Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:01-CV-00083-REB-CBS CABEZA DE VACA LAND & CATTLE CO., LLC, a Colorado limited liability company, Plaintiff, vs. STOCKMAN WATER COMPANY, LLC, a Colorado limited liability company, Defendant, -andRELATED CASES. MODIFIED MOTION FOR RELIEF FROM ORDER OR IN THE ALTERNATIVE FOR ENTRY OF JUDGMENT American Water Development, Inc. ("AWDI"), through its counsel, moves for relief from the Court's Order of Dismissal pursuant to Fed. R. Civ. P. 60(b), or in the alternative for an entry of judgment pursuant to Fed. R. Civ. P. 58(d). In conformity with D.C.COLO.LCivR 7.1(A), AWDI's counsel has, in good faith, conferred with opposing counsel regarding this Motion and opposing counsel agreed that filing this Motion was an appropriate procedure to bring the issues discussed herein to this Court's attention. I. INTRODUCTION

AWDI seeks relief from this Court's Order of Dismissal that was based on an interpretation of law that has since been repudiated by the United States Supreme Court. The Order of Dismissal relied exclusively on the Rooker-Feldman doctrine. However, while the appeal of that Order was pending in the Tenth Circuit, a unanimous United States Supreme Court clarified the

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Rooker-Feldman doctrine in a manner that precludes its application here. Nevertheless, the Tenth Circuit dismissed AWDI's appeal for lack of jurisdiction, holding the Fed. R. Civ. P. 54(b) certification was deficient. Fed. R. Civ. P. 60(b) provides this Court the perfect opportunity to revisit its Order of Dismissal in light of the Supreme Court's decision in Exxon Mobile Corp. v. Saudi Basic Indus. Corp. And while collateral estoppel has been suggested as an alternate basis for dismissal, collateral estoppel cannot support dismissal in this case. Accordingly, AWDI seeks relief from the Order of Dismissal and requests the parties now be allowed to proceed to trial. II. PROCEDURAL HISTORY

On January 11, 2001, Stockman's Water Company, LLC ("Stockman's") filed its complaint against Vaca Partners, L.P. ("Vaca"), Farallon Capital Management, LLC ("Farallon"), and Jason Fish. AWDI intervened on April 13, 2001. The litigation proceeded through discovery and motions. Trial was set for fall of 2002 but was postponed. On August 8, 2003, Defendants filed their Suggestion that the Court Lacks Subject Matter Jurisdiction over the Claims of Peter Hornick and American Water Development, Inc., arguing Rooker-Feldman stripped this Court of jurisdiction. On December 31, 2003 this Court ruled that Rooker-Feldman divested the Court of jurisdiction to hear AWDI's claims ("Order of Dismissal"). AWDI appealed the Order of Dismissal to the Tenth Circuit. This Court granted Rule 54(b) certification on May 18, 2004. During the briefing of the appeal, the United States Supreme Court granted certiorari in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 364 F.3d 102 (3rd. Cir. 2004). Since Exxon involved the determination of the scope of the Rooker-Feldman doctrine and would be relevant to--if not dispositive of--the current appeal, the parties sought and received a stay of the appellate proceedings until the Supreme Court ruled in Exxon. 2
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After the Supreme Court ruled on the scope of the Rooker-Feldman doctrine on March 30, 2005 in Exxon Mobile Corp. v. Saudi Basic Indus. Corp., ___U.S.___, 125 S.Ct. 1517 (2005), supplemental briefing in the Tenth Circuit was completed. However, the Tenth Circuit failed to address the Rooker-Feldman issue by dismissing the appeal, holding this Court's Rule 54(b) certification was deficient. AWDI now moves this Court for relief from the Order of Dismissal under Fed. R. Civ. P. 60(b), due to the change in controlling authority so it may proceed to trial or, in the alternative, requests entry of judgment pursuant to Fed. R. Civ. P. 58(d) in order to again pursue the issue in the Tenth Circuit. III. STATEMENT OF THE FACTS

