Desert Mountain Club, Inc. v. Thomas Clark and Barbara Clark
1988 04 27 - Clark Dual Membership Agreement
1996 11 11 - Clark Deferred Equity Membership Agreement
2010 11 08 - Turnover Appeal
2013 08 28 - Clark Request for Reissuance
2010 12 21 - Clark Conversion of Equity Membership
2014 01 01 - Clark Resignation Letter
2014 05 23 - Revised Membership Resale Program
2014 10 18 - When a Member Exits the Club
2014 12 29 - Complaint, Desert Mountain Club, Inc. v. Thomas Clark and Barbara Clark
2015 01 01 - 2015 Fee Schedule
2015 01 07 - Email to Desert Forest Members
2015 03 11 - RUMORS message to Desert Mountain Members
2015 03 20 - Revised RUMORS message to Desert Mountain Members
2015 03 23 - Answer to the Complaint, Desert Mountain Club, Inc. v. Thomas Clark and Barbara Clark
2015 04 09 - Notice of Videotaped Deposition of Robert Jones
2015 04 23 - First Amended Notice of Videotaped Deposition of Robert Jones
2015 05 20 - Deposition of Robert Jones II
Christopher Callahan and Seth Schuknecht represented plaintiff Desert Mountain Club, Inc. Chris LaVoy represented Robert Jones in his individual capacity. Daryl Williams represented the defendants Thomas and Barbara Clark. About 20 times the witness was instructed by counsel not to answer a question on grounds that the answer might violate confidentiality provisions of Mr. Jones’ current or former employment contracts. After about two hours, counsel LaVoy adjourned the deposition to seek a protective order from the court.
2015 05 26 - Motion for Judgement on the Pleadings
Defense counsel requests that the court rule in favor of the defendants in this case because nothing cited in the plaintiff’s complaint prevents a member from simply resigning.
2015 05 26 - Jones Motion for Protective Order
Counsel for Robert Jones requests an order from the court prohibiting defense counsel from inquiring into matters covered by the confidentiality clauses in Robert Jones’ employment contracts. In the alternative, counsel requests an order that the deposition of Robert Jones not be disseminated to third parties, such as through DesertMountainGolfScam.com
2015 05 26 - Joinder of DMC, Inc. in Jones Motion for Protective Order and Motion for Order
The Desert Mountain Club joins in the May 26 motion made by counsel for Robert Jones and requests that Robert Jones be allowed to review printed (rather the electronic) copies of any documents at issue.
2015 05 29 - Notice of Videotaped Deposition of Chris LaVoy, Subpoena Duces Tecum and Citation of Authority
Counsel claims it’s ethically improper for LaVoy to represent DMC C.E.O. Robert Jones after LaVoy met with a DMC member seeking representation against DMC for similar claims.
2015 06 04 - Response to Jones Motion for a Protective Order and Motion to Strike
Counsel asks the court to strike the May 26 motion for a protective order on the grounds that (1) it is ethically improper and (2) fails to show good cause.
2015 06 04 - Response to DMC, Inc. Joinder in Jones Motion and Motion to Disqualify LaVoy
Counsel claims that plaintiff has established no grounds for an order preventing disclosure of depositions to nonparties to this litigation or publication on the internet. "Non-profits are supposed to be open books. What possible secret can a non-profit keep from its members-its owners?" Counsel also argues that depositions can be conducted using electronic media and that Mr. LaVoy's involvement in this case is unethical.
2015 06 12 - Response to Defendants' Motion for Judgment on the Pleading
Counsel affirms that the complaint is a proper and sufficient claim for relief.
2015 06 14 - Support for Jones Motion for a Protective Order
DMC, Inc. cites authority for issuing a protective order preventing disclosure of Club policies and procedures. Exhibits include a transcript of the May 20 Jones deposition and a June 15 declaration by lead counsel Callahan.
2015 06 17 - Reply in Support of the Jones Motion for a Protective Order
Counsel for Robert Jones II argues there are no grounds to strike the motion for a protective order.
2015 06 17 - Amended Motion to Quash Subpoena
Counsel for Jones cites four grounds for quashing the subpoena served on LaVoy.
2015 06 18 - Reply in Support of Motion for Judgement on the Pleadings
Counsel claims that nothing prevents the defendants from simply abandoning their interest by resignation and thereby forfeiting all refund rights.
2015 06 25 - Motion to Dismiss Graham Case
2015 07 09 - Defendants withdraw their motion to disqualify Fennemore Craig
2015 08 19 - 1:30 PM. Hearing on pending motions. This hearing is open to the public. Maricopa County East Court Building, Courtroom 713, 101 West Jefferson Street, Phoenix, Arizona. 85003.
2015 07 15 - Response to Motion to Dismiss, Graham
2015 07 20 - Clark Answers to Interrogatories
The Clarks claims that Club mismanagement has turned what was promoted as a valuable membership into a liability, rendering the membership agreement unenforceable. Further, bylaws can not be amended to compromise ownership rights or to penalize members.
