idaho development, llc v. teton view golf estates, llc

UIdaho LawDigital Commons @ UIdaho Law

Idaho Supreme Court Records & Briefs

11-29-2010

Idaho Development, LLC v. Teton View GolfEstates, LLC Clerk's Record v. 1 Dckt. 37771

Follow this and additional works at: https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs

This Court Document is brought to you for free and open access by Digital Commons @ UIdaho Law. It has been accepted for inclusion in IdahoSupreme Court Records & Briefs by an authorized administrator of Digital Commons @ UIdaho Law. For more information, please [email protected].

Recommended Citation"Idaho Development, LLC v. Teton View Golf Estates, LLC Clerk's Record v. 1 Dckt. 37771" (2010). Idaho Supreme Court Records &Briefs. 2735.https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/2735

https://digitalcommons.law.uidaho.edu?utm_source=digitalcommons.law.uidaho.edu%2Fidaho_supreme_court_record_briefs%2F2735&utm_medium=PDF&utm_campaign=PDFCoverPages

https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs?utm_source=digitalcommons.law.uidaho.edu%2Fidaho_supreme_court_record_briefs%2F2735&utm_medium=PDF&utm_campaign=PDFCoverPages



https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/2735?utm_source=digitalcommons.law.uidaho.edu%2Fidaho_supreme_court_record_briefs%2F2735&utm_medium=PDF&utm_campaign=PDFCoverPages

mailto:[email protected]

I ~TUC \ ........ ,,

LAW CLE ' PREME COURT

o,-nu:

&'TAT£ OFIOAHO

II/AHO Q&Y£J«OPMENT, ~I&

Plllatltr ... ~aslllDI

SEEAUGmTAIIO~RECORD BOUICITTLJ) PROP£BTIES. u,c •

... Psrved11u1 ... Kaa!tH!tlll!

-----C..•,tf-- Sn:m1• ,._, _,,..,,.,s,., "'.,.._"' .,,,., 890nr:Hft c ... 8" ,,_ ilea J. Slltad1di!1 ' /H.fffkf J.

;;11 _, I _ ( . 1 ,1

· J I "

u g~t I Al#lln.,yfM ,,.,.,,,lhmt

' ...__ -, -·--- ;,llhUfwJ'""' ltl'1fl'O'Jtb1 ..... .,., ltl__.J

o"' ~fr!',~,;: '7 ·--- -~ \\::?'6 li I I I• •

IN THE SUPREME COURT OF THE STATE OF IDAHO

IDAHO DEVELOPMENT. LLC a Utah Limited Liability Company

Plaintiff/ Appellant V

TETON GOLF ESTA TES

* * * * * * * * * * * * * * AMENDED

CLERK'S RECORD ON APPEAL

* * * * * * * * * * * * * *

Appeal from the District Court of the Seventh Judicial District of the State ofldaho,

in and for the County of Bonneville

HONORABLE Jon J. Shindurling, District Judge.

Alan R. Harrison, Esq. Attorney at Law 497 N. Capital Avenue, Suite 210 Idaho Falls, ID 83402

Attorney.for Appellant

* * * * * * * * * * * * * *

Karl R. Decker, Esq. HOLDEN, KIDWELL, HAHN & CRAPO P.O. Box 50130 Idaho Falls, ID 83405-0130

Mark R. Fuller, Esq. FULLER & CARR P.O. Box 50935 Idaho Falls, ID 83405-093 5

Jeffrey D. Brunson, Esq. BEARD, ST. CLAIR, GAFFNEY,

McNAMARA & CALDER, PA 2105 Coronado Idaho Falls, ID 83404

Attorneys for Respondents

TABLE OF CONTENTS

Page

Register of Actions, printed 8-2-10 ............................................................................................................ I

Verified Complaint to Foreclose Deed of Trust and Other Actions, filed 7-22-08 .................................. 22

Stipulation, filed 11-3-08 ......................................................................................................................... 49

Order Adopting Stipulation, filed 11-5-08 ............................................................................................... 54

Amended Complaint to Foreclose Deed of Trust and Other Actions, filed 1-12-09 ................................ 57

Stipulation to Amend Complaint, filed 2-3-09 ......................................................................................... 77

Order of Default and Default Judgment, filed 3-44-09 ............................................................................ 80

Defendants' Answer to First Amended Complaint, Counterclaim & Third Patiy Complaint,

Filed 3-24-09 ....................................................................................................................................... 83

Answer and Cross Claim, filed 4-15-09 ................................................................................................. 101

Defendant and Third-Patiy Plaintiff HD Supply Waterworks, LTD.'s Answer, Affirmative

Defenses, Counterclaim, Cross-Claims and Third-Party Complaint, filed 4-23-09 .......................... 122

Schiess & Associates, P.C.'S Answer, Counterclaim, Cross-claim, Third Party Complaint

and Jury De1nand, filed 4-28-09 ........................................................................................................ 159

Stipulation to Set Aside Order of Default and Default Judgment Entered on March

161\ 2009, filed 5-4-09 ...................................................................................................................... 279

Order to Set Aside Default and Default Judgment Entered on March 16, 2009, filed 5-4-09 ............... 288

Minute Entry, dated 5-5-09 .................................................................................................................... 290

Order Setting Pre-Trial Conference and Jury Trial, filed 5-5-09 ........................................................... 292

Schiess & Associates, P.C.'S Answer to Depatco INC."S Cross Claim, filed 5-5-09 ........................... 296

Plaintiffs Answer to Depatco's Cross Claim, filed 5-7-09 ................................................................... 304

TABLE OF CONTENTS

Plaintiffs Answer to HD Supply Waterworks, LTD's Cross Claim, filed 5-12-09 .............................. 312

Plaintiffs Reply to Schiess Counterclaim, filed 5-18-09 ....................................................................... 3 17

Defendants' Answer to First Amended Complaint, Counterclaim & Third Party

Complaint, filed 5-26-09 ................................................................................................................... 322

Order Allowing Defendant and Third-Party Plaintiff HD Supply Waterworks, LTD.

to Serve Defendants Teton View Golf Estates, L.L.C., Rothchild Properties, LLC,

Western Equity, LLC and Third-Party Defendant Sandra A Macarthur Outside the

State ofldaho In Lieu of Service by Publication, filed 5-27-09 ........................................................ 338

Defendant's Teton View Golf Estates, LLC Rothchild Properties, LLC, and Western

Equity, LLC Answer to Scheiss & Associates, P.C. Cross-Claim, filed 6-1-09 ............................... 341

Depatco, Inc.'s Answer to Schiess & Accociates, P.C.'s Cross-Claim, filed 6-3-09 ............................ 349

Schiess & Accociates, P.C.'s Answer to HD Supply Waterworks, LTD's Cross-Claim,

filed 6-5-09 ........................................................................................................................................ 354

Defendant's Teton View Golf Estates, LLC, Rothchild Properties, LLC, and Western

Equity, LLC', Answer to HD Supply Waterworks, LTD. Cross-Claim, filed 6-10-09 .................... 362

Plaintiffs Reply and Additional Claims to Teton View, Rothchild and Western Equities

Counterclai111, filed 6-16-09 .............................................................................................................. 368

Third-Party Defendants Answer to Teton View and Rothchild Third-Party Complaint,

filed 6-16-09 ...................................................................................................................................... 3 77

Answer, counterclaim, Cross-Claim, and Third-Party Complaint for Judicial Foreclosure

of Deed of Trust, filed 6-1 7-09 ......................................................................................................... 3 81

ZBS, LLC's Answer to Cross-Claim of Schiess & Associates, ............................................................. 382

ZBS, LLC's Answer to Depatco's Cross-Claim, filed 6-17-09 ............................................................ 390

TABLE OF CONTENTS ii

ZBS, LLC's Answert to HD Supply's Cross-Claim, filed 6-17-09 ........................................................ 397

Brad Zundel and Jim Zundel's Answer to Third-Party Complaint of Scheiss & Associates,

Filed 6-17-09 ..................................................................................................................................... 404

Stipulation for Entry of Judgment Against Idaho Title & Trust, filed 7-1-09 ........................................ 415

Scheiss & Associates, P.C.'s Answer to ZBS, LLC's Cross-Claim, filed 7-8-09 .................................. 421

Plaintiffs Reply to ZBS Counterclaim, filed 7-8-09 ............................................................................. 429

Minute Entry, dated 8-10-09 .................................................................................................................. 434

Order, filed 8-12-09 ................................................................................................................................ 436

Stipulation Pursuant to Settlement Agreement, filed 8-14-09 ................................................................ 4 3 7

Order Adopting Stipulation Pursuant to Settlement Agreement, filed 8-18-09 ..................................... 448

Stipulation for Dismissal of Claims Related to Defendant HD Supply Waterworks, LTD.,

filed 11-30-09 .................................................................................................................................... 452

Order Dismissing Defendant HD Supply Waterworks, LTD., filed 12-3-09 ......................................... 463

Order Allowing Default, filed 12-23-09 ................................................................................................. 466

Order Granting Summary Judgment and Default Judgment Against Teton View Golf

Estates, LLC., filed 12-23-09 ............................................................................................................ 468

Affidavit of Mark R. Fuller, filed 1-5-10 ............................................................................................... 473

Motion for Partial Slummary Judgment RE: Plaintiffs Secured Claim Priority, filed 1-5-10 .............. 502

Schiess & Associated, P.C,'s Response to Depatco's Motion for Patiial Summary Judgment,

Filed on 1-25-10 ................................................................................................................................ 521

Affidavit of Plaintiffs Counsel in Support of Opposition to Depatco's Motion for

Partial Summary Judgment, filed 1-25-10 ........................................................................................ 526

Plaintiffs Response to Depatco's Motion for Partial Summary Judgment, filed 1-25-10 ..................... 535

TABLE OF CONTENTS iii

Affidavit of David Clark, filed 1-25-10 ................................................................................................. 553

Affidavit of Melinda Boswell, filed 1-25-10 .......................................................................................... 556

ZBS, LLC's Response to DePatco, Il\lC's Motion for Summary Judgment, filed 1-26-10 ................... 563

Plaintiffs response to ZBS and Schiess's Responses to Depatco's Motion for


Second Affidavit of Plaintiffs Counsel in Support of Opposition to Depatco's Motion

for Partial Summary Judgment, filed 1-29-10 .................................................................................. 571

Depatco's Reply in Support of Motion for Partial Summary Judgment, filed in 2-1-10 ....................... 611


Opinion, Decision, and Order on Defendant Depatco's Motion for Paitial Summary

Judg1nent, filed in 4-2-10 .................................................................................................................. 632

ZBS, LLC' s Motion for Summary Judgment, filed 4-6-10 .................................................................... 649

Memorandum in Suppo1i of ZBS, LLC's Motion for summary Judgment, filed 4-6-10 ....................... 654

Affidavit of Steven W. Zundel in Support of ZBS, LLC's Motion for Summary Judgment,

filed 4-6-10 ........................................................................................................................................ 672

Affidavit of Jim Zundel in Support of ZBS, LLC's Motion for Summary Judgment,

Filed 4-6-10 ....................................................................................................................................... 689

Motion for Judgment and Order Approving Settlement Agreement to Perform Joint

Foreclosure and for Certificate of Final Judgment, filed 4-20-10 ..................................................... 712

Plaintiffs Response to ZBS Motion for Summary Judgment, filed 4-20-10 ......................................... 721

Affidavit of Melinda Boswell in Opposition to ZBS Summary Judgment, filed 4-20-10 ..................... 726

Affidavit of David Clark in Opposition to ZBS Summary Judgment, filed 4-20-10 ............................. 764

Stipulation for Entry of Judgment Against Amerititle INC., filed 4-27-10 ........................................... 766

TABLE OF CONTENTS iv

Reply Memorandum in Support of ZBS, LLC's Motion for Summary Judgment,

filed 4-27-10 ...................................................................................................................................... 771

Reply Affidavit of Jim Zundel in Support of ZBS, LLC's Motion for Summary Judgment,

Filed 4-27-10 ..................................................................................................................................... 782

Plaintiffs Opposition to Motion for Judgment and Order Approving Settlement Agreement

and for Certification of Final Judgment and Motion for Stay of Execution, filed 4-27-10 ............... 787

Plaintiffs Motion t Reconsider, filed 5-4- l O ......................................................................................... 790

Affidavit of David Clark in Support of Motion for Reconsideration, filed 5-4-10 ................................ 801

Affidavit of Melinda Boswell in Support of Motion to Reconsider, filed 5-4-10 .................................. 806

Order for Default in Favor of Schiess & Associates, P.C. and Against Teton View

Golf Estates, LLC, filed 5-5-10 ......................................................................................................... 856

Order for Default (Teton View), filed 5-5-10 ........................................................................................ 859


Alliance Title & Escrow Corp. 's Answer to Counterclaim and Cross-Claim and Third-Patiy

Complaint filed by ZBS, LLC, filed 5-4-10 ...................................................................................... 865

Judgment, Decree of Foreclosure, and Order of Sale, and Rule 54(b) Certificate,

filed 5-l 1-10 ...................................................................................................................................... 869

Stipulation for Dismissal of Third Party Defendants, Brad Zundel and Jim Zundel,

Filed 5-14-10 ..................................................................................................................................... 879

Motion for Award of Attorney Fees, filed 5-18-10 ................................................................................ 883

Memorandum of Costs; Affidavit of Attorney RE: Attorney Time and Costs,

Filed 5-18-10 ..................................................................................................................................... 891

Judgment and Order Approving Settlement Agreement to Perform Joint foreclosure and

TABLE OF CONTENTS V

Certificate of final Judgment, filed 5-20-10 ...................................................................................... 945

Memorandum of Costs and Attorney's Fees, filed 5-20-10 ................................................................... 950

Affidavit in Support of Memorandum of Costs and Attorney's Fees, filed 5-20-10 ............................. 954

Motion for Attorney Fees and Costs, filed 5-21-10 ............................................................................... 981

Memorandum of Attorney Fees and Costs and Affidavit of Counsel, filed 5-21-10 ............................. 985

Order for Dismissal of Third Party Defendants, Brad Zundel and Jim Zundel, filed 5-24-10 ............. 1011

Plaintiffs Opposition to Motions for Attorney's Fees, filed 6-l-10 .................................................... 1014

Notice of Appeal, filed 6-3-10 ............................................................................................................. 1017

Clerk's Certificate of Appeal, dated 6-7-10 .......................................................................................... 1026

Minute Entry, dated 6-15-10 ................................................................................................................ 1028

Order Awarding Attorney's Fees and Costs, filed 6-l 7-10 .................................................................. 1030

Amended Judgment, Decree of Foreclosure, and Order of Sale and Rule 54(b) Cetiificate,

Filed 6-18-10 ................................................................................................................................... 1034

Order Awarding Attorney Fees and Costs to Depatco, INC., filed 6-18-10 ........................................ 1044

Order Awarding Attorney's Fees and costs to ZBS, LLC, filed 6-18-10 ............................................. 1048

Order Awarding Schiess & Associates, P.C.'s Attorney's Fees and Costs, filed 6-25-10 ................... 1052

Request for Standard Clerk's Record, filed 6-8-10 .............................................................................. 1055

Notice of Transcript Lodged, filed 6-15-10 ......................................................................................... l 058


Transcript Lodged, filed 6-20-10 ......................................................................................................... l 061

Clerk's Certificate, dated 8-3- l O ........................................................................................................... 1062

Clerk's Certificate of Service, ............................................................................................................. 1064

TABLE OF CONTENTS vi

INDEX

Page Affidavit in Suppott of Memorandum of Costs and Attorney's Fees, filed 5-20-10 ............................. 954


Affidavit of David Clark in Suppott of Motion for Reconsideration, filed 5-4-10 ................................ 801



Filed 4-6-10 ....................................................................................................................................... 689

Affidavit of Mark R. Fu lier, filed 1-5-10 ............................................................................................... 4 73

Affidavit of Melinda Boswell in Opposition to ZBS Summary Judgment, filed 4-20-10 ..................... 726

Affidavit of Melinda Boswell in Suppott of Motion to Reconsider, filed 5-4-10 .................................. 806


Affidavit of Plaintiffs Counsel in Support of Opposition to Depatco' s Motion for



filed 4-6-10 ........................................................................................................................................ 672

Alliance Title & Escrow Corp.' s Answer to Counterclaim and Cross-Claim and Third-Party


Amended Complaint to Foreclose Deed of Trust and Other Actions, filed l-12-09 ................................ 57

Amended Judgment, Decree of Foreclosure, and Order of Sale and Rule 54(6) Cettificate,

Filed 6-18-10 ................................................................................................................................... 1034

Answer and Cross Claim, filed 4-15-09 ................................................................................................. 101


INDEX vii

of Deed of Trust, filed 6-17-09 ......................................................................................................... 381


Filed 6-17-09 ..................................................................................................................................... 404



Clerk's Certificate, dated 8-3-10 ........................................................................................................... 1062

Defendant and Third-Party Plaintiff HD Supply Waterworks, LTD.'s Answer, Affirmative


Defendant's Teton View Golf Estates, LLC Rothchi Id Prope1ties, LLC, and Western




Defendants' Answer to First Amended Complaint, Counterclaim & Third Paiiy Complaint,

Filed 3-24-09 ....................................................................................................................................... 83

Defendants' Answer to First Amended Complaint, Counterclaim & Third Paiiy

Co,nplaint, filed 5-26-09 ................................................................................................................... 322






filed 5-11-10 ...................................................................................................................................... 869

Memorandum in Support of ZBS, LLC's Motion for summary Judgment, filed 4-6-10 ....................... 654

INDEX viii

Memorandum of Attorney Fees and Costs and Affidavit of Counsel, filed 5-21-10 ............................. 985



Filed 5-18-10 ..................................................................................................................................... 891


Minute Ent1y, dated 5-4-10 .................................................................................................................... 863









Motion for Partial Slummary Judgment RE: Plaintiff's Secured Claim Priority, filed 1-5-10 .............. 502


Notice of Transcript Lodged, filed 6-15-10 ......................................................................................... 1058

Opinion, Decision, and Order on Defendant Depatco's Motion for Partial Summary

Judgment, filed in 4-2-10 .................................................................................................................. 632





INDEX ix


Western Equity, LLC and Third-Party Defendant Sandra A Macmihur Outside the




Order Awarding Attorney's Fees and Costs, filed 6-17-10 .................................................................. 1030






Order for Dismissal of Third Party Defendants, Brad Zundel and Jim Zundel, filed 5-24-1 O ............. IO 11




Order Setting Pre-Trial Conference mid Jury Trial, filed 5-5-09 ........................................................... 292

Order to Set Aside Default and Default Judgment Entered on March I 6, 2009, filed 5-4-09 ............... 288

Order, filed 8-12-09 ................................................................................................................................ 436



Plaintiffs Motion t Reconsider, filed 5-4-10 ......................................................................................... 790



INDEX X

Plaintiffs Opposition to Motions for Attorney's Fees, filed 6-1-10 .................................................... 1014


Counterclaim, filed 6-16-09 .............................................................................................................. 368

Plaintiffs Reply to Schiess Counterclaim, filed 5-18-09 ....................................................................... 317






Register of Actions, printed 8-2-10 ............................................................................................................ 1


Filed 4-27-10 ..................................................................................................................................... 782


filed 4-27-10 ...................................................................................................................................... 771




filed 6-5-09 ........................................................................................................................................ 354

Schiess & Associated, P.C,'s Response to Depatco's Motion for Paiiial Summary Judgment,

Filed on 1-25-10 ................................................................................................................................ 521

Schiess & Associates, P.C. 'S Answer to Depatco INC."S Cross Claim, filed 5-5-09 ........................... 296

Schiess & Associates, P.C. 'S Answer, Counterclaim, Cross-claim, Third Party Complaint


INDEX xi

Second Affidavit of Plaintiff's Counsel in Support of Opposition to Depatco' s Motion



filed 11-30-09 .................................................................................................................................... 452


Filed 5-14-10 ..................................................................................................................................... 879



Stipulation Pursuant to Settlement Agreement, filed 8-14-09 ................................................................ 437



16th, 2009, filed 5-4-09 ...................................................................................................................... 279



filed 6-16-09 ...................................................................................................................................... 377

Transcript Lodged, filed 6-20-10 ......................................................................................................... 1061





ZBS, LLC's Motion for Summary Judgment, filed 4-6-10 .................................................................... 649

ZBS, LLC's Response to DePatco, INC's Motion for Summary Judgment, filed 1-26-10 ................... 563

INDEX xii

IN THE SUPREME COURT OF THE STATE OF IDAHO

IDAHO DEVELOPMENT. LLC a Utah Limited Liability Company

Plaintiff/ Appellant V

TETON GOLF EST ATES

**************

CLERK'S RECORD ON APPEAL

**************

Appeal from the District Coutt of the Seventh Judicial District of the State of Idaho,

in and for the County of Bonneville

HONORABLE Jon J. Shindurling, District Judge.

Alan R. Harrison, Esq. Attorney at Law 497 N. Capital Avenue, Suite 210 Idaho Falls, ID 83402

Attorney for Appellant

* * * * * * * * * * * * * *

Karl R. Decker, Esq. HOLDEN, KIDWELL, HAHN & CRAPO P.O. Box 50130 Jdaho Falls, ID 83405-0130

Mark R. Fuller, Esq. FULLER & CARR P.O. Box 50935 Idaho Falls, ID 83405-0935

Jeffrey D. Brunson, Esq. BEARD, ST. CLAIR, GAFFNEY,

McNAMARA & CALDER, PA 2105 Coronado Idaho Falls, ID 83404

Attorneys for Respondents

TABLE OF CONTENTS

Page

Register of Actions, printed 8-2-10 ............................................................................................................ 1






Defendants' Answer to First Amended Complaint, Counterclaim & Third Party Complaint,

Filed 3-24-09 ....................................................................................................................................... 83

Answer and Cross Claim, filed 4-15-09 ................................................................................................. l 0 l



Schiess & Associates, P .C. 'S Answer, Counterclaim, Cross-claim, Third Party Complaint



16th, 2009, filed 5-4-09 ...................................................................................................................... 279




Schiess & Associates, P.C. 'S Answer to Depatco INC."S Cross Claim, filed 5-5-09 ........................... 296

Plaintiff's Answer to Depatco's Cross Claim, filed 5-7-09 ................................................................... 304


TABLE OF CONTENTS


Complaint, filed 5-26-09 ................................................................................................................... 322






Equity, LLC Answer to Scheiss & Associates, P .C. Cross-Claim, filed 6-1-09 ............................... 341



filed 6-5-09 ........................................................................................................................................ 354




Counterclaiin, filed 6-16-09 .............................................................................................................. 368


filed 6-16-09 ...................................................................................................................................... 3 77







TABLE OF CONTENTS ii

Filed 6-17-09 ..................................................................................................................................... 404





Order, filed 8-12-09 ................................................................................................................................ 436




filed 11-30-09 .................................................................................................................................... 452





Affidavit of Mark R. Fuller, filed 1-5-10 ............................................................................................... 4 73


Schiess & Associated, P.C,'s Response to Depatco's Motion for Partial Summary Judgment,

Filed on 1-25-10 ................................................................................................................................ 521






TABLE OF CONTENTS iii

ZBS, LLC's Response to DePatco, INC's Motion for Summary Judgment, filed 1-26-10 ................... 563

Plaintiff's response to ZBS and Schiess's Responses to Depatco's Motion for


Second Affidavit of Plaintiffs Counsel in Sup port of Opposition to Depatco' s Motion





Judg1nent, filed in 4-2-10 .................................................................................................................. 632




filed 4-6-10 ........................................................................................................................................ 672

Affidavit of Jim Zundel in Support ofZBS, LLC's Motion for Summary Judgment,

Filed 4-6-10 ....................................................................................................................................... 689







filed 4-27-10 ...................................................................................................................................... 771


TABLE OF CONTENTS iv

Filed 4-27-10 ..................................................................................................................................... 782










Alliance Title & Escrow Corp.'s Answer to Counterclaim and Cross-Claim and Third-Party



filed 5-l 1-10 ...................................................................................................................................... 869


Filed 5-14-10 ..................................................................................................................................... 879

Motion for Award of Attorney Fees, filed 5-l 8-10 ................................................................................ 883


Filed 5-18-10 ..................................................................................................................................... 891




Affidavit in Support of Memorandum of Costs and Attorney's Fees, filed 5-20-10 ............................. 954

TABLE OF CONTENTS V


Memorandum of Attorney Fees and Costs and Affidavit of Counsel, filed 5-21-1 0 ............................. 985

Order for Dismissal of Third Party Defendants, Brad Zundel and Jim Zundel, filed 5-24-10 ............. IO 11

Plaintiffs Opposition to Motions for Attorney's Fees, filed 6-1-10 .................................................... 1014





Amended Judgment, Decree of Foreclosure, and Order of Sale and Rule 54(b) Certificate,

Filed 6-18-10 ................................................................................................................................... 1034





Notice of Transcript Lodged, filed 6-15-10 ......................................................................................... 1058


Transcript Lodged, filed 6-20-1 0 ......................................................................................................... 1061



TABLE OF CONTENTS vi

INDEX

Page

Affidavit in Support of Memorandum of Costs and Attorney's Fees, filed 5-20-1 0 ............................. 954

Affidavit of David Clark in Opposition to ZBS Summary Judgment, filed 4-20-1 0 ............................. 764




Filed 4-6-10 ....................................................................................................................................... 689

Affidavit of Mark R. Fuller, filed 1-5-10 ............................................................................................... 4 73






filed 4-6-10 ........................................................................................................................................ 672

Alliance Title & Escrow Corp.'s Answer to Counterclaim and Cross-Claim and Third-Party


Amended Judgment, Decree of Foreclosure, and Order of Sale and Rule 54(b) Ce1tificate,

Filed6-18-10 ................................................................................................................................... 1034

Answer and Cross Claim, filed 4-15-09 ................................................................................................. l O l



INDEX yjj


Filed 6-1 7-09 ..................................................................................................................................... 404

Cl erk' s Certificate of Service, ............................................................................................................. 1064









Defendants' Answer to First Amended Complaint, Counterclaim & Third Party Complaint,

Filed 3-24-09 ....................................................................................................................................... 83


Complaint, filed 5-26-09 ................................................................................................................... 322

Depatco, Jnc.'s Answer to Schiess & Accociates, P.C.'s Cross-Claim, filed 6-3-09 ............................ 349





filed 5-l 1-10 ...................................................................................................................................... 869


Memorandum of Attorney Fees and Costs and Affidavit of Counsel, filed 5-21-1 0 ............................. 985

INDEX viii



Filed 5-18-10 ..................................................................................................................................... 891

l'vfinute Entry, dated 2-8-10 .................................................................................................................... 63 0











Notice of Appeal, filed 6-3-10 ............................................................................................................. I O 1 7

Notice of Transcript Lodged, filed 6-15-10 ......................................................................................... I 058


Judgment, filed in 4-2-10 .................................................................................................................. 632






INDEX ix






Order Awarding Schiess & Associates, P.C.'s Attorney's Fees and Costs, filed 6-25-10 ................... I 052





Order for Dismissal of Third Party Defendants, Brad Zundel and Jim Zundel, filed 5-24-10 ............. 101 l






Order, filed 8-12-09 ................................................................................................................................ 436






Plaintiffs Opposition to Motions for Attorney's Fees, filed 6-l-10 .................................................... 1014

INDEX X


Counterclai1n, filed 6-16-09 .............................................................................................................. 368






Register of Actions, printed 8-2-1 0 ............................................................................................................ 1


Filed 4-27-10 ..................................................................................................................................... 782


filed 4-27-10 ...................................................................................................................................... 771


Scheiss & Associates, P.C. 's Answer to ZBS, LLC's Cross-Claim, filed 7-8-09 .................................. 421

Schiess & Accociates, P.C.'s Answer to HD Supply Waterworks, L TD's Cross-Claim,

filed 6-5-09 ........................................................................................................................................ 354

Schiess & Associated, P.C,'s Response to Depatco's Motion for Partial Summary Judgment,

Filed on 1-25-10 ................................................................................................................................ 521

Schiess & Associates, P.C.'S Answer to Depatco INC."S Cross Claim, filed 5-5-09 ........................... 296

Schiess & Associates, P.C.'S Answer, Counterclaim, Cross-claim, Third Party Complaint

and Jury Demand, filed 4-28-09 ........................................................................................................ 159

Second Affidavit of Plaintiffs Counsel in Support of Opposition to Depatco's Motion


INDEX xi


filed 11-30-09 .................................................................................................................................... 452


Filed 5-14-10 ..................................................................................................................................... 879






l 6t11, 2009, filed 5-4-09 ...................................................................................................................... 279



filed 6-16-09 ...................................................................................................................................... 3 77

Transcript Lodged, filed 6-20-10 ......................................................................................................... 1061






ZBS, LLC's Response to DePatco, JNC's Motion for Summary Judgment, filed 1-26-10 ................... 563

INDEX xii

Date: 8/2/201 O

Time: 11 : 18 AM

Page 1 of 21

-,f/".'it'+;

Seventlf:\.liicial District Court - Bonneville --;~e;1""

ROA Report

Case: CV-2008-0004395 Current Judge: Jon J. Shindurling

User: SHULTS

Idaho Development, LLC, a Utah Limited Liability C vs. Teton View Golf Estates, LLC,, etal.

Date

7/22/2008

7/28/2008

10/23/2008

11/3/2008

11/5/2008

1/12/2009

1/20/2009

Code

SMIS

NCOC

NOAP

ASRV

ASRV

ASRV

ASRV

ASRV

STIP

ORDR

CDIS

SIVIIS

COMP

ASRV

User

DOOLITTL

DOOLITTL

DOOLITTL

DOOLITTL

WILLIAMS

WOOLF

WOOLF

WOOLF

WOOLF

WOOLF

ROBBINS

DOOLITTL

GWALTERS

GWALTERS

WOOLF

WOOLF

DOOLITTL

DOOLITTL

DOOLITTL

Judge

Summons Issued Jon J. Shindurling

New Case Filed-Other Claims Jon J. Shindurling

Plaintiff: Idaho Development, LLC, a Utah Limited Jon J. Shindurling Liability C I\Jotice Of Appearance Alan R. Harrison

Filing: A - Civil Complaint for more than $1,000.00 Jon J. Shindurling Paid by: Harrison, Alan R. (attorney for Idaho Development, LLC, a Utah Limited Liability C) Receipt number: 0031303 Dated: 7/24/2008 Amount: $88.00 (Check) For: Idaho Development, LLC, a Utah Limited Liability C (plaintiff)

Miscellaneous Payment: For Making Copy Of Any Jon J. Shindurling File Or Record By The Clerk, Per Page Paid by: Teton View Golf Estates, LLC, Receipt number: 0031728 Dated: 7/28/2008 Amount: $27.00 (Cash)

Affidavit of Service - 7/30/2008 Lynn Spafford Jon J. Shindurling

Affidavit of Service - 7/30/2008 Rothchild Jon J. Shindurling Properties, LLC by serving Lynn Spafford, RA

Affidavit of Service - 7/30/2008 Tony Versteeg Jon J. Shindurling

Affidavit of Service - 7/30/2008 Teton View Jon J. Shindurling Golf Estates, LLC by serving Tony Versteeg, RA

Affidavit of Service - 7/30/2008 Western Jon J. Shindurling Equity, LLC by serving Tony Versteeg, RA

Stipulation Jon J. Shindurling

Letter to Pro Se Defendant Re: Response (why Jon J. Shindurling response cannot be considered formal Answer)

Order Adopting Stipulation: The Stip enterd into Jon J. Shindurling by/between parties on the 22,24 and 25th of October, 2008 is approved, merged and incorporated into this Order. Ds Lynn Spafford and Tony Versteeg are DISMISSED from this case w/prejudice. (see doc for details).

Civil Disposition entered for: Spafford, Lynn, Defendant; Versteeg, Tony, Defendant; Idaho Development, LLC, a Utah Limited Liability C, Plaintiff. Filing date: 11/5/2008

Jon J. Shindurling

Summons Issued (5) Jon J. Shindurling

Complaint Filed - Amended to Foreclose Deed of Jon J. Shindurling Trust and Other Actions

Affidavit of Service - 1-16-09 Schiess & Jon J. Shindurling Associates by serving David Schiess, reg. agent

Acceptance of Service 1-14-09 Rick Hajek for Jon J. Shindurling Amerititle Company

Acceptance of Service 1-16-09 Mark Fuller for Jon J. Shindurling Depatco, Int . ..

Date: 8/2/2010

Time: 11: 18 AM

Page 2 of 21

Sevent{'\{Jicial District Court - Bonneville Coun

ROA Report


User: SHULTS


Date

1/20/2009

1/21/2009

1/26/2009

2/3/2009

2/9/2009

2/10/2009

3/3/2009

3/11/2009

Code

NOAP

CERT

ACKN

NOAP

STIP

NOAP

NOAP

NTTD

AFFD

APDJ

User

DOOLITTL

WILLIAMS

WILLIAMS

WILLIAMS

DOOLITTL

DOOLITTL

DOOLITTL

WOOLF

WOOLF

WOOLF

ROBBINS

ROBBINS

DOOLITTL

DOOLITTL

KBAIRD

KBAIRD

KBAIRD

Acceptance of Service 1-14-09 Douglas Hookland for HD Supply Waterworks, LTD

Judge

Jon J. Shindurling

Defendant: HD Supply Waterworks, LTD. Notice Jon J. Shindurling Of Appearance Douglas R. Hookland

Filing: 17 - All Other Cases Paid by: Hookland, Jon J. Shindurling Douglas R. (attorney for HD Supply Waterworks, LTD.) Receipt number: 0002628 Dated: 1/20/2009 Amount: $58.00 (Check) For: HD Supply Waterworks, LTD. ( defendant)

Certificate Of Service Jon J. Shindurling

Acknowledgement Of Acceptance of Service Jon J. Shindurling 1-16-09 ZBS, LLC by serving Karl R. Decker

Defendant: ZBS, LLC, an Idaho Limited Liability Jon J. Shindurling Company Notice Of Appearance Karl R. Decker

Filing: 17 - All Other Cases Paid by: Decker, Karl Jon J. Shindurling R. (attorney for ZBS, LLC, an Idaho Limited Liability Company) Receipt number: 0003796 Dated: 1/27/2009 Amount: $58.00 (Check) For: ZBS, LLC, an Idaho Limited Liability Company ( defendant)

Stipulation to Amend Complaint Jon J. Shindurling

Miscellaneous Payment: For Making Copy Of Any Jon J. Shindurling File Or Record By The Clerk, Per Page Paid by: FATCO Receipt number: 0006084 Dated: 2/9/2009 Amount: $3.00 (Cash)

Miscellaneous Payment: For Certifying The Same Jon J. Shindurling Additional Fee For Certificate And Seal Paid by: FATCO Receipt number: 0006084 Dated: 2/9/2009 Amount: $1.00 (Cash)

Defendant: Depatco, Inc. Notice Of Appearance Jon J. Shindurling Mark R. Fuller

Filing: 17 - All Other Cases Paid by: Fuller, Mark Jon J. Shindurling R. (attorney for Depatco, Inc.) Receipt number: 0006413 Dated: 2/10/2009 Amount: $58.00 (Check) For: Depatco, Inc. (defendant)

Defendant: Schiess and Associates, P.C., Notice Jon J. Shindurling Of Appearance Jeffrey D. Brunson

Filing: 17 - All Other Cases Paid by: Brunson, Jon J. Shindurling Jeffrey D. (attorney for Schiess and Associates, P.C.,) Receipt number: 0009839 Dated: 3/3/2009 Amount: $58.00 (Check) For: Schiess and Associates, P.C., (defendant)

Notice Of Intent To Take Default Jon J. Shindurling

Affidavit of Plaintiff's counsel in support of entry of Jon J. Shindurling default and default judgment

Application For Entry of Default & Default Jon J. Shindurling Judgment

2

Date: 8/2/201 O

Time: 11:18AM

Page 3 of 21

Sevent icial District Court - Bonneville Cou

ROA Report


User: SHULTS

Idaho Development, LLC, a Utah Limited Liability C vs. Teton View Golf Estates, LLC,, eta!.

