whiting cv2007-011672

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Justin D. Heideman (Utah State Bar #8897)Brandon G. Wood (Utah State Bar #10307)

2 ASCIONE HEIDEMAN & MCKAY, LLC3 2696 North University Avenue., Suite 108

Provo, Utah 846034 Phone: (801) 812-1000

Fax: (801)374-1724

6 Associated through local counsel:

7 DAVIS MILES, PLLC8 P.O. BOX 15070

MESA, AZ 852119 Telephone: (480) 733-6800

Fax: (480) 733-374810

Attorneys for Defendant Ann Colson

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08 M~1 \ '2 Pt'\ ,,~30

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STATE OF ARIZONA

MARICOPA COUNTY SUPERIOR COURT

14 i15 !I GARY WHITING, an individual,16 I

I Plaintiff,17 !

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vs.18 ,

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19 ! ANN COLSON, an individual; CHICAGO1 TITLE AGENCY OF ARIZONA, INC., an

20 I Arizona Corporation,

2\ I Defendants.

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CASE NO. CV2007·011672

S~RTOAMENDEDCOMPLMNTD AMENDED COUNTERCLAIM

(Assigned to the HOD. Sam J. Myers)

24COMES NOW Defendant Ann Colson ("Defendant" or "Colson"), by and through

undersigned counsel, and submits the following Answer to Plaintiff's Amended Complaint.2S

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DEFENDANT COLSON'S AMENDED COUNTERCLAIM

COMES NOW Defendant and Counterclaim ant, ANN COLSON ("Colson"), and

counterclaims against Plaintiff and Counterclaim Defendant, Gary Whiting ("Whiting"), as follows:

1. Colson incorporates the allegations and denials of the foregoing Answer into this Amended

Counterclaim.

2. The causes of actions asserted herein arise out of the same transaction or occurrence alleged

in Plaintiffs Amended Complaint. As such, venue and jurisdiction are proper.

3. Shortly after Colson and her husband, Nick Colson (''Nick''), married in 1997, they met

Whiting while attending church.

4. Colson, Nick and Whiting became good friends, as did their families.

5. Colson, Nick and Whiting thereafter engaged in various business endeavors together.

6. In approximately 2000, Colson began working as an assistant or secretary to Whiting in

several businesses in which Whiting had ownership and which Whiting was managing.

7. During this time, Whiting held himself out as a trustworthy, dependable friend with

Colson's best interest in mind.

8. Given the parties many years of church and business relationship as well as their close

friendship, Whiting had made himself into a person of trust for Colson and her children.

9. Beginning in late 2005, while Colson was experiencing some marital problems as well as

problems between her children and Nick, Whiting told Colson that said problems were evidence

that Nick did not love Colson and encouraged Colson to move out.

10. Whiting also told Colson that he felt Colson was to become a spouse to Whiting, even

though Whiting was married, and encouraged Colson to leave Nick.

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11. In approximately May 2006, partly due to Whiting's urgings, Colson moved out of the home

where she and Nick were living and entered a "rent-to-own" contract on a home located at 5407

East Catalina Avenue, Mesa Arizona, 78251 (the "Catalina Home") and began making

rent/mortgage payments on the home.

12. Whiting continued to insist Colson enter into the spousal arrangement with him and

encouraged her to divorce Nick.

13. Whiting represented that if Colson agreed to said spousal arrangement, he would purchase

the Catalina Home for Colson, Colson could live there for as long as she wanted, Whiting would

provide Colson with monthly support and maintenance payments of at least $3,000.00, and Colson

would not work.

14. Whiting represented that if at any time after entering the foregoing arrangement Colson

decided to opt out of the arrangement, she could keep the Catalina Home and he would pay her a

$100,000.00 severance payment.

15. During this time, Whiting assisted in making rental/mortgage payments on behalf of

Whiting on the Catalina Home.