All disputes in both state and federal actions involve various rights and duties granted by an Assignment of Gross Revenue Interest ("AGRI"). Pursuant to the AGRI, Cabeza de Vaca Land & Cattle Co., LLC ("Cabeza") was not permitted to make any Disposition of the Water Assets without having first obtained a release ("Release") from AWDI of certain security documents, including AWDI's senior Deed of Trust and an Assignment of Rents ("Security Documents") which secured the AGRI. (See AGRI, §II(A), Exhibit A.) By its complaint in intervention, AWDI asserted Defendants had failed, and caused Cabeza to fail, to develop the Water Assets, thereby breaching the AGRI and its implied covenant of good faith and fair dealing, and the Defendants had tortiously interfered with Cabeza's performance under the AGRI. Defendants twice sought--and were denied--summary judgment on AWDI's claims in the Federal Action. Having lost summary judgment, Vaca sought to gain control of the Ranch and Water Assets by filing a separate state court action against Cabeza to foreclose its junior deed of trust on the Ranch due to non-payment of the Note executed by Cabeza, which Vaca controlled. Also, 3
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while the Federal Action was ongoing, AWDI and Cabeza arbitrated the limited issue of the allocation of the value of the Water Assets under the AGRI. The arbitration panel held that the value of the Water Assets was $6,940,000 and awarded AWDI its 10% allowed under the AGRI of $694,000. Once this value was determined, the arbitration panel completed its duties. Therefore, the arbitration panel did not, and could not, properly consider the scope of Cabeza's obligation under the AGRI, including the scope of its obligations of good faith and fair dealing. Instead, it merely allocated the proceeds from the proposed sale of the property. Ignoring any interest or claim secured by AWDI's Deed of Trust other than the 10% interest in proceeds from the proposed Disposition, on January 22, 2003, Cabeza tendered a check for $694,000 to AWDI, as "payment of the debt ordered to be paid" by the arbitration panel, and demanded AWDI's release of the Security Documents. On January 23, 2003, AWDI returned the check along with a letter stating that the tender was premature because AWDI had pending claims in the Federal Action that were also secured by the Security Documents. Again the Defendants turned to the state court. On January 24, 2003, Cabeza, Vaca and Farallon petitioned the state court to have AWDI's Security Documents declared spurious under C.R.S. §§ 38-35-204(1) and 109(3). On March 18, 2003, the state court held a show-cause hearing under Colorado's Spurious Lien Act. The sole issue was the application of the Spurious Lien Act and the court neither addressed, nor needed to address, AWDI's federal court claims for declaratory judgment of AWDI's rights under the AGRI, tortious interference and breach of covenant of good faith and fair dealing, nor did the court address directly, or need to address, AWDI's state court claim for breach of the AGRI and Deed of Trust. In an Order dated May 9, 2003, the State Court found the Security Documents to be spurious liens and ordered the Security 4
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Documents released. In this Order, the State Court remarked that AWDI was in breach of the AGRI by failing to have released the Security Documents upon Cabeza's tender. (See May 9, 2003 Order, Exhibit B.) By an Order dated August 7, 2003, the State Court certified the May Orders as a final judgment under Colo. R. Civ. P. 54(b), but clarified the limited scope of the May Orders. The Court explained: However [Cabeza, Vaca and Farallon's] desire to have the Court enter a Final Judgment on all claims is premature. Had the parties addressed all issues under Rule 56, the Court might have been able to address them all. But this Court does not have the benefit of those procedures and the Court is not prepared to say that the existing Order from May 9, 2003, does or does not make moot or resolve all claims. (Emphasis added). Although the Colorado Court of Appeals affirmed the court's May 9 Order, the state court has not yet entered any judgment with respect to the remaining claims pleaded. On August 8, 2003, Defendants filed a motion under Fed. R. Civ. P. 12(h) with this Court suggesting it lacked jurisdiction over AWDI's claims under the Rooker-Feldman doctrine. On December 30, 2003, this Court dismissed the AWDI complaint in intervention, determining that it lacked jurisdiction to hear AWDI's claims under the Rooker-Feldman doctrine. AWDI appealed to the Tenth Circuit, which stayed the appeal pending a decision by the Supreme Court in Exxon. The Supreme Court in that case held Rooker-Feldman can never apply to a federal action commenced before the state court ruling at issue. See Exxon, 125 S.Ct. at 1520. In the case at bar, not only was the Federal Action filed before the state court ruling, but it was filed long before the State Action had even been initiated. Defendants have conceded Exxon bars application of Rooker-Feldman in this case, stating in their Brief to the Tenth Circuit: Because the judgment entered in the state court action was rendered after the federal district court proceedings were commenced--in fact, the state court action was filed after the federal court action was filed--the Rooker-Feldman doctrine is 5
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inapplicable. (See Supplemental Brief, p. 3, Exhibit C.) Defendants, however, argued that collateral estoppel also barred AWDI's claims. The Tenth Circuit failed to address any of the issues on the merits and simply ruled that the Rule 54(b) certification for the Order of Dismissal was deficient and dismissed the appeal. Now that the Supreme Court ruling in Exxon plainly bars application of the Rooker-Feldman doctrine in this case, AWDI seeks relief from the Order of Dismissal in order to finally resolve the substantive issues in this case at trial, as the parties were ready to do immediately prior to the entry of the Order of Dismissal. IV. A. ARGUMENT

