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Maricopa County Superior Court Case CV2010-000707: public docket details, parties, minute entries, documents, and official source links for Troon North Association.

Case Number

CV2010-000707

County

Maricopa

Caption

Not captured

Filed

1/6/2010

Case Type

Civil

Judge

Coury, Christopher

Location

Downtown

Official Court Record

Official Court Record

Parties

Minute Entries

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
01/05/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
01/04/2012
Docket Code 089
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
DANIEL E FREDENBERG
JURY TRIAL SET
9:27 a.m. This is the time set for Telephonic Status Conference. Plaintiff Mike
Markham is present and represented by counsel, Karen A. Palacek. Defendants First Arizona
Savings and Loan Association and Primeaz/Libra LLC are represented by counsel, Daniel E.
Fredenberg. All parties appear telephonically.
Court Reporter, Hilda Lopez, is present.
Status of the case is discussed.
Court is advised that a settlement conference was
unsuccessful and counsel request that this matter be set for trial.
IT IS ORDERED as follows:
1. Setting a Trial Management Conference for May 14, 2012 at 9:30 a.m. (1 hour) in
this division. All counsel must appear in person and cannot appear telephonically.
2. Setting a Four (4) Day Jury Trial for June 4, 2012 at 9:30 a.m. Said trial shall
continue on June 5, 6 and 7, 2012 beginning each day at 9:30 a.m.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
01/04/2012
Docket Code 089
Form V000A
Page 2
Before:
THE HONORABLE MARIA DEL MAR VERDIN
MARICOPA COUNTY SUPERIOR COURT
OLD COURTHOUSE
125 WEST WASHINGTON
3RD FLOOR, COURTROOM 303
PHOENIX, AZ 85003
602-506-2603 TEL
DUTIES PRIOR TO THE TRIAL MANAGEMENT CONFERENCE
3. MOTIONS IN LIMINE. All Motions in Limine shall be filed no later than 5:00 p.m.
on April 24, 2012, and such motions must meet the test of State v. Superior Court, 108
Ariz. 396, 397; 499 P.2d 152 (1972): The primary purpose of a Motion in Limine is to
avoid disclosing to the jury prejudicial matters which may compel a mistrial. See also,
Ariz. R. Evid. 103(c). A written response to a Motion in Limine may be filed no later
than ten (10) calendar days thereafter. The Court may rule on Motions in Limine
without oral argument. No replies shall be filed. The parties must comply with Rule
7.2(a) Ariz.R.Civ.P., prior to filing any Motion in Limine. Any motion in limine filed
without the movant having first complied with Rule 7.2(a), will be stricken by the Court.
4. JOINT PRETRIAL STATEMENT. Counsel shall file with the Court no later than
5:00 p.m. on May 7, 2012, a Joint Pretrial Statement signed by all counsel.
a) Deposition Summary: In addition to the information required by Rule
16(d), counsel shall at the Trial Management Conference provide to the
Court copies of any deposition transcripts to be read to the jury. The
offering party will highlight the portions to be read, the other side will
highlight Rule 106 additions, and any objections for the court to rule on
will be clearly marked in the margin. The parties are encouraged to
agree on narrative summaries of deposition testimony, using brief
question and answer excerpts only to emphasize very important
testimony or to cover areas of testimony that cannot be summarized to
the satisfaction of all counsel. No stipulation should be unreasonably
refused.
b) Final Trial Witnesses: In addition to the information required by Rule
16(d), the Joint Pretrial Statement shall include an exhibit titled: Final

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
01/04/2012
Docket Code 089
Form V000A
Page 3
Trial Witness List. This list shall contain the name of each witness a
party actually intends to call at trial, the day on which they intend to call
each witness and the estimated time needed for direct, cross and re-direct
examination.
5. JURY INSTRUCTIONS; VOIR DIRE QUESTIONS. Counsel shall meet and agree
on as many proposed jury instructions as possible. Counsel shall file with the Court,
with their Joint Pretrial Statement, copies of:
a) Proposed voir dire questions.
b) A joint set of agreed-upon preliminary and final jury instructions and
proposed forms of verdicts.
c) Separate sets of requested instructions that have not been agreed upon.
Please read Rosen v. Knaub, 175 Ariz. 329; 85 P.2d 381 (1993) and the
RAJI Civil 3d Statement of Purpose and Approach before preparing
requests for non-RAJI instructions.
Recommended Arizona Jury Instructions (RAJI) need not be typed and may be requested in
the following manner: RAJI 3d Standard 1 - Duty of Jurors. Non-RAJI instructions should be
typed. Each instruction should cover only one subject.
Any jury instructions not filed with the Court together with the Joint Pretrial Statement will
be deemed waived by the Court, unless the Court concludes that good cause exists for the untimely
submission.
DUTIES AT TRIAL MANAGEMENT CONFERENCE
6. At the Trial Management Conference, counsel shall be prepared to discuss:
a) Time limits in voir dire, opening statements, examination of witnesses
and closing arguments.
b) Stipulations for the foundation and authenticity of exhibits.
c) Preliminary jury instructions, juror notebooks (counsel shall bring any
proposed juror notebooks to the conference), mini opening statements
and voir dire.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
01/04/2012
Docket Code 089
Form V000A
Page 4
d) Agreed-upon deposition summaries and excerpts from deposition
transcripts and the editing of any videotaped depositions.
e) Use of short-trial or summary jury trial.
f)
Any special scheduling or equipment issues.
7. Counsel shall call the division clerk at 602-506-3813 at least two (2) weeks before trial
to make arrangements for delivering exhibits. The exhibits will be marked serially as
they are listed in the Joint Pretrial Statement – Plaintiff's first, Defendant's second.
Counsel shall meet and confer to eliminate any duplicate exhibits.
8. One day's jury fees will be assessed unless the court is notified of settlement before 2:00
p.m. on the judicial day before the trial. Counsel are reminded to promptly notify the
court of any settlement pursuant to Rule 5.1(c), Ariz.R.Civ.P.
9. The dates set forth in this Order are FIRM dates and will not be extended or modified
by this Court absent good cause. Lack of preparation will not ordinarily be
considered good cause.
9:33 a.m. Matter concludes.
Court Reporter
The proceeding will take place in the Superior Court’s “e-courtroom.” A record of the
proceedings will be made by videotape and CD in lieu of a court reporter. Should you want an
unofficial copy of the proceedings, the parties or counsel may request a videotape or CD of the
proceedings for a $20.00 charge. If a CD or videotape is requested, please obtain a form from
the Self Center to request a daily copy of a court hearing or trial proceeding being conducted.
Pay the applicable fee at the Self Service Center. Attach the receipt showing payment of the
fee and present both the receipt and the form to the courtroom clerk or bailiff. For copies of
hearings or trial proceedings recorded previously, please call Electronic Records Services
at 602-506-7100. Should an official transcript be required, you may request that the court
prepare it. The party ordering the transcript must pay for it. To request a transcript, call 602-
506-7100 and provide the date of the proceeding, the case number, the case caption, if the
transcript is for an appeal, and your name, address, and telephone number.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
01/04/2012
Docket Code 089
Form V000A
Page 5
If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.
ALERT: Effective September 1, 2011, the Arizona Supreme Court Administrative Order
2011-87 directs the Clerk's Office not to accept paper filings from attorneys in civil cases. Civil
cases must still be initiated on paper; however, subsequent documents must be eFiled through
AZTurboCourt unless an exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
01/18/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
01/16/2013
Docket Code 028
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
C. Danos
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
TIMOTHY W BARTON
RICHARD Q NYE
TELEPHONIC STATUS CONFERENCE SET
On the Court’s own motion,
IT IS ORDERED setting Telephonic Status Conference on pending motions for
summary judgment on February 13, 2013 at 10:00 a.m. (15 minutes)
THE HONORABLE MARIA DEL MAR VERDIN
MARICOPA COUNTY SUPERIOR COURT
OLD COURTHOUSE
125 WEST WASHINGTON
3RD FLOOR, COURTROOM 303
PHOENIX, AZ 85003
602-506-2603 TEL
Plaintiff shall initiate the conference call.
NOTE: Counsel shall be available for the conference call on a telephone land line and
not on cellular phones, in order to maximize all participants’ ability to hear and be heard.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
01/16/2013
Docket Code 028
Form V000A
Page 2
Note: Counsel shall have their calendars available for this proceeding.
Court Reporter
The proceeding will take place in the Superior Court’s “e-courtroom.” A record of the
proceedings will be made by videotape and CD in lieu of a court reporter. Should you want an
unofficial copy of the proceedings, the parties or counsel may request a videotape or CD of the
proceedings for a $20.00 charge. If a CD or videotape is requested, please obtain a form from
the Self Center to request a daily copy of a court hearing or trial proceeding being conducted.
Pay the applicable fee at the Self Service Center. Attach the receipt showing payment of the
fee and present both the receipt and the form to the courtroom clerk or bailiff. For copies of
hearings or trial proceedings recorded previously, please call Electronic Records Services
at 602-506-7100. Should an official transcript be required, you may request that the court
prepare it. The party ordering the transcript must pay for it. To request a transcript, call 602-
506-7100 and provide the date of the proceeding, the case number, the case caption, if the
transcript is for an appeal, and your name, address, and telephone number.
If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.
PLEASE NOTE: If/when a party files a pleading within 48 hours of a scheduled event,
the party should also e-mail same to the Court’s Judicial Assistant at the following:
[email protected]
NOTE: COUNSEL SHALL UPLOAD AND E-FILE ALL PROPOSED ORDERS
IN WORD FORMAT ONLY TO ALLOW FOR POSSIBLE MODIFICATIONS BY THE
COURT.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
01/19/2011 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
01/18/2011
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HON. SAM J. MYERS
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KIMBERLY A LANE
v.
PINNACLE POINT DEVELOPERS L L C, et al.
DANIEL E FREDENBERG
ORAL ARGUMENT SET
IT IS ORDERED setting Oral Argument on Defendants First Arizona Savings and Loan
Association and PrimeAZ/Libra, LLC’s Motion for Leave to File Counterclaim; and Third-Party
Fidelity National Title Insurance Company’s Motion to Intervene and Assert a Third-Party Claim
Against Troon Canyon Ventures, LLC on February 2, 2011 at 10:30 a.m. in this division.
Oral argument shall be limited to thirty (30) minutes with the time divided equally
between the parties. Counsel and the parties, if representing themselves, are to appear in person
before:
THE HONORABLE SAM J. MYERS
MARICOPA COUNTY SUPERIOR COURT
CENTRAL COURT BUILDING
201 W. JEFFERSON
7TH FLOOR, COURTROOM 702
PHOENIX, AZ 85003
602-372-2940 TEL
602-372-8744 FAX

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
01/18/2011
Docket Code 094
Form V000A
Page 2
Court Reporter
The proceeding will take place in the Superior Court’s “e-courtroom.” A record of the
proceedings will be made by videotape and CD in lieu of a court reporter. Should you want an
unofficial copy of the proceedings, the parties or counsel may request a videotape or CD of the
proceedings for a $20.00 charge. If a CD or videotape is requested, please obtain a form from
the Self Center to request a daily copy of a court hearing or trial proceeding being conducted.
Pay the applicable fee at the Self Service Center. Attach the receipt showing payment of the
fee and present both the receipt and the form to the courtroom clerk or bailiff. For copies of
hearings or trial proceedings recorded previously, please call Electronic Records Services
at 602-506-7100. Should an official transcript be required, you may request that the court
prepare it. The party ordering the transcript must pay for it. To request a transcript, call 602-
506-7100 and provide the date of the proceeding, the case number, the case caption, if the
transcript is for an appeal, and your name, address, and telephone number.
If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

01/23/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

01/22/2014

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
M. Nielsen

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK

v.

PINNACLE POINT DEVELOPERS L L C, et al.
PINNACLE POINT DEVELOPERS L L C
NO ADDRESS ON RECORD

TROON NORTH ASSOCIATION
NO ADDRESS ON RECORD
RICHARD Q NYE
FRANK S TOMKINS
TROON CANYON VENTURES L L C
NO ADDRESS ON RECORD

MINUTE ENTRY

The Court is in receipt of Plaintiff Markham Contracting Co., Inc.’s Separate Statement
of Facts in Support of Markham’s Motion for Partial Summary Judgment with Regard to
Mechanics Line Remaining in Place, filed on November 4, 2013; Markham Contracting Co.,
Inc.’s Motion for Partial Summary Judgment with Regard to Mechanic’s Lien Remaining in
Place, filed on November 4, 2013; FDIC’s Controverting Statement of Facts in Response to
Plaintiff’s Separate Statement of Facts in Support of Plaintiff’s Motion for Partial Summary
Judgment with Regard to Mechanic’s Lien Remaining in Place and Separate Statement of Facts
in Opposition to Plaintiff’s Motion for Partial Summary Judgment with Regard to Mechanic’s
Lien Remaining in Place, filed on December 16, 2013; FDIC’s Response to Plaintiff’s Motion
for Partial Summary Judgment with Regard to Mechanic’s Lien Remaining in Place, filed on
December 16, 2013; Defendant Primeaz/Libra, LLC’s Joinder in Response to Plaintiff’s Motion
for Partial Summary Judgment with Regard to Mechanic’s Lien Remaining in Place and
Controverting Statement of Facts, filed on December 19, 2013; and Markham Contracting Co.,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

01/22/2014

Docket Code 094
Form V000A
Page 2

Inc.’s Reply in Support of its Motion for Partial Summary Judgment with Regard to Mechanic’s
Lien Remaining in Place, filed on January 10, 2014.

Statement of Facts in Support of the FDIC’s Motion for Summary Judgment RE:
Extinguishment of Markham’s Mechanic’s Lien, filed on November 4, 2013; FDIC’s Motion for
Summary Judgment RE: Extinguishment of Markham’s Mechanic’s Lien, filed on November 4,
2013; Defendant Primeaz/Libra, LLC’s Joinder in Motion for Summary Judgment RE:
Extinguishment of Markham’s Mechanic’s Lien, filed on November 6, 2013; Markham
Contracting Co., Inc.’s Supplemental Statement of Facts in Support of the Response to FDIC’s
Motion for Summary Judgment RE: Extinguishment of Markham’s Mechanic’s Lien and
Primeaz/Libra LLC’s Joinder, filed on December 16, 2013; and FDIC’s Reply in Support of
Motion for Summary Judgment RE: Extinguishment of Markham’s Mechanic’s Lien, filed on
January 10, 2014.

FDIC’s and Primeaz’s Joint Motion for Summary Judgment Against Markham on Count
Six of its First Amended Complaints, filed on October 30, 2013; Statement of Facts in Support of
the FDIC’s and Primeaz’s Joint Motion for Summary Judgment Against Markham on Count Six
of its First Amended Complaint, filed on October 30, 2013; Objections to Defendants’ Statement
of Facts in Support of Plaintiff’s Response in Opposition to the Motion for Summary Judgment
RE: Declaratory Judgment and Separate Statement of Facts, filed on December 3, 2013;
Plaintiff’s Response in Opposition to the FDIC’s and Primeaz’s Joint Motion for Summary
Judgment, RE: Declatory Judgment, filed on December 3, 2013; and FDIC’s and Primeaz’s Joint
Reply in Support of Motion for Summary Judgment Against Markham on Count Six of its First
Amended Complaint filed on January 10, 2014.

IT IS ORDERED denying Plaintiff Motion for Reconsideration RE Equitable
Subrogation/Replacement, filed on December 16, 2013.

IT IS ORDERED setting Oral Argument on March 28, 2014 at 9:30 a.m. in this
division.

Oral argument shall be limited to one hour with the time divided equally between the
parties. Counsel and the parties, if representing themselves, are to appear in person before:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

01/22/2014

Docket Code 094
Form V000A
Page 3

THE HONORABLE MARIA DEL MAR VERDIN
MARICOPA COUNTY SUPERIOR COURT
OLD COURTHOUSE
125 WEST WASHINGTON
3RD FLOOR, COURTROOM 303
PHOENIX, AZ 85003
602-506-2603 TEL

If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.

ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
02/04/2011 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
02/02/2011
Docket Code 022
Form V000A
Page 1
CLERK OF THE COURT
HON. SAM J. MYERS
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
BRIAN JOSEPH PALMER
MINUTE ENTRY
10:33 a.m. This is the time set for Oral Argument on Defendants First Arizona Savings
and Loan Association and PrimeAZ/Libra, LLC’s Motion for Leave to File Counterclaim; and
Third-Party Fidelity National Title Insurance Company’s Motion to Intervene and Assert a
Third-Party Claim Against Troon Canyon Ventures, LLC. Plaintiff is represented by counsel
Karen A. Palacek. Defendants are represented by counsel Brian Joseph Palmer.
A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.
Oral argument is presented to the Court.
The Court has considered the Motions of the parties and arguments of counsel. On the
Motion for Leave to File Amended Answer and Counterclaim, the Court has considered the
timeline of these proceedings. The Court has also considered the issues raised by Plaintiff
regarding prejudice. For the reasons stated on the record, the Court finds good cause to grant
leave to file an amended answer and counterclaim.
IT IS ORDERED granting Defendants First Arizona Savings and Loan Association and
PrimeAZ/Libra, LLC’s Motion for Leave to File Counterclaim all in accordance with the formal

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
02/02/2011
Docket Code 022
Form V000A
Page 2
written Order signed by the Court on February 2, 2011 and filed (entered) by the Clerk on
February 3, 2011.
IT IS FURTHER ORDERED granting Third-Party Fidelity National Title Insurance
Company’s Motion to Intervene and Assert a Third-Party Claim Against Troon Canyon
Ventures, LLC. all in accordance with the formal written Order signed by the Court on February
2, 2011 and filed (entered) by the Clerk on February 3, 2011
10:41 a.m. Matter concludes.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
02/20/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
02/13/2013
Docket Code 095
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
C. Danos
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
TIMOTHY W BARTON
RICHARD Q NYE

ORAL ARGUMENT RESET

Courtroom 303 – Old Courthouse
11:05 a.m. This is the time set for telephonic Status Conference to discuss pending
matters. Plaintiff is represented by counsel, Karen A. Palecek and Tabitha Myers. Defendant
PRIMEAZ/Libra LLC is represented by counsel, Richard Q. Nye. Defendant Federal Deposit
Insurance Corporation (Receiver) is represented by counsel, Adam Wilkes who appears for
Timothy W. Barton. All counsel appear telephonically.
Court Reporter, Hilda Lopez, is present.
Case status is discussed.
IT IS ORDERED vacating the Oral Argument on the pending seven motions set for
March 15, 2013 in this division and resetting it to March 27, 2013 at 1:30 p.m. (two hours
allotted).
IT IS FURTHER ORDERED affirming the current schedule for mediation.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
02/13/2013
Docket Code 095
Form V000A
Page 2
Upon agreement of the parties,
IT IS ORDERED that the parties shall file a revised scheduling order within 20 days of
the Court’s ruling on the pending motions for summary judgment.
IT IS FURTHER ORDERED vacating the telephonic Status Conference set for May 6,
2013.
11:16 a.m. Matter concludes.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
02/17/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
02/16/2012
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
DANIEL E FREDENBERG
MINUTE ENTRY
The Court has received Plaintiff Markham Contracting Co., Inc.’s Motion for
Reconsideration filed December 23, 2011.
The Court requests that Defendant file a response no later than March 9, 2012.
Plaintiff may file a reply no later than March 23, 2012.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
03/18/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
03/14/2013
Docket Code 095
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
C. Danos
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
PINNACLE POINT DEVELOPERS L L C
NO ADDRESS ON RECORD
TROON NORTH ASSOCIATION
NO ADDRESS ON RECORD
TIMOTHY W BARTON
RICHARD Q NYE
TROON CANYON VENTURES L L C
NO ADDRESS ON RECORD
ORAL ARGUMENT RESET
On the Court’s own motion,
IT IS ORDERED vacating the oral argument on the Motions for Summary Judgment
currently scheduled for March 27, 2013 in this division and resetting it for May 6, 2013 at
9:30 a.m. (2 hours allotted).
All counsel have been notified of the new date and time and the date works for their
calendars.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

04/08/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

03/28/2014

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
M. Nielsen

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK

v.