Date Code User Judge

3/16/2009 CDIS QUINTANA Civil Disposition entered for: Teton View Golf Jon J. Shindurling Estates, LLC,, Defendant; Rothchild Properties, LLC,, Defendant; Western Equity, LLC,, Defendant; Idaho Development, LLC, a Utah Limited Liability C, Plaintiff. Filing date: 3/16/2009

STATUS QUINTANA Case Status Changed: Closed Jon J. Shindurling

3/18/2009 ORDR QUINTANA Order of Default and Default Judgment Jon J. Shindurling

3/24/2009 WOOLF Filing: 17 - All other Cases Paid by: Lynn Jon J. Shindurling Spafford Receipt number: 0013694 Dated: 3/25/2009 Amount: $58.00 (Check) For: Teton View Golf Estates, LLC, (defendant)

WOOLF Filing: J5 - Special motions, petitions and Jon J. Shindurling pleadings - Third party complaint- this fee is in addition to any fee filed as a plaintiff initiating the case or as a defendant appearing in the case Paid by: Lynn Spafford Receipt number: 0013694 Dated: 3/25/2009 Amount: $14.00 (Check) For: Teton View Golf Estates, LLC, (defendant)

NOAP WOOLF Defendant: Teton View Golf Estates, LLC, Notice Jon J. Shindurling Of Appearance Pro-Se

ANSW WOOLF Defendants' Answer to First Amended Complaint, Jon J. Shindurling Counterclaim & Third Party Complaint

NOAP WILLIAMS Defendant: Rothchild Properties, LLC, Notice Of Jon J. Shindurling Appearance Pro-Se

NOAP WILLIAMS Defendant: Western Equity, LLC, Notice Of Jon J. Shindurling Appearance Pro-Se

3/30/2009 HRSC GWALTERS Hearing Scheduled (Motion 05/04/2009 11 :00 Jon J. Shindurling AM) Mtn to amend default judgment - Alan Harrison to ntc

STATUS GWALTERS Case Status Changed: Closed pending clerk Jon J. Shindurling action

3/31/2009 WOOLF Miscellaneous Payment: For Making Copy Of Any Jon J. Shindurling File Or Record By The Clerk, Per Page Paid by: Holden, Kidwell Receipt number: 0014715 Dated: 3/31/2009 Amount: $21.00 (Check)

4/15/2009 ANSW ROBBINS Answer and Cross Claim filed by Def Depatco, Jon J. Shindurling Inc.,

4/16/2009 ROBBINS Filing: J6 - Special motions, petitions and Jon J. Shindurling pleadings - Cross claim (defendant v. defendant or plaintiff v. plaintiff) Paid by: Fuller, Mark R. (attorney for Depatco, Inc.) Receipt number: 0017329 Dated: 4/16/2009 Amount: $14.00 (Check) For: Depatco, Inc. (defendant)

4/17/2009 IVIOTN WILLIAIVIS IVlotion for Entry of Terms of Default Judgment Jon J. Shindurling

NOTH WILLIAMS Notice Of Hearing 5/4/09 @ 11 :00 a. m. Jon J. Shindurling

NTOS DOOLITTL Notice Of Service ***Answer and Jon J. Shindurling Cross-claim***

3

Date: 8/2/2010

Time: 11 :18 AM

Page 4 of21

Seven icial District Court - Bonneville Cou User: SHULTS

ROA Report




4/21/2009 NTOS WOOLF Notice Of Service (D's 1st Request for Jon J. Shindurling Discovery to ZBS, LLC)

NTOS WOOLF Notice Of Service (D's 1st Request for Discovery Jon J. Shindurling to Teton View Golf Estates, LLC)

NTOS WOOLF Notice Of Service (D's 1st Request for Jon J. Shindurling Discovery to Idaho Development, LLC)

4/22/2009 WOOLF Filing: 17 - All Other Cases Paid by: Spafford, Jon J. Shindurling Lynn (defendant) Receipt number: 0018529 Dated: 4/24/2009 Amount: $58.00 (Cashiers Check) For: Spafford, Lynn (defendant)

WOOLF Filing: J5 - Special motions, petitions and Jon J. Shindurling pleadings - Third party complaint- this fee is in addition to any fee filed as a plaintiff initiating the case or as a defendant appearing in the case Paid by: Spafford, Lynn (defendant) Receipt number: 0018529 Dated: 4/24/2009 Amount: $14.00 (Cashiers Check) For: Spafford, Lynn ( defendant)

WOOLF Miscellaneous Payment: Bad Check Fee Paid by: Jon J. Shindurling Spafford, Lynn Receipt number: 0018530 Dated: 4/24/2009 Amount: $20.00 (Cashiers Check)

NOTH WOOLF Notice Of Hearing 5/04/2009@ 11 :00 AM Jon J. Shindurling

MISC WOOLF Appearance Jon J. Shindurling

MOTN WOOLF Defendant's Motion and Memorandum in Support Jon J. Shindurling of Motion to Vacate Default Judgment and in Opposition to Plaintiff's Motion for Entry of Terms of Default Judgment

AFFD WOOLF Affidavit in Support of Motion to Vacate Default Jon J. Shindurling Judgment

4/23/2009 AI\JSW WILLIAMS Defendant and Third-Party Plaintiff HD Supply Jon J. Shindurling Waterworks, L TD.'s Answer, Affirmative Defenses, Counterclaim, Cross-Claims and Third-Party Complaint

WILLIAMS Filing: J5 - Special motions, petitions and Jon J. Shindurling pleadings - Third party complaint- this fee is in addition to any fee filed as a plaintiff initiating the case or as a defendant appearing in the case Paid by: Hookland, Douglas R. (attorney for HD Supply Waterworks, LTD.) Receipt number: 0018480 Dated: 4/23/2009 Amount: $14.00 (Check) For: HD Supply Waterworks, LTD. ( defendant)

WILLIAMS Filing: J6 - Special motions, petitions and Jon J. Shindurling pleadings - Cross claim (defendant v. defendant or plaintiff v. plaintiff) Paid by: Hookland, Douglas R. (attorney for HD Supply Waterworks, LTD.) Receipt number: 0018480 Dated: 4/23/2009 Amount: $14.00 (Check) For: HD Supply Waterworks, LTD. (defendant)

SIVIIS WILLIAMS Summons Issued - 11 4 Jon J. Shindurling

Jate: 8/2/201 O

Time: 11 :18AM

Page 5 of21

Sevent icial District Court - Bonneville Coun

ROA Report


User: SHULTS


Date

4/23/2009

4/24/2009

4/27/2009

4/28/2009

4/29/2009

4/30/2009

Code

CERT

MEMO

MISC

SMIS

ANSW

CERT

AFFD

CERT

NOTC

User

WILLIAMS

WOOLF

WOOLF

DOOLITTL

DOOLITTL

DOOLITTL

DOOLITTL

DOOLITTL

DOOLITTL

DOOLITTL

DOOLITTL

DOOLITTL

Juqge

Certificate Of Service (Defendant and Third-Party Jon J. Shindurling Plaintiff HD Supply Waterworks, Ltd.'s Answer, Affirmative Defenses, Counterclaim, Cross-Claims and Third Party Complaint)

Depatco's Memorandum in Support of Jon J. Shindurling Defendants' Motion to Vacate Default Judgment and in Opposition to Plaintiffs Motion for Entry of Terms of Default Judgment

Defendant, Schiess & Associates, P.C.'s Joinder Jon J. Shindurling in Opposition to Plaintiffs Motion for Entry of Terms of Default Judgment

Filing: J5 - Special motions, petitions and Jon J. Shindurling pleadings Third party complaint- this fee is in addition to any fee filed as a plaintiff initiating the case or as a defendant appearing in the case Paid by: Brunson, Jeffrey D. (attorney for Schiess and Associates, P.C.,) Receipt number: 0019212 Dated: 4/29/2009 Amount: $14. 00 (Check) For: Schiess and Associates, P.C., (defendant)

Filing: J6 Special motions, petitions and Jon J. Shindurling pleadings Cross claim (defendant v. defendant or plaintiff v. plaintiff) Paid by: Brunson, Jeffrey D. (attorney for Schiess and Associates, P.C.,) Receipt number: 0019212 Dated: 4/29/2009 Amount $14.00 (Check) For: Schiess and Associates, P.C., (defendant)

Summons Issued (2) Jim Zundel and Brad Jon J. Shindurling Zundel

Schiess & Associates, P.C.'s Answer, Jon J. Shindurling Counterclaim, Crossclaim, 3rd Party Complaint and Jury Demand


Affidavit of Douglas R Hookland in Support of Jon J. Shindurling Defendant and 3rd Party Plaintiff HD Supply Waterworks, L TD's Memoarndum in Support of Defendants Teton View Golf Estates, L.L.C., Rothchild Properties, LLC and Western Equity, LLC's Motion to Vacate Default Judgment and in Oppostition to Plaintiff's Motion for Entry of Terms of Default Judgment

Defendant and 3rd-Party Plaintiff HD Supply Jon J. Shindurling Waterworks, L TD's Memorandum in Support of Defendants' Teton View Golf Estates, LLC., Rothchild Properties, LLC and Western Equity, LLC's Motion to Vacate Default Judgment and In Opposition to Plaintiff's Motion for Entry of Terms of Default Judgment


Notice of Appearance by Telephone 5-4-09@ Jon J. Shindurling 11:00 a.m.

5

)ate: 8/2/2010 Seventt,;l'"t~~icial District Court - Bonneville Coun User: SHULTS

Time: 11:18AM ROA Report

Page 6 of 21 Case: CV-2008-0004395 Current Judge: Jon J. Shindurling


Date

5/4/2009

5/5/2009

5/7/2009

5/8/2009

5/12/2009

5/18/2009

5/20/2009

5/21/2009

Code

STIP

ORDR

ANSW

DCHH

HRSC

HRSC

MINE

ORDR

ORPT

ANSW

NTOS

ANSW

NTOS

NTOS

User

GWALTERS

GWALTERS

DOOLITTL

ROBBINS

WILLIAMS

GWALTERS

GWALTERS

GWALTERS

GWALTERS

GWALTERS

GWALTERS

GWALTERS

WILLIAMS

DOOLITTL

WOOLF

WILLIAMS

DOOLITTL

WILLIAMS

DOOLITTL

Judge

Stipulation to Set Aside Order of Default and Jon J. Shindurling Default Judgment entered 3/16/09 (see doc for details)

Order to Set Aside Default & Default Judgment Jon J. Shindurling entered on 3/16/09.

Lis Pendens

Corrected Exhibit A to Schiess & Associates, P.C's Answer Counterclaim Crossclaim, third Party Complaint and Jury Demand

Jon J. Shindurling

Jon J. Shindurling

Schiess & Associates, P C.'s Answer to Depatco, Jon J. Shindurling lnc.'s Crossclaim **fax**

Hearing result for Motion held on 05/04/2009 Jon J. Shindurling 11 :00 AM: District Court Hearing Held Court Reporter: Nancy Marlow Number of Transcript Pages for this hearing estimated: under 100 l\/ltn to amend default judgment & Mtn to vacate default (Hookland to appear telephonically)

Hearing Scheduled (Trial 06/07/2010 01 :30 PM) Jon J. Shindurling

Hearing Scheduled (Pretrial Conference Jon J. Shindurling 05/25/2010 10:00 AM)

Notice of Hearings - PTC set on 5/25/2010 at 10 Jon J. Shindurling AM; CT set on 6/7/2010 at 1:30 PM

Minute Entry on Stat Conf held on 5/4/09 at 11 AM: PTC and CT dates set. Mtn to Amend/Set Aside Default Judgment stipulated to by ptys. (see doc for details).

Order Referring Case to Mediation: Ptys to confer/select mediator no later than June 25, 2009 (see doc for details).

Jon J. Shindurling

Jon J. Shindurling

Order Setting Pretrial Conference/trial: PTC set Jon J. Shindurling on 5/25/10 at 10 AM; CT set on 6/7 /10 at 1 :30 PM (see doc for details).

Plaintiff's Answer to Depatco's Cross Claim Jon J. Shindurling

Notice Of Service (Defendant's 1st Request Jon J. Shindurling for Discovery to Schiess & Associates, P.C.)

Plaintiff's Answer to HD Supply Waterworkss, Jon J. Shindurling L TD's Cross Claim

Plaintiffs Reply to Schiess Counterclaim Jon J. Shindurling

Notice Of Service (Defendant Depatco's 1st Jon J. Shindurling Request for Admissions)

Notice Of Service - (Plaintiffs Answer to Jon J. Shindurling Defendant Depatco's First Request for Discovery)

Acceptance of Service 5-11-09 ZBS, LLC by Jon J. Shindurling serving Karl Decker

6

Date: 8/2/2010

Time: 11 :18 AM

Page 7 of 21


ROA Report


User: SHLIL TS



5/22/2009 MISC WOOLF Defendant and Third-Party Plaintiff HD Supply Jon J. Shindurling Waterworks, LTD.'s Motion to Serve Defendants Teton View Golf Estates, LLC., Rothchild Properties, LLC, Western Equity, LLC and Third-Party Defendant Sandra A. MacArthur Outside the State of Idaho In Lieu of Service by Publication

AFFD WOOLF Affidavit of Douglas R. Hookland in Support of Jon J. Shindurling Defendant and Third-Party Plaintiff HD Supply Waterworks, LTD. 's Motion to Serve Defendants Teton View Golf Estates, LLC, R,)thchild Properties, LLC, Western Equity, LLC and Third-Party Defendant Sandra A. MacArthur Outside the State of Idaho in Lieu of Service by Publication

MISC WOOLF Certificate of Service Jon J. Shindurling

NOTC WILLIAMS Notice of Compliance Jon J. Shindurling

5/26/2009 ANSW WILLIAMS Defendants' (Teton View Golf Estates, Western Jon J. Shindurling Equity, Rothchild Properties) Answer to First Amended Complaint, Countercl;iim & Third Party Complaint

OPLIB GWALTERS Order for Service by Publication by Jon J. Shindurling Defendants/3rd party (see doc fcx details)

5/28/2009 ACKN WILLIAMS Acceptance Of Service - 5/18/09 (Mark Fuller for Jon J. Shindurling Deepatcho, Inc., Daniel Stoddard and Jane Doe Stoddard)

RTOS WILLIAMS Return Of Service - 5/7/09 (Teton View Golf Jon J. Shindurling Estates by delivering to Tony Versteeg, RA)

RTOS WILLIAMS Return Of Service - 5/7/09 (Western Equity, LLC Jon J. Shindurling by delivering to Tony Versteeg, fU\)

RTOS WILLIAMS Return Of Service - 5/7/09 (Rothrriild Properties, Jon J. Shindurling LLC by deliver to Lynn Spaford, fU\)

ASRV WILLIAMS Affidavit of Service - 5/12/09 (Scindra MacArthur Jon J. Shindurling and Trustee of the Sandra A. MacArthur Family Trust)

6/1/2009 ACKN WOOLF Acceptance of Service 5/15/2009 Jeffrey D. Jon J. Shindurling Brunson, Attorney/Schiess & Associates, P.C.

ASRV WOOLF Affidavit of Service - 5/09/2009 AmeriTitle Jon J. Shindurling Company

WILLIAMS Filing: J6 - Special motions, petitions and Jon J. Shindurling pleadings - Cross claim (defend" ,t v. defendant or plaintiff v. plaintiff) Paid by: i ro-Se ( attorney for Teton View Golf Estates, LLC,; Receipt number: 0025663 Dated: 6/8/2009 Amount: $14.00 (Cash) For: Teton View Golf Estates, LLC, ( defendant)

WILLIAMS Defendants' Teton View Golf Est;:ites, LLC, Jon J. Shindurlirig Rothchild Properties, LLC, and \Nestern Equity, LLC, Answer to Scheiss &1ssocic1tes, P.C. Cross-Claim

Date: 8/2/2010

Time: 11 : 18 AM

Page 8 of 21

Sevent icial District Court - Bonneville Cou

ROA Report


User: SHULTS

Idaho Development, LLC, a Utah Limited Liability C vs. Teton V:r,w Golf Estates, LLC,, etal.


6/3/2009 NOAP DOOLITTL Defendant: Macarthur, Sandra A Notice Of Jon J. Shindurling Appearance Kipp L. Manwaring

DOOLITTL Filing: 17 - All Other Cases Paid hy: Manwaring, Jon J. Shindurling Kipp L. (attorney for Macarthur, s,rndra A) Receipt number: 0024715 Dated 6/3/2009 Amount: $58.00 (Check) For: Macarthur, Sandra A (defendant)

Al'.JSW WOOLF Depatco, lnc.'s Answer to Schiess & Associates, Jon J. Shindurling PC's Cross Claim

6/5/2009 ANSW ROBBINS Schiess and Assoc. P.C.'s Answer to HD Supply Jon J. Shindurling Waterworks, L TD's Crossclaim

I\JTOS ROBBINS Notice Of Service Jon J. Shindurling

6/10/2009 ANSW ROBBINS Def Teton View Golf Estates, LLC. Rothchild Jon J. Shindurling Properties, LLC and Wester Equ,·:.1, LLC, Answer to HD Supply Waterworks, LTD. Cross Claim

DOOLITTL Defendants' Teton View Golf Estates, LLC, Jon J. Shindurling Rothchild Properties, LLC, and Western Equity, LLC's Answer to HD Supply Waterworks, LTD> Cross-Claim

6/12/2009 ASRV DOOLITTL Affidavit of Service - 6-2-09 Teton View Golf Jon J. Shindurling Estates by serving Tony Versteeg

ASFI..V DOOLITTL Affidavit of Service - 6-2-09 Western Equity, Jon J. Shindurling LLC by serving Tony Versteeg

ASFI..V DOOLITTL Affidavit of Service - 6-2-09 Pothchild Jon J. Shindurling Properties, LLC by serving Lynn Spafford

6/16/2009 NOAP DOOLITTL Defendant: Boswell, Melinda Notice Of Jon J. Shindurling Appearance Alan R. Harrison

NOAP DOOLITTL Defendant: Clark, David C. Notice Of Appearance Jon J. Shindurling Alan R. Harrison

DOOLITTL Filing: 17 - All Other Cases Paid by: Harrison, Jon J. Shindurling Alan R. (attorney for Boswell, Melinda) Receipt number: 0026954 Dated: 6/16/201J9 Amount: $58.00 (Check) For: Boswell, Me1 1:1da (defendant)

ANSW DOOLITTL 3rd Party Defendants Answer to ·1 • ton View and Jon J. Shindurling Rothchild 3rd-Party Complaint

DOOLITTL Plaintiff's Reply and Additional Cl,1ims to Teton Jon J. Shindurling View, Rothchild, and Western Equity's Counterclaim

6/17/2009 DOOLITTL Filing: J6 - Special motions, petitions and Jon J. Shindurling pleadings - Cross claim (defendar,t v. defendant or plaintiff v. plaintiff) Paid by: Jeff Burton Receipt number: 0027375 Dated 13/17 /2009 Amount: $14.00 (Cash) For: Tete·, View Golf Estates, LLC, (defendant)

8

Date: 8/2/2010 _{t"f[f;:'

Seventlt'/;:_;;licial District Court - Bonneville Coun User: SHULTS

Time: 11 :18AM -t~;;::-'"

ROA Report

Page 9 of 21 Case: CV-2OO8-OOO4395 Current Judge: Jon J. Shindurling



6/17/2009 DOOLITTL Filing: J5 - Special motions, petitions and Jon J. Shindurling pleadings - Third party complaint- this fee is in addition to any fee filed as a plaintiff initiating the case or as a defendant appearing in the case Paid by: Decker, Karl R. (attorney for ZBS, LLC, an Idaho Limited Liability Company) Receipt number: 0027401 Dated: 6/18/2009 Amount: $14.00 (Check) For: ZBS, LLC, an Idaho Limited Liability Company (defendant)

DOOLITTL Filing: J6 - Special motions, petitions and Jon J. Shindurling pleadings - Cross claim (defendant v. defendant or plaintiff v. plaintiff) Paid by: Decker, Karl R. (attorney for ZBS, LLC, an Idaho Limited Liability Company) Receipt number: 0027401 Dated: 6/18/2009 Amount: $14.00 (Check) For: ZBS, LLC, an Idaho Limited Liability Company ( defendant)

SMIS DOOLITTL Summons Issued (2) Jon J. Shindurling

ANSW DOOLITTL Answer, Counterclaim, Cross-Claim, and Jon J. Shindurling 3rd-Party Complaint for Judicial Foreclosure of Deed of Trust

ANSW DOOLITTL ZBS, LLC's Answer to Cross-Claim of Schiess & Jon J. Shindurling Associates

ANSW DOOLITTL ZBS, LLC"s Answer to Depatco's Cross-Claim Jon J. Shindurling

ANSW DOOLITTL ZBS, LLC"s Answer to HD Supply's Cross-Claim Jon J. Shindurling

ANSW DOOLITTL Brand Zundel and Jim Zundel's Answer to Jon J. Shindurling 3rd-Party Compliant of Schiess & Associates

6/19/2009 HRSC GWALTERS Hearing Scheduled (Motion 08/10/2009 09:30 Jon J. Shindurling AM) Mtn for S/J - Fuller to ntc

HRSC GWALTERS Hearing Scheduled (IV1otion 09/08/2009 10:00 Jon J. Shindurling AM) Mtn for S/J - Fuller to ntc

6/22/2009 ASRV WOOLF Affidavit of Service - 5/28/2009 Teton View Jon J. Shindurling Golf Estates, LLC

ASRV WOOLF Affidavit of Service - 5/06/2009 Amerititle Co. Jon J. Shindurling by serving CT Corporation System, RA

ASRV WOOLF Affidavit of Service - 5/26/2009 Sandra Jon J. Shindurling MacArthur

6/25/2009 ASRV WOOLF Affidavit of Service - 5/31/2009 Steve Zundel Jon J. Shindurling for Jim Zundel

7/1/2009 ACKN DOOLITTL Acknowledgement Of Service 6-25-09 Idaho Jon J. Shindurling Title & Trust, Inc. by serving Tammie D. Whyte

STIP DOOLITTL Stipulation for Entry of Judgment Against Idaho Jon J. Shindurling Title & Trust

7/2/2009 NOAP KESTER Defendant: Alliance Title And Escrow Corp Notice Jon J. Shindurling Of Appearance Richard W. Mollerup

9

Date: 8/2/2010

Time: 11 :18 AM

Page 10 of21


ROA Report

Case: CV-2OO8-OOO4395 Current Judge: Jon J. Shindurling

User: SHULTS


Date Ce:de User Judge

7/2/2009 KESTER Filing 11 - Initial Appearance by persons other Jon J. Shindurling than the plaintiff or petitioner Paid by: Mollerup, Richard W. (attorney for Alliance Title And Escrow Corp) Receipt number: 0029722 Dated: 7/2/2009 Amount: $58.00 (Check) For: Alliance Title And Escrow Corp ( defendant)

7/7/2009 NOTC ANDERSEN Notice of Scheduled Mediation (Dwight Baker will Jon J. Shindurling mediate 8/2/09 @ 10:00)

ACKN ANDERSEN Acknowledgement of Acceptance of Service Jon J. Shindurling (Richard Mollerup accepted service for Alliance Title and Trust)

7/8/2009 AI\JSW DOOLITTL Schiess & Associates, P.C.'s Answer to ZBS, Jon J. Shindurling LLC'S Crossclaim (fax)

ROBBINS Plf's Reply to ZBS Counterclaim Jon J. Shindurling

7/9/2009 NOTC KESTER Corrected Notice of Scheduled Mediation **fax** Jon J. Shindurling

7/10/2009 NOTH DOOLITTL Notice Of Hearing 8-10-09@ 9:00 a.m. Jon J. Shindurling

MOTN DOOLITTL Motion for Summary Judgment RE: Breach of Jon J. Shindurling Contract Against Teton View Golf Estates, LLC

AFFD DOOLITTL Affidavit of Greg Stoddard Jon J. Shindurling

AffD DOOLlTTL Affidavit of Mark R. Fuller Jon J. Shindurling

NOTC WOOLF Notice of Non Particiapation Jon J. Shindurling

7/16/2009 MOTN GWALTERS Objection to date Set for Hearing on Mtn for S/J; Jon J. Shindurling Motion to Continue; Mtn to Amend Response to Request for Admissions obo D Teton View (fax)

7/20/2009 ROBBINS Def Teton View's Objection to Date Set for Jon J. Shindurling Hearing on Motion for Summary Judgment, Motion for Continuance, and Motion to Amend Response to Request for Admissions

MOTN ROBBINS Def's Motion to Strike or in the Alternative Motion Jon J. Shindurling to Dismiss Plf's "Additional Claims"

MEMO ROBBINS Def's Memorandum of Points & Authorities in Jon J. Shindurling Support of Motion to Strike or Dismiss Plf's "Additional Claims"

7/23/2009 MOTN DOOLITTL Objection to Motion to Continue and Motion to Jon J. Shindurling Amend Response to Request for Admissions

7/30/2009 NTOS KESTER Notice Of Service (Plaintiff's Answer to Defendant Jon J. Shindurling Depatco's First Request for Discovery)

8/3/2009 NTOS KESTER I\Jotice Of Service (amended response to Jon J. Shindurling Defendant Depatco's First Request for Admissions)

MOTN KESTER Motion for Leave to Withdravv Jon J. Shindurling

8/5/2009 AFFD KESTER Affidavit in Opposition to Motion for Summary Jon J. Shindurling Judgment and in Support of Motion to Amend Answers to Request for Admissions

IVIEMO KESTER Teton View's Memorandum of Points and Jon J. Shindurling Authorities in Opposition to Motion for Summary Judgment 10

)ate: 8/2/2010

nme: 11 : 18 AM

Page 11 of21

Sevent User: SHULTS

ROA Report


Idaho Development, LLC, a Utah Limited Liability C vs. Teton View Golf Estates, LLC., etal.


8/5/2009 NOTC KESTER I\Jotice of Non-Participation Jon J. Shindurling

NOTH KESTER Notice Of Hearing - 8/10/09@ 9 a.m. Jon J. Shindurling

8/6/2009 DOOLITTL Depatco's Reply to Teton View's Opposition to Jon J. Shindurling II/lotion for Summary Judgment

AFFD DOOLITTL Affidavit of Greg Stoddard in Support of Jon J. Shindurling Depatco's Motion for Summary Judgment

AFFD DOOLITTL Affidavit of Daniel R. Beck in Opposition to Jon J. Shindurling Affidavit of Steven K. Walker Filed by Teton View

8/7/2009 DOOLITTL Plaintiffs Objection to Teton View's Motion to Jon J. Shindurling Strike or Dismiss Plaintiffs Additional Claims

AFFD ROBBINS Affidavit in Opposition to Motion for Summary Jon J. Shindurling Judgment and in Supoort of Motion to Amend Answers to request for Admissions

8/10/2009 MINE GWALTERS Minute Entry Jon J. Shindurling Hearing type: II/lotion Hearing date: 8/10/2009 Time: 9:17 am Courtroom: Court reporter: Nancy Marlow Minutes Clerk: Grace Walter·s Tape Number:

DCHH GWALTERS Hearing result for Motion held on 08/10/2009 Jon J. Shindurling 09:30 AM: District Court Hr,aring Held Court Reporter: Nancy Marlow Number of Transcript Pages for this hearing estimated: under 75 Mtn for S/J - Fuller to ntc; Mtn to Amend & Mtn to withdraw; Mtn to Dismiss - Spafford to ntc

8/12/2009 ORDR GWALTERS Order: Os Teton View, Rothchild & Western Jon J. Shindurling Equity shall have 20 days to procure ID bar atty and ntc court (see doc for details). Case is STAYED as to all Court matters. Mediation will proceed as scheduled.

8/13/2009 MISC WOOLF Mediation Status Report Jon J. Shindurling

8/14/2009 STIP WOOLF Stipulation Pursuant to Settlement Agreement Jon J. Shindurling

11

)ate: 8/2/2010

fime: 11 : 18 AM

Page 12 of21

Sevent icial District Court - Bonneville Coun User: SHULTS

ROA Report




8/18/2009 ORDR GWALTERS Order Adopting Stipulation Pursuant to Settlement Jon J. Shindurling Agreement: Stip entered into by ptys on 8/14/09 is approved, merged & incorporated into this Order. Each pty is ordered to comply with all terms/provisions thereof. Cont I, Count II, Count Ill and Count IV of Rothchild and Western Equity's counterclaim against Idaho Development, Melinda Boswell, and David Clark are DISMISSED w/prej. Count I & II of Rothchild & Western Equity's 3rd pty complaint against Idaho Development, Melinda Boswell and David Clark are DISMISSED w/prej. P's amended complaint claims as to Count I & Count 2 with respect to Rothchild & Western Equity are DISMISSED w/prej. P's additional claims against Teton View, Rothechild and Western Equity in Count Ill, Count IV, and Count 5, are DISMISSED w/prej. (see doc for details).

8/26/2009 HRVC GWALTERS Hearing result for Motion held on 09/08/2009 Jon J. Shindurling 10:00 AM: Hearing Vacated Mtn for S/J - Fuller to ntc - Vacated per order on 8/12/09

11/30/2009 STIP LYKE Stipulation for Dismissal of Claims Related to Jon J. Shindurlirig Defendant HD Supply Waterworks, LTD

LYKE Certificate Of Service Jon J. Shindurling

12/3/2009 ORDR GWALTERS Order Dismissing Def HD S11pply Waterworks, Jon J. Shindurlirig LTD: All claims asserted by or against def HD Supply Waterworks, LTD are DISMISSED w/prejudice and without costs or atty fees to any pty.

CDIS GWALTERS Civil Disposition entered for: HD Supply Jon J. Shindurling Waterworks, LTD., Defendant; Idaho Development, LLC, a Utah Umited Liability C, Plaintiff. Filing date: 12/3/2009

12/11/2009 AFFD KESTER Affidavit of Default Jon J. Shindurling

KESTER Miscellaneous Payment: Fe~ Comparing And Jon J. Shindurlirig Conforming A Prepared Rec:ord, Per Page Paid by: Fuller & Carr Receipt number: 0056214 Dated: 12/11/2009 Amount $2.50 (Check)

KESTER Miscellaneous Payment: For Certifying The Same Jon J. Shindurling Additional Fee For Certificate And Seal Paid by: Fuller & Carr Receipt numbr?r: 0056214 Dated: 12/11/2009 Amount: $1.00 (Check)

12/23/2009 EODF GWALTERS Entry of Default as to Def Teton View Golf Jon J. Shindurling Estates, LLC.

OFDJ GWALTERS Order For Default as to Tetnn View GOif Estates, Jon J. Shindurling LLC.

12

)ate: 8/2/2010

Time: 11 : 18 AM

Page 13 of 21

Sevent icial District Court - Bonneville Counf~?';

ROA Report


User: SHLIL TS

Idaho Development, LLC, a Utah Limited Liability C vs. Teton View Golf Estates, LLC 11 etal.


12/23/2009 ORDR GWALTERS Order Granting Summary Judgment and Default Jon J. Shindurling Judgment against Teton View Golf Estates, LLC. DePatco, Inc is awarded Summary Judgment against Teton View Golf Estates in principle amt of $584,638.36, int of $144,719.15, for TOTAL JUDGMENT of $729,357.51. DePatco is granted default judgment against def Teton View Golf Estates, LLC, DePatco has a valid and subsisting lien on real property of Def (see doc for details).

CDIS GWALTERS Civil Disposition entered for: Depatco, Inc., Jon J. Shindurling Defendant; Teton View Golf Estates, LLC,, Defendant. Filing date: 12/23/2009

12/24/2009 HRSC GWALTERS Hearing Scheduled (Motion 02/08/2010 11:30 Jon J. Shindurling AM) Mtn for Part S/J - Fuller to ntc

1/5/2010 Hf~SC GWALTERS Hearing Scheduled (Motion 04/05/2010 11 :00 Jon J. Shindurling AM) Mtn for S/J - Fuller to ntc

NOTH WOOLF Notice Of Hearing RE: Motion for Summary Jon J. Shindurling Judgment 2/08/2010@ 11 :30 AM

AFFD WOOLF Affidavit of Mark R. Fuller Jon J. Shindurling

MOTN WOOLF Motion for Partial Summary Judgment RE: Jon J. Shindurling Plaintiff's Secured Claim Priority

1/25/2010 RESP LYKE Schiess & Associates, P.C.'s Response to Jon J. Shindurling Depatco's Motion for Partial Summary Judgment

/\FFD DOOLITTL Affidavit of Plaintiff's Counsel in Support of Jon J. Shindurling Opposition to Depatco's Motion for Partial Summary Judgment

RESP DOOLITTL Plaintiff's Response to Depatco's Motion for Jon J. Shindurling Partial Summary Judgment

/\FFD DOOLITTL Affidavit of David Clark Jon J. Shindurling

AFFD DOOUTTL Affidavit of Melinda Boswell Jon J. Shindurling

1/26/2010 RESP LYKE ZBS, LLC's Response to DePatco, Inc's Motion Jon J. Shindurling for Summary Judgment

1/29/2010 NTOS KESTER Notice Of Service - (Plaintiff's First Supplemental Jon J. Shindurling Answer to Defendant Depatco's First Request for Discovery)

RESP KESTER Plaintiff's Response to ZBS and Schiess's Jon J. Shindurling Responses to Depatco's Motion for Partial Summary Judgment

AFFD KESTER Second Affidavit of Plaintiffs Counsel in Support Jon J. Shindurling of Opposition to Depatco's Motion for Partial Summary Judgment

2/1/2010 MISC LYKE Depatco's Reply in Support of Motion for Partial Jon J. Shindurling Summary Judgment

13

Date: 8/2/2010

Time: 11 :18 AM

14 of21


ROA Report




2/812010 MINE GWALTERS Minute Entry Jon J. Shindurling Hearing type: Motion Hearing date: 2/8/2010 Time: 11 :35 am Courtroom: Court reporter: Nancy Marlow Minutes Clerk: Grace Walters Tape Number:

DCHH GWALTERS Hearing result for Motion held on 02/08/2010 Jon J. Shindurling 11:30AM: District Court Hearing Held Court Reporter: Nancy Marlow Number of Transcript Pages for this hearing estimated: under 50 Mtn for Part S/J Fuller to ntc

2/23/2010 NOTC WOOLF I\Jotice of Deposition Duces Tecum-Melinda Jon J. Shindurling Boswell

NOTC WOOLF Notice of Deposition Duces Tecum-David Clark Jon J. Shindurling

2/25/2010 NTOS WOOLF I\Jotice Of Service (Schiess & Associates, PC's Jon J. Shindurling First Set of Interrogatories, Requests for Production and Requests for Admissions Propounded to Brad Zundel, Schiess & Associates, PC's First Set of Interrogatories, Requests for Production and Requests for Admissions Propounded to Jim Zundel, Schiess & Associates, PC's First Set of Interrogatories, Requests for Production and Requests for Admissions Propounded to Teton View Golf Estates, LLC and Schiess & Associates, PC's First Set of Interrogatories. Requests for Production and Requests for Admissions Propounded to ZBS, LLC) (fax)

2/26/2010 ~nos DOOLITTL Notice Of Service (First Set of Requests for Jon J. Shindurling Admission, Interrogatories and Requests for Production of Documents to Idaho Development, DePatco, and to Schiess & Associates

3/1/2010 ~nos KESTER Notice Of Service (Plaintiffs First Set of Jon J. Shindurling Interrogatories, Requests for Admission, and Request for Production of Documents to ZBS; to Schiess, to Depatco)

3/5/2010 SUBI KESTER Subpoena Issued (Ameritille) Jon J. Shindurling

3/9 17010 NOTH KESTER Notice Of Hearing Re: Molion for Partial Jon J. Shindurling Summary Judgment on Scr1iess Claim of Lien

F3f~IF KESTER Brief in Support of Motion for Partial Summary Jon J. Shindurling Judgment Re: Defendant Schiess & Associates' Lien Claim

MOTN KESTER Motion for Partial Summary Judgment Re: Jon J. Shindurling Defendant Schiess & Assoc:;otes' Lien Claim

/\FFD KESTER Affidavit of Mark R. Fuller Jon J. Shindurling

r,,HSC LYKE Scr1iess & Associates, P.C.'s Expert Witness Jon J. Shindurling Disclosure 14

Date: 8/2/2010

Time: 11 :18 AM

Page15of21


ROA Report


ldal10 Development, LLC, a Utah Limited Liability C vs. Teton View Golf Estates, LLC,, etal.

Dr1te Code User Judge

3/8<7 010 ~HOS LYKE Notice Of Service - First Supplemental Response Jon J. Shindurling to DePatco, Inc's First Request for Discovery

3/9i2O10 r·rros LYKE Notice Of Service - Plaintiffs Second Jon J. Shindurling Supplemental Answer to Defendant Depatco's First Request for Discovery

MISC LYKE Idaho Development's Expert Witness Disclosure Jon J. Shindurling

3/16/2010 HRSC GWALTERS Hearing Scheduled (Motion 04/02/2010 11 :30 Jon J. Shindurling AM) I\Jltn for S/J

1m.vc GWALTERS Hearing result for Motion held on 04/05/2010 Jon J. Shindurling 11:00 AM: Hearing Vacated Mtn for S/J - Fuller to ntc

GWALTERS Notice of Hearing - Mtn hrg RESET to 4/2/10 at Jon J. Shindurling 11:30AM

3/19/2010 f·!!E::MO LYKE Schiess & Associates, P.C.'s Memorandum in Jon J. Shindurling Response to Depatco's Motion for Summary Judgment Re: Schiess & Associates' Lien Claim

/\FFD LYKE Affidavit of Kurtis J. Roland Jon J. Shindurling

Ar:FD LYKE Affidavit of David Schiess Jon J. Shindurling

/\f~FD LYKE Affidavit of Counsel Jon J. Shindurling

3/2'."<'2010 /\f~FD KESTER Supplemental Affidavit of Counsel **fax** Jon J. Shindurling

3/25/2010 llRSC GWALTERS Hearing Scheduled (Motion 05/04/2010 01 :30 Jon J. Shindurling PM) Mtn for S/J - Beard to ntc

l',IOTC LYKE Notice of Compliance Jon J. Shindurlirig

3/26/2010 H1\VC GWALTERS Hearing result for Motion held on 04/02/2010 Jon J. Shindurling 11:30AM: Hearing Vacated Mtn for S/J

H!~SC GWALTERS Hearing Scheduled (Motion 05/04/2010 01 :00 Jon J. Shindurling PM) Mtn for S/J - Fuller to ntc

MISC LYKE Corrected Exhibit B to Affidavit of David Schiess Jon J. Shindurling

3/7° 1?010 l'J 10S KESTER Notice Of Service (Plaintiffs Answer to ZBS First Jon J. Shindurling Set of Request for Admission, Interrogatories, and Request for Production of Documents)

N!OS KESTER Notice Of Service - (Schiess & Associates, P.C.'s Jon J. Shindurling Response to ZBS, LLC's, Brad Zundel's and Jim Zundel's First Set of Requests for Admission, Interrogatories, and Requests for Production of Documents)

NOTH KESTER Amended Notice Of Hearing Re: Motion for Jon J. Shindurling Partial Summary Judgment on Schiess Claim of Lien

i'JOTC KESTER Notice of Compliance Jon J. Shindurling

i'JOTC KESTER Notice of Compliance Jon J. Shindurling

WHC KESTER Notice of Compliance Jon J. Shindurling

15

Jate: 8/2/2010

Time: 11:18AM

Par'<? 16 of 21

Sevent icial District Court - Bonneville Cou User: SHULTS

ROA Report


ld;iho Development, LLC, a Utah Limited Liability C vs. Teton View Golf Estates, LLC,, eta!.

Dr1t0 C: 0 '.Je User Judge

4r; '<'110 c,mR GWALTERS Opinion, Decision, and Order on Def DePatco's Jon J. Shindurling Mtn for S/J: DePatco's Mtn for Part S/J is GRANTED. ID Development's entire advance to Teton View is recharacterized as a capital contribution and subordinated to the claims of Teton View's legitimate creditors. (see doc for details).

4/5/2010 r.1:rnN QUINTANA Schiess & Associates, P.C.'s Motion for Partial Jon J. Shindurling Summary Judgment (Fax)

r,,1 1=Mo QUINTANA Schiess & Associates, P.C.'s Memorandum in Jon J. Shindurling Support of Motion for Partial Summary Judgment (Fax)

t'.')TH QUINTANA Notice Of Hearing Plaintiffs motion for Partial Jon J. Shindurling Summary Judgment May 4, 2010 at 1 :30 p.m. (Fax)

4/6/2010 hmT DOOLITTL Notice Of Deposition Duces Tecum - David Jon J. Shindurling Schiess

rmoT DOOLITTL I\Jotice Of Deposition Duces Tecum - Kurt Roland Jon J. Shindurling

ll!>IF DOOLITTL Brief Filed in Support of Amended Motion for Jon J. Shindurling Partial Summary Judgment RE: Defendant Schiess & Associates' Lien Claim

;,' r:cD DOOLITTL Affidavit of Mark R. Fuller Jon J. Shindurling

r, 1'HI\J DOOLITTL Amended Motion for Partial Summary Judgment Jon J. Shindurling RD: Defendant Schiess & Associates' Lien Claim

W)TH DOOLITTL Notice Of Hearing on ZBS, LLC's Motion for Jon J. Shindurling Summary Judgment

MUTI\J DOOLITTL ZBS, LLC's Motion for Summary Judgment Jon J. Shindurling

Mi::MO DOOLITTL Memorandum in Support of ZBS, LLC's Motion Jon J. Shindurling for Summary Judgment

/\1-1=0 DOOLITTL Affidavit of Steven W. Zundel in Support of ZBS, Jon J. Shindurling LLC's Motion for Summary Judgment

FD DOOLITTL Affidavit of Jim Zundel in Support of ZBS, LLC's Jon J. Shindurling Motion for Summary Judgment

FD DOOLITTL 2nd Affidavit of David Schiess Jon J. Shindurling

J·JOTC DOOLITTL Notice Regarding Requests for Admissions Jon J. Shindurling Deemed Admitted

I' f"fJL DOOLITTL Schiess & Associates, P.C.'s Application for Jon J. Shindurling Order Entering Default and for Default Judgment Against Teton View Golf Estates and Affidavit of Counsel

r-1!MO DOOLITTL Schiess & Associates, P.C.'s Memorandum in Jon J. Shindurling Support of Motion for Default Judgment and Summary Judgment Against Teton View Golf Estates

4/15/7010 J\IUTC DOOLITTL Notice to Vacate Deposition - Kurt Roland Jon J. Shindurling

t•IUTC QUINTANA Notice to Vacate Deposition -f Ovid Schiess Jon J. Shindurling

4/2()/~~01 0 1\n=D TBROWN Affidavit of Richard Hajek Jon J. Shindurling

JatF S/2/2010

Time: 11 :18AM

Paga 17 of21


ROA Report


User: SHULTS

ld,1110 Development, LLC, a Utah Limited Liability C vs. Teton View Golf Estates, LLC., etal.

o:,te

41--•,· ' ()

4n1nn10

4/''7'"'' 1 ()

4/'.1""'n; 0

5/4/2010

Cude

~KHC

r~UTC

MUTN

t·!OTH

tlOTC

Af FD

J\!=FD

r,,ic:l\/lo

/IJFD

Sf IP

N-iTD

APDJ

MOTN

Af f=D

r !icJE

User

TBROWI\J

TBROWN

TBROWN

TBROWN

TBROWN

TBROWN

TBROWN

TBROWN

TBROWN

TBROWN

TBROWN

TBROWN

TBROWN

TBROWN

GWALTERS

GWALTERS

GWALTERS

GWALTERS

Judge

Notice to Vacate Hearing RE: Motion for PArtial Jon J. Shindurling Summary Judgment on Schiess Claim of Lien

Notice of hearing Re: Moiton for Order Approving Jon J. Shindurling Settlement Agreement to Perform Joint Foreclosure and for Certificate of Final Judgment

Motion for Judgment and Order Approving Jon J. Shindurling Settlement Agreement to Perform Joint Foreclosure and for Cerificate of Final Judgment

Amended Notice of Hearing Jon J. Shindurling

Schiess & Associates P.C.'s Notice of Withdrawal Jon J. Shindurling of Motion for Partial Summary Judgment as to Property

Pl's Response to ZBS Motion for Summary Jon J. Shindurling Judgment

Affidavit of Melinda Boswell in Opposition to ZBS Jon J. Shindurling Summary Judgment

Affidavit of David Clark in opposition to ZBS Jon J. Shindurling Summary Judgment

Reply memorandum in Support of ZBS Motion for Jon J. Shindurling Summary Judgment

Reply AFfd of Jim Zundel in Support of ZBS Jon J. Shindurling II/lotion for Summary Judgment

Stipulation for Entry of Judgment against Jon J. Shindurling Amerititle INC

Notice Of Intent To Take Default For ALLIANCE Jon J. Shindurling TITLE

Application For Default Judgment for TETON Jon J. Shindurling VIEW ONLY

Pl's Opposition to Motion for Judgment and Jon J. Shindurlirig ORder approving settlement agreement and for cert of final judgment and motion for stay of execution

Motion to Reconsider obo P.

