IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

Transcription

1 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF YAVAPAI 0 PRESCOTT SPORTSMANS CLUB, by and) through Board of Directors, ) ) Plaintiff, ) ) vs. ) ) MARK SMITH; TIM MASON; WILLIAM ) "BRIAN" BUSBY; SCOTT RUSSELL; ) JOHN DOE I-X; JANE DOE I-X; and ) DOE COMPANIES I-X, ) ) Defendants. ) ) Yavapai County Superior Court No. P00CV0-00 BEFORE: THE HONORABLE JOHN D. NAPPER JUDGE OF THE SUPERIOR COURT DIVISION YAVAPAI COUNTY COURTHOUSE PRESCOTT, ARIZONA MONDAY, DECEMBER 0, 0 : P.M. SESSION 0 REPORTER'S TRANSCRIPT OF PROCEEDINGS RE: Temporary Restraining Order LISA A. CHANEY, RPR, CSR, CR Certified Reporter Certificate No. 00 Arizona Certified Reporter #00

2 A P P E A R A N C E S On Behalf of the Plaintiff: MUSGROVE DRUTZ KACK & FLACK, PC BY: MS. SHARON M. FLACK, ESQ. W. Iron Springs Road Prescott, Az 0 On Behalf of the Defendants: LAW OFFICES OF LAURA J. TAYLOR, PLLC BY: MS. LAURA J. TAYLOR, ESQ. 00 East Union Street Prescott, Az Arizona Certified Reporter #00

3 MONDAY, DECEMBER 0, 0 : P.M. SESSION (Appearance as heretofore noted.) 0:PM 0:PM 0:PM 0:PM 0:PM 0 0 THE COURT: Okay. We are here in P00CV0-00. It's Prescott Sportsmen's Club, by and through the Board of Directors versus Mark Smith, Tim Mason, William Brian Busby and Scott Russell. I have Ms. Flack here on behalf of the Plaintiffs. I have Ms. Taylor here on behalf of the Defendants. We have the Defendants with us here in court. Counsel, I did receive a Motion to Dismiss that was filed by Ms. Taylor. I received a response and reply. I'm not sure when that was filed, Ms. Flack, but I have not had an opportunity to review that pleading and didn't know that it had been filed until I took the bench. I also have a letter that was filed by George Gaskill indicating that he would be present in court with counsel. So, Ms. Flack, welcome to you. I know that you are here replacing Mr. Jolley. MS. FLACK: Yes, Your Honor. Arizona Certified Reporter #00

4 0:PM 0:PM 0:PM 0:PM 0:PM 0 0 THE COURT: Counsel, as I said I read the Motion to Dismiss. I have not had a chance to review the response and reply. I'm not sure that we can address any of the issues here in court this afternoon that are currently before the court and would propose that we set it for an oral argument and an Evidentiary Hearing to determine whether or not the Temporary Order -- Restraining Order should issue. Ms. Flack. MS. FLACK: Your Honor, I agree that, you know, we're probably in a position to hear the oral argument -- hear oral argument on the Motion to Dismiss, although, I would submit that it is premature in that the issues that are set forth in the Motion to Dismiss are premature and it's a question of fact. With respect to having an Evidentiary Hearing, you know, we could potentially proceed on a Temporary Restraining Order or -- and/or move to some type of Preliminary Injunction Hearing. The major concern, and I think the parties may have common ground on this particular issue, is that this Club is the management, or concessionary, if you will, for the Chino Valley Shooting Range facility. And there's agreement, a management agreement, with the Town of Chino Valley, and the Arizona Certified Reporter #00

5 0:PM 0:0PM 0:0PM 0:0PM 0:0PM 0 0 concern is that Chino Valley has closed this range and it is closed pending the outcome of an Evidentiary Hearing or pending some order from the court concerning who has authority, basically, to operate this Club. And I might propose that, you know, maybe the parties could confer with each other through counsel to see if some sort of stipulation could be entered into in the interim to allow this Club to open and maybe it would be with court oversight in terms of a stipulation with an order. THE COURT: I would certainly be willing to entertain any order that the parties stipulate to is appropriate for me to issue, I don't have a problem with that, if that's what you mean by court oversight. If what you mean is that the court will have oversight in the running of the Club, I will not be doing that, so -- MS. FLACK: I understand. THE COURT: -- whatever the two of you reach as far as an agreement goes I'll certainly be willing to entertain it. Ms. Taylor. MS. TAYLOR: Judge, I don't disagree that the range needs to be reopen, and if we can work towards that goal, I'm not opposed. I did file this morning a reply to Arizona Certified Reporter #00