PINNACLE POINT DEVELOPERS L L C, et al.
PINNACLE POINT DEVELOPERS L L C
NO ADDRESS ON RECORD

TROON NORTH ASSOCIATION
NO ADDRESS ON RECORD
RICHARD Q NYE
FRANK S TOMKINS
TROON CANYON VENTURES L L C
NO ADDRESS ON RECORD

MINUTE ENTRY

Courtroom 303 – Old Courthouse

9:28 a.m. This is the time set for Oral Argument on Markham Contracting Co., Inc.’s
Separate Statement of Facts in Support of Markham’s Motion for Partial Summary Judgment
with Regard to Mechanics Lien Remaining in Place, filed on November 4, 2013; FDIC’s
Statement of Facts in Support of the FDIC’s Motion for Summary Judgment RE: Extinguishment
of Markham’s Mechanic’s Lien, filed on November 4, 2013; and FDIC’s and Primeaz’s Joint
Motion for Summary Judgment Against Markham on Count Six of its First Amended Complaint,
filed on October 30, 2013. Plaintiff is represented by counsel, Karen A. Palecek. Defendant
Primeaz/Libra LLC is represented by counsel, Richard Q. Nye. Defendant Federal Deposit
Insurance Corporation is represented by counsel, Scott Malm.

Court Reporter, Hilda Lopez, is present.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

03/28/2014

Docket Code 020
Form V000A
Page 2

Oral arguments are presented.

IT IS ORDERED taking this matter under advisement.

10:20 a.m. Matter concludes.

Effective April 15, 2014 new civil rules and forms are in effect for managing cases
moving to trial. Be sure to review the new Civil Rules 16, 26, 37, 38, 72 through 74 and 77.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

04/06/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

04/03/2018

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAWN M. BERGIN
S. Ortega

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK
THOMAS L HUDSON

v.

PINNACLE POINT DEVELOPERS L L C, et al.

RICHARD Q NYE
FRANK S TOMKINS

UNDER ADVISEMENT RULINGS

The Court has considered the following:1

 FDIC’s Motion for Summary Judgment on Markham’s Right to Foreclose Against
FDIC’s Interest in the Property filed on October 2, 2017
o Markham’s Response filed on November 6, 2017
o FDIC’s Reply filed on November 20, 2017

 Defendants FDIC and PrimeAZ’s (collectively “Defendants”) Joint Motion for
Summary Judgment Re: Rights of Parties with Respect to Real Property and FDIC’s
and PrimeAZ’s Right to Interest on Equitable Subrogation Amount filed on October
2, 2017
o Markham’s Response filed on November 6, 2017

1 The Court denied PrimeAZ and FDIC’s November 6, 2017 Joint Cross-Application for Attorneys’ Fees, Costs and
Expenses by minute entry dated December 7, 2017.

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o Defendants’ Joint Reply filed on November 20, 2017
 All related Statements of Fact

 Markham’s Supplemental Brief Re FDIC Immunity filed on February 2, 2018

 FDIC’s Supplemental Brief on the Issue of the FDIC’s Immunity With Respect to
Attorneys’ Fees, Prejudgment Issue and Foreclosure of Markham’s Mechanic’s Lien
filed on February 2, 2018

 Markham’s Application for Attorneys’ Fees, Costs and Sanctions filed on September
1, 2017
o Defendants’ Response filed on October 2, 2017
o Markham’s Reply filed on November 6, 2017
o Markham’s Notice of Errata Re: Affidavit of Karen Palecek filed on November
30, 2017

 Markham’s Supplemental Application for Attorneys’ Fees, Costs and Expenses filed
on December 21, 2017
o Defendants’ Response filed on January 12, 2018
o Markham’s Reply filed on February 2, 2018

 Markham’s Motion for Entry of Judgment filed on September 1, 2017
o Defendants’ Response filed on October 2, 2017
o Markham’s Reply filed on November 6, 2017
o Markham’s Notice of Errata Re: Affidavit of Karen Palecek filed on November
30, 2017

 PrimeAZ and FDIC’s Proposed Form of Judgment filed on November 21, 2017
o Markham’s Objection filed on December 5, 2017

 The arguments of counsel presented at the December 7, 2017 and December 11, 2017
hearings

The Court now makes the following findings and orders

Factual and Procedural History

On April 7, 2006, First Arizona Savings and Loan Association (“FAS”) loaned Troon
Canyon Ventures (“Troon”) $4.1 million (the “2006 Loan”) to purchase property (the
“Property”) for the development of a golf course. The Loan was secured by a deed of trust on

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the Property (the “2006 DOT”). Troon then hired Pinnacle Point Developers, LLC (“Pinnacle”)
as the general contractor. Plaintiff Markham Contracting Co., Inc. (“Markham”) served as a
subcontractor for Pinnacle and began grading, paving and water utility work on June 10, 2008.

In 2008, FAS and PrimeAZ/Libra (“PAZL”) loaned Troon an additional $4.8 million to
fund development of the golf course (the “2008 Loan”). Troon used $2.9 million of the 2008
Loan to pay off the 2006 Loan. As part of the transaction, the 2006 DOT was released so that
the Property could be used to secure the 2008 Loan (the “2008 DOT”).

In late August 2009, PAZL and FAS declared a default on the 2008 Loan and demanded
full payment by September 25, 2009. On September 2, 2009, Markham recorded its mechanic’s
lien.
On November 19, 2009, PAZL and FAS recorded a notice of trustee’s sale of the
Property.

Markham filed the Complaint in this case on January 6, 2010 seeking foreclosure of its
lien, a declaration of the validity of the lien, and an order that the lien be paid from the proceeds
of the sale of the Property. It also filed a lis pendens on the Property.

The trustee’s sale took place in late February 2010. PAZL and FAS purchased the
Property through a credit bid of $3.175 million. On or about October 22, 2010, FAS was closed
by the Office of Thrift Supervision, and FDIC-R (“FDIC”) was appointed as the Receiver.2
Markham filed a First Amended Complaint (“FAC”) on June 15, 2012 naming FDIC as a
Defendant.

On April 23, 2014, Judge Maria Verdin issued the following rulings on motions and
cross-motions for summary judgment:

1. Markham held a valid lien for $341,700;
2. The 2008 DOT was equitably subrogated to the 2006 DOT to the extent the 2008
Loan was used to satisfy the 2006 Loan; and
3. The trustee’s sale extinguished Markham’s lien

A final judgment was entered on October 13, 2014.

Markham appealed the judgment, and on August 9, 2016, the Court of Appeals issued a
memorandum decision reversing Judge Verdin’s ruling that Markham’s lien was extinguished by
the trustee’s sale and affirming her ruling that the 2008 DOT was equitably subrogated to the

2 FDIC did not move to substitute in as the real party in interest for FAS until April 2018. The Court granted the
Motion on June 8, 2012.

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2006 DOT to the extent that proceeds from the 2008 Loan were used to pay off the 2006 Loan.
Consequently, Defendants’ first priority lien was for the subrogation amount of $2.9 million, not
the amount of the credit bid, and was extinguished by the trustee’s sale, leaving Markham’s lien
in first position. Defendants still hold a lien for the difference between the credit bid and the
subrogated amount, but it is now junior to Markham’s lien.

Defendants filed a petition for review with the Arizona Supreme Court, which was
denied. The Court of Appeals and the Supreme Court awarded Markham fees and costs.

LEGAL ANALYSIS

A. Markham’s Requests for Foreclosure, Attorneys’ Fees, Pre-Judgment Interest and
Rule 68 Sanctions

The FDIC largely relies upon the doctrine of sovereign immunity and certain provisions
of the Financial Institutions Reform, Recovery and Enforcement Act (“FIRREA”) in opposing
Markham’s request for foreclosure and an award of attorneys’ fees, sanctions and prejudgment
interest. The FDIC acknowledges that Congress waived sovereign immunity for FDIC to sue
and be sued under 12 U.S.C. §1819(a). However, according to the FDIC, this waiver does not
extend to foreclosure of any property in which it holds an interest, or imposition of attorneys’
fees, prejudgment interest and sanctions.

1. Foreclosure

The FDIC argues that 12 U.S.C. §§1821(d)(13)(C) and 1825(b)(2) (the “Lien Statutes”)
bar Markham from foreclosing on its lien. The first provision, 12 U.S.C. §1821(d)(13)(C), states
that “[n]o attachment or execution may issue by any court upon assets in the possession of the
receiver.” Section 1825(b)(2) provides that “[n]o property of the [receiver] shall be subject to
levy, attachment, garnishment, foreclosure, or sale without the consent of the [receiver], nor shall
any involuntary lien attach to the property of the [receiver].”

Markham contends that the FDIC waived the Lien Statutes as a defense due to late
disclosure. As the Court views the waiver issue, the question is whether the FDIC waived the
consent provision in §1825(b)(2) by failing to assert it earlier.

1. Sovereign Immunity and Subject Matter Jurisdiction

The FDIC seeks to avoid waiver by invoking the doctrine of sovereign immunity and
asserting that the court lacks subject matter jurisdiction over any determination of the foreclosure
issue. As to sovereign immunity, it contends that §1825(b) “represents the decision of Congress

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to reinstate the sovereign immunity of the United States for the limited purpose of prohibiting
foreclosure against property owned by the [FDIC] (during the period of [FDIC’s] ownership) . . .
the protection afforded to the [FDIC] is not subject to being waived and can be asserted at any
time and at any stage of the judicial proceedings.” Reply on Mot. Summ. J. at 2.

The Court agrees with Markham, however, that the existence of these statutes cannot
reasonably be construed as a “reinstatement of sovereign immunity” as to foreclosure. First, as
Markham points out, there is no case law or language in the federal statutes suggesting that these
defenses somehow narrowed the scope of Congress’s waiver of sovereign immunity, and the
FDIC has provided no authority to support this proposition. Second, adopting the FDIC’s
position would give it carte blanche to disregard, even in bad faith, the disclosure and discovery
rules of the courts where Congress has determined it may be sued, thereby allowing it to gain an
unfair and inequitable advantage over parties who contract with a failed financial institution for
which FDIC serves as the receiver.

The FDIC next argues that even if §1825(b) does not constitute a reinstatement of
sovereign immunity, it sufficiently demonstrates Congress’ intent to preclude courts from
interfering with FDIC’s protection of its property to divest the court of jurisdiction over the
issue. But Markham persuasively argues that to divest a court of jurisdiction, the legislative
intent to do so must be clearly stated. The FDIC points to no such statement in the statutes or
case law. Rather, it cites a case involving a garnishment action to recover proceeds in the
possession of the FDIC, where the Court stated in dicta that even though the parties had not
raised the issue below, it “appeared” to the Court that §1825(b)(2) would “place a limitation on
the power of the court to grant relief in this case.” GWN Petroleum Corp. v. OK-TEX Oil & Gas,
Inc., 998 F.2d 853, 857 (10th Cir. 1993). This speculation by the GWN Court is hardly
convincing authority that Congress intended to divest state courts of jurisdiction over foreclosure
issues under §1825(b).

2. Waiver

Given the Court’s rejection of the FDIC’s sovereign immunity and subject matter
jurisdiction arguments, it turns to the merits of Markham’s waiver argument. Markham points
out that despite the explicit request in the Complaint that the court “allow and order the Sheriff
of Maricopa County to have a sale of the real property . . .,” the FDIC did not assert the Lien
Statutes as a defense in its Answer, nor did it include them in any disclosure statements or any of
the multiple motions filed with the trial court. It also did not raise them before the Court of
Appeals or the Supreme Court.

A failure to assert an affirmative defense in an Answer “results in a waiver of that
defense and an exclusion of the issue from the case.” Hegel v. O’Malley Ins. Co., Inc. 122 Ariz.

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52, 56 (1979). “An affirmative defense is a legal defense to a claim, as opposed to a factual
dispute as to an essential element of the claim.” 61A Am. Jur. 2d. Pleading §271. The Lien
Statutes are affirmative defenses because they do not dispute the facts as alleged by Markham in
the Amended Complaint—i.e., that it held a junior lien on the Property—but rather create a legal
defense that any foreclosure by Markham is barred because the FDIC owns the Property.

Not only did the FDIC fail to plead the Lien Statutes as an affirmative defense, but it
violated Rule 26.1(a)(2) of the Arizona Rules of Civil Procedure, which requires each side to
disclose “the legal theory on which each of the disclosing party's claims or defenses is based,
including--if necessary for a reasonable understanding of the claim or defense--citations to
relevant legal authorities.” Clearly, the FDIC was required to disclose in a foreclosure action its
defense that federal law precluded Markham from initiating any foreclosure. When a party fails
to make timely disclosures required by Rule 26.1, that party may not use that information at a
hearing or at trial or with respect to a motion, unless the failure to disclose was harmless—i.e.,
there was no prejudice to the other party. Rule 37(c)(1).

Markham argues that it was prejudiced by the late disclosure because, had the Court of
Appeals been aware of the Lien Statute defenses, it may have crafted a more favorable remedy
for Markham. The Court agrees with the FDIC that this alleged prejudice is simply too
speculative. The issues before the Court of Appeals included: (1) whether the FDIC was entitled
to equitable subrogation, and if so, in what amount; and (2) whether Markham’s lien was
extinguished by the trustee’s sale. The Court was not requested to and did not reach the issue of
Markham’s entitlement to foreclose.

As to the failure to assert the Lien Statutes as an affirmative defense in the Answer, the
Court notes that the FDIC could cure that defect by amending the Answer to add the defenses.
In determining whether to grant a motion to amend, the primary question is whether amendment
would result in prejudice to the non-moving party or cause undue delay. The “prejudice” to be
considered in determining whether to grant leave to amend “is not that occasioned by defeat on
the merits, but rather the inconvenience and delay suffered when the amendment raises new
issues or inserts new parties into the litigation.” Romo v. Reyes, 26 Ariz. App. 374, 376 (1976).
Further, a finding of undue delay “requires more than a party merely seeking to amend late in the
proceedings.” Carranza v. Madrigal, 237 Ariz. 512, 515 (2015).

The application of the Lien Statutes to the undisputed facts of this case presents a pure
question of law. Thus, adding them as affirmative defenses will not occasion the need for any
additional briefing or discovery. Rather, simply allowing the amendment would resolve the
entire issue—Markham would, as a matter of law, be precluded from foreclosing its lien while
the FDIC owns the Property.

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Given that the parties have fully briefed whether Markham has suffered prejudice as a
result of the FDIC’s late disclosure of the Lien Statutes as a defense, the Court will treat the
FDIC’s briefing on its Motion for Summary Judgment on Markham’s Right to Foreclose Against
FDIC’s Interest in the Property as a Motion to Amend the Answer to include the Lien Statutes as
affirmative defenses. And, for the reasons stated above, the Court hereby grants the Motion.
The FDIC shall file the Amended Answer within 5 business days of the date this minute entry is
filed.

The FDIC owns a 65% undivided interest in the Property, while PAZL owns a 35%
undivided interest. Importantly, PAZL has no immunity or other viable defense to Markham’s
right to foreclose on PAZL’s interest in the Property. Although the Court and counsel had some
theoretical discussions about how such a foreclosure would work, no concrete determinations
were made. Now that the Court has ruled on whether Markham is entitled to foreclose, it will
order Markham to file a revised proposed form of judgment accounting for the Court’s rulings.

2. Prejudgment Interest

The FDIC contends that sovereign immunity protects it from any award of prejudgment
interest because the “sue-and-be-sued” waiver of immunity in 12 U.S.C. §1819(a) does not
extend to prejudgment interest. The general rule is that the United States is immune from
interest on claims against it unless it has waived immunity or is operating as a private
commercial enterprise. An example of the latter is Loeffler v. Frank, 486 U.S. 549 (1988), where
the Court ruled that Congress waived sovereign immunity for the Postal Service by “launching
[it] into the commercial world, and including a sue-and-be-sued clause in its charter.”

The FDIC acts in two capacities—corporate and receiver. In its corporate capacity, it
acts to ensure the return of deposits to bank customers. As a receiver, it steps into the shoes of
the failed institution and assumes responsibility for running the operations as well as pursuing
the bank’s claims and defending against the claims of others.

Defendants are correct that several courts have held that sovereign immunity extends to
claims for prejudgment interest against the FDIC, even when it acts as a receiver. However, the
analysis in many of those cases is superficial—that is, unless Congress has “launched the agency
into the commercial world” like it did with the Postal Service, the courts simply find that the
agency is not a commercial enterprise, without looking at whether in the particular action, the
FDIC was acting like a private commercial enterprise.