Affidavit of David Clark in Spt of Mtn to Reconsider obo P.

Affidavit of Melinda Boswell in spt of Mtn to Reconsider obo P.

Minute Entry Hearing type: Motion Hearing date: 5/4/2010 Time 1:06 pm Courtroom: Court reporter: Jack Fuller Minutes Clerk: Grace Walters Tape Number:

17

Jon J. Shindurling

Jon J. Shindurling

Jon J. Shindurling

Jon J. Shindurling

Date- PI? /2010

Time -11 :18AM

Page 18 of 21

Sevent icial District Court - Bonneville Counf'?~;':'I ~r;,,,;, /

ROA Report


User: SHULTS

ld, 0ho Development, LLC, a Utah Limited Liability C vs. Teton View Golf Estates, LLC,, etal.

Date

5/4/~'''

5/5/2C1 1 ()

5/7 /2" 1 'l

5/11./ ''.l

DCHH

t;r:HH

l!!NC

H!NC

(;! DJ

/\l IN

Jf·MT

r ! './S

User

GWALTERS

GWALTERS

GWALTERS

GWALTERS

GWALTERS

SBARRERA

GWALTERS

GWALTERS

GWALTERS

DOOLITTL

GWALTERS

GWALTERS

Judge

Hearing result for Motion held on 05/04/2010 Jon J. Shindurling 01 :30 PM: District Court Hearing Held Court Reporter: Jack Fuller Number of Transcript Pages for this hearing estimated: under 100 Mtn for S/J - Beard to ntc

Hearing result for Motion held on 05/04/2010 Jon J. Shindurling 01 :00 PM: District Court Hearing Held Court Reporter: Jack Fuller Number of Transcript Pages for this hearing estimated: under 100 Mtn for Judgment & Order -Fuller· to ntc

Hear·ing Scheduled (Motion 07/12/201 O 09:00 Jon J. Shindurling AM) Mtn to reconsider - Harrison to ntc

Hearing result for Pretrial Conference held on Jon J. Shindurling 05/25/2010 10:00 AM: Hearing Vacated

Hearing result for Trial held on 06/07/2010 01 :30 Jon J. Shindurling PM: Hearing Vacated

Alliance Title & Escrow Carp's Answer To Counterclaim, Cross-Claim And Third Party Complaint Filed By ZBS, LLC

Jon J. Shindurling

Notice of Hearing - Mtn hrg set 7/12/10 at 9 AM Jon J. Shindurling

Order For Default in Favor of Schiess & Assoc_ Jon J. Shindurling P.C. ,~nd against Teton View Golf Estates, LLC: Default is entered against Teton View Golf Estates, LLC and in Favor of Schiess & Associates, P.C.

Order For Default Default of crossdefendants, Jon J. Shindurling Teton View is entered as to ZBS.

Affidc.wit Of Interest Jon J. Shindurling

Judgment, Decree of Foreclosure, and Order of Jon J. Shindurling Sale and Rule 54(b) Certificate: (see doc for details).

Civil Disposition entered for: Alliance Title And Jon J. Shindurling Escrow Corp, Defendant; Amerititle Company, Defendant; Boswell, Melinda, Defendant; Clark, David C., Defendant; Depatco, Inc., Defendant; HD Supply Waterworks, LTD., Defendant; Idaho Title & Trust, Inc, Defendant; Macarthur, Sandra A, Defendant; Rothchild Properties, LLC., Defendant; Schiess and Associates, P.C.,, Defendant; Spafford, Lynn, Defendant; Stoddard, Daniel, Defendant; Stoddard, Jane Doe, Defendant; Teton View Golf Estates, LLC,, Defendant; Versteeg, Tony, Defendant; Western Equit:1, LLC,, Defendant; ZBS, LLC, an Idaho Limitr,d Liability Company, Defendant; Zundel, Brad, Defendant; Zundel, Jim, Defendant; Idaho Development, LLC, a Utah Limited Liability C, Plaintiff. Filing date: 5/11/2010

18

Date: S/2/2010

Time 11 :18 AM

Seven~~\'dicial District Court - Bonneville Cou

'';;;';, ROA Report

User: SHULTS

Page 19 of 21 Case: CV-2008-0004395 Current Judge: Jon J. Shindurling

ld;,:10 Development, LLC, a Utah Limited Liability C vs. Teton View Golf Estates, LLC,, etal.

Date

5/11C 1 ()

5/14/2u 1 o

5/18/2010

5/20/7"' 1 D

5/21/'."'010

5/24/2010

6/1/2010

6/3/2010

Cc·•ie

~; 1 l\TUS

s; !P

1n;:sc

C> 1 NT

IJ:<SC

h1( 1 fH

[\ lTN

fdWMO

.. W'!1,~T

f\r:: MO

j\! '-0

l'JrH

MOTN

M[MO

NOTH

Of'.DR

C!i!S

User

GWALTERS

TBROWN

GWALTERS

GWALTERS

GWALTERS

GWALTERS

DOOLITTL

DOOLITTL

DOOLITTL

GWALTERS

SOLIS

SOLIS

SOLIS

ANDERSEN

ANDERSEN

ANDERSEN

GWALTERS

GWALTERS

DOOLITTL

SBARRERA

Judge

Case Status Changed: closed pending clerk Jon J. Shindurling action

Stipulation for Dismissal of 3rd PArty Defs Brad Jon J. Shindurling Zundel and jim Zundel

Hearing Scheduled (Motion 07/19/2010 09:00 Jon J. Shindurling AM) Mtn to reconsider - cont'd due to Ct's schecJule

Hearing result for Motion held on 07/12/2010 Jon J. Shindurling 09:00 AM: Continued Mtn to reconsider -Harrison to ntc

Notice of Hearing - Mtn hrg reset to 7 /19/10 at 9 Jon J. Shindurling AM

Hea1i11g Scheduled (Motion 06/15/2010 02:00 Jon J. Shindurling PM) Mtn for atty fees - Fuller to ntc

Notice Of Hearing RE: Motion for Attorney Fees Jon J. Shindurling

Motion for Award of Attorney Fees Jon J. Shindurling

Memorandum of Costs: Affidavit of Attorney RE: Jon J. Shindurling Attorney Time and Costs

Judgment & Order approving settlement Jon J. Shindurling agreement to perform Joint Foreclosure. (see doc for details).

Merw1randum Of Costs And Attorney's Fees Jon J. Shindurling

Affid;wit Om Support Of Memorandum Of Costs Jon J. Shindurling And /\ttorney's Fees

I\Jotice Of Hearing Re: ZBS Motion For Costs And Jon J. Shindurling Attorney's Fees (06/15/201 O @2:00pm)

Motion for Attorney Fees and Costs

1\/lemorandum of Attorney Fees and Costs and Affidavit of Counsel

Notice Of Hearing (6/15/10 @ 2:00)

Jon J. Shindurling

Jon J. Shindurling

Jon J. Shindurling

Order for Dismissal of 3rd pty Os Brad and Jim Jon J. Shindurling Zund,?I: All claims between these ptys in this actn are DISMISSED w/prej. each pty shall bear own costs/fees.

Civil Disposition entered for: Schiess and Jon J. Shindurling Asscciates, P.C.,, Defendant; Zundel, Brad, Defendant; Zundel, Jim, Defendant. Filing date: 5/24/2010

Plair1liff's Opposition to Motions for Attorney's Jon J. Shindurling Fees

Filinn L4 - Appeal, Civil appeal or cross-appeal to Jon J. Shindurling Supreme Court Paid by: Harrison, Alan R. (attorney for Idaho Development, LLC, a Utah Limited Liability C) Receipt number: 0026163 Dated: 6/7/2010 Amount: $101.00 (Check) For: Idaho Development, LLC, a Utah Limited Liability C (plaintiff) l 9

Date: 8/2/2010

Time: 1 1: 18 AM

Page 70 cf 21

Seven icial District Court - Bonneville

ROA Report

Case: CV-2008-000,B95 Current Judge: Jon J. Shindurling

User: SHULTS

kJ;,10 Development, LLC, a Utah Limited Liability C vs. Teton View Golf Estates, LLC,, etal.

Date

6/3/7" · ")

6/7/20 1 iJ

6/8/2010

6/15/2010

6/17/2010

6/28t:''' 1 [)

7/1/2C · '

7/9/2010

t'':·TC

;\l '!JC

pr·.oc

DCHH

l !<AN

c ''!JR

!:::D

'ZIT

User

SBARRERA

SBARRERA

SHULTS

ANDERSEN

GWALTERS

GWALTERS

SHULTS

GWALTERS

GWALTERS

GWALTERS

GWALTERS

GWALTERS

SHULTS

LYKE

LYKE

LYKE

LYKE

Notice Of Appeal

Appeal Filed In Supreme Court

Judge

Jon J. Shindurling

Jon J. Shindurling

Bond Posted - Cash (Receipt 26184 Dated Jon J. Shindurling 6/7/2.010 for 100.00)$100.00 deposit for Clerk's Record on Appeal

Request for Standard Clerk's Record

Minute Entry Hearing type: Motion Hearing date: 6/15/2010 Ti1w2 2:07 pm Courtroom: Cour: reporter: Nancy Marlow Mini:tes Clerk: Grace Walters Tape Number: Ala11 ! !arrison Ma1·I,. Fuller Kar-I l)ecker Jeff ! ~ run son

Jon J. Shindurling

Jon J. Shindurling

Hearing result for Motion held on 06/15/2010 Jon J. Shindurling 02 Ou PM: District Court Hearing Held Cou;, Reporter: Nancy Marlow Nuni!Jer of Transcript Pages for this hearing estirn;:ited: under 50 Mtn for atty fees - Fuller to ntc

Tra11°·cript Filed by Fuller ( 5-4-10) Jon J. Shindurling

Or·cJ, · Awarding Attorney's Fees & Costs: ZBS, Jon J. Shindurling LLC : ; awarded attorney's fees/costs in total amt of $'.Jd,037.12 (see doc for details).

Ame:1ded Judgment, Decree of Foreclosure and Jon J. Shindurling Ord•.:;, of Sale:

Orc1c,, Awarding Attorney Fees/Costs to DePatco, Jon J. Shindurling Inc. (see doc for details).

Order Awarding Attorney's Fees/Costs to ZBS, LLC : see doc for details).

Ordc• Awarding Schiess & Assoc. attorney fees/costs of $27,630.75. (see doc for details).

Docket# 37771 Due Date 8-24-10

Affid~1vit in Support of Execution

Writ issued $1,780,269.17 Bonneville

Jon J. Shindurling

Jon J. Shindurling

Jon J. Shindurling

Jon J. Shindurling

Jon J. Shindurling

1\/lisc•:llaneous Payment: For Making Copy Of Any Jon J. Shindurling Fi!e ,r Record By The Clerk, Per Page Paid by: Hole! •11 Kidwell, Hahn Receipt number: 0032265 Dated 7/9/2010 Amount: $10.00 (Check)

Miscellaneous Payment: For Certifying The Same Jon J. Shindurling Acldikmal Fee For Certificate And Seal Paid by: Holcfon Kidwell, Hahn Receipt number: 0032265 Dated: 7/9/2010 Amount: $1.00 (Check)

20

Date n ':-' 12010

Time , 13AM

Page : nf 21

Seventf>C ::licia! l)istrict Court - Bonneville Cou i/",/, "f

ROA Report

Case: CV-2008-000i\395 Current Judge: Jon J. Shindurling

User: SHULTS

lc!":10 Development, LLC, a Utah Limited Liability C vs. Teton View Golf Estates, LLC,, eta!.

7/01

7/19/::'r,1()

C>de

f,r,HH

.. U\N

"/\N

User

LYKE

DOOLITTL

GWALTERS

GWALTERS

SHULTS

SHULTS

SHULTS

Judge

Miscr 0 ilaneous Payment: Writs Of Execution Paid Jon J. Shindurling by !J.Jlden Kidwell, Hahn Receipt number: 003;::,,:55 Dated: 7/9/2010 Amount: $4.00 (CIH'(;k)

Dep,,tco's Brief Filed in Opposition to Plaintiffs Moticn to Reconsider

Minule Entry Hec11;ng type: Motion He:~rrng date: 7/19/2010 Time 9:07 am Coun;oom: Col'~t 1·eporter: Nancy Marlow Min 1 ,tes Clerk: Grace Walters Tar,r Number: Ala11 larrison Kar! Decker Ma:i· Fuller Jeff ! lrunson

Jon J. Shindurling

Jon J. Shindurling

He;:1 1 :19 result for Motion held on 07/19/2010 Jon J. Shindurling 09n,, AM: District Court Hearing Held Cou:' Reporter: Nancy Marlow Nu:c1, 1er of Transcript Pages for this hearing esti:1 1 ·Jed: under 100 Mtn to reconsider - cont'd due Ct's schedule

Tran\;cript Filed by Marlow (2-8-10) Jon J. Shindurling

Tr,11 1:-c:ript Filed by Marlow (2-8-10) Jon J. Shindurling

Disf 1d Court Clerk's Matin for Extension of Time Jon J. Shindurling to F,:,~ Record.

21

Alan R. Harrison ALAN R. HARRJSON LAW, PLLC 497 N. Capital Ave, Suite 210 Idaho Falls, Idaho 83402 Telephone: (208) 552-1165 Fax: (208) 552-1176 (ISB#: 6589)

Attorney for Plaintiff

CASE AS3fGNED TO JUDGE JON J. SHINDURLING

IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE

STATE OF IDAHO, IN AND FOR THE COUNTY OF BONNEVILLE

IDAHO DEVELOPMENT, LLC, a Utah limited liability company,

Plaintiff,

vs.

TETON VIEW GOLF EST ATES, LLC, a Utah · limited liability company; ROTHCHILD PROPERTIES, LLC, a Utah limited liability company; WESTERN EQUITY, LLC, a Utah limited liability company; LYNN SP AFFORD, individually; TONY VERSTEEG, individually; AMERITITLE COMPANY; ZBS, LLC, an Idaho limited liability company; DEPATCO, INC., an Idaho Corporation; SCHIESS & ASSOCIATES, P.C., an Idaho Professional Service Corporation; DOES 1-3, and ALL PERSONS IN POSSESSION OF REAL PROPERTY DESCRIBED HEREIN,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

~----------)

Case No. CV-08- ·~F1fi"J

VERIFIED COMPLAINT TO FORECLOSE DEED OF TRUST AND OTHER ACTIONS

Fee Category: A Fee: $88.00

VERIFIED COMPLAINT TO FORECLOSE DEED OF TRUST AND OTHER ACTIONS - 1

COMES NOW the Plaintiff, Idaho Development, LLC, a Utah limited liability company,

(hereinafter referred to as "IDAHO DEVELOPMENT") and for relief against the Defendants,

complains and alleges as follows:

GENERAL ALLEGATIONS

1. Plaintiff, IDAHO DEVELOPMENT, is a Utah limited liability company, whose

registered agent is in Salt Lake City, Utah.

2. Defendant TETON VIEW GOLF ESTATES, LLC, is a Utah limited liability

company whose registered agent is in Sandy, Utah (hereinafter referred to as "TETON

VIEW"). The deed of trust for the property described herein is located in Idaho and was

signed by Tony Versteeg as managing member of TETON VIEW. The promissory note in

favor ofIDAHO DEVELOPMENT was also signed by Tony Versteeg purpo11edly on behalf

of TETON VIEW and individually.

3. Defendant ROTHCHILD PROPERTIES, LLC, is a Utah limited liability company

whose registered agent is in Sandy, Utah (hereinafter referred to as "ROTHCHILD").

ROTHCHILD is a member of TETON VIEW. ROTHCHILD is the titled owner of a certain

4.320 acres given by warranty deed from TETON VIEW to ROTHCHILD dated May 20,

2008, and recorded as Instrument No. 1300380 on May 22, 2008, records of Bonneville

County, Idaho. The above 4.320 acres were originally a pai1 of the deed of trust in which

IDAHO DEVELOPMENT was the beneficiary.

4. Defendant WESTERN EQUITY, LLC, is a Utah limited liability company whose

registered agent is in Sandy, Utah (hereinafter refened to as "WESTERN EQUITY'').

WESTERN EQUITY is one of the managers of TETON VIEW.

23 VERIFIED COMPLAINT TO FORECLOSE DEED OF TRUST AND OTHER ACTIONS - 2

5. Defendant LYNN SPAFFORD, is an individual from Sandy, Utah (hereinafter

referred to as "SPAFFORD").

6. Defendant TONY VERSTEEG, is an individual from Draper, Utah (hereinafter

refened to as "VERSTEEG"). VERSTEEG is believed to be a manager/member of

ROTHCHILD and WESTERN EQUITY.

7. Defendant ZBS, LLC, is an Idaho limited liability company with its principal place of

business in St. Anthony, Idaho (hereinafter referred to as "ZBS"). ZBS may have or claim

some interest in the property described herein and in the security described herein by virtue

of a deed of trust given by TETON VIEW to ZBS, dated March 4, 2008, and recorded as

Instrument No. 1292699 on March 10, 2008, records of Bonneville County, Idaho.

8. Defendant AMERITITLE COMPANY is the Trustee for a Deed of Trust granted by

TETON VIEW for the benefit ofZBS, dated March 4, 2008, and recorded as Instrument No.

1292699 on March 10, 2008, records of Bonneville County, Idaho.

9. Defendant DEPA TCO, INC., is an Idaho Corporation with its principal place of

business in St. Anthony, Idaho (hereinafter refened to as "DEPA TCO"). DEPArco has

done work on the property described herein and may have or claim some interest in the

property described herein which interest is unknown to Plaintiff but to the extent DEP ATCO

claims any interest in the real property described herein and in which Plaintiff claims a

secured interest, said Defendant is named herein to clear said interest or to establish said

interest is junior, subordinate and subsequent to the right and lien of Plaintiff.

10. Defendant SCHIESS & ASSOCIATES, P.C., is an Idaho Professional Service

Corporation with its principal place of business in Idaho Falls, Idaho (hereinafter refened to

as "SCHIESS"). SCHIESS has provided engineering services for the property described


herein and may have or claim some interest in the property described herein which interest is

unknown to Plaintiff but to the extent SCHIESS claims any interest in the real property

described herein and in which Plaintiff claims a secured interest, said Defendant is named

herein to clear said interest or to establish said interest is junior, subordinate and subsequent

to the right and lien of Plaintiff.

11. There may be some other persons, including corporations, or other entities, claiming

some right, title or interest in all or any part of the real property described in the deed of trust

and mentioned herein, and if so, there true names are unknown to the Plaintiff. Such

unknown Defendants, if any there be, are therefore joined and refen-ed to here under by the

fictitious names of Doe 1, Doe 2 and Doe 3, until such time as their true and con-ect nan1es

are determined.

12. There are believed to be some persons who are in possession of the real property

described herein, there true names are unknown to the Plaintiff. Such unknown Defendants,

are therefore joined and refen-ed to here under as those persons who are in possession of the

real property described herein.

13. The above named Defendants, and each of them claim some right, title, lien or

interest in the property described in Plaintiffs deed of trust, but their interest, if any, in and

to said property is junior, subordinate and subsequent to the right and lien of the Plaintiff.

14. IDAHO DEVLEOPMENT agreed and promised to give to TETON VIEW for the

purchase of the said property described herein, the sum of $1,100,000.00 (the loan). As

evidence of said loan, on or about February 29, 2008, in the City of Idaho Falls, Cow1ty of

Bonneville, State ofldaho, VERSTEEG purpo1tedly on behalf of TETON VIEW executed

and delivered to IDAHO DEVELOPMENT a promissory note, a true and correct copy of


which is attached hereto as Exhibit "A", and by this reference made a part of this Complaint.

COUNT I (Foreclosure)

15. Plaintiff hereby incorporates each and every allegation contained in paragraphs 1

through 14 of Plaintiffs Complaint as if fully set forth herein.

16. As security for the repayment of the loan, together with interest, costs, and attorney's

fees, TETON VIEW executed and delivered to IDAHO DEVELOPMENT a deed of trust

dated February 29, 2008, on the following real property situated in Bonneville County, Idaho.

to-wit:

Beginning at a point that is South 0°27'09" East 25.00 feet along the section line from the Northeast Corner of Section 31, Township 3 North, Range 3 8, East of the Boise Meridian, County of Bonneville, State ofldaho, and running thence South 0°27'09'. East 913.64 feet along the section line; thence South 89°32'51" West 1641.08 feet; thence South 39°14'56" East 502.03 feet to the 1116th line of Section 31; thence South 89°00'06" West 104.71 feet to the centerline of the Idaho Canal; thence along the centerline of the Idaho Canal the following four courses: (1) North 36°27'12" West 633.43 feet; (2) North 15°03'08" West 239.69 feet; (3) North 1 °10'58" East 246.69 feet; (4) North 2°53'42" East 297.79 feet to a point on the South Right-of-Way line of Tower Road; thence North 89°00'00" East 1839.63 feet along said road Right-of-Way to the POINT OF BEGINNING.

ALSO:

Beginning at a point that is South 00°16'08" East along the Section line 1066.05 feet from the Northeast Corner of Section 31; Township 3 North Range 38 East of the Boise Meridian, County of Bonneville, State ofldaho; running thence South 89°43'52" West 374.11 feet; thence North 00°49' 18" West 127.48 feet; thence North 89°43'52" East 160.34: thence South 00°16'08" East 100.00 feet; thence North 89°43'52" East 182.00 feet; thence North 00°16'08" West 100.00 feet; thence North 89°43'52" east 33.00 feet to the East line of said Section 31; thence South 00°16'08" East along the East line 127.47 feet to the POINT OF BEGINNING.

Said deed of trust was recorded February 29, 2008, as Instrument No. 1291905,

records of Bonneville County, Idaho, and contains covenants, conditions and agreements of


the grantors as set forth in Exhibit "B" attached hereto, which is a true and correct copy of

said deed of trust, hereby incorporated by reference as if set forth in full at this place.

17. Said deed of trust was amended by the parities. Said amendment was evidenced by

an Amendment of Deed of Trust dated March 3, 2007, and recorded as Instrument No.

1292697 on March 10, 2008, records of Bonneville County, Idaho. The amount on the Deed

of Trust was amended to $850,000.00. Exhibit "C" attached hereto, which is a true and

correct copy of said Amendment, hereby incorporated by reference as if set fo11h in full at

this place.

18. IDAHO DEVELOPMENT gave a partial reconveyance of 4.320 acres. Melinda

Boswell, (hereinafter referred to as "BOSWELL") signed a Request for Partial Reconveyance

on April 22, 2008. A Partial Reconveyance dated May 15, 2008, on the following real

property situated in Bonneville County, Idaho, to-wit:

Beginning at a point that is S00°27'09"E 66.06 feet along the East Section line and N90°00'00"W 50.00 feet from the Northeast Section Corner of Section 31, Township 3 North, Range 38 East of the Boise Meridian, Bonneville County, Idaho, running thence S00°27'09"E 489.76 feet; thence S89°03 '37"W 371.44 feet; thence N00°00'00"E 509.78 feet; thence N89°00'00"E 347.27 feet; thence S45°26' 14"E 28.50 feet to the point of beginning, containing 4.320 acres.

Said partial reconveyance was recorded May 15, 2008, as Instrument No. 1299740,


the grantors as set forth in Exhibit "D" attached hereto, which is a true and correct copy of

said pmiial reconveyance, hereby incorporated by reference as if set forth in full at this place.

19. The promissory note called for monthly interest installments beginning February 29,

2008 with like payment due on the same day each month thereafter until the principal was


paid in full, but no later than 90 days from the date of the note, when the entire principal plus

all accrued interest become due and payable.

20. The deed of trust indicated the final payment of the full principal was to be paid by

May 28, 2008.

21. TETON VIEW failed to pay the principal amount due on the promissory note on May

28, 2008.

22. In May 2008, VERSTEEG and SPAFFORD orally agreed with IDAHO

DEVELOPMENT to pay an additional $10,000 in interest in order for IDAHO

DEVELOPMENT to extend the promissory note one month.

23. Defendants TETON VIEW, SPAFFORD, and VERSTEEG are in default of said

promissory note as they have failed to pay the interest due on the promisso1y note for June

29, 2008 along with the additional interest payment or the principal amount due and owing.

Further, the Defendants TETON VIEW, SPAFFORD, and VERSTEEG are in default of the

terms and provisions of the deed of trust with respect to repayment of the loaned amount.

24. Plaintiff has sent a demand letter calling the note due. Fmiher. Plaintiff hereby

declares and does hereby declare, all sums owing under said note and deed of trust due and

payable in full.

25. There is now due and owing upon said note and deed of trust the following balances:

Matured Principal Balance $1,100,000.00 June 29, 2008 Interest $5,800.00 Additional Interest $10,000.00 Accured interest up to July 22, 2008 $4,446.59 Total Amount Due $1,120,246.59, plus costs and

attorney's fees

together with interest at the rate of six percent (6%). Said interest shall continue to accrue

from July 22, 2008, until entry of decree herein.


26. Further, there is due and owing to the Plaintiff under the deed of trnst, any costs and

attorneys fees incurred and for any costs which might be incurred by Plaintiff as a result of

the default of Defendants TETON VIEW, SPAFFORD, and VERSTEEG.

27. Said deed of trust, among other things, provides that, in the case of default, all costs,

fees, and expenses, including cost of evidence of title and reasonable counsel fees will be

deducted from the sale. Plaintiff alleges that it has been compelled to have the title searched

in order to ascertain the names of the Defendants in this foreclosure proceeding; that he has

agreed to pay Idaho Title and Trust for preliminary report of title, together with a policy of

title insurance at the conclusion of said foreclosure, which sum is secured by the tenns of the

deed of trust attached hereto, said amount to be established at trial.

28. Plaintiff further alleges that said note and deed of trust provide for payment by

Defendant of reasonable attorney fees incurred by Plaintiff in case said note is collected by an

attorney or deed of trust is in default, and that Plaintiff has agreed to pay its attorneys a

reasonable fee for the foreclosure of the deed of trust and collection of said note.


Defendants of any reasonable costs incurred by Plaintiff in case said note is collected by an

attorney or said deed of trust is in default, and Plaintiff would request that Defendant be

required to pay any costs incurred in the foreclosure of said deed of trust or collection of the

note, including any taxes, assessments, etc.

30. Said premises have at all times heretofore been used together as one lot and every

part thereof is necessary for the best use and enjoyment of said property and the same cannot

be sold in separate parcels without material injury to the parties hereto.

2B VERIFIED COMPLAINT TO FORECLOSE DEED OF TRUST AND OTHER ACTIONS - 8

31. The Plaintiff is now the owner of said promissory note and deed of trust. The

Defendant, TETON VIEW, is now the vested owner of said prope1iy.

32. The Deed of Trust and note described above have never been satisfied or discharged.

33. A reasonable value for the property shall be proven at trial.

34. IDAHO DEVELOPMENT has no speedy or adequate remedy at law, and no other

proceedings at law, or in equity, either commenced or pending to collect said loan or any

portion thereof or to foreclose the Deed of Trust.

35. Plaintiffs have retained legal counsel to aid them in the enforcement of said Deed of

Trust and the loan and the collateral securing the same and to foreclose on the same and

reasonable attorney's fees for the bringing of this action is the sum of $5,000.00 if said

judgment is entered by default and for such additional amounts as the Court deems just and

equitable if judgment is entered other than by default.

COUNT II (Promissory Note) (Alternative Count)

36. IDAHO DEVELOPMENT hereby incorporates paragraphs 1 through 35 of this

Complaint as if fully set forth herein.

37. On or about February 29, 2008, VERSTEEG, purportedly acting for TETON VIEW

in the City ofldaho Falls, County of Bonneville, State ofidaho, executed and delivered to

Plaintiff a promissory note, a true and correct copy of which is attached hereto as Exhibit

"A", and by this reference made a part of this Complaint.

38. On said date, as indicated above, Defendants borrowed from Plaintiff the sum of

$1,100,000.00. The promissory note was signed to evidence said loan and to evidence the

terms for repayment of the loan. The loan was repayable as described above.

:10 VERIFIED COMPLAINT TO FORECLOSE DEED OF TRUST AND OTHER ACTIONS - 9

39. TETON VIEW, SPAFFORD, and VERSTEEG orally agreed to pay IDAHO

DEVELOPMENT $10,000 additional interest in order to extend the promissory note until the

end of June 2008.

40. Since borrowing said money, Defendants have failed to make payments of principal

or interest in accordance with the terms of the loan. Despite repeated demands for full

payment, Defendants TETON VIEW, SPAFFORD, and VERSTEEG owe to Plaintiff on the

note the principal sum of $1,100,000.00, together with accruing interest at the rate of six

percent (6%) per annum, for a total principal and unpaid interest due and owing as of July 22,

2008, $1,120,246.59. Costs, attorney's fees, and interest at 6% per annum continue to accrue

under the note.

41. Said loan, among other things, provides that if payment of any of the sums, either

principal or interest, shall not be paid at the times when said payment shall become due as

specified in said loan, the whole of the principal sum then remaining unpaid, together with

interest accrued thereon, shall become immediately due and payable at the option of the

holder of the note. Plaintiffs hereby declare the entire unpaid balance of the note, plus

accrued interest, due and payable.

42. Furthe1more, TETON VIEW, STAFFORD, and VERSTEEG are in default in that

they have failed to pay the balance of installments due on said note and, under the terms and

provisions of said note and deed of trust, is in default as set forth therein.

There is now due and owing upon said note and deed of trust the following balances:

Matured Principal Balance $1,100,000.00 June 29, 2008 Interest $5,800.00 Additional Interest $10,000.00 Accured interest up to July 22, 2008 $4,446.59 Total Amount Due $1,120,246.59, plus costs and

31 attorney's fees


together with interest at the rate of six percent (6%). Said interest shall continue to accrue from

July 2008, until entry of decree herein.

43. Plaintiff has been required to retain the services of an attorney to pursue this matter.

Plaintiff is entitled to be reimbursed his attorney fees and costs as to all counts pursuant to

the te1ms of the promissory note, deed of trust, LC. §1 120, I 121 and l.R.C.P. 54.

COUNT III {Breach of Contract)

44. IDAHO DEVELOPMENT hereby incorporates paragraphs I through 43 of this


45. IDAHO DEVELOPMENT signed a partial reconveyance of 4.320 acres in order to

have the property be free and clear.

46. IDAHO DEVELOPMENT was under the understanding this property was going to be

left in TETON VIEW of which IDAHO DEVELOPMENT has a 33% membership.

47. TETON VIEW transferred the property to ROTHCHILD by Warranty Deed on May

20, 2008 and recorded it as instrument number 1300380 in the Bonneville County records.

This was done without IDAHO DEVELOPMENTS knowledge or consent.

48. IDAHO DEVELOPMENT does not own any membership in ROTHCHILD.

49. At the time of the filing of this Complaint ROTHCHILD has not yet executed and

transfeffed the property back to TETON VIEW.

COUNT IV (Constructive Trust)

50. IDAHO DEVELOPMENT hereby incorporates paragraphs I through 49 of this


51. IDAHO DEVELOPMENT signed a partial reconveyance of 4.320 acres in order to

have the property be free and clear.

32 VERIFIED COMPLAINT TO FORECLOSE DEED OF TRUST AND OTHER ACTIONS 11

52. IDAHO DEVELOPMENT was under the understanding this property was going to be

left in TETON VIEW of which IDAHO DEVELOPMENT has a 33% membership.

53. TETON VIEW transferred the property to ROTHCHILD by Watrnnty Deed on May

20, 2008 and recorded it as instrument number 1300380 in the Bonneville County records.

This ,vas done without IDAHO DEVELOPMENTS knowledge or consent.

54. IDAHO DEVELOPMENT does not own any membership in ROTHCHILD.

55. At the time of the filing of this Complaint ROTHCHILD has not yet executed and

transferred the property back to TETON VIEW.

WHEREFORE, Plaintiff prays for judgment as follows:

That pursuant to Count I herein, Plaintiff recover judgment as follows:

1. That the second deed of trust signed on March 7, 2008 and recorded as instrnment

number 1292697 in Bonneville County be set aside.

2. That Plaintiff is allowed to foreclose on the first deed of trust signed on February 29,

2008 and recorded as instrument number 1291905 in Bonneville County.

3. Plaintiff have judgment against Defendants, TETON VIEW, SPAFFORD, and

VERSTEEG, for the sum of$ l,120,246.59 together with accruing interest at the rate of six percent

(6%); for any sums advanced by Plaintiff or for which Plaintiff becomes obligated to advance for the

payment, of any rents, taxes, insurance, and other governmental charges, fines or impositions levied,

assessed or charged against the secured property during the pend ency of this action; for the payment

of any sums for work done on the property by SCHIESS or DEP ATCO or any other entity which

may have a claim against the secured property; for the sum of Five Thousand and Noll 00 Cents

($5,000.00) as attorneys fees if this action is uncontested, plus such additional swns as the Court may

adjudge as reasonable in the event of contest, trial or appeal; for Plaintiffs taxable costs and


disbursements herein, for interest on the entire amount of said judgment at the legal rate of interest

from the date of judgment and thereafter through sale.

4. That the aggregate sum above named be decreed to be a valid lien upon the premises

in the Complaint described and that Plaintiffs deed of trust described herein be adjudged a first and

a prior lien upon the property superior to any right. title. claim, lien or interest on the part of the

named Defendants or persons claiming by, through or under said Defendants;

5. That the Plaintiffs deed of trust and other security documents described herein be

foreclosed and that the usual decree and order may be made for the sale of said real property therein

described, together with all water rights; provided however, that the real property be sold in one

parcel in accordance with and in the manner provided by law; that Plaintiff be permitted to be a

purchaser at said sale; that the net proceeds of said sale be applied first toward the payment of the

costs of said sale, then towards the payment of Plaintiffs judgment; that Plaintiff have and retain a

deficiency of judgment against Defendants, TETON VIEW, SPAFFORD, and VERSTEEG, in the

event that the bid at said sale is less than the sum of Plaintiffs entire judgment, plus costs of sale;

6. That the sheriff execute, record and deliver to the purchaser(s) his sheriffs usual

certificate of sale and, after the expiration of the redemption period, his sheriffs deed for the real

property;

7. That the decree provide that after the sale of said property, all right, title, claim, lien

or interest of the named Defendants, and every person claiming by, through or under said

Defendants, in or to said property, including the right of possession thereof, from and after said sale,

be forever barred and foreclosed, and the purchaser at said sale be entitled to immediate possession

of the premises as allowed by law, subject only to such statutory right of redemption as said

Defendants may have by law;


8. For the cost of $3,080.00 Plaintiff has paid Idaho Title & Trust for search of title and

title insurance.

9. That in the event the Plaintiff is the purchaser at said sale and possession of the said

premises is not surrendered to said Plaintiff, a \\Tit of assistance be issued directing the sheriff of

Bonneville County to deliver possession of said premises to the Plaintiff;

10. For judgment against TETON VIEW, ROTHCHILD, WESTERN EQUITY,

SP AFFORD, VERSTEEG, ZBS, DEPATCO, SCHIESS and All Persons in Possession of Real

Prope1ty Described Herein, that they have no right, title, claim or interest in or to the real property

described or refeITed to herein or in the deed of trust annexed hereto as Exhibit "B", or if any of said

Defendants have any such right title, claim or interest in said real property, or personal property, the

same is subject, subsequent, junior and inferior to the rights therein and thereto of IDAHO

DEVELOPMENT, and of any purchaser at the foreclosure sale, including Plaintiff, if he be the

purchaser, and that all Defendants and all persons claiming under them shall be barred and

foreclosed of all right, title, claim and interest in and to all or any part of the real property, or

personal property, described in this Complaint;

11. That Plaintiff may have such other and further relief as may be just and equitable in

the premises.

Pursuant to Count II, Plaintiff recover judgment against Defendant as fol lows:

1. For the principal and unpaid interest amount of $1,120,246.59, plus accruing interest

less any amount which was collected under the foreclosure of the deed of trust;

2. For reasonable attorney fees of $5,000.00 if this matter is uncontested, and for a

reasonable sum if this matter is contested;

35 VERIFIED COMPLAINT TO FORECLOSE DEED OF TRUST AND OTHER ACTIONS 14

3. For the cost of $3,080 Plaintiff has paid to Idaho Title & trust for search of title and

title insurance;

4. For costs; and

5. For such other and further relief as the court deems just and equitable.

Pursuant to Counts III and IV, Plaintiff recover judgment against Defendant as follows:

1. For return of the property from ROTHCHILD to TETON VIEW, or in the event the

prope1iy is sold to have ROTHCHILD hold the proceeds of the sale for the benefit of IDAHO

DEVELOPMENT;



3. For the cost of $3,080 Plaintiff has paid to Idaho Title & trust for search of title and

title insurance;

4. For costs; and

5. For such other and further relief as the comi deems just and equitable.

DA TED this 1--i ~ay of July, 2008.

3 ,...