2015 07 28 - Denying Request for Default Against Graham
2015 08 05 - Order Denying Motion to Dismiss
2015 08 18 - Graham Answer to Complaint
2015 08 19 - Hearing Summary
2015 09 24 - Case Status Report
Plaintiff and defendants request delay in scheduling a trial until Judge Bergin rules on the motion for a summary judgment.
2015 10 01 - Order Delaying Status Report
The court grants the request to extend the deadline to file the status report until December 11, 2015.
2015 10 19 - Ruling on Motions Argued August 19, 2015
2015 10 27 - From the Boardroom: Walk-Away Litigation Update
2015 10 29 - Motion to Consolidate Cases
Plaintiff requests that the Clark and Graham cases be consolidated.
2015 10 30 - Joint Status Report for Rule 16 Pretrial Conference
2015 11 01 - Court Refuses to Let Club Members Withdraw
2015 11 02 - Response to Motion by DMW to Withdraw
2015 11 04 - Minute Entry denying DMW Motion to Withdraw
2015 11 05 - Pretrial Conference on 12-17-15 at 10 AM, 101 W. Jefferson, Room 713, Phoenix, AZ
2015 11 06 - Motion for Reconsideration of Denial of Clark Motion for Judgment on the Pleadings
2015 11 12 - Plaintiff Ordered to Respond to Motion for Reconsideration
2015 11 15 - Agree to Consolidate Cases
Defendants agree to consolidate the three cases.
2015 11 25 - Denial of Clark Motion to Reconsider
2015 12 11 - Case Status Report, Graham
2015 12 14 - Order Consolidating 3 Cases
The Clark and Graham cases are consolidated under case number CV2014-015333.
2015 12 15 - Order for Telephone Conference
2016 01 11 - Declaration of DM CFO, Graham
2016 01 11 - Motion for a Summary Judgment,Clark
Plaintiff asks for a summary judgment based on the October 19, 2015 decision.
2016 01 11 - Motion for Summary Judgment, Graham
2016 01 12 - Facts Supporting Summary Judgment Against Clark
Plaintiff supports their clam the Clarks are not permitted to resign from the Club.
2016 01 12 - Facts Supporting Summary Judgment Against Graham
Plaintiff supports their clam the Grahams are not permitted to resign from the Club.
2016 01 13 - Declaration of DM CFO, Clark
Includes section 4.6.3 of Club bylaws which grants to members the refund rights provided in their original agreement.
2016 01 13 - Declaration of DM CFO, Graham
2016 01 20 - Order Vacating Status Conference
2016 01 22 - Phone Conference Cancelled
2016 01 22 - Substitution of Counsel
2016 01 25 - Order to Strike Attorney Fees Denied
2016 01 26 - Motion to Compel Responses
Defendants ask that the Club be required to disclose details about each member who has resigned.
2016 01 26 - Declaration Supporting Motion to Compel Responses
Consultation between counsel did not resolve the dispute about disclosure of details about resigned members.
2016 01 26 - Declaration Supporting Motion for Delay
Declaration of Michael C Blair.
2016 01 26 - Order Denying Motion to Vacate Summary Judgment
2016 01 26 - Request for Delay in Ruling on Summary Judgment
Defendants ask that any decision on plaintiff’s motion for a summary judgment be delayed until plaintiff responds to defendants’ request for details about resigned members.
2016 01 28 - Order for Status Conference
Plaintiff’s motions for summary judgment is held in abeyance until after a March 3 phone conference.
2016 02 04 - Order Deleting SSAN from Complaint
Public filings which included SSAN of defendants are removed.
2016 02 05 - Request for Clarification of Minute Order
Plaintiff requests a modification of the February 4 ruling which preserves the October 19, 2015 ruling granting summary judgment.
2016 02 05 - Revising the February 4, 2016 Minute Order
The order is revised to clarify that the remainder of minute entry stands.
2016 02 10 - Order for Telephone Conference
Phone conference scheduled on Motion for Clarification of the February 4, 2016 Minute Entry
2016 02 12 - Oral Argument Set
2016 02 12 - Response to Motion to Compel Answers
Plaintiff claims the January 26, 2016 Motion to Compel Answers about fees charged resigned members is an overbroad “fishing expedition” for confidential information which is neither relevant nor reasonably calculated to lead to admissible evidence. What others paid to resign is irrelevant because bylaws give the Board authority to charge some a resignation fee and not others.
2016 02 12 - Response to Request for Delay in Ruling
Counsel argues the pending Motion to Compel Answers is not a reason to delay ruling on the motion for summary judgment against Clark and Graham.
2016 02 17 - Correction of Clark Exhibits
Motion for summary judgment is revised to delete SSAN.
2016 02 17 - Correction of Exhibits
2016 02 17 - Correction of Graham Exhibits
Motion for summary judgment is revised to delete SSAN.
2016 02 17 - Motion to Compel Answers, Errata
Includes the statement required by local rule 3.2(h) on why answers to interrogatories are deficient.