16. In September 2006, due to Whiting's insistence and in reliance on his representations,

Colson agreed to Whiting's proposal, except that she insisted she would continue to work as

Whiting's secretary rather than quit her job, to which Whiting assented.

17. At the time, Colson was making $3,000.00 per months working for Whiting's businesses.

18. Colson paid the legal expenses for Colson's divorce from Nick, which was finalized in

September 2006, and Whiting began making arrangements to purchase the Catalina Home for

Colson.

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19. In the process of preparing to purchase the Catalina Home, World Savings Bank informed

Whiting that neither he nor his business entities qualified for any additional mortgages, as he had

already obligated his business on several other mortgages in 2006 for homes he had purchased for

other women entering into the same or a similar type of arrangement as Colson.

20. For the same reasons, neither Whiting nor his business entities could qualify for a mortgage

on a home Whiting was simultaneously wanting to purchase for Ms. Lynette Williams

("Williams"), located at 1508 South Chestnut Circle, Mesa Arizona 85204 (the "Chestnut Home").

21. In order to purchase the Catalina and Chestnut Homes pursuant to his arrangements with

Colson and Williams respectively, Whiting devised a plan to circumvent the fact that neither he nor

his entities qualified for additional mortgages.

22. Whiting transferred $100,000.00 into Colson's personal account in order that Colson qualify

for mortgages for the purchase of the Catalina and Chestnut homes.

23. At Whiting's instruction, Colson applied for the mortgages and was approved.

24. At the closing of the Catalina Home, Whiting instructed Colson to pay approximately

$63,590.18 as a down payment on said Home from the foregoing $100,000.00, which she did.

25. World Savings Bank paid the remaining balance due to consummate the transaction and

issued a mortgage in Colson's name in the amount of$206,800.00 for the remaining balance.

26. Closing on the Catalina home was consummated on October 16,2006 (See Exhibit A

herein)

27. At the closing of the Chestnut Home, Whiting authorized the transfer of$125,000.00 from

one of his business entities as down payment and earnest money toward the purchase of said Home.

28. World Savings Bank overpaid the remaining balance by $16,387.20 to consummate the

transaction on the Chestnut Home, issued a mortgage in Colson's name in the amount of13

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$185,250.00 for the amount of the loan, and refunded Whiting's business the overage of

$16,387.20.

29. Thus, total funds contributed by business entities owned by Whiting toward the purchase of

the Chestnut Home were $108,612.80.

30. Closing on the Chestnut Home was consummated on October 13, 2006 (See Exhibit B

herein)

31. The deeds to both the Catalina and the Chestnut Homes were issued in Colson's name, as

were the mortgage obligations on both homes.

32. Whiting made payments for a couple of months, on the Catalina Home through February

2007, and on the Chestnut Home through march 2007.

33. In the fall of2007, Whiting had engaged a new woman in a spousal arrangement ("Mary").

34. Shortly after this arrangement, Whiting started treating all of the other partners differently

and stopped paying them support and wanted Ann Colson to quit her employment so he could stop

paying her.

35. As a result of Mary's actions and Whiting's changed behavior, Williams approached

Whiting's religious leader and informed him of the arrangements that Whiting had with these

several women.

36. Whiting's religious leader approached Colson and asked her to confirm the allegations of

Williams.

37. Colson confirmed the allegations.

38. When Whiting found out about Colson's confirmation to his religious leader, he promptly

fired her from being his personal assistant, which position she had held for the past 12 years.

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39. Because Whiting was making no payments on either Catalina or Chestnut Home after March

2007 and and because he has fired Colson, Colson was forced to borrow money to try to make

mortgage payments in her name.

40. Colson could not refinance because she had no money and no job.

41. She did not have the support of her husband, as she is divorced.

42. Colson asked Williams help pay since Williams was living in Chestnut Home and was for

her benefit per Williams' arrangement with Whiting.

43. Williams makes no payments

44. Colson makes repairs to Chestnut home and files forcible detainer action so she can get

renters in to make payments.

