01/21/2005 — CV2004007697 EAMES, LARRY RAY 01/21/2005 HON. THOMAS DUNEVANT, III View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-007697
01/21/2005
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HON. THOMAS DUNEVANT, III
B. Navarro
Deputy
FILED: 01/27/2005
LARRY RAY EAMES
LARRY RAY EAMES
BOX 26040 , FCI, REG 20640-013
BEAUMONT TX 77720
v.
A MELVIN MCDONALD, et al.
WILLIAM D HOLM
PHILIP G URRY
STATE COURTS BUILDING DIV ONE
1501 W WASHINGTON ST
PHOENIX AZ 85007
MINUTE ENTRY
The Court has received a courtesy copy of Plaintiff’s Motion for Extension of Time in
Which to Allow for the Superior Court to Transmit Signed Order Declaration of Larry Ray
Eames (Plaintiff’s Motion to Extend). Though Plaintiff is seeking an extension of time at the
Court of Appeals, in an effort to expedite the matter, the Court will also treat Plaintiff’s Motion
to Extend Time as a Motion for a Signed Order of this Court’s minute entries dated August 10,
2004, August 26, 2004 and August 31, 2004.
THEREFORE, IT IS ORDERED incorporating in this minute entry by this reference
the Court’s minute entry rulings of August 10, 2004, August 25, 2004 and August 31, 2004.
Said minute entry rulings are hereby deemed reduced to formal written judgment by virtue of the
Court signing this minute entry which shall constitute the judgment.
/ s / HON. THOMAS DUNEVANT, III
JUDICIAL OFFICER OF THE SUPERIOR COURT
06/15/2004 — CV2004007697 EAMES, LARRY RAY 06/15/2004 THE HONORABLE MICHAEL A. YARNELL View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-007697
06/15/2004
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
THE HONORABLE MICHAEL A. YARNELL
M. L. Smith
Deputy
FILED: 06/18/2004
LARRY RAY EAMES
LARRY RAY EAMES
REG #20640-013 FCI - MEDIUM
P O BOX 26040
BEAUMONT TX 77720
v.
A MELVIN MCDONALD, et al.
WILLIAM D HOLM
ORAL ARGUMENT SET
The Court has received Plaintiff’s Request for Conditional Judgment on the Pleadings
Pursuant to Rule 12(c), and Defendant’s Motion to Dismiss. Pursuant to Defendant’s request,
IT IS ORDERED setting oral argument on the above noted motion on July 15, 2004 at
4:30 p.m. before,
HON. MICHAEL A. YARNELL
JUDGE OF THE SUPERIOR COURT
East Court Building, Suite 512
101 West Jefferson
Phoenix, Arizona 85003
IF ANY ISSUES IN THE MOTION RELATE TO DISCOVERY PROBLEMS,
COUNSEL SHALL CONFER TO ATTEMPT TO RESOLVE THEIR DIFFERENCE OR TO
REDUCE THE AREAS OF DISPUTE. COUNSEL ARE REMINDED THAT THE COURT
WILL LIKELY IMPOSE SANCTIONS AGAINST THE LOSING PARTY IN ACCORDANCE
WITH RULE 37(A)(4), RULES OF CIVIL PROCEDURE.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-007697
06/15/2004
Docket Code 094
Form V000A
Page 2
IT IS FURTHER ORDERED that the Department of Corrections allow Plaintiff Larry
Ray Eams, Reg. No. 20640-013 to contact this division at 602-506-3851 and appear
telephonically at this hearing.
07/15/2004 — CV2004007697 EAMES, LARRY RAY 07/15/2004 THE HONORABLE MICHAEL A. YARNELL View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-007697
07/15/2004
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
THE HONORABLE MICHAEL A. YARNELL
M. L. Smith
Deputy
FILED: 07/19/2004
LARRY RAY EAMES
LARRY RAY EAMES
BOX 26040 , FCI, REG 20640-013
FCI ME DIVN - P O BOX 26040
BEAUMONT TX 77720
v.
A MELVIN MCDONALD, et al.
WILLIAM D HOLM
MINUTE ENTRY
Upon review of the pending matters,
IT IS ORDERED Judge Yarnell recuses himself from this action,
FURTHER ORDERED transferring this matter to the civil department presiding judge
for reassignment.
FURTHER ORDERED vacating the Oral Argument hearing scheduled at 4:30 p.m., July
15, 2004, before Judge Yarnell.