.0

~~~Sq_ Alan R. Hanison Attorney for Plaintiff


22-JuH0OB 03:0Spm From-8013591195 T-552 P.001/001 F-592

VERIDCATJON

UTA\t STATE OF~ )

S'~I+~ )ss. County of'" Rzanir, iHe )

I, Melinda Boswell, being first duly sworn, on my oath.,, depose and state:

That I run the Manager of Plaintiff, IDAHO DEVELOPMENT, LLC, in the foregoing action,

and that 1 have read the above document, know the contents thereof, and that the same is true as I

verily believe. nJ

DATED this 2~ day ofJuly, 2008.

hj STJBSCRIBED AND SWORN to before me this z_z -day of July, 2008.

Notary Public for-Ma:oo fAfuA. Residing at: My Commission Expires:

VERlFfED COMPLAINT TO FORECLOSE DEED OF TRUST .AND OTHER ACTIONS - 16

37

EXHIBIT A

38

0 ,.

PROMISSORY NOTE

$ 1,100,000.00 Idaho Falls, Idaho February 29, 2008

For Value received, the undersigned promise to pay to the order of IDAHO DEVELOPMENT, LLC, 2192 Preston Street, Salt Lake City, Utah, 84106 At such place as the holder may designate in writing, THE PRJNCIPAL SUM OF ONE MJLLION ONE HUNDRED THOUSAND AND NO/IOOTHS

$1,100,000.00 together with interest beginning on February 29, 2008, at the rate of Six percent (6.0%) per annum, lawful money of the United States of America in installments as follows:

Monthly payments of Five Thousand Five Hundred Ninety five and 06/lO0ths Dollars ($6,595.06), beginning on February 29, 2008, and continuing on the same day of each and every month thereafter until paid in full on or before, but no later than 90 days from the date of this note, when the entire principal balance plus all accrued interest shall become due and payable if note is called due.

Note provides for payment to Idaho Development, LLC 15% net proceeds from each lot sale. In addition, in the event that the Note is not satisfied within the 90 day term at borrower's option, it may enlarge the Note with Idaho Development, LLC, to insure adequate funding for completion of the project. At a minimum, at borrower's option, Idaho Development agrees to leave the sum of $500,000.00 in the project and to then subordinate to any third party construction financing.

If default be made in the payment of any installment under this note, the entire principal sum and accrued interest shall at once become due and payable without notice at the option of the holder of this note. The failure of the holder of this note to enforce hs rights upon default in any of the terms of this note shall not constitute a waiver of any such right in the event of a subsequent default. If suit is instituted to collect this note or any portion thereof, I agree to pay, in addition to the costs and disbursements as are allowed by law, such additional sums as the court may adjudge reasonable on attorney's fees in such suit. The makers, sureties, guarantors and endorsers hereof severally waive presentment for payment, protest, notice of protest and of non-payment of this notice.

The indebtedness evidenced by this Note is secured by a Deed of Trust of even date, and reference is made to the Deed of Trust for rights as to acceleration of the indebtedness evidenced by this note.

Due: May 28, 2008

39

't

rf 7

EXHIBITB

41

__,.-.--

Inst ... nt # 1291905 IDAHO FALLS, BONNEVILLE, IDAHO 2008-02-29 04:06:00 PM No. of Pages: 2 Recorded for: ALLIANCE TITLE - IDAriO FA RONALD LONGMORE Fee:6.00

Order No. 3030818277LAC

COMMERCIAL LOAN DEED OF TRUST

Ex-Officio Recorder Deputy SSolis Index To: DEED OF TRUST Electronically Recorded by Simplifile

THIS DEED OF TRUST, Made !his February 29, 2008 BETWEEN Teton View Golf Estates, LLC herein called GRANTOR, whose address is: 6371 N. 5"' S., Idaho Falls, ID 83401, AND Alliance Title & Escrow Corp., herein called TRUSTEE, AND Idaho Development, LLC, herein called BENEFICIARY, whose address is 2192 Preston Street, Salt Lake City, UT 84106.

WITNESSETII: That Grautor does hereby irrevocably GRANT, BARGAIN, SELL AND CONVEY TO TRUSTEE IN TRUST WITH POWER OF SALE, that property in the county of Bonneville, State of Idaho, described as follows and contnining not more than forty acres:

Beginning at a polnt that ls South 0°27'09" Eart 25.00 feet along the section line from the Northeast Corner of Section 31, Township 3 North, Range 38, East of the Bolsc Meridian, County of Bonneville, State ofldaho, and running thence South 0°27'09" East 913.64 feet along the section line; thence South 89°32'51" West 1641.08 feet; thence South 39°14'56" East 502.03 feet to the 1116th line of Section 31; thence Soutll 89°00'06" West 104.71 feet to the centerline of the Idaho Canal; thence along the centerline of the Idaho Canal the following four courses: (1) North 36°27'11" West 633.43 feet; (2) North 15°03'08" West 239.69 feet; (3) North 1°10'58" East 146.69 feet; (4) North 2°S3'4l" East 297.79 feet to a point on the South Right-of-Way line of Tower Road; thence North 89°00'00" East 1839.63 feet along said road Right-of-Way to the POINT OF BEGINNING.

ALSO:

Beginning at a point that ls South 00°16'08" East along the Section )lne 1066.05 feet from the Northeast Corner of Section 31; Township 3 North Range 38 East of the Boise Meridian, County of Bonneville, State oridaho; running thence South 89°43'52" West 374.11 feet; thence North 00°49'18" West 127.48 feet; thence North 89°43'52" East 160.34 feet; thence South 00°16'08" East 100.00 feet; thence North 89°43'52" East 182.00 feet; thence North 00°16'08" West 100.00 feet; thence North 89°43'52" East 33.00 feet to the East line of said Section 31; thence South 00°16'08" East along the East line 127.47 feet to the POINT OF BEGINNING.

TOGETHER WITH the rent,, i,sucs and profit, lhen:of, SUBJECT, HOWEVER, to lhe right, power and authority hereinnfter givon to Md conferred upon Beneficiary to concct and apply such rents, issutis anc.1 profit~. For the purpose of securing payment or the indcbtedile.u evidenced by a promissory note, or even dtuc herewith. executed by Grnntor in the sum o{Sl,t00,000.00, with tinaJ·paymi:nt due: M•y 28, 2008, and to 1ecute p11ymtml of oil such further ;~m, 1U1 may hcrc.1flcr be loaned or advanced by the Beneficiary llercin lO the Oranfor herein, or :my or either or them, while record owner or present interest, for ony purpose, and of any notes, drafts or other instruments representing such further Joans, advancts or expe,,dib.Jn:s together with interest on all such 5UTllS at the rate rhcrcin provided. Provided,-howevcr, fh.at the ma.kins of such further lo.ans, advance, or expcndinm. shall be oprionol with the Denelici:,ry, nnd provided further, that it Is the .expre&s intention of die parties to lhis Deed of Trust that it shall at:ind as c~tinuing security until paid ror all auch advances together with inten:sl lherco,,. A. To protect tht 1ccurlty of th\1. Deed of Trust. Grant(?r agnu:

I. To keep said property in goOO condition and rep11ir, not to reroove or demolish.any bu\\ding thereon, to complete or restore promptly and in good and work:mnnlike manner any building which may be conJIJUcted1 damaged or dcatroycd thereon and to pay when due all claims for laborperfonned and m;iterials furnished lh=for; lo co"1'1Y with all laws o.lfecringsald property or ~uiring any alterations· or improvements to be made thenmn; nol to commit or permit waste thereof; not to commit, suffer ot permit any act upon said property in violation of law; to cultivate, irril!Jlte, fertillu, fumigate, ptUne and do all other acts which from the character nr use of said property 111'1Y be rcuonably neccina.ry, the spceific enumerations herein not excluding the general.

2. To pro vie.le, mainlain end deliver to Beneficiary fife insurance ·~atisfactory to and with lo.gs payable to Beneficiary. The amount collecled under any fire or other insunmce policy may be applie<l by beneficiary upon any indebtedness secured hereby and in such order ae Beneficiary may determine, or nt option of Beneficiary the. entire amount so col1ectcd or nny part thereof may be released to Granter. Such application or release 1hal1 not cure or waivr any default or notice of defmult hertunder or invatidati: any ac1 done pursuant to such notice.

3. To appear in and defend any action or proceeding purporting to ,trect the security hereof ot the right, or powers of Benctlciary or Trustee; and to pay an costs-and expcnses,-includ.ing cost of evidence or tttle and attmney's fees in a. reasonable sum1 in nny such action or proc=:ling in. which Beneficiitry or iru11tee may appear.

4. To pay, at least ten days before delinquency all taxes and usemnents affecring said property, when due, all encumbrances, charges and liens, with inten:.st, on !aid propcny or any part thereof, which oppear to be prior or s.uperior hereto; all costs, fees and e,cpen1<:• of this Trust. In Addition to lhe payments due in accordance whh the term, of the note hereby secured the Grantor ,hall ~t lhe op don, and on demond of the Beneficiary, pay each month 1/12 of the estimated annu•I taxe, as,es,men1s, insurance premiums, maintena.nce-and other charges upoi:i the property, nevertheless In ttust for Grantor's use and benefit and for the payment.by Beneficiary of nny such items when due. Grantor's failure 110 to pay sh.all constilute a default under lhis trust

5. To pay immediately and without demand all sum, expended by Beneficiary or Tru,tec pursuant to lh< provisions hereof, with interest from date of expendit!J'l'.C at the rate of interest specified in the above described promissory note.

6. Should Grantor fail to molce any pa)fflenl or to do any ac\ as herein provided, lhen Benef\ciory or Trustee, but without obligation so to do and without notice to or demand upon Gran tor and without rcleasinp; Gran.tor from any oblf gntions hereof, may; make or do-the same in such manner and lo such extent as either may deem necesSllry to protect the security hereof, Beneficiary or Trustee being authoriz.ed to enter upon sald property Cor such purposes; app~r in and defend mny action or proceeding purporting lo affect the security hereof or the lights or powm of Beneficiary or l)uslcc; pay, purehasc, contest or compromise any encumbrance, cliarge or lien which in the judgement of either appean to be prior or tuperiOr hereto; and, in exercising ~my such powers, ar in cnrorcing this Deed of Trust by judicial foreclosure, pay nec:eiuary expenses. employ counsel ahd pay his reasonable fees .

. i\!!!8hcf~ "fltlE !5. r-.~_f,(·~r~ 11 ... · Cor::1 ·1070 F-~iv(:.H'Y'lH!f,;' D:.. ~JtB. ·u"in

PD. f.?.(iX f.10B42. !1:t:.th(; r:rH!:;, iO H:3.<~-05-T~~).4;: 42 1291905

B. It b mutually ai:reed that: I. Any aw.rd of damages In connection .with any eondemnalion fur public use of or Injury to ••id property or •ny p1'1

!hett0fis hereby wigned and ,hall be paid to Beneficiluy who may apply or release such money,i received by him in the same ""'"'"'' and with the same effect 1J above provided for dispo•ltloo of p!1)Cf:<ds of fire or other insU!llnce.

2. By 11<1cepting payment of any sum ...,.,red hereby after fts due date, Bene!icinry does not wniva his risht eirher to n,quire prompt payment when due of all other sums so &ecured orto declare default for fliih.m, ,o to pay.

3. At any time or ftom time to time, without liability therefor and without notice, upon written req...,,t ofBenelicla,y and presentation of !hi> Pc:d and said note for cndorsemen~ and without affecting the persoru1l liability of any person for payment of the indebtednes• secured hereby, trustee may: Reconvcy all or lllly part of said properly; co,uent to tho making of any map or p!tt thereof; join in granting any easement thereon; or join in any extentiutugreemcnt or any ag:reernent subordinating the lien or charge hereof.

4. Upon written request ofBeneliciacy staling that all sum, secured hereby hove beet, paid, and upon mrrender of this Deed and said note to nu.tee for cancellation and retention upon payment of its f<es, Trustee ,hall reconvey without W11tT11nty, the property then held hereunder. The Grantee in ruch te<onvoyance may be d..,cribcd as 'tbe person or pcnon, legally entrncd thereto'.

5. As additional security, Grnnior herebx,gives to and conf«'1 up<>n Beneficiary the rlgh~ power and authority, during the continuance of these Trusts, to collect rents:, issues and proflts of aaid -property, reseMngunto On.ntor the right, prior to any default by Grantor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, J,.ues and profits u they become due and payable. Upon any such defau1~ Benellclacy may at 1ny time without notice, ei!her in person, by agent, or by a received to be appointed by a court, and without regvd to the adequacy of my security for the indebta:lne,s hereby tccured, enter upon ond 1alre pos,ession of Hld property of any part thereof, in hlll own name sue for or otherwise collect such rmta, issues and profits, 1n<luding those put due and un\llld, and apply u,., same, lets costs and - of operation and collection, meluding =enable attorney's fees, upon and ihdebtedneu;,ecun:d hereby, and in such order as Beneficiary may determine. The entering upon "'1d laking poHcssion rif so.id property, the collectio!I of such renlll, issues and profits and the application thereof u aforesaid, shall not cure or waive any default or nonce of default hmund<r of Invalidate any iu:t done pun,uant to such notice.

G. Upon default by Grantor in paiment of any indeblednm secured hereby or {n performnnce of ""Y agreement hcreunder, all sulllll secured hereby shall immediately become due sndpayable at the option of the Bcneftcia.ry. (n the event of defhult, Beneticiary shall execute m ca.use the Trustee to execute ·B written notice o( such default .e::nd of his electiott to cause to be sold the herein d,.cribcd property to .satisfy the obligarions heroof, and shall cause ,uch notice to be recorded in the office of the recorder of eaoh county wherein said real property or ,ome part O,ereof is situ,ted. Notice of sale having been i;iven s, then required by law, and nol Je,; than the time then required by law having elapsed, Trustee. wlthoot demand on Granter, shall ,ell ,aid propc,ty at the time artd place fixed by it in said notice of sale, either a., a whole or in ,epan1te pareels and fn such order as it may determine, at public auction to' !he highost bidder ior cash in lawful money of the United State&. payable at time of ••le. Trustee shall deliver to the purchaser Its Deed conveying tbe property so •old, but without. any covenant or warranty express or implied. The recitals in such de<jl of any matters or lllcll/ ghall be conclusive proof of the truthfulness the«of. Any p...on, including Oran tor, Trustee, or Beneficiary, may purcha."' at such sale. After deducting au costs, fees and expmso.s of Trustee and of this 1ius~ includiria coi1 of evidence of till• and reasonable counsel fee, in connection with sale, Tt'U!tee 1hall apply the proceeds of sale to payment of. all sum. expended under the terms hereof, not then repaid, with accmed in,erest at the 111\e ,pecilied in the above descnoed promissory noto; alt othe, <Ulllll then secun,d hereby; and the ~mainder, if any, to th( person or pet1ons legally mtit1ed thm::to.

i. This Deed ,-ppUes to, inures to the benefit of, and binds aU parties hereto, their heirs, legatees, devisees, admini,tra.rors, executors, ,uccessors and assips. The term Beneficiary shall 11,ean the holder and owner of the note secured hen,by; or, if the note has been pledged, the pledgoe thereof. In !his Deed, whenever the context so requires, the masculine gender includes the feminine and/or neumr, and the singular numher Includes the plunll.

I!-. Trustee I• not obliga!Ed to notify any party hereto of pending ,ale under anyQther Deed of Trust or of any action or proce,:dlng ill which ClN>ntor, Beneficiary or Trustee shall be a party unlen 1,,uugh! by Trustee.

9, In the event of diS&Olution or resignation of the Trustee, the Beneficiary may ,ubsrltute a trustee or !nlile<S to execute the trust hereby created, a11d whoo any auch iUbslitutfon bia been llled for record in the o!itce of the Recorder of the count)' in which the property herein de11cn'bed is situated, it snail be concloove evidence Qf the appointment of such trustee or trustees, and such new tnlSlce or trustea shall succeed Jo all of the powm and dulies of the·trustee or trustoes named herein,

R.eque&t ls bct,,by mad• that a copy of any Notice of Default and a copy of any Notice of Sale hcreunder be maned lo the Qrantor at his addi:i::es here!nbofon: set forth,

State of Idaho

Q;)unty of Bonneville

} }58,

l

On this 29th day ofFebmary, 2008, before me, a Notary Public in and for said state, pecsonally appeared Tony M. Vtm1eeg known or identified to me to be the Managing Member in the ~united Liability Company known as Teton View Golf Estates, LLC who executed the foregoing mstrument, and acknowledged to me that he executed the same in said LLC name.

.,. .,,.-1 IN WITNESS WHEREOF, I have hereunto set my hand end affixed mwo 1cial sea1 the day ~d ~arz·n this certificate first above written. . / ' 1 / . t ..L('-- ·-..

•fl~,,,tnR~ih'.·, ,,;,,,.,__...._,......~ 4 L,/7 , {µ./(>~J ,.:f:: .. , f · GAifl"''rz -:-;-cc#½.!;--i.;,-=;.;:--:,::-;;;:::':~'-;:-.:i;E::-;f-7'--

,~vV:-'"'"·"~ .. ; )',.~1, No Public for the State of Id.ah / if 'i<·./ '•·,.11):c<. Residing at: Idaho Falls

j /\\OlAr'.?i.-\ \ CommissionExpireBesldi~g (n l~h~ Falls, Idaho ii f ->\,<t.,.,,..,.., : if Comm1si::ron r::xpires 03-19-2010 i ~ \ ~ ,,. ... tr'• i .€ ~ ~ ~ ~ Uts:.~ ~,._..1 :y :: ~j. _;;:... ,,,.).,.,, .,.../ ·f

·-::.~:1?i. .. i'"~~H .... ~•*"'°"~~ ~~ ·~·,;,;, ~ OF \0~,s::,

·lit.,j'JJ$BU.~\tJ.'"i•

43 1291905

EXHIBIT C

AMENDMENT OF DEED OF TRUST

TIDS AMDNDMENT is made by and between Teton View Golf Estates, LLC, and Idaho Development, LLC hereinafter referred to as "BENEF1CIARY'',

WITNESSEm:

WHEREAS, the Orantor did make, execute and deliver to tru, Beneficiary a. Note secured by that certain Deed of Tru~t in the amount of One Milliori, one hundred thousand and no/100 Dollars, ($1, l 00,000.00), recorded as Instrument No. 1291905, in the records of Bonneville County, Idaho, covering the premises described as follows:

Beginning at a point that is S 0"27'09" E 25.00 feet along the section line from the Northeast corner of Section 31, Township 3 North, Range 38, :East of the Boise Meridian, Bonneville County, Idaho, and running thence S 0"27'09" E 913.64 feet along the Section line; thence S 89°32'51" W 1641.08 feet; thence S 39°14'56• E 502.03 feet to 1he I/16th line of Section 31; thence S 89°00'06" W 104.71'feet to the centerline of the Idaho Canal; thence along the centerline of the Idaho Canal the following four courses: (1) N 36°27'12" W 633.43 feet; (2) N 15°03'08" W 239.69 feet; (3) N l 0 10'58" E 246.69 feet; (4) N 2°53'42" B 297.79 feet to a point on the South Right-of-Way line ofTowcr Ro0.d; thence N. 89°00'00" E 1839.63 feet along said road Right-of-Way to the point of beginning.

ALSO:

Beginning at a point that is S 00°16'08" E along the se~tion line_ 1066.05 feet from the Northeast comer of Section 31, Township 3 Norlh, Range 38 East of the Boise Meridian, Bonneville ColDlty,·Idaho; running thence S 89°43'52" W 374.11 feet; thence N 00°49'18" W 127.48 feet; thence N 89°43'52" E 160.34 feet; thence S 00°16'08" E 100.00 feet; thence N 89°43'52" E 182.00 feet; thence N 00°16'08" W 100.00 feet; thence N 89°43'52" E 33.00 feet to the East line of said Section 31; thence S 00°16'08".B along the East line 127.47 feet to the point of beginning.

And

WHEREAS, tho parties desire to amend some of the terms and/or provisions of the Note and/or Deed of Trust, and

THEREFORE, in and for good and valuable considmtio~, tlw parties 1tgrce the terms and conditiODll of the Deed of Trust above described shall be and are hereby amended. m,d modifi~ as follows:

1. The amount oftbe Deed of Trust shall be ame_nded to $850,000.00.

All terms and conditions of the Nate and Deed of ~t shall remain· the same and unchangod except as amended and/or modified herein.

Dated __ -3...,_/_7..,_/_t:J_<t __ _

GRANTOR: BENEFICIARY:

.

Idaho Develo:n)ll~-

\ By 1 A£L~~ J" ..

Instrument# 1292697 IDAHO FALLS, BONNEVILLE, IDAHO 2008-03-10 12:51:00 PM No. of Pages 2 Recorded for: AMERITITLE - IDAHO FALLS RONALD LONGMORE Fee:6.00

This Instrument Is being filed as an · accommodation only. It has not been . . examined as to It's execution, Insureability or affect on title.

Ex-Officio Recorder Deputy SSolis . Index To: AMENDMENT Electronically Recorded by Simplifile

1292697

STATE OF Utah ) ) ss

COUNTY OF So.lt Lo.\<<. . )

7 -t'1 . . On this __ day of March, 2008, before me.. the 1.mdcrsigned. personally appeared Tony Versteeg !Ill authorized signatory foI St Oarles Group, Inc and IUI Manager ofWestem Equity, LLC known or identified to me to be the Mmaging Member( s) of the limited liability company that exeoun,d the within instrument, and acknowledged to me

tbot - oomp,ny =fed ... '"""· .. e -ST.A.TE OP Utah )

) SIi

) COUNTY OF 5c.\t Lo.le.,..

On this l -fi, day ofMarch, 2008, before me, the undersigned. petsoually appeared f<¥1ln4o. l?os~U - mi-,.:al t known m- idimtffied to me to be the Managing Member(s) of the limited liability company that execute the within instrument, and acknow]cdged to me that such company executed the same,

4G 1292697

EXHIBITD

47

File No.: 3030818277

J..~

# 1299740 IDAHO FALLS, BONNEVILLE, IDAHO . 5-15-2008 03:58:13 No. of PagH: 1 Re;;orded for: ATEC i/aJ' RONALD LONGMORE F1111: 3.00 .. Ex-Officio Recorder Deputy ___t_ Ind•• tc,· DEEO. PAA:TIAL RECONVEVAflCE ;,

ALLIANCE TlTlf I ESCROW co11a 0 •

PARTIAL RECONVEY ANCE

Pursuant to a written re,quest made by the beneficiary, the widersigned, as trustee in the deed of trust executed by

Teton View Golf Estates, LLC

To Idaho Development, LLC, recorded February 29, 2008 as Instrument No. 1291905 records of Bonneville County, Idaho, does hereby GRANT and RECONVEY unto the parties LEGALLY ENTITLED THERETO, without warranty, all the estate and interest derived to the trustee under said.deed of trust, in that portion of the lands therein described as follows:

Beginning at a point that b S00°27'09"E 66.06 feet along the East Section line and N90°00'00"W 50,00 feet from the Northeast Section Corner of Section 31, Township 3 North, Range 38 East oftbe Boise Meridian, Bonnevllle County, Idaho, running thence S00°27'09E 489.76 feet; thence S89°03'37"W 371.44 feet; thence N00°00'00"E 509.78 feet; thence N89°00'00"E 347.27 feet; thence S45°26'14'1E 28.50 feet to the point of beginning, containing 4.320 acres.

May 15, 2008

State of Idaho

County of Bonneville

} }ss. }

On this 15th day of May, 2008, before me, a Notary Public in and for said state, personalJy appeared Mary Bruggenkamp known to me to be the Vice President of the Corporation, and acknowledged to me that pursuant to Resolution of the Board of directors, executed the same in said Corporation name.

48

Alan R. Harrison ALAN R. HARRISON LAW, PLLC 497 N. Capital Ave, Suite 210 Idaho Falls, ldaho 83402 Telephone: (208) 5 52-1165 Fax: (208) 552-1176 (ISB#: 6589)


, ~ r

: , /1s10H ,' ' ;JT '{


STA TE OF IDAHO, IN AND FOR THE COUNTY OF BONNEVILLE


Plaintiff,

vs.

TETON VIEW GOLF ESTA TES, LLC, a Utah limited liability company; ROTHCHILD PROPERTIES, LLC, a Utah limited liability company; WESTERN EQUITY, LLC, a Utah limited liability company; LYNN SPAFFORD, individually; TONY VERSTEEG, individually; AMERlTJTLE COMPANY: ZBS, LLC, an Idaho limited liability company; DEPATCO, INC., an Idaho Corporation; SCHIESS & ASSOCIATES, P.C., an Idaho Professional Service Corporation; DOES 1-3, and ALL PERSONS IN POSSESSION OF REAL PROPERTY DESCRIBED HEREIN,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

) ) ) ) )

_______________ )

Case No. CV-08-4395

STIPULATION


(hereinafter referred to as "PLAINTIFF") and enters into the following Stipulation with Defendants,

STIPULATION - I

(~.

Teton View Golf Estates, LLC, Rothchild Properties, LLC, Western Equity, LLC, Lynn Spafford,

and Tony Versteeg by and through Lynn Spafford and Tony Versteeg, hereby stipulate and agree as

follows:

1. The Plaintiff agrees to dismiss Count In (Breach of Contract) and Count IV

(Constructive Trust), with prejudice. Teton View agrees to leave this property in Teton

View and not to transfer it without the written consent of Plaintiff.

2. Plaintiff agrees to dismiss any and all allegations against Defendants Lynn C.

Spafford and Tony Versteeg with prejudice.

3. Lynn C. Spafford and Tony Versteeg may appear Pro Se and as General Managers on

behalf of the above referenced quasi-partnership legal entities, without objection by

Plaintiff or its Counsel.

4. At the time Teton View is able to obtain a construction loan, Teton View will pay

$850,000 to Plaintiff in the following manner: $175,000 will be paid to satisfy Plaintiff's

Deed of Trust filed in Bonneville County on August 25, 2008 as Instrument Number

1309847; $675,000 will be used to pay down the amount owed on the Amendment of

Deed of Trust recorded as Instrument #1292697 in Bonneville County on March 10,

2008. Teton View will pay Plaintiff the remaining $175,000 plus interest owed within

180 days of the initial $850,000 payment to Plaintiff from the construction loan.

5. Teton View agrees to pay Plaintiff's attorney's fees until Plaintiff has been paid

$1,025,000.00. Plaintiff acknowledges receipt of $9,200 attorney's fees for payment of a

title search, court costs and attorneys fees.

STIPULATION - 2 50

6. Plaintiff acknowledges receipt of its interest payment for May, June, July, August,

and September. Plaintiff acknowledges there is still $5,300 in escrow for payment of

interest which will bring interest on the note current through October 28, 2008.

7. Any and all allegations concerning payment of a $10,000 extension fee are

dismissed with prejudice, and plaintiff acknowledges payment and receipt of said fee.

8. Plaintiff has been granted a Second Deed of Trust on the 4.3 acre commercial

property in the sum of $250,000. Plaintiff hereby acknowledges receipt of payment

against principal on said Note in the sum of $75,000.

9. Plaintiff is currently a member of Teton View Golf Estates, LLC. Teon View Golf

Estates, LLC, or its assigns, agree to buy out Plaintiffs interest in Teton View for the

non-interest bearing sum of $250,000, payable pro rata out oflot releases as lots are sold,

provided that this matter does not go to judgment or sale. A separate deed of trust and

promissory note will be signed, along with the terms of this buy-out, prior to the

construction loan being obtained. Plaintiff will be relieved of its responsibility to sign an

indemnification, personal guaranty or to provide financials with or to any Third Party

including First American Title Company.

I 0. Teton View will use best effo1is to obtain a construction loan as soon as possible.

Plaintiff will grant Teton View an extension until October 31, 2008 to obtain a

construction loan. lf a construction loan is not obtained within the above time frame,

Teton View will need to postmark its answer by October 31, 2008.

l 1. lf any provision of this Stipulation is found to be contrary to law, the remainder of

that provision (ifany) and the remaining provisions of this Stipulation will remain in full

force and effect.

12. The waiver ofa breach of this Stipulation may be effected only by a writing signed by

the waiving party and does not constitute a waiver of any other breach. A provision of

STIPULATION - 3

51

this Stipulation may be altered only by a writing signed by both parties that expressly

states that it is an amendment of this Stipulation.

13. This Stipulation and performance hereunder shall be governed in accordance with the

laws of the State ofldaho.

14. This Stipulation represents the entire understanding between the parties and

supersedes all other Stipulations, expressed or implied, between the parties concerning

the subject matter hereof.

15. This document may be signed in counterparts, which counterparts shall comprise

the entire document. Moreover, a facsimile copy shall be deemed as valid as an

original.

16. All other claims and defenses are hereby reserved and, if not referenced herein, or

modified by a separate writing, may be raised at a later date in a timely fashion.

Lynn C. Spafford, individually and as Manager of Teton View Golf Estates, LLC

Tony Versteeg, individually and as Manager of Rothchild Properties, LLC and Western Equities, LLC

_J~ltit~ c_ ~L Melinda Boswell - Manager of Plaintiff

jK 2i~.~n.-_ Alan Hanison - Attorney for Plaintiff

STIPULATION - 4

Dated:

Dated:

Dated: I l' /2.z / 0 5 ----~---

Dated: IO- :J-f-o P'

this Stipulation may be altered only by a writing signed by both parties that expressly

states that it is an amendment of this Stipulation.

13. This Stipulation and performance hereunder shall be governed in accordance with the

laws of the State ofldaho.

14. This Stipulation represents the entire understanding between the parties and

supersedes all other Stipulations, expressed or implied, between the parties concerning

the subject matter hereof.

15. This document may be signed in counterparts, which counterparts shall comprise

the entire document. Moreover, a facsimile copy shall be deemed as valid as an

original.

16. All other claims and defenses are hereby reserved and, if not referenced herein, or

modified by a separate writing, may be raised at a later date in a timely fashion.

Dated: /t}-4-1 1/- () ff

Dated: --------

Melinda Boswell - Manager of Plaintiff

Dated: --------

Alan Harrison - Attomev for Plaintiff

STIPULATION - 4

53

Alan R. Harrison ALAN R. HARRJSON LAW, PLLC 497 N. Capital Ave, Suite 210 Idaho Falls, Idaho 83402 Telephone: (208) 552-1165 Fax: (208) 552-1176 (ISB#: 6589)


i,:_J'' F' 51

IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT or THE



Plaintiff,

vs.

TETON VIEW GOLF ESTA TES, LLC, a Utah limited liability company; ROTHCHILD PROPERTIES, LLC, a Utah limited liability company; WESTERN EQUITY, LLC, a Utah limited liability company: LYNN SPAFFORD, individually; TONY VERSTEEG, individually: AMERITITLE COMPANY; ZBS, LLC. an Idaho limited liability company; DEPATCO, INC., an Idaho Corporation: SCHIESS & ASSOCIATES, P.C .. an Idaho Professional Service Corporation; DOES 1-3, and ALL PERSONS IN POSSESSION OF REAL PROPERTY DESCRIBED HEREIN,

Defendants.

) ) )

)

)

)

) )

) ) )

)

) ) )

) ) )

) ) )

) )

) )

-- )

Case No. CV-08-4395

ORDER ADOPTING STIPULATION

The Plaintiff, Idaho Development, LLC, a Utah limited liability company, (hereinafter

referred to as "PLAINTIFF'') and Defendants, Teton View GolfEstate§.:):'~!::_C, Rothchild Properties,

ORO ER Aoon,No sT,rULA TION , 5 1! /tf !0 /!-~/ /{)/

LLC, Western Equity, LLC, Lynn Spafford, and Tony Versteeg by and through Lynn Spafford and

Tony Versteeg, have entered into a stipulation resolving some of the matters in the above lawsuit:

The Comi having revie\ved the file, and based upon the records and file herein, and good

cause appearing now finds:

This court has jurisdiction over this matter, and can enter the following order.

NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS

FOLLOWS:

1. That the Stipulation entered into by and between the parties on the 22. 24, and 25th of

October, 2008 is hereby approved, merged and incorporated into this Order Adopting Stipulation.

Each party is ordered to comply with all of the terms and provisions thereof.

2. Count III (Breach of Contract) and Count IV (Constructive Trust) are dismissed with

prejudice.

3. Defendants Lynn C. Spafford and Tony Versteeg are dismissed from the lawsuit with

prejudice.

4. Any and all allegations concerning payment of a $10,000 extension fee are dismissed

with prejudice, and plaintiff acknowledges payment and receipt of said fee.

tJ ~

L::1 &--Dated this_;,;_ day of November. 2008.

Judge '-7[

ORDER ADOPTING STIPULATION - 2 55

NOTICE OF ENTRY

I HEREBY CERTIFY that I mailed a true and correct copy of the foregoing Order Adopting the Stipulation of Parties to the persons listed below, prepaying the postage thereon or courthouse box this 1J day of November, 2008.

Alan R. Harrison 497 N. Capital Ave., Suite 210 Idaho Falls, Idaho 83402

Lynn Spafford 2858 E. Willow Creek Dr. Sandy, UT 84093

Rothchild Properties Served to Lynn Spafford as Registered Agent at address listed above

Tony Versteeg 11105 Londonderry Dr. Sandy, UT 84092

Teton View Golf Estates, LLC Served to Tony Versteeg as Registered Agent at address listed above

Western Equity, LLC Served to Tony Versteeg as Registered Agent at address listed above

Clerk of the Court

56 ORDER ADOPTING STIPULATION - 3

Alan R. Harrison ALAN R. HARRISON LAW, PLLC 497 N. Capital Ave, Suite 210 Idaho Falls, Idaho 83402 Telephone: (208) 5 52-1165 Fax: (208) 552-1176 (ISB#: 6589)





Plaintiff,

vs.

TETON VIEW GOLF EST A TES, LLC, a Utah limited liability company; ROTHCHILD PROPER TIES, LLC, a Utah limited liability company; WESTERN EQUITY, LLC, a Utah limited liability company; AMERITITLE COMPANY; ZBS, LLC, an Idaho limited liability company; DEPATCO, INC., an Idaho Corporation; SCHIESS & ASSOCIATES, P.C., an Idaho Professional Service Corporation; HD SUPPLY WATERWORKS, LTD,; DOES 1-3, and ALL PERSONS IN POSSESSION OF REAL PROPERTY DESCRIBED HEREIN,

Defendants.

) )

) ) ) ) ) ) ) ) )

) ) ) ) ) )

) ) ) ) ) ) ) ) )

-----------)

57

Case No. CV-08-4395

AMENDED COMPLAINT TO FORECLOSE DEED OF TRUST AND OTHER ACTIONS

AMENDED COMPLAINT TO FORECLOSE DEED OF TRUST AND OTHER ACTIONS - 1


(hereinafter referred to as "IDAHO DEVELOPMENT") and for relief against the Defendants,

complains and alleges as follows:

GENERAL ALLEGATIONS

1. Plaintiff, IDAHO DEVELOPMENT, is a Utah limited liability company, whose

registered agent is in Salt Lake City, Utah.

2. Defendant TETON VIEW GOLF ESTATES, LLC, is a Utah limited liability

company whose registered agent is in Sandy, Utah (hereinafter referred to as "TETON

VIEW"). The deed of trust for the property described herein is located in Idaho and was

signed by Tony Versteeg as managing member of TETON VIEW.

3. Defendant ROTHCHILD PROPERTIES, LLC, is a Utah limited liability company

whose registered agent is in Sandy, Utah (hereinafter referred to as "ROTHCHILD").

ROTHCHILD is a member of TETON VIEW. ROTHCHILD is the titled owner of a certain

4.320 acres given by warranty deed from TETON VIEW to ROTHCHILD dated May 20,

2008, and recorded as Instrument No. 1300380 on May 22, 2008, records of Bonneville

County, Idaho. The above 4.320 acres were originally a paii of the deed of trust in which

IDAHO DEVELOPMENT was the beneficiary.

4. Defendant WESTERN EQUITY, LLC, is a Utah limited liability company whose

registered agent is in Sandy, Utah (hereinafter referred to as "WESTERN EQUITY").

WESTERN EQUITY is one of the managers of TETON VIEW.

5. Defendant ZBS, LLC, is an Idaho limited liability company with its principal place of

business in St. Anthony, Idaho (hereinafter referred to as "ZBS"). ZBS may have or claim

some interest in the property described herein and in the security described herein by virtue

58 AMENDED COMPLAINT TO FORECLOSE DEED OF TRUST AND OTHER ACTIONS - 2

of a deed of trnst given by TETON VIEW to ZBS, dated March 4, 2008, and recorded as

Instrument No. 1292699 on March I 0, 2008, records of Bonneville County, Idaho.

6. Defendant AMERITITLE COMP ANY is the Trustee for a Deed of Trust granted by

TETON VIEW for the benefit of ZBS, dated March 4, 2008, and recorded as Instrument No.

1292699 on March 10, 2008, records of Bonneville County, Idaho.

7. Defendant DEPATCO, INC., is an Idaho Corporation with its principal place of

business in St. Anthony, Idaho (hereinafter referred to as "DEPA TCO"). DEPA TCO has

done work on the property described herein and has a lien recorded October 20, 2008, under

instrument No. 1314 766, records of Bonneville County, Idaho. To the extent DEPATCO

claims any interest in the real property described herein and in which Plaintiff claims a

secured interest, said Defendant is named herein to clear said interest or to establish said

interest is junior, subordinate and subsequent to the right and lien of Plaintiff. Depatco has

filed

8. Defendant SCHIESS & ASSOCIATES, P.C., is an Idaho Professional Service

Corporation with its principal place of business in Idaho Falls, Idaho (hereinafter referred to

as "SCHIESS"). SCHIESS has provided engineering services for the property described

herein and may have or claim some interest in the property described herein which interest is

unknown to Plaintiff but to the extent SCHIESS claims any interest in the real property

described herein and in which Plaintiff claims a secured interest, said Defendant is named

herein to clear said interest or to establish said interest is junior, subordinate and subsequent

to the right and lien of Plaintiff.

9. Defendant HD SUPPLY WATERWORKS, LTD, doing business as HD SUPPLY

WATERWORKS, has a lien against the property recorded October 30, 2008, under


instrument No. 1315631, records of Bonneville County, Idaho. HD SUPPLY

WATERWORKS has provided materials for the property described herein and to the extent

HD SUPPLY claims any interest in the real property described herein and in which Plaintiff

claims a secured interest, said Defendant is named herein to clear said interest or to establish

said interest is junior, subordinate and subsequent to the right and lien of Plaintiff.

10. There may be some other persons, including corporations, or other entities, claiming

some right, title or interest in all or any part of the real property described in the deed of trust

and mentioned herein, and if so, there true names are unknown to the Plaintiff. Such

unknown Defendants, if any there be, are therefore joined and referred to here under by the

fictitious names of Doe 1, Doe 2 and Doe 3, until such time as their true and correct names

are determined.

11. There are believed to be some persons who are in possession of the real property

described herein, there true names are unknown to the Plaintiff. Such unknown Defendants,

are therefore joined and referred to here under as those persons who are in possession of the

real prope11y described herein.

12. The above named Defendants, and each of them claim some right, title, lien or

interest in the property described in Plaintiffs deed of trust, but their interest, if any, in and

to said property is junior, subordinate and subsequent to the right and lien of the Plaintiff.

13. IDAHO DEVLEOPMENT agreed and promised to give to TETON VIEW for the

purchase of the said property described herein, the sum of $1,100,000.00 (the loan). As

evidence of said loan, on or about February 29, 2008, in the City ofldaho Falls, County of

Bonneville, State ofldaho, VERSTEEG on behalf of TETON VIEW executed and delivered

60 AMENDED COMPLATNT TO FORECLOSE DEED OF TRUST AND OTHER ACTTONS - 4

to IDAHO DEVELOPMENT a promissory note, a true and correct copy of which is attached

hereto as Exhibit "A", and by this reference made a part of this Complaint.

COUNT I (Foreclosure)

14. Plaintiff hereby incorporates each and every allegation contained in paragraphs 1

through 13 of Plaintiffs Complaint as if fully set forth herein.

15. As security for the repayment of the loan, together with interest, costs, and attorney's

fees, TETON VIEW executed and delivered to IDAHO DEVELOPMENT a deed of trust

dated February 29, 2008, on the following real property situated in Bonneville County, Idaho,

to-wit:

Beginning at a point that is South 0°27'09" East 25.00 feet along the section line from the Northeast Corner of Section 31, Township 3 North, Range 38, East of the Boise Meridian, County of Bonneville, State ofldaho, and running thence South 0°27'09" East 913.64 feet along the section line; thence South 89°32'51" West 1641.08 feet; thence South 39°14'56" East 502.03 feet to the 1116th line of Section 31; thence South 89°00'06" West 104. 71 feet to the centerline of the Idaho Canal; thence along the centerline of the Idaho Canal the following four courses: (1) North 36°27' 12" West 633.43 feet; (2) North 15°03'08" West 239.69 feet; (3) North 1°10'58" East 246.69 feet; (4) North 2°53'42" East 297.79 feet to a point on the South Right-of-Way line of Tower Road; thence North 89°00'00" East 1839.63 feet along said road Right-of-Way to the POINT OF BEGINNING.