45. Chestnut Home goes into foreclosure because Whiting not making payments according to

his promises, Williams making no payments, and Colson has no ability to continue paying.

46. Colson's utilities turned off at the Catalina Home. She borrows more money to pay to keep

get her utilities back on.

47. Whiting at some point in all this files the present quiet title Action.

48. As Whiting's assistant, Colson had done the work for the arrangements Whiting had entered

into with other women, prior to Colson entering the arrangement and seen Whiting performing on

his promises to the other women.

49. Colson relied on Whiting's representations to her based on her observation and experience

of the other women.

50. Whiting generally had the women entering the arrangement with him sign a purported

contract.

51. Neither Colson nor the other women were given a copy ofthis contract.15

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52, Colson did not sign anything until after she had been fired by Whiting at considerable

pressure from Whiting.

53. Whiting has provided Colson via supplemental initial disclosures in this action a purported

"LLC Partnership Agreement" with Williams.

54. On information and belief, the terms of this purported agreement are the terms in the other

written agreements Whiting had the women sign.

55. Notwithstanding the terms, as shown below, Whiting had promised Colson the terms

aforementioned in this Amended Counterclaim.

56. On information and belief, Counterclaim Defendant Gary L. Whiting ("Whiting"), a married

man, has entered into numerous LLC Partnership Agreements with several single women. In these

agreements, Whiting provides housing, financial support, and a "commitment of time and emotional

support on a non-exclusive basis, as Whiting has other partnership interests to pursue and

maintain." (See "LOF NUMBER FIVE, LLC PARTNERSHIP AGREEMENT", purportedly

executed by Whiting and Williams, attached hereto as "Exhibit C", for an example of such an

agreement).

57. In exchange, the women maintain the property and form a "consortium" and "a fidelity

relationship" with Whiting. (See "LOF NUMBER FIVE, LLC PARTNERSHIP AGREEMENT",

attached hereto as "Exhibit A").

58. Moreover, Whiting represents to the women that the home is theirs and that they are free to

withdraw themselves from the LLC Partnership Agreement with Whiting and take everything

provided to them by Whiting, including specifically but not limited to equity in the home

theretofore paid.

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59. Several, and possibly all, of Whiting's partners divorced their husbands in order to enter into

these arrangements with Whiting.

60. Upon information and belief, Whiting had entered into at least three of these agreements,

and therefore had provided at least three houses to four single women, previous to any agreements

with Colson and Williams.

61. Whiting therefore devised a plan to obtain two more homes in which to house his two

newest "partners".

62. Whiting has made demands for the property to be transferred to him via quiet title, even

though mortgages are in Colson's name and she is responsible for the monthly payments and he

refuses to assume the mortgages himself.

63. In divorcing her husband, entering into the LLC Agreement, and having the properties

purchased in her own name, Colson was relying on Whiting's representations that he would pay the

mortgages and provide her with any and all funds necessary for her support.

64. Colson indebted herself $5,583 to make payments on the Chestnut home and pay its

property taxes before not being able to make any more payments thereon.

65. Colson expended the following on the Chestnut home to make it marketable to renters or a

new buyer, given Williams was not paying nor was Whiting, and Colson's credit was being

destroyed for nonpayment:

a. At least $\,300 in repairs,

b. $3,000 charges to Lowes

c. $600 labor to rip out tile and paint the home.

d. $1,000 in unpaid utilities and reconnection fees

66. Colson has lost her job of$3,000 per month as of January 2007.17

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67. She has been working for only a couple months and makes at most $1,000 per month now

and is going to school.

68. She has nearly $400 thousand dollars of debt to her name with interest accruing very rapidly

thereon.

FIRST CAUSE OF ACTION(Breach of Contract)

69. Counterclaim Plaintiff Colson incorporates and re-alleges all previous paragraphs as though

fully set forth herein.

70. Whiting and Colson entered into a contract with substantially the same as those found in

Exhibit A, in which Whiting promised to provide housing and financial support in exchange for

Colson's maintenance of the Catalina property and a fidelity consortium with Whiting.

