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Ray loll, #3607


Micah Bruner, #11272
B. Ray loll, PC
8941 South 700 East, Suite 204
Sandy, Utah 84070
Telephone: 801-545-7663
Facsimile: 801-545-7910

Attorneys for Plaintiffs

IN THE FOURTH JUDICIAL DISTRICT IN AND FOR


UTAH COUNTY, STATE OF UTAH

NEDRA RONEY MCKELL, an individual;


ROBERT MCKELL, an individual, AFFIDAVIT OF ROBERT MCKELL IN
SUPPORT OF PLAINTIFFS' MOTION
Plaintiffs, FOR TEr.JIPORARY RESTRAINING
ORDER
vs.

GARY WHmNG, an individual; Civil No.


CHEYENNE MOUNTAIN ENTERTAINMENT,
INC., a Nevada corporation; GARVICK Judge
PROPERTIES, LLC, a Nevada limited
liability cornpanv: CHEYENNE MOUNTAIN
GAMES, INC., a Nevada corporation;
MMOGULS, INC, a Nevada corporatlon:
NOW CORPORATION, a Nevada
corporation

Defendants.

STATE OF UTAH )
:55.
COUNTY OF UTAH )

The undersigned, being first duly sworn, states as follows:

1. I am the Plaintiff in this actIon.

2.. I am over the age of 18 and am competent in all respects to testify In this

matter.

3. I have personal knowledge of all statements to which I am herein

attesting with the exception of those statements, which are based upon
information available to me, and the belief I have reached based upon

that information. As to those statements I verily believe them to be true.

4. On or about January 7, 2009, I entered into a lvJasterAgreement with

Cheyenne Mountain Entertainment, Inc., Garvick Properties, LLC, SGW,

CMG, Mmoguls, Inc and Stargate to loan the entities $2,250,000.00 to

"kick off" the marketing for Mmoguls, lnc.

5. I loaned these companies $2,250,000.00 as agreed upon In the Master

Agreement along with an additional $550,000.00 in cash to pay for

various startup costs for Mmoguls, Inc.

6. As consideration for this loan, I was promised 30% of the gross revenue

received by Mmoguls, Inc., 5% of the gross revenue and income of the

other entities as a royalty, 5,000,000 shares of common stock of

Cheyenne Mountain Entertainment, Inc, as well as commissions due and

owing my downline in the Mmoguls, Inc Network Marketing compensation

plan.

7. Upon information and belief, Mmoguls, Inc. received Its initial gross

revenue of approximately $900,000.00 in March of 2009.

8. At that time, I was promised that, of the gross revenue received by

Mmoguls, Inc., I would receive 30% as agreed upon in the Master

Agreement.

9. To date, however, I have not received any return on my loan. I also have

never received any of the promised shares of common stock or any

money from the 5% of gross revenue promised me from all other entities.

10. Upon information and belief, Gary Whiting, president and owner of

Mmoguls, Inc., Garvick Properties, LLC[and all other entities party to the
Master Agreement, took the money generated as gross revenue for

Mmoguls, Inc. for his personal use.

11. I relied upon the promises made to me by Gary Whiting to loan

$2,800,000.00 to Mmoguls, Inc. and the other entities that the money

would be paid back to me out of the gross revenues received by the

entities.

12. My reliance on Gary Whiting's false statements have damaged me in that

I have yet to be repaid any part of the money I loaned these entities.

FURTHERAFFIANT SAYETH NOT.

Dated this 29 day of June 2009.

tB./t~ ~~t
Robert McKell

VERIFICATION

STATE OF UTAH )
:ss
COUNTYOF Salt Lake )

Robert McKell, being first duly sworn upon his oath deposes and says: That he
has read the foregoing Affidavit, that he knows the contents thereof and the same are
true of his own knowledge, except as to those matters therein stated upon his
information and bellef and as to such matters he b~es themto be true.
~"t}-t' /!Zeft-i'!
obert McKell

SUBSCRIBED and SWORN TO before me this~day of June 2009.