Pending:
1. Defendants Motion To Dismiss filed June 9, 2004;
2. Plaintiff’s Motion To Strike Motion To Dismiss filed June 1, 2004;
3. Plaintiff’s Request For Conditional Judgment On The Pleadings filed June 10, 2004;
4. Plaintiff’s Request For Leave To Amend Complaint and Request For Temporary
Restraining Order filed June 25, 2004;
5. Plaintiff’s Request For Reconsideration Of Necessity Of Oral Argument filed July 2,
2004; and,
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-007697
07/15/2004
Docket Code 023
Form V000A
Page 2
6. Defendants’ Motion To strike Plaintiff’s “Oral Argument Memorandum”, filed July 8,
2004.
07/20/2004 — CV2004007697 EAMES, LARRY RAY 07/20/2004 HON. MARGARET H. DOWNIE View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-007697
07/20/2004
Docket Code 066
Form V000A
Page 1
CLERK OF THE COURT
HON. MARGARET H. DOWNIE
L. Rasmussen
Deputy
FILED: 07/22/2004
LARRY RAY EAMES
LARRY RAY EAMES
BOX 26040 , FCI, REG 20640-013
BEAUMONT TX 77720
v.
A MELVIN MCDONALD, et al.
WILLIAM D HOLM
CASE REASSIGNMENT - CIVIL PRESIDING JUDGE
This case was previously assigned to Honorable Michael A. Yarnell, who has disqualified
himself. The case was transferred to the Civil Presiding Judge for reassignment.
IT IS ORDERED that this case be assigned to Civil Calendar CVJ02, the Honorable
Thomas Dunevant III, for all further proceedings.
Pending: See attached coversheet. Pending matters will be affirmed or reset by the
newly assigned division.
cc: Judge Dunevant
08/10/2004 — CV2004007697 EAMES, LARRY RAY 08/10/2004 HON. THOMAS DUNEVANT, III View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-007697
08/10/2004
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HON. THOMAS DUNEVANT, III
D. Raybon
Deputy
FILED: 08/17/2004
LARRY RAY EAMES
LARRY RAY EAMES
BOX 26040 , FCI, REG 20640-013
BEAUMONT TX 77720
v.
A MELVIN MCDONALD, et al.
WILLIAM D HOLM
MINUTE ENTRY
The Court has considered Defendants’ Motion to Dismiss, Defendant’s Objection to
Plaintiff’s Request for Conditional Judgment on the Pleadings, Plaintiff’s Request for Leave to
Amend/TRO, Defendant’s Motion to Strike Plaintiff’s Oral Argument Memorandum and the
briefs. The Court finds and rules as follows:
TIMELINE
Plaintiff
Date
Defendants
Complaint
May 6 (served)
June 9 Motion to Dismiss (12(b)(6))
Request for Conditional
June 10
Judgment on Pleadings
June 18
Objection to Plaintiff’s Request
For Conditional Judgment on
Pleadings
Motion to Strike/Response
June 21
To Motion to Dismiss
Request for Leave to Amend/ June 25
TRO
Oral Argument Memorandum July 2
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-007697
08/10/2004
Docket Code 019
Form V000A
Page 2
Plaintiff
Date
Defendants
Request for Reconsideration of
July 2
Oral Argument
Plaintiff’s Reply to
July 2
Defendant’s [sic]
Objections to Plaintiff’s
Request for
Conditional Judgment
On the Pleadings
July 6
Reply in Support of Motion to
Dismiss
July 8
Motion to Strike Plaintiff’s
“Oral Argument Memorandum”
July 8
Defendants Response to
Plaintiff’s Request for
Leave to Amend/TRO
Plaintiff Eames had his original complaint served on May 6, triggering the Rule
12(a)(1)(A) time limit of 20 days to file an Answer. McDonald and Jones Skelton & Hochuli, did
not file an answer. However, they did file a Rule 12(b)(6) Motion to Dismiss, on June 9. (From
now on, the Court will refer only to McDonald; JS&H is implied.) On June 7, Eames mailed a
Request for Conditional Judgment on the Pleadings, citing McDonald’s failure to file a timely
answer by May 26, and attempting to invoke Rule 8(d), admitting all averments in the
Complaint. This was received by the Court on June 10.
Request for Conditional Judgment on the Pleadings
It is not clear just what Plaintiff means by a “conditional” judgment on the pleadings.
Plaintiff never defines the term, and in the conclusion Plaintiff calls simply for a judgment on the
pleadings. Defendant characterizes Eames’s petition for Conditional Summary Judgment as a
Petition for Default, which is not appropriate in a case where the opposing party has submitted
responsive filings. (Defendants’ Objection to Plaintiff’s Request restates the statute of
limitations argument. Plaintiff’s Reply to Defendant’s Objections merely restates his
argument for judgment on the pleadings.) In fact, Eames is basing his motion on McDonald’s
failure to provide a timely answer. His interpretation of Rule 12(c) is that, once the twenty-day
window is past, the pleadings are closed and the court must rule on what is before it as of that
time.