Fed. R. Civ. P. 60(b) Provides This Court With the Perfect Opportunity to Revisit Its Order of Dismissal in Light of New Controlling Authority.

Fed. R. Civ. P. 60(b) allows AWDI to file a motion for relief from order within a "reasonable time" on the grounds of "mistake, inadvertence, surprise, or excusable neglect ... a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application" or for "any other reason justifying relief from the operation of the judgment." The court in Watson v. Symons Corp., 121 F.R.D. 351 (N.D. Ill. 1988) held that it was a proper use of Rule 60 to call attention to the trial court an intervening controlling appellate decision: [A] 60(b)(1) motion filed within the time for an appeal is a proper means for calling the trial court's attention to an intervening controlling appellate decision ... [since] [t]his practice allows the trial court to correct a decision that would otherwise be corrected by a timely appeal. Id. at 353, citing Peacock v. Board of Sch. Comm'rs of Indianapolis, 721 F.2d 210, 214 (7th Cir. 1983); D.C. Federation of Civil Ass'ns v. Volpe, 520 F.2d 451 (D.C. Cir. 1975). In addition to

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the D.C. and Seventh Circuits cited above, other jurisdictions and treatises have looked at this exact issue and found that a Rule 60(b) Motion is appropriate where the legal authority the trial court relied on was subsequently overruled: Under such circumstances there is indeed good sense in permitting the trial court to correct its own error and, if it refuses, in allowing a timely appeal from the refusal; no good purpose is served by requiring the parties to appeal to a higher court, often requiring remand for further trial proceedings, when the trial court is equally able to correct its decision in the light of new authority on application made within the time permitted for appeal. Schildhaus v. Moe, 335 F.2d 529, 531 (2d Cir. 1964), citing Tarkington v. U.S. Lines Co., 222 F. 2d 358, 359 (2d Cir. 1955). The district court found that it could entertain Pruitt's motion for reconsideration under the provisions of Rule 60(b) of the Federal Rules of Civil Procedure. The district court adopted a construction of that rule which read the term "mistake" to encompass judicial mistake in applying the appropriate law. This view of the rule is that urged by the most noted commentators ... and has, apparently, been accepted by this court. Oliver v. Home Indem. Co., 470 F.2d 329, 330 (5th Cir. 1972). The exact situation discussed above exists here. The Order of Dismissal of December 31, 2003 expressly relied on the Rooker-Feldman doctrine--and only that doctrine--in dismissing AWDI's claims. (See Order of Dismissal, Exhibit B) The Tenth Circuit ultimately dismissed the appeal on October 12, 2005. Since the Order of Dismissal arguably became a final judgment on September 28, 2005, upon the stipulated dismissal of the remaining claims in the Federal Action, AWDI is within its appeal deadline, which is October 28, 2005. Since this Court issued its Order of Dismissal, the United States Supreme Court has ruled that in order for the Rooker-Feldman doctrine to strip a federal court of jurisdiction, the state court ruling at issue must have been issued prior to the commencement of the Federal Action:

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The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state court losers complaining of injuries caused by state court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. See Exxon, 125 S.Ct. at 1521-22 (emphasis added). Defendants admitted in their appellate brief that the Exxon ruling bars application of the Rooker-Feldman doctrine to this case. Therefore, no doubt exists that the Rooker-Feldman doctrine cannot be the basis for a dismissal of AWDI's claims in this case. Accordingly, AWDI seeks relief from the Order of Dismissal to avoid a wasteful appeal and requests that it be allowed to proceed to trial. B. AWDI's Claims Are Not Barred By Collateral Estoppel.

