Free Memorandum of Contentions of Fact and Law - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

FENTON GINGERICH, et. al. Plaintiffs, V. UNITED STATES OF AMERICA, Defendant.

§ § § § § § § § §

DOCKET NO. 98-533 T JUDGE LETTOW

PLAINTIFFS' MEMORANDUM OF CONTENTIONS OF FACT AND LAW

Issues for Trial The Court of Appeals for the Federal Circuit remanded this matter for further proceedings and specific findings concerning two issues: (i) whether the parties required a closing agreement to effectuate the settlement of issues before the Tax Court, and (ii) whether the "Redding Acceptance Form" constituted a valid acceptance of the IRS Offer despite the Federal Circuit's perceived variation in the terms between the two documents.1 Statement of Facts The Court of Federal Claims set out an extensive Background statement in its decision, which Plaintiffs adopt, with footnoted additions, as follows:

1

Gingerich, et. al. v. United States, 2003 WL 22854662, **4, 92 A.F.T.R.2d 2003-7224 (Fed. Cir. 2003).
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Plaintiffs in this action were direct and indirect partners of General Information Associates Partnership ("GIA") during the tax years 1983-1986.2 In April 1990, the IRS disallowed items of loss and deductions concerning GIA's equipment leasing activities in a Notice of Final Partnership Administrative Adjustment ("FPAA").3 Attorney Thomas Redding represented some of the GIA taxpayer-partners who were parties to the Tax Court partnership-level petition for readjustment of the partnership items.4 In January 1991, Redding wrote to William Stoddard and Bruce Wilpon, the attorneys who represented the IRS in the GIA Tax Court action, to inquire about the possibility of settlement and to request a closing agreement to settle items not before the Tax Court, such as penalties and "phantom income." A closing agreement is used to cover items not before the Tax Court.5

2

Not all plaintiffs were partners. Only Fenton Gingerich, Seung Karl, Choong Kim, Eugene Rosol, Charles Scruggs, and Moon Yoon were direct partners in GIA. Albert Liebovich, Carl Liebovich, Gregory Liebovich, Joe Liebovich, Larry Liebovich, and Samuel Liebovich were indirect partners by virtue of their investment in Loubess, which in turn held a partnership interest in GIA. The respective spouses of these plaintiffs were not partners in GIA and are parties to the settlement and this action only because they filed joint tax returns with their spouses. The FPAA proposed adjustments to certain GIA partnership items for tax years 1983 - 1986. A partner other than the tax matters partner filed a petition in the Tax Court for readjustment of the IRS's proposed adjustments to GIA's partnership items as set out in the FPAA. General Information Associates Partnership, Raymond & Irma Ziff, Partners Other Than the Tax Matters Partner v. Commissioner, Docket No. 18405-90. TEFRA establishes that all partners are deemed to be parties to partnership-level proceedings. §6226(c). Mr. Redding's clients in that proceeding are the Plaintiffs in this action. Other attorneys, including Linda Paine and Babcock MacLean, represented other GIA partners who were also parties to that Tax Court action but not this action.
4 3

5

As the Federal Circuit specifically noted in Gingerich at **4, settlement of an issue before the Tax Court does not require any particular method or form and can be accomplished by letters of offer and acceptance between counsel for the taxpayers and the IRS. The Federal Circuit also specifically noted that, in contrast, settlement of items not before the Tax Court require the execution of a Form 906 Closing Agreement.
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In his responsive letter, Wilpon offered Plaintiffs a settlement (the "IRS Offer") on the following terms: 1. For the first open year of each partners' investment, the investor will be allowed, to the extent of losses claimed that year, sixty (60) percent of his or her verified out of pocket cash investment in the partnership less the amount of any partnership losses previously allowed. The balance of the sixty percent, if any, is allowed in the immediately succeeding open taxable years until exhausted. For these purposes, the investors' cash investment consists of his or her initial payment made by check plus the principal paid on any recourse notes in favor of the partnership. Interest paid on any notes in favor of the partnership is not a partnership item and not part of the investors' cash investment. This interest may be deductible subject to the applicable limitations contained in section 163.6 2. The Government will concede the applicability of the additions to tax under sections 6653, 6659 and 6661, if any.7 3. The investors are required to concede the applicability of the increased rate of interest established under section 6621(c), formerly section 6621(d).8

