Free Memorandum - District Court of Arizona - Arizona

Terrance J. Slominski, OSB# 81376 Slominski & Associates 7150 SW Hampton, Suite 201 Tigard OR 97223 503- 968-2505 FAX: 503-684-7950 Email: [email protected]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA DAVID MENKEN, Plaintiff, v. GARY F. EMM, et. al. Defendants. ) ) ) ) ) ) ) ) ) ) ) CASE NO: CV-04-598 PHX MHM PLAINTIFF S' MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT

STATEMENT OF FACTS A. UNDERLYING AND RELATED CASES In1998 a Judgment was entered against Menken and in favor of Tomerlin1 and others in the United States District Court for the District of Nevada, in case number CV-N-96-00142-DWH, Menken v. Emm, et al. (the "Nevada Case") for $29,883.63. On April 30, 2003, Marsha Tomerlin through her attorneys filed a Certification of Judgment (the "2003 Registration") in the United States District Court for the District of The remaining Defendants are Tomerlin and Coldwell Banker, Menken will refer to the Defendants collectively as "Tomerlin" 1. PLAINTIFFS' SUMMARY JUDGMENT MEMORANDUM
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Arizona, in case number 03mc35-PHX-FJM, Menken v. Emm, et al. (the "2003 Action"), which filing purported to register a Nevada Judgment in Arizona District Court and Tomerlin. Afterwards Tomerlin recorded the Nevada Judgment in the Maricopa County Recorder records at 2003-0558897 creating a lien and clouding Menken's title. Over the next several months, the parties periodically litigated regarding the logistics and propriety of judgment enforcement procedures. . Tomerlin demanded 79K in settlement of the judgments despite the fact that the amount owed under the judgment was only $35K (including interest) . Tomerlin persisted in making this extortionate demand despite the fact that Menken showed her that her foreign judgments in Arizona were expired and invalid B. MENKEN'S SEPARATE TORT ACTION In December, 2003, Menken filed his case against Tomerlin ands others in Maricopa County Superior Court and which was removed to Arizona District Court as case number CV-04-0598-PHX-MHM, Menken v. Emm, et al., this case. In this case, Menken has asserted claims against Tomerlin for interference with business relations, violation of A.R.S. § 33-420, and related causes of action. In January 2004, Tomerlin abandoned its efforts to enforce the Nevada Judgments in Arizona. As discussed below, no stay was issued in regards to such enforcement, and Appellant's cessation of all enforcement activities was its voluntary act. During the pendency of this case and over a year and a half later, in August 2005, United States District Judge Frederick J. Martone issued an order to counsel in the 2003 Action requiring a status report, and directing that in the absence of such a report, the 2003 Action would be dismissed. In response to the Court's Order, on August 22, 2005, Tomerlin filed a

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Status Report, wherein she sought "an additional 45 ­ 60 days . . . in order to proceed with any and all post-judgment collection remedies." On October 7, 2005, Judge Martone issued an order granting Tomerlon's August 22, 2005 request and instructing the her to file a second status report "no later than December 2, 2005 detailing new activities in this case." Judge Martone warned that "[i]f no activity has taken place, we shall instruct the clerk to close this matter." Id. Tomerlin failed to provide the requisite second status report, and in fact did nothing in relation to the case. Accordingly, on December 13, 2005, Judge Martone issued an order terminating the 2003 Action (the "Dismissal Order"), as follows: "No status report having been filed pursuant to this court's order of October 7, 2005, the clerk is instructed to administratively terminate this case." The 2003 Action was terminated in its entirety that same day. Despite the fact that the 2003 Action no longer existed as of December 13, 2005, over nine months later, and over seven years after the Nevada Judgments became final, on August 23, 2006, Tomerlin filed, in Arizona District Court, a Motion for Examination of Debtor in Supplementary Proceedings. In that Motion, Tomerlin sought Judge Martone's permission to conduct a judgment debtor examination as to the Nevada Judgments. Id. Judge Martone quickly denied the Motion, finding as follows: The court has before it a motion for examination of judgment debtor in supplementary proceedings (doc. 24). However, a review of the docket indicates that by order dated October 7, 2005, we granted the defendants' [Appellant's] request to keep the matter open for an additional 60 days in order to permit them to proceed with post-judgment collection remedies. That order also advised the parties if no activity took place, the clerk would close the matter.

