CME0003
CME0003
8 COUNTY OF MARICOPA
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NEDRA RONEY MCKELL and ROBERT No.: CV 2009-093004
10 MCKELL
Plaintiff, REBUTTAL MEMORANDUM
11 BY DEFENDANT WHITING RE:
vs. THE TRO AND FULL FAITH AND
12 CREDIT
GARY WHITING; CHEYENNE MOUNTAIN
13 ENTERTAINMENT, INC, et al,
Defendants. Honorable Karen Potts
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Defendants Whiting and the several Arizona companies urge this honorable court to deny
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full faith and credit to the Temporary Restraining Order issued in Utah based upon the following
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18 reasons:
19 1. Plaintiff McKell has not cited to one case which holds that the principle
20 underlying full faith and credit, res judicata, is furthered if this court were to
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enforce a temporary, interlocutory order from a sister state when that state court
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has scheduled another preliminary hearing in that litigation and the controversy
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recently commenced and is still being litigated. No citation was made because no
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such citation exists.
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26 2. No proof of proper service of the Notice of TRO Hearing or the First Amended
28 the sister state temporary order may be collaterally attacked on grounds of lack of
1 jurisdiction over the person or the subject matter, lack of due process, and that the
3 Ariz. 319, 599 P. 2d 772 (1979), citing Bebeau v. Berger, 22 Ariz. App. 522, 529
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P.2d 234 (1974); and see Pioneer Federal Savings Bank v. Driver, 166 Ariz. 585,
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804 P .2d 118 (1990).
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3. "A judgment will not be recognized or enforced in other states if it is not eftnal
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determination under the local law of the state of rendition." For example, if a
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9 judgment is subject to the continuing modification jurisdiction of the rendering
10 state (eg., family court pendite lite orders), such a judgment is not res judicata and
11 it may be litigated in the sister state. The plaintiff has failed to assert a cogent
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argument as to why a Temporary Restraining Order, particularly this one with all
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its apparent infirmities (the terms of tile order do not define an actual injury. it
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fails to state how any hann is irreparable, it lacks a duration, no bond or security
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was required under Rule 65 or 66), should be treated as a "final order" for
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17 purposes of sister state enforcement - and even the record in the rendering state
18 calls such a conclusion into serious doubt since Judge Laycock scheduled a
19 preliminary to address the merits on October 16,2009. Jones v. Roach, 118 Ariz.
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146,575 P.2d 345 (1977). For example, a Temporary Restraining Order cannot
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issue and be an enforceable order in this state until the trial court fixes a bond and
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the bond is posted to protect the defendant against a wrongful restraint. Rule 65;
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24 and State v. Neitz, 114 Ariz. 296, 560 P.2nd 814 (1977).
26 temporary order on out of state parties and corporations, and (ii) such immediate
27 enforcement would violate the underpinning of full faith and credit: that the
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alleged defects and questions regarding the order be fully and fairly litigated and
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1 final before a sister state has to give it full faith and credit. Indeed, the U. S.
2 Supreme Court weighed in on this limitation to tile full faith and credit clause and
3 rested on the notion of "finality" and res judicata: "Public policy dictates that
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there be an end to litigation, that those who have contested an issue shall be bound
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by the result of the contest, and that the matters once tried shall be considered
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forever settled as between the parties." Durfee v. Duke, 375 U.S. 106,84 S. Ct.
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242, 11 L. ed. 2d 186 (1963). None of these limitations or standards on requiring
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9 full faith and credit have neen shown by the Utah plaintiffs on the temporary
10 restraining order with all its facial defects - when a preliminary injunction hearing
25 and the plaintiff is merely an unsecured creditor without having introduced any
26 evidence in Utah that it had any disbursement or fund control agreements with
27 Whiting that would provide a legal basis for the extraordinary remedy of "director
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removal", TRO and an interim receiver (by an interested party). The entire matter
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1 in Utah was a fraud on the court, and all the above referenced cases state that such
2 fraud is extrinsic fraud that allows a sister state to decline to enforce the
3 temporary order in this state until the merits are actually and fully litigated in Utah
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the rendering state.
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WHEREFORE, based upon the reasons set forth herein, the TRO and interim
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receiver order in Utah should not be recognized by this honorable court until a final
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9 determination is made on the merits in Utah and a final judgment is rendered that is
10 appealable, final and with res judicata effect. Plaintiffs will have every opportunity to
11 prove actual and continuing harm that must be enjoined, and that is what they must do in
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order to replace Mr. Whiting in the Arizona entities while they are merely an unsecured
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creditor without any fund control agreements in place.
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DATED this 11th day of September, 2009.
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GREGORY G. MCGILL, P. C.
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17
. Jfjfa~
y for Defendants
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