71. Colson divorced her husband in order to enter into this arrangement with Whiting.

72. Colson performed her part of the contract by maintaining the Catalina Property and

consorting with Whiting.

73. Whiting has now ceased providing support and maintenance payments to Colson.

74. Colson has been damaged by not receiving the fruits of her contract.

75. Whiting and Colson also entered into an oral contract in which Whiting would provide

funds to Colson sufficient to obtain mortgages to purchase both the Chestnut and Catalina

properties; in exchange, Colson would transfer the properties to Whiting once the mortgages were

paid off.

76. Colson performed her part of the contract by obtaining the properties and the respective

mortgages.

77. Whiting partially performed by making several months worth of payments.

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_78. Whiting ceased making payments on the mortgages, which action was inconsistent with the

agreement between Whiting and Colson.

79. As a result, Colson has been required to pay the mortgage payments through her meager

means, even being required to take out loans in order to meet the payments.

80. Colson has attempted to mitigate the damages by trying to obtain funds by requesting

Williams-to pay rent for occupying the Chestnut property.

81. Wherefore, Counterclaim Plaintiff Colson asks this Court for damages as deemed

appropriate.

SECOND CAUSE OF ACTION(Breach of Covenant of Good Faith and Fair Dealing)



83. When Whiting and Colson agreed to obtain the Chestnut and Catalina properties pursuant to

Whiting's plan, Colson assumed very few risks associated with the transaction.

84. Whiting suddenly stopped all payments on the mortgages, causing Colson to assume far

greater risks than Colson had justifiably expected.

85. Colson and Whiting had also entered into a contract under which Whiting would provide

Colson with payments of money to be used for her support.

86. Whiting has ceased making support payments owed to Colson under the LLC Partnership

Agreement.

87. Whiting's actions are preventing Colson from receiving the benefits and entitlements of

both of the agreements entered into.

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88. Wherefore, Counterclaim ·Plaintiff Colson asks this Court for damages as deemed

appropriate.

THIRD CAUSE OF ACTION(Fraud in the Inducement)


6fully set forth herein.

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90. Whiting represented to Colson that he would make the mortgage payments on the Chestnut

and Catalina properties and that the properties would stay in her name until such time as the

mortgages had been completely paid off.


appropriate.

FOURTH CAUSE OF ACTION(Negligent Misrepresentation)



93. When Whiting and Colson agreed to obtain the Chestnut and Catalina properties pursuant to

Whiting's plan, Whiting represented to Colson that


purchased in her own name, Colson was reasonably relying on Whiting's representations that he

would pay the mortgages and provide her with any and all funds necessary for her support.


appropriate.

FIFTH CAUSE OF ACTION(Fraudulent Misrepresentation)

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purchased in her own name, Colson was relying on Whiting's representations that he would pay the

mortgages and provide her with any and all funds necessary for her support.


appropriate.

SIXTH CAUSE OF ACTION(promissory EstoppellDetrimental Reliance)



100. In the case the Court finds no contract was entered into, Whiting should be estopped

from not performing his promises to Colson.

101. When Whiting and Colson agreed to obtain the Chestnut and Catalina properties

pursuant to Whiting'S plan, Whiting represented to Colson that he would pay all the monthly

payments and that the properties would stay in her name until they mortgages were paid off.

102. Colson reasonably relied on Whiting's promise, and followed through Whiting's

plan until Whiting stopped making the monthly mortgage payments

103. In divorcing her husband, entering into the LLC Agreement, and having the

properties purchased in her own name, Colson was relying on Whiting's representations that he

would provide her with a home and funds necessary for her support.

104. Colson has sustained damage to her credit and finances, and has needed to take out

loans to meet the monthly mortgage obligations.

