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 IN THE COURT OF APPEALS

STATE OF ARIZONA, DIVISION ONE

KERMICK Z. DORSEY, Court of Appeals

Division One
Plaintiff/Appellant, No. 1 CA-CV 08-0472

vs. Maricopa County

Superior Court
ROBERT MICHAEL DELCUPP III and No. CV2006-000439
MAKDA TEWOLDEMEDHIN KAHSSAY
DELCUPP, husband and wife,

Defendants/Appellees.

APPELLANT’S OPENING BRIEF

Law Office of Craig Stephan

By: Craig Stephan
P.O. Box 5293
Scottsdale, Arizona 85261-5293
480-767-3787
Fax 480-767-3676
State Bar No. 07227
Attorney for Plaintiff/Appellant

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 TABLE OF CONTENTS

Page

TABLE OF CITATIONS . . . . . . 3

STATEMENT OF THE CASE . . . . . 4

STATEMENT OF ISSUES PRESENTED FOR REVIEW . . 6

STATEMENT OF FACTS . . . . . . 7

ARGUMENT . . . . . . . 9

CONCLUSION . . . . . . . 40

CERTIFICATE OF MAILING . . . . . 41

CERTIFICATE OF COMPLIANCE . . . . . 41

APPENDIX 1 . . . . . . . 42

APPENDIX 2 . . . . . . . 43

APPENDIX 3 . . . . . . . 44

APPENDIX 4 . . . . . . . 45

APPENDIX 5 . . . . . . . 46

APPENDIX 6 . . . . . . . 47

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 TABLE OF CITATIONS
Page

Rule 26.1 of the Arizona Rules of Civil Procedure 14

Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990) 19

McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (App. 1985) 33

Rule 15 of the Arizona Rules of Civil Procedure 34

MacCollum v. Perkinson, 185 Ariz. 179, 913 P.2d 1097 (App. 1996) 34

Owen v. Superior Court, 133 Ariz. 75, 649 P.2d 278 (1982) 34

Rule 26(b) of the Arizona Rules of Civil Procedure 37

Rule 37(f) of the Arizona Rules of Civil Procedure 37, 39

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 STATEMENT OF THE CASE

Plaintiff married Mihret Kahssay, the younger sister of defendant Makda DelCupp, in

Addis Ababa, Ethiopia on November 17, 2002. Plaintiff contends that unbeknownst to him this

was a fraudulent marriage, the real intent of which was to provide Mihret a way to enter the

United States on a spousal visa. Mihret entered the United States on a spousal visa (i.e., a K-3

visa) on July 19, 2003, at the Newark, New Jersey Port of Entry, where she was met by plaintiff.

The two then traveled to plaintiff’s residence in Maricopa County, Arizona. Mihret abandoned

plaintiff 19 days later (i.e., on August 7, 2003) and has not been seen by plaintiff since that date.

Plaintiff contends that the defendants conspired with and assisted Mihret in the abandonment,

thereby defrauding plaintiff of monies spent on Mihret and causing emotional injury to plaintiff.

Plaintiff’s marriage to Mihret was dissolved by the Maricopa County Superior Court on May 18,

2005.

Defendants are residents of Aurora, Colorado. Defendants claimed throughout the case

that they had no contacts with the State of Arizona. Defendants’ initial motion for summary

judgment on jurisdiction was denied, on the ground that defendants had voluntarily submitted to

the Court’s jurisdiction by filing counterclaims. After additional discovery, the Court granted

cross-motions for summary judgment on all claims and counterclaims.

Prior to entry of final judgment, plaintiff filed a motion requesting additional disclosure

and discovery, on the ground that defendants had defrauded the Court and the plaintiff and had

obstructed disclosure and discovery. Plaintiff’s motion was based upon newly discovered

evidence involving the meaning of data contained in defendants’ Cingular Wireless telephone

records, previously obtained via Court Order. The newly discovered evidence showed that

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Makda DelCupp’s cell phone had made calls from the Phoenix area on August 7, 2003. This

supported an inference that either one of the defendants or their emissary traveled from Denver to

Phoenix on August 7, 2003, and assisted Mihret in abandoning the plaintiff. It also meant (1)

that defendants’ protestations of no contacts with the State of Arizona made over a period of two

years were false and misleading, (2) that defendants had failed to disclose significant facts known

to them about the matters at issue in the case, and (3) that certain answers given by defendants

during their depositions were false, misleading, and/or amounted to perjury. Defendants’

response to plaintiff’s motion contended that the newly discovered evidence was unclear, but

failed to assert that plaintiff’s underlying allegations based upon the evidence were untrue.

Plaintiff filed a reply which requested a hearing at which plaintiff could call an expert from

AT&T, and which made an offer of proof as to what the expert’s testimony would be. The Court

waived the parties’ right to oral argument on the motion, ruled against the plaintiff, and entered

final judgment in favor of the defendants in the amount of $281.00.

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 STATEMENT OF ISSUES PRESENTED FOR REVIEW

The issues on appeal include:

1. Whether the Court erred or abused its discretion in denying “Plaintiff’s Motion for

Additional Disclosure and Discovery, Due to Defendants’ Attempt to Mislead the Court and the

Plaintiff,” filed 4/12/2008. [Docket #163]

2. Whether the Court erred or abused its discretion in ruling on defendants’ motion

for summary judgment [Part of Docket #133]. More specifically, whether the Court erred or

abused its discretion in granting summary judgment for defendants on plaintiff’s claim involving

conspiracy to defraud per McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (App. 1985).

3. Whether the Court erred or abused its discretion in denying plaintiff’s alternative

motion for leave to amend the complaint [Part of Docket #150], filed 12/10/2007.

4. Whether the Court erred or abused its discretion in ruling on plaintiff’s “Request

for Clarification of Minute Entry Order Filed 3/26/2007,” which was filed April 2, 2007.

[Docket #101]

5. Whether the Court erred or abused its discretion in denying Plaintiff’s Motion for

Sanctions for Failure of Defendants to Appear for Their Depositions [Part of Docket #67], filed

11/22/2006. [This was ruled on in the Minute Entry Judgment signed 5/5/2008 and filed

5/7/2008 – Docket #173.]

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 STATEMENT OF FACTS

1. On 11/22/2006, plaintiff filed “Plaintiff’s Motion for Sanctions for Failure of

Defendants to Appear for Their Depositions.” [Part of Docket #67] This motion requested

sanctions for the failure of the DelCupps to appear at their depositions in Denver, Colorado, at a

location seven miles from their residence. This motion was denied on 5/5/2008, in the trial

court’s “Minute Entry Judgment.” [Docket #173]

2. On April 2, 2007, plaintiff filed a “Request for Clarification of Minute Entry

Order Filed 3/26/2007.” [Docket #101] This motion requested a clarification relating to

discovery. Plaintiff asked the court to clarify that its discovery ruling meant that financial

documents that specifically relate to Mihret Kahssay without containing her name on them were

discoverable. However, the trial court denied the motion. [Docket #102] The trial court stated,

“Only documents which say, mention, or refer to Mihret Kahssay need be produced.”

3. On August 27, 2007, defendants filed a motion for summary judgment. [Part of

Docket #133] This motion was granted by minute entry ruling on 3/5/2008. [Docket #160]

4. On 12/10/2007, plaintiff responded to defendants’ motion for summary judgment,

and filed an alternative motion for leave to amend the complaint. [Part of Docket #150] The

alternative motion for leave to amend the complaint was denied in the trial court’s minute entry

ruling on 3/5/2008. [Docket #160]

5. On 4/12/2008, plaintiff filed “Plaintiff’s Motion for Reconsideration of Ruling on

Defendants’ Motion for Summary Judgment.” [Docket #165] This motion was denied on

5/5/2008, in the trial court’s “Minute Entry Judgment.” [Docket #173]

6. On 4/12/2008, plaintiff filed “Plaintiff’s Motion for Additional Disclosure and

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Discovery, Due to Defendants’ Attempt to Mislead the Court and the Plaintiff.” [Docket #163]

This motion alleged that newly discovered evidence showed that the DelCupps had been

misleading the plaintiff and the trial court for two years. This motion was denied on 5/5/2008, in

the trial court’s “Minute Entry Judgment.” [Docket #173] In its minute entry, the trial court

waived oral argument, and found among other things that plaintiff’s proffered evidence was

untimely, confusing, inconclusive, inconsistent, non-probative, and irrelevant.

7. On January 3, 2008, plaintiff filed a “Notice of Service of DVD Containing Clips

of Videotape Deposition Testimony of Makda DelCupp.” [Docket #152] A copy of said DVD is

included in Appendix 6.

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 ARGUMENT

1. The trial court erred or abused its discretion in denying “Plaintiff’s Motion

for Additional Disclosure and Discovery, Due to Defendants’ Attempt to Mislead the Court

and the Plaintiff.”

