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Larchmont Holdings, LLC v. North Shore Services, LLC

United States District Court, W.D. Wisconsin

November 9, 2017

LARCHMONT HOLDINGS, LLC, Plaintiff,
v.
NORTH SHORE SERVICES, LLC and WILLIAM BETHKE, Defendants.

          OPINION AND ORDER

          STEPHEN L. CROCKER Magistrate Judge

         This lawsuit presents a land contract dispute that arises out of a failed frac sand mining venture. Jurisdiction is present under 28 U.S.C. § 1332. See Jan. 13, 2017 Ord., dkt. 41 (denying motion to dismiss for lack of diversity jurisdiction). Plaintiff Larchmont Holdings, LLC (created by David Westrate, Neil Benham, and Patricia and Richard McHugh) agreed to pay defendant William Bethke and his LLC, North Shore Services (hereafter collectively referred to as North Shore) $4 million on a land contract for 300 acres of wooded land in North Central Wisconsin. Larchmont anticipated that it could quickly assemble and bring on line a frac sand mine from which Larchmont's members would reap millions in yearly profits and pay off the land contract. The mining operation never got off the ground, which left Larchmont with half a square mile of forest and past due installment payments on the land contract's $2, 275, 000 balance. So, Larchmont brought this lawsuit, asserting seven different claims for relief. See Second Amended Complaint, dkt. 56. In its answer, North Shore filed counterclaims for strict foreclosure on its land contract and for breach of the implied duty of good faith and fair dealing. See dkt. 58 at 57.

         Before the court is North Shore's motion for summary judgment on its strict foreclosure counterclaim and on all seven of Larchmont's contract-related claims. See dkt. 73. North Shore has not moved for summary judgment on its counterclaim for breach of the implied covenant of good faith and fair dealing. See dkt. 58. In its response, Larchmont has raised a series of affirmative defenses to North Shore's claim for strict foreclosure. See dkt. 91 at 17- 18.

         For the reasons explained below, I am granting North Shore's motion for summary judgment against all seven of Larchmont's contract claims. As for North Shore's motion for summary judgment on its strict foreclosure claim, I conclude that North Shore has the right of strict foreclosure under the terms of the land contract and has satisfied the elements of such a claim. That said, I am denying North Shore's motion because it has not developed an argument that some of Larchmont's affirmative defenses-specifically laches, equitable estoppel, and unclean hands-fail as a matter of law.

         PRELIMINARY PROCEDURAL OBSERVATIONS

         During the court's review and analysis of the summary judgment submissions, I found that, while the attorneys for both sides presented work that is well-above-average, sometimes they said too much, other times they said too little.

         As for the “too much, ” both parties failed to comply consistently with the court's summary judgment procedures, which are provided in the preliminary pretrial conference order (dkt. 22).

         The procedures state that

When a responding party disputes a proposed finding of fact, the response must be limited to those facts necessary to raise a dispute. The court will disregard any new facts that are not directly responsive to the proposed fact. If a responding party believes that more facts are necessary to tell its story, it should include them in its own proposed facts, as discussed in II.B.
Proc. to be Followed on Mot. For Summ. Judg.

         Contrary to this directive, both parties included new facts-often several paragraphs of new facts-in several of their responses to the opposing party's proposed findings of fact. Accordingly, I have disregarded new facts included only in a party's response to a proposed finding of fact. Abraham v. Wash. Grp. Int'l, Inc., 766 F.3d 735, 737 (7th Cir. 2014) (“[T]his Circuit has routinely held that a district court may strictly enforce compliance with its local rules regarding summary judgment motions.”); Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 630-31 (7th Cir. 2010) (holding that the district court did not err when it deemed the defendant's proposed findings of fact admitted and refused to consider additional facts for the plaintiff's failure to follow the local procedures on proposed findings of fact).

         North Shore also contends that Larchmont has proposed several findings of fact that are duplicative of its responses to defendants' proposed findings of fact, thereby ignoring the procedural requirement that the “purpose of additional findings of fact [by the non-moving party] is to SUPPLEMENT the moving party's proposed findings of fact, not to dispute any facts proposed by the moving party.” Proc., § II.B.2 at 7. Although I agree that Larchmont proposed findings of fact that duplicate its responses to North Shore's proposed factual findings, I did not see Larchmont violating this procedural requirement by proposing additional facts in lieu of providing responses to defendants' proposed findings.

