Free Lodged Proposed Document - District Court of Arizona - Arizona

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Terrance J. Slominski, OSB 81376 7150 SW Hampton, Suite 201 Tigard OR 97223 Phone: 503-968-2505 Fax: 503-684-7950 E-mail: [email protected] Attorney for Plaintiff, David Menken

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 v. GERRY F. EMM, husband, MAXINE C. EMM, wife, COLDWELL BANKER ITILDO, INC., a foreign corporation, MARSHA L. TOMERLIN, wife, WILLIAM TOMERLIN, DAVID J. MORANDI, husband, JANE DOE MORANDI, wife; SCARPELLO, HUSS & OSHINSKI, LTD, A Nevada Law firm, Defendants. I. INTRODUCTION This is a case arising out of the wrongful recording of a foreign judgment in Arizona. II. JURISDICTION This court has taken jurisdiction of the case through removal by Defendants based on diversity 28 U.S.C §1332(a). Plaintiff is a resident of the state of Arizona and Defendants Marsha L. Tomerlin, DAVID MENKEN, Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 04-598-PHX-MHM PLAINTIFF'S FIRST AMENDED COMPLAINT Wrongful Interference With Contractual Relations, Slander of Title in Violation of A.R.S. §33-420 and Intentional Infliction of Emotional Distress, Negligence (JURY TRIAL DEMANDED)

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William Tomerlin and Coldwell Banker Itildo, Inc. are residents of the state of Nevada. Venue is proper in this court. III. GENERAL ALLEGATIONS 1A. Plaintiff is a judgment debtor in the United States District Court case captioned United States District Court Cause No. CV-N-96-00142. 1B. Defendants Emm Itildo, Marsha L. Tomerlin and Valentine are Judgment creditors in United States District Court Cause No. CV-N-96-00142. 1C. Defendant William Tomerlin is the spouse of Marsha L. Tomerlin. 1D. At all times relevant hereto, Defendants were acting on behalf of their marital communities. 2. On or about May 1, 2003, judgment creditors, through their attorneys and agents, recorded the Judgment taken against Plaintiff in Cause No. CV-N-96-00142 in the records of the Maricopa County Recorder Recording No. 2003-1558877. 3. Arizona Revised Statutes permit the recording of a federal judgment pursuant to A.R.S. § 33-963. The statute states: 33-963. Procedure for recording judgment of federal court; lien An abstract of a judgment given by any court of record of the United States within this state shall be recorded in the manner provided in section 33-961 and in compliance with section 33-967, if applicable, before the judgment becomes a lien upon, or in any manner affects or encumbers, the real property of the judgment debtor, or any part thereof. 4. The recorded judgment did not comply with the requirement of applicable Arizona Revised Statutes in that the recording was groundless or otherwise invalid as it was time barred under A.R.S. 12.544; 5. The judgment became a purported lien against the property of Plaintiff ("property") located at 30019 North 150th St. in Scottsdale, Arizona. 6. On August 20, 2003, Defendants advised Plaintiff's agents that the payoff amount

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of the judgment was $79,985.20. The payoff demand included impermissible additions to the judgment in the form of post judgment attorney's fees and costs. 7. Plaintiff's agents advised Defendants that the amount was incorrect, and that the recording of the judgment along with the illegal demand was a violation of A.R.S. §33-420. 8. Numerous pieces of correspondence were exchanged between Plaintiff's attorneys and Defendants' attorneys; Defendants' refused to limit the payoff amount to the amount of the judgment plus interest. 9. On or about October 23, 2003, Plaintiff began negotiating a potential sale of the property and received a verbal offer for the purchase of the property. 10. Plaintiff knew that the title to the property was clouded by the purported judgment lien; therefore, on October 23, 2003, Plaintiff's agents advised Defendants on the existence of the offer and the fact that the sale cannot be completed with the purported lien in place. 11. On October 29, 2003, Plaintiff received an offer contained in the Residential Resale Real Estate Purchase contract for the purchase of the property at the purchase price of $1,300,000. Subsequently, the offer of purchase was increased to $1,500,000. Although Plaintiff wanted to accept the offer and intended to accept the offer, the offer expired while Plaintiff attempted to obtain a release of the lien from Defendants. 12. On November 11, 2003, Defendants received the second formal demand to comply with Arizona Revised Statutes with respect to the purported lien. 13. Despite Plaintiff's continued demands, Defendants refused to remove their lien. FIRST CLAIM FOR RELIEF (Negligence) 15. Plaintiff realleges all allegations heretofore set forth. 16. Defendants owed Plaintiff a duty of care to not inflate the amount of the judgment payoff.