For example, in In Far West Federal Bank, S.B. v. Office of Thrift Supervision Director,
119 F.3d 1358 (9th Cir. 1997), the court held that sovereign immunity precluded an award of
prejudgment interest against the FDIC, which was acting in its corporate capacity. It then made

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general pronouncements such as “[u]nlike the Postal Service, FDIC operates as a governmental,
regulatory entity, not as a private commercial enterprise.” Id. at 1366. In Battista v. FDIC, 195
F.3d 1113 (9th Cir. 1999), the FDIC was acting in its receiver capacity. The court nonetheless
held that it was immune from prejudgment interest and in response to appellants argument that
sovereign immunity should not apply when the FDIC is acting as a receiver because when it does
so, its actions “take on more of the character of a private enterprise,” the court simply hearkened
back to In Far West’s pronouncement that as a “governmental, regulatory entity . . . not a profit-
making enterprise,” the FDIC is “not a commercial entity.” Id. at 1120.

Markham argues that whether the FDIC is entitled to immunity from prejudgment interest
should turn on whether it was acting in its corporate or receiver capacity as to the dispute giving
rise to the claim for prejudgment interest. It cites Federal Deposit Ins. Corp. v. Hickey, 757 F.
Supp.2d 194, 197-98 (E.D.N.Y. 2010) to support the argument. The Hickey Court adopted a
straightforward and sound approach to the question, finding that invocation of sovereign
immunity to protect the FDIC against awards of prejudgment interest simply does not make
sense where the FDIC is stepping into the shoes of the failed institution. See also Northern Bank.
v. Federal Deposit Ins. Corp., 496 N.W.2d 459 (Neb. 1993).

The FDIC emphasizes that more courts have held that the FDIC is entitled to immunity
from prejudgment interest than not. While that may be true, the Court notes that the Fifth Circuit
appears to be moving in the direction of the Eastern District of New York. In Spawn v. Western
Bank – Westheimer, 989 F.2d 830 (5th Cir. 1993), a case cited by the FDIC, the Court very
specifically limited its ruling barring a prejudgment interest award against the FDIC to
circumstances where it acts in its corporate capacity in making deposit insurance determinations:

[W]e conclude that the district court erred in awarding prejudgment interest under
the “commercial enterprise” exception to the no interest rule. The FDIC’s sue-
and-be-sued clause, although constituting a broad waiver of the agency’s
immunity from suit, does not dispose of the question whether Spawn may recover
interest. The more important considerations are whether the FDIC as insurer of
deposits is engaging in a commercial operation, and, ultimately, whether
Congress intended the FDIC to be liable for prejudgment interest in the context of
erroneous deposit insurance determinations. In our view, the FDIC is not engaged
in a commercial enterprise when it acts as insurer of deposits, but rather as a
protector of the banking system and the general welfare.

Id. at 838. A footnote was included at the end of this passage stating that: “[w]e express
no opinion whether the FDIC, when acting in other capacities and in other contacts, is
immune from prejudgment interest awards,” and citing Northern Bank, supra, as an

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example of a court that has drawn the distinction between the FDIC acting in its
corporate and receiver capacities. Id. n. 12.

Further, in Federal Deposit Ins. Corp. v. Maxxam, Inc., 523 F.3d 566, 597 (5th Cir.
2008), the Fifth Circuit implied in dicta that if presented with the question of whether the FDIC
is immune to awards of prejudgment interest when it is operating in a receiver capacity, it would
likely find that it is not:

Even if we were to label the costs as “prejudgment interest” and to address the
question of the extent to which the FDIC waived sovereign immunity, if FDIC
were acting in its capacity as a receiver, it would not likely be immune from an
assessment of prejudgment interest. Since we address the costs of delay awarded
as part of sanctions, rather than traditional prejudgment interest, we leave that
issue for another day.

Recognition of the distinction between the corporate and receiver capacities of the FDIC
is not a novel concept. Indeed, a determination as to whether a party who prevails against the
FDIC is entitled to attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. §2412
(“EAJA”), turns on this very distinction:

In light of the FDIC's purpose and its organizational framework, it becomes
apparent that when the FDIC is acting as a receiver it is performing a function
normally accomplished by a private entity rather than a federal agency. As a
receiver, the FDIC does not act on behalf of the United States government, and it
does not perform any function unique to the federal government. Instead, it acts
on behalf of the failed bank in the interest of that bank's creditors.

Schock v. FDIC, 118 F. Supp. 2d 165, 169-170 (D. R.I. 2000) (emphasis added).

The Court agrees with Markham and the Hickey and Northern Bank Courts that sovereign
immunity does not protect the FDIC from prejudgment interest when it acts in its receiver
capacity, and it is not necessary for Congress to “launch an agency into the commercial world”
to meet the commercial enterprise exception. This litigation effectively demonstrates why this
should be the case. First, the FDIC and its co-lender, a solvent bank, have acted in lock-step with
one another since the issuance of the 2008 Loan and throughout the eight years of litigation.
Second, adopting the FDIC’s position would give it an undeserved windfall as a result of conduct
which the Court of Appeals described as “contrary to law and calculated to lead to inequity.”
That is, making its unlawful credit bid, Markham has suffered years of delay, which the FDIC
claims it should not have to compensate Markham for because it is in the business of protecting
the public and the industry.

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3. Attorneys’ Fees

By minute entry dated December 7, 2017, the Court found that Markham was the
successful party and entitled to reasonable attorneys’ fees pursuant to A.R.S. §33-998(B). The
remaining questions include: (1) whether the FDIC is immune from attorneys’ fees awards; and
(2) if not, the amount of fees that should be awarded.3

a. Immunity

While the FDIC was able to cite several cases to support its argument that sovereign
immunity protects it from pre-judgment interest, it cited only one, Interfirst Bank Abilene, N.A. v.
FDIC, 777 F.2d 1092, 1097 (5th Cir. 1985), to support its claim that it is also immune from
awards of attorneys’ fees. For all of the reasons set forth on page 18 of Markham’s
Supplemental Brief Re FDIC Immunity, the Court finds Interfirst inapposite.4 Thus, for the
same reasons that the FDIC is not entitled to immunity from prejudgment interest, it is also not
immune from fee awards.

b. Amount

Markham seeks $450,965 in attorneys’ fees. Defendants first request a substantial
reduction in fees because Defendants prevailed on their equitable subrogation claim and obtained
summary judgment on Markham’s claims for unjust enrichment, promissory estoppel and
misdistribution of the sales proceeds.5 But, “where a party has accomplished the result sought in
the litigation, fees should be awarded for time spent even on unsuccessful legal theories.”
Schweiger v. China Doll Restaurant, 138 Ariz. 183, 189 (App. 1983). The Court declines
Defendants’ request because the claims were all interrelated, and as the Court explained at the
hearing on December 7, 2017, Markham accomplished the result it sought—survival of its lien.

3 Markham points out that the FDIC never challenged the fee awards made by the Court of Appeals and the Supreme
Court. While the FDIC was unable to explain why the Court of Appeals and the Supreme Court could award fees
while this Court is precluded from doing so, the Court cannot find that it waived the immunity argument with
respect to Markham’s request for fees in this Court.
4Several courts have supported their finding that the FDIC is immune from prejudgment interest by noting that
Congress anticipated delays in payments on claims for insurance proceeds without providing for prejudgment
interest. See, e.g., Spawn, 989 F.2d at 838.
5 Defendants ask the Court to use the factors set forth in Associated Indemnity Co. v. Warner, 143 Ariz. 567, 570
(1985) to determine the appropriate fee award here. But the Warner factors are used to determine whether fees
should be awarded under A.R.S. §12-341.01(A). The Court has already determined that Markham is entitled to a fee
award.

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Defendants also request a reduction of approximately $75,000 for various tasks, which
are identified on page 10 on their Response to Markham’s Supplemental Application for Fees.
Having considered the factors set forth in Schweiger v. China Doll Restaurant, 138 Ariz. 183,
187-88, the Court agrees that the following deductions should be made:

Tasks related to different case
$10,521

Clerical work billed by attorney
7,383
Tasks related to other Defendants
1,786

Total Deduction
$19,690

The Court rejects Defendants’ other arguments. Consequently, the Court finds that Markham is
entitled to reasonable attorneys’ fees in the amount of $431,275. Defendants have not
challenged the amount of Markham’s requested costs, $4,493.93, and the Court finds that they
were necessary and reasonable.

4. Rule 68 Sanctions

Markham seeks sanctions under Rule 68 based on an offer of judgment it made for the
principal amount of its lien, $341,777.25, which Defendants did not accept. It argues that it is it
is entitled to Rule 68 sanctions because Defendants “did not beat the offer.” The Court,
however, finds that Rule 68 is inapplicable here because while the offer of judgment was in
monetary terms, the relief requested and obtained is largely declaratory in nature.

B. Lien Priority and Interest on the Equitable Subrogation Amount

Defendants contend that the Court must address lien priority because the Court of
Appeals did not “offer any guidance as to how the Lenders’ and Markham’s competing priority
interests were to be reconciled.” Mot. at 4. The Court disagrees. The Court of Appeals decision
clearly leaves Markham’s lien is the senior position, with Defendants’ remaining lien (credit bid
amount less subrogation amount) in a junior position.

Defendants argue, however, that court intervention is necessary because Defendants’ lien
interest has technically been extinguished as a result of the foreclosure sale and failing to take
some corrective action would lead to Markham “obtaining an unwarranted advancement in
priority.” They ask the court to essentially resurrect their senior lien for the equitable subrogation
amount and allow interest to accrue on it until they obtain title free and clear of Markham’s lien.
Defendants characterize this as the “simple right to be compensated for the inability to use or sell
the Property during the pendency of the litigation.” But Defendants have not suffered an
inability to use or sell the Property during the litigation. Rather, they gained title and the full

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right to possess and use the Property after the trustee’s sale. Although they complain that a sale
of the Property or the development of it is hampered by Markham’s lien and the lis pendens,
properties encumbered by liens are sold on a regular basis. Further, had they paid Markham
what it was due when the trustee’s sale was held, they would not be facing this problem.

The Court finds Defendants’ requests, which would require the exercise of the Court’s
equitable powers, remarkable. One need only read the Court of Appeals decision to conclude
that Defendants come to the table with unclean hands and are not entitled to any equitable relief:

[T]he manner in which [Defendants] purported to use a credit bid to extinguish
Markham’s lien was contrary to law and calculated to lead to inequity.”
(Emphasis added).

[T]he unlawful “credit bid” allowed the lenders to take the Property free of
Markham’s lien without having to actually pay for anything other than the costs
and expenses of the sale . . . The superior court’s ruling gave the lenders an
undeserved windfall at the expense of Markham’s legitimate expectations. Equity
cannot condone that result.

Markham Contracting Co., Inc. v. Federal Dep. Ins. Co., 240 Ariz. 360, 365-66 (App. 2016)

For the reasons set forth above,

IT IS ORDERED granting FDIC’s Motion for Summary Judgment on Markham’s Right
to Foreclose Against FDIC’s Interest in the Property, and finding that Markham may not
foreclose on the Property during FDIC’s ownership of it without the FDIC’s consent.

IT IS FURTHER ORDERED that the FDIC shall file an Amended Answer to the
Amended Complaint adding 12 U.S.C. §§1821(d)(13)(C) and 1825(b)(2) as affirmative defenses
within 5 business days of the date this minute entry is filed.

IT IS FURTHER ORDERED granting Markham’s Application for Attorneys’ Fees and
finding that it is entitled to a fee award in the amount of $431,275.

IT IS FURTHER ORDERED denying any requests for leave to file supplemental fee
applications.

IT IS FURTHER ORDERED granting Markham’s Application for Costs and finding
that it is entitled to costs in the amount of $4,493.93.

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IT IS FURTHER ORDERED denying Markham’s request for sanctions under Rule 68
of the Arizona Rules of Civil Procedure.

IT IS FURTHER ORDERED granting Markham’s request for prejudgment interest,
with interest to accrue at the annual rate of 10% on the lien amount of 341,777.25 from
September 2, 2009 through the date judgment is entered.

IT IS FURTHER ORDERED denying Defendants’ Joint Motion for Summary
Judgment Re: Rights of Parties with Respect to Real Property and FDIC’s and PrimeAZ’s Right
to Interest on Equitable Subrogation Amount.

IT IS FURTHER ORDERED that Markham shall file a revised proposed form of
judgment incorporating the rulings above by April 16, 2018. Defendants shall file their response
to the revised proposed form of judgment by May 1, 2018, and Markham shall file its Reply by
May 10, 2018.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

04/28/2014 8:00 AM
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CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
M. Nielsen

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK

v.

PINNACLE POINT DEVELOPERS L L C, et al.
PINNACLE POINT DEVELOPERS L L C
NO ADDRESS ON RECORD

RICHARD Q NYE
FRANK S TOMKINS

UNDER ADVISEMENT RULING

This matter came before the Court for Oral Argument on March 28, 2014 regarding
Plaintiff’s Motion for Partial Summary Judgment with Regard to Mechanics Lien Remaining in
Place, filed November 4, 2013; Defendant FDIC Motion for Summary Judgment regarding
Extinguishment of Markham’s Mechanic’s Lien, filed November 4, 2013; and Defendants FDIC
and PrimeAZ’s Joint Motion for Summary Judgment against Markham on Count Six First
Amended Complaint, filed October 30, 2013. The matter was taken under advisement.

The Court has considered the matters presented.

Summary Judgment is appropriate if, after reviewing the facts in the light most favorable
to the non-moving party, no genuine issues of material fact remain. Joseph v. Markovitz, 27
Ariz. App. 122, 551 P.2nd 571 (App 1976). “A ‘genuine’ issue of material fact is one that a
reasonable jury, on the record before the court, could resolve in favor of either party”.
Southwest Pet Products, Inc. v. Koch Ind., 273 F.Supp. 2d 1041, 1050 (D.Ariz.2003) (citations
omitted). Even where the facts are undisputed, a genuine dispute as to conflicting inferences to
be drawn from them precludes an award of summary judgment. Executive Towers v. Leonard, 7
Ariz. App. 331,439 P.2d 303 (1968). Evidence creating even the “slightest doubt” about the

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

04/23/2014

Docket Code 926
Form V000A
Page 2

facts may be insufficient to withstand a motion for summary judgment. Orme School v Reeves,
166 Ariz. 301, 309 (1990).

Plaintiff’s Motion for Partial Summary Judgment with Regard to Mechanics Lien and
Defendant FDIC Motion for Summary Judgment re: Extinguishment of Mechanic’s Lien

The only question before the Court is whether the Plaintiff’s mechanic’s lien remains in
place given the Court’s previous subrogation ruling. Both Parties agree this is a question of law
before the Court. Equitable subrogation is “the substitution of another person in place of a
creditor, so that the person whose favor it is exercised succeeds to the rights of the creditor in
relation to the debt.” Sourcecorps, Inc. v. Norcutt, 229 Ariz. 270, 272, 274 P.3d 1204, 1206
(2012). The Court is persuaded by the Defendant’s position that the priority of the earlier
mortgage is preserved in favor of the subsequent mortgage holder. The foreclosure of the
subsequent mortgage is in effect a foreclosure of the earlier mortgage wiping out any junior
liens. The result is supported by Arizona’s statutory scheme governing deeds of trust and
trustee’s sales.

This Court makes no finding on whether or not the trustee sale was properly noticed and
executed or whether a cause of action exists as a result.

IT IS ORDERED denying Plaintiff’s Motion for Partial Summary Judgment with
Regard to Mechanics Lien Remaining in Place, filed November 4, 2013; and granting Defendant
FDIC Motion for Summary Judgment regarding Extinguishment of Markham’s Mechanic’s
Lien, filed November 4, 2013.

Defendants FDIC and PrimeAZ’s Joint Motion for Summary Judgment Count Six re
Declaratory Judgment

The Plaintiff seeks a declaratory judgment entitling them to monies from the Defendants
as a result of the trustee’s sale on the property. The Parties agree that without a lien there is no
legal right to any “additional monies.” Without a lien any request for declaratory judgment is
moot.

Therefore,

IT IS ORDERED granting the Defendants’ FDIC and PrimeAZ’s Joint Motion for
Summary Judgment against Markham on Count Six First Amended Complaint, filed October 30,
2013.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

04/28/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

04/23/2014

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
M. Nielsen

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK

v.

PINNACLE POINT DEVELOPERS L L C, et al.
PINNACLE POINT DEVELOPERS L L C
NO ADDRESS ON RECORD

RICHARD Q NYE
FRANK S TOMKINS

MINUTE ENTRY

On the Court’s own motion,

IT IS ORDERED setting Telephonic Status Conference on July 2, 2014 at 10:30 a.m.
(15 minutes)

THE HONORABLE DAWN BERGIN
MARICOPA COUNTY SUPERIOR COURT
CENTRAL COURT BUILDING
201 W JEFFERSON ST
7TH FLOOR, COURTROOM 704
PHOENIX, AZ 85003
602-372-2961 TEL

Plaintiff shall initiate the conference call.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

04/23/2014

Docket Code 028
Form V000A
Page 2

NOTE: Counsel shall be available for the conference call on a telephone land line and
not on cellular phones, in order to maximize all participants’ ability to hear and be heard.

Note: Counsel shall have their calendars available for this proceeding.

If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

04/24/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

04/23/2018

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAWN M. BERGIN
S. Ortega

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK
THOMAS L HUDSON

v.

PINNACLE POINT DEVELOPERS L L C, et al.

RICHARD Q NYE
FRANK S TOMKINS

MINUTE ENTRY

The Court has received Markham Contracting Co., Inc.’s (“Markham”) Notice of
Lodging of Proposed Form of Judgment and Proposed Judgment of Foreclosure filed on April
17, 2018. The Court requests that Markham resubmit the proposed form of judgment with the
prejudgment interest calculated as of a particular date (e.g., March 31, 2018) for each item, plus
a per diem rate for use between that date and the date judgment is entered. That way, the Court
will be able to resolve any disputes that may exist regarding the calculation of the interest.
Markham should also add the post-judgment interest rate.

IT IS THEREFORE ORDERED that Markham shall file a Notice of Lodging of
Amended Proposed Form of Judgment as set forth above within 3 business days of the date
this minute entry is filed.

IT IS FURTHER ORDERED that Defendants’ deadline to respond to the amended
proposed form of judgment shall begin to run on the date it is filed.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

05/04/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

05/03/2018

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAWN M. BERGIN
S. Ortega

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK
THOMAS L HUDSON

v.

PINNACLE POINT DEVELOPERS L L C, et al.

RICHARD Q NYE
FRANK S TOMKINS

MINUTE ENTRY

The Court has reviewed Plaintiff’s April 27, 2018 Response to Defendants’ April 16,
2018 Motion for Reconsideration.

