanated from the chapter 7 bankruptcy of Roch Gasbarro. Mr. Gasbarro was the president of a corporation ("Midwest") that ceased operations prior to the bankruptcy. Midwest packaged chicken breasts for sale by retail stores. Sanderson Farms, Inc. ("Sanderson") supplied chicken to Midwest on credit. Two years into the relationship, Midwest struggled with timely payments. Contemporaneously, Midwest transferred hundreds of thousands of dollars to Mr. Gasbarro's family without documentation or explanation. Similarly, it transferred business property below market value to entities controlled by Mr. Gasbarro and his family. Eventually payments to Sanderson stopped without notice. In Mr. Gasbarro's bankruptcy, Sanderson sought a nondischargeable judgment pursuant to § 523(a)(2) and §523(a)(6). On appeal of a judgment in favor of Mr. Gasbarro, the Sixth Circuit vacated the judgment and remanded. The bankruptcy court erred in its application of § 523(a)(6), failing to discuss the misappropriation of Midwest's assets. "The evidence presented to the bankruptcy court could support an inference that Gasbarro and his family members were raiding Midwest's corporate assets during the relevant period and that Gasbarro was substantially certain that his actions would harm Sanderson." Sanderson Farms, 299 F.App'x at 507.
Although Sanderson Farms is an unpublished decision, it is persuasive authority that cannot be ignored. See In re Buttermilk Towne Center, LLC, 442 B.R. 558, 567 (B.A.P. 6th Cir. 2010) ("While it is true that an unpublished opinion is not binding, the Panel should not disregard a Sixth Circuit opinion merely because it is unpublished.").
A. Insolvency
The Ninth Circuit's Bankruptcy Appellate Panel further developed this issue of whether corporate self-dealing is actionable under § 523(a)(6). See In re Jacks, 266 B.R. 728 (B.A.P. 9th Cir. 2001). It held that the misappropriation of corporate assets may be nondischargeable under § 523(a)(6) to the extent that assets are misappropriated while the corporation is insolvent. Id. at 740-42; accord In re Ridsdale, 286 B.R. 225 (Bankr. W.D.N.Y. 2002); see also 3A W. Fletcher, Cyclopedia of the Law of Corporations § 1185 (2011)(discussing insolvency as predicate to misappropriation action by creditors).
Ohio law presumes insolvency if debts are not being paid as they become due. See Ohio Rev. Code § 1336.02 (Ohio Uniform Fraudulent Transfers Act). The record indicates that Mullen Construction clearly reached this point by February 6, 2008. At that time, being the date of execution of the Note, Mullen Construction owed Builders Supply $195,000 in Overdue Payables. Mullen Construction may have been insolvent prior to February 6, 2008, but there is insufficient proof to establish the same. Prior to this date, two other notes were executed to pay for Overdue Payables. However, the record does not indicate when these notes were executed. Moreover, the undisputed testimony of Ken Mullen was that the company was in good condition and paying its bills in late 2007.
Builders Supply filed a pretrial exhibit list that included two additional notes. See Docs. 22 & 31. In advance of trial Builders Supply provided the Court with unfiled courtesy copies of the proposed exhibits. Proposed Exhibit 3 is a November 22, 2006 note in the amount of $175,000. Proposed Exhibit 4 is a November 22, 2006 note in the amount of $180,000. Builders Supply never moved for the admission of these exhibits at trial. Therefore, they are not part of the record.
Subsequent to February 6, 2008, while Mullen Construction was insolvent, $87,023.86 was misappropriated from Mullen Construction in payment of the Mullens' personal credit card debts. These payments were made by Rita Mullen, at the direction of Ken Mullen.
The testimony at trial did not reveal the aggregate amount transferred in payment of personal credit cards. Although Builders Supply counsel said she could question Ken Mullen about the correlation between each credit card statement and each Mullen Construction bank statement, she never did. Neither was a written summary presented. Nonetheless, the credit card statements and the bank statements were admitted into the record. See Exhibits 13, 14, 15, 23 & 24. The Court has scrutinized each of these statements and prepared a written summary of the payments occurring subsequent to February 6, 2008. The summary is attached to this memorandum as Exhibit A. The payments are readily identifiable on the bank statements because they were made electronically. The bank statement identifies either the payee (e.g., Discover, American Express) or that payment was made on a "credit card."