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17. Defendants owed Plaintiff a duty of compliance with Arizona Revised Statutes. 18. Defendants breached their duties to Plaintiff. 19. Defendants' breach of their duties as hereinabove described caused Plaintiff damage; to wit, the loss of the sale of his property. 20. As a direct and proximate result of Defendants' negligence, Plaintiff has been damaged in the sum of $700,000. SECOND CLAIM FOR RELIEF (Wrongful Interference with Business Expectancy) 21. Plaintiff realleges all allegations heretofore set forth. 22. Defendants knew of the pending sale of the property by Plaintiff. 23. The pending sale was a valid business expectancy between Plaintiff and a third

24. Defendants' conduct terminated the expectancy of the sale of the property. 25. Defendants' interference with Plaintiff's business relations was motivated by a desire to receive a sum of money in excess of that allowed by law or supported by the judgment entered in the United States District Court Cause No. CV-N-96-00142. 26. Defendants' interference caused Plaintiff economic damage in the sum no less than $700,000 and emotional distress in the form of humiliation, fear, anger and worry in an amount not less than $75,000 27. Defendants' interference was intentional and demonstrated a reckless disregard for the rights of Plaintiff, entitling Plaintiff to an award of punitive damages sufficient to deter these and other similarly situated defendants from engaging in like conduct in an amount not less than $1,000,000. THIRD CLAIM FOR RELIEF (Intentional Infliction of Emotional Distress) 28. Plaintiff realleges all allegations heretofore set forth.

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29. Defendants' acts were done with the intention of causing Plaintiff severe emotional distress. 30. As a result of the acts of Defendants, Plaintiff has suffered emotional distress and has been damaged in the amount of $75,000. 31. Defendants' interference was intentional and demonstrated a reckless disregard for the rights of Plaintiff, entitling Plaintiff to an award of punitive damages sufficient to deter these and other similarly situated defendants from engaging in like conduct in an amount not less than $1,000,000. FOURTH CLAIM FOR RELIEF (A.R.S. § 33-420) COUNT I 32. Plaintiff realleges all allegations heretofore set forth. 33. The purported lien was groundless and invalid pursuant to A.R.S. §33-420(D). 34. Pursuant to A.R.S. § 33-420(A), a recording of a groundless and invalid purported lien by Defendants entitled Plaintiff to the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action. 35. Plaintiff has been damaged by Defendants' violation of statutes in Title 33 in the sum of not less than $700,000 and emotional distress in the amount of $75,000. 36. Plaintiff is entitled to treble damages for a total amount of not less than $2,100,000. COUNT II 37. 38. Plaintiff realleges all allegations heretofore set forth. Despite Plaintiff's demands that Defendants remove the lien, Defendants refused to do so resulting in damages as alleged herein. 39. In addition to the lost sale of property Plaintiff incurred approximately

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$30,000 in damages in the form of attorney fees to get the lien removed JURY DEMAND Plaintiff demands a jury trial.

WHEREFORE, Plaintiff prays for judgment against Defendants as follows: 1. For Plaintiff's First Claim for Relief (Negligence) the sum of $700,000; 2. For Plaintiff's Second Claim for Relief (Wrongful Interference with contractual Relations) the sum of $700,00, together with punitive damages in an amount not less than $1,000,000; 3. For Plaintiff's Third Claim for Relief (Intentional Infliction of Emotional Distress), the sum of $75,000 together with punitive damages in an amount not less than $1,000,000; 4. For Plaintiff's Fourth Claim for Relief (Violation of A.R.S. §33-420) the sum of $730,000 trebled to $2,190,000, together with Plaintiff's attorney fees incurred herein pursuant to A.R.S. §33-420; 5. For Plaintiff's costs and disbursements incurred herein; and 6. For such other relief as the Court may deem just and proper. Dated this 7th day of April, 2008.

/S/ TERRANCE J.SLOMINSKI Terrance J. Slominski, OSB 81376 Attorney for Plaintiff

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