ALSO:

Beginning at a point that is South 00°16'08" East along the Section line 1066.05 feet from the Northeast Corner of Section 31; Township 3 North Range 38 East of the Boise Meridian, County of Bonneville, State ofldaho; rnnning thence South 89°43'52" West 374.11 feet; thence North 00°49' 18" West 127.48 feet; thence North 89°43 '52" East 160.34; thence South 00°16'08" East 100.00 feet; thence North 89°43'52" East 182.00 feet; thence North 00°16'08" West 100.00 feet: thence North 89°43'52" east 33.00 feet to the East line of said Section 31; thence South 00°16'08" East along the East line 127.47 feet to the POINT OF BEGINNING.

Said deed of trust was recorded February 29, 2008, as Instrnment No. 1291905,



the grantors as set forth in Exhibit "B" attached hereto, which is a true and correct copy of

said deed of trust, hereby incorporated by reference as if set forth in full at this place.

16. Said deed of trust was amended by the parities. Said amendment was evidenced by

an Amendment of Deed of Trust dated March 3, 2007, and recorded as Instrument No.

1292697 on March 10, 2008, records of Bonneville County, Idaho. The amount on the Deed

of Trust was amended to $850,000.00. Exhibit "C" attached hereto, which is a true and

correct copy of said Amendment, hereby incorporated by reference as if set forth in full at

this place.

17. IDAHO DEVELOPMENT gave a partial reconveyance of 4.320 acres. Melinda

Boswell, (hereinafter referred to as "BOS WELL") signed a Request for Partial Reconveyance

on April 22, 2008. A Partial Reconveyance dated May 15, 2008, on the following real

property situated in Bonneville County, Idaho, to-wit:

Beginning at a point that is S00°27'09"E 66.06 feet along the East Section line and N90°00'00"W 50.00 feet from the Northeast Section Comer of Section 31, Township 3 North, Range 38 East of the Boise Meridian, Bonneville County, Idaho, running thence S00°27'09"E 489.76 feet; thence S89°03'37"W 371.44 feet; thence N00°00'00"E 509.78 feet; thence N89°00'00"E 347.27 feet; thence S45°26' 14"E 28.50 feet to the point of beginning, containing 4.320 acres.

Said partial reconveyance was recorded May 15, 2008, as Instrument No. 1299740,


the grantors as set forth in Exhibit "D" attached hereto, which is a true and correct copy of

said partial reconveyance, hereby incorporated by reference as if set forth in full at this place.

18. The promissory note called for monthly interest installments beginning February 29,

2008 with like payment due on the same day each month thereafter until the principal was


paid in full, but no later than 90 days from the date of the note, when the entire principal plus

all accrued interest become due and payable.

19. The deed of trust indicated the final payment of the full principal was to be paid by

May 28, 2008.

20. TETON VIEW failed to pay the principal amount due on the promissory note and

interest payments.

21. Defendant TETON VIEW is in default of said promissory note as they have failed to

pay the interest due on the promissory note or the principal amount due and owing. Fmiher,

the Defendant TETON VIEW is in default of the terms and provisions of the deed of trust

with respect to repayment of the loaned amount.

22. Plaintiff has sent a demand letter calling the note due. Further, Plaintiff hereby

declares and does hereby declare, all sums owing under said note and deed of trust due and

payable in full.

23. There is now due and owing upon said note and deed of trust the principal balance of

$1,025,000.00, plus unpaid interest, at the rate of six percent (6%). Said interest shall

continue to accrue until entry of decree herein.

24. Further, there is due and owing to the Plaintiff under the deed of trust, any costs and

attorneys fees incurred and for any costs which might be incurred by Plaintiff as a result of

the default of Defendant TETON VIEW.

25. Said deed of trust, among other things, provides that, in the case of default, all costs,

fees, and expenses, including cost of evidence of title and reasonable counsel fees will be

deducted from the sale. Plaintiff alleges that it has been compelled to have the title searched

in order to ascertain the names of the Defendants in this foreclosure proceeding; that he has


agreed to pay Idaho Title and Trust for preliminary report of title, together with a policy of

title insurance at the conclusion of said foreclosure, which sum is secured by the terms of the

deed of trust attached hereto, said amount to be established at trial.


Defendant of reasonable attorney fees incmred by Plaintiff in case said note is collected by an

attorney or deed of trust is in default, and that Plaintiff has agreed to pay its attorneys a

reasonable fee for the foreclosure of the deed of trust and collection of said note.


Defendants of any reasonable costs incurred by Plaintiff in case said note is collected by an

attorney or said deed of trust is in default, and Plaintiff would request that Defendant be

required to pay any costs incurred in the foreclosure of said deed of trust or collection of the

note, including any taxes, assessments, etc.

28. Said premises have at all times heretofore been used together as one lot and every

part thereof is necessary for the best use and enjoyment of said property and the same cannot

be sold in separate parcels without material injury to the parties hereto.

29. The Plaintiff is now the owner of said promissory note and deed of trust. The

Defendant, TETON VIEW, is now the vested owner of said property.

30. The Deed of Trust and note described above have never been satisfied or discharged.

31. A reasonable value for the property shall be proven at trial.

32. IDAHO DEVELOPMENT has no speedy or adequate remedy at law, and no other

proceedings at law, or in equity, either commenced or pending to collect said loan or any

portion thereof or to foreclose the Deed of Trust.


33. Plaintiffs have retained legal counsel to aid them in the enforcement of said Deed of

Trust and the loan and the collateral securing the same and to foreclose on the same and

reasonable attorney's fees for the bringing of this action is the sum of $5,000.00 if said

judgment is entered by default and for such additional amounts as the Court deems just and

equitable if judgment is entered other than by default.

COUNT II {Promissory Note) {Alternative Count)

34. IDAHO DEVELOPMENT hereby incorporates paragraphs 1 through 33 of this


35. On or about February 29, 2008, VERSTEEG, acting for TETON VIEW in the City of

Idaho Falls, County of Bonneville, State of Idaho, executed and delivered to Plaintiff a

promissory note, a true and con-ect copy of which is attached hereto as Exhibit "A", and by

this reference made a part of this Amended Complaint.

36. On said date, as indicated above, Defendants borrowed from Plaintiff the sum of

$1,100,000.00. The promissory note was signed to evidence said loan and to evidence the

terms for repayment of the loan. The loan was repayable as described above.

37. Since borrowing said money, Defendants have failed to make payments of principal

or interest in accordance with the terms of the loan. Despite repeated demands for full

payment, Defendant TETON VIEW owe to Plaintiff on the note the principal sum of

$1,025,000.00, together with accruing interest at the rate of six percent (6%) per annwn.

Costs, attorney's fees, and interest at 6% per ammm continue to accrue under the note.

3 8. Said loan, among other things, provides that if payment of any of the sums, either

principal or interest, shall not be paid at the times when said payment shall become due as

specified in said loan, the whole of the principal sum then remaining unpaid, together with


interest accrued thereon, shall become immediately due and payable at the option of the

holder of the note. Plaintiffs hereby declare the entire unpaid balance of the note, plus

accrued interest, due and payable.

39. Furthem1ore, TETON VIEW is in default in that they have failed to pay the balance

of installments due on said note and, under the terms and provisions of said note and deed of

trust, is in default as set forth therein. There is now due and owing upon said note and deed

of trust the principal balance of $1,025,000.00, plus unpaid interest, costs, and attorney's

fees, together with interest at the rate of six percent (6%). Said interest shall continue to

accrue until entry of decree herein.

40. Plaintiff has been required to retain the services of an attorney to pursue this matter.

Plaintiff is entitled to be reimbursed his attorney fees and costs as to all counts pursuant to

the terms of the promissory note, deed of trust, I.C. § 12-120, 12-121 and I.R.C.P. 54.

WHEREFORE, Plaintiff prays for judgment as follows:

That pursuant to Count I herein, Plaintiff recover judgment as follows:

1. That the second deed of trust signed on March 7, 2 008 and recorded as instrument

number 1292697 in Bonneville County be set aside.

2. That Plaintiff is allowed to foreclose on the first deed of trust signed on February 29,

2008 and recorded as instrument number 1291905 in Bonneville County.

3. Plaintiff have judgment against Defendants, TETON VIEW, SPAFFORD, and

VERSTEEG, for the principal sum of $1,025,000.00 together with accruing interest at the rate of six

percent (6%); for any sums advanced by Plaintiff or for which Plaintiff becomes obligated to

advance for the payment, of any rents, taxes, insurance, and other governmental charges, fines or

impositions levied, assessed or charged against the secured property during the pendency of this


action; for the payment of any sums for work done on the property by SCHIESS or DEP ATCO or

HD SUPPLY WATER WORKS or any other entity which may have a claim against the secured

property; for the sum of Five Thousand and No/I 00 Cents ($5,000.00) as attorneys fees if this action

is uncontested, plus such additional sums as the Court may adjudge as reasonable in the event of

contest, trial or appeal; for Plaintiffs taxable costs and disbursements herein, for interest on the

entire amount of said judgment at the legal rate of interest from the date of judgment and thereafter

through sale.

4. That the aggregate sum above named be decreed to be a valid lien upon the premises

in the Amended Complaint described and that Plaintiff's deed of trust described herein be adjudged a

first and a prior lien upon the property superior to any right, title, claim, lien or interest on the part of

the named Defendants or persons claiming by, through or under said Defendants;

5. That the Plaintiffs deed of trust and other security documents described herein be

foreclosed and that the usual decree and order may be made for the sale of said real property therein

described, together with all water rights; provided however, that the real property be sold in one

parcel in accordance with and in the manner provided by law; that Plaintiff be pennitted to be a

purchaser at said sale; that the net proceeds of said sale be applied first toward the payment of the

costs of said sale, then towards the payment of Plaintiffs judgment; that Plaintiff have and retain a

deficiency of judgment against Defendant TETON VIEW, in the event that the bid at said sale is less

than the sum of Plaintiffs entire judgment, plus costs of sale;


6. That the sheriff execute, record and deliver to the purchaser(s) his sheriff's usual

certificate of sale and, after the expiration of the redemption period, his sheriff's deed for the real

property;

7. That the decree provide that after the sale of said property, all right, title, claim, lien

or interest of the named Defendants, and every person claiming by, through or under said

Defendants, in or to said property, including the right of possession thereof, from and after said sale,

be forever barred and foreclosed, and the purchaser at said sale be entitled to immediate possession

of the premises as allowed by law, subject only to such statutory right of redemption as said

Defendants may have by law;

8. That in the event the Plaintiff is the purchaser at said sale and possession of the said

premises is not surrendered to said Plaintiff, a writ of assistance be issued directing the sheriff of

Bonneville County to deliver possession of said premises to the Plaintiff;

9. For judgment against TETON VIEW, ROTHCHILD, WESTERN EQUITY, ZBS,

DEPATCO, SCHIESS, HD SUPPLY WATERWORKS, and All Persons in Possession of Real

Property Described Herein, that they have no right, title, claim or interest in or to the real property

described or referred to herein or in the deed oftrnst annexed hereto as Exhibit "B", or if any of said

Defendants have any such right, title, claim or interest in said real property, or personal property, the

same is subject, subsequent, junior and inferior to the rights therein and thereto of IDAHO

DEVELOPMENT, and of any purchaser at the foreclosure sale, including Plaintiff, if he be the

purchaser, and that all Defendants and all persons claiming under them shall be barred and

foreclosed of all right, title, claim and interest in and to all or any part of the real property, or

personal property, described in this Complaint;


11. That Plaintiff may have such other and further relief as may be just and equitable in

the premises.

Pursuant to Count II, Plaintiff recover judgment against Defendant as follows:

1. For the principal amount of $1,025,000.00, plus accruing interest, less any amount

which was collected under the foreclosure of the deed of trust;



3. For costs; and

4. For such other and further relief as the court deems just and equitable.

DATED this /.:2-'6day of January, 2009.

/~KL~ Alan R. Harrison Attorney for Plaintiff


I O_,

PROMISSORY NOTE

S 1,100,000.00 Idaho Falls, Idaho February 29, 2008

For Value rc.:eived, the undersigned promise to pay to the order of IDAHO DEVELOPl\fENT, LLC, 2192 Preston Street, Salt Lake City, Utah, 84106 At such place as the holder may designate in writing. THE PRlNCIPAL SUM OF ONE MILLION ONE HUNDRED THOUSAl'l'D AND NO/l0OTBS

Sl,100,000.00 together with interest beginning on February 29, 2008, at the rate of Six percent (6.0%) per annum, lawful money of the United States of America in installments as follows:

Monthly payments of Five Thousand Five Hundred Ninety five and 06/1 00ths Dollars (S6,S95.06), beginning on February 29, 2.008, and contlnulne on the same day of each and every mouth tb.ert.after until paid in run on or before, hut no later than 90 days from the date of this note, when the entire principal balance plus all accrued interest shall become due and payable IC note Is called due.

Note provides for payment to Idaho Development, LLC 15% net proceeds from each lot sale. lo addition, In the event tbat the Note Is not satlslied within the 90 day term at borrower's option, it may enlarge the Note with Idaho Development, LLC, to i.nsure adequate funding for completion of the project. At a minimum, at borrower's option, Idaho Developruent agrees to leave the sum of $500,000.00 in the project and to then subordinate to any third party construction financing.

If default be made in the payment of any installment under this note, the enti.re principal sum and accrued interest sbaU at once become due and payable without notice at the option of the holder of this note. The failure of the holder of this note to enforce its rights upon default in any of tbe terms of this note shall not constitute a waiver of any such right in the event of a subsequent default If suit is instituted to collect this note or any portion thereof, I agree to pay, in addition to the costs and disbursements as are allowed by law, such additional sums as the court may adjudge reasonable on attorney's fees in such suit. The makers, sureties, guarantors and endorsers hereof severally waive presentment for paymen~ protest, notice of protest and ofnoo-payment of this notice.

The indebtedness evidenced by this Note is secured by a Deed of Trust of even date, and reference is made to tbc Deed of Trust for rights as to acceleration of tbe indebtedness evidenced by this note.

Due: May 28, 2008

70 ExH iBtT ,4

er eputyi SSoUs .. lnd!!ll TQ: O!;ED OF TRusr . • .. Electronlcall}'Recorded by Slmpllfile

Order No, 3030818277LAC

COMMERCIAJiLOAN DEED. 0:FTRlJST

TiflS DEED. OF TRUST,.Madetbis February 29, 200813In':W~1'~iJ,Vl,wGol(E1bltes, LLC hereintallc:d~TOR, wbo111 ... ~1 i&: 637.lN, s"' s.;fdabpFa~;iD• 83401,.AND Alliance Title &; ~!JW Corp., ltetein c.alled TR'l]S~, AND I~ho Dev~p-nt, LLC, herein called BENltll1CIAllY, whose address is 2192 PteatonSlrcet; SaltLalal City, trr 84106.

W1TNESS8TH: ThatOr1111tor clollll hereby iuevocalily GRANT, B.ulGAIN, SELL AND CONVEY TO TRUSTEE IN TRUST WITH POWBR OP SALE, tbatlffl)Pllrt)' in the collnty of Bonne.ville, State of ldaha, d*ribed Ii/I follows and con!Aining not more than forty aei'es:

Beginning at ll pQlttt that ls South oo,27•091rE,ut 2'.00 reef along th,.~on1Jn41.fro~ the Northeast Co.-ner of Section 3-1, Townshlp:3No~ Range.38;Jut ot~ Boli$e M'.11rtiUan, County of&~evllle, State 0Udalt,1t;iu11l.~j~te Sott.tli>cm7•c,91, E~ !1i$;64 feet along the section Uiie; thencti ~uth 89"32!5l~W~164l.08 (e~;, _ · 39"14'.56" East 502Jl3 feottothe1/16111 llite:ofSecti11n31r~11n1:i½South:8~. . . -4~71 feet to the centerlineofthelwdto Canlli; thence iii •···· · · ··• · .·. · 1U>'e1of:t .... o:CaJiaUJie following four cours~ (1) North 36°21'11" .. · ;t;"3::ftet;i(2) Northi5°03'08" West 239.69 feet; (3) North 1 "10'58" East 246.69f~t; m North 2"53.'42" East 197.79 feet to a point on the South Rf~t-of-Way line o(l'.oweirltii11d; thence North 89~00'00" East 1839;63 feet along said road Rfght-of~Way to the- POINT OF BEGINNING.

ALSO:

Beghm.lng.at11pointthattsSo~0.OOl6:08"East~i,11gt1teSecttqnlhl.elli66.~·reet.troui the Northeast· Corner of S~ction 31; Townslilp 3 Nortli llange.38East oHh~ Ht>~ Meridian; County or Bolll14'Yflle, $We oi' Idaluitrnnnl"f thence South 8!P4a'!l2" Wlllt 374. U feet; thence North. 00°49'1811 W11$tl27.411Ceet; thence Nortb89°4,3'52'' :E.!Ut 160.34 feet; thence Stiuth.00°16'08" Eut 100\00C~eti thene4! l'fortlt 89"43'52" East1,si;oo feet; thence North 00"16'08" West 100.ooreet;.th.~c:11 North89"43'52"East 3.3.00 f~t to tbe E.ut Une of said Section 31; thence Sontli OOOl"O&'t Ealt idong the East tine 127,47 reet .to the POINT OF BEGINNING. .

.AJHance 'f.tle& t~.u,row G\'.lrp 1070 Rh1e1wa!k CJr., Ste. 1nn

PO. Bvx 5('1842. idc~h(, :;ans, ID fl3405-Ci!l4;1

72 ExHIB/113>·

State of Idaho

C<!Wlty ofBouncville

} )as. }

On thlJ 29th day of February, 2Q08, bef<mi' me, aNQtaf}' J.>Jthµ¢Jtl !llld.~r iaidstate, ~nally.appmed TonyM;V~ik:ilQWliOrfdentlftedto .• tobe~~ai#B~~.lntlle~Liability . Coqany ldiownu.J'.efunView Qqlrl!~1 I,LCwbo:OXli~.tlii' foreg~inatruinent, and· acknowledged to mi, that be ex~:th:o~irlnidtLClllllM. . .

INWl'I'NESS WHEREOF,lhaveborellnto setmyhaiiil llldaffi'.xed m' this certificate firat abil.ve written.

73 1291905

• AMENDMENT OP DEED OJJ' TRUST

MIDl:.As. lb Oantikdlddlab, ,xecwt lbdcWi¥m tottio a..ict.q • Nott Nandbytbll clNba.Dooclof t'nilt b a. a:mowa orOao MDlkJd. DOD mmdn4 GialMiut lOd iwl 00 Oolw" (I \, 100,000.00), reoorded u lm~NO. 11919~, to dt.roc.ocdl O(Socmmll.Coullly1 Idaho. oovcbil the pN'rn(IH ducrfbed u Ailknn1

B,q;mtns at a pobu. dia1 ta s O"l"F't»'" 8 2::S.00 k aioo, ae Mitdoa u.. &om aie NotibNt1 • ·• of 8edioa 11. To'\lf'Qlblp 3 ~orlh. Raqa3A, But or CM Bot,, Meri\llal:i,. Boauv\Ut Cquoty, Ida.ho_ uld NDn4c& ditaa1 8 O"'JTilP&911,A fi:aelalq btSocUoo lino; tticua.8 IP-3t'S1• W 104\..0C tlNt; 0...8 S~l-4'56• B SOl.Ol &ifl to tit lll6th W)O ofSoc:tion :J I; 1flecc4 S W'OO'C)6" W ll)Ul~to'tt. ....0.. 'ott111 l1Wao C..W1 thtott llqcbe c~r!lne otehe fdaho Ow.I illo fbl)o"MJ:18 fburOCMICl: (I) N 16~'7'12"' W di)9A3 k1; (t) N lS-OJ~" W U9M rue: (3) N 1• IO'SS" l! 2,46.69 kt: (4) N ~·n·.u· 8 m :it 6d 10 1 _potnl on h 80'0m -.a:i,W-ol'-Wa)' l!DofTo.u Raad; tbr.nc.e N. 89.00'00" 1l IIS9.63 ~ akq Mid roadJll&M;-of-W-.ylO tlitpoiaM of~.

ALSO,

De~ at a pofnrthi.t'!ii S 00•16'01!" B a!dq tha ~ IIM, 1066.M ~ heo a. Mor....,._ concr ota.:clot, ll, To'1111111hip 3 Norfh.,!4D:p 31-But of 0. &obit 'MJrld:i... Bcmllmtl, ~,•Sdllio; nmbit 0.... 1 WO'S:r W37'1.1 1 &cc;dumceN 00°-4.9'ta-w 121AIJ'Mc;ttmc.Nl9~.J·n· B 160.k (aitO'lll!IOIIOO"IN"B IOOAIO feet; tbeou N 1:9•-43-,2" B 111.00 Cet,t; ~ N 00"16')1• W 100.00 fN1; lhmot )I .9'4.J'S:Z'"' 8 Jl.00 t. • llht Ew lint of t&id Scelioa 3 li theDc• 8 ~U'O.-.B &lamt die J!alllC Une 117.47 t.c. to ci.po1a caf"lh ...

And

WIIEll;\$, il»pa,1!a1 - .. - - oflbo- omdl<,o pw,lolom otll>e--Dto<I .mu,,"" tm.RPO-.ur-taatirp:,411:ldV~~tli.~...,dla,--ud 1tt , --A.,D-4 or'nv,1 POYW,c.t.cribod.a.Jl'ti.oden 1*-, ..,., .. dd1:'0di6od ill 16,wt: . . . .

1. Tho lma'allloltbo Deed cfn.: all ... 111w«M IO suopoo.(10, . ,

AD um. udcmdbfons tf!tt. Noa CIIS:Oeod.,,_..,_ .,_,......a..-• ....... accep1u a=--W llldl~ mo(fi.6ed bend:. ••

,.,.wd ~ I 1 /t?,z,

. . ---"'bolliQ-.. .., -ani< ft hunorbion · · ....,_ .... il'a .......... .;,,,,.

~ OI """'M r.'llt, I .

74 1292897

• ) >• )

:,

.,

75

. .

12UH7

•

·--·-------- ··-··--·. -- -A ALLIANCE. " ''' • ,, , ,.o., to•••

file No,: 303()8 I 8217

Pum.tant '°a~ reqtiett made by die bti,c6ciary, the under.riped, u tru1b:e in ibc deed of trwi <:XCQl\~by

Tetan Vk:"" <;ot£l'Alt.ttt:, LLC

To ldabo DrtoloplJ\Clll, LLC, reeotded ftbr11ary 29, 1001 llJ ltutrumctrt No. 1291905 ft'eotds or Boooc"ilk County, Id.ho, docs hcteby OP.ANT ar..d R£CONV8Y UDto the parties LeGALLY £NTJTU.J) THERETO. withoo.t 'Wm'fflrty. all the eittt.c md ~,1 derind In the tnutce wlder .1ttid.deed of mlir.. io that portion o(tbe latids tn~ dett:nocd u {qUow,;

Begl:su,.tq 1t • po tot taat lJ S00°27'09"& 66.06 feet llo11g tbe E1rt Stctlon llne ancl N90000'00"W 50,00 fttt from th..e North1:mt s~ctlon Corner of Section J1., Township 3 North, RA.ltae 38 East or tbe Boise J\,f~dlan, Bonneville Coollty, Idaho, nnu1Jng ibe11ce S00°27'09E 48-9.76 fut; tbcace S89"03'37"'W 311.44 fut; tbeace NOO-OOO'OO"E 509.78 feet:; the.nee N89'100'00"E 347.21 feet; thentt S4S0l6'141'1£. 28.SO feet to tbe pol a t ofi:t-rglnniog, contain.lag 4.320 atttt.

May U,lOOS

State of Idaho

County of !lonneville

} }, .. }

/

On this 15th day o(M.ay, 2008, before me, a Not.ary Publie in and for said state, pcnonaJly appe.vcd Mary Bnlggtnlwnp knnn to me to bo the Vi-00 Pre1ide:ll1 of'thc Corporation, and ' aclmowlodeed to rrie that punaantto Resolution of the Boa.rd or directors, executed the ,ame In said Corporation n~.

76

Alan R. Harrison ALAN R. HARRISON LAW, PLLC 497 N. Capital Ave, Suite 210 Idaho Falls, Idaho 83402 Telephone: (208) 552-1165 Fax: (208) 552-1176 (ISB#: 6589)





Plaintiff,

vs.

TETON VIEW GOLF ESTATES, LLC, a Utah limited liability company; ROTHCHILD PROPERTIES, LLC, a Utah limited liability company; WESTERN EQUITY, LLC, a Utah limited liability company; LYNN SP AFFORD, individually; TONY VERSTEEG, individually; AMERITITLE COMPANY; ZBS, LLC, an Idaho limited liability company; DEPATCO, INC., an Idaho Corporation; SCHIESS & ASSOCIATES, P.C., an Idaho Professional Service Corporation; DOES 1-3, and ALL PERSONS TN POSSESSION OF REAL PROPERTY DESCRIBED HEREIN,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

_______________ )

Case No. CV-08-4395

STIPULATION TO AMEND COMPLAINT

COMES NOW the Plaintiff, Idaho Development, LLC, and Defendants, Teton View Golf

Estates, LLC, Rothchild Properties, LLC, Western Equity, LLC, and stipulate to amend the

STIPULATION TO AMEND COMPLAINT - 1 '77'

complaint in the above action to comply with the Order Adopting Stipulation in which Counts III

and IV were dismissed, along with Defendants Tony Versteeg and Lynn Spafford. A copy of the

amended complaint, which was filed with the Court, has been reviewed by the parties to this

Stipulation. The parties agree Defendants Teton View Golf Estates, LLC, Rothchild Properties,

LLC, Western Equity, LLC, will have 20 days to provide an answer to the Amended Complaint.

Tony V e'rs· eeg, fdf est em Equity a?d as Manager of Teton View Golf Estates, LLC (.. /

Alan Harrison - Attorney for Plaintiff

STIPULATION TO AMEND COMPLAlNT - 2 78

Dated: /-J 7 - 0'1

Dated: 6/: 29- 0-f

Dated: 2 -2 -v7

NOTICE OF ENTRY

I HEREBY CERTIFY that I mailed a true and correct copy of the foregoing Order Adopting the Stipul~t~ of Parties to the persons listed below, prepaying the postage thereon or courthouse box this _2_oay of February, 2009.

Lynn Spafford for Rothchild Properties 2858 E. Willow Creek Dr. Sandy, UT 84093

Rothchild Properties Served to Lynn Spafford as Registered Agent at address listed above

Tony Versteeg for Teton View Golf Estates, LLC and Western Equity, LLC 11105 Londonderry Dr. Sandy, UT 84092

Alan R. Harrison

STIPULATION TO AMEND COMPLAINT- 3

Alan R. Harrison ALAN R. HARRISON LAW, PLLC 497N. Capital Ave, Suite 210 Idaho Falls, Idaho 83402 Telephone: (208) 552-1165 Fax: (208) 552-1176 (ISB#: 6589)


2009 MAR I 8 Ml 11: 3 3

IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF BONNEVILLE


Plaintiff,

vs.

TETON VIEW GOLF EST A TES, LLC, a Utah limited liability company; ROTHCHILD PROPER TIES, LLC, a Utah limited liability company; WESTERN EQUITY, LLC, a Utah limited liability company; AMERITITLE COMPANY; ZBS, LLC, an Idaho limited liability company; DEPA TCO, INC., an Idaho Corporation; SCHIESS & ASSOCIATES, P.C., an Idaho Professional Service Corporation; HD SUPPLY WATERWORKS, LTD,; DOES 1-3, and ALL PERSONS IN POSSESSION OF REAL PROPERTY DESCRIBED HEREIN,

Defendants.

) ) ) ) )

) ) ) ) ) ) ) ) ) ) ) ) )

) ) ) ) ) ) )

Case No. CV-08-4395

ORDER OF DEFAULT AND DEFAULT JUDGMENT

RIECIE~V!E[D) MAR 1 1 2009

---------------

From the affidavit of Plaintiffs counsel and court record, it appears Defendants TETON

VIEW GOLF ESTATES, LLC; ROTHCHILD PROPERTIES, LLC; and WESTERN EQUITY,

LLC, were given twenty days to appear in this action on its own behalf or through counsel herein on the 2nd

r·o ~ -ORDER OF DEFAULT AND DEFAULT JUDGMENT - 1

day ofFebruary, 2009. Subsequent to that time, the Defendants TETON VIEW GOLF EST ATES, LLC;

ROTHCHILD PROPERTIES, LLC; and WESTERN EQUITY, LLC, have not entered any appearance

with the Court in this action and the time within which the above Defendants could appear has expired and the

time for which Defendant could appear or otherwise respond to Plaintiffs Amended Complaint has not been

extended. The time allowed by law to answer or appear has expired. It appears the defendant is not an

infant, incompetent person, nor is defendant presently in the military service. Based on the forgoing

and for good cause appearing, the court enters the default of the Defendants TETON VIEW GOLF

LC; ROTHCHILD PROPERTIES, LLC; and WESTERN EQUITY, LLC, on tl~

ORDER OF DEFAULT AND DEFAULT cTUDGMENT - PAGE - 2

81

NOTICE OF SERVICE

I HEREBY CERTIFY that I mailed a true and correct copy of the foregoing Order Adopting the Stipulf?.ED of Parties to the persons listed below, prepaying the postage thereon or courthouse box this Daay of March, 2009.

Lynn Spafford for Rothchild Properties 2858 E. Willow Creek Dr. Sandy, UT 84093

Tony Versteeg for Teton View Golf Estates, LLC and Western Equity, LLC 11105 Londonderry Dr. Sandy, UT 84092

Alan Harrison 497 N. Capital Ave Suite 210 Idaho Falls, ID 83402

ORDER OF DEFAULT AND DEFAULT ,JUDGMENT- 3

82

Lynn C. Spafford, In Propria Persona, General Partner, Teton View Golf Estates P.O. Box 711946 Salt Lake City, UT 84171 Facsimile: (801) 930-9024 Telephone: (801) 916-9200

Tony M. Versteeg, In Propria Persona, General Partner, Western Equity, Rothchild Properties 11105 S. Londonderry Drive Draper, UT 84092 Facsimile: (801) 816-3959 Telephone: (801) 661-4344

l '!'[''

IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT

STATE OF IDAHO IN AND FOR BONNEVILLE COUNTY

IDAHO DEVELOPMENT, LLC, a Utah Limited Liability Company,

Plaintiff,

TETON VIEW GOLF ESTATES, a Utah Limited Liability Company, et al.,

Defendants.

TETON VIEW GOLF ESTATES, a Utah Limited Liability Company, and ROTHCIDLD PROPERTIES, a Utah Limited Liability Company,

Third Party Plaintiffs,

vs.

} Case No. CV-08-4395

} DEFENDANTS' ANSWER TO

}

}

}

FIRST AMENDED COMPLAINT, COUNTERCLAIM & THIRD PARTY

COMPLAINT

83

MELINDA BOSWELL, and DAVID C. CLARK,

}

Third Party Defendants. }

CO:MES NOW Defendants, Lynn C. Spafford, In Propria Persona, in his capacity as

General Partner of Teton View Golf Estates ("Teton View"); Tony M. Versteeg, In Propria

Persona, in his capacity as General Partner of Rothchild Properties ("Rothchild"), and Western

Equities in response to Plaintiff's First Amended Complaint on file herein, to admit deny and

allege:

PROCEDURAL STATEMENT

By way of Stipulation and subsequent Order of this Court, any and all allegations or

references in the prayer against Lynn C. Spafford and Tony M. Versteeg have been dismissed

with prejudice. To this extent any and all related factual or legal allegations pertaining to these

claims are improperly referenced in plaintiff's prayer, or otherwise, they are denied in their

entirety.

GENERAL AFFIRMATIVE DEFENSES

I

Plaintiff has failed to state a claim upon which relief may be granted.

II

Plaintiff has no standing to sue.

m This matter is subject to a Joint Venture Agreement and Teton View Articles of

Organization, which supplements and supersedes the provisions of the Deed of Trust at Issue.

Said Joint Venture Agreement, and Articles of Organization clearly call for Binding Arbitration

as the exclusive remedy herein, with an automatic right of Appeal. Accordingly, this controversy

should properly be stayed and transferred before an Arbitrator within the State of Utah, under a

properly filed Motion to Compel Arbitration.

84

IX

Each and every act of misconduct by Plaintiff and its Agents gives rise to a claim of

offset which should be considered by the Court in any assessment of damages herein, including

loss of profits and loss of the building season occasioned by the misconduct of Plaintiff and/or its

Agents. Said sum negates or exceeds any claim of damages by Plaintiff herein.

DEFENSES

GENERAL ALLEGATIONS

1. These Defendants admit the allegations of paragraph 1.

2. These Defendants admit the allegations of paragraph 2, and affirmatively state that at

no time was the Trust Note signed by Tony M. Versteeg individually.

3. Admit, but affirmatively states that the commercial parcel referenced therein is

properly titled in the name of Teton View Golf Estates, LLC.

4. These defendants admit the allegations of paragraph 4.

5. These defendants admit the allegations of paragraphs 5, 6, 7 and 8.

6. The allegations of paragraphs 9 through 13 call for a legal conclusion, and these

defendants therefore deny the same. Moreover, said "loan" was incidental to a joint

venture agreement, which is controlling in this matter.

COUNTI (Nonjudicial Foreclosure)

7. As to paragraph 14 of Plaintiff's Complaint, these Defendants incorporate their

General Affirmative Defenses, Procedural Statement, and each and every response to

Paragraphs 1 through 14 as though fully set forth herein.

8. These defendants admit the allegations of 16, 17, 18, 19, and 20, but dispute the

calculation of interest set forth in Exhibit 'A' as inaccurate. These defendants further

affirmatively state that certain principal payments and interest payments have been

made which reduce amounts claimed and further assert the defense of offset against

any amounts claimed to be due and payable as affirmatively alleged above.

9. As to the allegations of Paragraphs 21 and 22, said Deed of Trust was signed as an

accommodation incidental to the Articles of Organization of Teton View Golf

85

Estates, and the Joint Venture Agreement, which is controlling herein .. Moreover, the

allegation therein calls for a legal conclusion and accordingly, defendants therefore

deny the same.

10. As to the allegations of Paragraph 23, to the extent said allegation and individuals

have been dismissed with prejudice by way of Stipulation and Subsequent Order of

the Court, and these Defendants therefore deny the same, and admit the remaining

allegations therein, subject to the Affirmative Defenses including offset alleged

above.

11. These defendants admit the allegations of paragraph 24, subject to the affirmative

defenses raised herein.

12. As to the allegations of Paragraphs 25, 26, and 27, to the extent these Defendants

have made principal and interest payments on said Note, paid title fees and attorneys

fees subsequent to the filing of this action, and to the further extent that Plaintiff's

claims are negated, subject to offset, or exceeded by damage claims caused by

Plaintiff's own misconduct as affirmatively alleged above, these Defendants deny the

same. Moreover, Plaintiff is only entitled to attorneys fees in the unlikely event its

claim is meritorious, and are subject to the reciprocal right to attorneys fees act.

13. As to the allegations of Paragraphs 28 and 29 of Plaintiff's complaint, these

Defendants incorporate the provisions of Paragraph 12 of Defendants' Answer and

therefore deny the remaining allegations therein.

14. These defendants deny the allegations of Paragraph 30.

15. These defendants admit the allegations of Paragraph 31.

16. These defendants admit the allegations of Paragraph 32, subject to the affirmative

defenses raised herein, including the claim of offset arising out of the misconduct of

Plaintiff or its Agents.

17. These defendants deny the allegations of Paragraph 33.

86

COUNT II (Promissory Note; Alternative Count)

18. As to paragraph 34 of Plaintiff's Complaint, these Defendants incorporate their

General Affirmative Defenses, Procedural Statement, and each and every response to

Paragraphs 1 through 34 as though fully set forth herein.

19. As to the allegations of Paragraph 35, Plaintiff denies the accuracy of the interest

calculation in the Note, but admits the remaining allegations therein.

20. TMse defendants admit the allegations of paragraph 36, and 37, subject to the

provis'ions of the Joint Venture Agreement freely executed by the Plaintiff, and to the

affirmative defenses raised above. Further, Defendants incorporate their response to

paragraph 9 as though fully set forth herein.

21. These defendants deny the allegations of paragraph 3 8 of plaintiff's complaint and

incorporate all affirmative defenses as though set forth herein.

22. As to the allegations of Paragraphs 39 and 40 of Plaintiff's complaint, Admit that

sums may be due and owing subject to proof, and affirmatively allege that the

affirmative defenses set forth above which give rise to offset will negate or exceed the

damages asserted herein.

23. As to the allegations of Paragraphs 41 and 42 of Plaintiff's complaint, Admit that

sums may be due and owing, and affirmatively allege the affITTnative defenses set

forth above which give rise to offset, negate or exceed the damages asserted herein.

To the further extent claims are made against Lynn C. Spafford or Tony M. Versteeg,

these claims have been dismissed with prejudice and are therefore denied in their

entirety.

WHEREFORE, these defendants pray for relief as follows:

a). For a judicial determination as to the extent of damages caused by Plaintiff, by

and through its Principals and Agents, for a determination of the damages caused thereby

which give rise to, negate, or exceed Plaintiff's claim, or at a minimum, give rise to a

significant offset arising out of Plaintiff's own misconduct herein;

b ). For judgment against Plaintiff in such amount as the Court deems proper in the

premises;

c). For Costs of Court and Attorneys' fees incurred in this action;

87

d). For Leave of Court to name individual and Corporate parties as Third Party

Defendants and to file such Counter-Claims as may be deemed just and proper after

further discovery and investigation;

e). And for such additional relief as the Court deems just and equitable in the

premises.

COUNTER-CLAIM

PARTIES, VENUE & JURISDICTION

1. Melinda Boswell is an individual, owner and agent of Idaho Development, LLC,

whose contractual breach, breach of fiduciary duty and tortious misconduct has had a

detrimental effect upon the real estate project at issue in the City ofldaho Falls,

County of Bonneville, State of Utah.

2. David C. Clark is an an individual and agent of Idaho Development, LLC, whose

contractual breach and tortious misconduct has had a detrimental effect upon the real

estate project at issue in the City ofldaho Falls, County of Bonneville, State of Utah.

3. Idaho Development, LLC, hereinafter ("Development Company") is a Utah Limited

Liability Company, without standing to bring this action before the Honorable Court.

4. Except as otherwise reserved above Jurisdiction is proper in the above entitled Court.

5. Venue is proper in this Court, as the real property complained of is situate in

Bonneville County, State ofldaho.

GENERAL ALLEGATIONS

6. On or about the 10th day of February, 2008, Melinda Boswell, (hereinafter "Boswell")

acting by and through her agent, David C. Clark, (hereinafter "Clark") agreed to fund

the acquisition and joint venture in the development of that certain pending

subdivision currently recorded as "Teton View Estates" in Bonneville County, State

ofldaho.

7. In furtherance of said agreement, Boswell caused the utterance and disbursement of a

check in the sum of $100,000 to Rothchild Properties, LLC, (hereinafter "Rothchild")

to be used for earnest money, and to otherwise facilitate the purchase of the subject

40 acre subdivision at issue.

8. That shortly thereafter, and without notice or provocation, Boswell caused the bank

to stop payment on the check, to Rothchild, subjecting Rothchild to loss of reputation

88

with its seller, banker and contractor, increase in purchase price of the property, and

in a delay in closing of the purchase. Boswell had no reasonable explanation for her

misconduct.

9. That on February 28, 2008, after formation ofldaho Development, LLC,, hereinafter

("Development Company"), Boswell during and after execution of the joint venture

agreement, attached as Exhibit 'A', expressly stated her intent to provide financial

statements and otherwise sign on the construction loan, in order to satisfy the

payment terms to the Development Company. Said performance would have

effectively satisfied the repayment terms to the Development Company under the

joint venture agreement. She further expressly reserved the alternative right to bring

in additional personal or Development company funding in order to act as lender on

the construction loan.

10. That during this meeting, contemporaneous with this discussion, the attached joint

venture agreement was executed by all parties thereto. These parties included Idaho

Development, LLC, of whom Boswell and Clark were then the sole Members and

Boswell was the sole Manager thereof.

11. Contemporaneous with said signing, both parties noticed that Boswell and the

Development Company were inadvertently being overpaid under the joint venture

repayment operative provision, and it was changed by joint interlineation.

12. That at all times material hereto, both Rothchild and the Development Company

jointly executed, inter alia., paragraph VIII of the joint venture agreement, which

provided for the mutual sharing of profits and losses.

13. That at all times material thereto, and in conformance with the joint venture

agreement, Rothchild took substantial and affirmative steps to arrange for

construction financing, including but not limited to discussion with Zion's Bank in

Boise, who indicated that they were still providing land and development loans,

however, the loan would be contingent upon the liquidity of the borrower. When

asked to provide her financial statements, even privately to the bank, Boswell, acting