         As for the “too little, ” notwithstanding the length, detail, and general thoroughness of their presentations, both sides waived arguments by failing properly to present them. As noted below where this occurred, this court does not have the time or resources to explore or analyze matters left unexplored or unanalyzed by the parties. So, pursuant to circuit law, the court has enforced the waivers against the waiving party.

         UNDISPUTED FACTS

         The following facts are undisputed except where noted.

         I. The Parties

         Plaintiff Larchmont Holdings, LLC is a limited liability company organized under the laws of the State of Wisconsin on December 18, 2012, with its principal place of business in Eau Claire, Wisconsin. The members of Larchmont include David Westrate's Roth IRA and traditional IRA, Dr. Neal Benham's Roth IRA, Patricia and Richard McHugh, and Oakdale, LLC. Oakdale LLC's members are David Westrate and the Westerberry Family Trust.

         Defendant North Shore Services, LLC is a limited liability company organized under the laws of the Wisconsin on October 18, 2000, with its principal place of business in Eau Claire, Wisconsin. William Bethke, a citizen of Wisconsin, is the sole member of North Shore. For ease of reference, I will usually refer to the defendants collectively as North Shore (primarily in the legal analysis) but will separate them when necessary for clarity (primarily in the facts).

         In 2011, North Shore LLC owned approximately 300 acres of land in Jackson County, Wisconsin (“the Property”).

         Benham and Bethke both are dentists and they have shared a dental office building in Eau Claire, Wisconsin, for over 25 years. Benham and Westrate are friends and both were involved in the negotiations with Bethke for the purchase of the Property on December 20, 2012. Although McHugh was a purchaser, he did not meet Bethke until sometime in 2013.

         In a September 2013 email, Westrate described the members of Larchmont as retired or nearly retired businessmen who each has done business in Eau Claire for more than 40 years and who have a total of more than 150 years of diverse business experience. Westrate has a masters degree in economics and was the president of an Eau Claire company that created and marketed legal education seminars. Westrate has served on the board of directors of Citizens Community Federal Bank in Eau Claire since 1993. McHugh started Choice Products USA, LLC and served as its president for almost 30 years and served as chairman of the board of directors for Citizens Community Federal Bank for decades.

         II. Benham and Westrate Search for Frac Sand Mining Sites

         Around September 2011, Benham started to look for properties to buy in Eau Claire County and Jackson County as possible sites for frac sand mining.[1] On November 7, 2011, Benham met with Mel Bollom, a professional in the sand industry.[2] The two had a wide-ranging discussion about the frac sand market, including how quickly a prospective buyer would need to move into the market, how quickly a buyer could expect to make profits, the total initial investment that would be required, how big a parcel of land would be required, the logistics of transporting mined sand, and the permitting required. After this meeting, Bollom told Benham in an email that “the sand buying companies have made most of their site selections, ” that “to be in a marketable position” Benham would need to be “in the marketplace within 30-60 days” and that “if this land is located in a non-zoned township, it is a far more desirable situation than a site controlled by county zoning (but, Jackson County is a better County to deal with than Chippewa or Eau Claire).”

         Benham approached his friend, David Westrate, about buying land together to develop a frac sand mine. Westrate was receptive, so in 2011 and 2012, Westrate and Benham visited potential frac sand investment properties with Bollom. By late 2011 or early 2012, Benham approached Bethke about developing the Property-and possibly other nearby properties-as a sand mine. In December 2011 and February 2012, Bollom visited Benham's and Bethke's dental offices to provide an informal presentation about the frac sand industry. Jim Geraghty, Mark Sontag, and Jeff Jones, who all were landowners who owned property near the Property, also were present. (The parties dispute what these individuals understood Bollom's intended role would be with respect to the group.)

         On March 7, 2012, Benham emailed Wisconsin's Department of Natural Resources (DNR), stating that he was “getting ready to open a sand mine in Jackson County and would like to know what are the clean air regulations and any permitting that is required.” On March 9, 2012, the DNR responded that the limited information provided about the proposal made “it difficult to tell” which DNR permits would be needed, but that “in addition to an air permit, ” the “[t]ypical permits” would include “non[-]metallic mining[, ] general stormwater permits, high capacity well permits, potential wetlands permits and endangered and threatened species and archeological reviews. In addition the counties administer NR 135 non[-]metallic mining reclamation permits.”