J, Michael K. Jeanes, Clerk of Co
*** Electronically Filed ***
t

Lori Cummings
Filing ID 421666
9/11120094:27:04 PM

1 Angel "Bache" Vega #023036


DODGE & VEGA, PLC
2 4824 E. Baseline Rd., Suite 124
Mesa, Arizona 85206
3 Telephone: (480) 656-8333
Facsimile: (480) 656-8334
4 bacho((!)dodgevegaJaw.com

5 Attorneys for Plaintiffs, Respondents, NEDRA RONEY McKELL, ROBERT McKELL

6
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
7
IN AND FOR THE COUNTY OF MARICOPA
8

9 NEDRA RONEY MCKELL, and ROBERT Case No. CV2009-093004


MCKELL, husband and wife,
10 REPLY MEMORANDUM OF POINTS
Plaintiffs, Respondents AND AUTHORITIES RE
11 1. TRO;
vs. 2. PRELIMINARY INJUNCTION;
12 3. FULL FAITH AND CREDIT
GARY WHITING, an individual, et aI.,
13 Judicial Assignment:
Defendants, Petitioners. The Honorable Karen Potts
14
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15
Pursuant to the Court's ruling and Minute Entry Order of September 1, 2009,
16
Plaintiffs Rob and Nedra Roney McKell, by and through counsel Dodge & Vega, PLC,
17

18 hereby file their Reply Brief in support of Plaintiff's request that this Court enforce the

19 Order of the Utah Court.


20
DEFENDANT'S ARGUMENTS AGAINST THE VALIDITY OF THE UTAH
21
TEMPORARY RESTRAINING ORDER ARE IMPROPER
22
23 Defendant sets out "Background Facts" seeking to undermine the validity of the
24 Utah Order. This attack is improper as the merits of the Temporary Restraining Order
25 ("TRO") are not at issue before this Court. This matter is before the Court under the
26 Uniform Enforcement of Foreign Judgments Act (A.R.S. §§ 12-1701 et seq.).
1 Accordingly, Defendant's only venues of attacking this Foreign Judgment are set out

2 under Rule 60(c) of the Arizona Rules of Civil Procedure. See Springfield Credit Union

3 v. Johnson, 599 P.2d 772 (Ariz. 1979). Defendant's attempt to argue the merits of the

4 TRO, Plaintiffs' evidence whereby the TRO was obtained, and the findings of the Utah

5 court are misplaced in this forum. Had Defendant chosen to appear at the hearing held in

6 Utah, any allegations of impropriety, insufficiency, or validity of the evidence and the

7 final order could have been heard. Considering Defendant decided not to appear, except

8 insofar as Mr. Henry of Utah appeared to request a continuance five minutes before the

9 hearing was scheduled to begin, Defendant's arguments are inappropriate at this time.

10 The proper forum to attack the validity of the foreign order would be to seek
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o:.~~ 12 THE TRO MEETS ALL REQUIREMENTS UNDER UT AM LAW


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13 Under Rule 65A of the Utah Rules of Civil Procedure, the Temporary Restraining
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-e- 15 courts as a final determination of the issue of whether a restraining order was necessary.

16 Contrary to Defendant's assertions, the TRO meets each requirement set out under Rule

17 65A. Starting on Page 27 of the Transcript of the TRO hearing, attached to Plaintiff's

18 initial brief as "Exhibit A," Judge Laycock carefully and specifically walked through

19 each element necessary to grant a TRO under Rule 65A.

20 She initially addressed the question of irreparable harm and found that, while the

21 money loss was measurable, "that there is other harm that is irreparable in the permanent

22 folding of this business." See Id. at p.28 (emphasis added).