For the reasons set forth in the Court’s April 23, 2018 minute entry,

IT IS ORDERED denying Defendants’ Motion for Clarification/Reconsideration filed
on April 16, 2018.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
05/10/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
05/06/2013
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
J. LaMarsh
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
RICHARD Q NYE
FRANK S TOMKINS
UNDER ADVISEMENT
Courtroom 303 – Old Courthouse
9:27 a.m. This is the time set for Oral Argument regarding:
•
Defendant FDIC’s Motion for Summary Judgment against Plaintiff on Count Two of
its Amended Complaint and on the First and Second Claims for Relief in FDIC’s
Amended Counterclaim, filed November 6, 2013
•
Defendant FDIC’s Motion for Summary Judgment on Count Seven of Plaintiff’s First
Amended Complaint, filed November 8, 2013.
•
Defendant FDIC’s Motion for Summary Judgment on Count Five of Plaintiff’s First
Amended Complaint, filed November 9, 2013.
•
Defendant FDIC’s Motion for Summary Judgment Regarding Equitable Subrogation
Amount, filed November 30, 2013.
•
Defendant FDIC’s Motion for Summary Judgment against Markham on Count Four
of its First Amended Complaint, filed December 12, 2013.
•
Defendant’s FDIC’s Second Motion for Summary Judgment on Counts Four and Five
of Plaintiff’s First Amended Complaint, filed December 7, 2013.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
05/06/2013
Docket Code 020
Form V000A
Page 2
Plaintiff Mike Markham is present and represented by counsel, Karen A. Palecek.
Defendant FDIC is represented by counsel, Scott A. Malm. Defendant Primeaz/Libra LLC is
represented by counsel, Richard Q. Nye.
Court Reporter, Hilda Lopez, is present.
Argument is presented.
IT IS ORDERED taking these matters under advisement.
Discussion is held regarding legal matters.
11:18 a.m. Matter concludes.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
05/15/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
05/14/2012
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
NATHANIEL ROSE
MINUTE ENTRY
The Plaintiff filed a Motion to Reconsider on December 23, 2011. The Court directed
pursuant to a minute entry of February 16, 2012 that a Response and Reply be filed.
The Defendant failed to file a Response by March 9, 2012 as directed to do so. The
Plaintiff filed a Request for Summary Decision on March 14, 2012. The Plaintiff’s request
prompted the Defendant to file an Emergency Motion to Enlarge the Time for Response on
March 16, 2012 and subsequent Response on March 20, 2012.
The Plaintiff filed an Opposition on March 20, 2012 and a Reply on April 2, 2012.
The Defendant filed a Supplemental Response on April 13, 2012 and the Plaintiff a Sur
Reply on April 23, 2012.
The Court has considered the matters presented.
Even if the Defendant would have not gotten a copy of the Plaintiff’s Motion filed
December 23, 2011, the Court’s minute entry of February 16, 2012 would have put them on
notice of the need to file a response. An internal change in the staff responsibilities of the

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
05/14/2012
Docket Code 019
Form V000A
Page 2
Defendant’s counsel is not good cause to overlook a deadline set by the Court. Ultimately,
Counsel is responsible for all aspects of the case. Nevertheless, in the interest of justice, the
Court considers the Defendant’s Response filed March 20, 2012 and the Plaintiff’s subsequent
Reply filed April 2, 2012, as well as the Supplemental Response filed on April 13, 2012 and the
Sur Reply filed on April 23, 2012.
In its ruling of September 12, 2011, the Court found that the Plaintiff has a valid lien.
The Court determined that the priority of the lien was a question for the trier of fact; specifically,
whether or not equitable subrogation should apply.
The Court found that at the time of Oral Argument the Defendant failed to show the
requisite implied or express intent between the lenders. The Court determined that intent should
be an issue for the trier of fact. An additional issue remaining for the trier of fact was how
equitable subrogation would result in prejudice to the Plaintiff.
In its Motion to Reconsider, Plaintiff argues that under new case law, Mortgages Ltd., -
B.R.- 2011 WL 5022681 (Bkrtcy. D. Ariz.), the lack of requisite intent, either expressed or
implied, is sufficient to deny equitable subrogation. The Plaintiff points out as previously argued
and supported by Lamb Ex. Inc. v Chase Manhattan Mortg. Corp., 208 Ariz. 478, 95 P.3d 542
(Ariz. App. 2004), that before subrogation can apply there must be an intent to do so.
The Defendant in their Supplemental Response filed April 13, 2012 also cites recent case,
Sourcecorp, Inc. v Northcutt, 2012 WL 1138251 (Ariz. 2012), claiming its finding to be
applicable and dispositive of the issue. Sourcecorp holds that when a party satisfies a senior lien,
the party is not required to show an express or implied agreement to subrogate to be entitled to
equitable subrogation and that a party is entitled to equitable subrogation even when there was
notice of an intervening lien. Further, the Defendant argues that under Sourcecorp, prejudice is
longer a factor used in determining whether to apply equitable subrogation. The Defendant is
now requesting the Court reconsider its previous ruling and find in its favor.
The Court agrees in part with the position presented by the Defendant that equitable
subrogation does apply in this case. The Court agrees with the Plaintiff that prejudice remains a
factor to be considered when applying any equitable subrogation.
There is no dispute between the Parties that the lender payoff occurred. In question at the
time of the Oral Argument was the amount of the payoff of the first position lien. The Court
believes the Parties have this information. The Plaintiff argues that since the specific amount
was not made known at the time of the Oral Argument that this is fatal to the Defendant’s
argument. On this point, the Court disagrees with the Plaintiff.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
05/14/2012
Docket Code 019
Form V000A
Page 3
Based on the recent case law presented and additional argument of Counsel,
THE COURT FINDS that an agreement, express or implied, is not necessary for
equitable subrogation to apply. However, equitable subrogation is applicable only to the extent
of the amount of the first DOT in 2006. Allowing it to apply to anything more than that amount
would result in significant prejudice to the Plaintiff. Equitable subrogation up to and only to the
extent of the payoff amount will allow the Plaintiff to be in the same position he was in prior to
the new lender stepping in.
IT IS ORDERED setting this matter for telephonic Status Conference. The Parties are
to together call the Court Division to find a time mutually convenient to all, to occur prior to the
time of the scheduled trial.
A copy of the minute entry is provided electronically by the Division to Counsel.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
05/22/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
05/18/2012
Docket Code 029
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Stogsdill
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
NATHANIEL ROSE
MINUTE ENTRY
10:19 a.m. This is the time set for a Telephonic Status Conference. Plaintiff is
represented by counsel, Karen A. Paleck who appears with her client, Mike Markham.
Defendants First Arizona Savings and Loan Association and PrimeAZ/Libra LLC are
represented by counsel, Nathaniel Rose. The parties appear telephonically.
Court reporter, Hilda Lopez is present and a record of the proceedings is made by audio
and/or videotape.
Discussion is held regarding the status of the case, the issues of equitable subrogation and
prejudice and the parties’ interpretation of the Court’s ruling of May 14, 2012.
The Court notes the upcoming May 23, 2012 pre-trial conference and trial date of June 4,
2012 and advised counsel those dates will not be vacated.
For the reasons stated on the record,
Counsel advised the Court that trial exhibits are due to be delivered to the Court Clerk on
Monday, May 21, 2012. The Court suggests counsel defer delivering the exhibits at this time.
However, the Court indicates that the exhibits, when submitted, must be presented in a manner

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
05/18/2012
Docket Code 029
Form V000A
Page 2
that they can be timely marked for trial by the Clerk or the trial will be moved out a day to allow
the Clerk time to complete the task.
10:33 a.m. Matter concludes.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
06/01/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
05/24/2012
Docket Code 064
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
NATHANIEL ROSE
MINUTE ENTRY
9:58 a.m. This is the time set for Oral Argument re Motions in Limine and Trial
Management Conference. Plaintiff is represented by counsel Karen A. Palacek and Tabitha
Myers. Defendants are represented by counsel Nathaniel Rose.
A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.
Discussion is held. Counsel advise the Court that settlement negotiations are continuing.
Discussion is held re Plaintiff Markham Contracting Co., Inc.’s Motion in Limine re
Doctrine of Replacement.
The Court has considered the matters presented and arguments of counsel. The Court is
persuaded by the Defendant’s position and finds that replacement doctrine applies as to First
Arizona Savings and Loan Association.
The Court further finds that Ms. Boyle and the settlement statement were timely
disclosed as a witness/exhibit and may be used at trial.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
05/24/2012
Docket Code 064
Form V000A
Page 2
The Court further finds that the Defendant’s Third Disclosure Statement was untimely
and is excluded.
Court defers ruling at this time as to whether a jury trial or a bench trial will be
conducted.
Discussion is held re Trustee’s Sale and issue of excess proceeds and unjust enrichment
claim. The Court finds in favor of Defendant First Arizona Savings and Loan Association on
this issue. The parties may simultaneously brief the issue (no more than 3 pages) not later than
May 30, 2012. Upon request of the Plaintiff and good cause appearing, the Court will reconsider
the issue of excess proceeds.
The parties’ Joint Pretrial Statement shall be due not later than 5:00 p.m. on June 1,
2012.
Exhibits shall be delivered to the Clerk not later than 12:00 p.m. on June 1, 2012.
IT IS ORDERED affirming Pretrial Management Conference set June 4, 2012 at 9:30
a.m. in this division.
IT IS FURTHER ORDERED vacating Three (3) Day Trial set June 4, 2012 at 9:30
a.m. and re-setting same on June 5, 6 and 7, 2012 at 9:30 a.m. in this division.
11:02 a.m. Matter concludes.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
06/01/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
05/31/2012
Docket Code 081
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
NATHANIEL ROSE
MINUTE ENTRY
The Court is in receipt of simultaneous pleadings filed May 30, 2012: the Plaintiff’s
Motion to Reconsider and Motion for Expedited Ruling; and the Defendant’s Memorandum
Regarding Consistency of Rulings.
The Court has considered the matters presented.
The Defendants timely made the Plaintiff aware of their intention to argue a replacement
theory on June 8, 2011 in their Reply in support of their Cross-Motion for Summary Judgment.
This theory is not a surprise to the Plaintiffs.
The Plaintiff, however, has never pled or disclosed their intention to claim excess
proceeds and unjust enrichment against the Defendant Lending Parties. This is a surprise to the
Defendants.
The Court is not persuaded by the Plaintiff’s argument that allowing a disclosed
replacement theory to proceed and not allowing an unplead and not noticed unjust enrichment
claim against the Defendant Lending Parties is inconsistent. It is not.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
05/31/2012
Docket Code 081
Form V000A
Page 2
The Court however is persuaded by the Plaintiff’s argument that the Court’s September
2011 ruling on the Motions for Summary Judgment came well after the date to amend the
pleadings in March 2011. Further, the Court agrees with the Plaintiff’s characterization of the
Court’s delay in ruling on their Motion for Reconsideration as leaving unresolved issues so close
to trial. The Plaintiff, for the first time requested leave to amend the pleading on May 24, 2012.
While the Court notes they certainly could have done so sooner, the Court agrees that the
Plaintiff‘s lien priority was not fully known until a few weeks ago.
The Parties are responsible for the scheduling deadlines they crafted and that were
ultimately adopted by the Court. Nevertheless, the Court should not have given the Parties a trial
date without all pending issues resolved.
IT IS ORDERED vacating the Trial set June 5, 2012 and Trial Management Conference
set for June 4, 2012.
IT IS FURTHER ORDERED granting leave to both Parties to amend their
Complaints, make further disclosure and conduct discovery on any issues, new or old, until
July 1, 2012. The Court deems the Defendant’s Third Supplemental Disclosure Statement of
March 30, 2012 as timely.
The Parties are advised the Court will not consider Motions for Summary Judgment on
any issue previously considered.
IT IS FURTHER ORDERED setting the matter for an in person Status Conference on
July 16, 2012 at 10:00 a.m. The Court anticipates setting a trial at that time as early as
calendars will permit.
IT IS FURTHER ORDERED Counsel and the Parties will meet in person to discuss
possible resolution in good faith prior to the time of the next Status Conference and shall jointly
file a status report not later than Two (2) Days before the date of the Status Conference.
The Court takes no further action at this time.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
06/07/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/05/2012
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
NATHANIEL ROSE
MINUTE ENTRY
The Court has received Motion for Extension to File Response of First Arizona and
PrimeAZ to Plaintiff’s Motions in Limine filed May 7, 2012.
IT IS ORDERED deeming Motion for Extension to File Response of First Arizona and
Prime AZ to Plaintiff’s Motions in Limine filed May 7, 2012 as moot.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
06/13/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/08/2012
Docket Code 022
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
NATHANIEL ROSE
ORDER SIGNED
The Court has received and considered Motion for Substitution of Real Party in Interest
filed April 18, 2012; and Objection to Defendant’s Motion for Substitution of Real Party in
Interest filed May 7, 2012.
Good cause appearing,
IT IS ORDERED granting Motion for Substitution of Real Party in Interest filed April
18, 2012 all in accordance with the formal written Order electronically signed and filed by the
Court on June 8, 2012.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
06/15/2011 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/14/2011
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HON. SAM J. MYERS
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
BRIAN JOSEPH PALMER
ORAL ARGUMENT SET
IT IS ORDERED setting Oral Argument on Plaintiff’s Motion for Summary Judgment
on its Second Count for Relief and Defendants’ Cross-Motion on July 20, 2011 at 9:00 a.m.
Oral argument shall be limited to thirty (30) minutes with the time divided equally
between the parties. Counsel and the parties, if representing themselves, are to appear in person
before:
THE HONORABLE MARIA VERDIN
MARICOPA COUNTY SUPERIOR COURT
OLD COURTHOUSE
125 WEST WASHINGTON
3RD FLOOR, COURTROOM 303
PHOENIX, AZ 85003
602-506-2603 TEL

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/14/2011
Docket Code 094
Form V000A
Page 2
Court Reporter
The proceeding will take place in the Superior Court’s “e-courtroom.” A record of the
proceedings will be made by videotape and CD in lieu of a court reporter. Should you want an
unofficial copy of the proceedings, the parties or counsel may request a videotape or CD of the
proceedings for a $20.00 charge. If a CD or videotape is requested, please obtain a form from
the Self Center to request a daily copy of a court hearing or trial proceeding being conducted.
Pay the applicable fee at the Self Service Center. Attach the receipt showing payment of the
fee and present both the receipt and the form to the courtroom clerk or bailiff. For copies of
hearings or trial proceedings recorded previously, please call Electronic Records Services
at 602-506-7100. Should an official transcript be required, you may request that the court
prepare it. The party ordering the transcript must pay for it. To request a transcript, call 602-
506-7100 and provide the date of the proceeding, the case number, the case caption, if the
transcript is for an appeal, and your name, address, and telephone number.
If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.
ALERT: eFiling through AZTurboCourt.gov is mandatory in civil cases for attorney-
filed documents effective May 1, 2011. See Arizona Supreme Court Administrative Orders
2010-117 and 2011-010. The Court may impose sanctions against counsel to ensure compliance
with this requirement after May 1, 2011.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

06/15/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

06/14/2018

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAWN M. BERGIN
S. Ortega

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK

v.

PINNACLE POINT DEVELOPERS L L C, et al.

THOMAS L HUDSON
RICHARD Q NYE
FRANK S TOMKINS

MINUTE ENTRY

The Court has reviewed: (1) Markham Contracting Company, Inc.’s (“Markham”)
Response to Defendant’s April 16, 2018 Motion for Reconsideration; (2) Markham’s Notice of
Lodging Revised Proposed Form of Judgment filed on April 24, 2018; (3) FDIC’s Objection to
the Revised Proposed Form of Judgment filed on May 14, 2018; (4) PrimeAZ/Libra’s
(“PrimeAZ”) Objection and Joinder in FDIC’s Objection filed on May 14, 2018; (5) Markham’s
Reply in Support of its Notice of Lodging Revised Proposed Form of Judgment filed on May 18,
2018; and (6) PrimeAZ’s Reply in Support of Objection to Revised Proposed Form of Judgment
filed on June 5, 2018. It now makes the following findings and orders.

In its Response to the Motion for Reconsideration, Markham states that it agrees with the
analysis set forth in the Court’s April 16, 2018 minute entry – that “Defendants no longer have a
lien on the subject property . . ., but rather only a subrogation right.” But that was not the
Court’s analysis. The Court concluded that Defendants no longer have any lien or subrogation
rights as to the subject property. The situation that the parties find themselves in at this point in
time is quite simple. FDIC and PrimeAZ own the subject property and Markham holds a first
position lien. That’s it.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

06/14/2018

Docket Code 019
Form V000A
Page 2

Defendants’ objections track their continued argument that they have subrogation rights.
For example, they ask the Court to add the following provision to the Judgment:

If the Real Property is sold in its entirety, then, after paying the required costs and
expenses, Defendants shall first be paid the sale proceeds up to Defendants’ Total
Subrogation Amount in proportion to their respective interests in the Real
Property.

Defendants also object to the following statement in paragraph 10 of Markham’s Revised
Proposed Form of Judgment: “Markham’s Lien shall remain on the Real Property until
Markham’s Total Lien Amount is paid in full,” arguing that it is an inaccurate statement of the
law. The Court makes no determination whether it is or is not an accurate statement of the law
because the statement is not necessary for the Judgment. Foreclosure sales, payments of liens
and extinguishment of liens are governed by Arizona statutes and case law. There is no need for
the Court to make a categorical statement of law in the Judgment.

The FDIC also objects to the language in paragraph 5 regarding the need for its consent
before any sale of its interest in the property can occur. The Court has revised the language to
clarify that no sale affecting FDIC’s interest can occur without its consent pursuant to federal
law.

Finally, PrimeAZ objects to any provision in the Judgment that would allow Markham to
foreclose on its undivided 37.5% interest in the property. Markham does not need consent from
PrimeAZ to foreclose on its interest in the property. PrimeAZ argues, however, that the law
precludes a separate sale of its interest and that the Court should exercise its equitable powers to
preclude it.

As best the Court can understand, PrimeAZ’s legal argument is premised on a distinction
between a mechanics lien, which is involuntary, and a creature of statute, and other liens. In its
initial objection, PrimeAZ cites to two mechanics lien statutes. First, it relies on a statement in
A.R.S. §33-983(A) that the holder of the mechanic’s lien “shall have a lien on the lot or parcel of
contiguous land . . .” PrimeAZ argues that this section “speaks in terms of a unitary property,”
from which the Court is to infer that no serial or partial sales of property can occur when there is
more than one owner of the property. Obj. at 2. The Court would have to rewrite the statute in
order to draw this inference.