6

This partnership item issue was directly before the Tax Court and could be settled by an exchange of letters. A Form 906 Closing Agreement was not required to effectuate this term of the settlement. Plaintiffs' claims assert that the tax resulting from this particular adjustment was improperly assessed more than one year after the exchange of letters between Wilpon and the Plaintiffs and the amounts paid by Plaintiffs and identified in their Forms 1040X and Forms 843 claims for refund are overpayments that should be refunded. The penalties under 26 U.S.C. §§ 6653, 6659 and 6661 are non-partnership items that could not be addressed and were not before the Tax Court in that partnership-level TEFRA case. A Form 906 Closing Agreement was necessary to effectuate this term of the settlement.
8 7

Section 6621(c) penalty interest is a non-partnership, affected item that could not be addressed and was not before the Tax Court in that partnership-level case. A Form 906 Closing
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4. No other losses, investment interest expense or other deductions attributable to this partnership shall be allowed in any other year.9 5. No income attributable to this partnership shall be reported in any other year except to the extent that an investor receives cash or other property with respect to his or her investment in this partnership.10 A series of counteroffers by Redding, and corresponding rejections by the IRS ensued. In an October 17, 1992 letter, the IRS confirmed the terms of the original offer, adding, "the current settlement offer includes the reversal of any gain reported in the later years of this investment."11 On October 22, 1992, the IRS demanded that Redding's clients accept or reject the IRS Offer before December 1, 1992. On November 12, 1992, Linda Paine, an attorney who represented certain GIA partners other than Plaintiffs, wrote to Wilpon and Stoddard, allegedly on behalf of herself, Redding, and Babcock MacLean, an attorney for other GIA partners. In this letter, she informed the IRS that the attorneys would recommend acceptance of the IRS Offer on the express condition that a closing agreement be entered into regarding the reporting of partnership items not before the Tax Court. Paine enclosed

Agreement was necessary to effectuate this term of the settlement.
9

Tax items for years not before the Tax Court could not be addressed and were not before the Tax Court in that partnership-level case. A Form 906 Closing Agreement was necessary to effectuate this term of the settlement. Income for tax years not before the Tax Court could not be addressed and was not before the Tax Court in that partnership-level case. A Form 906 Closing Agreement was necessary to effectuate this term of the settlement. The reversal of gains for later years not before the Tax Court could not be addressed and was not before the Tax Court in that partnership-level case. A Form 906 Closing Agreement was necessary to effectuate this term of the settlement.
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11

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a draft closing agreement. Redding wrote separately to Wilpon and Stoddard on November 13, 1992, requesting an extension of time to respond to the IRS's settlement offer. Like Paine, Redding also addressed the need for a closing agreement in his November 13, 1992 correspondence, but only as to "all issues that are not partnership item issues and therefore are not before the Court in this proceeding." Redding clarified that he would ask his clients to accept the IRS Offer "[n]otwithstanding this request." Along with his letter, Redding attached a model acceptance form for his clients to sign in acceptance of the IRS Offer (the "Redding Acceptance Form"). He asked the IRS to approve the form, stating: "Will you please confirm by fax that a letter in this form received in your office within the time specified would constitute a valid acceptance of the settlement?" (Emphasis added by the Federal Circuit). The Redding Acceptance Form included six items, the first five substantially corresponding to the language of the IRS Offer and the sixth incorporating the additional term offered in the IRS's October 17, 1992 letter: "[a]ny gains reported in years subsequent to the initial investment year shall be reversed and not included in income." On November 17, 1992, IRS attorney Wilpon responded to Redding's letter stating: We have reviewed your letter dated November 13, 1992 and agree with your outline of the settlement terms set out in the Draft Acceptance Form. In addition, we agree to your request for an additional 30 days to solicit acceptance of the settlement. Attached is our anticipated closing agreement language. If you have any questions, please call me. Wilpon included a closing agreement with his fax (the "IRS Closing Agreement"). Based on Wilpon's reply, Redding wrote the Plaintiffs and urged them to settle via submission of the Redding Acceptance Form. Redding also told Plaintiffs that a separate closing