B. Action By Individual Creditor
In essence, the Mullens were paying their personal credit cards at the expense of all of Mullen Construction's creditors. This begs the question of whether a single Mullen Construction creditor is entitled to a personal recovery. See 3A W. Fletcher, Cyclopedia of the Law of Corporations § 1185 (2011) ("Whether a creditor may sue directors or other officers for misappropriation or diversion of corporate property is not altogether clear. . . . [I]t would seem to be true beyond argument that such an action will lie where the corporation has become insolvent . . . at least where the suit is a representative one brought on behalf of all the creditors.") (emphasis added). The diversion of corporate assets does not necessarily mean diversion from a single corporate creditor on a dollar for dollar basis. Ridsdale, 286 B.R. at 236.
Facing this dilemma, Ridsdale permitted a corporate creditor to proceed individually under § 523(a)(6) where the corporation was no longer operational, it never filed bankruptcy, and the individual creditor appeared to be the only unsatisfied creditor of the corporation. Id. at 236-37; see also Sanderson Farms, 209 Fed. App'x at 502 (corporation had ceased operations).
In this case, Mullen Construction ceased operations prior to the Mullens' bankruptcy. The Court is not aware of a Mullen Construction bankruptcy. The record from trial does not speak to the existence of other Mullen Construction creditors. Even if such creditors exist, no other adversary complaints have been filed against the Mullens and the deadline for filing such a complaint has passed.
C. Individual Liability For Corporate Actions
Lastly, there is the dilemma of whether the Mullens can be individually liable for actions they took on behalf of a corporation. Builders Supply argues that the facts warrant the piercing of the corporate veil. Even so, that would not impute liability to Rita Mullen because she is not a shareholder of Mullen Construction.
It is unnecessary to address the issue of veil piercing because Ohio has long recognized that employees are liable to third parties for their own tortious or malicious conduct. See e.g., French v. Central Construction Co., 76 Ohio St. 509, 517 (1907). Both Ken Mullen and Rita Mullen were employees of Mullen Construction who were paid hourly wages.
D. Section 523(a)(6) Conclusion
The Mullens misappropriated funds from Mullen Construction to satisfy personal debts. Because the misappropriation occurred while Mullen Construction was insolvent, it was substantially certain to result in injury to Builders Supply, as a Mullen Construction creditor. Therefore, the misappropriation was willful. The Mullens offered no reasonable excuse or just cause for the misappropriation. Therefore, the misappropriation was also malicious. Consequently, the Court holds that Builders Supply is entitled to a nondischargeable judgment against Rita M. Mullen and Kenneth T. Mullen, Jr., pursuant to 11 U.S.C. § 523(a)(6), in the amount of $87,023.86.
According to the testimony of Ken Mullen, the personal credit cards were sometimes used to pay Mullen Construction business expenses. For example, he testified that the credit cards were sometimes used to purchase fuel for the Mullen Construction vehicle that he drove. It is unclear from the credit card statements alone which itemized entries may have been business expenses. The Court will not hazard a guess based upon nothing more than the label given to an itemized entry. Once Builders Supply proved that the Mullens appropriated Mullen Construction funds to pay personal credit card debts, the Court believes it was incumbent upon the Mullens to produce some evidence showing that a particular charge was a business expense and not a personal expense. The Mullens failed to do so.
A judgment to this effect will be entered separately.
EXHIBIT A
See Note 4.