2016 02 17 - Notice of Refiling Exhibits
2016 02 24 - Minute Order on Settlement Negotiations
The Desert Mountain Club has applied for a Rule 54(b) judgment against one of three defendants. Arizona Civil Procedure Rule 54(b) allows a court to enter a final judgment against one party before the Graham and Clark cases are decided. A Rule 54(b) order would prevent re-opening the judgment if Clark and Graham win their cases on other grounds.
2016 02 29 - Reply to Request for RuIe 56[f) Relief
Counsel explains why a hearing on plaintiff’s motion for a summary judgment should be delayed until plaintiff provides details about resignation fees charged by the Club. “This is no fishing expedition.”
2016 02 29 - Reply to Response to Compel Answers
“The response reads as if plaintiff believes it has already won so it does not need to be bothered with complying with the rules of discovery. Contrary to plaintiff’s wishes, though, the case is far from over and defendants still get to mount a defense. The relevant information plaintiff refuses to produce is essential to that defense.”
2016 03 04 - Order for April 1 Hearing on Discovery
2016 04 01 - Hearing on the Motion to Compel Answers
The court ordered The Desert Mountain Club to produce by April 29 contact information for all former members who have left the club since December 2010. A protective order will be entered to protect the confidentiality of that information. Counsel for plaintiff argued at the hearing that Arizona Revised Statutes § 10-3610 does not prevent the Board from discriminating against specific members. The Board does not have to follow Club bylaws section 4.7 (“Refund of Membership Contribution”) when assessing transfer fees. For example, the Board could allow a few members to resign with no transfer fee. Some could be charged a reduced fee. Others could be sued for $100,000. It’s entirely up to the Board.
2016 04 19 – Ordering Release of Names of Resigned Members
2016 04 29 - Desert Mt. Complies with Order to Release Names
2016 09 16 – Defendants' Response to Plaintiff's Motion for Summary Judgment (Sealed)
2016 09 16 – Defendants' Response to Plaintiff's Separate Statement of Facts (Sealed)
2016 11 14 - Oral argument on Desert Mountain’s January 11, 2016 motions for summary judgment against Clark and Graham. Courtroom 5A (Judge Gass), East Court Building, 10 AM, 101 W. Jefferson, Phoenix, AZ. 85003-2243.
Daryl Williams represented defendants Clark and Graham. Chris Callahan represented plaintiff Desert Mountain. Also seated at the counsel tables: Bob Jones (Desert Mountain COO) and Annelise Dominguez (attorney for defendants). Judge Gass opened the hearing by noting that he was inclined to rule in favor of Desert Mountain for the same reasons that Judge Bergin ruled in favor of Desert Mountain in the motion for a summary judgment. Judge Gass asked counsel for defendants for reasons why his decision on this motion should be any different. Were there critical time differences? Judge Gass mentioned the decision in the recent Callawassie Island Members Club case (790 S.E.2d 435, August 2016) where the appellate court found ambiguity in the club documents and ruled in favor of defendants who resigned their membership. Judge Gass added that he found no ambiguity in the Desert Mountain bylaws, though he was willing to be persuaded otherwise. Daryl Williams argued that Arizona Revised Statutes 10-3620 gave members of a non-profit corporation the right to resign at any time subject to conditions in the bylaws. A discussion followed on how the statute should be applied to the present facts. Mr. Williams argued that “resignation” is distinct from “surrender”. A surrendering member is not the same as a resigning member. Counsel Callahan argued that the inquiry on this motion has to start with the membership agreement. A membership interest in the Desert Mountain Club is an ownership interest, like owning a car. Members can’t simply ignore their obligation to support the club. There are five ways to surrender a membership (including sale at the market price, sale with a member’s property, legacy transfer, negotiated transfer or death). The bylaws do not allow members to simply quit. The Desert Mountain Club has complied with Arizona law in dealing with walk-away members, following sound business practice in collecting in full from those best able to pay. Judge Gass noted that he did not find treatment of members deposed since July to be inconsistent with Arizona Revised Statutes10-3610. Judge Gass concluded the hearing by saying that he would study Article 4 of the Desert Mountain Club bylaws before ruling on the motion.
2016 11 21 – Court Grants Summary Judgment Against Clark and Graham
2016 12 22 - Judgment Against Clark and Graham
2017 01 10 – Notice of Appeal
2017 02 10 – Acceptance of Appeal, Case number 1 CA-CV 17-0100
2017 03 15 – Satisfaction of Judgment
2017 04 10 – Appellants' Opening Brief
2017 06 16 – Answering Brief of Appellee
2017 07 17 – Reply of Appellants
2018 04 18 – DMC v. Clark Appellate Decision
The appellate court affirmed the decision of the trial court. DMC bylaws do not give members a right to resign without obligation.“By providing a specific list of four ways to divest membership, and by requiring members to continue to pay dues until they have successfully divested their membership, the bylaws effectively bar the possibility of simple resignation.” The court agreed that the process for getting out of the Club is both burdensome and expensive. “Though these criticisms are well-founded, they only describethe contractual arrangement between members and the Club — they do not undo it.”