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agreement would be needed in the future to bind the IRS on items not before the Tax Court, such as penalties or phantom income. On December 18, 1992, Wilpon wrote to MacLean to inform him that the IRS could not process "settlements (e.g. closing agreements)" until a new Tax Matters Partner was chosen for GIA. Redding and Paine were not copied on this correspondence. On December 30, 1992, Redding mailed a series of the Redding Acceptance Forms signed by the Plaintiffs. Plaintiff Rosol sent his Redding Acceptance Form directly to the IRS. On January 26, 1993, less than a month after the submission of the Redding Acceptance Forms, Wilpon wrote to Redding and stated "[i]t should be understood that this settlement is subject to review and acceptance on behalf of the respondent." (Emphasis added by the Federal Circuit). On February 18, 1993, Wilpon again expressed a reservation to the settlement, writing in bold type that "no settlement occurs until closing agreements are signed by your clients and countersigned by the appropriate Service representative." (Emphasis in original). Redding challenged Wilpon's subsequent reservations in a telephone conversation and by letter, considering Wilpon's letter to be a repudiation of the IRS Offer. Wilpon dropped the challenge to the settlement, admitting in deposition testimony that he decided that the "fight will be for a later day" on the issue of when the settlement was effectuated. On September 10, 1993, Redding submitted signed closing agreements to Wilpon on behalf of the Plaintiffs, which were countersigned by the appropriate IRS representative on September 22, 1993. Plaintiff Rosol signed his closing agreement on February 10, 1993, and submitted it to the IRS, which countersigned on March 16, 1993. Between January 3, 1994 and August 8, 1994, the IRS assessed deficiencies against the

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Taxpayers as individuals. Under 26 U.S.C. § 6229(f), the IRS may assess a tax related to a partnership item as long as such assessment occurs within one "year after the date on which the items become nonpartnership items." A partnership item converts to a nonpartnership item on the date that the IRS enters into a settlement agreement with the partner with respect to such items." 26 U.S.C. § 6231(b)(1)(C). The parties dispute the date upon which the statute of limitations began to run. The Taxpayers allege that the one-year limitations period began on the day that the Redding Acceptance Forms were submitted, December 30, 1992. The United States contends that the operative date was September 22, 1993, the date that closing agreements were countersigned by the IRS. An issue set for trial, but not directly addressed by the Federal Circuit, is the intent of the individual plaintiffs with respect to the settlement. At trial, Plaintiffs expect to prove that the individual plaintiffs did not participate in the settlement negotiations and were represented in that respect by their counsel, Redding. Redding advised the Plaintiffs with respect to the terms of the settlement and drafted the Redding Response Forms that each Plaintiff used to accept the settlement. The IRS did not directly engage the individual GIA taxpayer-partners in the settlement negotiations and did not communicate with the Plaintiffs but through their counsel, Redding. Legal Analysis and Contentions The Federal Court has given this Court and the parties guidance with respect to the determination of fact and legal issues to be determined on remand. That Court began its Discussion with the following two paragraph summary of the relevant controlling law. Tax settlements are contracts governed by general principles of contract law. Treaty Pines

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Inv. P'ship v. Commissioner, 967 F.2d 206, 211 (5th Cir.1992).12 The formation of a contract requires mutual assent to essential terms. Linear Tech. Corp. v. Micrel, Inc., 275 F.3d 1040, 1052 (Fed.Cir.2001); 17A Am.Jur.2d, Contracts, §§ 27-28 (2003). In accepting an offer, the offeree also cannot change, add to, or qualify the terms of the contract in any material respect. Minneapolis & St. Louis. Ry. Co. v. Columbus Rolling-Mill Co., 119 U.S. 149, 151, 7 S.Ct. 168, 30 L.Ed. 376 (1886); 17A Am.Jur.2d, Contracts, § 65 (2003); Gingerich, 54 Fed. Cl. at 228 (citing 1 Arthur L. Corbin, Contracts § 3.32 (1993)). Settlement of an issue before the Tax Court does not require any particular method or form and can be accomplished by letters of offer and acceptance between the IRS attorneys assigned to the case and the taxpayers. Treaty Pines, 967 F.2d at 212; Cinema '84 v. Commissioner, 294 F.3d 432, 442 (2nd Cir.2002). In contrast, settlement of items not before the Tax Court requires the execution of a Form 906 Closing Agreement signed by an appropriate senior IRS employee. 26 U.S.C. §§ 7121-22; Treaty Pines, 967 F.2d at 212. This summary of controlling law reflects the underlying statutory bifurcation TEFRA creates between partnership item and non-partnership item procedures. The Federal Circuit has expressly directed in a similar case that it is necessary to place plaintiffs' contentions in the proper TEFRA context to understand the claims.13