A. Newly Discovered Evidence

On or about April 11, 2008, plaintiff filed a motion requesting additional disclosure and

discovery in this case, due to defendants’ attempt to mislead the trial court and the plaintiff. That

motion alleged that the DelCupps had intentionally attempted to mislead the court and the

plaintiff by falsely claiming (1) that they had no contacts with the State of Arizona, and (2) that

they had nothing to do with Mihret leaving her husband. Plaintiff’s motion was based upon new

evidence received by plaintiff from AT&T’s Compliance Department [Appendix 5 - AT&T Fax]

relating to the Cingular Wireless records for Makda DelCupp’s cell phone. [Appendix 4 -

Cingular Wireless cell phone records]

On April 8, 2008, Sue Bazin of AT&T’s Compliance Department forwarded a fax to

plaintiff’s counsel relating to this new evidence. [Appendix 5 - AT&T Fax] On page 2 of that

fax, Ms. Bazin states in a notarized affidavit:

“After a thorough search of the documents relied on in the course of my

duties as Custodian of Records and Legal Compliance Analyst, I have verified the

following with the Billing Team: SID 0045 relates to area of Denver, CO. SID 04169

relates to the area of Phoenix, AZ.” (Emphasis added.)

On page 3 of the same fax, Ms. Bazin states:

“Per our conversation on 04/07/08 I have verified with the billing department

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 that the following System ID numbers pertain to the following areas:

-SID Code 04169 belongs to Phoenix, AZ USA

-SID Code 0045 belongs to Denver, CO USA

“This information identifies that the calls with these codes were placed from

in or around those areas.” (Emphasis added.)

This evidence shows that calls on Makda’s cell phone made between 9:20 a.m. and 3:05 p.m. on

August 7, 2003, were made or received in the geographic area of Phoenix, Arizona. Connected

calls made from the cell phone during this time show an “RSYS” or System ID number of 4169,

which means the calls were made from the geographic area of Phoenix, Arizona. Furthermore,

only calls made on August 7, 2003, contain this RSYS or System ID number. All other calls

made on the same cell phone during August and September 2003 have an RSYS or System ID

number of 45, which means they were made from the geographic area of Denver, Colorado.

[Appendix 4 - Cingular Wireless Phone Records]

In addition, calls received during the subject time period on August 7, 2003, have a

“Called Loc” code of “NACN”, which means North American Cellular Network and indicates

the cell phone was on roaming mode, i.e., outside its Denver home area. Therefore, Makda

DelCupp, Robert DelCupp, or someone acting as their emissary traveled with Makda’s cell

phone from Denver to Phoenix on August 7, 2003, which is the day Mihret abandoned her

husband. This evidence conclusively establishes that the DelCupps had contacts with the State

of Arizona on a crucial date in this case. It also supports an undeniable inference that the

DelCupps were involved in assisting Mihret to abandon her husband.

In light of the DelCupps’ misconduct in misleading the Court and the plaintiff over a

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period of two years, plaintiff requested the court (1) to order the DelCupps to provide

comprehensive, full, and fair disclosure of everything they know regarding matters at issue in the

case; and (2) to order that the parties are entitled to an additional 90 days of discovery with

respect to matters at issue in the case. Plaintiff also requested the court to order the DelCupps to

appear in Phoenix, Arizona for any additional deposition testimony which plaintiff may be

entitled to take.

The Cingular Wireless cell phone records [Appendix 4] show that Robert DelCupp

purchased the subject cell phone on August 5, 2003, which was two days before Mihret

abandoned her husband. The new evidence shows that early on the morning of August 7, 2003,

the cell phone was used in the Denver area, and then was used throughout the day in the Phoenix

area. In the late afternoon or early evening the phone was used again in the Denver area. Given

this evidence, it is clear that the DelCupps or an emissary of theirs traveled with the cell phone

on August 7, 2003 from Denver to Phoenix. Therefore, the DelCupps clearly had contacts with

the State of Arizona on that crucial date in this case, contrary to their repeated assertions. In

addition, the new evidence supports a clear inference that the DelCupps were involved in

assisting Mihret to abandon her husband, which is another allegation they have repeatedly denied

throughout the course of this litigation.

There is no way to construe this evidence other than to conclude that the DelCupps have

intentionally misled the Court and the plaintiff for over two years. It is fundamental that a

litigant cannot mislead or lie to a Court. Even pro se litigants without counsel should be aware

of this fundamental obligation. In addition, the DelCupps’ intentional misconduct also served to

mislead the plaintiff and to obstruct the plaintiff’s ability to obtain appropriate disclosure and

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discovery from the defendants. To see how effective the DelCupps’ misleading statements have

been, one only needs to review the trial court’s March 5, 2008 ruling on the motion for summary

judgment [Appendix 2], which includes the following:

“The DelCupps have consistently maintained and stated under oath that they never
met Plaintiff, have never been to Arizona, had nothing to do with Plaintiff’s marriage to
Mrs. DelCupp’s sister, Mihret, etc. Plaintiff has done nothing to challenge these facts.”

This indicates that the trial court was thoroughly misled by the DelCupps. Plaintiff’s new

evidence not only challenges the “facts” set forth in the trial court’s minute entry, but also shows

the extent to which the DelCupps will go to prevail in this lawsuit, i.e., intentionally mislead the

court and otherwise perjure themselves.

B. Plaintiff’s Diligent Search For This Evidence

Plaintiff diligently sought evidence relating to the Cingular Wireless cell phone records as

early as January 2007, when the records were first produced. Shortly thereafter, undersigned

counsel spoke with someone in the Cingular Wireless compliance department about information

contained in the records, including the numbers in the column labeled “ESN” and the numbers in

the column labeled “RSYS”. Counsel was told that the ESN numbers were equivalents, with one

being a hexidecimal number and other being a decimal number. In addition, he was told that the

compliance department did not have information about the RSYS numbers and what they meant

on the 2003 records. The clear message counsel received from this conversation was that

information about the RSYS numbers was no longer available, even from Cingular Wireless. As

a result, plaintiff and his counsel turned their attention to analyzing factual data contained in the

records, including telephone numbers, locations of calls, dates of calls, and times of calls.

Moreover, plaintiff utilized the services of a private investigator to help track this information. It

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is clear that plaintiff diligently attempted to obtain information relating to the Cingular Wireless

records throughout the course of discovery. If counsel had not been led to believe that

information about RSYS numbers was no longer available, plaintiff would have vigorously

pursued this information. [Docket #167 - Certification of Craig Stephan] More importantly, if

the DelCupps had properly disclosed information known to them about the August 7, 2003

trip from Denver to Phoenix, plaintiff would NOT have had to rely on codes in cell phone

records to prove that the trip took place.

After the trial court’s March 5, 2008 ruling on the motion for summary judgment,

plaintiff and his counsel spent considerable time reviewing all of the evidence. In order to make

sure nothing had been overlooked with respect to the cell phone records, counsel contacted a

private investigator in Houston, a cell phone expert with AT&T, and a cell phone expert in

Arkansas. Although these experts shed some light on additional aspects of the Cingular Wireless

records, none of them could provide information about the RSYS codes in the Cingular Wireless

records. [Docket #167 - Certification of Craig Stephan]

Counsel was then contacted on April 1, 2008 by Sue Bazin in the AT&T compliance

department, because she had been unable to reach plaintiff and decided to call his counsel. Sue

did not know what the RSYS codes on the Cingular Wireless records meant. Moreover, it is

now clear that no one in the AT&T compliance department knew what the RSYS codes

meant. However, a particular supervisor who was in the office on the day Sue was working on

this issue suggested that Sue contact an individual in the billing department. It turned out that the

RSYS numbers, also known as System ID’s, are billing codes that can be used to identify the

general area from which a cell phone call is made, or in which a call is received. These numbers

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are specific to Cingular Wireless/AT&T, and are not general codes used throughout the industry.

C. The DelCupps’ Obstruction of Disclosure and Discovery

On April 8, 2008, Sue Bazin faxed to counsel the information that is described above.

This information was newly discovered and was previously unavailable to plaintiff. Moreover,

this information indicated that the DelCupps were in possession of relevant and important fact

about the events in this case, including who made the trip from Denver to Phoenix, how the trip

was made, who paid for it, which airline was used, when the trip was planned and booked, who

planned and booked the trip, the purpose of the trip, who else has knowledge about this, and

many other similar facts. None of this information was previously disclosed by the DelCupps

at any time during the previous two years of litigation.

In addition, the DelCupps’ conduct obstructed plaintiff from obtaining discovery relating

to these matters, including but not limited to the taking of depositions of persons with knowledge

of the trip and the planning therefor, the service of a subpoena on the appropriate airline for

travel and payment information, and the service of subpoenas on appropriate financial

institutions for additional relevant payment information (e.g., for credit card receipts for travel

expenses). This information goes to the heart of plaintiff’s ability to prove this case, since it

deals with the involvement of the DelCupps in assisting Mihret to abandon her husband.

There is nothing more relevant or more discoverable with respect to this case, than the

involvement of the DelCupps in assisting Mihret on August 7, 2003.