individually and as agent for the Development Company, stated that under no

circumstances would she sign for nor provide additional financing for any

construction loan for the subdivision.

89

14. That on or about July 20, 2008, Clark, acting in concert with Boswell, both

individually and as agent for the Development Company, contacted the General

Contractor for the project, Greg Stoddard, President of Depatco, Inc.,. an Idaho

Corporation, and advised him telephonically, in a crass, profane and vulgar manner,

that Teton was unreliable, unable to perform and the Development Company would

be filing a non-judicial foreclosure and that Depatco would never be paid its work to

date by any party, said services then valued in a sum in excess of $700,000.

15. That in reliance upon said phone call, Stoddard caused Depatco and its subcontractor,

H.D. Waterworks, to pull off the job the next morning. Since that date they have not

returned to the job site. The net effect of the wrongful interference with contract, has

been to cost Teton View a loss of at least one building season, losing millions of

dollars in lost profits, and loss of reputation within this small but intergral building

community.

16. That on or about July 22, 2008, the Development Company filed the instant judicial

foreclosure, in lieu of a non-judicial foreclosure, in an apparent attempt to wrongfully

convert the project to its own sole ownership and possession.

COUNTI (Slander and Interference With Contract)

17. These Defendants incorporate all paragraphs set forth in this Counter-Claim as

though fully set forth herein.

18. Said statements to Depatco were published to a third party falsely with malice, by and

through its owner and agents, acting in concert or pursuant to a common design,

under the servant/master legal doctrine of respond eat superior, and were stated

without justification, and said tortious misconduct is now binding upon the

Development Company herein.

19. That both Boswell and the Development Company knew of the valid economic

expectancy with Depatco; had knowledge on the part of Boswell and Clark, the

express interferers; intentionally terminated the contract expectancy; for an improper

purpose or by an improper means.

90

20. That as a result thereof, Rothchild and Teton have been damaged in a sum in excess

of $1,200,000 in lost profits, arising out of the loss of at least one building and selling

season, proximately caused by the plaintiff's own misconduct herein.

21. That in order to further deter similar future misconduct, punitive damages should be

allowed in a sum in excess of $3,600,000 or three times the lost profits sustained by

the Counter-Claimant herein.

22. That Attorney's fees and costs of court should be awarded within the Court's sound

discretion.

COUNT II

(Breach of Contract)



2. That at all time material hereto, Boswell, acting individually and as agent for the

Development Company represented that she would throw her full economic weight

behind the construction loan, providing a personal guarantee and financial statements,

in order to facilitate timely completion of the project.

3. That upon further request and subsequent thereto, the Development Company, acting

individually and thought its agent Boswell, failed and refused to provide any

additional financial support, constructive or actual, thereby placing the project in

peril.

4. That Teton and Rothchild acted, relied and changed their position, to their detriment,

upon the earlier affirmative statements of Boswell, both individually and as agent for

the Development Company, and were damaged thereby.

5. That damages should be awarded against the Development Company in a sum in

excess of $3,600,000 arising out of lost profits over the life of the project.

6. That attorney's fees and costs of court should be awarded within the Court's sound

discretion.

91

COUNTIII

(Breach of Fiduciary Duty)



8. As a member of Teton View Golf Estates, LLC, the Development Company owes a

duty to Teton View to protect its fiduciary interests to Teton.

9. That by affirmatively pledging to sign on a construction loan or otherwise provide

financial statements, to subsequently refuse and then to file the instant judicial

foreclosure, and as a direct and proximate cause, the development company has

breached its fiduciary duty to Teton and Teton has been damaged thereby.

10. That damages should be awarded against the Development Company in a sum in

excess of $3,600,000 arising out oflost profits over the life of the project.

11. That attorney's fees and costs of court should be a warded within the Court's sound

discretion.

PRAYER

WHEREFORE, Counter-Claimants Teton and Rothchild pray for relief as

follows:

a). For dismissal of Plaintiff's Complaint in its entirety;

b). As to Count I, for Slander and Interference with Contract, for Lost

Profits in a sum in excess of $1,200,000, and punitive damages in a sum in

excess of $3,600,000, representing three times the amount of

compensatory damages awarded herein;

c). As to Count II, for Slander and Interference with Contract, for damages

for lost profits in a sum in excess of $1,200,000, and punitive damages in

a sum in excess of $3,600,000, representing three times the amount of

compensatory damages awarded herein;

d). Together with Court Costs and Attorney's fees as awarded within the

Court's sound discretion.

92

THIRD PARTY COMPLAINT

COMES NOW the Third Party Plaintiffs to Complain and allege as follows:

COUNTI

BREACH OF CONTRACT

(False Utterance of Negotiable Instrument)

1. These Defendants incorporate all paragraphs set forth in this Third Party

Complaint as though fully set forth herein.

2. That at all times material hereto, Boswell uttered a false check to Third Party

Defendant Rothchild, in the sum of $100,000, and then stopped payment on

said check without notice or provocation.

3. That said unwarranted stop payment on said check resulted in loss of

reputation to the Rothchild' s Banker, property seller, general contractor and

to the general real estate and to the overall construction industry within the

Idaho Falls Community, and that Rothchild and Teton were damaged

thereby.

4. That Teton lost its negotiating position with its seller, and was subjected to

additional expense in a sum in excess of $200,000.

5. That attorney's fees and costs of court should be awarded within the Court's

sound discretion.

COUNT II

(Interference with Prospective Economic Advantage)

6. These Defendants incorporate all paragraphs set forth in this Third Party

Complaint as though fully set forth herein.

7. That both Boswell and Clark knew of the valid economic expectancy with

Depatco; had knowledge on the part of Boswell and Clark, the express

interferers; intentionally terminated the contract expectancy; for an improper

purpose or by an improper means.

9 ') .J

8. That on or about July 10, 2008, Clark, acting in concert with Boswell, both

individually contacted the General Contractor for the project, Greg Stoddard,

President of Depatco, Inc., an Idaho Corporation, and advised him

telephonically, in a crass, profane and vulgar manner, that the Development

Company would be filing a non-judicial foreclosure and that Depatco would

never be paid its work to date, then valued in a sum in excess of $700,000.

9. That in reliance upon said phone call, Stoddard caused Depatco and its

subcontractor, HD. Waterworks, to remove all equipment and otherwise pull

off the job the next morning. Since that date they have not returned to the job

site. The net effect of the wrongful interference with prospective economic

advantage, has cost Teton View a loss of at least one building season,

consisting of millions of dollars in lost profits, and loss of reputation within

this small but integral building community.

10. That as a result thereof, Rothchild and Teton have been damaged in a sum in

excess of $1,200,000 in lost profits, arising out of the loss of at least one or

more building and selling season, proximately caused by the plaintiff's own

misconduct herein.

11. That in order to further deter similar future misconduct, punitive damages

should be awarded in a sum in excess of $3,600,000 or a sum equal to or in

excess of three times the lost profits sustained by the Third Party Plaintiff

herein.

12. That Attorney's fees and costs of court should be awarded within the Court's

sound discretion.

DATED this 2nd day of March, 2009

94

JOINT VENTURE AGREEMENT

Agreement made this 2.g day of 1d: , 2008 between Idaho Development, LLC,

A Utah Limited Liability Company, located at 2192 Preston Street, Salt Lake City, UT 84106, and

Rothchild Properties, LLC, a Utah Limited Liability Company located at 11105 Londonderry

Drive, Sandy, UT 84092.

RECITALS

1) The parties desire to conduct a business enterprise together to be known as Teton

View Golf Estates, LLC, a Utah Limited Liability Company.

2) Each party is willing to invest money or other good and valuable consideration, as

hereinafter set forth, in order to finance and operate the conduct of the enterprise.

3) It is mutually agreed that the most desirable form of business for conducting the

enterprise is a joint venture with an umbrella Limited Liability Company jointly

owned by the parties.

For the reasons recited above, and in consideration of the mutual covenants

contained in this agreement, the parties agree as follows:

I.

SCOPE AND DESCRIPTION

By this agreement, the parties create a joint venture to provide Teton View Golf

Estates, LLC, investment capital and active participation as it relates to that certain

development known as Teton View Estates, Idaho Falls, Bonneville County, State of

Idaho. The joint venture shall be conducted in the name of Teton View Golf Estates,

LLC, currently on file with the State of Utah, from a place of business located at 11105

Londonderry Drive, Sandy, UT 84092.

11.

CONTRIBUTIONS

Idaho Development, LLC is to initially contribute One Million One Hundred

Thousand Dollars ($1,100,000.00) to the joint venture, with the understanding that

upon the funding of the construction loan, Idaho Development shall be repaid the sum

of Eight Hundred Thousand Dollars ($800,000), and shall subordinate the remaining sum''

(i e:-: v.J

c I A u _, li I

\i\J r-r I\ -Y l'-1.-- JL~ C?f rry '£7)'\_ C-

e_, c..,v,"" j\-'lf2,fC/o. i Po1· I, . t g ·t? l'•'

;A . .· / A . . ) crbr ~ d .. 'l '{ _.t_,\Dr \.t1-!'.r,,f--1(\ r µ ~o, Jo i'> , [) u o A o~ Hundred Thousand Dollars ($500,000) to the construction loan:"lt shall be repaid

the balance of its investment under a lot release formula to be defined in the Second

Deed of Trust and Trust Note securing the investment. Thereafter, Rothchild Properties

is to contribute its time and skill in overseeing development and sale of building lots,

and construction of homes to ensure its success. It is understood that Rothchild

Properties will make no cash contribution to the joint venture, and that its total

contribution shall consist of devoting all technology, know how, time and skill to the

venture, making full use of its expertise gained through participation in similar

enterprises in the past.

Contributions of money and/or property shall be made on or before February 29,

2008. Failure of either party to complete his respective contribution on a timely basis

shall result in termination of this agreement and the enterprise organized herein.

111.

CONDUCT OF ENTERPRISE

Tony Versteeg shall be responsible for day to day management of the joint

venture and shall devote his time to such management as is necessary and proper to

ensure the success thereof.

However, Teton View Golf Estates, LLC shall have ultimate authority and the sole

direction, management and the entire conduct of the joint venture. The enumeration of

particular or specific powers in this agreement shall not be considered as in any way

limiting or abridging the general power or discretion intended to be conferred on and

reserved to the parties to authorize them to do any and all things proper, necessary, or

expedient, in their discretion, to carry out the purposes of this agreement.

IV.

COMMENCEMENT OF VENTURE

This joint venture shall become operative on the 29th day of February, 2008.

V.

TITLE TO PROPERTY

All legal title to property acquired by the joint venture, whether real or personal,

shall be taken in the name of Teton View Golf Estates, LLC, Wit:fl the expreSfi

uQrlecstandins that that eertain 4.5...au@ commereial ptiFEel shall Aot be a t3art of.this

96

ag.reeroeot and shall vest solely ifl Rothchild P1·opertles,'t&. The interest of each party

in the subject property shall be proportionate to his or her share of the profits of the

venture, as defined in the Articles of Organization of Teton Golf View Estates, LLC.

VI.

DIVISION OF PROFITS

The net profits earned by the joint venture, calculated at the end of each fiscal

year, shall be divided among the parties as follows: Idaho Development, LLC shall

receive thirty-three and one third percent (33.3%) and Rothchild Properties, LLC shall

receive sixty-six and seven tenths percent (66.7%). The Managers shall be entitled to

reasonable compensation, provided that full disclosure is made to all Members of the

Joint Venture. The net profits will be calculated by first deducting all operating expenses

from gross income of the joint venture.

VII.

SHARING OF PROCEEDS FROM SALE OF ASSETS

If, during the course of the joint venture, any of the assets of the joint venture

are sold, subject to the lot release formula in any Trust Deed Note, the net proceeds of

such sale or sales shall be distributed to the parties in proportion to their rightful share

in profits.

VIII.

APPORTIONMENT OF LOSSES

The parties shall bear any net loss sustained by the venture in any fiscal year as

follows:

Idaho Development, LLC shall bear thirty-three and one third percent (33.3%) of

such loss, and Rothchild Properties, LLC shall bear sixty-six and seven tenths percent

(66.7%) of such loss. Any assessment against a party for a loss shall be payable to the

joint venture not later than ninety (90) days after the close of the fiscal year.

97

IX.

MAINTENANCE OF BUSINESS AND ACCOUNTING RECORDS

Full and accurate business and accounting records shall be maintained reflecting

all transactions of the joint venture, and each party shall be responsible for the entry of

a complete and accurate account of al I his or her transactions in behalf of the venture.

The records shall be maintained at the office of the joint venture, and be subject to

inspection or examination by the parties at all reasonable times. The records shall be

maintained using the cash accrual method of accounting, on the joint venture's fiscal

year basis.

The fiscal year of the joint venture shall commence on January 1, 2008 and close

on December 31st of each subsequent year of operation. All accounting based on fiscal

year figures shall be completed within ninety (90) days after the close of the fiscal year.

X.

MAINTENANCE OF BANK ACCOUNTS

All funds advanced by the parties to this joint venture agreement or borrowed

for the account of the joint venture and all progress in final payments for other revenue

received as a result of the performance of this joint venture shall be deposited to the

account of the joint venture in an account to be established at such bank or banks as the

parties to this joint venture may agree upon. Checks may be drawn on such accounts

only by the signature of both parties to this joint venture.

XI.

INSURANCE

The joint venture shall obtain insurance to cover the following items and types of

losses: as provided through Teton View Golf Estates, LLC.

XII.

ASSIGNMENT AND TRANSFERS

Neither party shall assign or transfer his or her rights or duties in the joint

venture without the express written consent of the other party. Any transfer or

assign_ment ma~e without t~e conse~t o~ the other pa_rty shall not relieve the,transfe/7

or assignor of his or her duties or obligations under this agreement. 1 ; / /,t-,1 /( . ~18 ( //)l) l . \./'

XIV.

ARBITRATION OF DISPUTES

If, during the course of the venture, the parties are unable to agree on any

matters with respect to which a decision must be made, or if, on termination, no

satisfactory arrangement can be made for settlement of each party's interest in the

venture, the dispute or disputes shall be subject to binding arbitration.

XIV.

TERM

The effective date of this agreement shall be the date first above written, and

the commencement date of the joint venture contemplated herein shall be the date

specified above. This agreement and the joint venture contemplated herein shall

continue in effect for a period of fifteen (15} years from the date of commencement, or

until dissolution as provided herein, whichever shall first occur.

xv.

TERMINATION OF AGREEMENT

Upon termination of this agreement for any cause whatsoever, the joint venture

contemplated herein shall be wound up and dissolved in accordance with Utah Code

Ann. 48-1-26 et~- as applicable or by analogy.

IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT AT

SALT IAKE CITY, STATE OF UTAH, ON THE DAY AND YEAR ABOVE WRITTED.

99

Idaho Dev~lopm~ht, LLC by i ' , ' /

M~Iirtd~Bosvy,11, ~~nager / I J/1 , .· ,="'-7--··--·-··· ( , i Ii .. / - , I/ \.,.·t·r,t{ii'q> t-{')/

Rothchild Properties, LL1€ ~y

Tony Versteeg, Manag~fr / ,_,,

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Answer to Plaintiffs

Complaint was placed in the U.S. Mail, postage prepaid and addressed to: Alan R. Harrison,

Attorney for Plaintiff, 497 N. Capital Ave., Suite 210, Idaho Falls, ID 83403; and to Mark R.

Fuller, Fuller & Carr, Attorney for Defendant, Depatco, Inc., 410 Memorial Drive, Suite 201,

Idaho Falls, ID 83405-0935.

DATED this 2nd day of March, 2009.

~c~= LJiCpafford ,

•. ,,

MARK R. FULLER (ISB No. 2698) FULLER & CARR 410 MEMORIAL DRIVE, SUITE 201 P.O. Box 50935 IDAHO FALLS, ID 83405-0935 TELEPHONE: (208) 524-5400

ATTORNEY FOR DEPATCO, INC.

IN THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO IN AND FOR

THE COUNTY OF BONNEVILLE

IDAHO DEVELOPMENT, LLC., a Utah ) limited liability company, )

) Plaintiff, )

) V. )

) TETON VIEW GOLF ESTATES, LLC., a ) Utah limited liability company, ) ROTHCHILD PROPERTIES, LLC., a ) Utah limited liability company, ) WESTERN EQUITY, LLC., A Utah ) limited liability company, AMERITITLE ) COMPANY; ZBS, LLC., an Idaho limited ) liability company, DEPATCO, INC., an ) Idaho corporation, SCHIESS & ) ASSOCIATES, P.C., an Idaho ) Professional Service Corporation, HD ) SUPPLY WATERWORKS, LTD., DOES ) 1-3, and ALL PERSONS IN ) POSSESSION OF REAL PROPERTY ) DESCRIBED HEREIN, )

) Defendants. )

) ) )

Case No. CV-08-4395

ANSWER AND CROSS CLAIM

-f () 4 lL J .. ANSWER AND CROSS CLAIM - 1

COMES NOW the Defendant, DePatco, Inc., ("DePatco"), through Mark R. Fuller

of Fuller & Carr Law Office, and in response to the Amended Complaint to Foreclose

Deed of Trust and Other Actions filed by Plaintiff, states and alleges as follows:

1. Plaintiffs Amended Complaint to Foreclose Deed of Trust and Other

Actions fails to state a cause of action upon which relief can be granted.

2. DePatco only answers on behalf of itself and does not answer on behalf of

any other defendants.

3. DePatco denies each and every allegation set forth in the Amended

Complaint to Foreclose Deed of Trust and Other Actions, except as expressly

admitted herein.

4. DePatco admits paragraph 1. However, DePatco specifically alleges that

Plaintiff, Idaho Development, LLC is not registered to do business in Idaho and

as a result is incapable of maintaining and pursuing this action.

5. DePatco does not have sufficient information to admit or deny paragraph 2,

and therefore denies paragraph 2.

6. DePatco does not have sufficient information to admit or deny paragraph 3








102 ANSWER AND CROSS CLAIM - 2

10. DePatco admits that DePatco, Inc. is an Idaho Corporation with its principal

place of business in St. Anthony, Idaho. DePatco admits that it performed work

on the property and that because DePatco was never paid for such labor and

materials, DePatco recorded a lien on October 20, 2008 under instrument No.

1314766, records of Bonneville County, Idaho. DePatco denies that its interest

in the subject property is junior, subordinate or subsequent to any right held by

Plaintiff in the property. DePatco denies the remainder of paragraph 7.









15. DePatco denies that its lien in the property is junior, subordinate, or

subsequent to any right, title, lien, or interest in the property held by plaintiff.

DePatco does not have sufficient information to admit or deny the remainder of

paragraph 12 and therefore denies the remainder of paragraph 12.

16. DePatco denies paragraph 13. Upon information and belief, DePatco

asserts that on February 28, 2008, Idaho Development invested $1,100,000 in

Teton View Golf Estates, LLC, in exchange for an ownership interest in the

LLC, and for distributions according to a schedule set forth in a document titled


Joint Venture Agreement. On February 29, 2008, Idaho Development and

Teton View, attempted to convert Idaho Development's capital investment into

a loan and subject such amount to a security interest, leaving Teton View Golf

Estates, LLC completely undercapitalized in order to defraud Teton View's

creditors, including DePatco.

17. DePatco hereby re-alleges each and every admission or denial to

paragraphs 1 through 17 as if set forth fully herein.

















.104 ANSWER AND CROSS CLAIM - 4









30. OePatco does not have sufficient information to admit or deny paragraph

27and therefore denies paragraph 27.



32. OePatco does not have sufficient information to admit or deny paragraph 29










37. OePatco hereby re-alleges and reasserts all denials and admissions in


paragraphs 1 through 36 as if set forth fully herein.



39. DePatco denies paragraph 36. DePatco did not borrow any amount from

Plaintiff. Furthermore, upon information and belief, DePatco asserts that

Plaintiff did not loan money to Teton View, Plaintiff invested its money in Teton

View in exchange for an ownership interest in Teton View. As there is no

obligation to secure, because Plaintiff did receive an ownership interest in

Teton View, the Deed of Trust is invalid and should be declared null and void.

40. DePatco does not have sufficient information to admit or deny paragraph

37and therefore denies paragraph 37.







AFFIRMATIVE DEFENSES

1. Plaintiffs claims are barred by the doctrine of unclean hands.

2. Plaintiffs claims are barred by the doctrine of failure of consideration. There

was no consideration given for the February 29, 2008 promissory note,

because on February 28, 2008 plaintiff contracted to purchase an ownership

interest in Teton View Golf Estates, LLC for $1,100,000. The $1,100,000 was a

106 ANSWER AND CROSS CLAIM 6

capital contribution pursuant to Utah Code §48-2c-901 and not a loan to Teton

View Golf Estates, LLC.

3. Plaintiff's claims are barred because there is no debt for the Deed of Trust

to secure.

4. Plaintiff's attempts to secure its distributions from Teton View Golf Estates,

LLC are barred by Utah Code §48-2c-1005. Plaintiff is only entitled to recoup

its investment in Teton View after all creditors, including DePatco, have been

repaid in full.

5. To the extent Plaintiff is entitled to enforce the Deed of Trust, the Court

should equitably subordinate such security interest to DePatco's lien, as

Plaintiff is an owner and member of Teton View Golf Estates, LLC, and it would

be inequitable and unfair to allow a member of an LLC to secure its investment

in the LLC at the expense of the LLC's creditors.

6. Utah Code §48-2c-1308 establishes that the priority of a creditor, such as

DePatco, is superior to the status of a member of a Utah LLC in the member's

capacity as a creditor.

7. The promissory note, attached as Exhibit "A" to Plaintiff's Amended

Complaint provides that Idaho Development shall subordinate its claim to any

third party construction financing. As DePatco provided material and labor on

credit to Teton View Golf Estates, LLC, it has provided third party construction

financing to the property that is the subject of this dispute, and therefore,

Plaintiff's Deed of Trust is subordinated to DePatco's lien claims.

8. Plaintiff's claims are barred by Plaintiff's own fraudulent conduct.


WHEREFORE, DePatco prays that the Plaintiff's Complaint be dismissed, that any

interest Plaintiff has in the subject property be adjudged to be inferior and subsequent to

DePatco's lien, for the costs and attorney's fees incurred in defending this action,

pursuant to Idaho Code §12-120(3) and other applicable provisions, and for such other

relief as the Court deems just and equitable.

CROSS CLAIM

COUNT I.

DEBT DUE UNDER OPEN ACCOUNT AND FOR LIEN FORECLOSURE

1. Teton View Golf Estates, LLC (hereafter "Teton View") created an open

account with DePatco, at some date prior to June 25, 2008.

2. Between June 25, 2008 and July 25, 2008, Teton View incurred a balance of

$784,949.00 on the open account, plus interest at the rate of eighteen percent (18%) per

annum from July 25, 2008, in the amount of $33,287.02, and attorney fees in the amount

of $200.00 for a total balance owed of $818,436.02, together with accruing interest and

costs. Some unused materials have been returned and credits granted by DePatco and

after applying all credits, the outstanding principle balance owed is $584,638.36 plus

interest from July 25, 2008.

3. On or about October 20, 2008, a I\J1aterialman's Lien in the amount of

$818,436.02 was recorded in the recorder's office of Bonneville County as Instrument No.

1314766, a copy of such lien is attached as Exhibit "A". DePatco requests the

foreclosure of such Materialman's Lien and the sale of the real property identified in

Exhibit "A", in satisfaction of the principle lien balance of $584,638.36, plus accruing

interest, costs and attorney fees.


4. DePatco's Materialman's Lien is superior to and prior to all other security

interests in the property.

5. That the above open account has been owed for over ninety (90) days and

that demand for payment has been duly made upon Teton View more than ten (10) days

prior to the filing of this action, see attached Exhibit "B", and that Teton View has refused

or otherwise neglected to pay said account and continues to refuse to make payment

thereof.

6. Pursuant to the open account contract of the parties, Teton View owes eighteen

percent (18%) interest per annum from July 25, 2008, on the open account balance of

$584,638.36, through the date of Judgment.

7. DePatco is entitled to attorney fees pursuant to Idaho Code §12-120(3), §45-

513, and other applicable provisions of the Idaho Code, of at least $5,000.00, in the event

of default, and such amount as is reasonable to the court in the event the action is

contested.

COUNT II.

BREACH OF CONTRACT

8. DePatco re-alleges paragraphs 1 through 7 by reference.

9. Teton View Golf Estates, LLC and DePatco entered into a binding contractual

relationship.

10. DePatco substantially performed its obligations under the contract and is not

in material breach.

11. Under the contract, DePatco supplied Teton View Golf Estates with

construction materials and services. A balance of $584,638.36 remains due and owing


after applying all credits and offsets, plus accruing interest from July 25, 2008.

12. Pursuant to the agreement of the parties, Teton View Golf Estates owes

eighteen percent (18%) interest per annum on the contract balance, from July 25, 2008.

13. DePatco is entitled to attorney fees pursuant to Idaho Code §12-120(3), of at

least $5,000.00, in the event of default, and such amount as is reasonable to the court in

the event the action is contested.

COUNT Ill.

UNJUST ENRICHMENT


15. DePatco provided construction materials and services to Teton View with the

reasonable expectation that Teton View would pay for those materials and services.

16. Teton View knowingly and voluntarily accepted the benefit of the materials and

services and is unjustly enriched by having received the materials and services, without

payment to DePatco for the value thereof.

17. Under the circumstances, it would be unjust if Teton View were permitted to

retain the benefit of the materials and services provided by DePatco without paying

DePatco for the value of the benefit bestowed.

18. Teton View should be required to pay DePatco $584,638.36, the reasonable

value of the materials and services which have unjustly enriched Teton View.

19. DePatco should be awarded attorneys fees and costs pursuant to Idaho Code

§12-120(3) and 121, in the sum of not less than $5,000.00.

COUNT IV.

QUANTUM MERUIT



21. Between June 25, 2008 and July 25, 2008, DePatco rendered services and

materials to Teton View at its request by providing construction material and services.

22. Teton View promised to pay DePatco the reasonable value for such services

and materials.

23. Said services and materials have a reasonable value of $584,638.36, which

sum was due therefore on said day last mentioned.

24. DePatco should be awarded attorneys fees and costs pursuant to Idaho Code

§12-120(3) and 121, in the sum of not less than $5,000.00.

COUNTV.

EQUITABLE SUBORDINATION


26. On or about February 28, 2008, Idaho Development, LLC entered into an

Agreement with Rothchild Properties, LLC, whereby Idaho Development and Rothchild

Properties became joint owners and members of Teton View Golf Estates, LLC. Pursuant

to the agreement, Idaho Development invested $1,100,000 in Teton View Golf Estates,

LLC, for which Idaho Development obtained an ownership interest in Teton View Golf

Estates, LLC and the right to certain distributions pursuant to the February 28, 2008

Agreement and the Operating Agreement for Teton View Golf Estates, LLC.

27. On or about February 29, 2008, Teton View Golf Estates, LLC signed a

promissory note and provided Idaho Development, LLC., with a Commercial Loan Deed

of Trust in the amount of $1,100,000.00 recorded as Bonneville County Instrument No.

1291905, a copy of which is attached as Exhibit "B" to Plaintiff's Complaint. The purpose


of this promissory note and Deed of Trust was an attempt to convert Plaintiff's purchase

of an ownership interest in Teton View Golf Estates into a debt secured by the Deed of

Trust, in order to defraud any future creditors of Teton View Golf Estates, including

DePatco.

28. On or about March 20, 2008, Idaho Development, LLC., recorded an

Amendment of Deed of Trust in the amount of $850,000.00 as Bonneville County

Instrument No. 1292697, a copy of which is attached as Exhibit "C" to Plaintiff's

Complaint.

29. That the Deeds of Trust recorded by Idaho Development, LLC are invalid

because they do not secure any debt between Idaho Development, LLC and Teton View

Golf Estates, LLC.

30. That if the Deeds of Trust recorded by Idaho Development, LLC are valid,

such interests should be equitably subordinated to DePatco's lien because Idaho

Development is a member of Teton View Golf Estates, LLC, and pursuant to Utah

Statutes regarding Utah LLCs, creditors of the LLC have priority to of members of the

LLC, who are also creditors.

COUNT VI

DETERMINATION OF PRIORITY AND FORECLOSURE OF LIEN


32. Upon information and belief, DePatco asserts that multiple other entities

and person assert security interests in the subject property, including the named

Defendants herein.

33. That such security interests held by other parties are inferior, subsequent,


and junior to the rights of DePatco established by DePatco's lien recorded October 20,

2008 for work begun June 25, 2008.

34. That DePatco is entitled to a determination that Deptaco's lien is a first and

prior lien upon the property superior to any right, title, claim, lien or interest on the part of

Plaintiff, the named Defendants or persons claiming by, through or under said Plaintiff or

named Defendants.

35. That DePatco is entitled to have its lien foreclosed and that the usual

decree and order be may for sale of the said real property therein described, together with

all water rights and that the property be sold in one parcel in accordance and in the

manner provided by law.

36. That DePatco should be permitted to be a purchaser at said sale and that

the proceeds of the sale be applied first toward the payment of the cost of the sale and

then towards the payment of any amounts owed to DePatco by Teton View Golf Estates.

37. That DePatco have and retain a deficiency judgment against Teton View in

the event that the highest bid at the sale is less than the sum of Plaintiffs entire judgment,

plus costs of the sale and accruing interest.

PRAYER

WHEREFORE, DePatco prays for Judgment as follows:

1. For Judgment on DePatco's claims against Teton View Golf Estates, LLC., for

the sum of $584,638.36.

2. For accruing interest at eighteen percent (18%) or the maximum legal rate per

annum from July 25, 2008, until the date of Judgment.

3. That in accordance with Plaintiffs request in its Complaint, Prayer, para. 1,


the second deed of trust signed on March 7, 2008 and recorded as instrument number

1291905 in Bonneville County, Idaho be set aside and invalidated.

4. That the first deed of trust signed on February 29, 2008 and recorded as

instrument number 1291905 in Bonneville County, Idaho be set aside and invalidated.

5. That any Deed of Trust or other security interest of the Plaintiff be

subordinated, either by the terms of the promissory note, Utah's statutes relating to

priority of LLC creditors, or through equitable subordination, to DePatco's rights under its

lien recorded on October 20, 2008, as instrument number 1314766 on the records of

Bonneville County, Idaho.

6. That it be adjudged that Plaintiff has a Lien on the real property set forth in the

description on Exhibit "A", for the amount of $584,638.36, together with accruing interest,

attorney fees, costs and expenses.

7. That it be declared by this Court that the Counter Defendants, and all persons

claiming under them and all persons in possession of the Real Property described in the

Complaint, have only such claim or interest in the aforesaid property as is subsequent,

subordinate, and inferior to DePatco's lien, pursuant to Idaho Code §45-512.

8. That the property described on Exhibit "A" be sold accordingly to law and that

the proceeds of such sale be applied to satisfy the claim of DePatco's lien, together with

the expenses of sale, and the costs and attorney fees of this action, pursuant to Idaho

Code §12-120 and §45-513.

9. That Teton View pay any deficiency to DePatco that may remain after applying

all said proceeds to the satisfaction of DePatco's lien.

10. That DePatco be awarded appropriate post-judgment interest and post


judgment attorney fees and that such amounts be foreclosed, together with the principle

amount of the lien.

11. For such other and further relief as the Court deems just and equitable.

DATED this /5" day of April, 2009.

Mark R. Fuller Attorney for DePatco, Inc.


CERTIFICATE OF SERVICE

HEREBY CERTIFY that I served a true and correct copy of the following .,.J-t_

described pleading or document on the persons listed below on this /7 day of

A-f.t1.; I -fibFU~l=1/, 2009:

Document Served:

Persons Served:

Alan R. Harrison, Esq. ALAN HARRISON LAW, PLLC 497 N. Capital Ave., Ste. 210 Idaho Falls, ID 83402

Lynn C. Spafford, In Propria Persona Teton View Golf Estates, LLC P.O. Box 711946 Salt Lake City, UT 84171

Tony M. Versteeg, In Propria Persona Western Equity, LLC Rothchild Properties 11105 S. Londonderry Drive Draper, UT 84092

Jeffrey Brunson BEARD, ST. CLAIR, GAFFNEY, P.A. 2105 Coronado Idaho Falls, ID 83404-7495

ANSWER AND COUNTERCLAIM

<r U.S. Mail Facsimile Hand Delivery

~ U.S. Mail Facsimile Hand Delivery

J-- U.S. Mail Facsimile Hand Delivery

a U.S. Mail Facsimile --

--Hand Delivery

Mark R. Fuller FULLER & CARR


MATERIALMAN'S LIEN Instrument# 1314766 IDAHO FALLS, BONNEVILLE, IDAHO 10-20-2008 02:27:19 No. of Pages: 3 Recorded for: FULLER & CARR

DE PATCO, DJC., an Idaho RONALD LONGMORE <((,J Fee: 9.00 Ex-Officio Recorder Deputy-2(/_,,.. _______ _ corpo.ra t ion, Index to LIEN. LABOR

Clairnant, CLAIM OF LIEN

V.

TETON VIEW GOLF ESTATES, LLC.,

Owner of Record.

NOTICE IS HEREBY GIVEN that DePatco, Inc., P.O. Box 246, St.

Anthony, Idaho 83445, furnished certain materials and labor in

conjunction with the improvement of certain real property

belonging to Teton View Golf Estates, LLC., located in the City of

Idaho Falls, Bonneville County, State of Idaho, more particularly

described as follows:

Teton View Estates, Division No. l, Idaho Fa LL s, Bonneville County, State of Idaho, pursuant to che plat recorded August 28, 2008, as Instrument No. 1310084.

That said labor and materials were provided at the instance

and request of Teton View Golf Estates, LLC., owner of record, and

that such materials have become a part of the improvements located

on the above-described property.

That De Pa tco, Inc. , commenced to provide such labor a:id

material on June 25, 2008, and up to July ? c; - . ...,J' 2008, wt,ich labor

and materials were provided as aforesaid at the specific instance

and request of Teton View Golf Estates, LLC., owner of record.

That said labor and materials furnished and unpaid have a

total value of Seven Hundred Eighty Four Thousand Nine Hundred

Forty Nine and No/100 Dollars (S784,949.00), plus interest at the

rate of 18% per annum from July 25, 2008, in the amount of Thirty

117 MATERIA~MAN'S EN -7

EXH1B\T ___,_ft-_

Three ~hcus211d Two Hundred Eighty Seven and 02;1CG Collars

No/100 Dollars :$200.00) and t~at a=ter g

cffsets, :.i::e '::.ota:L arr.cunt new due and owing to DePatcc, Ir::::., is

the sum of Eight Hundred Eighteen Thousand Four Hundred Thirty Six

and 02/100 Dollars ($818,436.02), together with accruing interest,

there being no other just credits or offsets.

1tJherefore, DePatco, Inc., hereby claims a Lien pt1rsuant to

Id2ho Cede Section 45-501 et. seq. upon the prenises hereinabcve

desoribed f::::r :_.he s·-.:m of Eigtt Hc::ndred Sighteec T;-10'...:sa::_':J. Four

Hundred =~irty Six and 02/100 Dollars ($818,436.02), together with

accruing interest thereon at the rate of 18% per annum from July

25, 2008, and also together with attorney fees in the event formal

lien foreclosure is required as provided by law; and further for

all reoording oosts incurred herein.

DATED this 20~~ day of October, 2008.

STATE OF IDAHO ss.

County of Bonneville

On this 2 0 ~.,, day of

'.1ndersic:med, a

DSPATCO, INC.

By:

Its: Mark R. Fuller Attorney

October, 2008, before

2flQ for said state,

me, the

personally

appeared Mark ?.. .?uller, known to me to be the per so:-: wh:::se :::.ame

is subscribed to the within instrument, and being f rst duly

118

sworn, under oath, verifying that he has reviewed the above Claim

cf Lien and believes the same to be just and true.

=~'-1 V'JITI\;ESS v\JHErtEOE", I have hereunto set my har:d and affixed

my official seal the and year in this certificate first a!::::oYe

written.

· ·Nota.)s,y p\1Dlic fer Idaho Res idinq) at: Rigby

commission expires: 06-28-2011

CERTIFICATE OF

.~·. ~ ~ '~;,

\·/'~o\ p,,n v -... \

( ~---- ) \. PUJ\...\

0 / "-

. ~ .... , ... ,... , ....... -.', t.5'-, ..... ~ .. ~.~· • /v~/1:/~ -,-.~:7 r,t;::

SERVIc'E'

I HEREBY CERTIFY that I served a true and correct copy of the

following described pleading or document or, the persons listed

below on this day of October, 2008, by Return Receipt Mail.

Document Served:

Persons Served:

Teton View Golf Estates, LLC. Attn: Tony Versteeg 11105 S. Londonderry Drive Draper, UT 84092 RETURN RECEIPT REQUESTED

MATERIALMAN'S LIEN

(/~l:4/L Mark R. FulJ.er Attorney for Claiman~

11.9 's