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LOF NUMBER FIVE, LLCPARTNERSHlP AGREEMENT

This Partnership Agreement (hereinafter Agreement), effective this lst day ofSeptember, 2006, is by and between Gary L. Whiting and/or any entities he owns orcontrols, (h(:reinafier "Whiting") and Lynette Williams, (hereinafter "Williams"), andcollectively known as the Parties. This Agreemcrn is intended to »rotecr the interests ofMs. Williams and Mr. Whiting in connection with the possession, ownership and right toquiet enjoyment of 1508 South Chestnut Circle, Mesa, AZ 85204 (hereinafter "Chestnut"or "the property") as well as other aspects of~ile parties' rdations:lip which is entered 'into for valuable consideration and with full and mutual C(1OS~'1ltafter an opportunity for aconsultation with independent counsel.

\WHEREAS this Agreement is based upon the following:

A. The parties wish to formalize their business and partnersn:p relationship toestablish their respective partnership rights, obligations and responsible bondingin this Partnership, in particular with respect to each other's interest in theChestnut property and their partnership relationship. The Parties wish to enter intothis Agreement to address Issues of ownership, investment, possession andmanagement of the Chestnut property and their partnership relationship inconnection therewith.

B. The Parties wish to have this Agreement governed by the laws of the State ofArizona and governed pursuant to ARS Title 29 as well a:: applicable state andfederal decisional law.

AGR.EeMENT

NOW, THEREFORE, in exchange for valuable consideratior the receipt of which ishereby acknowledged. and in exchange for the mutual covenants, promises andconsortium recognized herein, the Parties agree as follows:

1. Recital~. The recitals are hereby incorporated into the Agreement,

2. Own..~. \"11iting shall have ownership ofthe Chestnut Property for thepurposes of investment. Further, given Whiting's professional demands on histime he cannot manage, supervise, maintain 01' upkeep th'~Property on his ownaccord. Whiting's ownership of Chestnut, wherein he will make the Propertyavailable for Williams to reside in, is Whiting~s capital omtriburion to thePartnership.

1·._ ....•...•.I ,...'"'~ UOI tlO

3. Management and Suoer:visi..Qn. In exchange tor Whiting's consent to allowWilliams (and her family ifdesired) to reside at Chestnut and have full rights ofpossession and quiet enjoyment for a twenty year period through June J, 2026(and an option to renew for another twenty year period), v/illiams agrees tomanage, supervise, maintain and upkeep the Property for 'N'hiting. In thisconnection Williams is obligated to maintain thelandscaping, ensure that thesprinkler system is in working order at all times, that all b'rshes and hedges aretrimmed, that all landscaping is kept with a neat and clean appearance. Further,Williams agrees to pay for needed repeirs to the property up to $250 per month.Further: Williams agrees that any and all problems or repairs at the Property thatexceed $250 per month shall be promptly brought 10 Whiling's attention in theevent Williams is unable to address, remedy and pay for the problem herself. Thisshall serve as Williams capital contribution to the Partnership.

4. Partnership Investment. Additionally, as a further capital contribution to thePartnership, Williams agrees ~,Jkeep \Vhitlng apprised of any potential buyers forthe Chestnut Property so that Whiting can optil;,izl~any sale opportunities in themarketplace, as Whiting does not wish to "list" Chestnut .or saie on the MLS.

s. ~C;:SI and Tax. Since Whiting will retain (ownership to Chestnutduring this Partnership and his capital contribution is to make the residenceavailable for Williams (and her family) to reside in. Whiting shall at all times pay,and be responsible for, any mortgages and other expenses associated with theChestnut Property, and Whjtin~ shall tile any and an stat~: or federal returns onthe Property.

6. William'!! Pro.fit or Buyout 00tiQil Rights. Accordingly, upon the sale of theProperty or upon Williams' request at any time in W31l1in ~ to dissolve thePartnership, this Partnership shall dissolve and at Williams' ejection, Whitingshall pay Williams $,50,000 in a lump !'UIII payment as a "buy out" price from thePartnership, or 50% of the profits (.f any such sale, in liei. of'a distrio\Jtion ofprofits and losses.