Defendants argued in a supplemental brief to the Tenth Circuit that collateral estoppel barred AWDI's claims. However, collateral estoppel clearly provides no such bar. The statement by the State Court in its May 9, 2003 Order that AWDI was in breach of the AGRI related only to the Petition under the Spurious Lien Act--specifically pertaining to AWDI's refusal to accept Cabeza's tender--and not the entire case on the merits, and certainly not to AWDI's claims in the Federal Action. Even the State Court has refused to hold that its statements in the May 9, 2003 Order are conclusive to AWDI's state court claims against Cabeza and Vaca for breach of the AGRI. Indeed, the May 9, 2003 Order was a specific order on a specific issue which was not intended by the State Court to be dispositive of all claims. Generally, the doctrine of collateral estoppel precludes relitigation of an issue that was already litigated and decided in a previous proceeding. See Grynberg v. Arkansas Okla. Gas Corp., 116 P.3d 1260, 1263 (Colo. App. 2005). The following four factors must all be satisfied to apply the doctrine of collateral estoppel:

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(1) the issue precluded is identical to an issue actually determined in the prior proceeding; (2) the party against whom estoppel is asserted was a party in the prior proceeding; (3) there is a final judgment on the merits in the prior proceeding; and (4) the party against whom estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Id. While AWDI is a party to the state court proceeding under the second prong, none of the remaining three prongs are met here to justify the application of collateral estoppel. 1. There Has Been No Final Judgment.

The third prong for the application of collateral estoppel is that "there is a final judgment on the merits in the prior proceeding." Grynberg, 116 P.3d at 1263. Defendants have argued the state court finding is tantamount to a final judgment since the May 9, 2004 Order was affirmed on appeal. However, only the issue of whether the liens asserted by AWDI were spurious was certified and appealed to the Colorado Court of Appeals. The broader issue of whether the parties breached any aspect of the AGRI has not been the subject of any final judgment. Indeed, the State Court has specifically and expressly refused to issue a final judgment on AWDI's claims for breach of the AGRI. Defendants' state court Motion for Entry of Final Judgment, arguing this exact issue, has been rejected. The State Court has similarly refused to rule on Defendants' Motion for Summary Judgment again arguing this issue. In effect, Defendants would have this Court give greater weight to the state court order than that very State Court is willing to give. It may be true that the issue of whether AWDI asserted spurious liens or not has been reduced to final judgment; but that is an issue that is not before this Court. However, it cannot be said that the issue of Defendants' breach of the AGRI under all circumstances has been similarly reduced to a final judgment, especially while that exact issue remains in dispute in state court. Since the breach of contract claims have not been reduced to a final judgment, collateral estoppel cannot

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apply. Indeed, that is why Defendants tried to invoke Rooker-Feldman to begin with. 2. The State Court Dicta is Neither Identical to the Issues Here, Nor Was it Actually or Necessarily Determined By the State Court.

"To satisfy the first element of collateral estoppel, the issue to be precluded must be identical to an issue actually litigated and necessarily adjudicated in the prior proceeding." Id. citing Bebo Constr. Co. v. Mattox & O'Brien, P.C., 990 P.2d 78 (Colo. 1999). The sole issue before the State Court was determining whether the liens AWDI had on the property were valid or spurious. The only breach of the AGRI that was at issue in the State Court was whether AWDI had to release the Security Documents. This was only one of the many issues with respect to various claimed breaches under the AGRI. The May 9, 2005 Order was not intended to encompass all of AWDI's claims for breach of the AGRI and Deed of Trust. Further, the Federal Action concerns only facts that occurred prior to the State Action being filed, and the State Action concerns only facts that occurred after the Federal Action was filed, demonstrating their real differences. The remarks made by the State Court in its May 9, 2003 Order and the broader issues of contract and tort in this Federal Action are clearly not identical. In this case AWDI is asserting claims for declaratory judgment under the AGRI, tortious interference against Defendants for interfering with Cabeza's performance of the AGRI, and breach of covenant of good faith and fair dealing. These claims have little, if anything, to do with the issue of a spurious lien and/or the Security Documents. Just as the State Court has declined to hold that its statements in the May 9, 2003 Order that were particular to the issues of the spurious lien motion dispose of the broader breach of contract issues, this Court should similarly determine that such a particular finding is not controlling here. Additionally, the broader breach of contract issues were not actually litigated as the only 10
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issue before the State Court was whether the Security Documents constituted spurious liens. And since only the validity of the liens and Security Documents were at issue in the state court proceeding, the statement by the State Court that AWDI was in breach of the AGRI, especially as it might relate to areas of the AGRI that were not discussed, was not necessary to the state court's ruling under the Spurious Lien Act. 3. Since AWDI's Broader Claims Were Not at Issue at the SpuriousLien Hearing, It Has Not Had a Full and Fair Opportunity to Litigate All Issues relating to any Breach of the AGRI.