It also relies on a provision in A.R.S. §33.992.01(A)(3), which sets forth the definition of
“owner:”

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

06/14/2018

Docket Code 019
Form V000A
Page 3

Where an interest or estate is held by two or more persons as community
property, joint tenants or tenants in common, any one or more of the persons may
be deemed the owner.

But this statute addresses the preliminary twenty day notice applicable to mechanic’s
liens, under which the contractor who provided the services must serve the notice on “the owner
or reputed owner” of the property. See A.R.S. §33.992.01(B). The Court reads these statutory
sections together as deeming each tenant in common as “the owner,” thereby making service on
any one of them effective under the statute.

PrimeAZ also cites to S.K. Drywall, Inc. v. Developers Financial Group, Inc. 169 Ariz.
345 (1991) to support its argument, but the Court fails to see how this case is relevant to the issue
before it.

In its Reply, PrimeAZ cites A.R.S. §12-1622(G) and (H), which provide as follows:

When the sale is of real property, consisting of lands that may be sold in parcels,
it may be sold separately at direction of the judgment debtor, who shall have the
option of designating the order in which parcels shall be sold.

When property is held in common, the interest of the judgment debtor shall be
sold as a whole.

But this statute does not say that when there are two judgment debtors with specified
interests in the property that the interests of both judgment debtors must be sold as a whole.
Rather, it says that each judgment debtor’s interest must be sold as a whole. PrimeAZ is a
judgment debtor; therefore its 37.5% interest must be sold as a whole.

Finally, PrimeAZ argues that allowing the sale would be inequitable because it would
result in a depressed price for its interest since buyers would not be keen on owning property as a
tenant in common with the FDIC, and a sale of the entire property would bring in more money.
But the Court agrees with Markham that these scenarios are speculative at best. Furthermore,
equity favors Markham here because “Arizona's lien statutes are remedial in nature and should
be liberally construed to primarily protect laborers and materialmen who enhance the value of
another's property.” Fagerlie v. Markham Contracting Co., Inc., 227 Ariz. 367, 371 (App.
2011).

On page four of its initial Objection, PrimeAZ requests various forms of alternative
relief, such as reopening the case to allow the parties to conduct expert discovery to obtain
opinions on the impact of serial sales.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

06/14/2018

Docket Code 019
Form V000A
Page 4

For the reasons set forth above,

IT IS ORDERED denying all of PrimeAZ’s requests for alternative relief.

A separate final judgment shall issue.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
06/26/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/24/2013
Docket Code 926
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Bee
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
PINNACLE POINT DEVELOPERS L L C
NO ADDRESS ON RECORD
TROON NORTH ASSOCIATION
NO ADDRESS ON RECORD
RICHARD Q NYE
FRANK S TOMKINS
UNDER ADVISEMENT RULING
This matter came before the Court for Oral Argument May 6, 2013 regarding various
pending Motions for Summary Judgment. All issues presented were taken under advisement.
The Court has considered the matters presented including the Motions, Responses and
Replies filed; the authorities cited and the argument of Counsel.
Summary Judgment is appropriate if, after reviewing the facts in the light most favorable
to the non-moving party, no genuine issues of material fact remain. Joseph v. Markovitz, 27 Ariz.
App. 122, 551 P.2d 571 (App 1976). A “genuine” issue of material fact is the one that a
reasonable jury, on the record before the Court, could resolve in favor of either party.” Southwest
Pet Products, Inc v. Koch Ind,. 273 F. Supp. 2d 1041, 1050 (D. Ariz. 2003) (citations omitted).
Even where the facts are undisputed, a genuine dispute as to conflicting inferences to be drawn
from them precludes an award of summary judgment. Executive Towers v. Leonard, 7 Ariz. App.
331, 439 P.2d 303 (1968). Evidence creating even the “slightest doubt” about the facts may be
insufficient to withstand a motion for summary judgment. Orme School v. Reeves, 166 Ariz. 301,
309 (1990).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/24/2013
Docket Code 926
Form V000A
Page 2
Defendant FDIC’s Motion for Summary Judgment on Count Two of its Amended
Complaint, and on First and Second Claims for Relief in FDIC’s Amended Counterclaim,
filed November 6, 2012; and
Plaintiff’s Cross-Motion regarding Count Two (Equitable Subrogation), filed
December 11, 2012; and
Defendant FDIC’s Motion for Summary Judgment Regarding Equitable
Subrogation, filed November 30, 2012.
On May 14, 2012 the Court ruled that FDIC and PrimeAZ/Libra were entitled to be
equitably subrogated to the lien position enjoyed by the 2006 Deed of Trust “to the extent of the
amount of the first Deed of Trust in 2006.” The Court also indicated that prejudice remains a
factor to consider in equitable subrogation. The Court clarifies that it considered this factor to the
extent that it was presented in finding that equitable subrogation applied. Specifically, the Court
ruled that: “Allowing it to apply to anything more than that amount would result in prejudice to
the Plaintiff. Equitable subrogation up to and only to the extent of the payoff amount will allow
the Plaintiff to be in the same position he was in prior to the new lender stepping in.”
The Court held as argued by the Defendants that FDIC is entitled to priority as to the
amount of the payoff sum to satisfy the 2006 Deed of Trust only. In reaching the conclusion for
equitable subrogation, the Court considered the prejudice to the Plaintiff and found none.
The Defendants have been able to factually support and present evidence of a payment
made to satisfy the First Arizona Deed of Trust in the amount of $2,816,728.50, and interest in
the amount of $95,845.94 from August 1, 2009 through the date of the trustee sale of February
23, 2010.
IT IS ORDERED granting the Defendants’ request for Summary Judgment only to
show they are equitably subrogated to the lien priority of the 2006 Deed of Trust in the amount
of $2,912,574.44.
IT IS FURTHER ORDERED denying the Plaintiff’s Cross-Motion.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/24/2013
Docket Code 926
Form V000A
Page 3
Defendant FDIC’s Motion for Summary Judgment on Count Seven of Plaintiff’s
First Amended Complaint, Filed November 8, 2012.
The Defendants’ request Summary Judgment on Count Seven because it fails to state a
claim upon which relief can be granted. Specifically, they argue that the claim for excess funds
in based on A.R.S. s 33-812 (A) and that the statute governs the conduct of the Trustee not that
of the credit bidder. The Defendants argue they did not have responsibility to give notice of or to
distribute any funds from the Trustee sale which occurred.
The Plaintiff argues that the Defendants are entitled to no more than the subrogation
amount of the 2006 Deed of Trust and that any excess proceeds from the Trustee’s sale should
have been distributed to them. The Court cannot disagree with this assertion.
Lien holders are entitled to excess proceeds pursuant to priority placement under A.R.S.
s33-812. The statute imposes the responsibility of giving notice for distribution duty on the
Trustee. Accordingly, any interested parties would have been given notice of any excess
proceeds of a sale pursuant to the statute. Failure to receive notice would have been an omission
on the part of the Trustee not the subsequent owner.
There is nothing in A.R.S. s33-812 (A) serves as grounds for a claim against the
Defendants.
IT IS ORDERED granting the Defendants’ Motion for Summary Judgment on Count
Seven of Plaintiff’s First Amended Complaint filed November 8, 2012
Defendant FDIC’s Motion for Summary Judgment on Count Five of Plaintiff’s First
Amended Complaint filed November 9, 2013
The Parties agree that the Plaintiff entered into a contract with Pinnacle for construction
work. The Parties also agree that the Defendants were not a party to that contract between the
Plaintiff and Pinnacle. Plaintiff seeks to recover against FDIC based on an alleged verbal
communication by FDIC’s predecessor (Az Savings and Loan), that the Plaintiff would be paid
in the amounts already owed by Pinnacle pursuant to the existing construction contract. The
Defendants deny that an oral representation to this effect was ever made.
The Defendants’ position pursuant to the Statute of Frauds, (A.R.S. s 44-101), is that the
Plaintiff cannot prevail unless they can show: either the existence of a written promise to pay; or

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/24/2013
Docket Code 926
Form V000A
Page 4
an applicable exception to the Statute. The Plaintiffs concede there is no executed written
agreement showing an obligation by the Defendants to pay the Plaintiff. Instead they rely on the
theory of promissory estoppel as an exception to the Statute found in Tiffany Inc. v. W.M.K.
Transit Mix, Inc., 16Ariz.App. 415, 493 P.2d 1220, (1972). Plaintiff attempts to show that the
Tiffany criteria is present in this case. Specifically the Plaintiff argues that: there was a promise
by Az Savings and Loan to pay; they relied on the representations of Az Savings and Loan to
their detriment by continuing to do work; the promise was put in writing; and the Plaintiff has
damages.
The Defendants distinguish the Tiffany factors from the ones in this case. In Arizona, the
doctrine of promissory estoppel applies to a contract otherwise barred by the Statute of Frauds
only “where a promise has been made not to rely on the Statute,” that is, where the party
asserting the Statute of Frauds defense has misrepresented that the statute’s requirements have
been met or promises to put the agreement in writing [citation omitted]. Promissory estoppel is
applied to defeat the Statute of Frauds only where there is a second promise not to rely on the
statute. Mullins v. Southern Pacific Transportation Co., 174 Ariz. 540, 542, 851 P.2d 839, 841
(App. 1992). The assertion of promissory estoppel to the defense of the Statute of Frauds would
require a promise by the parties to operate outside of the Statute requirements.
Assuming in the light most favorable to the Plaintiff that a verbal representation did occur
and work was done in reliance of the promise, to the detriment of the Plaintiff and resulting in
damages, in Arizona a second promise by the parties not to rely on the Statute of Fraud is
necessary for the promissory estoppel theory to successfully apply. There is nothing to show that
any work done by the Plaintiff was under the written agreement with the Defendants. The
Plaintiff drafted an agreement, which may have been contemplated by the Parties, but was
ultimately not signed. The existence of the writing shows that although there may have been
discussion, the parties purposefully fell short of memorializing any agreement. Nothing has been
presented to show that the second promise was made to forgo any requirement for writing and to
operate outside of the Statute of Frauds.
IT IS ORDERED granting Defendant FDIC’s Motion for Summary Judgment on Count
Five of Plaintiff’s First Amended Complaint filed November 9, 2013.
Defendant FDIC’s Motion for Summary Judgment against Markham on Count
Four of its First Amended Complaint re Unjust Enrichment filed December 12, 2012
The Defendants deny that the Plaintiff can show any unjust enrichment. The facts show
that the Defendants foreclosed on the property after monies had been loaned to Pinnacle and as a

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/24/2013
Docket Code 926
Form V000A
Page 5
result of the borrowers default on the loan. The Defendants were legally entitled to pursue this
course of action under their loan agreement with the borrower and the 2008 Deed of Trust.
The Plaintiff argues that the Defendants were unjustly enriches by the retention of the
excess proceeds from the trustee sale in excess of the payoff amount. They seek the difference
between the sale price and the amount they were owed in their priority position to satisfy the
Plaintiff’s lien. The Court is persuaded by the Plaintiff’s position on this point. However the
Plaintiff must satisfy all the elements of unjust enrichment to recover.
In order to recover on an unjust enrichment claim, a claimant must show “:(1) an
enrichment, (2) an impoverishment, (3) a connection between the enrichment and
impoverishment, (4) the absence of justification for the enrichment and impoverishment and (5)
the absence of a remedy provided by law.” Freeman v. Sorchych, 226 Ariz. 242, 251, 245 P.3d
927, 936 (App. 2011). Wang Electric, Inc. v. Smoke Tree Resort, LLC, 230 Ariz. 314, 319, 283
P.3d 45, 50 (App. 2012).
In considering this issue, most compelling to the Court is the Defendants’ position that
the Plaintiff had an adequate remedy at law under A.R.S. s33-812(A) (5) which it failed to
pursue. Clearly the Plaintiff could have sought payment on the existing lien from the trustee at
the time of the sale of the property. Having failed to show at least one of the factors for unjust
enrichment, the Court need not address the others. The Defendants are entitled to summary
judgment as a matter of law.
IT IS ORDERED granting Defendant FDIC’s Motion for Summary Judgment against
Markham on Count Four of its First Amended Complaint re Unjust Enrichment filed December
12, 2012.
Defendant FDIC’s Second Motion for Summary Judgment on Counts Four and Five
of Plaintiff’s First Amended Complaint filed December 7, 2012
The Court has already considered the arguments for summary judgment made on Counts
Four and Five and has ruled in favor of the Defendants on these issues. The Court deems the
pending motion moot at this time.
IT IS ORDERED denying the Defendant FDIC’s Second Motion for Summary
Judgment on Counts Four and Five of Plaintiff’s First Amended Complaint filed December 7,
2012 as moot at this time.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/24/2013
Docket Code 926
Form V000A
Page 6
IT IS ORDERED the Defendants shall lodge an order form for the Court’s consideration
no later than July 29, 2013.
IT IS FURTHER ORDERED that the parties shall submit a Joint Pretrial Memorandum
as set forth below.
The Court will review the Joint Pretrial Memorandum and proposed Scheduling Order
prescribed herein. The Court may adopt or modify the discovery and disclosure schedule order
and set a scheduling conference for purposes of setting a trial date. If counsel still believe that a
pretrial conference is necessary at this stage of the litigation, they should address the reasons for
the need for a pretrial conference in the first paragraph of the Joint Pretrial Memorandum.
If the parties fail to file a timely memorandum, sanctions may issue pursuant to Rule
16(f).
IT IS FURTHER ORDERED:
All counsel are directed to meet personally to discuss all of the matters set forth in Rule
16(b). Counsel shall prepare and file with the Court by 5 p.m. on July 24, 2013, a Joint Pretrial
Memorandum, and prepare a proposed order for Discovery and Disclosure deadlines. The
proposed order shall include dates for the following items and conform substantially with the
attached sample order.
1.
A date or dates for initial disclosures and/or to supplement disclosures made to
date.
2.
An initial and final date to propound written discovery requests that shall
include, as far as can reasonably be anticipated, any and all medical examinations
which may be required of any of the parties; the person or persons to conduct such
examinations; and all tangible evidence to be disclosed or exchanged.
3.
A date for the initial and final disclosure of all non-expert witnesses, and/or to
supplement disclosures made to date.
4.
A date for the initial and final disclosure of the identities, subject matter, and
reports of expert witnesses, and/or to supplement disclosures made to date.
5.
A date for the completion of all depositions.
6.
A date by which any motions to amend the pleadings will be filed.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/24/2013
Docket Code 926
Form V000A
Page 7
7.
A date by which all discovery motions will be filed.
8.
A date by which all dispositive or partially dispositive motions shall be filed.
9.
A proposed date for a Mandatory Settlement Conference pursuant to Rule
16.1. Alternatively, the parties may propose a deadline by which they will
participate in private mediation.
10.
The anticipated length of trial.
If counsel are unable to agree on any of the items set forth in the attached form of order,
the reasons for their inability to agree shall be set forth in the Pretrial Memorandum and each
shall prepare a separate proposed order. All proposed deadlines shall be set forth as calendar
dates, and not in the form “XX days before trial.”
IT IS FURTHER ORDERED that counsel shall notify the Court of any agreed-upon
extension of any time period provided by the Rules of Civil Procedure. The purpose of this order
is not to discourage extensions as a matter of professionalism, but to ensure that no party suffers
summary disposition of any issue by virtue of an extension of which the Court is not aware.
NOTE: COUNSEL SHALL UPLOAD AND E-FILE ALL PROPOSED ORDERS
IN WORD FORMAT ONLY TO ALLOW FOR POSSIBLE MODIFICATIONS BY THE
COURT.
PLEASE NOTE: If/when a party files a pleading within 48 hours of a scheduled event,
the party should also e-mail same to the Court's Judicial Assistant at the following:
[email protected]

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/24/2013
Docket Code 926
Form V000A
Page 8
[Proposed] Scheduling Order
The Court having received the parties’ Joint Comprehensive Pretrial Conference
Memorandum,
IT IS ORDERED entering the following schedule for disclosure as set forth unless the
parties obtain written modifications by the Court:
(1)
Initial disclosures shall be exchanged by: (MM/DD/YYYY)
(2)
Written discovery shall be propounded by: (MM/DD/YYYY)
(3)
Written discovery shall be completed by: (MM/DD/YYYY)
(4)
Final non-expert disclosures shall be exchanged by: (MM/DD/YYYY)
(5)
The identities and subject areas of expert testimony shall be disclosed by:
(MM/DD/YYYY)
(6)
Plaintiff’s final expert disclosures shall be served by: (MM/DD/YYYY)
Defendant’s final expert disclosures shall be exchanged by: (MM/DD/YYYY)
Rebuttal expert disclosures shall be exchanged by: (MM/DD/YYYY)
(7)
Depositions shall be completed by: (MM/DD/YYYY)
(8)
All discovery motions shall be filed by: (MM/DD/YYYY)
(9)
Any motions to amend pleadings shall be filed by: (MM/DD/YYYY)
(10)
Dispositive Motions shall be filed by: (MM/DD/YYYY)
(11)
The parties remaining in this action shall participate in private mediation by
(MM/DD/YYYY) OR The parties remaining in this action shall participate in a
Mandatory Settlement Conference (ADR) by (MM/DD/YYYY) (Note: only one
of the preceding two options shall be included in the proposed order)

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/24/2013
Docket Code 926
Form V000A
Page 9
(12)
The following number of days will be required to pick a jury and try this matter:
____
IT IS ORDERED setting a telephonic Status Conference to be initiated by the Plaintiff in
this matter on [counsel to leave this date blank], (time allotted: 15 minutes), in this Division.
THE HONORABLE MARIA DEL MAR VERDIN
MARICOPA COUNTY SUPERIOR COURT
OLD COURTHOUSE
125 WEST WASHINGTON
3RD FLOOR, COURTROOM 303
PHOENIX, AZ 85003
602-506-2603 TEL
IT IS FURTHER ORDERED that in no less than five days prior to the Status Conference
set herein, the parties shall submit a Joint Statement pursuant to ARCP 16(d) and report to the
Court the history and status of the efforts at Alternative Dispute Resolution pursuant to ARCP
Rule 16(g).
DISCOVERY DISPUTES: In the event of any dispute concerning discovery, counsel
are directed to confer pursuant to ARCP 26(g). Any discovery motion filed that does not
indicate what recent efforts have been made to resolve the dispute will be rejected.
Dated: _____________________
__________________________________________
HONORABLE MARIA DEL MAR VERDIN
JUDICIAL OFFICER OF THE SUPERIOR COURT