7. Responsible Bonding COE.ntlllt.!l. TIlis Partnership Agreement creaes aresponsible bond between Gary L. Whiting and Lynette Williams. which is a legaland lawful union between partners in 3 fidelity relationship with full and informedconsent. To consummate Whiting's responsible bond with Ms. Williams in thisPartnership, Whiting shall, as an' additional capital contrioution, mske a monthlymaintenance payment of 13,600 to 'NiiHarps to cover an)' upkeep or discretionaryexpenses.

8. Con1unction Not Fiduciary Relatjo~. The partners here in shall ne,t beconstrued as fiduciaries but shall be construed as a fideliy asscciatlon, tofacilitate the occupancy of the Property under a contract :If sale and to establish apersonal fidelity conjunction which will preserve and protect the integrity of this

artncrshlp. This partnership ussociatiou Includes ''\;"i''''8'' commitm~

.\--t--,...:;... Initials

and emotional support to the partnership on a non-exclusive basis, as Whiting hasother partnership interests to pursue 31'Id maintain.

9. Wrap /\roumW£atton-Whiting,f1Hg:IW~"1!!mt. This PartnershipAgreement is to facilitate a wrap around of an existillg Real Estate PurchaseContract between David J. and Ann K. Patton and Gary 'WhitinwlOF Number 5,LLC. for the purpose of providing occupancy and maintenance of the investmentproperty, 150R South Chestnut Circle Mesa, AZ 85204,

10. Separate Property Not CommuJ'lJ1.vPropertv. To the extent provided by law. GaryL Whiting. a married man, take'S his int-::rest herein as a separate prop en)' interestand not a community property interest. Lynette Williams, an unmarried woman,takes her interest as a separate prclpm'ty interest herein.

1]. Re1eEise~~nant Nor to Sue, A5 further consideration and an inducement toexecute this Agreement, and because Whiting is expressly assuming the financialburden of this Partnership Agreement, the Parties agree tc· release any claimsagainst the other in this Partnership and agree not to commenceany legalproceedings against the other. In tltis connection, Ms. Williams acknowledgesthat her rights herein are fully' and completely protected by the "profit or buyout"option referenced above in paragraph 5.

12. Rep:-E;~;ntatl(lns and W.MIa;:lti~.Ms. w:man"ls represents and warrants that whileshe is possession of the Property she will not Cause an}' liens, encumbrances orother instruments atl"ectil1g title to be r ccorded against the; ~ubj.;ct Property.

13. Severance and Blue Pen,,!,) R~, lf any tCI1TI, clause or provision of thisAgreement shall be held invalid, void, unenforceable or contrary to public policyfor any reason. then the remainder ·~fthe Agreement shall rernain in effect inaccordance with the Blue Pencil Rule.

14. Confidentiality. All information concerning this Agreemeru shall be held strictlyconfidential except as necessary to) enforce the terms of tais Agreement or asallowed or required by law,

1S. ~dYi~;cof Counsel. Whiting and Wi llinms each acknowl edge they have obtainedthe advice of their respective attorneys prior to executing; this Agreement (orwaived the opportunity to do so), and each patty executes this Agreement withfull knowledge of its significance and with the express lnrention of effecting itslegal consequences.

16. ],Dtegralion. This Agreement (which also expressly wrap; the prior.T'l.itton-WhitingPurd.c.!,c Contract) contains the!: entire ;:.l\retnlcnt bc'i:wet:)1 the Parrtes. It has notbeer. executed in reliance Oil th~ t.a~is <)i: any other oral (lr written representationsor t rns, and no extrinsic oral (It' written representations or terms shall modify,

or contradict the terms thereof. ~ /

~

1"''''''- UUt Yv

17. Choice a.nd Venue. This Agreement 1)"311 be construed under and according to thelaws of the state of Arizona, and any action or legat proceeding arising out of thisAgreement (or any tort, statutory or other claims}, sh a1lbe interpreted andenforced accordance with Arizona law and shall be hrougllt and maintained inMaricopa County, Arizona. Any federal court action (and any appeals to thefederal courts) shall be initiated it, the federal district court of Arizona,

18. Attome)!§ Fees. With respect tel any contract, tort, statutory or other claimsbrought to interpret. enforce, or defend this Agreement (or any claims or defensesthat are incidental to this Agreement), the prevailing part)' shall be entitledattorney's fees. eJ!:peJ1SCSand taxable CO.~Bincurred therein.