Pursuant to Rule 26.1, Ariz.R.Civ.P., the DelCupps were required to disclose all relevant

and/or discoverable information known to them about this case. Moreover, Rule 37(d) provides

that a litigant who fails to disclose unfavorable information can be sanctioned up to and

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including dismissal. In light of the DelCupps’ misconduct, which has been prejudicial to the

pursuit of truth and justice in this case, plaintiff requested the trial court (1) to Order the

DelCupps to provide comprehensive, full, and fair disclosure of everything they know regarding

matters at issue in this case; and (2) to Order that the parties are entitled to an additional 90 days

of discovery with respect to matters at issue in this case. Plaintiff further requests the Court to

Order that the DelCupps be required to appear in Phoenix, Arizona for any necessary additional

deposition testimony which plaintiff may be entitled to take.

The intent of this motion is not to harm the DelCupps, but rather to allow the plaintiff a

fair shot at proving his case on a level playing field where all parties have to follow the rules.

The DelCupps’ misconduct in misleading the trial court and the plaintiff, in failing to provide

basic disclosure, and in obstructing discovery, certainly provided a sufficient basis for granting

this motion. The is especially true, because the law favors resolution of disputes on the merits,

not on the basis of who can most successfully hide the evidence.

D. The DelCupps Never Explained What Happened on August 7, 2003

Nowhere in their response to plaintiff’s motion did the DelCupps tell the Court what

actually happened on August 7, 2003. Rather, they argued the validity of the new evidence

plaintiff obtained via an affidavit from AT&T’s compliance department.

For example, the DelCupps argued whether 04169 was the same as 4169, whether 0045

was the same as 45, and whether RSYS and System ID and SID were the same. The DelCupps

also noted that certain “calls” contained on the August 7, 2003 call log, which were allegedly

made from Phoenix actually had a Denver RSYS number of 45. All of these arguments are red

herrings that are nothing but an attempt to confuse the court and to allow a miscarriage of justice

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to occur in this case.

It is counsel’s understanding, based upon conversations with AT&T’s compliance

department, that SID means “System ID” and refers to the numbers appearing in the RSYS

column on the phone records. Sue Bazin understood that plaintiff wanted to know the meaning

of the RSYS numbers on the Cingular Wireless phone records. She provided the meaning of

those numbers, but referred to them with a different nomenclature. That does not invalidate the

information contained in her affidavit. Moreover, there is no validity whatsoever to the

DelCupps’ claim that because two different acronyms are used to refer to the same numbers, the

evidence presented by plaintiff is misleading. Plaintiff requested from AT&T compliance the

meaning of the numbers appearing in the RSYS column on the phone records, and was told that

the numbers are System ID’s (also referred to by AT&T as “billing codes”) that show the areas

from which the various calls were made.

In addition, it is counsel’s understanding based upon conversations with AT&T’s

compliance department that the intermittent codes of “45” appearing on calls made when the cell

phone was in the Phoenix area are default codes for phone calls of zero duration. In this

regard, the Court will note that every one of the calls showing and RSYS code of 45 made on

August 7, 2003 between 9:20 a.m. and 5:51 p.m. is a call of zero duration. In other words, these

calls did not connect and were not billed. The “45” appearing in the RSYS column is the

default code for the phone’s home area of Denver, Colorado. In short, the DelCupps’ phone

was in Phoenix, Arizona on August 7, 2003, and they know it.

Finally, plaintiff requested that the trial court set an evidentiary hearing and allow

plaintiff the right to subpoena a witness from AT&T’s compliance department to testify in open

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court. Furthermore, plaintiff made the following offer of proof with respect to said testimony:

1. The witness would be expected to testify that the numbers appearing in the

RSYS column in the DelCupp phone records are System ID’s, also referred to as billing

codes. These numbers represent the geographic areas from which calls are made. Calls

showing the number “45” were made from the area of Denver, Colorado, and calls

showing the number “4169” were made from Phoenix, Arizona.

2. The witness would also be expected to testify that the acronym “NACN”

stands for North American Cellular Network. When it appears on the phone records it

means that the subject cell phone was on roaming when it received an incoming call.

3. The witness would also be expected to testify that the codes of “45”

appearing on August 7, 2003, between 9:20 a.m. and 5:51 p.m. are default codes for calls

of zero duration.

The trial court denied plaintiff’s motion in the final minute entry judgment dated May 5,

2008. [Appendix 1] In its minute entry, the trial court waived plaintiff’s request for oral

argument and proceeded to deny the motion for additional discovery. The trial court found that

the “proffered evidence is untimely, confusing, inconclusive and inconsistent. It includes

multiple hearsay. It is non-probative and irrelevant.” This assessment is completely off the

mark.

Plaintiff explained in detail why the evidence was not obtained earlier, including the fact

that the Cingular Wireless Compliance Department itself did not have this information. Plaintiff

used more than due diligence to obtain the information, but unfortunately it was unavailable.

Moreover, the trial court placed the entire burden in this matter on plaintiff, without giving any

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regard to the fact that plaintiff’s job in obtaining the evidence was obstructed by defendants. A

defendant who obstructs discovery and disclosure cannot complain that the plaintiff failed to

timely discover evidence that defendant should have disclosed in the first place. That would

make a complete mockery of the disclosure obligations.

Next, the trial court’s reference to the “proffered” evidence must mean the fax from Sue

Bazin, and cannot possibly mean the proffered testimony of an expert from AT&T. Surely, the

trial court would not find that such an expert would be precluded from testifying to the evidence

described in plaintiff’s offer of proof. Finally, the trial court’s assertion that the evidence is

“non-probative and irrelevant” raises an issue as to whether the trial court understood the nature

of plaintiff’s motion. It is certainly relevant when one litigant has misled another for over two

years, obstructing disclosure and discovery in the process. If that is not an issue that an affected

litigant is entitled to raise, then there is little hope for justice in our courts.

For the foregoing reasons, the trial court erred or abused its discretion in denying

“Plaintiff’s Motion for Additional Disclosure and Discovery, Due to Defendants’ Attempt to

Mislead the Court and the Plaintiff.” The Court of Appeals should remand this case for further

disclosure and discovery as requested in the motion. In the alternative, the Court of Appeals

should remand for an evidentiary hearing on this issue, at which plaintiff would be entitled to call

an expert from AT&T regarding the content of the Cingular Wireless cell phone records.

2. The Court erred or abused its discretion in ruling on defendant’s motion for

summary judgment and motion for reconsideration.

A motion for summary judgment “should be granted if the facts produced in support of

the claim or defense have so little probative value, given the quantum of evidence required, that

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reasonable people could not agree with the conclusion advanced by the proponent of the claim or

defense.” Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000 (1990).

The content of the Court’s ruling on defendants’ motion for summary judgment makes it

clear that the Court did not follow the law in evaluating and ruling on said motion. The rules for

evaluating a motion for summary judgment include the following:

“Credibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those of the judge, whether
he is ruling on a motion for summary judgment or for directed verdict. The evidence of
the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor.” Orme School v. Reeves, 166 Ariz. 301, 309-310, 802 P.2d 1000 (1990).

In other words, the starting place for evaluating a motion for summary judgment is (1) to accept

as true the evidence submitted by the non-moving party, and (2) to accept as true all justifiable

inferences to be drawn from the non-moving party’s evidence.

A. The Court’s Evaluation Begins Backwards

In this case, the Court effectively began its analysis by stating:

“The DelCupps have consistently maintained and stated under oath that they never
met Plaintiff, have never been to Arizona, had nothing to do with Plaintiff’s marriage to
Mrs. DelCupp’s sister, Mihret, etc. Plaintiff has done nothing to challenge these facts.”

In other words, the Court began its evaluation backwards, by assuming the assertions of the

DelCupps, i.e., the moving parties, to be true. In addition, the Court made an initial credibility

determination in favor of the DelCupps, i.e., assuming them to be credible. As plaintiff shows

below, one of the major issues in this case is the credibility of the DelCupps, especially Makda

DelCupp. Therefore, for the Court at the outset of its analysis to assume that the DelCupps are

credible is to usurp a legitimate function of the jury. Both of the foregoing errors, i.e., assuming

the assertions of the moving party to be true and making an initial credibility determination in

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favor of the DelCupps, constitute abuses of discretion.

Moreover, the Court initially focused on jurisdictional facts, which are completely

irrelevant to the subject motion, since the Court ruled in May 2007 that it has jurisdiction.1 For

example, the fact that the DelCupps have never met the plaintiff is completely irrelevant, since it

is clear that the DelCupps know Mr. Dorsey and have communicated with him by telephone

and email. Again, even if the DelCupps have never been to Arizona, that too is irrelevant. One

conspiring to defraud an Arizona resident does not have to do it from within Arizona. Also, as

noted above, the Court’s conclusion that the DelCupps had nothing to do with plaintiff’s

marriage, based upon the assertions of the DelCupps, is backwards. It assumes the truth of facts

alleged by the movant, rather than the truth of facts alleged by the non-movant. Finally, the

Court’s statement that “Plaintiff has done nothing to challenge these facts,” misses the mark.

There was no reason at this juncture for the plaintiff to present facts that go to jurisdiction, since

that would be a waste of everyone’s time. Instead, plaintiff presented facts and inferences that

support the substance of his case.