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/24/2013
Docket Code 926
Form V000A
Page 10
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
07/02/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/27/2012
Docket Code 083
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE EILEEN S. WILLETT
J. Rutledge
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
PINNACLE POINT DEVELOPERS L L C
NO ADDRESS ON RECORD
TROON NORTH ASSOCIATION
NO ADDRESS ON RECORD
NATHANIEL ROSE
TROON CANYON VENTURES L L C
NO ADDRESS ON RECORD
MINUTE ENTRY
The Court has received Defendants First Arizona Savings and Loan Association and
Prime AZ/Libra, LLC's Request for Rule 16 Scheduling Conference, filed June 4, 2012; Plaintiff
Markham Contracting's Objection to Lending Parties' Request for Rule 16 Scheduling
Conference, filed June 8, 2012; and Defendants First Arizona Savings and Loan Association and
Prime AZ/Libra, LLC's Reply in Support of Request for Rule 16 Scheduling Conference, filed
June 18, 2012.
IT IS ORDERED granting the Defendants First Arizona Savings and Loan Association
and Prime AZ/Libra, LLC's Proposed Scheduling Order, all in accordance with the formal
written Order electronically signed by the Court on June 26, 2012 and filed (entered) by the
Clerk on June 26, 2012.
IT IS FURTHER ORDERED vacating the in-person Status Conference set for July 16,
2012 at 10:00 a.m. and re-setting as a Telephonic Status Conference for October 11, 2012 at
9:15 a.m. (15 minutes).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
06/27/2012
Docket Code 083
Form V000A
Page 2
THE HONORABLE MARIA DEL MAR VERDIN
MARICOPA COUNTY SUPERIOR COURT
OLD COURTHOUSE
125 WEST WASHINGTON
3RD FLOOR, COURTROOM 303
PHOENIX, AZ 85003
602-506-2603 TEL
Plaintiff shall initiate the conference call.
NOTE: Counsel shall be available for the conference call on a telephone land line and
not on cellular phones, in order to maximize all participants’ ability to hear and be heard.
Note: Counsel shall have their calendars available for this proceeding.
Court Reporter
The proceeding will take place in the Superior Court’s “e-courtroom.” A record of the
proceedings will be made by videotape and CD in lieu of a court reporter. Should you want an
unofficial copy of the proceedings, the parties or counsel may request a videotape or CD of the
proceedings for a $20.00 charge. If a CD or videotape is requested, please obtain a form from
the Self Center to request a daily copy of a court hearing or trial proceeding being conducted.
Pay the applicable fee at the Self Service Center. Attach the receipt showing payment of the
fee and present both the receipt and the form to the courtroom clerk or bailiff. For copies of
hearings or trial proceedings recorded previously, please call Electronic Records Services
at 602-506-7100. Should an official transcript be required, you may request that the court
prepare it. The party ordering the transcript must pay for it. To request a transcript, call 602-
506-7100 and provide the date of the proceeding, the case number, the case caption, if the
transcript is for an appeal, and your name, address, and telephone number.
If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

07/03/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

06/30/2017

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAWN M. BERGIN
L. Nelson

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK

v.

PINNACLE POINT DEVELOPERS L L C, et al.

RICHARD Q NYE
FRANK S TOMKINS
THOMAS L HUDSON

MINUTE ENTRY

The Court has reviewed Defendants FDIC and PrimeAZ’s Notice of Strike filed on June
23, 2017, and Plaintiff’s Objection filed on June 27, 2017.

For the reasons set forth in Plaintiff’s Objection,

IT IS ORDERED rejecting Defendants’ Notice of Strike and affirming the assignment
of this matter to this Division.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

07/08/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

07/02/2014

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HON. DAWN M. BERGIN
M. Nielsen

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK

v.

PINNACLE POINT DEVELOPERS L L C, et al.

RICHARD Q NYE
FRANK S TOMKINS

MINUTE ENTRY

Central Court Building – Courtroom 704

10:34 a.m. This is the time set for a Telephonic Status Conference. Plaintiff is
represented by counsel, Karen A. Palecek. Defendant Federal Deposit Insurance Corporation is
represented by counsel, Frank S. Tomkins. Defendant Primeaz/Libra LLC is neither present nor
represented by counsel.

A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.

IT IS ORDERED Mr. Nye to file a notice with the Court no later than 5:00 p.m. on
July 7, 2014 explaining why he failed to appear telephonically.

Discussion is held regarding case status.

10:43 a.m. Defendant Primeaz/Libra LLC is represented by counsel, Richard Q. Nye.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

07/02/2014

Docket Code 094
Form V000A
Page 2

IT IS ORDERED setting an in person Oral Argument on August 8, 2014 at 2:00 p.m.
in this division.

Oral argument shall be limited to thirty (30) minutes with the time divided equally
between the parties. Counsel and the parties, if representing themselves, are to appear in person
before:

THE HONORABLE DAWN BERGIN
MARICOPA COUNTY SUPERIOR COURT
CENTRAL COURT BUILDING
201 W JEFFERSON ST
7TH FLOOR, COURTROOM 704
PHOENIX, AZ 85003
602-372-2961 TEL

If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.

10:50 a.m. Matter concludes.

LATER:

As Mr. Nye appeared by phone within ten minutes of the commencement of the hearing,

IT IS ORDERED vacating the order that he file a notice with the Court regarding his
failure to appear.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
07/13/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
07/10/2012
Docket Code 021
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
J. Rutledge
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
PINNACLE POINT DEVELOPERS L L C
NO ADDRESS ON RECORD
TROON NORTH ASSOCIATION
NO ADDRESS ON RECORD
NATHANIEL ROSE
TROON CANYON VENTURES L L C
NO ADDRESS ON RECORD
NUNC PRO TUNC
IT IS ORDERED, nunc pro tunc, the Minute Entry dated June 27, 2012 to amend the
caption to reflect the correct Judicial Officer as the HONORABLE MARIA DEL MAR
VERDIN instead of the HONORABLE EILEEN S WILLETT.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

07/19/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

07/18/2017

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAWN M. BERGIN
S. Ortega

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK

v.

PINNACLE POINT DEVELOPERS L L C, et al.

RICHARD Q NYE
FRANK S TOMKINS

MINUTE ENTRY

The Court has reviewed Defendants FDIC’s and Prime AZ’s Motion for Reconsideration/
Reply in Support of Notice of Strike filed on July 12, 2017. Defendants filed a Notice of Strike
pursuant to Rule 42.1, A.R.C.P. on June 23, 2017. On June 27, 2017, Plaintiff filed an Objection
to the Notice. After reviewing the Objection and the Court of Appeals Opinion and Mandate, the
Court issued a minute entry dated June 30, 2017 rejecting the Notice of Strike and affirming
assignment of the action to this Division.

Defendants seek reconsideration, arguing that: (1) they were entitled to file a reply in
support of their Notice of Strike prior to any ruling by the Court; and (2) the Notice of Strike was
valid. Defendants cite Guberman v. Chatwin, 19 Ariz. App. 590, 509 P.2d 721 (App. 1973) in
support of their argument that they were entitled to file a reply before a ruling was issued. The
specific holding in Guberman was that “the filing of a resistance to the attempted disqualification
is implicit in Rule 42(f) . . .” Id. at 592, 509 P.2d at 723. Later in the opinion, the court stated in
dicta:

In our opinion a resistance to the notice of change of judge having been filed, the
Respondent Judge should have awaited the filing of a reply to the resistance.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

07/18/2017

Docket Code 023
Form V000A
Page 2

Id. at 594, 509 P.2d at 725.

Thus, the Rule itself does not provide for the filing of a reply, and there is no Arizona
case holding that a party is entitled to a reply. Nonetheless, in an effort to short-circuit additional
delay, the Court will consider Defendants’ filing as both a reply in support of the Notice of
Strike and a Motion for Reconsideration on the merits of the Court’s ruling.

IT IS ORDERED that Plaintiff shall file a Response to the Motion for Reconsideration
by July 26, 2017. No reply shall be filed.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
07/27/2011 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
07/22/2011
Docket Code 028
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
BRIAN JOSEPH PALMER
DANIEL E FREDENBERG
LISA M BLISS
MINUTE ENTRY
The Court has received Civil Settlement Conference Report authored by Judge Pro
Tempore Lisa M. Bliss dated June 21, 2011.
IT IS ORDERED setting Telephonic Status Conference to address the failure of
Settlement Conference to go forward on July 28, 2011 at 9:00 a.m. (15 minutes)
THE HONORABLE MARIA DEL MAR VERDIN
MARICOPA COUNTY SUPERIOR COURT
OLD COURTHOUSE
125 WEST WASHINGTON
3RD FLOOR, COURTROOM 303
PHOENIX, AZ 85003
602-506-2603 TEL
Court shall initiate the conference call to counsel.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
07/22/2011
Docket Code 028
Form V000A
Page 2
NOTE: Counsel shall be available for the conference call on a telephone land line.
Cell phones will not be permitted.
Note: Counsel shall have their calendars available for this proceeding.
Court Reporter
The proceeding will take place in the Superior Court’s “e-courtroom.” A record of the
proceedings will be made by videotape and CD in lieu of a court reporter. Should you want an
unofficial copy of the proceedings, the parties or counsel may request a videotape or CD of the
proceedings for a $20.00 charge. If a CD or videotape is requested, please obtain a form from
the Self Center to request a daily copy of a court hearing or trial proceeding being conducted.
Pay the applicable fee at the Self Service Center. Attach the receipt showing payment of the
fee and present both the receipt and the form to the courtroom clerk or bailiff. For copies of
hearings or trial proceedings recorded previously, please call Electronic Records Services
at 602-506-7100. Should an official transcript be required, you may request that the court
prepare it. The party ordering the transcript must pay for it. To request a transcript, call 602-
506-7100 and provide the date of the proceeding, the case number, the case caption, if the
transcript is for an appeal, and your name, address, and telephone number.
If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.
ALERT: eFiling through AZTurboCourt.gov is mandatory in civil cases for attorney-
filed documents effective May 1, 2011. See Arizona Supreme Court Administrative Orders
2010-117 and 2011-010. The Court may impose sanctions against counsel to ensure compliance
with this requirement after May 1, 2011.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/04/2011 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
08/01/2011
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
DANIEL E FREDENBERG
MINUTE ENTRY
1:25 p.m. This is the time set for Oral Argument re: Plaintiff’s Motion for Summary
Judgment filed February 15, 2011 and Defendant First Arizona Savings and Loan Association
and Primeaz/Libra LLC’s Cross-Motion for Summary Judgment. Plaintiff is represented by
counsel Karen A. Palacek who appears with her client, Mike Markham. Defendants First
Arizona Savings and Loan Association and Primeaz/Libra LLC are represented by counsel Brian
J. Cosper and Patrick Davis.
Court Reporter, Hilda Lopez, is present.
A record of the proceedings is also made by audio and/or videotape.
Discussion is first held re Settlement Conference before Judge Pro Tempore Lisa M.
Bliss and Plaintiff’s Motion for Sanctions filed July 28, 2011. Counsel are provided copies of
Judge Bliss’ Civil Settlement Conference Report.
IT IS ORDERED continuing this hearing on August 12, 2011 at 1:30 p.m. in this
division.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
08/01/2011
Docket Code 020
Form V000A
Page 2
Oral argument is presented re Plaintiff’s and Defendants’ Motions for Summary
Judgment.
IT IS ORDERED taking the Motions under advisement.
2:15 p.m. Matter concludes.
ALERT: eFiling through AZTurboCourt.gov is mandatory in civil cases for attorney-
filed documents effective May 1, 2011. See Arizona Supreme Court Administrative Orders
2010-117 and 2011-010. The Court may impose sanctions against counsel to ensure compliance
with this requirement after May 1, 2011.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

08/07/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

08/03/2017

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAWN M. BERGIN
S. Ortega

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK

v.

PINNACLE POINT DEVELOPERS L L C, et al.

RICHARD Q NYE
FRANK S TOMKINS

STATUS CONFERENCE SET

The Court has considered the following: (1) the Notice of Strike filed by Defendants
Federal Deposit Insurance Corporation and PrimeAZ/Libra, LLC (“Defendants”) on June 23,
2017; (2) Plaintiff’s Objection to the Notice of Strike filed on June 27, 2017; (3) Defendants’
Motion for Reconsideration/Reply in Support of Notice of Strike filed on July 12, 2017; and (4)
Plaintiff’s Response to Defendants’ Motion for Reconsideration filed on July 25, 2017.

For the reasons set forth in Plaintiff’s Objection to the Notice to Strike and its Response
to Defendants’ Motion for Reconsideration,

IT IS ORDERED denying Defendants’ Motion for Reconsideration.

IT IS FURTHER ORDERED affirming the order contained in the minute entry dated
June 30, 2017 rejecting Defendants’ Notice of Strike.

IT IS FURTHER ORDERED setting a Telephonic Status Conference on August 15,
2017 at 9:00 a.m. (15 minutes)

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

08/03/2017

Docket Code 028
Form V000A
Page 2

THE HONORABLE DAWN BERGIN
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W JEFFERSON
7TH FLOOR, COURTROOM 713
PHOENIX, AZ 85003
602-372-2961 TEL

Plaintiff shall initiate the conference call.

NOTE: Counsel shall be available for the conference call on a telephone land line and
not on cellular phones, in order to maximize all participants’ ability to hear and be heard.

Note: Counsel shall have their calendars available for this proceeding.

NOTE: All court proceedings are recorded by audio and video method and not by a
court reporter. Pursuant to Local Rule 2.22, if a party desires a court reporter for any proceeding
in which a court reporter is not mandated by Arizona Supreme Court Rule 30, the party must
submit a written request to the assigned judicial officer at least ten (10) judicial days in advance
of the hearing, and must pay the authorized fee to the Clerk of the Court at least two (2) judicial
days before the proceeding. The fee is $140 for a half-day and $280 for a full day.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

08/18/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

08/08/2014

Docket Code 005
Form V000A
Page 1

CLERK OF THE COURT
HON. DAWN M. BERGIN
M. Nielsen

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK

v.

PINNACLE POINT DEVELOPERS L L C, et al.

RICHARD Q NYE
FRANK S TOMKINS

MINUTE ENTRY

Central Court Building – Courtroom 704

2:06 p.m. This is the time set for Oral Argument on Plaintiff’s Motion to Stay Pending
Appeal; Defendants’ Application for Attorney Fees; and Defendant FDIC’s Proposed Form of
Judgment. Plaintiff, Markham Contracting Co Inc., is represented by counsel, Karen A. Palecek
and Thomas Hudson. Mike Markham, of Markham Contracting Co Inc., is also present.
Defendant, Federal Deposit Insurance Corporation, is represented by counsel, Scott A. Malm.
Defendant, Prime AZ/Libra, LLC, is represented by counsel, Benjamin J. Branson.

A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.

Discussion is held regarding case status and prior rulings made in this case.

Oral argument is presented to the Court regarding Plaintiff’s Motion to Stay Pending
Appeal.

IT IS ORDERED granting Plaintiff’s Motion for Stay Pending Appeal.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

08/08/2014

Docket Code 005
Form V000A
Page 2

Oral argument is presented to the Court on a proposed form of judgment and supersedeas
bond.

IT IS ORDERED approving Defendant FDIC’s Application for Attorneys’ Fees Against
Plaintiff and Defendant Prime AZ/Libra, L.L.C.’s Application for Attorneys’ Fees.

IT IS FURTHER ORDERED that Plaintiff shall post a supersedeas bond. The Court
identifies the components for the supersedeas bond and instructs counsel to confer and submit a
final form of judgment.

3:01 p.m. Matter concludes.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/25/2011 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
08/12/2011
Docket Code 029
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
DANIEL E FREDENBERG
LISA M BLISS
ALTERNATIVE DISPUTE
RESOLUTION - CCC
MINUTE ENTRY
1:30 p.m. This is the time set for Continuing Status Conference re: Civil Settlement
Conference Report. Plaintiff Mike Markham is present and represented by counsel Karen A.
Palecek. Defendants First Arizona Savings and Loan Association and Primeaz/Libra LLC are
represented by counsel Brian J. Cosper and Daniel E. Fredenberg.
A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.
Continued discussion is held re Settlement Conference before Judge Pro Tempore Lisa
M. Bliss on June 21, 2011 and appearances made by and on behalf of the parties at that time.
The parties agree that they wish to reconvene with Judge Pro Tempore Lisa M. Bliss in an effort
to resolve this matter. The parties are directed to contact Judge Pro Tempore Bliss to arrange a
date satisfactory to all parties to continue the Settlement Conference.
Pending is Plaintiff’s Motion for Sanctions which has not yet been fully briefed.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
08/12/2011
Docket Code 029
Form V000A
Page 2
Also pending is the Court’s ruling on Plaintiff’s and Defendants’ Motions for Summary
Judgment. Oral argument was presented to the Court on August 1, 2011.
IT IS ORDERED affirming Telephonic Status Conference set September 14, 2011 at
9:00 a.m.
THE HONORABLE MARIA DEL MAR VERDIN
MARICOPA COUNTY SUPERIOR COURT
OLD COURTHOUSE
125 WEST WASHINGTON
3RD FLOOR, COURTROOM 303
PHOENIX, AZ 85003
602-506-2603 TEL
2:09 p.m. Matter concludes.
Court Reporter
The proceeding will take place in the Superior Court’s “e-courtroom.” A record of the
proceedings will be made by videotape and CD in lieu of a court reporter. Should you want an
unofficial copy of the proceedings, the parties or counsel may request a videotape or CD of the
proceedings for a $20.00 charge. If a CD or videotape is requested, please obtain a form from
the Self Center to request a daily copy of a court hearing or trial proceeding being conducted.
Pay the applicable fee at the Self Service Center. Attach the receipt showing payment of the
fee and present both the receipt and the form to the courtroom clerk or bailiff. For copies of
hearings or trial proceedings recorded previously, please call Electronic Records Services
at 602-506-7100. Should an official transcript be required, you may request that the court
prepare it. The party ordering the transcript must pay for it. To request a transcript, call 602-
506-7100 and provide the date of the proceeding, the case number, the case caption, if the
transcript is for an appeal, and your name, address, and telephone number.
If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.
ALERT: eFiling through AZTurboCourt.gov is mandatory in civil cases for attorney-
filed documents effective May 1, 2011. See Arizona Supreme Court Administrative Orders
2010-117 and 2011-010. The Court may impose sanctions against counsel to ensure compliance
with this requirement after May 1, 2011.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

08/21/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

08/15/2017

Docket Code 029
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAWN M. BERGIN
S. Ortega

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK
THOMAS L HUDSON

v.

PINNACLE POINT DEVELOPERS L L C, et al.

