Michael K.

Jeanes, Clerk of Court

*** Electronically Filed ***
Lori Cummings
Filing ID 421823
911112009 11:51 :36 PM
1 GREGORYG. MCGILL, P.c.
A TIORNEY AT LAW
2 4421 N. 75th Street, Suite 101
Scottsdale, Arizona 85251
3 (480) 970-6720
FAX (480) 970-6727
4 gregmcgill@cox.net
Gregory G. McGill, No. 011020
5
Attorney for Defendants
6

7 SUPERIOR COURT OF ARIZONA

8 COUNTY OF MARICOPA

9
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
14
15
Defendants Whiting and the several Arizona companies urge this honorable court to deny
16
full faith and credit to the Temporary Restraining Order issued in Utah based upon the following
17
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
21
enforce a temporary, interlocutory order from a sister state when that state court
22
has scheduled another preliminary hearing in that litigation and the controversy
23
recently commenced and is still being litigated. No citation was made because no
24
such citation exists.
25
26 2. No proof of proper service of the Notice of TRO Hearing or the First Amended

27 Complaint upon Whiting or the corporate defendants was introduced herein, so

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

2 temporary order is invalid and unenforceable. Springfield Credit v. Johnson, 123

3 Ariz. 319, 599 P. 2d 772 (1979), citing Bebeau v. Berger, 22 Ariz. App. 522, 529
4
P.2d 234 (1974); and see Pioneer Federal Savings Bank v. Driver, 166 Ariz. 585,
5
804 P .2d 118 (1990).
6
3. "A judgment will not be recognized or enforced in other states if it is not eftnal
7
determination under the local law of the state of rendition." For example, if a
8
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
12
argument as to why a Temporary Restraining Order, particularly this one with all
13
its apparent infirmities (the terms of tile order do not define an actual injury. it
14
fails to state how any hann is irreparable, it lacks a duration, no bond or security
15
was required under Rule 65 or 66), should be treated as a "final order" for
16

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.
20
146,575 P.2d 345 (1977). For example, a Temporary Restraining Order cannot
21
issue and be an enforceable order in this state until the trial court fixes a bond and
22
the bond is posted to protect the defendant against a wrongful restraint. Rule 65;
23
24 and State v. Neitz, 114 Ariz. 296, 560 P.2nd 814 (1977).

25 4. The point missed by the plaintiff is twofold: (i) it is trying to impose a

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
28
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
4
there be an end to litigation, that those who have contested an issue shall be bound
5
by the result of the contest, and that the matters once tried shall be considered
6
forever settled as between the parties." Durfee v. Duke, 375 U.S. 106,84 S. Ct.
7
242, 11 L. ed. 2d 186 (1963). None of these limitations or standards on requiring
8

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

11 is currently scheduled for October 16,2009.

12
5. "A judgment will not be recognized or enforced in otIler states if it is not a final
13
determination under the local law of state of rendition." Grynberg v. Shaffer, 216
14
Ariz. 256, 165 PJd 234 (2007). First, the TRO cannot meet this test. Second,
15
this limitation on comity is plain with respect to ''judgments'', so the limitation on
16
17 sister state recognition is even more compelling when one considers tile

18 interlocutory order as opposed a judgment that is final and appealable for

19 purposes of res judicata effect.

20
6. Finally, in tile opening Legal Memorandum the defense showed that the plaintiff,
21
and Vick Deauvono, filed sworn affidavits containing utterly unsubstantiated
22
charges that Mr. Wlriting absconded with loan proceeds, when tile accusations
23
were based on vague hearsay, no proof, no actual or continuing harm was shown-
24

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
28
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
4
the rendering state.
5

6
WHEREFORE, based upon the reasons set forth herein, the TRO and interim
7
receiver order in Utah should not be recognized by this honorable court until a final
8

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
12
order to replace Mr. Whiting in the Arizona entities while they are merely an unsecured
13
creditor without any fund control agreements in place.
14
DATED this 11th day of September, 2009.
15
GREGORY G. MCGILL, P. C.
16

17
. Jfjfa~
y for Defendants
18

19 ORIGINAL of the foregoing

E-FILED this 11th day of
20
September, 2009, with:
21
Clerk
22 MARICOPA COUNTY SUPERIOR COURT
201 W. Jefferson
23 Phoenix, Arizona 85003;
24 COPY of the foregoing
Emailedthisl1Ihdayof<~2009.to:
25 Bacha Vega, Esq. / 1
Dodge and Vega, PLC
26 4824 E. Baseline Rd., Ste 124
Mesa, AZ 85206
27

28

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