Free Supplement - District Court of Arizona - Arizona

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Christopher R. Kaup State Bar No. 014820 Andrew M. Ellis State Bar No. 018326
Third Floor Camelback Esplanade II 2525 East Camelback Road PHOENIX, ARIZONA 85016B4237 TELEPHONE: (602) 255-6000 FACSIMILE: (602) 255-0103

Counsel for Plaintiff Biltmore Associates, Trustee of the Visitalk.com Creditors' Trust UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA BILTMORE ASSOCIATES, as Trustee for the Visitalk Creditors' Trust, Plaintiff, vs. PETER THIMMESCH, et al.,

Case No. CV 02-2405 PHX HRH PLAINTIFF'S SUPPLEMENT TO ITS SEPARATE STATEMENT OF ISSUES IN THE JOINT STATEMENT OF ISSUES; JOINT STATEMENT OF UNDISPUTED FACTS AND LISTS OF WITNESSES (Assigned to the Honorable H. Russel Holland)

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Defendants.

Plaintiff, Biltmore Associates ("Biltmore" or "Plaintiff"), as the Trustee of the Visitalk Creditors Trust, hereby supplements its Separate Statement of Issues contained in Section II of the Joint Statement of Issues; Joint Statement of Undisputed Facts and Lists of Witnesses previously filed with this Court. /// /// ///

Filed 02/29/2008 -1-

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Plainti load ff seeks to add the following subsection to Section II: E. DEEPENING INSOLVENCY DAMAGES.

Plaintiff believes this Court is required to consider the following decisional authority in ruling on and determining the amount of damages to award in this case: Damages may be awarded under the deepening insolvency theory against Defendant Snell & Wilmer based upon a calculation of the increased debt against the

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company or the dissipation of its assets. See Florida Dep't of Ins., v. Chase Bank of Texas, 274 F.3d 924, 935 (5th Cir. 2001)(Observing that "[d]amages are measured by the dissipation of assets or the increased debt" occurring after the act giving rise to the claim); In re Flagship Healthcare, Inc., 269 B.R. 721, 728 (Bankr. S.D.Fla. 2001)(Stating that "the additional debt incurred thereafter, and allegedly as a result of defendant's negligence, may provide a measure of damages recoverable by the Trustee."); In re Latin Inv. Corp. , 168 B.R. 1, 3 - 5 (Bankr. D.Col. 1993)(Finding that the defendants and the

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debtor's principals "work[ed] together to perpetuate the existence of the debtor" which caused the debtor to incur substantial additional obligations" and "suffer depletion of funds amounting to over $6,461,266.91"); Hanover Corp., v. Beckner, 211 B.R. 849, 854 (D. M.D.La. 1997)(noting that the "aggravation of insolvency . . . has been considered to constitute injury to the corporation" and the "corporation's alleged damages include the amount of indebtedness incurred.").

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RESPECTFULLY SUBMITTED February 28, 2008. TIFFANY & BOSCO, P.A.

By: ____C.K. 014820_________________ Christopher R. Kaup Andrew M. Ellis Third Floor Camelback Esplanade II 2525 East Camelback Road Phoenix, Arizona 85016-4237 Counsel for Biltmore Associates, Trustee of the Visitalk.com Creditors' Trust CERTIFICATE OF SERVICE

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I hereby certify that on February 28, 2008, I electronically transmitted this Motion with the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Timothy J. Thomason Scott Claus Mariscal, Weeks, McIntyre & Friedlander, P.A. 2901 N. Central Avenue, Suite 200 Phoenix, AZ 85012 Attorneys for Defendant Snell & Wilmer, LLP

s/ Lauri F. Andrisani COPIES of the foregoing were mailed on February 28, 2008, via first class mail postage prepaid to: Honorable H. Russell Holland Peter Thimmesch United States District Court 11337 Stonehouse Place 222 West 7th Avenue - No. 54 Potomac Falls, VA 20165 Anchorage, Alaska 99513 s/ Lauri F. Andrisani