Redding was attorney of record for Garrity, the plaintiff in Treaty Pines in both the Tax Court and on appeal to the Fifth Circuit. The Fifth Circuit decision in Treaty Pines was issued during the course of the settlement negotiations between Redding and Wilpon in this case. The IRS was aware of Redding's prosecution of the same issues that are before this Court and his understanding of how TEFRA bifurcated settlements in the Tax Court are effectuated but, as the Federal Circuit remarked, Wilpon testified in his deposition that he and the IRS decided to save that fight for a later day.
13

12

Crnkovich v. United States, 202 F.3d 1325, 1328 (Fed. Cir. 2000).
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Under TEFRA "partnership items" are audited and adjusted at the partnership level using centralized audit and litigation procedures set out at §§6221-6233.14 "Non-partnership item" determinations are reserved for separate partner level proceedings after the TEFRA partnership level proceedings are concluded and are subject to the same procedures as individual deficiencies, e.g. §§6211-6216.15 The Federal Circuit recognizes that, by statute and precedent, partnership item and non-partnership item proceedings are mutually exclusive.16 Because the GIA Tax Court case was a §6226 TEFRA partnership level proceeding, the Tax Court's jurisdiction was strictly limited to the partnership's statutorily defined partnership items for tax years 1983-1986.17 The Tax Court did not have jurisdiction to make partnership item determinations for years after 1986 or related non-partnership item determinations such as penalties and §6621(c) penalty interest.18 The Tax Court's limited jurisdiction can be exercised only to the extent statutorily authorized by Congress19 and cannot be expanded sua sponte or by the parties.20 On that basis, Redding believed Wilpon, the IRS's attorney of record in that case, could and

14

Id; §§6211(c), 6216(4), 6221, 6223, 6230(a)(1), and 6226.

Crnkovich at 1328, 1332, 1333; See also, Callaway v. Commissioner, 231 F.3d 106, 108 (2nd Cir. 2000).
16

15

Callaway, at 108; See generally Maxwell v. Commissioner, 87 T.C. 783, 788 (1986). §6226(f). Maxwell, at 788.

17

18

19

§7442; Judge v. Commissioner, 88 T.C. 1175, 1180-1181 (1987); Naftel v. Commissioner, 85 T.C. 527, 529 (1985).
20

§§7441, 7442; Neely v. Commissioner, 115 T.C. 287, 290-291 (2000); Naftel, at 530; Estate of Mueller v. Commissioner, 153 F.3d 302, 307 (6th Cir. 1998), citing Commissioner v. McCoy, 484 U.S. 3, 7 (1987).
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did settle the partnership items before the Tax Court by their exchange of letters, specifically by Wilpon's letters of October 17th and October 22nd and the Redding Acceptance Form.21 It was also on that same legal bedrock that Redding requested a closing agreement to effectuate a settlement of the non-partnership item penalties, §6621(c) penalty interest, and the partnership items for tax years that were not before the Tax Court. Neither Wilpon nor Stoddard had authority to settle those other items and a closing agreement was required. Moreover, the Federal Circuit has previously determined that if the IRS decides to resolve non-partnership items with an individual partner, the partnership items must first be converted to non-partnership items, e.g., by a settlement agreement.22 This Court recognizes that this conversion can be made by informal settlements between counsel in the Tax Court.23 Similarly, in Treaty Pines the Fifth Circuit recognized the unique, bifurcated nature of TEFRA settlements and held that the exchange of letters between the parties in that underlying Tax Court case created a binding settlement agreement "with respect to partnership items [before the Tax Court] without a closing agreement, and without regard to whether a closing agreement was contemplated or completed as to affected items and interest [non-partnership items such as

21

Treaty Pines Inv. P'ship v. Commissioner, 967 F.2d 206 (5th Cir. 1992), citing Haiduk v. Commissioner, T.C.Memo 1990-506; Himmelwright v. Commissioner, 55 T.C.M. (CCH) 403 (1988). But see Crnkovich at 1337-1338 (holding that stipulation settled partnership items before the Tax Court as well as nonpartnership items). See also Principal Mutual Life Ins. Co. v. U.S., 29 Fed. Cl. 157 (1993), aff'd other grounds 50 F.3d 1021 (Fed. Cir. 1995) and Dorchester Ind. Inc. v. Commissioner, 208 F.3d 205 (3d Cir. 2000)(enforcing settlement by letters of offer and acceptance between counsel in a Tax Court proceeding).
22

Crnkovich at 1338.