However, Rule 12(b) defenses do not have to be plead as an answer (though they can be);
they can be raised by motion, as McDonald has done. For the purposes of a Rule 12(b) motion,
the allegations are taken as true anyway.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-007697
08/10/2004
Docket Code 019
Form V000A
Page 3
THEREFORE, IT IS ORDERED denying Plaintiff’s Request for Conditional Judgment
of the Pleadings.
Motion to Dismiss
The statute of limitations is three years (from date of discovery) for the fraud claims, two
years for all others. Thus, as to the claims in the complaint:
First. Legal malpractice, breach of fiduciary duty, and fraud are time-barred because, if
there was fraud, Eames learned of it at the 1998 trial. Second, improper billing (basically
misappropriation) is time-barred because Plaintiff should have compared what he paid Defendant
with what the billings accounted for. Moreover, Plaintiff knew at least something in November
1998, when he wrote to McDonald for another accounting; even if the clock is started on that
date, the limitations period is still long past. Third, fourth and fifth claims of fraud are time-
barred for the same reasons. In addition, the fifth claim of fraud is time-barred since Plaintiff
learned of payment at time of trial. Sixth. Misappropriation. The allegations are too inadequate
to even determine if a claim is stated. Seventh, legal malpractice is time-barred, since any
alleged malpractice was known at least as early as 1997, when Eames fired McDonald. Eighth,
attorney fees is only applicable if the other counts discussed above survive, which they do not.
Thus, all the allegations are time-barred. Since there was no answer in which the statute
of limitations was raised, Defendant’s Motion to Dismiss will be treated as a motion for
summary judgment. Rule 12(b).
THEREFORE, IT IS ORDERED granting Defendant’s Motion for Summary Judgment.
Plaintiff’s Combined Motion to Strike and Response to Defendant’s [sic] Motion to
Dismiss.
This motion makes several points. First, it repeats the request for judgment on the
pleadings, “striking” the Rule 12(b)(6) motion and granting the relief sought. Second, it repeats
the allegations in the Complaint, saying that Eames anticipated the statute of limitations
argument and that the documentation attached to the Complaint proves that the proper date to
begin tolling was actually when Eames received McDonald’s final accounting on August 15,
2003; the defense in the Motion to Dismiss is therefore frivolous and the same remedy as above
should be granted. However, this does not square with case law like Richards v. Powercraft
Homes, 139 Ariz. 242, 245-46 (1984) and Alaface v National Investment Co., 181 Ariz. 586, 591
(App. 1994), which starts the clock when the alleged wrongdoing either was known or would
have been known with reasonable care and diligence, not when the plaintiff became fully aware.
The Court determines that Eames knew that, by his calculation, McDonald was holding a large
sum of money which should have been returned to him – the “what” and “who” – but failed to
bring suit for over five years. Third, Eames denies that oral argument is necessary, but if the
court deems otherwise, seeks a Writ of Habeas Corpus ad Testificandum to be served on the
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-007697
08/10/2004
Docket Code 019
Form V000A
Page 4
United States Marshals Office. The Court concludes that a motion to strike is improper and that
the proper action, if appropriate would be to deny the motion.
THEREFORE, IT IS ORDERED denying Plaintiff’s Combined Motion to Strike/Motion
for Writ of Habeas Corpus ad Testificandum.
Request for Leave to Amend Complaint and Request for Temporary Restraining Order
First, the Court notes that Plaintiff has failed to submit a draft amended complaint. Thus,
Plaintiff’s Request to Amend Complaint is procedurally insufficient. The requested Amendment
itself does not materially affect the pending motions addressed this minute entry. Eames claims
that he had not sent McDonald any personal correspondence since filing the State Bar complaint
in 2003. He therefore contends that McDonald’s complaint to the warden at FCI Beaumont was
intended to harass, and seeks a TRO to prevent future contact as well as damages for the past
contact. McDonald contends that Eames had been sending letters to McDonald, his wife, and his
colleagues as late as February 2004 and that McDonald instructed the warden at Beaumont not to
pass through letters to McDonald or JS&H as “legal mail.” In light of the Court’s rulings in this
minute entry, Plaintiff’s Request to Amend and Request for Temporary Restraining Order is
rendered moot.
THEREFORE, IT IS ORDERED denying Plaintiff’s Request for Leave to Amend
Complaint and Request for Temporary Restraining Order.
Plaintiff’s Oral Argument Memorandum
This rehashes earlier claims; it barely mentions oral arguments. Striking it as an improper
filing, as McDonald urges, would not affect the record in any material way.