B. The Court Failed to Review the Evidence and the Inferences

In its Order, the Court reviewed only two facts from among those submitted by the

plaintiff in opposition to the motion for summary judgment. Those facts consisted of the

following:

(i) “As noted in the Court’s order of May 7, 2007, the most that Plaintiff can

1
In its May 7, 2007 minute entry the trial court stated, “The Court, with some reluctance, finds that the
DelCupps have waived their argument that an Arizona court has no personal jurisdiction over them.” (Emphasis
added.) It is significant that the newly discovered evidence relating to the Cingular W ireless phone records shows
that the DelCupps actually had contacts with the State of Arizona sufficient to allow the assertion of personal
jurisdiction over them.

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 show is that, on August 7, 2003, the day that Plaintiff’s wife allegedly abandoned him,
one of the DelCupp Defendants may have had four telephone calls on a cellular telephone
to which Plaintiff’s wife allegedly had access at the time when she, according to Plaintiff,
was still in Arizona.”

(ii) “Plaintiff also offers evidence that Mrs. DelCupp may have spoken to her
sister a number of times from August 7 through August 27, 2007, through a Getachew
Yeneneh in Aurora, Colorado, although the evidence is far from clear.”

(1) First Fact Cited by the Court

Significantly, the first fact is taken from the Court’s ruling on Jurisdiction, which is no

longer at issue. The Court’s characterization of this evidence presented by plaintiff clearly does

not apply the correct legal standard. Let’s take it one phrase at a time.

(a) The Court characterizes August 7, 2003, as the day plaintiff’s wife

allegedly abandoned him. The Court’s language is misleading, since it suggests that

either the date is at issue or the fact that plaintiff’s wife abandoned him is at issue.

However, neither proposition is correct. There is no issue in this case as to the date on

which Mihret abandoned Mick, it was August 7, 2003, period. The DelCupps have

never put this at issue. In addition, there is no issue as to whether Mihret abandoned

Mick. Mick has testified to this fact and the DelCupps have never disputed it. Their only

dispute goes to the reasons why Mihret abandoned Mick. Therefore, for purposes of the

motion for summary judgment, the Court must accept as true the fact that plaintiff’s wife

abandoned him on August 7, 2003.

(b) The Court states that on August 7, 2003, one of the DelCupp

Defendants may have had four phone calls to plaintiff’s wife. This, again, constitutes a

failure of the Court to properly view the evidence. Plaintiff produced telephone records

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 showing that four telephone calls were made from Makda DelCupp’s cell phone to the

Cricket phone in the possession of Mihret on the morning of August 7, 2003. The

DelCupps have never presented any evidence disputing the accuracy of the cell phone

records. Therefore, the cell phone records speak for themselves and clearly show the

calls were made. In addition, plaintiff did not learn until late in the case who actually

used the DelCupp cell phone. It was not until Robert DelCupp’s deposition taken on

August 2, 2007, that Mr. DelCupp finally admitted after extensive cross-examination that

the cell phone was Makda’s. This is information that the DelCupps had a duty under

Rule 26.1 to disclose, it is not information that plaintiff should have had to spend

thousands of dollars in attorney’s fees and travel expenses to get at an out-of-state

deposition. Moreover, during Makda DelCupp’s deposition, she did not deny making

the phone calls to Mihret on the morning of August 7, 2003, rather, she testified at

various times that she didn’t know who made the calls or that she didn’t remember

who made the calls. (SOF.66)2 Plaintiff produced this portion of the deposition

examination of Makda for the Court both in text form and in videotape form on a DVD.

[See Docket #152 and Appendix 6] However, there is no indication in the record that the

Court actually viewed the twenty minutes of DVD testimony of Makda, submitted by

plaintiff. Based on the evidence submitted by plaintiff, any reasonable juror could

infer that Makda Delcupp (using her own cell phone) called Mihret four times on

the morning of August 7, 2003 (as shown by Makda’s phone records). Once again,

2
References are made throughout this section to the “Statement of Facts Supporting Plaintiff’s Response to
Defendants’ Motion for Summary Judgment.” [Docket #149] “SOF.66” refers to paragraph 66 of the Statement of
Facts.

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 reasonable inferences from the evidence must be accepted by the Court in ruling on a

motion for summary judgment. The word “may” used in the Court’s description above,

has no place in the evaluation.

(c) The Court states that Mihret allegedly had access to the Cricket

phone. The evidence presented by plaintiff is that Mihret had possession of Mick’s

Cricket phone and took it with her when she left on August 7, 2003.3 (SOF.56) Mick

called the Cricket phone on the afternoon of August 7, 2003, and received a return phone

call from Mihret ten minutes later. (SOF.58) During that call, it sounded to Mick like

Mihret was in a bus terminal or airport, which supports an inference that Mihret was

traveling somewhere. Again, the DelCupps never challenged plaintiff’s evidence that

Mihret took Mick’s Cricket phone and had it in her possession on August 7, 2003. On

this record, the Court must accept as true plaintiff’s testimony that Mihret had

possession of the Cricket phone. The proposition that Mihret had access to the Cricket

phone is not a mere allegation, it is something that any reasonable juror could infer from

the evidence. Moreover, it is something the trial court was required to accept as true in

evaluating the motion for summary judgment.

(2) Second Fact Cited by the Court

Once again, the Court’s characterization of the evidence presented by plaintiff does not

apply the correct legal standard.

The Court states that Mrs. DelCupp may have spoken to her sister a number of times

3
Mick testified that when Mihret abandoned him on August 7, 2003, she took Mick’s Cricket phone with
her. Mihret also took Mick’s personal immigration documents used to process the K3 visa for M ihret, along with
personal photographs. (SOF.56)

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“through a Getachew Yeneneh in Aurora, Colorado, although the evidence is far from clear.”

Plaintiff presented evidence through Cingular Wireless phone records of 40 telephone calls from

Makda DelCupp’s cell phone to a number belonging to Getachew Yeneneh in Aurora, Colorado.

(SOF.74 and 54) These telephone calls occurred from August 9, 2003 to August 26, 2003, when

the calls to the Yeneneh number suddenly ceased.4 Plaintiff also presented evidence through Bell

Canada phone records of a conference call that occurred on August 27, 2003. The call originated

from North York, Ontario, Canada, from a number belonging to Mihret’s brother, Loulseged

Kahssay (Lou). Lou dialed Getachew Yeneneh’s number in Aurora, Colorado, and then dialed

plaintiff’s number in Arizona. Based on plaintiff’s testimony, the conference call involved Lou,

Mihret, and plaintiff. Based on the calling records, it is clear beyond any doubt that Mihret

participated in the conference call on the land line located at the Yeneneh residence in Aurora,

Colorado. Note that the Court’s statement that phone calls were made through Getachew

Yeneneh, implying that they went to the Yeneneh residence and were forwarded elsewhere is

completely unsupported by the record and amounts to pure speculation. Moreover, this

amounts to another attempt to view the evidence in a light most favorable to the movants, rather

than the other way around. The DelCupps did not present any evidence to dispute the accuracy

of the Bell Canada phone records, or to suggest that the calls made to the Yeneneh number were

forwarded elsewhere. Finally, there is no evidence in the record that the Yeneneh phone line

had a forwarding feature on it.

The foregoing evidence presented by plaintiff clearly establishes that Mihret was in

4
Robert DelCupp testified at his deposition on August 2, 2007, that he did not make any of the 40
telephone calls that were made from the Cingular W ireless cell phone to the number belonging to Getachew
Yeneneh. This evidence supports the inference that Makda DelCupp made the calls, since it was her phone.

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Aurora, Colorado on August 27, 2003. This is a fact that the DelCupps were under a legal duty

to disclose in this litigation, but did not. In fact, they not only failed to disclose this fact, they

repeatedly claimed Mihret was never in Colorado and that she returned to Ethiopia. Given the

DelCupps’ complete lack of credibility on this issue, a reasonable juror could infer that Mihret

traveled to Aurora, Colorado after leaving Mick on August 7, 2003. The unusual number of

phone calls from Makda’s cell phone to the Yeneneh number can be explained by Mihret’s

presence at the Yeneneh residence in Aurora during a three week period in August, after she

abandoned Mick. This again is a reasonable inference that could be made by any juror, and does

not amount to speculation or innuendo as the Court suggests. Rather, it is based on a web of

circumstantial evidence from which jurors could derive reasonable inferences.

C. Evidence of Advance Planning by the DelCupps

(1) Purchase of Cingular Wireless Cell Phone

The Cingular Wireless cell phone records are the records relating to Makda Delcupp’s

phone. The first page of those records, which is entitled “Subscriber Information,” shows that

the cell phone was purchased by the DelCupps on August 5, 2003, which was two days before

Mihret abandoned Mick. The phone was used once on August 6, 2003, and then was put into

regular service on August 7, 2003. Newly discovered evidence shows that someone using the

cell phone traveled from Denver to Phoenix and back on August 7, 2003. This cell phone was

used to make the four calls to Mihret’s Cricket phone on the morning of August 7, 2003. It was

also used to make several calls to Arizona numbers later that same day. In addition, it was used

to make the 40 calls to the Yeneneh number throughout the month of August 2003. Based upon

the available evidence, it appears that the DelCupps purchased the Cingular Wireless cell phone

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specifically for use on the trip to Phoenix and to communicate with Mihret afterwards. This

provided them with a new phone number that Mick Dorsey did not know, and therefore would

have difficulty tracing.