RICHARD Q NYE
FRANK S TOMKINS

MINUTE ENTRY

Courtroom: ECB - 713

9:00 a.m. This is the time set for a Telephonic Status Conference Re: Court of Appeals
Opinion and Mandate. Plaintiff, Markham Contracting Co., Inc., is represented by counsel,
Karen Palecek and Thomas Hudson. Defendant, PrimeAZ/Libra, LLC, is represented by
counsel, Richard Nye. Defendant, Federal Deposit Insurance Corporation, is represented by
counsel, Frank Tomkins.

A record of the proceedings is made digitally in lieu of a court reporter.

Case status is discussed. Counsel advise the Court on their positions moving forward.

For the reasons stated on the record,

IT IS ORDERED that Plaintiff file its Motion for Entry of Judgment and Application for
Attorneys’ Fees by September 1, 2017.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

08/15/2017

Docket Code 029
Form V000A
Page 2

IT IS FURTHER ORDERED that Defendants meet and confer with Plaintiff by
September 8, 2017 to discuss a briefing schedule.

IT IS FURTHER ORDERED that counsel submit a notice of briefing schedule to the
Court no later than September 15, 2017.

The Court grants an extension of five pages on the Motions and Responses and three
pages on the Reply.

Following receipt of the briefing schedule but no earlier than October 1, 2017, the
division will contact counsel to set oral argument on the Plaintiff’s Motion .

9:17 a.m. Hearing concludes.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/21/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
08/20/2013
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
M. Nielsen
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
PINNACLE POINT DEVELOPERS L L C
NO ADDRESS ON RECORD
RICHARD Q NYE
FRANK S TOMKINS
ALTERNATIVE DISPUTE
RESOLUTION - CCC
MINUTE ENTRY
IT IS ORDERED, the parties shall participate in a mandatory settlement
conference. This case is referred to the court’s Alternative Dispute Resolution for the
appointment of a judge pro tempore to conduct a settlement conference. Counsel and/or the
parties will receive a minute entry from ADR appointing the judge pro tempore. Counsel
and any “pro per” parties will contact the appointed judge pro tempore to arrange the date, time,
and location for the settlement conference. The judge pro tempore is requested to conduct a
settlement conference not later than November 19, 2013. The Office of Alternative Dispute
Resolution will not do the scheduling of the settlement conference so please do not contact that
office.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
09/13/2011 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
09/12/2011
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
DANIEL E FREDENBERG
MINUTE ENTRY
The Court is in receipt of the Plaintiff’s Motion for Sanctions and Default Judgment
Against Lender Defendants dated July 28, 2011; the Defendant’s Response filed August 22,
2011; and the Plaintiff’s Reply filed September 2, 2011.
The Court has considered the matters presented.
The Parties indicated to the Court in August 1, 2011 that they would once again schedule
a Settlement Conference with Judge Pro-Tempore Lisa M Bliss in a good faith effort to resolve
and or narrow the pending issues.
IT IS ORDERED the Plaintiff’s Motion for Sanctions and Default Judgment Against
Lender Defendants dated July 28, 2011 shall be held in abeyance pending the Parties’
participation in the Settlement Conference.
The Court takes no further action at this time.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
09/12/2011
Docket Code 019
Form V000A
Page 2
ALERT: Effective September 1, 2011, the Arizona Supreme Court Administrative Order
2011-87 directs the Clerk's Office not to accept paper filings from attorneys in civil cases. Civil
cases must still be initiated on paper; however, subsequent documents must be eFiled through
AZTurboCourt unless an exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
09/15/2011 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
09/12/2011
Docket Code 926
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
DANIEL E FREDENBERG
MINUTE ENTRY
This matter came before the Court on August 1, 2011 on the Plaintiff’s Motion for
Summary Judgment filed February 15, 2011; and the Defendant’s Cross Motion for Summary
Judgment filed April 8, 2011. The matter has been under advisement.
The Court has considered the matters presented, including the Plaintiff’s Motion for
Summary Judgment filed February 15, 2011; and the Defendant’s Response and Cross Motion
for Summary Judgment filed April 8, 2011; the Plaintiff’s Objection, Reply and Response to
Cross-Motion filed May 16, 2011; and the Defendant’s Reply filed June 8, 2011; the authorities
cited and argument made by counsel.
THE COURT FINDS the Plaintiff Markham has a valid lien in the amount of
$341,777.25. The priority of the Plaintiff’s lien however is in question.
THE COURT FURTHER FINDS a genuine issue of material fact exists as to whether or
not equitable subrogation should apply. The Defendant has failed to show that the requisite
implied or expressed intent occurred between the lenders. It is further unclear whether allowing
subrogation to occur up to the extent and/or more than the amount of the original 2006 DOT will

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
09/12/2011
Docket Code 926
Form V000A
Page 2
prejudice Markham. Without resolving these issues, the first lien priority of the Lending Parties
is unclear.
IT IS ORDERED denying Plaintiff’s Motion for Summary Judgment filed February 15,
2011 to the extent that it requests to have Markham’s lien in a priority position; and denying
Defendant’s Cross Motion for Summary Judgment filed April 8, 2011.
The Court takes no further action.
ALERT: Effective September 1, 2011, the Arizona Supreme Court Administrative Order
2011-87 directs the Clerk's Office not to accept paper filings from attorneys in civil cases. Civil
cases must still be initiated on paper; however, subsequent documents must be eFiled through
AZTurboCourt unless an exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
09/15/2011 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
09/13/2011
Docket Code 003
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
DANIEL E FREDENBERG
MINUTE ENTRY
On the Court’s own motion, the parties not having had the opportunity to participate in a
settlement conference,
IT IS ORDERED vacating Telephonic Status Conference set September 14, 2011 at
9:00 a.m. and re-setting same on October 6, 2011 at 9:45 a.m. (15 minutes)
THE HONORABLE MARIA DEL MAR VERDIN
MARICOPA COUNTY SUPERIOR COURT
OLD COURTHOUSE
125 WEST WASHINGTON
3RD FLOOR, COURTROOM 303
PHOENIX, AZ 85003
602-506-2603 TEL
Plaintiff shall initiate the conference call.
NOTE: Counsel shall be available for the conference call on a telephone land line and
not on cellular phones, in order to maximize all participants’ ability to hear and be heard.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
09/13/2011
Docket Code 003
Form V000A
Page 2
Note: Counsel shall have their calendars available for this proceeding.
Court Reporter
The proceeding will take place in the Superior Court’s “e-courtroom.” A record of the
proceedings will be made by videotape and CD in lieu of a court reporter. Should you want an
unofficial copy of the proceedings, the parties or counsel may request a videotape or CD of the
proceedings for a $20.00 charge. If a CD or videotape is requested, please obtain a form from
the Self Center to request a daily copy of a court hearing or trial proceeding being conducted.
Pay the applicable fee at the Self Service Center. Attach the receipt showing payment of the
fee and present both the receipt and the form to the courtroom clerk or bailiff. For copies of
hearings or trial proceedings recorded previously, please call Electronic Records Services
at 602-506-7100. Should an official transcript be required, you may request that the court
prepare it. The party ordering the transcript must pay for it. To request a transcript, call 602-
506-7100 and provide the date of the proceeding, the case number, the case caption, if the
transcript is for an appeal, and your name, address, and telephone number.
If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.
ALERT: Effective September 1, 2011, the Arizona Supreme Court Administrative Order
2011-87 directs the Clerk's Office not to accept paper filings from attorneys in civil cases. Civil
cases must still be initiated on paper; however, subsequent documents must be eFiled through
AZTurboCourt unless an exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
10/12/2011 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
10/06/2011
Docket Code 003
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
T. Melius
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
DANIEL E FREDENBERG
MINUTE ENTRY
9:45 a.m. This is the time set for telephonic Status Conference in this matter. The Court
has been unable to reach counsel of record for Defendant. The Court is aware that a Settlement
Conference is set in this matter for October 27, 2011.
IT IS THEREFORE ORDERED vacating today’s telephonic status conference and
resetting same to November 10, 2011 at 9:00 a.m.
Matter concludes.
ALERT: Effective September 1, 2011, the Arizona Supreme Court Administrative Order
2011-87 directs the Clerk's Office not to accept paper filings from attorneys in civil cases. Civil
cases must still be initiated on paper; however, subsequent documents must be eFiled through
AZTurboCourt unless an exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

10/14/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

10/10/2014

Docket Code 928
Form V000A
Page 1

CLERK OF THE COURT
HON. DAWN M. BERGIN
C. Keller

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK

v.

PINNACLE POINT DEVELOPERS L L C, et al.

RICHARD Q NYE
FRANK S TOMKINS

STAY OF PROCEEDINGS

Pursuant to this Court’s August 8, 2014 ruling granting Plaintiff’s Motion to Stay
Pending Appeal,

IT IS ORDERED this matter is stayed until the issuance of the mandate on appeal, in
accordance with the formal written Order for Stay signed by the Court on October 9, 2014 and
filed (entered) by the Clerk on October 10, 2014.

IT IS FURTHER ORDERED that this stay is conditioned upon Plaintiff posting a cash
bond with the Clerk of the Court not later than October 24, 2014 in the amount of $141,090.00.

IT IS FURTHER ORDERED that Plaintiff shall file a Notice of Filing the Bond and
serve a copy upon all parties.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
10/12/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
10/11/2012
Docket Code 029
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
PINNACLE POINT DEVELOPERS L L C
NO ADDRESS ON RECORD
TROON NORTH ASSOCIATION
NO ADDRESS ON RECORD
TIMOTHY W BARTON
RICHARD Q NYE
TROON CANYON VENTURES L L C
NO ADDRESS ON RECORD
MINUTE ENTRY
9:25 a.m. This is the time set for Telephonic Status Conference. Plaintiff Mike
Markham is present and represented by counsel Karen A.Palecek. Defendant Primeaz/Libra
LLC is represented by counsel Richard Q. Nye. Defendant Federal Deposit Insurance
Corporation is represented by counsel Adam L. Wilkes. All parties appear telephonically.
Court Reporter, Hilda Lopez, is present.
Court is advised that discovery is continuing. Also noted is the recent substitution of
counsel for Federal Deposit Insurance Company.
Contained in the Motion to Withdraw and Extension of Deadlines filed September 26,
2012 and Response to Motion to Withdraw and for Extension of Deadlines filed October 5,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
10/11/2012
Docket Code 029
Form V000A
Page 2
2012, are counsel’s requests to extend discovery deadlines. In view of the recent substitution of
counsel, Court agrees that the deadlines should be extended.
IT IS ORDERED that counsel shall submit to the Court an updated proposed scheduling
order not later than November 1, 2012.
9:37 a.m. Matter concludes.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.
PLEASE NOTE: If/when a party files a pleading within 48 hours of a scheduled event,
the party should also e-mail same to the Court’s Judicial Assistant at the following:
mgabel@superior court.maricopa.gov
NOTE: COUNSEL SHALL UPLOAD AND E-FILE ALL PROPOSED ORDERS
IN WORD FORMAT ONLY TO ALLOW FOR POSSIBLE MODIFICATIONS BY THE
COURT.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
10/15/2010 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
10/14/2010
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HON. SAM J. MYERS
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KIMBERLY A LANE
v.
PINNACLE POINT DEVELOPERS L L C, et al.
DANIEL E FREDENBERG
MINUTE ENTRY
The Court has received and reviewed Plaintiff’s Motion to Set and Certificate of
Readiness.
IT IS ORDERED that the parties shall submit a Joint Pretrial Memorandum as set forth
below.
The Court will review the Joint Pretrial Memorandum and proposed Scheduling Order
prescribed herein. The Court may adopt or modify the discovery and disclosure schedule order
and set a scheduling conference for purposes of setting a trial date. If counsel still believe that a
pretrial conference is necessary at this stage of the litigation, they should address the reasons for
the need for a pretrial conference in the first paragraph of the Joint Pretrial Memorandum.
If the parties fail to file a timely memorandum, sanctions may issue pursuant to Rule
16(f).
IT IS FURTHER ORDERED:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
10/14/2010
Docket Code 023
Form V000A
Page 2
All counsel are directed to meet personally to discuss all of the matters set forth in Rule
16(b). Counsel shall prepare and file with the Court by 5 p.m. on November 15, 2010, a Joint
Pretrial Memorandum, and prepare a proposed order for Discovery and Disclosure deadlines.
The proposed order shall include dates for the following items and conform substantially with
the attached sample order.
1.
A date or dates for initial disclosures and/or to supplement disclosures made to
date.
2.
An initial and final date to propound written discovery requests that shall
include, as far as can reasonably be anticipated, any and all medical examinations
which may be required of any of the parties; the person or persons to conduct such
examinations; and all tangible evidence to be disclosed or exchanged.
3.
A date for the initial and final disclosure of all non-expert witnesses, and/or to
supplement disclosures made to date.
4.
A date for the initial and final disclosure of the identities, subject matter, and
reports of expert witnesses, and/or to supplement disclosures made to date.
5.
A date for the completion of all depositions.
6.
A date by which any motions to amend the pleadings will be filed.
7.
A date by which all discovery motions will be filed.
8.
A date by which all dispositive or partially dispositive motions shall be filed.
9.
A proposed date for a Mandatory Settlement Conference pursuant to Rule
16.1. Alternatively, the parties may propose a deadline by which they will
participate in private mediation.
10.
The anticipated length of trial.
If the parties agree as to the dates, they need to only prepare and submit the proposed
order attached hereto. If counsel are unable to agree on any of the items set forth in the attached
form of order, the reasons for their inability to agree shall be set forth in the Pretrial
Memorandum and each shall prepare a separate proposed order. All proposed deadlines shall
be set forth as calendar dates, and not in the form “XX days before trial.”

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
10/14/2010
Docket Code 023
Form V000A
Page 3
IT IS FURTHER ORDERED that counsel shall notify the Court of any agreed-upon
extension of any time period provided by the Rules of Civil Procedure. The purpose of this order
is not to discourage extensions as a matter of professionalism, but to ensure that no party suffers
summary disposition of any issue by virtue of an extension of which the Court is not aware.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
10/14/2010
Docket Code 023
Form V000A
Page 4
[Proposed] Scheduling Order
The Court having received the parties’ Joint Comprehensive Pretrial Conference
Memorandum,
IT IS ORDERED entering the following schedule for disclosure as set forth unless the
parties obtain written modifications by the Court:
(1)
Initial disclosures shall be exchanged by: (MM/DD/YYYY)
(2)
Written discovery shall be propounded by: (MM/DD/YYYY)
(3)
Written discovery shall be completed by: (MM/DD/YYYY)
(4)
Final non-expert disclosures shall be exchanged by: (MM/DD/YYYY)
(5)
The identities and subject areas of expert testimony shall be disclosed by:
(MM/DD/YYYY)
(6)
Plaintiff’s final expert disclosures shall be served by: (MM/DD/YYYY)
Defendant’s final expert disclosures shall be exchanged by: (MM/DD/YYYY)
Rebuttal expert disclosures shall be exchanged by: (MM/DD/YYYY)
(7)
Depositions shall be completed by: (MM/DD/YYYY)
(8)
All discovery motions shall be filed by: (MM/DD/YYYY)
(9)
Any motions to amend pleadings shall be filed by: (MM/DD/YYYY)
(10)
Dispositive Motions shall be filed by: (MM/DD/YYYY)
(11)
The parties remaining in this action shall participate in private mediation by
(MM/DD/YYYY) OR The parties remaining in this action shall participate in a
Mandatory Settlement Conference (ADR) by (MM/DD/YYYY) (Note: only one
of the preceding two options shall be included in the proposed order)

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
10/14/2010
Docket Code 023
Form V000A
Page 5
(12)
The following number of days will be required to pick a jury and try this matter:
____
IT IS ORDERED setting a telephonic Status Conference to be initiated by the Court in
this matter on [counsel to leave this date blank], (time allotted: 15 minutes), in this Division.
HONORABLE SAM J. MYERS
MARICOPA COUNTY SUPERIOR COURT
CENTRAL COURT BUILDING
201 W. JEFFERSON
COURTROOM 702
PHOENIX, AZ 85003
602 372-2940 TEL
602 372-8744 FAX
IT IS FURTHER ORDERED that in no less than five days prior to the Status Conference
set herein, the parties shall submit a Joint Statement pursuant to ARCP 16(d) and report to the
Court the history and status of the efforts at Alternative Dispute Resolution pursuant to ARCP
Rule 16(g).
DISCOVERY DISPUTES: In the event of any dispute concerning discovery, counsel
are directed to confer pursuant to ARCP 26(g). If such conference is unsuccessful, counsel are
directed to initiate a conference call with this Division BEFORE filing a motion to compel or
motion for protective order. Any discovery motion filed without first making a conference call
will be rejected.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

10/20/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

10/19/2017

Docket Code 095
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAWN M. BERGIN
S. Ortega

Deputy

MARKHAM CONTRACTING CO INC
KAREN A PALECEK

v.

PINNACLE POINT DEVELOPERS L L C, et al.

RICHARD Q NYE
FRANK S TOMKINS

ORAL ARGUMENT RESET

The Court has reviewed the Parties’ Stipulation to Extend Briefing Schedule filed on
October13, 2017.

IT IS ORDERED granting the agreed-to amended briefing schedule as follows:

1.
Plaintiff MARKHAM will file its Reply to Defendants’ Response to
MARKHAM’s Application for Fees and its Reply to Defendants’ Response to
MARKHAM’s Motion for Entry of Judgment on November 6, 2017.

2.
Plaintiff MARKHAM will file its Responses to Defendants’ Motions for
Summary Judgment and Application for Fees on November 6, 2017.

3.
Defendants FDIC and PRIME AZ will file their Replies re: their Motions for
Summary Judgment and Application for Attorneys’ Fees on November 21,
2017.

IT IS FURTHER ORDERED vacating and resetting the Oral Argument from
November 20, 2017 at 1:30 p.m. to December 7, 2017 at 1:30 p.m. (2 hours) on the following:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

10/19/2017

Docket Code 095
Form V000A
Page 2

 Markham Contracting Co., Inc.’s Motion for Entry of Judgment, filed
September1, 2017;
 Markham Contracting Co., Inc.’s Application for Attorneys’ Fees, Costs,
Expenses, and Rule 68 Sanctions, filed September 1, 2017;
 Defendant FDIC’s Motion for Summary Judgment on Plaintiff’s Right to
Foreclose against FDIC’s Interest in the Property, filed October 2, 2017;
 FDIC’s and PrimeAZ’s Joint Motion for Summary Judgment re: Rights of
Parties with respect to Real Property and FDIC’s and PrimeAZ’s right to Interest
on Equitable Subrogation Amount, filed October 2, 107;
 PrimeAZ/Libra, LLC’s and FDIC’s Joint Cross Application for Attorney’s Fees,
Costs and Expenses, filed October 3, 2017.