19. ~diilll. If Lynette Williams breaches th~ fidelity associaticn stipulations ofthis responsible bonding ~1g:·~t:1neat.Gary L. 'Whiting may elect either to continuethis responsible bonding agreement or he may send t. notice in writing to LynetteWtllisms that this agreement is breached and consequenrl f dissolved therebyinvoking the buyout stipulations under paragraph 6.

EXECUTION:

1HAVE READ THE ABOVE AGREEMENT, I HAVE TA!<.£N TIME TOCONSIDER ITS IMPLICATIONS, J FULLY UNDERSTAl'0 ITS CONTENTSAND J AOREE TO ITS TER.MSAND I VOLUNTARILY SUBMIT TO ITSEXECUnON AS INOICATED EY lvfY SIGNATURE BELOW~

___ ~ /l.~. ,," 20D(~ date

*f-* Gra-nted ***See eSignature Page

1 GREGORY G. McGILL, P.C.ATTORNEY AT LAW

2 4421 N. 75th Street, Suite 101Scottsdale, Arizona 85251

3 (480) 970-6720FAX (480) 970-6727

4 [email protected] G. McGill, No. 011020

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Attomey for Plaintiffs

SUPERIOR COURT OF ARIZONA

COUNTY OF MARICOPA

GARY WHITING, an individual,

Plaintiff,

vs.

ANN COLSON, an individual; CHICAGOTITLE AGENCY OF ARIZONA, INC., anArizona corporation; CHICAGO TITLEINSURANCE COMPANY,

Defendants.

LYNETTE WILLIAMS, an individual,

Plaintiff,vs.

ANN COLSON, an individual,

Defendant.

The COlU't,having reviewed the Stipulated Agreement ("Stipulated Agreement") dated

No. CV2007-011672CV2007-022735(Consolidated)

JUDGMENT

Michael K. Jeanes, Clerk of Court*** Electronically Filed ***

Lori CummingsFiling ID 217637

07/25/20082: 14:08 PM

(Assigned to the Honorable Sam Myers)

(Mandatory E-Filing)

July 23, 2008, entered into by Gary L. Whiting ("Whiting"), Plaintiff in Whiting v. Colson,

CV2007-011672, and Ann Colson ("Colson"), Defendant and Counterclaimant in the same

matter, and by Lynette Williams ("Williams"), Plaintiff in Williams v. Colson, CV2007-022735,

and Ann Colson, Defendant in the same matter, and good cause appearing;

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IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

1. That this consolidated case shall be placed on the inactive calendar for 120 days at

which time it will be dismissed with prejudice as to all parties unless a motion to set for trial is

filed herein.

2. That pursuant to the Stipulated Agreement there are four contracts which are valid

and in full force and effect, as follows: (1) the Cummings-Whiting contract (Catalina), (2) the

Patton-Whiting contract (Chestnut), (3) the Willi arns-Whiting (LOF No.5 LLC) contract, dated

9/1/2006 (Exhibit A attached to the Stipulated Agreement), and (4) an oral agreement between

Colson and Whiting, the terms of which are substantially similar to those contained in Exhibit A.

Further, for purposes of resolution herein, any purported contracts between Cummings and

Colson and/or between the Pattons and Colson are hereby ordered and decreed to be of no effect.