Any juror could reasonably infer from this evidence (1) that the DelCupps knew in

advance that Mihret would be leaving Mick; (2) that the DelCupps were involved in assisting

Mihret (i.e., in conspiring with her) and wanted to cover their tracks by using a new telephone

number; and (3) that purchasing the Cingular Wireless cell phone constituted advance planning

(i.e., an affirmative act) by the DelCupps in furtherance of the conspiracy with Mihret. Again,

the Court must accept as true all reasonable inferences from the evidence submitted by

plaintiff.

(2) Travel From Denver to Phoenix on August 7, 2003

The fact that Makda or someone using Makda’s cell phone traveled from Denver to

Phoenix and back on August 7, 2003, provides further evidence of collusion between the

DelCupps and Mihret. This trip clearly required advance planning, which again indicates that the

DelCupps knew in advance of Mihret’s plan to leave Mick. In addition, any reasonable juror

could infer that the trip was specifically and intentionally arranged to assist Mihret in leaving her

husband. In other words, this evidence supports an inference that the DelCupps conspired with

Mihret in advance to assist Mihret in abandoning Mick, and then took affirmative steps to

execute the planned conspiracy. This goes to the heart of plaintiff’s case.

(3) Makda’s Mother in Aurora, Colorado

It is not a coincidence that Makda and Mihret’s mother, who resides in Ethiopia, was

staying with Makda in Aurora, Colorado when Mihret abandoned Mick. (SOF.84) Makda (dob

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9/5/1972) is eight years older than Mihret (dob 2/4/1981). (SOF.82-83) Therefore, when Mihret

came to the United States, she was only 22 years old and without financial means, but her sister

Makda was age 30 and already well established. It makes imminent sense that Makda and her

mother both wanted to be available to provide support to Mihret after she abandoned Mick. Any

juror could reasonably infer from the evidence that the DelCupps were involved in planning the

timing of the mother’s stay in Aurora to coincide with the time Mihret would arrive in the United

States, leave Mick, and travel to Aurora. This further supports plaintiff’s claim that the Delcupps

conspired with Mihret to assist her in leaving Mick.

D. The DelCupps Lack Credibility, Especially Makda DelCupp

The Court accepts the DelCupps’ testimony as credible and reliable. However, a

reasonable juror would have more than enough evidence to conclude that the DelCupps have lied

repeatedly throughout the course of this litigation. Determinations of credibility on the order of

those at issue in this case are questions for the jury, not for the court.

For example, Makda DelCupp testified at her deposition on August 2, 2007, that she

didn’t remember who had access to the Cingular Wireless cell phone (according to her husband

it was her cell phone); that she didn’t remember whether she and her husband had access to the

cell phone; that she didn’t remember whether anyone besides she and her husband had access

to the phone; that she didn’t remember who made four calls from her cell phone to the Cricket

phone in Mihret’s possession on the morning of August 7, 2003; that she didn’t know who

made any of the calls to Phoenix using her cell phone on August 7, 2003; that she didn’t

remember whether she or her husband had made any of the calls to Phoenix that morning; that

she didn’t remember whether she talked to Mihret on the day Mihret left her husband (Mick’s

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testimony establishes that Makda did talk to Mihret this date)5; that she didn’t remember

whether she talked to Mihret within a month of the time Mihret left her husband; that she didn’t

remember the last time she talked with Mihret; that she didn’t remember whether she talked to

Mihret within the past year; that she didn’t remember whether she talked with Mihret in the

WEEK prior to the deposition; that she didn’t remember whether she talked with Mihret in the

past month; that she didn’t remember whether she talked with Mihret in the past six months;

that she didn’t remember whether her mother, who was staying with her in Denver, had any

contact with Mihret after Mihret left her husband; that she didn’t remember anything about her

one month trip to Ethiopia in 2001 to celebrate her marriage with her family, including whether

she visited her sister Mihret, her sister Kidist, her sister Bethlehem, her brother Loulseged, her

mother, or her father; that she may have called Mr. Yeneneh’s telephone number but she didn’t

remember; that she didn’t know whether the number 303-353-3192 was Mr. Yeneneh’s

number; and that Mihret returned to Ethiopia but Makda didn’t know when or how.

Makda DelCupp’s alleged lack of memory about the foregoing matters stretches

credulity. Any juror who heard Makda DelCupp testify that she didn’t remember who had

access to her own cell phone, or that she didn’t remember whether she talked to Mihret

within the past week, or that she didn’t remember any family members she saw on a family

trip to Ethiopia in 2001, could readily conclude that Mrs. DelCupp is LYING. (SOF.66, 67,

75, 84, 85, 87, and 88) In addition, plaintiff provided to the Court a videotape version of

Makda’s testimony on DVD. [See Docket #152 and Appendix 6] This included approximately

5
W hen Mick spoke with Makda by telephone on August 7, 2003, it was clear that Makda had previously
spoken with Mihret. (SOF.63) In fact, Makda made a threatening remark to M ick, saying, “If you try to find her
[i.e., Mihret], I’m going to get you.”

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20 minutes of clips that were also included in written form in Plaintiff’s Statement of Facts.

There is no indication in the record that the Court actually viewed the DVD. This was provided

to the Court for the specific purpose of showing that there is much more to the testimony than the

words. For example, Makda wore a hat pulled down on her forehead, along with dark

sunglasses, throughout the deposition. She also had her hair fixed in a way so that it fell forward

partially obscuring her face. The overall effect created by this appearance was that the

witness was intentionally attempting to hide her identity, and this would be unmistakable

to any reasonable juror. In addition, anyone who actually watched the videotape would note

that Makda took lengthy periods of time before answering, in order to write down each question.

She did this even when the question called for a simple “yes” or “no” answer. The overall effect

created by the combination of the witness’s appearance and the rhythm of her answers was

one of contempt for the truth, and this would be unmistakable to any reasonable juror.

Suffice it to say that if the videotape of Makda DelCupp’s deposition testimony were played for

jurors, they would readily conclude that this witness has something to hide and is not being

truthful in her answers. Moreover, the cross-examination of this witness in the courtroom using

cuts from the videotape testimony would be devastating in short order. Judging the credibility of

this key witness by viewing her demeanor while testifying is a function for the jury, not the

Court. Summary judgment should not be granted when such a crucial credibility

determination must be made.

E. The Evidence Shows that Mihret Traveled to Aurora, Colorado

The telephone records obtained by plaintiff during discovery, prove conclusively that

Mihret was in Aurora, Colorado on August 27, 2003. Moreover, as stated above, it is reasonable

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to infer that Mihret traveled to Aurora after abandoning Mick on August 7, 2003. For example,

newly discovered evidence proves that someone using Makda’s cell phone traveled from Denver

to Phoenix and back on August 7, 2003. It makes sense that this person assisted Mihret in

abandoning Mick and in traveling to Aurora, Colorado. Also, during a telephone call between

Mihret and Mick on August 7, 2003, it sounded to Mick like Mihret was in a bus terminal or

airport, i.e., was traveling somewhere. In addition, several other facts in the record support an

inference that Mihret traveled to Aurora, Colorado. First, Mihret’s only sibling in the United

States, i.e., Makda DelCupp, lives in Aurora. Second, Mihret’s mother was visiting Makda in

Aurora at the time, so by traveling to Aurora, Mihret could have seen and been supported by both

her sister and her mother. Third, Mihret had no money available to pay for her travel, but Mihret

knew that Makda was in a position to help her. For example, in June of 2002, when Mihret

asked Mick in an email for money to pay the “guy” to help get her out of Ethiopia, Mihret said

that her sister (i.e., Makda) and brother (i.e., Lou) would help repay the money. (SOF.44)

Fourth, Makda’s refusal to answer questions at her first deposition about financial assistance

given to Mihret support an inference that Makda did in fact provide such assistance. (See

below.) This supports an inference that Mihret’s destination was Aurora, which is where Makda

lives. Fifth, Makda spoke with Mihret four times on the morning that Mihret abandoned Mick.

This supports an inference that Makda knew in advance that Mihret was leaving Mick. It also

provided Makda an opportunity to participate in and assist in Mihret’s plan to leave Mick. Sixth,

the contention that Makda knew Mihret was leaving Mick is further supported by Mick’s

testimony that when he spoke with Makda later that day, she clearly knew that Mihret had left.

In fact, Makda verbally threatened to “get” Mick if he attempted to find Mihret. This suggests

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that Makda knew where Mihret was going, and could determine whether Mick was attempting to

find her. Seventh, the burst of 40 phone calls from Makda’s cell phone to the Yeneneh number

began on August 9, 2003, which was two days after Mihret abandoned Mick. Mihret would

have had time to travel to Aurora and settle in at the Yeneneh residence by August 9, 2003. By

staying at the Yeneneh residence, Mihret could remain out of sight should the authorities check

on her at the DelCupp residence, which they did on August 16, 2003. For all of the foregoing

reasons, the evidence supports a reasonable inference that Mihret traveled to Aurora,

Colorado upon abandoning Mick.