Counsel and the parties, if representing themselves, are to appear in person before:

THE HONORABLE DAWN BERGIN
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W JEFFERSON
7TH FLOOR, COURTROOM 713
PHOENIX, AZ 85003
602-372-2961 TEL

NOTE: All court proceedings are recorded by audio and video method and not by a
court reporter. Pursuant to Local Rule 2.22, if a party desires a court reporter for any proceeding
in which a court reporter is not mandated by Arizona Supreme Court Rule 30, the party must
submit a written request to the assigned judicial officer at least ten (10) judicial days in advance
of the hearing, and must pay the authorized fee to the Clerk of the Court at least two (2) judicial
days before the proceeding. The fee is $140 for a half-day and $280 for a full day.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
10/31/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
10/28/2013
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
M. Nielsen
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
PINNACLE POINT DEVELOPERS L L C
NO ADDRESS ON RECORD
TROON NORTH ASSOCIATION
NO ADDRESS ON RECORD
RICHARD Q NYE
FRANK S TOMKINS
TROON CANYON VENTURES L L C
NO ADDRESS ON RECORD
MINUTE ENTRY
The Court is in receipt of the Defendants’ Notice of Filing Proposed Order, filed July 29,
2013; the Plaintiff’s Objection, filed August 5, 2013; the Defendants’ Response, filed August 22,
2013; the Defendant’s Prime/AZ Joinder, filed August 27, 2013; the Plaintiff’s Reply to the
Joinder, filed September 3, 2013; the Defendant’s Notice of Filing Revised Proposed Order, filed
September 3, 2013; and the Plaintiff’s Objection, filed September 16, 2013.
The Court has considered the matters presented.
The Court adopts the Defendant’s Revised Proposed Order, filed September 3, 2013 as
modified by the Court.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
10/28/2013
Docket Code 023
Form V000A
Page 2
The Court notes the issue of whether the Plaintiff’s mechanic’s lien in the amount of
$341,773.25 survives the trustee sale and subsequent issuance of the trustee deed to the property
has not been resolved between the Parties or by ruling of the Court.
The Parties are granted leave to request relief from the Court on this issue as deemed
appropriate including the filing of a dispositive motion so long as a trial date has not been set.
The Parties are encouraged to address all pending issues at their upcoming settlement
conference in an attempt to reach resolution.
The Court takes no further action at this time.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
11/16/2011 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
11/08/2011
Docket Code 003
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
DANIEL E FREDENBERG
MINUTE ENTRY
The Court having been informed that the Settlement Conference set on October 27, 2011
has been continued to December 15, 2011,
IT IS ORDERED vacating Telephonic Status Conference set November 10, 2011 at
9:00 a.m. and re-setting same on January 4, 2012 at 9:15 a.m. (15 minutes)
THE HONORABLE MARIA DEL MAR VERDIN
MARICOPA COUNTY SUPERIOR COURT
OLD COURTHOUSE
125 WEST WASHINGTON
3RD FLOOR, COURTROOM 303
PHOENIX, AZ 85003
602-506-2603 TEL
Plaintiff shall initiate the conference call.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
11/08/2011
Docket Code 003
Form V000A
Page 2
NOTE: Counsel shall be available for the conference call on a telephone land line and
not on cellular phones, in order to maximize all participants’ ability to hear and be heard.
Note: Counsel shall have their calendars available for this proceeding.
Court Reporter
The proceeding will take place in the Superior Court’s “e-courtroom.” A record of the
proceedings will be made by videotape and CD in lieu of a court reporter. Should you want an
unofficial copy of the proceedings, the parties or counsel may request a videotape or CD of the
proceedings for a $20.00 charge. If a CD or videotape is requested, please obtain a form from
the Self Center to request a daily copy of a court hearing or trial proceeding being conducted.
Pay the applicable fee at the Self Service Center. Attach the receipt showing payment of the
fee and present both the receipt and the form to the courtroom clerk or bailiff. For copies of
hearings or trial proceedings recorded previously, please call Electronic Records Services
at 602-506-7100. Should an official transcript be required, you may request that the court
prepare it. The party ordering the transcript must pay for it. To request a transcript, call 602-
506-7100 and provide the date of the proceeding, the case number, the case caption, if the
transcript is for an appeal, and your name, address, and telephone number.
If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.
ALERT: Effective September 1, 2011, the Arizona Supreme Court Administrative Order
2011-87 directs the Clerk's Office not to accept paper filings from attorneys in civil cases. Civil
cases must still be initiated on paper; however, subsequent documents must be eFiled through
AZTurboCourt unless an exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
12/02/2010 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
12/01/2010
Docket Code 028
Form V000A
Page 1
CLERK OF THE COURT
HON. SAM J. MYERS
L. Firriello
Deputy
MARKHAM CONTRACTING CO INC
KIMBERLY A LANE
v.
PINNACLE POINT DEVELOPERS L L C, et al.
DANIEL E FREDENBERG
ALTERNATIVE DISPUTE RESOLUTION -
CCC
MINUTE ENTRY
The Court having received the parties’ Joint Stipulation for Scheduling Order,
IT IS ORDERED adopting all proposed dates contained therein as the Scheduling Order
in this matter all in accordance with the formal written Order e-signed and filed by the Court on
November 30, 2010.
IT IS ORDERED, the parties shall participate in a mandatory settlement conference.
This case is referred to the court’s Alternative Dispute Resolution for the appointment of a judge
pro tempore to conduct a settlement conference. Counsel and/or the parties will receive a
minute entry from ADR appointing the judge pro tempore. Counsel and any “pro per” parties
will contact the appointed judge pro tempore to arrange the date, time, and location for the
settlement conference. The judge pro tempore is requested to conduct a settlement conference
not later than June 24, 2011. The Office of Alternative Dispute Resolution will not do the
scheduling of the settlement conference so please do not contact that office.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
12/01/2010
Docket Code 028
Form V000A
Page 2
All counsel and their clients, or non-lawyer representatives who have full and complete
authority to settle the case, shall personally appear and participate in good faith in the Settlement
Conference. Sanctions may be imposed for failure to participate.
IT IS ORDERED setting Telephonic Status Conference in this matter on July 20, 2011
at 9:00 a.m.
THE HONORABLE SAM J. MYERS
MARICOPA COUNTY SUPERIOR COURT
CENTRAL COURT BUILDING
201 W. JEFFERSON
7TH FLOOR, COURTROOM 702
PHOENIX, AZ 85003
602-372-2940 TEL
602-372-8744 FAX
Court shall initiate the conference call to counsel.
NOTE: Counsel shall be available for the conference call on a telephone land line.
Cell phones will not be permitted.
Note: Counsel shall have their calendars available for this proceeding.
IT IS FURTHER ORDERED that in no less than five days prior to the Status
Conference set herein, the parties shall submit a Joint Statement pursuant to ARCP 16(d) and
report to the Court the history and status of the efforts at Alternative Dispute Resolution pursuant
to ARCP Rule 16(g).
DISCOVERY DISPUTES: In the event of any dispute concerning discovery, counsel
are directed to confer pursuant to ARCP 26(g). If such conference is unsuccessful, counsel are
directed to initiate a conference call with this Division BEFORE filing a motion to compel or
motion for protective order.
Court Reporter
The proceeding will take place in the Superior Court’s “e-courtroom.” A record of the
proceedings will be made by videotape and CD in lieu of a court reporter. Should you want an

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
12/01/2010
Docket Code 028
Form V000A
Page 3
unofficial copy of the proceedings, the parties or counsel may request a videotape or CD of the
proceedings for a $20.00 charge. If a CD or videotape is requested, please obtain a form from the
Self Center to request a daily copy of a court hearing or trial proceeding being conducted. Pay
the applicable fee at the Self Service Center. Attach the receipt showing payment of the fee and
present both the receipt and the form to the courtroom clerk or bailiff. For copies of hearings or
trial proceedings recorded previously, please call Electronic Records Services at 602-506-
7100. Should an official transcript be required, you may request that the court prepare it. The
party ordering the transcript must pay for it. To request a transcript, call 602-506-7100 and
provide the date of the proceeding, the case number, the case caption, if the transcript is for an
appeal, and your name, address, and telephone number.
If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
12/06/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
12/04/2013
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
M. Nielsen
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
PINNACLE POINT DEVELOPERS L L C
NO ADDRESS ON RECORD
TROON NORTH ASSOCIATION
NO ADDRESS ON RECORD
RICHARD Q NYE
FRANK S TOMKINS
TROON CANYON VENTURES L L C
NO ADDRESS ON RECORD
MINUTE ENTRY
The Court having received Joint Status Report and Stipulation to Continue Joint Pretrial
Statements Pursuant to Rule 16(d) and Rule 16(g), filed December 3, 2013.
IT IS ORDERED vacating the Telephonic Status Conference for December 10, 2013.
The telephonic status conference will be reset once the Court rules on the pending
motions for Summary Judgment.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

12/13/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

12/07/2017

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAWN M. BERGIN
S. Ortega

Deputy

MARKHAM CONTRACTING CO INC

KAREN A PALECEK
THOMAS L HUDSON
ERIC M FRASER

v.

PINNACLE POINT DEVELOPERS L L C, et al.

RICHARD Q NYE
FRANK S TOMKINS
SCOTT A MALM
MINA C. O'BOYLE

MATTERS TAKEN UNDER ADVISEMENT

Courtroom: ECB - 713

1:34 p.m. This is the time set for Oral Argument on several post-remand Motions.
Plaintiff, Markham Contracting Co., Inc., is represented by counsel, Karen Palecek, Eric Fraser,
and Thomas Hudson. Michael Markham, representative for Plaintiff, Markham Contracting Co.,
Inc., is also present. Defendant, PrimeAZ/Libra, LLC, is represented by counsel, Richard Nye.
Defendant, Federal Deposit Insurance Company (“FDIC”), is represented by counsel, Scott
Malm and Mina O’Boyle, for counsel of record Frank Tomkins.

A record of the proceedings is made digitally in lieu of a court reporter.

Oral argument is held on:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

12/07/2017

Docket Code 020
Form V000A
Page 2

 FDIC’s Motion for Summary Judgment on Markham’s Right to Foreclose Against
FDIC’s Interest in the Property filed on October 2, 2017

 Defendants’ FDIC and PrimeAZ’s Joint Motion for Summary Judgment Re: Rights of
Parties with Respect to Real Property and FDIC’s and PrimeAZ’s Right to Interest on
Equitable Subrogation Amount filed on October 2, 2017

 Markham’s Application for Attorneys’ Fees, Costs, Expenses and Rule 68 Sanctions
filed on September 1, 2017

 Markham’s Motion for Entry of Judgment filed on September 1, 2017

 PrimeAZ and FDIC’s Joint Cross-Application for Attorneys’ Fees, Costs and
Expenses filed on November 6, 2017

 PrimeAZ and FDIC’s Proposed Form of Judgment filed on November 21, 2017

2:55 p.m. Court stands at recess.

3:17 p.m. Court reconvenes with respective counsel and Mr. Markham present.

A record of the proceedings is made digitally in lieu of a court reporter.

Argument continues.

For the reasons set forth on the record,

THE COURT FINDS that Markham is the successful party in this litigation and is
entitled to reasonable attorneys’ fees pursuant to A.R.S. §33-998(B). The amount of the fees and
how they will be incorporated into Markham’s lien will be addressed after the completion of
supplemental briefing.

IT IS ORDERED that Markham shall file a Supplemental Application for Attorneys’
Fees by December 21, 2017.

IT IS FURTHER ORDERED that Defendants shall file a supplemental objection to
Markham’s Application for Attorneys’ Fees by January 12, 2018.

IT IS FURTHER ORDERED that Markham shall file a response to Defendants’
supplemental objection by February 2, 2018.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

12/07/2017

Docket Code 020
Form V000A
Page 3

IT IS FURTHER ORDERED that the parties shall file simultaneous briefs, not to
exceed 7 pages, on FDIC’s immunity defenses by February 2, 2018.

IT IS FURTHER ORDERED continuing Oral Argument on Markham’s Motion for
Entry of Judgment, specifically on the issue of pre-judgment interest, on December 11, 2017 at
1:30 p.m. (60 minutes) in this division.

Counsel and the parties, if representing themselves, are to appear in person before:

THE HONORABLE DAWN BERGIN
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W JEFFERSON
7TH FLOOR, COURTROOM 713
PHOENIX, AZ 85003
602-372-2961 TEL

NOTE: All court proceedings are recorded by audio and video method and not by a
court reporter. Pursuant to Local Rule 2.22, if a party desires a court reporter for any proceeding
in which a court reporter is not mandated by Arizona Supreme Court Rule 30, the party must
submit a written request to the assigned judicial officer at least ten (10) judicial days in advance
of the hearing, and must pay the authorized fee to the Clerk of the Court at least two (2) judicial
days before the proceeding. The fee is $140 for a half-day and $280 for a full day.

4:52 p.m. Hearing concludes.

LATER:

IT IS FURTHER ORDERED denying PrimeAZ and FDIC’s Joint Cross-Application
for Attorneys’ Fees, Costs and Expenses.

IT IS FURTHER ORDERED taking under advisement the following motions as of
February 2, 2018.

 FDIC’s Motion for Summary Judgment on Markham’s Right to Foreclose Against
FDIC’s Interest in the Property;

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

12/07/2017

Docket Code 020
Form V000A
Page 4

 Defendants FDIC and PrimeAZ’s Joint Motion for Summary Judgment Re: Rights of
Parties with Respect to Real Property and FDIC’s and PrimeAZ’s Right to Interest on
Equitable Subrogation Amount;

 Markham’s Application for Attorneys’ Fees, Costs, Expenses and Rule 68 Sanctions; and

 Markham’s Motion for Entry of Judgment filed on September 1, 2017

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

12/21/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

12/11/2017

Docket Code 005
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAWN M. BERGIN
S. Ortega

Deputy

MARKHAM CONTRACTING CO INC

KAREN A PALECEK
ERIC M FRASER
THOMAS L HUDSON

v.

PINNACLE POINT DEVELOPERS L L C, et al.

RICHARD Q NYE
FRANK S TOMKINS
SCOTT A MALM

MINUTE ENTRY

Courtroom: ECB - 713

1:34 p.m. This is the time set for continued Oral Argument on the claim for pre-
judgment interest. Plaintiff, Markham Contracting Co., Inc., is represented by counsel, Karen
Palecek, Eric Fraser, and Thomas Hudson. Michael Markham, representative for Plaintiff,
Markham Contracting Co., Inc., is also present. Defendant, Federal Deposit Insurance Company
(“FDIC”), is represented by counsel, Scott Malm, for counsel of record Frank Tomkins.

Mr. Malm notifies the Court that he received an email from Richard Nye, counsel for
Defendant, PrimeAZ/Libra LLC, waiving his appearance at today’s hearing due to a scheduled
medical appointment.

A record of the proceedings is made digitally in lieu of a court reporter.

Oral argument is presented.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2010-000707

12/11/2017

Docket Code 005
Form V000A
Page 2

For the reasons set forth on the record,

THE COURT FINDS that Markham’s lien amount is a liquidated sum for purposes of
pre-judgment interest.

The Court emphasizes the need for thorough supplemental briefing on FDIC’s claims of
immunity.

2:13 p.m. Hearing concludes.

LATER:

IT IS ORDERED increasing the page limit for the supplemental briefing on FDIC’s
claims of immunity to 12 pages.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
01/07/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
12/20/2012
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
C. Danos
Deputy
MARKHAM CONTRACTING CO INC
KAREN A PALECEK
v.
PINNACLE POINT DEVELOPERS L L C, et al.
TIMOTHY W BARTON
JERRY L COCHRAN
2929 E CAMELBACK ROAD
SUITE 118
PHOENIX AZ 85016
RICHARD Q NYE
ORAL ARGUMENT SET
The Court has received:
•
Defendant PrimeAZ/Libra, LLC’s Joinder in Motion For Summary Judgment
Against Plaintiff on Count Two of its Amended Complaint and on the First and
Second Claims for Relief in FDIC’s Amended Counterclaim filed November 13,
2012;
•
The Receiver’s Motion for Summary Judgment Against Plaintiff on Count Two of its
Amended Complaint and on the First and Second Claims for Relief in FDIC’s
Amended Counterclaim filed November 6, 2012;

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
12/20/2012
Docket Code 094
Form V000A
Page 2
IT IS ORDERED setting Oral Argument on this matter on March 15, 2013 at 1:30 p.m.
in this division.
Oral argument shall be limited to thirty (30) minutes with the time divided equally
between the parties. Counsel and the parties, if representing themselves, are to appear in person
before:
THE HONORABLE MARIA DEL MAR VERDIN
MARICOPA COUNTY SUPERIOR COURT
OLD COURTHOUSE
125 WEST WASHINGTON
3RD FLOOR, COURTROOM 303
PHOENIX, AZ 85003
602-506-2603 TEL
Court Reporter
The proceeding will take place in the Superior Court’s “e-courtroom.” A record of the
proceedings will be made by videotape and CD in lieu of a court reporter. Should you want an
unofficial copy of the proceedings, the parties or counsel may request a videotape or CD of the
proceedings for a $20.00 charge. If a CD or videotape is requested, please obtain a form from
the Self Center to request a daily copy of a court hearing or trial proceeding being conducted.
Pay the applicable fee at the Self Service Center. Attach the receipt showing payment of the
fee and present both the receipt and the form to the courtroom clerk or bailiff. For copies of
hearings or trial proceedings recorded previously, please call Electronic Records Services
at 602-506-7100. Should an official transcript be required, you may request that the court
prepare it. The party ordering the transcript must pay for it. To request a transcript, call 602-
506-7100 and provide the date of the proceeding, the case number, the case caption, if the
transcript is for an appeal, and your name, address, and telephone number.
If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.
PLEASE NOTE: If/when a party files a pleading within 48 hours of a scheduled event,
the party should also e-mail same to the Court’s Judicial Assistant at the following:
[email protected]

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2010-000707
12/20/2012
Docket Code 094
Form V000A
Page 3
NOTE: COUNSEL SHALL UPLOAD AND E-FILE ALL PROPOSED ORDERS
IN WORD FORMAT ONLY TO ALLOW FOR POSSIBLE MODIFICATIONS BY THE
COURT.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

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