6 0:PM 0:PM 0:PM 0:PM 0:PM 0 0 Ms. Flack's response. I also filed over the weekend a Notice of Lodging, an additional exhibit, listing the current Board of Directors for the Prescott Sportsmen's Club. And so the issue for me really boils down to who is Prescott Sportsmen's Club and are we going to litigate that issue, because just for argument's sake, assuming that we agreed to the remedy that was requested by the Plaintiff, that's already been granted. The current Prescott Sportsmen's Club is already in possession of their property, their records, their computer files and so the remedy can't be granted that is requested in this motion. THE COURT: Well, that's if you're right. If you're wrong, then all of the stuff needs to go back to the other -- MS. TAYLOR: Well, are we going -- THE COURT: -- side. MS. TAYLOR: -- to litigate the issue of whether Mr. Gaskill and -- THE COURT: It sounds like we might be. I don't know the answer to that. I can set that for an Evidentiary Hearing. We clearly have a disputed fact about who -- and what I would be setting the Evidentiary Hearing for would simply be on whether or not a Arizona Certified Reporter #00

7 0:PM 0:PM 0:PM 0:PM 0:PM 0 0 Preliminary Injunction should issue requiring the property and records to be returned to Mr. Gaskill. If Mr. Gaskill isn't successful, then your client would maintain those records and property. If Mr. Gaskill is successful, I assume that the property would be returned to him. I've read your papers. I didn't -- as I said, I didn't have a chance to read Ms. Flack's response. I also didn't get a chance to review your reply. These things do move in rather quick order when we're talking about Temporary Restraining Orders. I'm not inclined to issue a Temporary Order. We can just simply litigate the injunction. I will order that all of those things, essentially, all of the assets be frozen so that your client isn't disposing of any of the property, Ms. Taylor, while we are able to litigate the injunction. Ms. Flack. MS. FLACK: Your Honor -- THE COURT: I mean, it sounds like the parties are going to try to work towards an agreement to reopening the Club if I understand what you're telling me correctly. MS. FLACK: Yes, Your Honor. Yes. I mean, I will reach out to Ms. Taylor and we will discuss the Arizona Certified Reporter #00

8 0:PM 0:PM 0:PM 0:PM 0:PM 0 0 reopening of the range. The -- I mean, if the Defendants are taking the position that, you know, they are the legitimate Board of Directors, then we have a dispute, obviously, and that will need to be an issue for an Evidentiary Hearing and ongoing litigation. THE COURT: All right. If I read Ms. Taylor's papers correctly I think she's alleging that her clients are the appropriate Board of Directors. So I think you have a material dispute of fact over who actually runs -- technically runs the Club -- MS. TAYLOR: And just to clarify -- THE COURT: -- and if we need to litigate it, I don't mind setting an Evidentiary Hearing. MS. TAYLOR: Just to clarify, only one of my Defendants is on the Board. Mr. Russell is both a Plaintiff and a Defendant in this matter. If you say the Prescott Sportsmen's Club is the Plaintiff, then he's both the Plaintiff and the Defendant. The other three are not on the Board. THE COURT: I understand your position. If you are right, then you are right. If you are not right, then that will change the nature of the litigation. How far out -- this doesn't seem like it should be too complicated of a hearing to prepare for. Arizona Certified Reporter #00

9 0:PM 0:PM 0:PM 0:PM 0:PM 0 0 How far out would you like me to set it and how much time would you like me to set aside? We -- MS. FLACK: Your Honor -- THE COURT: I'm sorry, counsel, go ahead. MS. FLACK: Your Honor, I do appreciate the entering of an order to suspend or freeze the assets during the interim period until we can get this back in front of the court. And based on my schedule -- and I haven't had a chance to speak with my clients about their schedule, as far as the holidays go but, I mean, you know, sometime in early to mid-january? THE COURT: Okay. MS. FLACK: Maybe 0 -- within the next 0 days? THE COURT: Do we think we will need a half day? MS. FLACK: Yeah. I believe -- THE COURT: A couple of hours? MS. FLACK: I believe a half day would be appropriate to present our witnesses and evidence. THE COURT: Okay. Ms. Taylor, would you -- MS. TAYLOR: That's fine. Half day is fine, mid-january, preferably not on a Tuesday or a Wednesday. THE COURT: Counsel, I'm booked with jury trials all January. I can double-book you, if you wish, Arizona Certified Reporter #00