F. Makda provided assistance to Mihret.

Mihret had no money, credit card, debit card, or financial means of her own on August 7,

2003, which she could have used to pay for travel, food, or shelter. Therefore, Mihret had to

have received financial assistance from someone else in order to abandon Mick. (SOF.57) This

testimony by Mick must be accepted as true by the Court for purposes of the motion for

summary judgment. Therefore, the Court must accept as true the fact that Mihret had no

financial means whatsoever to leave Mick on August 7, 2003, and had to have the help of a

third party.

Makda DelCupp’s testimony during her telephonic deposition on January 31, 2007 fit a

particular pattern. Whenever Makda was comfortable answering “No,” she did so. However,

when she was uncomfortable and the answer appeared to be a “Yes”, she refused to answer the

question. For example, when asked whether she knew Getachew Yeneneh, which we now know

should have been answered, “Yes”, Makda refused to answer. (SOF.70-71) Makda also refused

to answer several questions relating to financial assistance provided to Mihret. The pattern in

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answering these questions strongly suggests that the answers should have been, “Yes”. (SOF.69)

In any event, a reasonable juror certainly could reach this conclusion. In other words, a

reasonable juror could conclude that the DelCupps provided financial assistance to Mihret.

The newly discovered evidence of the trip from Denver to Phoenix further supports this

conclusion.

G. Evidence of Makda’s modus operandi.

Makda Delcupp married a U.S. Citizen in December of 1999 and subsequently gained

entry to the United States. Therefore, Makda understands the process involved in getting into the

United States as the spouse of a U.S. Citizen. (SOF.42)

In the winter of 2003, Makda DelCupp told Mick that she was planning on having her

sister, Kidist, marry a gay guy from the United States, so that Kidist could get into the United

States and get alien spousal benefits. The plan was for Kidist to then divorce her gay spouse.

This plan that Makda had for Kidist is similar to the plan plaintiff alleges Makda had for Mihret.

More importantly, this plan is evidence of an M.O. used by Makda when it comes to getting a

sister into the United States, namely, get the sister to marry a U.S. citizen under false pretenses,

get the sister into the United States as the spouse of a U.S. citizen, then terminate the marriage.

The Court must accept Mick’s testimony on this issue as true.

H. U.S.C.B.P. has no record showing Mihret departed the United States.

Throughout this litigation, the DelCupps have insisted that Mihret returned to Ethiopia

shortly after leaving Mick (though claiming they don’t know when or how). That is not true.

Plaintiff subpoenaed from United States Customs and Border Protection all I-94 departure

records relating to Mihret Kahssay. The return on the subpoena showed that there are none.

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When Mihret entered the United States at the Newark, New Jersey, Port of Entry, an I-94 arrival

record was generated. If Mihret had departed the United States on any airline or carrier of any

kind, an I-94 departure record would have been generated. Based upon this evidence, any

reasonable juror could conclude that Mihret did not return to Ethiopia as the DelCupps claim.

This is one more example of misleading information the DelCupps have fed the plaintiff during

the course of this litigation.

(I) Issues of Material Fact Regarding a Conspiracy to Defraud.

The law relating to a conspiracy to defraud is set forth in McElhanon v. Hing, 151 Ariz.

386, 728 P.2d 256 (App. 1985). Based upon that case and by analogy to it, the elements of a

conspiracy to defraud a plaintiff via a fraudulent marriage include:

1. An unlawful agreement;

2. With the specific intent of each member of the conspiracy to defraud the plaintiff

out of money via a fraudulent marriage;

3. Acts committed pursuant to the unlawful agreement;

4. Damages caused by the acts committed pursuant to the unlawful agreement.

See, McElhanon v. Hing, supra, 151 Ariz. at 396.

On this record, any juror could reasonably conclude that the DelCupps were involved in a

conspiracy with Mihret, to assist her to enter the United States as the wife of Mick Dorsey, to

assist her in abandoning Mick at the first opportunity, and to assist her in traveling to Aurora,

Colorado. Moreover, the evidence relating to planning by the DelCupps shows that the

conspiracy was in place prior to Mihret entering the United States, which is sufficient to establish

plaintiff’s cause of action. In addition, there is evidence of acts taken by the DelCupps in

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furtherance of the conspiracy, e.g., the purchase of the Cingular Wireless cell phone on August 5,

2003 which was used to contact Mihret. While Mick was planning for a future with his new

wife, Mihret and the DelCupps knew it was all a fraud. As a result of this conspiracy, Mick

suffered both economic and non-economic damages.

For the foregoing reasons, the Court of Appeals should find that the trial court either

erred or abused its discretion in granting summary judgment to the DelCupps on plaintiff’s cause

of action for conspiracy to defraud. As a result, the case should be remanded for further

proceedings, including a trial on the cause of action for conspiracy to defraud.

3. The Court erred or abused its discretion in denying plaintiff’s alternative

motion for leave to amend the complaint.

When plaintiff responded to the DelCupps’ motion for summary judgment, plaintiff also

requested in the alternative leave to file an amended complaint. [Docket #150]

Rule 15 of the Arizona Rules of Civil Procedure provides in pertinent part:

“(a) Amendments.
“1. A party may amend the party’s pleading once as a matter of course at any
time before a responsive pleading is served or, if the pleading is one to which no
responsive pleading is permitted and the action has not been placed upon the trial
calendar, the party may so amend it at any time within twenty days after it is served.
Otherwise, a party may amend the party’s pleading only by leave of court or by written
consent of the adverse party. Leave to amend shall be freely given when justice
requires.” (Emphasis added.)

As this rule provides, amendment is to be freely granted when justice so requires. While leave to

amend is discretionary with the trial court, it should be liberally granted. MacCollum v.

Perkinson, 185 Ariz. 179, 185, 913 P.2d 1097 (App. 1996); Owen v. Superior Court, 133 Ariz.

75, 79, 649 P.2d 278 (1982). Trial on the merits of the claim is favored. Owen v. Superior

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Court, supra.

In lieu of granting summary judgment to the DelCupps, the trial court should have

granted leave to plaintiff to amend the complaint. This would have allowed plaintiff to plead

with greater specificity, given the information that had been accumulated after two years of

discovery. This also would have provided plaintiff a fair opportunity to replead his case, so it

could be tried on the merits. Since leave to amend should be freely granted in the interests of

justice, and since trial on the merits if favored, plaintiff’s motion for leave to amend should have

been granted.

For the foregoing reasons, the Court of Appeals should remand the case to the trial court

for further proceedings, with instructions to grant plaintiff leave to file an amended complaint.

4. The Court erred or abused its discretion in ruling on plaintiff’s “Request

forClarification of Minute Entry Order Filed 3/26/2007,” which was filed April 2, 2007.

On December 26, 2006, plaintiff served a request for production of documents on the

DelCupps. Request no. 7 sought production of the following financial records:

“Any and all bank statements, credit card statements, personal ledgers, cancelled
checks, check stubs, receipts, wire transfer documents, Western Union documents, money
orders or evidence thereof, cashier’s checks or evidence thereof, and evidence of cash
transfers of any kind, made by you during the period from February 2002 to the present,
to, on behalf of, or for the benefit of Mihret Kahssay.”

In response, the DelCupps filed a motion for a protective order. [Believed to be part of Docket

#87]

On March 26, 2007, the trial court entered a Minute Entry Ruling [Docket #97] on the

motion for protective order, which stated the following with respect to the request for financial

records:

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 “The request is broad and potentially intrusive of Defendant’s privacy. It is also
poorly phrased, i.e., financial documents ‘evidencing’ payments to Defendant Makda
Delcupp’s sister (not clear to the Court how financial documents, as such, would
‘evidence’ payments). If Defendants are in possession of any financial documents for the
defined period which say or specifically relate or refer to Mihret Kahssay on their face,
they will be produced to the Court pursuant to the in camera inspection procedure
described below.” (Emphasis added.)

On April 2, 2007, plaintiff filed a “Request for Clarification of Minute Entry Order Filed

3/26/07.” [Docket #101] This asked the Court to clarify its Minute Entry Ruling as follows:

“(1) Plaintiff requests the Court to clarify whether this order means that financial
documents need not specifically say “Mihret Kahssay” on their face in order to be
discoverable, if in fact they specifically relate in some way to Mihret Kahssay. Also, are
defendants required to inform the Court which portion of a document (e.g., which
payment shown on a credit card statement) specifically relates to Mihret Kahssay?

“(2) Plaintiff requests the Court to clarify whether this order means that financial
documents (e.g., bank statements, credit card statements, or wire transfer documents)
specifically relate to Mihret Kahssay if they show payments or financial transfers made
to, on behalf of, or for the benefit of Mihret Kahssay. Does this include financial
documents showing payments made to third parties (e.g., an airline, bus company, car
rental company, hotel, telephone service provider, etc.), if the payments are for the benefit
of Mihret Kahssay?”