The fourth prong that must be satisfied for collateral estoppel is that AWDI must have had "a full and fair opportunity to litigate the issue in the prior proceedings." Grynberg, 116 P.3d at 1263. Defendants argue that the State Court's statement in the May 9, 2003 Order demonstrates that Defendants were never in breach of the AGRI. Clearly this broader issue was not before the State Court at the spurious lien hearing and AWDI has yet to have a full and fair opportunity to litigate the issue. In order to determine if a party against whom estoppel is asserted had a full and fair opportunity to litigate the issue claimed to have been decided in a previous proceeding, the following factors are considered: (1) whether the remedies and procedures of the first proceeding are substantially different from the proceeding in which collateral estoppel is asserted, (2) whether the party against whom collateral estoppel is asserted had sufficient incentive to litigate vigorously, and (3) the extent to which the issues are identical. Id. at 1265. The spurious lien hearing was not an evidentiary hearing on the merits for all of AWDI's claims. To allow counsel to expand the limited scope of the hearing, after the fact, and use it to preclude AWDI from litigating its remaining claims and issues would violate AWDI's right to due process. Bebo Constr. Co. v. Mattox & O'Brien, P.C. et al., 990 P.2d 78, 87 (Colo. 1999); 11
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Pomeroy v. Waitkus, 517 P.2d 396, 400 (Colo. 1997). In enacting C.R.S. § 38-35-201, the intent of the General Assembly was to halt the filing of invalid liens against real property. People v. Marston, 772 P.2d 615, 617 (Colo. 1989). "The relevant inquiry at the preliminary hearing on probable cause is whether [a person] knew or had reason to know the filing of the document would unjustifiably cloud the property's title." Id. at 617. The preliminary hearing to show cause is conducted pursuant to C.R.S. § 38-35-204, which provides in pertinent part that the Order to Show Cause shall: (a) Direct any lien claimant and any person who recorded or filed the lien or document to appear as respondent before the court at a time and place certain not less than ten days nor more than twenty days after service of the order to show cause why the lien or document should not be declared invalid and why such other relief provided for by this section should not be granted; C.R.S. § 38-35-204(1) (emphasis added). C.R.S. § 38-35-204(2) provides that following a hearing on an order to show cause: If ... the court determines that the lien or document is a spurious lien or spurious document, the court shall make findings of fact and enter an order and decree declaring the spurious lien or spurious document and any related notice of lis pendens invalid, releasing the recorded or filed spurious lien or spurious document, and entering a monetary judgment in the amount of the petitioner's costs, including reasonable attorney fees, against any respondent and in favor of the petitioner. A court's determination pursuant to C.R.S. § 38-35-204(2) is limited solely: (1) to declare whether the lien or document is (or is not) spurious; and (2) to award costs and attorney fees to the prevailing party. Here, the State Court found that AWDI breached the AGRI by refusing to accept Cabeza's tender, and that such refusal rendered the Security Documents spurious. (See Exhibit B.) Consequently, the court declared the Security Documents invalid and ordered