23 After determining that all elements were met under Rule 65A, the Court turned to

24 the setting of a hearing date for the preliminary injunction. The Court indicated that it

25 would be difficult to set a hearing any time in the near future due to the fact that the

26 Court was beginning a nine-day civil bench trial on the following Monday that would

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1 capitalize the Court's calendar. rd. at p.32. Due to this reason, the Court extended the

2 length of duration of the TRO until the preliminary injunction hearing could be held.

3 MR. DEAUVONO'S APPOINTMENT BY THE COURT

4 AS RECEIVER WAS PROPER

5 Under Rule 65A, security is required unless the court determines that "none of the

6 parties will incur or suffer costs, attorney's fees or damage as the result of any wrongful

7 order or injunction, or unless there exists some other substantial reason for dispensing

8 with the requirement for security." Rule 65A Utah Rules of Civil Procedure. The Court

9 placed a Receiver over the companies so as to preserve their assets and to continue their

10 ordinary course of business. This appointment supplants any requirement for security as
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N 11 the appointment of a Receiver, deemed neutral by the Court, prevents any party from
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13 Vick Deauvono was explicitly deemed to be a neutral individual properly
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15 presented the Utah court with sufficient evidence to persuade the court to appoint a

16 receiver. Judge Laycock specifically addressed the fact that Vick Deauvono had filed an

17 affidavit in support of the motion for temporary restraining order and found that his

18 affidavit was factual in nature, substantiated by the other affidavits filed, and did not

19 display any prejudice to the process or place any doubt in the court that he would act

20 properly to preserve the businesses and their assets. rd. Accordingly, Mr. Deauvono's

21 appointment was proper.

22 DEFENSE COUNSEL'S SPECIAL APPEARANCE IN UTAH WAS LIMITED,

23 INEXCUSABLY LATE AND UNINTELLIGIBLE

24 Judge Laycock explicitly stated that she had read all evidence presented to her by

25 the Plaintiffs. This included the memorandum and the three affidavits filed in support of

26 the memorandum. See Transcript of Hearing ps. 6 and 34. Judge Laycock also stated

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1 that she had not seen any paperwork from Defendant. Id. at p.3. At that time, Mr. Henry

2 presented the court with a copy of Defendant's Motion for a Continuance. The court

3 disregarded this document as it had not been filed with the court and due to the fact that it

4 was entered entirely too late in the process. Id. at p.18. Attached to this motion was

5 Gary Whiting's affidavit. This affidavit was entered as an attachment to the motion to

6 continue and, as was demonstrated by Mr. Henry's argument, that was the sole purpose

7 for which Defendant made any appearance at the hearing. Id. at p.2. Accordingly, as the

8 motion to continue was untimely filed with the court, nothing filed with the motion was

9 considered beyond the motion to continue.

10 The Utah court explicitly found that Defendant had been afforded sufficient time
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11 under the Utah Rules to appear at the hearing. Id. at ps. 24-27. Accordingly, Defendant
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'"ee..,. 15 consequences of waiver and forfeiture are common sense, even under Arizona authority,

16 in that defenses which are not raised timely, are deemed waived. Ariz. R. Civ. P., Rule

17 8(c). O'Keefe v. Grenke, 170 Ariz. 460, 825 P.2d 985 (App. 1992); Sirek v. Fairfield

18 Snowbowl, Inc., 166 Ariz. 183, 800 P.2d 1291 (App.1990); Hughes Aircraft Co. v.

19 Industrial Commission, 125 Ariz. 1,606 P.2d 819 (App.1979).

20 Moreover, Defendant fails to demonstrate in his brief any meritorious defense(s)

21 to the relief sought in the TRO. His burden, however, is even greater than simply

22 claiming a defense to obtain relief from [the order] based on allegations of adverse

23 party's fraud, misrepresentation, or misconduct, movant must have meritorious defense

24 which he was prevented from presenting because of adverse party's fraud,

25 misrepresentation or misconduct and misconduct includes even innocent omissions."