On April 2, 2007, the trial court entered a minute entry stating, “Plaintiff’s Request for

Clarification of Minute Entry Order Filed 3/26/2007 is denied. Only documents which say,

mention or refer to Mihret Kahssay need be produced.” [Docket #102] The effect of this ruling

was to limit production of the DelCupps’ financial records to documents which had the name,

“Mihret Kahssay,” somewhere on them. This is completely ridiculous. For example, a credit

card statement showing a charge for an airline ticket for Mihret Kahssay may not contain the

name Mihret Kahssay on it. Pursuant to the trial court’s order, such a credit card charge incurred

by the DelCupps for the benefit of Mihret Kahssay would not have to be produced. Therefore,

the trial court’s ruling placed an unreasonable restriction on plaintiff’s ability to obtain discovery.

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 Pursuant to Rule 26(b) of the Arizona Rules of Civil Procedure, a party “may obtain

discovery regarding any matter, not privileged, which is relevant to the subject matter involved in

the pending action . . . It is not ground for objection that the information sought will be

inadmissible at the trial if the information sought appears reasonably calculated to lead to the

discovery of admissible evidence.” In this case, plaintiff sought to discover financial information

from the DelCupps, which would show that they helped Mihret abandon her husband. For

example, plaintiff sought evidence of payments made for Mihret’s airfare from Phoenix to

Denver. As pointed out above, that evidence does not always come wrapped up in a bow with

Mihret’s name on it. Rather, it may require disclosure by the DelCupps as to what a particular

credit card charge or bank charge was for. Therefore, the trial court’s ruling placed an

unreasonable restriction on discovery, and deprived plaintiff of an opportunity to obtain relevant

evidence in this case. Moreover, given the newly discovered evidence, it appears certain that the

DelCupps paid for airline tickets from Phoenix to Denver and that those payments would be

discoverable.

For the foregoing reasons, the Court of Appeals should remand this case for further

proceedings, with instructions to allow discovery into financial records that evidence payments

made by the DelCupps for the benefit of Mihret Kahssay.

5. The Court erred or abused its discretion in denying Plaintiff’s Motion for

Sanctions for Failure of Defendants to Appear for Their Depositions.

Pursuant to Rule 37(f), Arizona Rules of Civil Procedure, plaintiff sought monetary

sanctions in the amount of $1,559.49 against defendants Makda DelCupp and Robert DelCupp,

for their failure to appear for their depositions noticed for Thursday, November 16, 2006. [Part

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of Docket #67] The depositions of the defendants were noticed at a location in Denver,

Colorado, approximately 7 miles from the DelCupp residence. Plaintiff incurred significant

travel expenses and attorney’s fees in order to take these depositions, but the DelCupps chose not

to appear. However, on the following day, Robert DelCupp appeared at the very same location to

defend the deposition of plaintiff’s private investigator. The notice for the private investigator’s

deposition was served along with the notices for the DelCupps depositions, so the DelCupps

cannot contend that they failed to receive notice or that they did not know where the depositions

were to take place.

Moreover, in order to make sure that the DelCupps understood the importance of

attending their depositions, plaintiff forwarded a letter to the Delcupps on October 31, 2006, and

forwarded a copy to the Court. The letter contains the following pertinent language:

“As you know, I have scheduled your depositions on November 16, 2006, in
Denver, Colorado. The depositions are scheduled to take place in the Frisco Conference
Room, Holiday Inn Hotel, 15500 E. 40th Avenue, Denver, CO 80239. Mrs. Delcupp’s
deposition is scheduled to begin at 8:30 a.m., and Mr. Delcupp’s deposition is scheduled
to begin at 1:00 p.m.
“Since you are the defendants in this case, I expect you to appear for these
depositions at the scheduled time and place. By scheduling these depositions in
Colorado, I am saving you the expense of coming to Arizona to give deposition
testimony. The only way that I can obtain evidence needed to respond to your pending
motion for summary judgment is to take these depositions in a timely fashion.
Therefore, if you have any objections to the procedure I am following, please notify
me immediately. In that case, I will seek prompt intervention by the Court, so that I
can obtain the evidence I need.
“If either of you should fail to appear for your deposition at the scheduled time
and place, we will ask the court reporter to make a record of your non-appearance. I will
then file a motion with the Court for monetary sanctions, including court reporter fees,
travel expenses, and/or attorney’s fees incurred to take these depositions. In addition, I
will ask the court to compel your attendance at a deposition in Arizona, and will request
the entry of default if you should fail to appear.
“Please consider this letter to be a good faith effort to avoid a discovery
dispute by resolving issues in advance of these depositions.”

-38-
This letter was forwarded to the Delcupps via certified mail, return receipt requested. Makda

DelCupp signed the return receipt for this letter on November 3, 2006. A copy of the

certification and return receipt were attached as Exhibit 9 to plaintiff’s motion.

As the foregoing indicates, plaintiff put the DelCupps on notice two weeks prior to the

depositions (1) that plaintiff needed to obtain deposition testimony in order to respond to the

pending motion for summary judgment, and (2) that plaintiff would file a motion for monetary

sanctions if the DelCupps failed to appear for their depositions. In the face of this, the DelCupps

made a calculated decision not to appear for their depositions.

Rule 37(f) of the Arizona Rules of Civil Procedure provides in pertinent part:

“If a party . . . fails (1) to appear before the officer who is to take the deposition,
after being served with a proper notice . . . the court in which the action is pending on
motion may make such orders in regard to the failure as are just, and among others it may
take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this
rule. In lieu of any order or in addition thereto, the court shall require the party failing
to act or the attorney advising that party or both to pay the reasonable expenses,
including attorney’s fees, caused by the failure, unless the court finds that the failure
was substantially justified or that other circumstances make an award of expenses unjust.
“The failure to act described in this subdivision may not be excused on the ground
that the discovery sought is objectionable unless the party failing to act has applied for a
protective order as provided by Rule 26(c).” (Emphases added.)

Paragraphs (A), (B), and (C) of subdivision (b)(2) of Rule 37, referenced above, provide for

orders allowing the following sanctions:

“(A) An order that the matters regarding which the order was made or any other
designated facts shall be taken to be established for purposes of the action in accordance
with the claim of the party obtaining the order;
“(B) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses, or prohibiting that party from introducing designated
matters in evidence;
“(C) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or proceeding or any
part thereof, or rendering a judgment by default against the disobedient party.”

-39-
 (Emphases added.)

In this case, the requested sanctions include reasonable travel expenses to take the

depositions, reasonable attorney’s fees, and the cost of the conference room rental for the day

during which the depositions were to be taken. These expenses total $1,559.49, and are itemized

as follows:

Date Item Cost

11/15-17/2006 Round-trip airfare for attorney, Phoenix to Denver $ 183.61

11/15-16/2006 Hotel room/meals for attorney at Denver Holiday Inn $ 243.38
11/16/2006 Conference room rental at Denver Holiday Inn $ 100.00
11/15-16/2006 Attorney’s fees for depositions in Denver $1,032.50
Total $1,559.49

An email receipt from United Airlines for the round-trip airfare from Phoenix to Denver was

attached as Exhibit 10 to plaintiff’s motion. A receipt for the hotel room and meal charges was

attached as Exhibit 11 to plaintiff’s motion. Exhibit 12 to plaintiff’s motion contained the

Affidavit of Craig Stephan, which provided evidence for the conference room charges and the

itemized attorney’s fees incurred.

Plaintiff’s motion for sanctions was denied on 5/5/2008, in the trial court’s “Minute Entry

Judgment.” [Docket #173] However, for all of the reasons set forth herein, the motion should

have been granted. Therefore, the Court of Appeals should remand this case with instructions to

grant the motion for sanctions and to recalculate the judgment.

CONCLUSION

For all of the foregoing reasons, the Court of Appeals should remand this case to the trial

court for further proceedings, with the instructions that are more specifically set forth with

respect to each issue addressed above.

-40-
 RESPECTFULLY SUBMITTED this 2nd day of September, 2008.

/s/ Craig Stephan

Craig Stephan
Attorney for Plaintiff/Appellant

CERTIFICATE OF MAILING

Undersigned counsel certifies that he served two copies of the foregoing “Appellant’s
Opening Brief” on the appellees by mailing said copies, postage prepaid, this 2nd day of
September, 2008, to:

Robert Michael DelCupp III

Makda Tewoldemedhin Kahssay DelCupp
P. O. Box 470906
Aurora, CO 80047
[Appellees Pro Per]

/s/ Craig Stephan

Craig Stephan
Attorney for Plaintiff/Appellant

CERTIFICATE OF COMPLIANCE

Undersigned counsel certifies this 2nd day of September, 2008, that the word count and
page limits contained in Appellant’s Opening Brief comply with the requirements of the Arizona
Rules of Civil Appellate Procedure.

/s/ Craig Stephan

Craig Stephan
Attorney for Plaintiff/Appellant

-41-
 APPENDIX 1

Minute Entry Judgment of 5/5/2008

-42-
 Michael K. Jeanes, Clerk of Court
*** Filed ***
05/07/2008 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2006-000439 05/05/2008

CLERK OF THE COURT

JUDGE PENDLETON GAINES A. Beery
Deputy

KERMICK Z DORSEY CRAIG A STEPHAN

v.