         Benham also began researching the machinery needed for sand mining. After being told on May 18, 2012 about an 80-acre plot in the Dover, Wisconsin that was “adjacent to other tested and proven frac land” possibly coming on the market, Benham indicated that he was “[r]eady to move ASAP.”

         III. Bethke's Actions With Respect to Using the Property for Frac Sand

         In November 2011, Bethke began learning more about sand mining and began investigating whether the Property had frac sand reserves. He provided samples of sand from the Property to Bollom for testing, and those samples looked promising. Bollom also worked with Bethke, Benham, and others to collect and analyze sand samples from the nearby properties owned by Geraghty, Sontag, and Jones. On March 10, 2012, Bethke and his then-girlfriend (now wife), Connie Brenny, joined Benham on a visit to a sand processing operation owned by Badger Mining Corporation, in Merrillan, Wisconsin, less than ten miles from the Property.

         In an email to Bollum dated March 31, 2012, Bethke stated that he was “leaning towards selling the whole property. I enjoy treating [patients]. I know there is a lot of money to be made in a frac sand operation. But I think I would prefer to sell the 300 plus acres and let someone else run with it.” During the summer and fall of 2012, Bethke still was considering various potential ways to sell the Property, including selling the Property by itself or potentially selling the Property in a package deal involving neighboring landowners. In late July and August 2012, Bethke considered having Robert Archibald, a frac sand industry consultant, represent him as a broker to sell the property. On July 31, 2012, a testing company notified Bethke that the samples from his land showed it to contain “excellent sand” and “very good frac sand.” On the same day, Bollom told Benham in an email that Bethke was “giving thought to how he might arrange some type of land contract sale on a portion of [his] land.”

         As part of Bethke's investigation into finding potential buyers, Connie Brenny emailed Badger Mining Corporation on August 8, 2012 to see if that company would be interested in seeing Bethke's positive test results for the Property. On August 14, 2012, Benham sent a fax to Badger Mining-on Bethke's behalf from the fax machine of their shared office-that included maps of the Property, the sand testing results, and the cover emails from the testing company indicating that it was “excellent sand” and that various tests “all show this to be very good ‘frac' sand.” Bethke sent additional sand test results to Badger Mining in September and October 2012.

         Between September and November 2012, Bollum was showing the Property and some of the nearby properties to sand company representatives who were interested in buying sand. During these visits, Bollum did not focus on the Property because the sand companies would view it as a viable site only in conjunction with the other properties. As late as November 2012, Bethke told Bollum he was doing “good job” when he learned about the visits Bollum arranged with sand companies.

         Also in the fall of 2012, Bethke discussed with a few businesses- Falls River Group, Sand Source Services, and GulfStar Group-possible transactions involving the use or sale of the Property for frac sand mining. Bethke's wife, Connie Brenny, had met Houston lawyer Robert Viguet on a plane, and Viguet was involved in Bethke's discussions with GulfStar and Sand Source. In late October or November 2012, Bethke asked Bryan Frederickson of GulfStar for a contract to represent both his land and that of Geraghty, and Bethke told Westrate this. On November 5, 2012, Bethke informed Westrate and Frederickson that sand companies were continuing to look at his property and that “lots” of groups were interested. Bethke's discussions with Frederickson continued through late November 2012.

         IV. Pre-Contractual Efforts To Change The Property's Zoning

         Based on a suggestion from Bollum, Bethke investigated the process necessary to change the zoning on his property from forestry to industrial. On February 14, 2012, Bethke told Bollum that Terry Schmidt, the head of zoning for Jackson County, told him that approval for mining should take 60 days or less. On or about February 21, 2012, Bethke submitted an application with the Town of Cleveland to have the property's zoning changed from forestry to industrial extractive. However, in May 2012, the town issued a resolution opposing Bethke's zone change petition; Jackson County later relied on that decision in part to deny a zone change petition that Bethke submitted in June 2012. Bethke told Benham about Cleveland's denial of the zoning change around the time it occurred.