26 Estate of Page vs. Litzenburg, 177 Ariz. 84, 865 P.2d 128 (Az. App. 1993).

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1 Defendant's attacks on the judicial process in Utah are unfounded, untimely, and

2 improper in this venue. Defendant should have appeared at the Utah TRO hearing and

3 presented his positions to the Utah court at that time. Defendant's allegations of

4 invalidity and impropriety should be brought in the Utah courts insofar as they go beyond

5 the scope of Rule 60( c) of the Arizona Rules of Civil Procedure. This Court is the

6 improper venue for Defendant to now attempt to air these allegations and they should be

7 deemed waived.

8 THE TRO IS ENFORCEABLE IN UTAH AND HAS BEEN FULLY AND FAIRLY

9 LITIGATED AS TO THE PROPRIETY OF THE TRO

10 In Grynberg v. Shaffer, the Arizona Court of Appeals determined that an order


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11 qualifies as final if it meets two requirements: (1) the judgment or order has to be on the
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12 merits and enforceable and (2) the judgment or order in question must have been fully
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13 and fairly litigated. 165 P.3d 234 (Ariz. App. 2007). The Court determined that "finality
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15 issuing jurisdiction." Id. The TRO is enforceable in Utah, therefore its finality attaches

16 per the rule in Grynberg. But for the location of Defendant corporations in Arizona, the

17 court-appointed receiver would have been afforded any and all enforcement procedures,

18 including contempt proceedings against those defying the orders, so as to enforce Judge

19 Laycock's orders. Accordingly, the TRO is deemed a "final" order under the Grynberg

20 rule.

21 Defendant fails to demonstrate that the Utah TRO would not be regarded as a final

22 order in Utah. Defendant cites few cases, including an Arizona family law case and a

23 10th Circuit Court of Appeals case. In MacArthur v. San Juan County, 497 F.3d 1057

24 (10th Cir. 2007), the Court reviewed preliminary injunction orders of a tribal court of the

25 Navajo nation. The Court determined that "the preliminary injunction orders in this case

26 hardly constitute final judgments." Id. at 1066 (emphasis added). The limitation of the

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1 Court's determination to the orders in that case does not apply to our case. The Utah

2 court's TRO does more than merely ask for the status quo to be maintained, but supplants

3 Whiting in his capacity in Defendant Corporations. Therefore, MacArthur is inapplicable

4 to the facts of this case.

5 The Utah TRO is an effective instrument whereby the court's order appoints a

6 Receiver over these entities. Defendant Corporations have submitted themselves to Utah

7 jurisdiction through the Note and the Contract signed by the corporations and Plaintiffs.

8 This submission to Utah jurisdiction allows the Utah courts to handle matters involving

9 these parties. Accordingly, the Utah TRO is proper and is a final judgment under the

10 Uniform Enforcement of Foreign Judgments Act.

"''"" 11 DEFENDANT HAS NOT MET HIS BURDEN OF PROOF


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14 was obtained through fraud. Lake v. Bonham, 716 P.2d 56, 58 (Ariz. App. 1986).
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16 Defendant has not demonstrated fraud. In order to demonstrate fraud, Defendant Whiting

17 must prove that Plaintiffs have abused the judicial process to the point of corrupting the

18 judicial process itself. Id. at 58. Instead of producing such proof, Defendant has merely

19 highlighted the fact that one of the affiants in support of the Motion for Temporary

20 Restraining Order is a competitor of Defendant Mmoguls. This alone, however, does

21 nothing to prove fraud in the instance ofMr. Barton's affidavit.