THEREFORE, IT IS ORDERED denying Defendant’s Motion to Strike.
Plaintiff’s Request for Reconsideration of Necessity of Oral Argument
This again repeats the basic claims in the suit. It does deal somewhat with its ostensible
subject, though only to assert that there is no reason to hold oral arguments given the written
record.
THEREFORE, IT IS ORDERED granting Plaintiff’s Request for Reconsideration of Oral
Argument and deeming that no oral argument is needed.
08/26/2004 — CV2004007697 EAMES, LARRY RAY 08/26/2004 HON. THOMAS DUNEVANT, III View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-007697
08/26/2004
Docket Code 021
Form V000A
Page 1
CLERK OF THE COURT
HON. THOMAS DUNEVANT, III
D. Raybon
Deputy
FILED: 08/30/2004
LARRY RAY EAMES
LARRY RAY EAMES
BOX 26040 , FCI, REG 20640-013
BEAUMONT TX 77720
v.
A MELVIN MCDONALD, et al.
WILLIAM D HOLM
MINUTE ENTRY
IT IS ORDERED, nunc pro tunc, amending the minute entry of this Court dated August
10, 2004, to delete the first paragraph, page 1, and replace with the following paragraph:
“The Court has considered Defendants’ Motion to Dismiss, Defendants Objection to
Plaintiff’s Request for Conditional Judgment on the Pleadings, Plaintiff’s Request for Leave to
Amend/TRO, Plaintiff’s Oral Argument Memorandum, Defendant’s Motion to Strike Plaintiff’s
Oral Argument Memorandum, Plaintiff’s Request for Reconsideration of Necessity of Oral
Argument, Plaintiff’s Combined Motion to Strike, and the briefs. The Court finds and rules as
follows:”
The balance of the minute entry of that date remain unchanged.
08/31/2004 — CV2004007697 EAMES, LARRY RAY 08/31/2004 HON. THOMAS DUNEVANT, III View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-007697
08/31/2004
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HON. THOMAS DUNEVANT, III
D. Raybon
Deputy
FILED: 09/02/2004
LARRY RAY EAMES
LARRY RAY EAMES
BOX 26040 , FCI, REG 20640-013
BEAUMONT TX 77720
v.
A MELVIN MCDONALD, et al.
WILLIAM D HOLM
MINUTE ENTRY
The Court has considered Plaintiff’s Motion (Request for Reconsideration). The Court
finds and rules as follows:
Plaintiff is in error when he states that failure to file a timely Answer waives not only the
right to Answer, but the right to file procedural motions. The only sanction for failing to file an
Answer is that averments in the Complaint are deemed admitted. Ariz.R.Civ.P. 8(d). Such
admission has no bearing on a motion for dismissal under Rule 12(b). Indeed, for the purposes
of a motion to dismiss under Rule 12(b)(6) for failure to state a claim, Plaintiff’s averments of
fact are assumed to be true. Though Plaintiff had arguably moved for default (if his Request for
Conditional Judgment on the Pleadings can be so characterized) prior to filing of Defendant’s
Motion to Dismiss, no default or other judgment had been entered, nor had the notice required by
Rule 55(a) been given. Therefore, Defendant retained the right to present his defenses. Corbet v.
Superior Court, 165 Ariz. 245, 248 (App. 1990).
As this Court previously held, Plaintiff’s discovery of Defendant’s alleged wrongdoing,
which triggered the statute of limitations, did not depend, or should not have depended, on the
documents he says he received belatedly. The statutory provisions concerned, A.R.S. §12-542 et
seq., are clear. Where the rights of the parties are clearly defined by statute, equity follows the
law. McDermott v. McDermott, 129 Ariz. 76, 77 (App. 1981); Ayer v. General Dynamics Corp.,
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-007697
08/31/2004
Docket Code 019
Form V000A
Page 2
128 Ariz. 326, 328 (App. 1980). Thus, there is no lawful basis for equitable tolling. Plaintiff
waited too long to file.
That his imprisonment may have caused Plaintiff some difficulty and delay is immaterial
as a matter of law. Our Legislature made the conscious choice not to allow imprisonment to be
considered in the calculation of the statute of limitations. See Laws 1996, Chapter 175 (deleting
former subsection B to A.R.S. §12-502).
Plaintiff asks that the issue of equitable tolling go to the jury rather than be decided by
the Court. Equitable tolling, as the name suggests, is an act of grace by the Court in Equity.
However, here, equitable tolling does not apply for reasons stated above. Thus, there is no
question of fact to go to a jury.
THEREFORE, IT IS ORDERED denying Plaintiff’s Request for Reconsideration.