         In August 2012, Benham knew that one of the reasons Bethke's zone change application was denied was regarding concerns about the effect on the 40-acre parcel owned by the Zillmer Family Trust that was bounded by Bethke's property. On August 5, 2012, Benham emailed one of the Zillmers to let them know that he was interested in the 40 acres and would entertain any offer to purchase it. (The parties dispute whether Bethke told Benham that the other issues that he had with the zoning petition had been resolved.) In a September 20, 2012 email, Bethke and Brenny told Viguet that Bethke “had already applied for permits and attended some meetings, so the permit process is in the works and should be in place soon.”

         V. Larchmont's Purchase of The Property

         A. Initial Proposals

         On August 15, 2012, Benham emailed Westrate: “Try this scenario. Dave and Neal buy Bill's land for 4M with 1.2M down.” Westrate responded stating that Benham had done a “[n]ice job” and that it “look[ed] like Plan A so far.” In a document titled “SAND PLAN A 8.15.12, ” Westrate wrote: “One problem is that the investors may balk at investing in land that is not paid for, and has $2.8 million debt against it.” On August 18, 2012, Westrate drafted various thoughts about a frac sand mining investment and created a spreadsheet outlining “Plan A, ” which meant buying Bethke's land for $4 million with $1.2 million down, leaving Benham and him with what he considered an “unrealistic” amount of $80, 000 in working capital. Westrate estimated that the various legal, accounting, consulting, permitting, and regulatory costs required to start a mining operation on Bethke's property would require $800, 000 in working capital. He wrote: “It will take upwards of $2.5 million working capital or more, to cover start-up costs and paying the miner/hydrosizer while waiting to sell wet sand and actually get paid. . . . It looks to me like the wet sand plant is more complicated than we have been led to believe.” Westrate also wrote: “I'm beginning to see why Bill wants to sell outright. I'm beginning to understand that there may not be an easy, or cheap, way to do this. We may have to put in more $$, bring in more people, or borrow money, thus increasing risk to our financial futures.” On September 15, 2012, Westrate drafted notes to himself, which he titled “LATEST SAND MINE THOUGHTS, ” and expressed an interest in buying the Property via a land contract. On September 28, 2012, Westrate sent a “Purchase Pro-Forma” spreadsheet to Benham outlining various possibilities for buying the Property at a sale price of either $4 or $5 million. The cover email to that spreadsheet outlined a deal in which Benham, Westrate, and Bollom would form a three-member LLC to purchase the Property.

         On October 28, 2012, Westrate sent Benham an email in which he wrote: “Neal, it is getting close to the end of the year, and events are overtaking us. I think it is getting time for us to buy our share of Bill [Bethke]'s property rather than waiting for the royalty deal to be made . . . If Bill still wants to get this done by the end of the year, let's do it.” Benham replied via email that same day that he would talk to his investment advisors “to make sure” he had “all of the right procedures” in place to move quickly and concluded, “I think the time is now.”

         In the fall of 2012, Westrate and Benham began discussing proposals for a sand mine on the Property. One idea proposed by Westrate was acquiring the Property through the purchase of North Shore's assets. (The parties dispute the exact nature of their conversations with each other during this time period.) Bethke retained Michael Vinopal, an attorney from Eau Claire, to prepare the title conveyances and land contracts on behalf of North Shore with respect of the sale of the Property to Larchmont. Although Vinopal did not represent Larchmont, and Larchmont did not have legal counsel in its negotiations with defendants, Richard Eaton, an attorney in Vinopal's law office, had a role in drafting various versions of an operating agreement that Westrate proposed initially for North Shore and then Larchmont.[3]

         (The parties dispute whether Bethke and his wife met with Westrate and Benham about the Property or discussed frac mining in the fall of 2012, and whether Bethke told Westrate and Benham that he was only interested in selling the Property and not in partnering with them in a frac sand mining operation.)