3. That Colson shall convey ownership to the Catalina property to Whiting, which

sale shall close on or before 90 days from this date. It is further adjudged and decreed that the

price shall be the outstanding and unpaid mortgage with World Savings Bank or assignee (the

"lender") plus routine closing costs and customary transaction costs, and title shall be conveyed

by Special Warranty Deed. Payment of the price for Catalina by Whiting and transfer of the

Catalina title by Colson ("Catalina Closing") shall take place simultaneously on or before 90

days from this date, i.e., by 10/23/2008,

4. That Whiting shall pay $50,000 to Colson in certified funds simultaneously with

the Catalina Closing.

5. That the title to Chestnut shall be transferred from Colson to Gary L. Whiting. It

is further adjudged and decreed that in order to effect said transfer in light of the pending

Chestnut foreclosure proceeding and the due on sale clause in the lender's deed of trust, Whiting

shall, within 90 days of the date hereof, provide sufficient funds to Colson to fully reinstate her

loan as to Chestnut. Whiting shall then acquire title to the Chestnut property from Colson by

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Special Warranty Deed for a price equivalent to Colson's outstanding and unpaid mortgage plus

routine closing and transaction costs. Payment of the price for Chestnut by Whiting and transfer

of the Chestnut title by Colson ("Chestnut Closing") shall take place simultaneously on or before

90 days from this date, i.e., by 10/23/2008.

6. That pursuant to the Stipulated Agreement and for purposes of this case the

contract between Whiting and Williams dated 9/112006 is a valid contract and in full force and

effect.

7. That neither Whiting, nor Williams nor Colson nor any assignees, agents,

affiliates, heirs and/or relations shall be liable for fraud or any other allegation of wrongdoing or

inappropriate conduct in connection with any of the above-referenced contracts or purported

contracts. Whiting, Williams and Colson shall each be forever discharged from any claims,

assertions or causes of action related thereto.

8. That neither Whiting nor Colson shall harass or contact the other party or

members of the other party's family; that and any restraining orders, protective orders,

injunctions against harassment or the like currently in effect against the other (or a family

member of the other) shall be withdrawn. It is further ordered, adjudged and decreed that Colson

shall not permit any property damage or waste to the Catalina property, which representation and

warranty shall extend to affiliates, relatives, or relations, ordinary wear and tear excepted. It is

further ordered, adjudged and decreed that Colson makes no representation or warranty that

Chestnut has not been damaged or subjected to waste because Colson has not been in possession

of Chestnut during the litigation.

9. That, pursuant to the Stipulated Agreement, the oral agreement between Whiting

26 and Colson shall be terminated upon entry of Judgment and satisfaction herein.

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10. That, pursuant to the Stipulated Agreement, Colson shall be fully responsible for

her representations and warranties that she has permitted no voluntary or consensual liens or

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deeds of trust to be placed on Catalina or Chestnut other than the World Savings Bank (or

assignee) mortgages referenced in the litigation and that to the best of her knowledge and belief

there are no involuntary or nonconsensualliens or deeds of trust on Catalina or Chestnut.

11. That there is no admission of liability by any party herein, and upon entry of

Judgment pursuant to the Stipulated Agreement herein, all claims and actions and potential

claims or actions that arise out of the same transactions and events that are the subject of the

Stipulated Agreement herein between Whiting, Williams and Colson, as well as their assignees,

agents, affiliates, heirs and relations, shall be dismissed with prejudice and forever discharged.

12. That Williams, Whiting and Colson shall each bear their own attorney's fees,

costs and expenses incurred herein.

13. This Judgment shall have res judicata and collateral estoppel effect upon

signature of the Court and entry with the Clerk. Pursuant to the agreement of Whiting, Williams

and Colson, there is no just reason for delay and this Judgment is accordingly being signed and

entered forthwith.

IT IS SO ORDERED, ADJUDGED AND DECREED.

DATED: _

THE HONORABLE SAM J. MYERS

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eSignature Page -- 241550749_SCAN0560_000.pdf

Granted

Signed on this day, July 25, 2008

/5/ Sam MyersJudicial Officer of Superior Court

whiting cv2007-011672

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