23

Crnkovich, supra (stipulation of settlement was settlement agreement that converted partnership items to nonpartnership items and commenced one year statute of limitations for assessment).
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penalties and §6621(c) penalty interest]."24 In Treaty Pines, the Fifth Circuit recognized that the parties may also enter into one of the generally accepted settlement forms (e.g., a Form 906 Closing Agreement or an IRS 870-AD series form) to settle the non-partnership items and re-memorialize the terms of the prior settlement of partnership items.25 In Crnkovich the Federal Circuit recognized that an initial partnership item settlement is a necessary precondition to any non-partnership item settlement.26 As the Federal Circuit recognized in Crnkovich, a settlement may be "bilateral," settling both partnership items and non-partnership items in a single document.27 But any intent to condition the settlement on a formal, bilateral written agreement must be affirmatively set out.28 Here the IRS's original January 31, 1991 offer did not prescribe the form for acceptance, contemplate a formal contract, or make closing agreements a condition precedent to settlement. The November 13, 1992 and November 17, 1992 correspondence between Redding and Wilpon contemplated a closing agreement ­ but only as to the non-partnership items such as penalties and §6621(c) penalty interest and the partnership items for later tax years that were not before the Tax
24

Treaty Pines, at 212. Emphasis added. Id. Crnkovich at 1333 and 1338.

25

26

27

Crnkovich at 1333 (Form 906 was a bilateral agreement that settled both partnership and nonpartnership items).
28

Estate of Ray v. Commissioner, 112 F.3d 194 (1997) (IRS letter offering to settle instructed taxpayers that they could accept by executing and returning the enclosed Form 870-L(AD).) See also First Blood Assoc. v. Commissioner, T.C.Memo 1998-228; aff'd sub nom in part Cinema '84 v. Commissioner, 294 F.3d 432 (2nd Cir. 2002) (IRS sent closing agreement that taxpayer never signed, although many of his partners did. IRS argued all parties understood closing agreements were required to settle partnership items. The Second Circuit disagreed.) See also FARNSWORTH ON CONTRACTS §3.8 n.3 (2nd ed. 1990).
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Court in the GIA partnership-level case. Redding's November 13, 1992 letter requested that closing agreements be used "to resolve all issues that are not partnership item issues and therefore are not before the [Tax] Court in this proceeding." Wilpon's November 17, 1992 response enclosed the IRS's "anticipated closing agreement language." But that reference to "anticipated ... language" cannot reasonably be construed as an expression of intent not to be bound until a closing agreement was executed. As Farnsworth states, the easiest way to make clear an intent not to be bound is to say so.29 Wilpon's November 17, 1992 letter did not instruct the partners to accept by returning the "anticipated closing agreement language." At no point prior to settlement did the IRS state there was no settlement until the Commissioner countersigned closing agreements. Instead, Wilpon approved the Redding Acceptance Form and agreed that they would be timely if sent by December 31, 1992 - which they were. Moreover, Wilpon did not and could not have intended that the "anticipated closing agreement language" apply to the December 31, 1992 acceptance deadline because paragraph 1, of the "anticipated closing agreement," the only provision directly addressing the partnership items that were before the Tax Court, is left blank. The remaining provisions in the anticipated closing agreement all dealt with non-partnership items. Also, only two of the three pages of the closing agreement were sent and there was no signature page. If this partial, incomplete closing agreement was relevant to the December 31, 1992 acceptance deadline, it would have included the "60%" provision that the parties had agreed upon in paragraph 1 and all three pages of the agreement and