         B. November 12 Draft Operating Agreement

         On November 15, 2012, Vinopal's office sent Bethke a draft North Shore operating agreement, along with comments from Westrate. The draft provided that (1) Bethke, Westrate, Westrate's IRA, and Benham's IRA would be members of the limited liability company, with Bethke owning 25%; (2) Westrate, Westrate's IRA, and Benham's IRA would pay $4 million to Bethke to purchase their shares of North Shore; (3) they would pay Bethke a down payment of $1.4 million; (4) the remaining $1.6 million in payments to Bethke would be made over a three-year period; and (5) “[t]he members anticipate that the payments will be made from periodic royalty payments received for the removal of sand from the property, ” but “[t]he parties acknowledge that payment in full must be completed within three years, regardless of the source of funds.” Dkt. 77, exh. 13 at 5-7. On December 4, 2012, Bethke faxed a version of Westrate's proposed draft operating agreement and a spreadsheet of property parcels to his financial advisor, Mark Orgel, with a request to “get back to me please.” Orgel discussed the document with Bethke from a financial planning perspective, including making recommendations relating to tax structure. None of the parties signed this draft agreement.

         C. The Badger Mining Offer

         On December 3, 2012, Mathew Hess[4] of Badger Mining Corporation emailed Bethke a proposal with respect to an offer on the Property and adjoining land owned by others. Attached to the email was a spreadsheet entitled “Parcels Offers” in which Hess listed purchase prices that Badger Mining would offer for each of the separately-owned parcels. The offer for the Property was $3, 449, 750. However, Hess stated in his email that “[a]ll five offers would be contingent upon one another as we would need to secure all in order to justify development in this area.” Dkt. 77, exh. 4 at 1. Before leaving for a hunting trip in South Dakota on December 5, 2012, Bethke showed the spreadsheet to Benham. At some point, Bethke also notified Westrate about the offer amount with respect to the Property. (The parties dispute whether Bethke shared the email explaining the contingency with Benham or Westrate.)

         During his drive to South Dakota on December 5, 2012, Bethke spoke to Benham and Hess several times via cell phone regarding the sale of the Property. The other passengers in the vehicle with Bethke-including Greg Bohlig and Don Bethke-heard both sides of these conversations because Bethke's phone was connected by Bluetooth to the vehicle's speaker systems. (The parties dispute what Benham said to Bethke during the phone calls on that day and on what date Bethke made his decision to sell the Property to Benham and Westrate instead of selling to Badger Mining.)

         D. Initial Ideas for a Land Contract

         On Monday, December 10, 2012, Connie Brenny sent Vinopal her understanding of what terms should be included in the land contract, including a purchase price of $4 million, a $2.5 million down payment, three annual payments of $500, 000 to cover the remaining amount, an interest rate of 1.9%, and a provision that the Property would be returned to Bethke in the event of a default. (The parties dispute whether Bethke assured Westrate, Benham, or McHugh that he would never foreclose on the land contract.)

         E. December 12 and 18 Draft Operating Agreements

         On December 12, 2012, Westrate emailed Benham and Bethke a new draft “North Shore Services, LLC Operating Agreement, ” with a cover email that stated that “I think this embodies what it sounded like [Bethke] wants to happen, together with what we need to make it work for us.” Dkt. 77, exh. 41. This draft agreement provided that the Property would be sold for $4 million, with a $1.5 million down payment, three installment payments of $500, 000, and final balloon payment of $1 million. The proposed members of the yet-to-be-incorporated purchasing LLC were Westrate and his Roth IRA, Benham and his Roth IRA, and McHugh. Bethke was identified as the seller in the document but neither he nor North Shore Services LLC was listed in the signature block in the draft operating agreement.

         On December 13, 2012, Bethke faxed a copy of the draft to Orgel with a cover sheet that stated:

I'm quite frustrated with Dave W. He sent me a purchase contract with a down payment of only 1.5m not 2.5. I don't know if he's playing games or just a mistake. But I'm very close to calling Badger and ending it. At 1.5 down it doesn't make sense. I'd be getting 3.5 from Badger now. At a lower tax rate and the money is working for me. If Dave wants to do this he has to decide today or I'll call Badger and be done. Please convey this to Dave.

         On December 18, 2012, Westrate sent a slightly different operating agreement entitled “Larchmont Holdings, LLC Operating Agreement” to Benham, Bethke, and Vinopal. His cover email stated that “this is the deal that I understand will meet everyone's approval.” Dkt. 86, exh. 2 at 1. The draft reiterated the $4 million purchase price but now referenced the fact that a land contract would govern the deal between Larchmont and North Shore:

On or about December 21, 2012, William Bethke entered into an Agreement of Installment Sale with Larchmont Holdings, LLC (the Company), and by extension, the individuals named in Item 2. below as Members of the Company, to sell all shares of North Shore Services, LLC, upon the terms of sale described in the attached Land Contract, incorporated herein by reference.