10 0 0:PM 0:PM 0:PM 0:PM 0:PM 0 0 and hope that one of those goes away. If you want me to pick a date where you are not double-booked, we're probably looking into February. Ms. Flack, we're probably looking at February 0th as soon as I could get you in for a half day Evidentiary Hearing. MS. FLACK: And you have jury trials through the month of January? THE COURT: I will tell you that these things are often -- they come and go routinely. I can double-book you. You just have to be prepared for us to find a different date if my jury trial does go. MS. FLACK: That's fine, Your Honor, with us. THE COURT: And I can put you on the last day of the jury trial which is usually when the jurors are deliberating. What date -- I'm sorry, Ms. Taylor, I forgot what dates were bad for you. MS. TAYLOR: Tuesdays and Wednesdays. I could do a Wednesday morning not a Wednesday afternoon. THE COURT: I have the afternoon probably of January th. If my jury's deliberating, you can come in and we can -- you'll have to be patient. If the jury is deliberating, they come back with a verdict, you guys Arizona Certified Reporter #00

11 0:PM 0:PM 0:PM 0:PM 0:PM 0 0 may have to give me a moment so I can take the verdict. MS. FLACK: Your Honor, I do have a conflict on January st at the moment. THE COURT: I'm sorry, it's -- the th was the date. MS. FLACK: Oh, I'm sorry. I thought you said the st. MS. TAYLOR: That's fine with me, Judge. MS. FLACK: Yes, Your Honor, that's fine. THE COURT: All right. So I'll set this for an Evidentiary Hearing on January th at :0 in the afternoon. I'll give you from :0 until. Please note for your records, and I'll have the minute entry reflect, I'm double-booking against the trial. If that trial goes, I'll have to move this to a later date. I am going to order that none of the property that is at issue here be disposed of. All of the records, computers, all of those things that Plaintiffs are seeking to have returned need to remain in the Defendants' possession until we get the Evidentiary Hearing concluded. MS. TAYLOR: Judge, can I clarify? MS. FLACK: Your Honor -- THE COURT: Yes. Arizona Certified Reporter #00

12 0:PM 0:PM 0:PM 0:PM 0:PM 0 0 MS. TAYLOR: If the assets of the Club are frozen, there's no way to reopen the range because there are bills that need to be paid including the Range Master's salary, propane bills, and whatnot. THE COURT: This would be a wonderful thing for you and Ms. Flack to discuss and you can file an order with me letting me know what you want me to unfreeze, how you want it unfrozen, how you want the Club to be kept open. I have no idea what the underlining dispute is between the two sides. I'm not informed enough to know based on the papers that I have in front of me, but it seems to me that you both need to start having conversations with one another as one does in litigation. Keeping the Club open is going to be a difficult thing to do, just throwing that out there for everyone's consideration, so -- That is my order for now. I'm going to freeze the assets until we get some agreement from the parties that some of it should be unfrozen so that bills can be paid, but you guys need to have a conversation about this. I'm not capable of untangling that now based on the information I have in front of me. All right. Ms. Flack, do you have anything Arizona Certified Reporter #00

13 0:PM 0:PM 0:0PM 0:0PM 0 0 else you want to put on record, ma'am? MS. FLACK: No, thank you, Your Honor. THE COURT: Okay. Ms. Taylor, do you have anything else you want to put on record, ma'am? MS. TAYLOR: No, Judge. Thank you. THE COURT: If you do reach a stipulated order, you can simply it to -- if the time is of the essence, and you don't want to wait for it to route through the electronic file, just Felicia a copy of the order that you've stipulated to and let her know that one has been electronically filed and we might be able to get it signed and through the system a little bit quicker that way than we would the other way. Okay. MS. FLACK: Thank you, Your Honor. MS. TAYLOR: Thank you. THE COURT: All right. We are adjourned. I will see everyone hopefully on the th unless you reached agreement in the interim. Thank you. MS. FLACK: Thank you, Your Honor. MS. TAYLOR: Thank you. (Whereupon, the proceedings were concluded.) Arizona Certified Reporter #00

14 C E R T I F I C A T E STATE OF ARIZONA ) ) SS. COUNTY OF YAVAPAI ) 0 0 I, Lisa A. Chaney, a Certified Reporter, in the State of Arizona, do hereby certify that the proceedings had in the foregoing entitled matter are contained fully and accurately in the shorthand record made by me thereof, and thereafter reduced to print under my direction; that the foregoing pages constitute a full, true and correct transcript of the said proceedings, all done to the best of my skill and ability. I further certify that I am in no way related to any of the parties hereto nor am I in any way interested in the outcome hereof. Dated at Prescott, Arizona, this th day of December, 0. /s/ Lisa A. Chaney LISA A. CHANEY, RPR, CSR, CR Certified Reporter Certificate No. 00 Arizona Certified Reporter #00