Chemehuevi v. Mullally

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CHEMEHUEVI INDIAN TRIBE, JACQUES VASQUEZ, also known as
MANUEL JACQUES, CHARLIE WOOD, RONALD ESCOBAR, JACKIE
GORDON, JAY HILL, MARY PETERSEN, VE’LA’AA WHITE, LESTER
MARSTON, and DOES 1 – 10, in their official capacities as officers or
employees of the Chemehuevi Indian Tribe, Petitioners/Appellees,

v.

GREGORY F. MULLALLY, Respondent/Appellant.

No. 1 CA-CV 18-0175
FILED 1-22-2019

Appeal from the Superior Court in Mohave County
No. S8015CV201301295
The Honorable Charles W. Gurtler, Judge

AFFIRMED

COUNSEL

Rapport and Marston, Ukiah, California
By Cooper M. DeMarse
Counsel for Petitioners/Appellees

Gregory F. Mullally, Lake Havasu City
Respondent/Appellant
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MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Lawrence F. Winthrop
joined.

T H O M P S O N, Judge:

¶1 Gregory F. Mullally (“Mullally”) appeals from the superior
court’s ruling domesticating a foreign judgment against him. For the
following reasons we affirm the ruling.

FACTUAL AND PROCEDURAL HISTORY

¶2 Mullally worked as a shift manager and slot manager at the
Havasu Landing Casino (“casino”) that is owned and operated by the
Chemehuevi Indian Tribe (the “tribe”) and is located on the Chemehuevi
Indian Reservation. Mullally was terminated from his employment on
November 1, 2007. On December 6, 2007, Mullally filed a complaint in the
United State District Court for the Central District of California, (the
“district court”) asserting a number of claims against various casino
employees, and the casino (“tribal defendants”). Because all defendants
were being sued in relation to their employment at the casino, the tribe paid
for their defense. In January 2008, the tribal defendants filed a motion to
dismiss the district court action. On March 3, 2008, the district court
dismissed the claims against the casino and its general manager, Jackie
Gordon, for lack of subject matter jurisdiction under the doctrine of
sovereign immunity. The district court denied the motion to dismiss as to
the other defendants but “in the interest of comity, stayed the action to
allow Mullally to exhaust tribal remedies.”

¶3 Mullally then filed administrative claims with the tribal
council under the tribe’s claims ordinance. After those claims were denied,
he filed an action in the Chemehuevi tribal court for (1) defamation against
Manual Jacques; (2) defamation against Charles Wood and Ronald Escobar
(tribal governmental officials); (3) fraud against Jay Hill, Jackie Gordon, and
Mary Petersen; (4) interference with contract against Jackie Gordon and
Mary Petersen; and (5) conversion against Lester Marston (the tribal
attorney) and Ve’la’aa White.

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¶4 On March 23, 2010, the tribal court issued an Opinion and
Order finding in favor of the tribal defendants. The tribal defendants then
filed a motion for attorneys’ fees pursuant to tribal law. The tribal court
was fully briefed from both parties and heard oral argument on the motion.
On December 20, 2010, the tribal court entered judgment finding that the
tribe was entitled to its attorneys’ fees.

¶5 In September 2010, Mullally filed an ex parte motion to reopen
the district court case which was granted. Mullally was also granted leave
to amend his complaint and in May 2011 filed his first amended complaint
asserting claims for: (1) intentional interference with contractual relations
against Mary Petersen and Jackie Gordon; (2) intentional misrepresentation
against Mary Petersen, Jackie Gordon, and Jay Hill; (3) negligent
misrepresentation against Mary Petersen, Jackie Gordon, and Jay Hill; and
(4) promissory fraud against Mary Petersen, Jackie Gordon, and Jay Hill.
The district court granted in part and denied in part a motion to dismiss
filed by the tribal defendants. Specifically, the order dismissed claims two
through four but denied the motion to dismiss as to claim one, intentional
interference with contractual relations.

¶6 On October 12, 2012, the tribal defendants filed a motion for
summary judgment as to the final claim. Mullally filed a response and
tribal defendants filed a reply. On December 20, 2012, the district court
granted the tribal defendants’ motion for summary judgment. Mullally
appealed the district court’s ruling to the United States Court of Appeals
for the Ninth Circuit.

¶7 On December 10, 2013, tribal defendants filed the
“petitioner’s request for order” and supporting documents in Mohave
County Superior Court (“superior court”). On December 24, 2013 Mullally
filed a motion to stay the proceeding pending resolution of the appeal to
the Ninth Circuit, and an objection to petitioner’s request for order. On
February 5, 2014, Mullally filed an amended objection to petitioner’s
request for order. The motion to stay the proceedings was granted.

¶8 On December 19, 2016, the Ninth Circuit upheld the district
court’s rulings. Mullally then filed a request for panel rehearing or hearing
en banc with the Ninth Circuit. That request was denied. Thereafter, tribal
defendants filed a motion to lift the stay of the domestication action in the
superior court. Mullally did not oppose lifting the stay but requested that
the court allow him to file additional motions and hold a scheduling
hearing to address his “amended objection to petitioner’s request for
order.” Mullally claimed that he had additional evidence that was obtained

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after the tribal court made its ruling on his claims and therefore
“petitioner’s request for an order recognizing and enforcing a tribal
judgment [was] incomplete” and needed to be amended. In its response to
Mullally’s request tribal defendants noted that all the additional evidence
and arguments Mullally wished to make had been addressed in the federal
courts. The superior court issued an order lifting the stay and directing
appellees to file a copy of the Ninth Circuit decision in the matter.