22 Defendant further claims that the TRO hearing was improper as Defendant claims

23 not to have been afforded the opportunity to be heard. The hearing was set and, as Judge

24 Laycock explicitly pointed out, all Defendants were properly served with sufficient notice

25 to appear before the Court. See Transcript of Hearing, ps. 24-27. Defendant failed to

26 take this opportunity to be heard except to have Mr. Henry appear on his behalf so as to

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1 request a continuance. Mr. Whiting's affidavit was attached to and was entered in

2 support of the Motion for Continuance. Considering the late filing of the motion and the

3 fact that Plaintiffs had gone above and beyond the notice requirements of Rule 65A, the

4 court did not grant Defendant Whiting's motion. This was after the Utah court had

5 considered Defendant's arguments and reviewed the facts of the case. Defendant's

6 failure to avail himself of the judicial process cannot and should not now be used against

7 Plaintiffs as they seek enforcement of the order that resulted from that hearing.

8 Defendant's attack of Judge Laycock's denial of the motion for a continuance is

9 improper in this Court and should be disregarded. Moreover, defendant is seeking relief

10 from an order after an unsuccessful appearance in Utah, which was completely flawed.
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11 As such, defendant must establish not only a procedural justification for setting aside the
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13 meritorious defense to the action. Master Financial, Inc. v. Woodburn. 208 Ariz. 70, 90
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-e- 15 EVIDENTIARY OBJECTION TO DEFENDANT'S MOTION

16 Plaintiff objects to the attachments included with Defendant's Memorandum

17 (untimely filed brief and attachments in Utah) and to any purported "affidavits" made in

18 support of the Motion to Continue in Utah as such evidence does not raise any viable

19 issues for modifying the Utah TRO and are otherwise irrelevant, inadmissible and or

20 hearsay.

21 Defendant has not produced any relevant authority and the circumstances offered

22 do not rise to a level which would justify staying the Utah TRO as Defendant must

23 demonstrate that by the use of due diligence, these facts and circumstances could not

24 have been discovered at the time of the hearing. Rule 60(c), ARCP.

25 /II

26 /II

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1 CONCLUSION

2 Plaintiffs have obtained a valid final judgment on their motion for a temporary

3 order. The Court's decision to grant the motion is final. Similar motions in other states

4 have been granted full faith and credit and Utah treats such orders as final for matters of

5 appeal. Plaintiffs' temporary restraining order is a judicial proceeding that warrants the

6 full faith and credit guaranteed by the United States Constitution and by the Uniform

7 Enforcement of Foreign Judgments Act.

8 Judge Laycock's order appointing Vick Deauvono is a final order. The nature of

9 Rule 66 of the Utah Rules of Civil Procedure does not contemplate a temporary order, but

10 rather appoints Mr. Deauvono indefinitely or until further action taken by the Court. Mr.
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N 11 Deauvono's status as court-appointed receiver, therefore should be granted full faith and
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credit under the Uniform Enforcement of Foreign Judgments Act as it is a final order.
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13 Accordingly, Plaintiffs pray the Court to grant full faith and credit to the
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14 Temporary Restraining Order and the Order Appointing Vick Deauvono as Receiver for
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-e- 15 the reasons stated. Plaintiffs also pray the Court to dismiss Defendant Whiting's

16 allegations of fraud and to deny Defendant Whiting's Motion to Stay Enforcement of the

17 Foreign Order.

18 RESPECTFULLY SUBMITTED this 11th day of September, 2009

19 DODGE & VEGA, P.L.C.

20
By: /s/ Angel "Bacho" Vega #023036
21 Angel Bacho Vega -
4824 E. Baseline Road, Suite 124
22 Mesa, AZ 85206
ATTORNEYS FOR PLAINTIFFS
23
24

25

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1 ORIGINAL of the foregoing hand delivered/e-filed with:

2 The Honorable Karen Potts


Maricopa County Superior Court
3
COPY of the foregoing sent via email this
4 11 th day of September, 2009, to:

5 Gregory G. J'1cGill, P.C.


4421 N. 75t Street, Suite 101
6 Scottsdale, Arizona 85251
Attorney for Defendants
7 gregmcgi l!(Ci'lcox.net

8 B. Ray Zol1
Micah Bruner
9 B. RAY ZOLL P.C.
8941 South 700 East, Suite 204
10 Sandy, Utah 84070
Counsel for Plaintiffs (Utah)
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By: Isl Angel "Bacho" Vega #023036
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