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I. U.S. Bank Credit Card
+-----------------------------------------------------------------------------+ ¦Date Payment Posted To Credit ¦Date Payment Debited From Bank ¦Amount ¦ ¦Account ¦Account ¦ ¦ +---------------------------------+---------------------------------+---------¦ ¦2-12-08 ¦2-13-08 ¦$3,500.00¦ +---------------------------------+---------------------------------+---------¦ ¦3-6-08 ¦3-7-08 ¦$3,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦3-28-08 ¦3-31-08 ¦$2,500.00¦ +---------------------------------+---------------------------------+---------¦ ¦4-8-08 ¦4-9-08 ¦$1,500.00¦ +---------------------------------+---------------------------------+---------¦ ¦4-14-08 ¦4-15-08 ¦$2,500.00¦ +---------------------------------+---------------------------------+---------¦ ¦7-11-08 ¦7-14-08 ¦$1,585.71¦ +---------------------------------+---------------------------------+---------¦ ¦7-17-08 ¦7-18-08 ¦$1,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦7-25-08 ¦7-28-08 ¦$1,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦8-25-08 ¦8-26-08 ¦$2,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦10-9-08 ¦10-10-08 ¦$2,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦11-5-08 ¦11-6-08 ¦$1,500.00¦ +---------------------------------+---------------------------------+---------¦ ¦11-26-08 ¦11-28-08 ¦$3,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦12-19-08 ¦12-22-08 ¦$2,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦12-26-08 ¦12-29-08 ¦$2,787.70¦ +---------------------------------+---------------------------------+---------¦ ¦1-28-09 ¦1-29-09 ¦$2,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦3-25-09 ¦3-26-09 ¦$1,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦4-17-09 ¦4-20-09 ¦$2,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦5-22-09 ¦5-26-09 ¦$7,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦5-29-09 ¦6-1-09 ¦$1,905.71¦ +---------------------------------+---------------------------------+---------¦ ¦6-26-09 ¦6-29-09 ¦$2,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦7-9-09 ¦7-10-09 ¦$5,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦11-17-09 ¦11-18-09 ¦$ 532.00 ¦ +-----------------------------------------------------------------------------+ II. Discover Credit Card
+-----------------------------------------------------------------------------+ ¦Date Payment Posted To Credit ¦Date Payment Debited From Bank ¦Amount ¦ ¦Account ¦Account ¦ ¦ +---------------------------------+---------------------------------+---------¦ ¦6-9-08 ¦6-10-08 ¦$1,669.74¦ +---------------------------------+---------------------------------+---------¦ ¦7-18-08 ¦7-21-08 ¦$1,411.67¦ +---------------------------------+---------------------------------+---------¦ ¦5-22-09 ¦5-26-09 ¦$1,976.52¦ +---------------------------------+---------------------------------+---------¦ ¦6-26-09 ¦6-29-09 ¦$1,000.00¦ +-----------------------------------------------------------------------------+ III. American Express Credit Card
+-----------------------------------------------------------------------------+ ¦Date Payment Posted To Credit ¦Date Payment Debited From Bank ¦Amount ¦ ¦Account ¦Account ¦ ¦ +---------------------------------+---------------------------------+---------¦ ¦2-13-08 ¦2-14-08 ¦$3,070.40¦ +---------------------------------+---------------------------------+---------¦ ¦4-14-08 ¦4-15-08 ¦$3,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦6-8-08 ¦6-9-08 ¦$1,401.00¦ +---------------------------------+---------------------------------+---------¦ ¦7-14-08 ¦7-15-08 ¦$1,500.00¦ +---------------------------------+---------------------------------+---------¦ ¦8-21-08 ¦8-22-08 ¦$1,800.00¦ +---------------------------------+---------------------------------+---------¦ ¦9-19-08 ¦9-22-08 ¦$1,800.00¦ +---------------------------------+---------------------------------+---------¦ ¦10-30-08 ¦10-31-08 ¦$1,800.00¦ +---------------------------------+---------------------------------+---------¦ ¦11-18-08 ¦11-19-08 ¦$1,600.00¦ +---------------------------------+---------------------------------+---------¦ ¦12-18-08 ¦12-22-08 ¦$1,600.00¦ +---------------------------------+---------------------------------+---------¦ ¦1-28-09 ¦1-29-09 ¦$1,600.00¦ +---------------------------------+---------------------------------+---------¦ ¦2-17-09 ¦2-18-09 ¦$1,600.00¦ +---------------------------------+---------------------------------+---------¦ ¦4-29-09 ¦4-30-09 ¦$2,300.00¦ +---------------------------------+---------------------------------+---------¦ ¦5-25-09 ¦5-26-09 ¦$1,800.00¦ +---------------------------------+---------------------------------+---------¦ ¦9-8-09 ¦9-9-09 ¦$ 500.00 ¦ +---------------------------------+---------------------------------+---------¦ ¦8-14-09 ¦8-17-09 ¦$1,290.00¦ +---------------------------------+---------------------------------+---------¦ ¦9-28-09 ¦9-29-09 ¦$1,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦10-19-09 ¦10-20-09 ¦$1,000.00¦ +---------------------------------+---------------------------------+---------¦ ¦11-4-09 ¦11-5-09 ¦$ 493.41 ¦ +---------------------------------+---------------------------------+---------¦ ¦11-7-09 ¦11-9-09 ¦$ 500.00 ¦ +-----------------------------------------------------------------------------+ Copies to: Tabitha M. Hochscheid
thochscheid@ctks.com
Norman L. Slutsky
nslutsky@fuse.net