Id. at 3.

         The drafts that Westrate sent on December 12 and December 18 both stated the following in an introductory paragraph in bold font:

It is the stated intent of all parties to this transaction that the Company will aggressively pursue marketing the frac sand on the property such that the Installment Sales Agreement payments will be made from profits generated by those efforts. To this end, the balance due on Installment Sales Agreement after the down payment made at closing is considered by all parties as a nonrecourse loan, meaning that the loan is secured by the assets of the Company, and not personally guaranteed by the Members, to wit: in the event that the Company is unable, in spite of its best efforts, to profitably market the frac sand on the land and the installment sales payments are not made, the Seller's recourse it to foreclose on the Company. It is agreed by all parties that in light of the offer already received by the Seller, such an event is unlikely.
The Company, on behalf of its Members, accepts the risks inherent in such a natural resources development project as reasonable to the Company and its Members, given their present circumstances, in light of the potential to profit from exploiting the resources on the property.

Id.; dkt. 77, exh. 41.

         Defendants never signed either of these documents or made any statement that North Shore would be paid from the profits of a frac sand operation.

         F. Execution of Agreements on December 20

         On December 20, 2012, the members of the newly-incorporated Larchmont Holdings LLC-namely Westrate and his Roth IRA, Benham's Roth IRA, Patricia and Richard McHugh, and Oakdale, LLC-executed a document titled “Operating Agreement of Larchmont Holdings LLC.” See dkt. 80. The agreement includes an Exhibit A that discusses capital contributions and membership.

         Meanwhile, on December 20, Bethke and Brenny went to Vinopal's office to sign four documents drafted by Vinopal: a four-page form land contract, Exhibit A, Exhibit B, and an Addendum. Vinopal had filled out a Wisconsin State Bar form land contract pursuant to Bethke's instructions: $4 million total for the land, with $1.5 million down, and five installment payments of $500, 000-beginning on May 1, 2013 and continuing on December 1 for the next four years-at an interest rate of 0.9%. The form contract contains a provision allowing the vendor (North Shore) the option to terminate the contract and recover the property through strict foreclosure with a period of redemption to be conditioned upon full payment of the outstanding balance, in the event of a default lasting for a period of 10 days after a payment's due date. The addendum to the land contract gave Bethke exclusive control of hunting rights on the property until the contact was satisfied and provided him a life estate interest in the “cabin and out buildings on the property, the pond and the surrounding property normally associated with the use of the cabin until he is paid in full.” Dkt. 58, exh. 1 at 9.

         The two exhibits attached to the form contract are titled “Legal Descriptions for Land Contract” and “Additional Terms for Land Contract.” Bethke signed the form contract and the addendum, both of which Westrate and McHugh countersigned later that day. Bethke never told Vinopal to include the unsigned December 18 draft of the Larchmont operating agreement as part of the land contract, and it was not included as an exhibit. Vinopal did not record the land contract with the register of deeds, and neither Vinopal nor Bethke has the original signed version of the land contract.

         G. Larchmont's December 22 Resolutions

         On December 22, 2012, Larchmont adopted the following resolutions by unanimous consent:

[O]n or about December 21, 2012, William Bethke agreed to enter into an Agreement of Installment Sale with Larchmont Holdings, LLC (the Company) to sell all the real estate in North Shore Services, LLC, upon the terms of sale described in the attached Land Contract, incorporated herein by reference, to wit: $1.5 million down payment at time of closing, a $500, 000 payment paid on May l, 2013, and four additional $500, 000 annual payments beginning on December 1, 2013,
* * *
[I]n the event that the Company is unable, in spite of its best efforts, to make the scheduled Land Contract payments, the Seller's recourse is to foreclose on the real estate owned by the Company, The Managing Member will engage such resources and organizations as necessary to aggressively pursue marketing the frac sand on the property such that the Land Contract payments will be made as scheduled, from profits generated by those efforts and to this end it is agreed by all parties that the Company, on behalf of its Members, accepts the risks inherent in such a natural resources development project as reasonable to the Company and its Members . . . .

Dkt. 80 at 8.

         V. The Parties' Relationship Breaks Down

         A. First Missed Installment ...


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