No activity having taken place, the clerk was instructed to administratively terminate this case on December 13, 2005. Accordingly, the motion for examination of judgment debtor 3. PLAINTIFFS' SUMMARY JUDGMENT MEMORANDUM

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in supplementary proceedings comes too late and is DENIED. . Any further proceedings on the judgment would have to be by way of a new action. Tomerlin did not seek reconsideration or clarification of the foregoing ruling. After another four months passed following Judge Martone's refusal to permit Tomerlin to further pursue the dismissed 2003 Action, Tomerlin sought to pursue the Nevada Judgments in Arizona State Court by filing yet another action, this time in the form of the 2006 Arizona Action. Rather than raise its arguments disputing Judge Martone's dismissal directly to Judge Martone, and rather than filing a new action in Arizona District Court (as suggested by Judge Martone), Tomerlin chose to shop for a new forum in hope of avoiding the impact of Judge Martone's comprehensive termination of the 2003 Action. She filed her new action in the Superior Court of Maricopa, CV 2006­16951. However, in that action, Commissioner Vatz correctly concluded that Tomerlin's Plaintiffs' enforcement of the Nevada Judgments in Arizona is absolutely time-barred, and he appropriately vacated the Nevada Judgments as filed in the 2006 Arizona Action. The case is currently on appeal of he prior state court case Tomerlin argues that she could not pursue collection efforts in Arizona during the Tort Action. However, Tomerlin cites no basis for this position, and in fact nothing prevented her from pursuing collection during that time. The Tort Action (which properly challenged the 2003 Action and certain activities related thereto, including the Arizona recordation of the 2003 Registration) in no way prevented Tomerlin from undertaking collection efforts, notwithstanding the fact that according to Arizona Case Law her recordation of the 1998 judgments was invalid and in violation of ARS 33-420 ( See Grynberg v. Shaffer, 511 Ariz. Adv. Rep. 46, 165 P.3d 234 (Ariz.App. 8-21-2007) and Tomerlin's reliance on that proceeding as an excuse for its inaction rings hollow. 4. PLAINTIFFS' SUMMARY JUDGMENT MEMORANDUM

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POINTS AND AUTHORITIES. A. JUDGE VATZ AND JUDGE MARTONE'S DECISIONS Judge Vatz held that Judge Martone's dismissal of the first action was with prejudice. See FRCP 41(b). And that Tomerlin was time barred form recording the for foreign judgment. B. ARIZONA LAW PRECLUDES ENFORCEMENT OF THE NEVADA JUDGMENTS IN ARIZONA. Arizona law is clear regarding both the statute of limitations applicable to foreign judgments and the date on which that statute begins to run. A.R.S. § 12-544(3) provides for a four-year statute of limitations which runs from the date the underlying foreign judgment becomes final. See Day v. Wiswall, 11 Ariz. App. 306, 313, 464 P.2d 626, 633 (1970). Further, the Uniform Enforcement of Judgments Act ("Uniform Act"), codified in Arizona at A.R.S. §§ 12-1701 to -1708, has no effect on Arizona's policy of applying its own statute of limitations in determining whether a foreign judgment is eligible for enforcement in this state. Eschenhagen v. Zika, 144 Ariz. 213, 219, 696 P.2d 1362, 1368 (App. 1985); see also Citibank v. Phifer, 181 Ariz. 5, 6-7, 887 P.2d 5, 6-7 (App. 1994). Since the State Court case was decided, GRYNBERG v. SHAFFER, 511 Ariz. Adv. Rep. 46, 165 P.3d 234 (Ariz.App. 8-21-2007) was decided. Grynberg, holds that finality of a foreign judgment attaches when it is issued by the trial court and is enforceable in the issuing jurisdiction and its finality is not negated by a pending appeal. Grynberg, at 12. Plaintiff's evidence clearly proves that the Defendants violated A.R.S 33-420 for recording a document purporting to create an interest in, or a lien or encumbrance against, real 5. PLAINTIFFS' SUMMARY JUDGMENT MEMORANDUM

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property not authorized by statute, judgment or other specific legal authority. Such a document is presumed to be groundless and invalid. A.R.S. 33-420 D. Defendants knew and authorized their attorneys to encumber and lien any property that Menken had or would acquire. Although the Defendants are liable to the Menken for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, Menken asks, at this time, for partial judgment on liability and a finding that the defendants, violated A.R.S. 33-420. Dated this 19th day of September , 2008.

/S/ TERRANCE J. SLOMINSKI Terrance J. Slominski, OSB# 813763 Pro Hac Vice Attorney for Plaintiff

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