Mark R. Fuller Steven E. Carr" Daniel R. Beck '"Also Licensed in Utah

RETURN RECEIPT REQUESTED

Teton View Golf Estates, LLC. Attn: Tony Versteeg 11105 S. Londonderry Drive Draper, UT 84092

FULLER & CARR ATTORNEYS AT LAW

410 Memorial Drive, Suite 201 P.O. Box 50935

Idaho Falls, Idaho 83405-0935

October 20, 2008

RE: DePatco, Inc. v. Teton View Golf Estates, LLC.

Dear Mr. Versteeg:

Telephone (208) 524-5400

Facsimile (208) 524-7167

Our office has the pleasure of representing DePatco, Inc., and we have been requested to collect upon a lien for materials and services provided to improve real property owned by Teton view Golf Estates, LLC. Between June and July 25, 2008, certain materials and services were provided to improve your real property in Bonneville County at your request. The outstanding balance owed on this lien, including attorney fees to prepare the lien and interest, is $818,436.02. A copy of the lien which has been recorded in Bonneville County is enclosed. In addition, you are assessed with attorney fees of $200.00 for the drafting of this collection letter.

The purpose of this letter is to demand payment of $818,636.02 in satisfaction of this lien so that the lien may be released. In the absence of payment by Teton View Golf Estates, LLC., lien foreclosure is required, which will also include a claim for additional attorney fees which could substantially increase this balance. Please submit payment by cash or cashier's check in this amount directly to our office, payable to DePatco, Inc. Payment must be received within ten (10) days of your receipt of this letter to avoid litigation. Upon receipt of payment, a Satisfaction of Lien will be recorded and a copy forwarded to you.

Please govern yourself accordingly.

Enclosures c: client MRF:kss

Very truly yours,

FULLER & CARR

Mark R. Fuller Atta rney at Law

120

EYUlBIT d _nl II -IL--

U.S. Postal Service,.. , CERTIFIED MAIL,, RECEIPT

"° ..D (Domestic Mall Only; No lnsuronce Coverage Provided)

U1 Lr)

n.J CJ f"let·;m Ae<:elpl Fee O (Enoorsem~m ReQul1ed) 0 ~----'=::..:..,=.:..,..__-\

Anstrl<,l•d Delivery Fee Cl (r ndcesomenl ReQul1ed) tr >---------1

::r Tomi Pos1oge !I FeM $ ,..::i L....:_----""""'-----'----'-+,'--'

SENDER: COMPLETE THIS SECTION

• Complete Items. 1, 2, and 3. Also complete Item d if Restricted Delivery Is desired.

• Prlnt your name and address on the reverse so that we can return the card to you.

• Attach this cii"d to the back of the mallplece, or on the front if space permits.

1. Article Addressed to:

D Express Mall

3. Service Type

Kl Certified Mall

D Registered

D Insured Mall

D Return Recelpl for Merchandlse

D c.o.o. 4. Restricted DeliYery? (Extra Fee) D Yes

2. Article Number

(Transfer from serv/Cfl /abe~ ' 7007 1490 0002 8990 5565

PS Form 3811, February 2004 DomesUc Return Rec:elp! 102595-02-M-1540

121

1

2

3 4

5

6

7

8

9 10 11 12 13 14 15 16 17 18 19

20

Douglas R. Hookland, ISB #6875 Scott + Hookland LLP 9185 S. W. Burnham Street P.O. Box 23414 Tigard, OR 97281-3414 (503) 620-4315 (Facsimile) (503) 620-4540 (Telephone)

'" 1)

Attorney For Defendant and Third-Party Plaintiff HD Supply Waterworks, Ltd.


ST A TE OF IDAHO, IN AND FOR THE COUNTY OF BONNEVILLE


Plaintiff,

VS.

TETON VIEW GOLF ESTATES, L.L.C., a Utah limited liability company; ROTHCHILD PROPERTIES, LLC, a Utah limited liability company; WESTERN EQUITY, LLC, a Utah limited liability company; AMERITITLE COMPANY; ZBS, LLC, an Idaho limited liability company; DEPA TCO, INC., an Idaho Corporation; SCHIESS & ASSOCIATES, P.C., an Idaho Professional Service Corporation; HD SUPPLY WATERWORKS, LTD.; DOES 1-3, and ALL PERSONS IN POSSESSION OF REAL PROPERTY DESCRIBED HEREIN,

Defendants.

Case No. CV-08-4395

DEFENDANT AND THIRDPARTY PLAINTIFF HD SUPPLY WATERWORKS, LTD.'S ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIM. CROSS-CLAIMS AND THIRDPARTY COMPLAINT

(Foreclosure of Mechanics Lien; On Account Breach of Contract;

Quantum Meruit; Personal Guaranty)

Fee Categories: JS, 16 Filing Fee: $28.00

DEFENDANT AND THIRD-PARTY PLAINTIFF HD SUPPLY WATERWORKS, LTD.'S ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIM, CROSS-CLAIMS AND THIRD PARTY COMPLAINT- 1 ,,; 1') :J - "-· __ ,

1 I-ID SUPPLY WATERWORKS, LTD., 2 a Florida limited partnership, doing business 3 as HD SUPPLY WATER WORKS, formerly 4 known as National Waterworks, Inc., 5 6 Third-Party Plaintiff, 7 8 VS.

9 SANDRA A. MACARTHUR, Trustee of the 10 Sandra A. MacArthur Family Trust; 11 DANIEL STODDARD, individually and on 12 behalf of his marital community; and JANE 13 DOE STODDARD, on behalf of her marital 14 community,

15 Third-Party Defendants.

16 For its answer to the amended complaint to foreclose deed of trust and other actions of

1 7 plaintiff Idaho Development, LLC ("Idaho Development"), defendant and third-party plaintiff HD

18 Supply Waterworks, Ltd., doing business as HD Supply Waterworks, formerly known as National

19 Waterworks, Inc. ("HD Supply") admits, denies and alleges as follows:

20 1. With respect to all of the allegations in paragraphs 1 through 8, 10, 11, 13, 15 through

21 32, and 35 through 40, HD Supply lacks sufficient information and knowledge to admit or deny such

2 2 allegations, and therefore HD Supply denies all allegations in these paragraphs.

23 2. HD Supply admits the first sentence of paragraph 9, and that HD Supply provided

2 4 materials for the property at issue in this litigation. Except as so admitted, HD Supply denies each

2 5 and every allegation in paragraph 9.

26 3. With respect to paragraph 12, HD Supply admits it is claiming some right, title, lien

2 7 and interest in the property at issue in this litigation. Except as so admitted, HD Supply denies each

DEFENDANT AND THIRD-PARTY PLAINTIFF HD SUPPLY WATERWORKS, LTD.'S ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIM, CROSS-CLAIMS AND THIRD PARTY COMPLAINT- 2

123

1 and every allegation in paragraph 12.

2 4. With respect to paragraph 33, HD Supply admits plaintiff has retained legal counsel

3 in this dispute, but except as so admitted HD Supply denies each and every allegation in paragraph

4 33.

5 5. With respect to paragraphs 14 and 34, HD Supply admits and denies as previously

6 admitted and denied herein.

7 6. Except as expressly and specifically admitted above, HD Supply denies each and

8 every allegation in the amended complaint.

9 FIRST AFFIRMATIVE DEFENSE

10 (Plaintiff Fails To State A Claim Upon Which Relief Can Be Granted)

11

12 above.

13

14

15

16

17 above.

18

7.

8.

9.

10.

HD Supply realleges the admissions and denials alleged in paragraphs 1 through 6

Plaintiff fails to state a claim upon which relief can be granted.

SECOND AFFIRMATIVE DEFENSE

(Lack of Contractor Registration)

HD Supply realleges the admissions and denials alleged in paragraphs 1 through 6

Plaintiff is not, and no material time ever was, registered with the Idaho Contractors

19 Board as a contractor, and such registration was and is required. Therefore, plaintiff is barred from

2 0 asserting any right, claim, or remedy in this lawsuit.

21 ///

DEFENDANT AND THIRD-PARTY PLAINTIFF HD SUPPLY WATERWORKS, LTD.'S ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIM, CROSS-CLAIMS AND THIRD PARTY COMPLAINT - 3

124

1

2

3

4

l l.

12.

THIRD AFFIRMATIVE DEFENSE

(No Qualification To Conduct Business)

HD Supply realleges paragraphs 1 through 6 above.

At no time has plaintiff been qualified to conduct business in the State of Idaho,

5 which qualification is required, and therefore plaintiff is barred from asserting any right, claim, or

6 remedy in this lawsuit.

7 FOURTH AFFIRMATIVE DEFENSE

8 13. HD Supply reserves and intends to assert each and every affinnative defense that

9 becomes known through investigation, research and discovery.

1 O DEFENDANT AND THIRD-PARTY PLAINTIFF HD SUPPLY'S 11 COUNTERCLAIM, FIRST CROSS-CLAIM AND 12 FIRST THIRD-PARTY CLAIM

13 (Mechanics Lien Foreclosure)

14 For its Counterclaim, First Cross-Claim and First Third-Party Claim against plaintiff, all

15 other defendants and third-party defendant Sandra A. MacArthur, Trustee of the Sandra A.

16 MacArthur Family Trust ("MacArthur"), HD Supply alleges:

17 14. At all times material herein, defendant and third-party plaintiff HD Supply

18 Waterworks, Ltd., doing business as HD Supply Waterworks, formerly known as National

19 Waterworks, Inc. ("HD Supply") was and is a Florida limited partnership authorized to transact

2 0 business in Idaho. At all material times herein, defendant DePatco, Inc. ("DePatco") was and is an

21 Idaho corporation. At all material times herein, third-party defendants Daniel Stoddard and Jane Doe

22 Stoddard (collectively "Stoddard") were and are married and form a marital community.

DEFENDANT AND THIRD-PARTY PLAINTIFF HD SUPPLY WATERWORKS, LTD.'S ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIM, CROSS-CLAIMS AND THIRD PARTY COMPLAINT - 4

1 15. At all material times herein, plaintiff Idaho Development, LLC ("Idaho

2 Development") was and is a Utah limited liability company not qualified to transaction business in

3 Idaho; at certain times material herein, and currently, defendant Teton View Golf Estates. L.L.C.

4 ("Teton View") was and is an unregistered Utah limited liability company not qualified to transact

5 business in Idaho; at certain times material herein, and currently, defendant Rothchild Properties,

6 LLC ("Rothchild") was and is an unregistered Utah limited liability company not qualified to

7 transact business in Idaho; at certain times material herein, and currently, defendant Western Equity,

8 L.L.C. ("Western Equity") was and is an unregistered Utah limited liability company not qualified

9 to do business in Idaho; at all times material herein, defendant Amerititle Company ("Amerititle")

10 was and is an Oregon corporation authorized to transaction business in Idaho; at all material times

11 herein, defendant Schiess & Associates, P.C., ("Schiess") was and is an Idaho professional service

12 corporation; at all material times herein, third-party defendant Sandra A. MacArthur was and is an

1 3 individual and the trustee of the Sandra A. MacArthur Family Trust ("MacA1ihur"); and at all

14 material times, defendant ZBS, LLC ("ZBS") was and is an Idaho limited liability company.

15 16. At all material times herein, a ce1iain improvement ("the Improvement") located at

1 6 or near the corner of Lewisville Highway and Tower Road (Highway 65), in Bonneville County,

1 7 Idaho, was in the course of construction on the real property more fully described in Exhibit "A'"

18 attached hereto and incorporated herein ("the Property"). The entirety of the Property is necessary

1 9 for the convenient use and occupancy of the Improvement.

20 17. At all material times herein, Teton View has been the owner or reputed owner of the

2 1 Property and the Improvement. At all material times herein, DePatco was the statutory construction


1 agent for Teton View for purposes of construction of the Improvement. At all material times herein,

2 Teton View had actual knowledge of the construction of the Improvement.

3 18. From on or about June 27, 2008, through on or about August 4, 2008, at the request

4 of DePatco, HD Supply provided materials ("work") in furtherance of the construction of the

5 Improvement for the benefit of the Improvement and the Property. After ail just credits and offsets,

6 including payments. the contract price and reasonable value of the work provided by HD Supply to

7 DePatco and used and incorporated in the con struction of the Improvement is the sum of

8 $201,932.60, plus the sum of $4,840.09 as interest accrued through September 26, 2008. together

9 with interest on the principal balance ($201,932.60) at the rate of twelve percent (12%) per annum

1 0 from September 26, 2008, until paid, plus applicable sales tax, until paid.

11 19. On or about August 4, 2008, HD Supply justifiably stopped furnishing work to

12 DePatco. HD Sup ply has fully performed all the terms and conditions on its part to be performed

13 including providing the work. The reasonable value of the work furnished by HD Supply to DePatco

14 is $201,932.60.

15 20. On October 30, 2008, within 90 days after the last date HD Supply performed the

16 work in connection with the construction of the Improvement, HD Supply filed with the recorder's

1 7 office of Bonneville County, Idaho, its notice of mechanics lien ("Lien") containing a true statement

18 of its demand after deducting all just credits and offsets, the nan1es of the owners or reputed owners

19 of the Property and the Improvement, the name of the entity to whom HD Supply provided the work,

2 O and a description of the Property sufficient for identification. The Lien was recorded on October 30,

21 2008, as Instrument No. 1315631. A true copy of the Lien recorded as Instrument No. 1315631 is


1 attached hereto as Exhibit "B" and is incorporated herein by this reference.

2 21. Within five (5) days ofrecording the Lien, a copy of the Lien was sent to Teton View

3 by certified mail, return receipt requested.

4 22. Pursuant to I.C. 45-513, HD Supply is entitled to $27.00 paid to Bonneville County

5 Recorder's office for filing and recording the Lien, together with HD Supply's reasonable attorney

6 fees incurred herein.

7 23. Pursuant to IRCP 54(d)(l)(D), HD Supply is entitled to recover $1,130.00 paid for

8 the title search necessary to institute this action.

9 24. Plaintiff, all other defendants, and third-party defendant MacArthur claim some right,

1 0 title or interest in the Property and the Improvement as shown by the litigation guarantee attached

11 hereto as Exhibit "C" and incorporated by reference herein. HD Supply requests a decree from the

12 court establishing the rank and priority of the interests in the Property and Improvement of plaintiff,

13 each defendant and third-party defendant MacArthur.

14 25. HD Supply has no plain, speedy or adequate remedy at law. It will be necessary to

1 5 sell all of the Improvement and the Property to satisfy the Lien.

16 DEFENDANT AND THIRD-PARTY PLAINTIFF 1 7 HD SUPPL Y'S SECOND CROSS-CLAIM

18 FIRST COUNT

19 (Open Account)

2 0 For its Second Cross-Claim against DePatco, I-ID Supply alleges:

21 26. HD Supply incorporates herein by this reference the allegations of paragraph 14


1 above.

2 27. DePatco is indebted to plaintiff in the sum of$202,352.89, plus the sum of$6,836.22

3 as interest accrued through September 26, 2008, together with interest on the principal balance

4 ($202,352.89) at the rate of eighteen percent (18%) per annum from September 26, 2008, until paid.

5 plus applicable sales tax, for the balance of account for materials supplied, the particulars of which

6 are set forth as Exhibit "D'', attached hereto and incorporated by this reference herein, together with

7 the credits to which DePatco is entitled, leaving due and unpaid the above-mentioned sum, to wit:

8

9

10

11 12

13 28.

(a)

(b)

The sum of $202,352.89 together with eighteen percent (18%) interest per annum thereon from September 26, 2008, until paid.

The sum of $6,836.22 as interest accrued through September 26, 2008.

DePatco's agreement with HD Supply provides, in part, that DePatco will pay a

1 4 service charge of eighteen percent ( 18%) per annum on all past due accounts. DePatco' s account

15 is past due and subject to said service charges heretofore set forth.

16 29. DePatco's agreement with HD Supply provides further that DePatco will pay HD

1 7 Supply's reasonable attorneys fees incuned in the collection of its account. HD Supply is entitled

18 to its reasonable attorneys fees incuned herein. Plaintiff is also entitled to recover its reasonable

19 attorney fees pursuant to I.C. 12-120(3).

20 30. A true copy of the agreement containing the provisions set forth in paragraphs 28 and

21 29 is attached herein as Exhibit "E" and incorporated by this reference herein. HD Supply has

2 2 performed all conditions precedent on its part to be performed.


1 3 I. DePatco has not paid said sum or any part thereof.

2 COUNT TWO

3 (Breach of Contract)

4 For an alternative statement ofits Second Cross-Claim against DePatco, HD Supply alleges:

5 32. Incorporates by reference and realleges paragraph 14 above.

6 33. HD Supply and DePatco entered into an agreement whereby HD Supply agreed to

7 provide to DePatco materials, at its request, and DePatco agreed to pay for said materials. A copy

8 of the agreement is attached hereby and incorporated herein by this reference as Exhibit "E".

9 34. HD Supply performed all conditions precedent on its part to be performed, including

1 0 providing the materials to DePatco.

11

12

35.

36.

DePatco materially breached said agreement by failing to pay the material charges.

As the direct and proximate result ofDePatco' s breach, HD Supply has been damaged

13 in the total sum of$202,352.89, plus the sum of $6,836.22 as interest accrued through September

14 26, 2008, together with interest on the principal balance ($202,352.89) at the rate of eighteen percent

15 (18%) per annum from September 26. 2008, until paid.

16 37. DePatco has failed to pay said sums or any part thereof. Pursuant to the terms of the

1 7 agreement, Exhibit "E" hereto, HD Supply is entitled to interest as alleged in the previous paragraph,

18 plus its attorney fees. Plaintiff is also entitled to recover its reasonable attorney fees pursuant to J.C.

19 12-120(3).

2 o Ill

21 Ill


l30

1

2

3

4

5

COUNT THREE

(Quantwn Meruit)

For an alternative statement of its Second Cross-Claim against DePatco, HD Supply alleges:

38.

39.

Incorporates by reference and realleges paragraph 14 above.

HD Supply provided materials to DePatco in the State of Idaho at the request of

6 DePatco and DePatco is indebted to HD Supply for such materials' reasonable value, which is

7 $202,352.89.

8 40. The amount, type and quality of such materials were reasonable. DePatco has failed

9 to pay the amount of $202,352.89 nor any part thereof. Plaintiff is also entitled to recover its

10 reasonable attorney fees pursuant to I.C. 12-120(3).

11 SECOND THIRD-PARTY CLAIM

12 (Personal Guaranty)

13 For its Second Third-Party Claim against defendants Stoddard, plaintiff alleges:

14

15

41.

42.

Incorporates by reference and realleges paragraphs 14 and 27 through 31 above.

At the time of extension of credit and opening of DePatco' s account set forth

16 heretofore and as a material element of said transaction and as consideration upon which HD Supply

1 7 extended such credit and opened such account, defendant Daniel Stoddard executed his guarantee

18 to be personally liable for and guaranteed payment of all account balances, past-due service charges

19 and attorney fees owed by DePatco to HD Supply. A true and correct copy of such guaranty is

2 0 attached hereto as Exhibit "F" and incorporated by this reference herein.

21 43. HD Supply has performed all conditions on its part to be performed.

DEFENDANT AND THIRD-PARTY PLAINTIFF HD SUPPLY WATER WORKS, LTD. 'S ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIM, CROSS-CLAIMS AND THIRD PARTY COMPLAINT - 10

131

1 44. HD Supply has made demand upon defendant Daniel Stoddard and said defendant

2 has failed and refused to pay said sums or any part thereof. Pursuant to the terms of the guaranty,

3 Exhibit "F" hereto, I-ID Supply is entitled to recover its reasonable attorney fees incurred herein.

4 Furthermore, HD Supply is entitled to recover its reasonable attorney fees pursuant to I.C. 12-120(3 ).

5 45. The materials supplied by HD Supply and the benefits of the guaranty inured to the

6 economic benefit of defendants Stoddards' marital communities, and therefore each of defendants'

7 marital communities are liable to HD Supply in the amount of $202,352.89, plus the sum of

8 $6,836.22 as interest accrued through September 26, 2008, together with interest on the principal

9 balance ($202,352.89) at the rate of eighteen percent (18%) per annum from September 26, 2008,

10 until paid, plus applicable sales tax, together with plaintiffs reasonable attorney fees and costs and

11 disbursements incmTed herein.

12 WHEREFORE, defendant and third-party plaintiff HD Supply Waterworks, Ltd. prays for

13 judgment as follows:

14 I. That plaintiffs amended complaint, and all claims therein, be dismissed with

15 prejudice and that HD Supply Waterworks, Ltd. be awarded its reasonable attorney fees and costs

1 6 and disbursements incurred herein;

17 2. On its Counterclaim. First Cross-Claim, and First Third-Party Claim, for a decree

18 foreclosing HD Supply Waterworks, Ltd.'s lien in the principal amount of$201,932.60, plus interest

19 accrued through September 26, 2009, in the amount of $4,840.09, together with interest on the

2 0 principal balance ($201,932.60) at the rate of twelve percent (12%) per annum from September 26,

21 2008, until paid, plus applicable sales tax, plus $27 .00 as lien filing fees,$ 1,130.00 as the title search

DEFENDANT AND THIRD-PARTY PLAINTIFF HD SUPPLY WATERWORKS, LTD.'S ANSWER, AFFIRMATIVE DEFENSES, COUNTERCLAIM, CROSS-CLAIMS AND THIRD PARTY corv1PLAINT- 11

132

1 fee, and HD Supply Waterworks Ltd.' s reasonable attorney fees and costs and disbursements

2 incuned herein, against the Improvement and the Property; for a decree establishing and declaring

3 the priority and rank of interests of the parties in and to the Improvement and the Property; that the

4 Improvement and the Property be sold by the Sheriff of Bonneville County, Idaho, in the manner

5 provided by law as on execution to satisfy the aforesaid sums of money, and in the event judgment

6 is entered by default in favor of HD Supply Waterworks, Ltd. and HD Supply Waterworks, Ltd.

7 seeks an award of attorney fees in the amount of $10,000.00;

8 ,, .) . On its Second Cross-Claim, First Count, against defendant DePatco, Inc. in the

9 amount of$202,352.89, plus the sum of $6,836.22 as interest accrued through September 26, 2008,

1 O together with interest on the principal balance ($202,352.89) at the rate of eighteen percent (18%)

11 per annum from September 26, 2008, until paid, plus applicable sales tax, plus HD Supply

12 Waterworks, Ltd.' s reasonable attorney fees and costs and disbursements incurred herein, and in the

13 event judgment is entered by default in favor of HD Supply Waterworks, Ltd .. HD Supply

14 Waterworks, Ltd. seeks an award of attorney fees in the amount of $10,000.00;

15 4. On its Second Cross-Claim, Second Count, against defendant Depatco, Inc. in the

16 amount of$202,352.89, plus the sum of$6.836.22 as interest accrued through September 26, 2008,

1 7 together with interest on the principal balance ($202,352.89) at the rate of eighteen percent (18%)

18 per annum from September 26, 2008, until paid, plus applicable sales tax, plus HD Supply

1 9 Waterworks, Ltd.' s reasonable attorney fees and costs and disbursements incurred herein, and in the

2 0 event judgment is entered by default in favor of HD Supply Waterworks, Ltd., HD Supply

21 Waterworks, Ltd. seeks an award of attorney fees in the amount of $10,000.00;


133

1 5. On its Second Cross-Claim, Third Count, against defendant DePatco, Inc. in the

2 amount of$202,352.89, together with interest thereon at the rate of twelve percent (12%) per annum

3 from August 5, 2008, until paid, plus HD Supply Waterworks, Ltd.'s reasonable attorney fees and

4 costs and disbursements incurred herein, and in the event judgment is entered by default in favor of

5 HD Supply Waterworks, Ltd., HD Supply Waterworks, Ltd. seeks an award of attorney fees in the

6 amount of $10,000.00;

7

8

9

10

11

12

13

14

15

16

17

18 19 20 21

6. On its Second Third-Party Claim against defendants Daniel Stoddard, individually

and on behalf of his marital community, and the marital community of Jane Doe Stoddard, jointly

and severally, in the amount of $202,352.89, plus the sum of $6,836.22 as interest accrued through

September 26, 2008, together with interest on the principal balance ($202,352.89) at the rate of

eighteen percent (18%) per annum from September 26, 2008, until paid, plus applicable sales tax,

plus HD Supply Waterworks, Ltd. 's reasonable attorney fees and costs and disbursements incurred

herein, and in the event judgment is entered by default in favor of HD Supply Waterworks, ltd., HD

Supply Waterworks, Ltd. seeks an award of attorney fees in the amount of $10,000.00; and

7. Such further relief as the court may deem equitable.

DA TED this w day of April, 2009.

SCOTT+ HOOKLAND LLP

~ Douglas R. Hookland, ISB #6875 Of Attorneys For Defendant and Third-Party Plaintiff HD Supply Waterworks, Ltd.


EXHIBIT "A"

BEGINNING AT A POINT THAT IS SOUTH 00°27;09" EAST 25.00 FEET FROM THE NORTHEAST SECTION CORNER OF SECTION 31, TOWNSHIP 3 NORTH, RANGE 38, EAST OF THE BOISE MERIDIAN, BONNEVILLE COUNTY, IDAHO, RUNNING THENCE SOUTH 00°27'09" EAST 913.64 ALONG THE EAST SECTION LINE; THENCE SOUTH 89°32'51" WEST 215.00 FEET; THENCE SOUTH 00°27'09" EAST 99.94 FEET; THENCE NORTH 89°32'51" EAST 182.00 FEET; THENCE SOUTH 00°27'09" EAST 27.47 FEET; THENCE SOUTH 89°32'51" WEST 341.11 FEET; THENCE NORTH 01 °00'19" WEST 127.42 FEET; THENCE SOUTH 89°32'51" WEST 1413.98 FEET; THENCE NORTH 36°38'38" WEST 116.19 FEET; THENCE NORTH 15°14'53" WEST 260.01 FEET; THENCE NORTH 01°00'18" EAST 255.52 FEET; THENCE NORTH 02°41'50" EAST 280.33 FEET; THENCE NORTH 02°25'59" EAST 15.16 FEET; THENCE NORTH 89°00'18" EAST 1901.74 FEET TO THE POINT OF BEGINNING.

1J5 EXHIBIT "A" Page 1 of 1

After Recording Return To: Kevin T. Christiansen Scott + Hookland LLP P.O. Box 23414 Tigard, OR 97281-3414 File No.: HD008

Instrument # 1315631 IDAHO FALLS, BONNEVILLE, IDAHO 10-30-2008 03:05:46 No. of Pages: 9 Recorded for: HD SUPPLY WATERWORKSlLL j' RONALD LONGMORE . . Fee: 27.00 Ex-Officio Recorder Deputy Index to· LIEN. LABOR ----7-,A,"'f?""-"":...___

Lien Claimant: HD Supply Waterworks, LTD, doing business as HD Supply Waterworks formerly known as National Waterworks, Inc.

Lien Debtor: DePatco, Inc. Owner(s) or Reputed Owner(s): Teton View Golf Estates, LLC and/or Teton View Est.ates and/or

Tony Versteeg and/or Idaho Development, LLC and/or Teton View Estates Time Interval Association, Inc. and/or Teton View Est.ates LLC

Lien Amount: $201,958.60*, plus interest accrued through September 26, 2008, in the amount of $4,840.09, together with interest on the principal balance of $201,932.60 at the rate of twelve percent (12%) per annum from September 26, 2008, until paid. Included in the principal balance of the lien claim ($201,932.60) is Idaho State Tax in the amount of$24,518.43.

NOTICE OF MECHANICS LIEN

1. Description Of The Property

KNOW ALL MEN BY THESE PRESENTS: The undersigned, hereinafter called the claimant, performed labor, transported or furnished materials to be used in or rented equipment or furnished services under a contract for work between claimant and DePatco, Inc., a construction agent or other person having charge of the construction of those buildings and/or other improvements commonly known as the Teton View Estates Project. Said buildings and/or improvements are situated upon certain land in the County of Bonneville, State of Jdaho, which is the site of said improvement, described as follows:

See Exhibit "A" attached hereto and incorporated herein.

Ill

1 - NOTICE OF MECHANICS LIEN

EXHIBIT "B'' Page 1 of 9

2. Address, If Known

The property is located at or near the comer· of Lewisville Highway and Tower Road (Highway 65) in Bonneville County. Claimant does not have a specific site address. See Exhibit "A" attached herein and incorporated herein for a description of the property.

3. N amcs Of Owners Or Reputed Owners

Teton View Golf Estates, LLC and/or Teton View Estates and/or Tony Versteeg and/or Idaho Development LLC and/or Teton View Estates Time Interval Association, Inc. and/or Teton View Estates LLC, all of whom at all times herein mentioned had knowledge of the constrnction of said improvement. All other owners or reputed owners are otherwise unknown.

4. Person By Whom Claimant Was Employed

The name of the person who employed claimant to furnish said labor, materials, services and/or equipment, and to perform said contract was DePatco, Inc.

5. Performance Of Work

Claimant commenced its performance on June 27, 2008 and completed its perfonnance on August 4, 2008, and provided and furnished all labor, materials, services and equipment required by said contract and actually used in the construction of said building(s) and/or improvement(s), after which it ceased to provide labor or services, transport or furnish materials and/or rent equipment.

6. True Statement Of Demand Less Just Credits And Offsets

As set forth on Exhibit "B" attached hereto and incorporated herein, the following is a true statement of claimant's demand after deducting all just credits and offsets, to-wit:

The reasonable value and contract amount of claimant's labor, services, materials and equipment is:

Materials ..................................... $201,932.60 Rental Equipment ............................... $ Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... $ Recording fees ................................... $ 27.00 Total. .......................................... $ Less all just credits and offsets . . . . . . . . . . . . . . . . . . . . $ 0.00 Balance due claimant ............................. $201,958.50 *


EXHIBIT "B" Page 2 of 9

*Interest accrues at the legal rate of twelve percent (12%) per annum on the principal amount of $201,932.60 from September 26, 2008, until paid, together with interest in the arnountof$4,840.09 accrued prior to September 26, 2008. Included in the principal balance of the lien claim ($201,932.60) is Idaho State Tax in the amount of$24,518.43.

8. Perfection Of Lien

Claimant claims a perfected lien for the amount last stated, $201,958.60*, upon the said improvement and upon the land, to-wit: the land upon which said building( s) and/or improvement( s) is constructed, together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof, to be determined by the court on rendering judgment foreclosing this lien.

9. MisceJlaneous

Ill

Ill

Ill

Ill

Ill

Ill

Ill

Ill

a) In construing this instrwnent, the masculine pronoun means and includes the feminine and the neuter and the singular includes the plural, as the circumstances may require.

3 -NOTICE OF MECHANICS LIEN

1 ;js EXHIBIT "B" Page 3 of 9

b) The paragraph captions are of convenience only and shaJl not be deemed to limit the terms or provisions of this claim of lien.

ST A TE OF IDAHO ) ) ss.

County of Bonneville )

I, Brandon Oswald, being first duly sworn on oath, say as follows: I am the District Manager of the claimant in the foregoing instrument; that I have knowledge of the facts therein set forth; that all statements made in said instrument are true, correct and just as I verily believe.

DA TED this Ji)_ of October, 2008.

STATE OF IDAHO ) ) ss.

County of Bonneville )

andon Oswald As Its: District Manager

I, 13:mnfe., l C:.u,,erc,S\a notary public, do hereby certify that on this o day of October, 2008, personally appeared before me Brandon Oswald, who, being by me first duly sworn, declared that he is the District Manager of HD Supply Waterworks that he signed the foregoing document as District Manager of the corporation, and that the statements therein contained are true.

-·-.. . . ---:.. ·. Pueuc : :: _, . . ...... ., .n • • 0 ...._ .... .,, "''>-. •••••••••• ~ , ....

"'"'.1 ~'!'~ Of \0~ ,,, ,, ,, ,,,,, 11,,,


. I f3~~ of. G(-~u,.~

Not:11?' P~blic0

F?r, ~:o/J J.diet;f't..o Res1dmg m ,)lrIDJLQJaJ.1,,c. . ~r:icv JL..o My Commission Expires:. yb( .::to 1 /


EXHIBIT "A"

Beginning at a point that is S00° 27'09"E 25 .00 feet from the Northeast Section Comer of Section 31, Township 3 North, Range 38 East of the Boise Meridian, Bonneville County, Idaho, running thence S00° 27'09"E 913.64 along the East Section Line; thence S89° 32'51 "W 215.00 feet; thence S00° 27'09"E 99.94 feet; thence N89° 32'51 "E 182.00 feet; thence S00° 27'09"E 27.47 feet; thence S89° 32'51 "W 341.11 feet; thence N0l O 00'19"W 127.42 feet; thence S89°32'51 "W 1413.98 feet; thence N36° 38'38"W 116.19 feet; thence Nl5° 14'53"W 260.01 feet; thence N01° 00'18"E 255.52 feet; thence N02° 41 '50"E 280.33 feet; thence N02°25'59"E 15.16 feet; thence N89° 00'l 8"E 1901.74 feet to the Point of Beginning; Containing 40.015 acres.

140 EXHIBIT "B" Page 5 of 9

EXHIBIT "B" - PAGE 1 OF 4

I I I HD Water Supply Waterworks I

CUSTOMER: DePatco, Inc. HD008

INVOICE DATE INVOICE# DATE SHIPPED DESCRIPTION

7482560 6/27/2008 6/27/2008 12X14' SDR35 PVC SWR PIPE 8X14' SDR35 PVC SWR PIPE Tax

7483619 7/3/2008 7/2/2008 8X14' SDR35 PVC SWR PIPE 4X14' SDR35 PVC SWR PIPE 8X4 PVC SDR35 SWR TEE GXG 4 PVC SDR35 SWR 45 GXSP 4 PVC SDR35 SWR GSKT CAP 8 PVC SDR35 SWR GSKT CAP Tax

7493381 7/3/2008 7/2/2008 18" 16GA CMP GALV CORR PIPE Tax

-·

7497165 7/3/2008 7/2/2008 4X14" SDR35 PVC SWR PIPE Tax

7482991 7/11/2008 7/8/2008 16 TJ PR350 CL50 DI PIPE C/L 8 T J CL50 DI PIPE C/L 6 T J CL50 DI PIPE C/L Tax

7483604 7/11/2008 7/10/2008 16X16 MJ Cross C/L CP DI C153 16" MJ Regular Ace Set 16 MJ CAP TIC 16 MJ 45 Bend C/L 16 DI MJ Lugged Restrainr Gian 16 MJ Butterfly Viv on Pratt 26X36 #856 Valve Box Water Lid 8 F6100 MJ RW GV OL on UACC Clow Gate Valve 8" MJ Regular ACC Set 26X36 #856 Valve Box Water Lid 8X8 MJ TEE C/L 8X8 MJ Cross C/L 16X8 MJ TEE C/L

1.41

...

AMOUNT

$18,038.02 $3,669.12 i1,302.43

$23,009.57

$8,790.60 $0.00

$1,682.45 $406.56 $291.06

$20.03 $671.44

$11,862.14

$358.40 $21.50

$379.90

$2,703.68 $162.22

$2,865.90

$1,490.00 $75,529.04

$1,595.06 $4,716.85

$83,330.95

$1,200.40 $2,218.44

$503.62 $1,562.92

$878.96 $6,828.24

$448.28

$10,659.00 $1,668.16 $1,408.88

$527.44 $360.74

$1,901.16

EXHIBIT "8" P~oP6nf9

EXHIBIT "B" · PAGE 2 OF 4 -··

i I, i I 7483604 • (continued} 711012008 8 MJ 11-114 Bend

8 MJ 22-112 Bend ' I, 8 MJ 45 Bend GIL :

8 MJ 90 Bend GIL 8 MJ Cap TIC . 8 MJ Plug TIC 8X6 MJ Tee GIL -- ·---6" MJ Regular Ace Set 6 F6100 MJ RW GV OL ON UACC Clo 26X36 #856 Valve Box Water Lid 6'6" TR MJ MED HYD LA A Nut & 5 Pu

I- ·••···············

8X21 P DIS Sad Epoxy WISS Straps 0 I I 7 2 Ballcorp MIPXPJ I 6'0" #77 Mainguard Post H DT Fip Inlet .....

Tax ! -l - -L--- ·-- -----·-··

I -7557230 711412008 711112008 Cadweld Flir.t Igniter

Jc;i~\Y~l_c:l Mold for 10-12" Pipe

i 25 Gram Cadweld Shot Cadweld #2 Sleeve 18" #2 Bare Stranded Wire ··------Tax

I I

7554140 711512008 711412008 16" M~I Regular Ace Set 16 MJ Buetteryfly Viv on Pratt 6'6" TR M~I MED HYD LA A Nut & 5 Pu Tax

7562486 711512008 I 7I1412008 i Gal Paint, Black Magic Asphalt Tax

I ------·

7576099 711612008 1711512008 f 25 Gram C:adweld Shot --, Tax

·--.. ·· 10/0ttOO 7117/2008 7116!2008 !25 Gram Cadweld Shot

Tax

7589190 712212008 7121/2008 Cadweld Flint Igniter Tax

I

142

$302.01 $172.88 $171.10

$98.78 $115.11

$38.37 $1,691.62

$738.64 $5,488.56

$784.00 $9,784.68

$119.34 $263.26 $756.08

~3,041.44 $53,732.11

$5.10 $42.20

$738.00 $320.00 $542.50

$98.87 $1,746.67

$0.00 $5,121.18 $4,892.34

$600.81 $10,614.33

$29.80 $J.79

$31.59

$49.20 Jp2.9§.

$52.15

$492.00 ~29.52

$521.52

$10.20 $0.61

$10.81

EXHIBIT "B" Pa!!e 7 of 9


7587281 7/17/2008 7/14/2008 16 TJ PR350 CL50 DI PIPE C/L 8 T J CL50 DI PIP.E C/L 6 TJ CL50 DI PIPE C/L Tax

7593673 7/21/2008 7/18/2008 Cadweld Mold for 10-12" Pipe Tax

7601273 7/22/2008 7/21/2008 Gal Paint, Black Magic Asphalt 4 PVC SDR35 SWR CAP HUB SW SO 8X2 MJ TAPT CAP TIC CP DI C153 Tax

7606794 7/23/2008 7/22/2008 8X2 MJ TAPT CAP T?C CP DI C153 Tax

...

7607889 7/23/2008 7/22/2008 8X8 PVC SDR35 SWR WYW GXG 8 PVC SDR35 SWR 45 GXSP 8 PVC SDR35 SWR 90 GXSP Tax

7616068 7/23/2008 7/22/2008 8X8 PVC SDR35 SWR WYE GXG Tax

7621602 7/23/2008 7/22/2008 16 TJ PRE350 CL50 DI PIPE C/L Tax

----7611778 7/23/2008 7l22i2008 16X10 MJ TEE C/L GP DI C153

16" M,I Regular Ace Set 1 O" MJ RegularAcc Set 8 F6100 MJ RW GV OL ON UACC Clo 8" MJ Regular Ace Set

-·----26X36 #856 Valve Box Water Lid Tax

7562317 7/25/2008 7/24/2008 16 MJ Butterfly Viv on Pratt 6'6" TR MJ MED HYO LA A Nut & 5 Pu

·-

16" MJ Regular Ace Set Tax

14 ... 0 ~) ·-:~.

$29,800.00 $0.00 $0.00

$1,788.00 $31,588.00

$42.20 $2.53

$44.73

$89.40 $87.92

$317.52 $29.69

$524.53

$158.76 $9.53

$168.29

$80.32 $40.18 $47.41 $10.08

$177.99

$80.32 $4.82

$85.14

$191,725.75 $11,503.55

$203,229.30

$300.00 $135.88 $54.16

$821.51 $63.03 $64.04 $86.32

$1,524.94

$6,828.24 $0.00 $0.00

$409.69 $7,237.93


·-·

7527814 8/5/2008 --

PRINCIPAL CREDIT MEMO TOTAL


8/4/2008

----·------

18" 16GA CMP GALV CORR PIPE $358.40 18" Hugger Band for CMP $38.10

·-·

Tax $23.79 $420.29

--

$432,738.50 -$230,805.90 $201,932.60

Interest Accrues at the legal rate of twelve percent (12%) per annum on the principal amount of $201,932.60 from September 26, 2008, until paid, together with interest in the amount of $4,840.09 accrued prior to September 26, 2008 Included in the pfjncipal amount of the lien claim ($201,932.60 is Idaho State Sales Tax in the amount of $24,518.43


Form No. 110-1282 (Rev. 3/31/04 1100041Pl29500

Issued by

First American Title Company 900 Pier v'iew Drive Ste. 11~ Idaho Falls/ ID 83402

Title Officer: Lois Olson Phone: (208)522-9195

FAX· (208)529-8965

EXHIBIT "C" Page 1 of 11

Ut,gation Guarantee Form No. ll0·12S2 (Rev. 3/3l/04) L 10004 LP 129500

LITIGATION GUARANTEE

Guarantee No.- 294068-IF Page No.: l

SUBJECT TO THE UM/TA noNS CONTAINED HEREIN, 77-IE EXCLUSIONS FROM CO VERA GE, THE UM/TS OF LJAB/UTY AND O77-IER PROVISIONS OF 77-IE CONDffiONS AND STTPULA 71ONS HERETO ANNEXED AND MADE A PART OF 77-1/5 GUARANTEE

First American Title Insurance Company a Callfomia corporation, herein called the Company

GUARANTEES

the Assured named in Schedule A against loss not exceeding the liability amount stated in Schedule A which the Assured shall sustain by reason of any Incorrectness in the assurance which the Company hereby gives that, according to the publ!c records, as of Date of guarantee shown in Schedule A:

1. The title to the herein described estate or Interest is vested in the vestee named in Schedule A. 2. Except for the matters shown in Schedule B, there are no defects, liens, encumbrances or other

matters affecting title to the estate of interest in the Land shown in Schedule A, which matters are not necessarily shown in the order of their priority.

3. a) The current interest holders claiming some right, title or interest by reason of the matters shown on Part II of Schedule B are as shown therein_ The vestee named in Schedule A and parties daimlng to have some right, title or interest by reason of the matters shown in Part II of Schedule B may be necessary to name defendant in an action, the nature of which is referred to In Schedule A. b) The current Interest holders claiming some right, title or interest by reason of the matters shown in Part I of Schedule B may also be necessary to name defendant in an action, the nature of which Is referred to in Schedule A. However, no assurance IS given hereby as to those current Interest holders.

4. The return addresses for malling after recording, if any, as shown on each and every document referred to In Part II of Schedule B by specific recording information, and as shown on the document(s) vesting title as shown in Schedule A are as shown in Schedule C.

This Litigation Guarantee Is furnished solely for the purpose of facilitating the filing of the action referred to In Schedule A. It shall not be used or relied upon for any other purpose.

First Ame:riccm 1itle Insurance Company

.. Pr/// L ~~-

First Ameriean Title Company

By~~/d~ AUTI-IORfZED SIGNATORY

148 EXHIBIT "C"

Page 2 of 11

Litigation Guarantee Guarantee No.: 294068-IF

Page No.: 2 Form No. 110-1282 (Rev. 3/31/04)

1100041P129500

SCHEDULE A

LITIGATION GUARANTEE

LIABILITY: $275,000.00 GUARANTEE I\JO.: 294068-IF

ORDER NO.: 294068-IF FEE: $1130.00

l. Name of Assured:

HD Supply waterworks, LTD, doing business as HD Supply Waterworks formerly known as National Waterworks, Inc. and Scott-Hookland LLP