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them released. Id. No other issues were before the State Court. These preliminary hearings under the Spurious Lien Act are analogous to a hearing for a preliminary injunction. "In granting a preliminary injunction, the court should not attempt to do what can be done only after a full hearing and final decree." Litinsky v. Querard, 683 P.2d 816, 818 (Colo. Ct. App. 1984). The grant or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. Id. Factual findings made in a preliminary injunction hearing may not sua sponte be used to dispose of an action. Governor's Ranch Prof'l Ctr., Ltd. v. Mercy of Colo., Inc., 793 P.2d at 650. The State Court's determination at the preliminary hearing neither amounted to an adjudication or a sua sponte disposition of all of AWDI's claims, as evidenced by the State Court's refusal to issue a final judgment on the claims or to rule on summary judgment. Thus, it is especially true that the even broader issues presented in this Federal Action for injunctive relief, declaratory judgment, tortious interference and breach of covenant of good faith and fair dealing have not been fully litigated and should not be precluded. A determination of whether liens are spurious is simply not identical to the entirety of AWDI's claims in this matter. The proceedings were particular to spurious lien issues and the issue AWDI was charged to defend was merely the validity of its liens, not the entirety of its case. Most notably, the fact that the State Court has refused to find that the May 9, 2003 Order constitutes or supports a final judgment on AWDI's breach of contract claims demonstrates that the issue has not been fully and fairly litigated. Accordingly, collateral estoppel cannot be used to bar AWDI's ability to properly, and finally, litigate its claims.

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C.

AWDI Requests Entry of Final Judgment.

The Order of Dismissal was issued on December 31, 2003. AWDI requested Rule 54(b) certification of a final judgment to appeal the issue, which this Court granted on May 18, 2004. As the parties to the appeal were awaiting a pending ruling from the Tenth Circuit, this Court granted a Stipulated Dismissal and dismissed the remaining claims without prejudice on September 28, 2005. On October 12, 2005, the Tenth Circuit issued its ruling that the Rule 54(b) certification was defective and dismissed the appeal. AWDI is now faced with the situation where its appeal has been dismissed for a lack of a final judgment. Therefore, in order to assure that AWDI may properly present the issue for appeal, and if relief under Fed. R. Civ. P. 60(b) is not granted, AWDI requests this Court issue a final judgment pursuant to Fed. R. Civ. P. 58(d). WHEREFORE, AWDI respectfully requests this Court vacate the Order of Dismissal issued on December 31, 2003 and allow AWDI to proceed to trial on its remaining claims, or in the alternative, issue a final judgment on the Order of Dismissal so that the issue can be properly resolved on appeal. s/ Richard I. Brown Patrick J. Casey LOTTNER RUBIN FISHMAN BROWN & SAUL, PC 633 Seventeenth Street, Suite 2700 Denver, CO 80202 Telephone (303) 292-1200

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 21st day of October 2005 a true and correct copy of the foregoing MODIFIED MOTION FOR RELIEF FROM ORDER was served via the CM/ECF system, addressed as follows: Allan L. Hale, Esq. John G. Lubitz, Esq. Robert G. Hoban, Esq. HALE FRIESEN, LLP 1430 Wynkoop St., Suite 300 Denver, CO 80202 Attorneys for Stockman's Water Co. and Gary Boyce Elliot R. Peters, Esq. Michael S. Kwun, Esq. KEKER & VAN NEXT, LLP 710 Sansome Street San Francisco, CA 94111-1704 Attorneys for Vaca Partners, LP and Farrallon Capital Mgmt., LLC, and Jason Fish Robert J. Bruce, Esq. LINDSEY & BRUCE, P.C. 730 17th Street, Ste. 370 Denver, CO 80202 Attorneys for Peter Hornick Stanley L. Garnett, Esq. A. W. Victoria Jacobs, Esq. Susan P. Klopman, Esq. Annie T. Kao, Esq. BROWNSTEIN HYATT & FARBER, PC 410 17th St., Suite 2200 Denver, CO 80202-4437 Attorneys for Vaca Partners, LP and Farrallon Capital Mgmt., LLC, and Jason Fish Scott Sundrstrom, Esq. NYEMASTER GOOD VOIGTS WEST HANSELL & O'BRIEN 700 Walnut Street, Ste. 1600 Des Moines, IA 50399-3899 Attorneys for Vaca Partners, LP and Farrallon Capital Mgmt., LLC, and Jason Fish

s/ Ed Wesselhoff

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