¶9 After the superior court reviewed the entire federal court
record it issued an order denying Mullally’s request for a scheduling
conference and recognizing the tribal court’s judgment of attorneys’ fees.
Mullally appealed. We have jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) section 12-2101(A)(1) (2018).

DISCUSSION

¶10 We review the trial court’s decision to recognize a foreign
judgment for an abuse of discretion. Beltran v. Harrah’s Ariz. Corp., 220 Ariz.
29, 33, ¶ 18 (App. 2008). Under the principle of comity, “courts of one
jurisdiction will give effect to the laws and judicial decisions of another
jurisdiction, not as a matter of obligation, but out of deference and mutual
respect.” Id. at 33, ¶ 11 (quoting Leon v. Numkena, 142 Ariz. 307, 311 (App.
1984)). A tribal judgment shall not be recognized and enforced if the
objecting party demonstrates that either the trial court did not have
personal or subject matter jurisdiction, or the defendant was not afforded
due process. Ariz. R.P. Tribal Ct. Civ. Judgment 5(c). A court is not required
to recognize a tribal court judgment under certain conditions including if
the judgment was obtained through extrinsic fraud, or if recognition of the
judgment would be contrary to fundamental public policy. Beltran, 220
Ariz. at 33, ¶ 11; see also Ariz. R.P. Tribal Ct. Civ. Judgment 5(d);
Restatement (Third) of Foreign Relations Law § 482 (1987).

¶11 Mullally first argues that the superior court erred in
recognizing the judgment because it awarded attorneys’ fees to the tribe
which was not a party to the litigation. Mullally argues that because the
tribe was not a party to the original litigation it cannot have standing to sue
and therefore Arizona courts don’t have subject matter jurisdiction over the
case. As a threshold matter, we note that the tribe is not attempting to sue
Mullally, rather they are requesting recognition of a tribal judgment in
Arizona under Rule 5. Even if the tribe was attempting to sue Mullally, the
tribal court found “[b]ecause the [d]efendants were all tribal officials acting
within their official capacities for the purposes of [Mullally’s] claims, the
[t]ribe tendered and paid for the cost of their legal defense . . . “ and the

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tribe was therefore entitled to attorneys’ fees. The place for Mullally to
argue that the tribe was not entitled to attorneys’ fees was the tribal court.
Once the tribal court determined the tribe was entitled to a fee award that
judgment is entitled to comity in Arizona’s courts. See Leon, 142 Ariz. at 311;
Ariz. R.P. Tribal Ct. Civ. Judgment 5. As such, the tribe is entitled to have
the tribal court judgment recognized and enforced in Arizona courts.

¶12 Mullally next argues that he was not afforded due process by
the tribal court because he did not have the ability to appeal the attorneys’
fees award, citing Wilson v. Marchington 127 F.3d 805 (9th Cir. 1997). Due
process requires that “there has been opportunity for a full and fair trial
before an impartial tribunal that conducts the trial upon regular
proceedings after proper service or voluntary appearance of the defendant,
and that there is no showing of prejudice in the tribal court or in the system
of governing laws.” Id. at 811.

¶13 Marchington lists several factors that a court should consider
when deciding if a U.S. citizen was afforded due process. Those factors are
“the judiciary was dominated by the political branches of government or
by an opposing litigant, [] a party was unable to obtain counsel, to secure
documents or attendance of witnesses, or [] have access to appeal or
review.” Id. (quoting Restatement (Third) of Foreign Relations Law § 482
cmt. b (Am Law Inst. 1986)).

¶14 The record does not support Mullally’s claim that the award
of attorneys’ fees was not reviewed by an appellate court. Although the
tribal court does not have an appeals court, the issue of the attorneys’ fees
award was presented and resolved in the federal courts and they found in
favor of the tribe. Additionally, the federal courts found that Mullally had
been afforded due process in the tribal court. We agree.

¶15 Mullally was given the opportunity to respond to the motion
for attorneys’ fees as well as present evidence before the tribal court but did
not avail himself of that opportunity. Although Mullally makes several
claims that the clerk of the tribal court frustrated his ability to present his
case, the record does not support such a finding. Indeed, even the district
court noted that “[Mullally’s] representations regarding the events at the
Tribal Court are not entirely accurate.”

¶16 Mullally next argues that the superior court violated a
fundamental public policy because it did not allow him to “be heard”
regarding the failure of due process in the tribal court. Again, the record
does not support this argument. Mullally filed an objection to petitioner’s

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request for an order recognizing and enforcing a tribal judgment and an
amended objection. Although the superior court ultimately decided not to
have a hearing on the matter, the superior court was fully briefed and able
to consider Mullally’s claims. As such, Mullally was afforded due process
and there was no violation of a public policy. We therefore affirm the
superior court’s ruling.

¶17 Next Mullally argues that the tribal judgment was obtained
by extrinsic fraud because he was prevented from appearing at the tribal
court during the hearing for attorneys’ fees. As discussed supra the record
does not support this argument.

¶18 Finally, Mullally argues the superior court made incorrect
assumptions which led it to make an improper ruling. Mullally asserts that
the superior court believed that he asked for leave to take brief discovery
because the tribal judiciary was made up of members of the tribe, but that
he really wanted to conduct discovery to prove the defense was paid for by
an insurance company. Again, the record does not support this argument.
The court order issued by the superior court did not address Mullally’s
reason for wanting leave for additional discovery. It analyzed whether the
tribal court had jurisdiction and whether Mullally was afforded due process
and found in the affirmative for both. As the superior court did not abuse
its discretion, we affirm its ruling.

CONCLUSION

¶19 For the foregoing reasons, we affirm the superior court’s
ruling recognizing the tribal courts order awarding attorneys’ fees.

AMY M. WOOD • Clerk of the Court
FILED: AA

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