2. Date of Guarantee: March 05, 2009 at 7:30 A.M.

3. This Litigation Guarantee is furnished solely for the purpose of facilitating the filing of an action to to foreclose on Instrument Number 1315631

4. The estate or interest in the land which is covered by this guarantee is:

Fee Simple

5. Tltle to the estate or interest in the Land is vested in:

Teton View Golf Estates, LLC, an Utah Limited Liability Company

6. The Land referred to in this Guarantee is described as follows:

BEGINNING AT A POINT THAT IS SOUTH 00°27;09" EAST 25.00 FEET FROM THE NORTHEAST SECTION CORNER OF SECTION 31, TOWNSHIP 3 NORTH, RANGE 38, EAST OF THE BOISE MERIDIAN, BONNEVILLE COUNTY, IDAHO, RUNNING THENCE SOUTH 00°27'09" EAST 913.64 ALONG THE EAST SECTION LINE; THENCE SOUTH 89°32'51" WEST 215.00 FEET; THENCE SOUTH 00°27'09" EAST 99.94 FEET; THENCE NORTH 89°32'51" EAST 182.00 FEET; THENCE SOUTH 00°27'09" EAST 27.47 FEET; THENCE SOUTH 89°32'51" WEST 341.11 FEET; THENCE NORTH 01 °00'19" WEST 127.42 FEET; THENCE SOUTH 89°32'51" WEST 1413.98 FEET; THENCE NORTH 36°38'38" WEST 116.19 FEET; THENCE NORTH 15°14'53" WEST 260.01 FEET; THENCE NORTH 01°00'18" EAST 255.52 FEET; THENCE NORTH 02°41'50" EAST 280.33 FEET; THENCE NORTH 02°25'59" EAST 15.16 FEET; THENCE NORTH 89°00'18" EAST 1901.74 FEET TO THE POINT OF BEGINNING.

14'7 EXHIBIT "C"

Page 3 of 11

Litigation Guarantee

Form No. 110-1282 (Rev. 3/31/04) 1100041P129500

SCHEDULE B

Defects, liens, encumbrances or other matters affecting title:

Part I:

Guarantee No.: 294068-IF Page No.: 3

1. 2009 taxes are an accruing lien, not yet due and payable until the fourth Monday in November of the current year. The first one-half is not delinquent until after December 20 of the current year, the second one-half is not delinquent until after June 20 of the following year. Taxes which may be assessed and entered on the property roll for 2009 with respect to new improvements and first occupancy, which may be included on the regular property, which are an accruing lien, not yet due and payable.

General taxes as set forth below. Any amounts not paid when due will accrue penalties and interest in addition to the amount stated herein:

Year

2008

2008

Original Amount

$36.66

$2,420.18

Amount Paid

$0.00

$0.00

Homeowners Exemption is not in effect for 2008. Circuit breaker is not in effect for 2008.

Parcel Number

RP03N38E310047

RP03N38E310191

2. All matters, covenants, conditions, restrictions, easements and any rights, interests or claims which may exist by reason thereof, disclosed by the recorded plat of said subdivision, but deleting any covenant, condition or restriction indicating a preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status, or national origin to the extent such covenants, conditions or restrictions violate 42 USC 3604(c).

3. Levies and assessments of Progressive Irrigation District.

4. Easement granted to Utah Power & Light Company, recorded July 22, 1980, as Instrument No. 589848.

5. Annexation Agreement upon the terms, conditions and provisions contained therein: Parties: City of Idaho Falls and Teton View Golf Estates, LLC Recorded: April 28, 2008, Instrument No. 1297929

6. Subject to Idaho Canal along the Westerly side of said property

7. Deed of Trust dated February 29, 2008, to secure an original indebtedness of $1,100,000.00, and any other amounts and/or obligations secured thereby Recorded: February 29, 2008, as Instrument No. 1291905 Grantor: Teton View Golf Estates, LLC Trustee: Alliance Title & Escrow Corp. Beneficiary: Idaho Development, LLC

Amendment of Deed of Trust recorded March 10, 2008, as Instrument No. 1292697

148 EXHIBIT "C"

Page 4 of 11


Form No. 110-1282 (Rev. 3/31/04)

1100041Pl29500


8. Deed of Trust dated March 4, 2008, to secure an original indebtedness of $640,000.00, and any other amounts and/or obligations secured thereby Recorded: March 10, 2008, as Instrument No. 1292699 Grantor: Teton View Golf Estates, LLC, an Utah limited liability company Trustee: AmeriTitle Beneficiary: ZBS, LLC, an Idaho limited liability company

9. Action in the Idaho District Court for Idaho, Idaho Development, LLC, a Utah limited liability company Plaintiff vs. Teton View Golf Estates, LLC, a Utah limited liability company; Rothchild Properties, LLC, a Utah limited liability company; Western Equity, LLC, a Utah limited liability company; Lynn Spafford, individually, Tony Versteeg, individually; Amerititle Company; ZBS, LLC, an Idaho limited liability company; Depatco, Inc., an Idaho Corporation; Schiess & Associates, P.C., an Idaho Professional Services Corporation; Does 1-3, and All Persons in Possession of Real Property Described herein Defendant, to to foreclose on a deed of trust held by Plaintiff, Case No. CV-08-4395. Notice of Pendency of Action recorded July 22, 2008, as Instrument No. 1306619 and re-recorded July 25, 2008 as Instrument No. 1306929.

10. Deed of Trust dated August 15, 2008, to secure an original indebtedness of $250,000.00, and any other amounts and/or obligations secured thereby Recorded: August 25, 2008, as Instrument I\Jo. 1309846 Grantor: Teton View Golf Estates, LLC, a Utah limited liability company Trustee: First AMerican Title company Beneficiary: Sandra A. MacArthur Trustee of the Sandra A. MacArthur Family Trust

Subordination of Mechanic's and Materialman's Lien Ridghts, recorded August 27, 2008 as Instrument No. 1310120, records of Bonneville County, Idaho.

Appointment of Trustee, appointing Just Law, Inc., recorded February 11, 2009 as Instrument No. 1323460, records of Bonneville County, Idaho.

Notice of Default, recorded February 11, 2009 as Instrument No. 1323461, records of Bonneville County, Idaho.

11. Deed of Trust dated August 15, 2008, to secure an original indebtedness of $250,000.00, and any other amounts and/or obligations secured thereby Recorded: August 25, 2008, as Instrument No. 1309847 Grantor: Teton View Golf Estates, LLC, a Utah limited liability company Trustee: Idaho Title and Trust, Inc. Beneficiary: Idaho Development, LLC, a Utah limited liability company, its successors and assigns

12. Claim of lien. Claimant: Depatco, Inc., an Idaho corporation Amount: $ 818,436.02 For: labor and materials Recorded: October 20, 2008, as Instrument No. 1314766.

13. Claim of lien. Claimant: Schiess & Associates Amount: $ 92,880.71 For: engineering services Recorded: October 29, 2008, as Instrument I\Jo. 1315496.

Part II: 149 EXHIBIT "C" Pae:e 5 of 11


Form No. 110-1282 (Rev. 3/31/04)

1100041P129500

14. Claim of lien.


Claimant: HD Supply Waterworks, LTD dba HD Supply Waterworks fka National Waterworks, Inc. Amount: $ 201,958.60 For: labor and materials Recorded: October 30, 2008, as Instrument No. 1315631.

150 EXHIBIT "C" Page 6 of 11


Form No. 110-1282 (Rev. 3/31/04)

1100041P129500

Paragraph l'Jumber:

Recording Information:

Name and Mailing Address:

SCHEDULE C

Addresses

Schedule A-5


Warranty Deed recorded March 10, 2008 as Instrument No. 1292698

Teton View Golf Estates, LLC, an Utah Limited Liability Company 6371 N. 5th E., Idaho Falls, Idaho 83401 and 11105 London Derry, Sandy, Utah 84092

NOTT: Should you have any questions regarding items referred to herein, please contact Lois Olson, Title Officer, of First American Title Company at 900 Pier View Drive Ste. 110, Idaho Falls, ID 83402, or call (208)522-9195.

i51 EXHIBIT "C" Paee 7 of 11


Form No. 110-1282 (Rev. 3/31/04)

1100041P129500

SCHEDULE OF EXCLUSIONS FROM COVERAGE OF THIS GUARANTEE


1. Except to the extent that specific assurance are provided in Schedule A of this Guarantee, the Company assumes no liability for loss or damage by reason of the following: (a) Defects, liens, encumbrances, adverse claims or other matters against the title, whether or not shown by the public records. (b) (1) Taxes or assessments of any taxing authority that levies taxes or assessments on real property; or, (2) Proceedings by a public agency which may result in taxes

or assessments, or notices of such proceedings, whether or not the matters excluded under (1) or (2) are shown by the records of the taxing authority or by the public records.

{c) (1) Unpatented mining claims; (2) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (3) water rights, claims or title to water, whether or not the matters excluded under (1), (2) or (3) are shown by the public records. 2. Notwithstanding any specific assurance which are provided in Schedule A of this Guarantee, the Company assumes no liability for loss or damage by reason of the following:

{a) Defects, liens, encumbrances, adverse claims or other matters affecting the title to any property beyond the lines of the land expressly described in the description set forth in Schedule (A), {C) or in Part 2 of this Guarantee, or title to streets, roads, avenues, lanes, ways or waterways to which such land abuts, or the right to maintain therein vaults, tunnels, ramps, or any structure or improvements; or any rights or easements therein, unless such property, rights or easements are expressly and specifically set forth in said description.

(b) Defects, liens, encumbrances, adverse claims or other matters, whether or not shown by the public records; (1) which are created, suffered, assumed or agreed to by one or more of the Assureds; (2) which result in no loss to the Assured; or (3) which do not result in the invalidity or potential invalidity of any judicial or non-judicial proceed·1ng which is within the scope and purpose of the assurances provided.

(c) The identity of any party shown or referred to in Schedule A. {d) The validity, legal effect or priority of any matter shown or referred to in this Guarantee.

GUARANTEE CONDITIONS AND STIPULATIONS

1. Definition of Terms. The following terms when used in the Guarantee mean:

(a) the "Assured": the party or parties named as the Assured in this Guarantee, or on a supplemental writing executed by the Company. (b) "land": the land described or referred to in Schedule (A) {C) or in Part 2, and improvements affixed thereto which by law constitute real property. The term "land" does

not include any property beyond the lines of the area described or referred to in Schedule (A) {C) or in Part 2, nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways.

{c) "mortgage": mortgage, deed of trust, trust deed, or other security instrument. (d) "public records" : records established under state statutes at Date of Guarantee for the purpose of imparting constructive notice of matters relating to real property to

purchasers for value and without knowledge. (e) "date": the effective date.

2. Notice of Claim to be Given by Assured Claimant. An Assured shall notify the Company promptly in writing in case knowledge shall come to an Assured hereunder of any claim of title or interest which is adverse to the title to the estate or interest, as stated herein, and which might cause loss or damage for which the Company may be liable by virtue of this Guarantee. If prompt notice shall not be given to the Company, then all liability of the Company shall terminate with regard to the manner or matters for which prompt notice is required; provided, however, that failure to notify the Company shall in no case prejudice the rights of any Assured under this Guarantee unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice.

3. No Duty to Defend or Prosecute. The Company shall have no duty to defend or prosecute any action or proceeding to which the Assured is a party, notwithstanding the nature of any allegation in such action or proceeding.

4. Company's Option to Defend or Prosecute Actions; Duty of Assured Claimant to Cooperate. Even though the Company has no duty to defend or prosecute as set forth in Paragraph 3 above:

(a) The Company shall have the right, at its sole option and cost, to institute and prosecute any action or proceeding, interpose a defense, as limited in {b), or to do any other act which in il, opinion may be necessary or desirable to establish the title to the estlte or interest as stated herein, or to establish the lien rights of the Assured, or to prevent or reduce loss or damage to the Assured. The Company may take any appropriate action under the terms of this Guarantee, whether or not it shall be liable hereunder, and shall not thereby concede liability or waive any provision of this Guarantee. If the Company shall exercise its rights under this paragraph, it shall do so diligently.

(b) If the Company elects to exercise its options as stated in Paragraph 4(a) the Company shall have the right to select counsel of its choice (subject to the right of such Assured to object for reasonable cause) to represent the Assured and shall not be liable for and will not pay the fees of any other counsel, nor will the Company pay any fees, costs or expenses incurred by an Assured in the defense of those causes of action which allege matters not covered by this Guarantee.

{c) Whenever the Company shall have brought an action or interposed a defense as permitted by the provisions of this Guarantee, the Company may pursue any litigation to final determination by a court of competent jurisdiction and expressly reserves the right, in its sole discretion, to appeal from an adverse judgment or order.

(d) In all cases where this Guarantee permits the Company to prosecute or provide for the defense of any action or proceeding, an Assured shall secure to the Company the right to so prosecute or provide for the defense of any action or proceeding, and all appeals therein, and permit the Company to use, at its option, the name of such Assured for this purpose. Whenever requested by the Company, an Assured, at the Company's expense, shall give the Company all reasonable aid in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending the action or lawful act which in the opinion of the Company may be necessary or desirable to establish the title to the estate or interest as stated herein, or to establish the lien rights of the Assured. If the Company is prejudiced by the failure of the Assured to furnish the required cooperation, the Company's obligations to the Assured under the Guarantee shall terminate.

5. Proof of Loss Damage. In addition to and after the notices required under Section 2 of these Conditions and Stipulations have been provided to the Company, a proof of loss or damage signed and sworn to by the Assured shall be furnished to the Company within ninety (90) days after the Assured shall ascertain the facts giving rise to the loss or damage. The proof of loss or damage shall describe the matters covered by this Guarantee which constitute the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage. If the Company is prejudiced by the failure of the Assured to provide the required proof of loss or damage, the Company's obligation to such Assured under the Guarantee shall terminate. In addition, the Assured may reasonably be required to submit to examination under oath by any authorized representative of the Company and shall produce for examination, inspection and copying, at such reasonable times and places as may be designated by any authorized representitive of the Company, all records, books, ledgers, checks, correspondence and memoranda, whether bearing a date before or after Date of Guarantee, which reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the Assured shall grant its permission, in writing, for any authorized representative of the Company to examine, inspect and copy all records, books, ledgers, checks, correspondence and memoranda in the custody or control of a third party, which reasonably pertain to the loss or damage. All infornnation designated as confidential by the Assured provided to the Company, pursuant to this Section shall not be disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the Assured to submit for examination under oath, produce other reasonably requested infornnation or grant pernnission to secure reasonably necessary information from third parties as required in the above paragraph, unless prohibited by law or governmental regulation, shall terminate any liability of the Company under this Guarantee to the Assured for that claim.

152 EXHIBIT "C"

Pa2e 8 of J J


Form No. 110-1282 (Rev. 3/31/04)

1100041Pl29500

6. Options to Pay or Otherwise Settle Claims: Termination of Liability. In CilSe of a claim under this Guarantee, the Company shall have the following additional options:

(a) To Pay or Tender Payment of the Amount of Liability or to Purchase the Indebtedness.


The Company shall have the option to pay or settle or compromise for or in the name of the Assured any claim which could result in loss to the Assured within the coverage of this Guarantee, or to pay the full amount of this Guarantee or, if this Guarantee is issued for the benefit of a holder of a mortgage or a lienholder, the Company shall have the option to purchase the indebtedness secured by said mortgage or said lien for tl1e amount owing thereon, together with any costs, reasonable attorneys' fees and expenses incurred by the Assured claimant which were authorized by the Company up to the time of purchase. Such purchase, payment or tender of payment of the full amount of the Guarantee shall terminate all liability of the Company hereunder. In the event after notice of claim has been given to the Company by the Assured the Company offers to purchase said indebtedness, the owner of such indebtedness shall transfer and assign said indebtedness, together with any collateral security, to the Company upon payment of the purchase price. Upon the exercise by the Company of the option provided for in Paragraph (a) the Company's obligation to the Assured under this Guarantee for the claimed loss or damage, other than to make the payment required in that paragraph, shall terminate, including any obligation to continue the defense or prosecution of any litigation for which the Company has exercised its options under Paragraph 4, and the Guarantee shall be surrendered to the Company for cancellation.

(b) To Pay or Otherwise Settle With Parties Other Than the Assured or With the Assured Claimant. To pay or otherwise settle with other parties for or in the name of an Assured claimant any claim Assured against under this Guarantee, together with any costs, attorneys' fees and expenses incurred by the Assured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay. Upon the exercise by the Company of the option provided for in Paragraph (b) the Company's obligation to the Assured under this Guarantee for the claimed loss or damage, other than to make the payment required in that paragraph, shall terminate, including any obligation to continue the defense or prosecution of any litigation for which the Company has exercised its options under Paragraph 4.

7. Determination and Extent of Liability. This Guarantee is a contract of Indemnity against actual monetary loss or damage sustained or incurred by the Assured claimant who has suffered loss or damage by reason of reliance upon the assurances set forth in this Guarantee and only to the extent herein described, and subject to the Exclusions From Coverage of This Guarantee. The Liability of the Company under this Guarantee to the Assured shall not exceed the least of:

(a) the amount of liability stated in Schedule A or in Part 2; {b) the amount of the unpaid principal indebtedness secured by the mortgage of an Assured mortgagee, as limited or provided under Section 6 of these Conditions and

Stipulations or as reduced under Section 9 of these Conditions and Stipulations, at the time the loss or damage Assured against by this Guarantee occurs, together with interest thereon; or

(c) the difference between the value of the estate or interest covered hereby as stated herein and the value of the estate or interest subject to any defect, lien or encumbrance Assured against by this Guarantee.

s. Limitation of Liability. (a) If the Company establishes the title, or removes the alleged defect, lien or encumbrance, or cures any other matter Assured against by this Guarantee in a reasonably

diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby.

{b) In the event of any litigation by the Company or with the Company's consent, the Company shall have no liability for loss or damage until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title, as stated herein.

(c) The Company shall not be liable for loss or damage to any Assured for liability voluntarily assumed by the Assured in settling any claim or suit without the prior written consent of the Company.

9. Reduction of Liability or Termination of Liability. All payments under this Guarantee, except payments made for costs, attorneys' fees and expenses pursuant to Paragraph 4 shall reduce the amount of liability pro tanto.

10. Payment of Loss. (a) No payment shall be made without producing this Guarantee for endorsement of the payment unless the Guarantee has been lost or destroyed, in which case proof of

loss or destruction shall be furnished to the satisfaction of the Company. {b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage shall be payable within

thirty (30) days thereafter.

11. Subrogation Upon Payment or Settlement. Whenever the Company shall have settled and paid a claim under this Guarantee, all right of subrogation shall vest in the Company unaffected by any act of the Assured claimant. The Company shall be subrogated to and be entitled to all rights and remedies which the Assured would have had against any person or property in respect to the claim had this Guarantee not been issued. If requested by the Company, the Assured shall transfer to the Company all rights and remedies against any person or property necessary in order to perfect this right of subrogation. The Assured shall permit the Company to sue, compromise or settle in the name of the Assured and to use the name of the Assured in any transaction or litigation involving these rights or remedies. If a payment on account of a claim does not fully cover the loss of the Assured the Company shall be subrogated to all rights and remedies of the Assured after the Assured shall have recovered its principal, interest:, and costs of collection,

12. Arbitration. Unless prohibited by applicable law, either the Company or the Assured may demand arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the Assured arising out of or relating to this Guarantee, any service of the Company in connection with its issuance or the breach of a Guarantee provision or other obligation. All arbitrable matters when the Amount of Liability is $1,000,000 or less shall be arbitrated at the option of either the Company or the Assured. All arbitrable matters when the amount of liability is in excess of $1,000,000 shall be arbitrated only when agreed to by both the Company and the Assured. The Rules in effect at Date of Guarantee shall be binding upon the parties. The award may include attorneys' fees only if the laws of the state in which the land is located permits a court to award attorneys' fees to a prevailing party. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. The law of the situs of the land shall apply to an arbitration under the Title Insurance Arbitration Rules. A copy of the Rules may be obtained from the Company upon request.

13. Liability Limited to This Guarantee; Guarantee Entire Contract. (a) This Guarantee together with all endorsements, if any, attached hereto by the Company is the entire Guarantee and contract between the Assured and the Company. In interpreting any provision of this Guarantee, this Guarantee shall be construed as a whole. (b) Any claim of loss or damage, whether or not based on negligence, or any action asserting such claim, shall be restricted to this Guarantee. (c) No amendment of or endorsement to this Guarantee can be made except by a writing endorsed hereon or attached hereto signed by either the President, a Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company.

14. Notices, Where Sent. All notices required to be given the Company and any statement in writing required to be furnished the Company shall include the number of this Guarantee and shall be addressed to the Company at 1 First American Way, Santa Ana, California, 92707.

EXHIBIT "C" Pa!!e 9 of 11

Litigation Guarantee Form No. 110-1282 (Rev. 3131104)

1100041P129500

First American Title Company 900 Pier View Drive Ste. 110, Idaho Falls, ID 83402

Phone (208)522-9195 - Fax (208)529-8965

PRIVACY POLICY We Are Committed to Safeguarding Customer Information


In order to better serve your needs now and in the future, we may ask you to provide us with certain information. We understand that you may be concerned about what we will do with such information - particularly any personal or financial information. We agree that you have a right to know how we will utilize the personal information you provide to us. Therefore, together with our parent company, The First American Corporation, we have adopted this Privacy Policy to govern the use and handling of your personal information.

Applicability

This Privacy Policy governs our use of the information which you provide to us. It does not govern the manner in which we may use information we have obtained from any other source, such as information obtained from a public record or from another person or entity. First American has also adopted broader guidelines that govern our use of personal information regardless of its source. First American calls these guidelines its Fair Information Values, a copy of which can be found on our website at www.firstam.com.

Types of Information

Depending upon which of our services you are utilizing, the types of nonpublic personal information that we may collect include:

• Information we receive from you on applications, forms and in other communications to us, whether in writing, in person, by telephone or any other means;

• Information about your transactions with us, our affiliated companies, or others; and

• Information we receive from a consumer reporting agency.

Use of Information

We request information from you for our own legitimate business purposes and not for the benefit of any nonaffiliated party. Therefore, we will not release your information to nonaffiliated parties except: (1) as necessary for us to provide the product or service you have requested of us; or (2) as permitted by law. We may, however, store such information indefinitely, Including the period after which any customer relationship has ceased. Such information may be used for any internal purpose, such as quality control efforts or customer analysis. We may also provide all of the types of nonpublic personal information listed above to one or more of our affiliated companies. Such affiliated companies include financial service providers, such as title insurers, property and casualty insurers, and trust and investment advisory companies, or companies involved in real estate services, such as appraisal companies, home warranty companies, and escrow companies. Furthermore, we may also provide all the information we collect, as described above, to companies that perform marketing services on our behalf, on behalf of our affiliated companies, or to other financial institutions with whom we or our affiliated companies have joint marketing agreements.

Former Customers

Even if you are no longer our customer, our Privacy Policy will continue to apply to you.

Confidentiality and Security

We will use our best efforts to ensure that no unauthorized parties have access to any of your information. We restrict access to nonpublic personal information about you to those individuals and entities who need to know that information to provide products or services to you. We will use our best efforts to train and oversee our employees and agents to ensure that your information will be handled responsibly and in accordance with this Privacy Policy and First American's Fair Information Values. We currently maintain physical, electronic, and procedural safeguards that comply with federal regulations to guard your nonpublic personal information.

© 2001 The First American Corporation • All Rights Reserved

EXHIBIT "C" Pae.e 10 of 11

ENDORSEMENT Attached to Litigation No. 294068-IF

Issued By

First American Title Insurance Company

The Company hereby assures the Assured that, subsequent to the date of the Guarantee issued under the above number, no matters are shown by the public records which would affect the assurances in said Guarantee other than the following:

J '' Deed of Trust dated August 15, 2008, to secure an original indebtedness of $250,000.00, and any other amounts and/or obligations secured thereby

Recorded: August 25, 2008, as Instrument No. 1309846 Grantor: Teton View Golf Estates, LLC, a Utah limited liability company Trustee: First American Title Company Beneficiary: Sandra A. MacArthur Trustee of the Sandra A. MacArthur Family Trust

Subordination of Mechanic's and Materialman's Lien Rights, recorded August 27, 2008 as Instrument No. 1310120, records of Bonneville County, Idaho.

Appointment of Trustee, appointing Just Law, Inc., recorded February 11, 2009 as Instrument No. 1323460, records of Bonneville County, Idaho.

l'Jotice of Default, recorded February 11, 2009 as Instrument No. 1323461, records of Bonneville County, Idaho.

Affidavit of Mailing, recorded March 18, 2009 as Intrument No. 1326996, records of Bonneville County, Idaho.

Affidavit of Posting and Service, recorded March 18, 2009 as Instrument No. 1326997, records of Bonneville County, Idaho.

Proof of Publication, recorded March 18, 2009 as Instrument No. 1326998, records of Bonneville County, Idaho.

The total liability of the Company under said Guarantee and under this Endorsement thereto shall not exceed, in the aggregate, the amount stated in said Guarantee.

This Endorsement is made a part of said Guarantee and is subject to the exclusions from coverage, the limits of liability and the other provisions of the Conditions and Stipulations therein, except as modified by the provisions hereof.

Guarantee Endorsement

Dated: April 17, 2009 First American Title Company -.,, #/ B . /" " . -·· 7.,. y. .,,.,£,-;,.,,h-£,1'( / .l . ::I~~

/ .

AUTHORIZED SIGNATORY

EXHIBIT "C" Page 11 of 11

HDSWW - IDAHO FALLS ID (208) 523-3335

DEPATCO INC ACCOUNTS PAYABL8 2205 B 200 N

13ranch Account Sales Starement Date

314 151666 Idaho Falls House 10/29/2008

Page

l

STATEMENT REPRJNT

Remit 10:

HD SUPPLY WATBRWORXS, LTD. FILE #56214 LOS ANGELES CA 90074-6214

Balance Due

209,189.11

SAINT A.NTKOITT IO 83445-5602

Previous Balance PaY1Dents Purchases/Cr/Adj Current Balance

444,399.)2 .oo

235,210.21-209,189.ll

Page

s T A T E M E N T

00000

l.

Date Type

6/27/08 INV 7/03/08 INV 7/03/08 INV 7/0)/08 INV 7/11/08 INV 7/ll./08 INV 7/l.4/08 INV 7/15/08 _NV 7/15/08 INV 7/16/08 INV 7/17/08 INV 7/17/08 INV 7/21/08 INV 7/22/08 INV 7 /22/08 INV 7 /23 /08 INV 7/23/08 INV 7/23/08 lNV 7/23/08 INV 7/2)/08 INV 7/ 2S/08 INV 8/05/08 INV 8/29/08 S/C 9/26/08 S/C

10/ 28/08 C/M 1 0/28/08 C/M CUSTOME!R JOB

Types: INV-luvoicc CM-{:redil Memo PA Y-Paymcnl AOJ-Adjuscmcnl SIC-Service Chg

Invoice Purchase Order

JOB == ==== = > 7482560 8'.S34-2001 7483619 81534-200? 749))81 81534-200? 749716 5 81534-200 ? 7482991 81534-200? 748)604 81534-2001 7557230 815)4 · 7554140 815 34 -2001 7562486 81534-7576099 81534-2001 7578958 81534 -7587281 81534 -200? 7593673 81534-7589190 81534-2001 7601273 81534 -7606794 815)4 -7607889 81534 -7611778 JO~AH 7616068 81S34 · 7621602 8153'\-7562317 81S34 - 2001 7527814 81534 -SC49288 SCSS048 8161'109 8153 4-816 1 117 81534-'t'O't'.l.LS =====-==>

s GN UP FOR IN WATE

Thank You For Tlte Opportunity To Serve YolL We appreciate your prompt payment.

1-30 Days 31-60 Days 61-90 Days Over 90 Days

~815)4 TE!TON VIBW E!ST 23,009.57 11,862.14

379 . 90 2,8 65 . 90

83 , 330 . 96 53,732.11 1,746.67

10 , 61 4. 33 31 . S9 52.15

521 . 52 3 1,588.0 0

4 4 . 7 3 10.81

524. 53 168 .2 9 177 . 99

1,524 . 9 4 85. 14

203 , 229.30 7,237.93

420.29 345.1 4

6,491 . 08 109,981 . 80 -120,824 . 10 -230,805.90- 6,491.08 765.43 432,738.50

CUSTOMER JOB BALANCE::==> 209,189.11

I

JOICES VI A EMJ IL BY GOI NG T) ~WORKS . HDSUPPI Y . COM

COSTOME:R TOTALS 230,805.90 - 6,491. 08 765.43 432,738 . 50

"Local Service, Nationwide" waterworks.hdsuppl.y.com

156

209,189.11 BALANCE DUE~

EXHIBIT "D" Pa2.e 1 of 1

lU/'{flZUU~ MUN lb:nu ~'AA lZb~~~·w ZJZ tl1J ~Ut't'LY WATbJ:<WUKM LIU -F UUKLMU, ~CUI!' L ~ UUZ/ UlU

CREDIT APPLICATION National Waterw'-ir ks DATE_?,_,,___/~7,--.fe_tP_S: ___ · __ _

~/

1. BRANCH NO. 6 \ L\ 2. ACCT. MANAGER NO. ~

4_ LEGAL NAME OF sus1NESS: D~ P!l.-Fco . fv<-c. 3. PROFILE # o':)-5~,D

A. Mailing Address P. 0, e;C' ?<- 'Z-£/ b E. County Fr~~~ B. Physical Address '23 l 7 If '--(cc, N' · C. City Sf. AV\.~~ F, PHONE NO. ( 20£? ) 0 Zt/-36 ~ 0 D. State&Zip fD "6°3,t./l/5 G. FAX NO. ( Z'0 0 J 62- "z'~ '1/o 1/ 3

5. Tax Exsmpt YES _){__NO TAX NO.-----------------------

6. Olficers Of Partners o~rnpany •

A. President/Owner -{, T s·kddew-d B. Social Security# _________________ _

(Tax will be charged until certificate furnished)

C, Vice-President G,/o!,'~ Sfc,JJ~ D, Secretaryffreasurer ]:::t:;. • .,.d'-v/ S-6>-efclh,..J

7. Individual _____ Corporale __ ·,....x~--/

Partnership _____ Date Started _ _Lf~?'--"9_...,2.=---------------8. License/Registration# _______________________ Slate --'-------Anticipated Order $ ______ _

g Jnsurance Agent Who Handles Bonding For Company; 7/( € lfART WELL-- Cc>Rt'OKl'f::',~,VPhone; ( z.._cie, ) 5'2.2- - S-6S-b 10. List 3 Material Suppliers and at Least One Bank As References

A. HK Co.,_ h"'-C-~ JJ,.,.~ fn (Is ~.D

Phone ( ~e-, SZ-3 ~CGc:o Fax <--l -------

8. '6tv1.L. t.<)e.':,)f

f'.)Q_y__~ ~D Phone (2$) SSb- 'lvtz. Fax{ __ ) _____ _

11, Special Instructions: Po..r-c.L-u._s e.. 0r--d ~\j &v.w b c,,,,_ s

C, cUlo f{t2v,..S,e. of 4se. _;:-J.._~ ric_f/-=-, ID ,1i.5r.:~vt Phone(~]$ z3-03(;3 Fax(--)------

Bank ~ h... C, R: c.,,Hf/11 ere e-Ac.c.:f A/1.(et".(!..~eu.o./le s 12., !;},:-.__s __ ~-Phone ( 2°~) 3'.'.ib -8080 R~,,..._;.,..,__J_

TERMS 100% due net 30 days subject 1o con1inuing approval of Credit. In the event amount becomes past due customef agfees to pay 10 seller inten:i~t and handling charges at the rate of 11/2% (or !he highes1 rate allowable by law) ol 1he unpaid balanco each month until paid, plus all costs of collection including reasonable attorney fees.

National Waterworks, Inc, does not discriminate, in its' approval and/or extension of credit. on the basis of sex, marital slatus, race. color. national origin, rdigion or age. If credit Is denied, you have a right to a sfatement of the specific reason.

Signature below verifies all information to be correct and indicates agre0rnent in accordance with Terms & Conditions set forth above and on ::•OvoAI~. ~ Witness· 7"~ Officer or Panner

GUARANTY IN CONSIDERATION o( the extension of credit to the above name applicant. and to induce 1he extension of credit, the undersignP.d does hereby personally guarantee to National W1;1terworks, Inc. (thereafter called Company) the prompt payment, when due. of every claim. credit charge. account. or money due which may hereafter rise In favo( of the Company against the applicant named. This is a continuing guarc1nty 1:1nd sh1;1II remain in force until revoked by me by nolic" in writing to the Company, but such revocation shall be effective only as to claims of the renewal of any claim, credit charge account, or money due guaranteed by this lnstrurnent or extensions of time payment thereof, and shall not be affected by any surrender or release by the Company of l;lny other security held by it for anycl3im hereby guaranteed.

\

Wilness Guarantor

F'OR CREDIT DEPARTMENT USE:

D & B Rating: _______ APPROVED BY:________________________ DATE: _______ _

COMMENTS: ___________________________ STOCK CREDIT LIMIT $ _______ _

ACCOUNT NO. __________________ TAX CODE: ____________________ _

R:>nt;l::,11 Printing Form 11175.cdr 12/04

157 EXHIB!T "E" Page 1 of 1

UUKLAND, SCUTl' L lg] 003/010

NI •

ational Waterw~rks

GUARANTY AGREEMENT

This Guaranty, is executed by the undersigned (each a "'Guarantor") as of 3 .· / · · 7 / (:)5 . . . . . . MONT/I . D/2* YEAR

and app~ ts,Aebts now ow.ed, .and which may arise in the future (the ''Obligation)", due by __ ._._. _____ _ ____ U,t!.~al_c_o. -+,_fie, ________ , ______ ("Debtor") Lo National Waterworks, Tnc. or any of its affiliates, subsidiaries, related entities or assumed business names (collcctivdy "Creditor"). Each Guarantor, jointly an<l severally, hereby absolutely, unconditionally irrevocably and personally guarantees to Creditor: (1) Debtor's full performance under the Obligation; including all tenns of any credit application or other agreement between Debtor and Creditor, and (2) Debtor,s due and punctual payment of all amow1ts due with respect to the Obligation, including interest, and Guarantor agrees as follows:

This Guaranty shall not be tcnninatcd, affected orimpaired by Creditor's exercise of any rights under the Obligation, or Creditor's waiver of, or failure 10 enforce ally of the terms, covenants or conditions of the Obligation, or Creditor's granting any indulgence or extension of lime, all of which may be given or done without notice, demand or presentment of .':!.!"lY kii:d 1.!pC::! Gun:·a;iw,. G~m;·nntm -... ai.,,-es notice c:;f any and all defauhs under the Obligation. GuarantOT7

S liability hereunder shall be primary. Creditor. may p1:oceed against the Guarantor without having commenced any action, or having ohLaincd any judgement, against Debtor. Guarantor sh.:1.ll not enforce any claim against Debtor, including but not limited to any rights acquired by way of subrogation under the.Guaranty, until all obligations of Debtor to Creditor have been paid and per f'onncd in full.

Guarantor represents that he or she has the full power and authority to bfod hfo or her marital community. This Guaranty binds Guarantor and any community comprised of the Guarantoi: and his or her spouse and recourse may be had against Guanmlor's separate property as well as the property of Guarantor's marital community.

This Guaranty shall be binding upon and shall inure to the benefit of the piirti~s ::in~i tl1.1c:ir heirs, succl::)ssorn and assigns. In case of any default under this Guaranty, Guarantor shall pay Creditor's r.easonable attorney foe::s and other collection charges, whether or not legal aclion is filed, and if filed Creditor's reasonable attorney fees and collection charges jncurred at arbitration, trial, or in any bankruptcy proceeding, and on any appeal, review, or reconsideration of any award, order, mling, or judgment, plus Creditor's attorney fees incurred after any award, order, or judgment is entered. Guarantor con senb to the jurisdiction and venue to which Debtor is subject, and also to, at Creditor's sole option, jurisdiction in the state courts of Washington, Oregon, and Idaho, with venue in Pierce County or Clark County, Washington, Washington County, Oregon and Ada County, Idaho. This guaranty shall be construed in accordance with the laws of the jurisdiction in which Creditor elects to bring an action without resort to its principles on conflict of laws. Any action against Creditor related to this Guanmly must be commenced within six months (6) from accrual of the cause of action.

Guaraii.tor authori,,es Creditor to <,bi.ain credit and financfai in fonnatiou conceming G1.1an1;;t0;· u.t .i:1y time fron1 r.ny source, including credit reporting services, and Guarantor authorizes the rele.1se of information to Creditor.

Guarantor represents that it will realize benefits as a result of the extension of aedit to Debtor and that Guarantor has executed this Guaranty in consideration for, and as material inducement to, the Creditor granting credit to the Debtor under th~i Obligation. G rantor understands Creditor shall rely on this Guarnnty for every purchase made by Debtor.

Social Security#_,, ______________ _

X -------------------

Print name: ---------------

Social Security#--·-·-~····· ·····---------

EXHIBIT "F" Page 1 of 1