29

FARNSWORTH ON CONTRACTS §3.7 (2nd ed. 1990).
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a signature page would have been included. There were no subsequent closing agreement discussions and no closing agreements were sent for the taxpayers to execute before December 31, 1992. The Federal Circuit noted that in granting summary judgment to the United States, the Court of Federal Claims determined that Redding's clients and the IRS "clearly contemplated the need to execute a closing agreement to finalize the settlement." Gingerich, 54 Fed. Cl. at 229. But the Federal Circuit determined that "Redding and Wilpon submitted conflicting affidavits concerning the requirement (or lack thereof) for a closing agreement." (The Federal Circuit made a non-material mistake in that determination. The motion for summary judgment was not supported by affidavits, but by excerpts from Redding and Wilpon's depositions.) Importantly, the Federal Circuit specifically noted that the correspondence between Redding and the IRS attorneys, especially Redding's November 13, 1992 letter and Wilpon's November 17, 1992 response, suggested that the Redding Acceptance Form could have been sufficient to accept the IRS Offer without further documentation. The Federal Circuit further directed this Court, should it conclude that a closing agreement was not required, to then determine "if the Redding Acceptance Form constituted a valid acceptance of the IRS Offer despite the variations in terms between the two documents." In its Background statement, the Federal Circuit noted that Wilpon had added a sixth term to the settlement, but also noted that Redding had added that same sixth term to his response and to the Redding Response Form. Consequently, any variation in terms was agreed to by both parties in advance.

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Bifurcation Defendant admitted in its answer and has not contested in this action that the amounts assessed pursuant to the settlement and alleged by the Plaintiffs are correct as set out in the Plaintiffs' Original Complaint. The Court's determination of the issues set out by the Federal Circuit will establish when the settlement of the partnership items before the Tax Court took place and, consequently, the statute of limitations for assessment. If the settlement occurred on December 30, 1992, the day the Redding Acceptance Forms were submitted, then the assessments should have been made by December 30, 1993. Because the assessments were not made until January 3, 1994, at the earliest, the assessments for all Plaintiffs were untimely and all amounts paid by Plaintiffs, tax and interest, should be refunded. The amounts at issue for each Plaintiff are: Plaintiff Amount Total Claim and Tax Year Amount in Controversy for Each Plaintiff 1983 1984 1985 1986 $101,550.39

Gingerich

$19,318.89 37,621.66 22,768.63 21,841.21

Karl

$56,820.71 $1,304.78 $58,125.49

1984 1986

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Plaintiff

Amount

Total Claim and Tax Year Amount in Controversy for Each Plaintiff 1983 1984 1985 1986 $84,675.70

Kim

$10,629.71 36,492.38 26,135.48 11,418.13

Liebovich, Albert

$7,305.34 9,527.21 9580.72 $26,413.27

1983 1984 1985

Liebovich, Carl

$6,590.66 $1,930.73 $8,521.39

1985 1986

Liebovich, Gregory

$5,907.74 6,825.40 2,777.35 6,227.99 $21,738.48

1983 1984 1985 1986

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Plaintiff

Amount

Total Claim and Tax Year Amount in Controversy for Each Plaintiff 1983 1984 1985 1986 $25,327.26

Liebovich, Joe

$7,637.39 9,092.40 6,629.21 1,968.26

Liebovich, Larry

$4,579.40 6,062.91 2,802.72 5,427.72 $18,872.75

1983 1984 1985 1986

Liebovich, Samuel

$1,544.78 3,149.36 9,297.90 2,488.45 $16,480.49

1983 1984 1985 1986

Rosol

$19,464.44 24,026.95 12,155.30 8,577.66 $64,224.35

1983 1984 1985 1986

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Plaintiff

Amount

Total Claim and Tax Year Amount in Controversy for Each Plaintiff 1983 1984 1985 1986 $92,737.20

Scruggs

$8,926.60 36,966.30 27,597.94 19,246.36

Yoon

$15,819.26 15,806.15 15,981.74 $47,607.15

1983 1984 1985

Pursuant to 26 U.S.C. § 6611(a), interest shall be paid on overpayments. Plaintiffs propose to bifurcate trial on the issue of intent and terms of the contract from the amount of the final award to Plaintiffs, if any, pending IRS computations of the amount of interest payable on the Plaintiffs' overpayments. Plaintiffs, however, propose to reserve the right to review and protest to this Court should Plaintiffs disagree with those computations. Respectfully,

/s/ Teresa J. Womack Teresa J. Womack Redding & Associates, P.C. 2914 W. T.C. Jester Houston, Texas 77018 Telephone: (713) 965-9244 Fax: (713) 621-5227 ATTORNEY FOR PLAINTIFFS
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