ROBERT MICHAEL DELCUPP III, et al. ROBERT MICHAEL DELCUPP III

PO BOX 470906
AURORA CO 80047

MAKDA TEWOLDEMEDHIN
KAHSSAY DELCUPP
PO BOX 470906
AURORA CO 80047

MEMORANDUM, ORDER AND FINAL JUDGMENT

All motions which the parties have requested leave to file are accepted for filing and
disposition. With the exception of Plaintiff’s motion for reconsideration of the ruling on
Plaintiff’s motion for summary judgment, the motions are briefed and at issue.1 Where oral
argument was requested, it would not be helpful, is not necessary (particularly given the
extended nature of the written submissions and the history of this case) and is waived pursuant to
Civil Rule 7.1(c)(2).

_____
1
The Court did not order a response to Plaintiff’s motion for reconsideration.

Docket Code 049 Form V000A Page 1

 SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2006-000439 05/05/2008

The motions will be denied. Since neither party submitted a proposed form of judgment
by April 10, 2008, as permitted by the order of March 5, 2008, the Court will enter final
judgment.

MEMORANDUM

The parties’ briefing raises only a few issues which merit discussion.

New interpretation of cellular telephone records. Plaintiff’s counsel says that, after he
received the Court’s ruling on the cross-motions for summary judgment (order dated March 5,
2008), he and his client “spent considerable time reviewing all the evidence.” This review
included contacting a private investigator in Houston, a cell phone expert at AT&T and a cell
phone expert in Arkansas. Plaintiff and his counsel later learned, according to them, that a
certain code on Ms. DelCupp’s cellular telephone bills established that her cellular telephone
(and, by inference, she) was in Phoenix on the day her sister left Mr. Dorsey.

The Court has carefully reviewed Plaintiff’s submissions on this issue, Defendants’
analysis of same and Plaintiff’s reply. The Court agrees with Defendants that the proffered
evidence is untimely, confusing, inconclusive and inconsistent. It includes multiple hearsay. It
is non-probative and irrelevant.

A party opposing a motion for summary judgment is obligated to come forward with
evidence to oppose the motion in a timely fashion or, if he or she cannot, to request relief so that
such evidence can be obtained. Here, Plaintiff’s new “evidence” (actually a new interpretation
of previous evidence) was not obtained until long after the discovery cutoff of November 30,
2007.

Plaintiff filed this case on January 10, 2006. The first discovery completion deadline was
February 28, 2007. It was later reset, twice, finally to November 30, 2007. On September 10,
2007, the Court granted Plaintiff’s oral Rule 56(f) request and permitted Plaintiff to respond to
Defendants’ pending motion for summary judgment after the completion of all discovery. The
Defendants’ cellular telephone records have been a central target of Plaintiff’s discovery since
the beginning of the case.

Plaintiff has shown no reason why his new “evidence” could not and should not have
been discovered sooner.
Docket Code 049 Form V000A Page 2
 SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2006-000439 05/05/2008

The proffered, new interpretation of the telephone records does not raise a factual issue or
an inference from which a jury could conclude that Defendants “conspired” to defraud Plaintiff
or committed an Arizona RICO predicate act.

Sanctions. Plaintiff requests a ruling on his previously deferred request for sanctions
against Defendants for failure to appear at their initially-scheduled depositions. Defendants, in
turn, request sanctions against Plaintiff under A.R.S. § 12-549 for filing a frivolous lawsuit.

The Court will not and need not recite the extended, tortured procedural history of this
case. The Court was flooded with motions from both sides. Plaintiff, as well as Defendants,
violated rules of procedure, defaulted in discovery obligations and responses and made frequent
and unnecessary applications to the Court for relief against the other side’s alleged defaults. The
case was no model of procedural perfection.

The Court denied Defendants’ request for sanctions under A.R.S. § 12-549 in its order of
March 5, 2008. Defendants’ motion for reconsideration raises no new issues. Plaintiff did
abandon virtually all of his theories of liability in the face of Defendants’ motion for summary
judgment. Plaintiff “over-discovered” the case while neglecting to honor his own disclosure and
discovery obligations. Plaintiff points out that Arizona law precludes an award of fees to non-
lawyers.

Plaintiff’s request for sanctions arises from Defendants’ failure to appear for their
initially-noticed depositions in Denver, Colorado. The matter required Court intervention and
was satisfactorily resolved. Defendants’ legal reasons for not appearing were marginally
persuasive, at best. Plaintiff’s counsel was in Denver for two other depositions, which did occur.
The Court deferred ruling on Plaintiff’s motion for sanctions at the time and advised Plaintiff
that he could renew his request after verdict or judgment. Plaintiff has now done so.

In the totality of the circumstances of this case, and in the exercise of its discretion, the
Court denies both motions for sanctions.

Costs. Plaintiff’s objections to Defendants’ requested costs will be sustained in part, and
Defendants will be allowed to recover their taxable costs in the amount of $281.00 (appearance
fee and subpoenas).

Docket Code 049 Form V000A Page 3

 SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2006-000439 05/05/2008

ORDER

IT IS ORDERED:

1. Plaintiff’s motion for reconsideration of ruling on Defendants’ motion for

summary judgment is denied.

2. Plaintiff’s motion for additional disclosure and discovery is denied.

3. Plaintiff’s request for ruling on pending motion for sanctions is treated as a

renewed request for sanctions pursuant to the Court’s order of July 12, 2007, and is denied.

4. Defendants’ motion for attorneys’ fees and for reconsideration of A.R.S. § 12-349
is denied.

5. Defendants are awarded taxable costs in the amount of $281.00.

JUDGMENT

IT IS ORDERED, ADJUDGED AND DECREED as follows:

1. Plaintiff’s complaint and Defendants’ counterclaims be, and they are hereby,
dismissed on the merits.

2. Defendants will have and recover judgment against Plaintiff in the amount of
$281.00 as and for their taxable costs incurred herein.

3. Directing the clerk to enter this Judgment as a final judgment pursuant to Rule
58(a).

DATED: May 6, 2008

/S/ JUDGE PENDLETON GAINES

PENDLETON GAINES
JUDGE OF THE SUPERIOR COURT

Docket Code 049 Form V000A Page 4

 APPENDIX 2

Minute Entry Ruling of 3/5/2008

-43-
 Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
03/07/2008 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2006-000439 03/05/2008

CLERK OF THE COURT

JUDGE PENDLETON GAINES A. Beery
Deputy

KERMICK Z DORSEY CRAIG A STEPHAN

v.

ROBERT MICHAEL DELCUPP III, et al. ROBERT MICHAEL DELCUPP III

PO BOX 470906
AURORA CO 80047

MAKDA TEWOLDEMEDHIN
KAHSSAY DELCUPP
PO BOX 470906
AURORA CO 80047

UNDER ADVISEMENT RULING

Defendants’ motion for summary judgment on Plaintiff’s complaint will be granted.

Plaintiff’s alternative motion for leave to amend complaint will be denied. Plaintiff’s motion for
summary judgment on Defendants’ counterclaims will be granted.

Plaintiff’s Complaint

In his response, Plaintiff has abandoned all claims except those asserted in Count One
(Arizona RICO) and Count Four (described by Plaintiff as “essentially a claim for Conspiracy to
Defraud”).

Under the Court’s scheduling orders, all disclosures and discovery are concluded. At
Plaintiff’s request, the time to respond to Defendants’ motion for summary judgment was
extended until after the discovery completion date.
Docket Code 019 Form V000A Page 1
 SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2006-000439 03/05/2008

Plaintiff’s counsel describes Plaintiff’s case as consisting of circumstantial evidence. It

does not rise to that level. It consists of speculation and innuendo.

The DelCupps have consistently maintained and stated under oath that they never met
Plaintiff, have never been to Arizona, had nothing to do with Plaintiff’s marriage to Mrs.
DelCupp’s sister, Mihret, etc. Plaintiff has done nothing to challenge these facts. As noted in
the Court’s order of May 7, 2007, the most that Plaintiff can show is that, on August 7, 2003, the
day that Plaintiff’s wife allegedly abandoned him, one of the DelCupp Defendants may have had
four telephone calls on a cellular telephone to which Plaintiff’s wife allegedly had access at a
time when she, according to Plaintiff, was still in Arizona. Plaintiff also offers evidence that
Mrs. DelCupp may have spoken to her sister a number of times from August 7 through August
27, 2007, through a Getachew Yeneneh in Aurora, Colorado, although this evidence is far from
clear.

Noticeably absent and missing from Plaintiff’s colorful tales of Mrs. DelCupp’s family in
Ethiopia and their efforts to bring various sisters to the West is evidence of any kind that either
of the DelCupps was involved in activity or actions directed toward Plaintiff. On this record,
they were not.

There is no submissible jury issue. There are no facts or inferences from facts which
support Plaintiff’s theories. There is no evidence of “theft” (i.e., receipt of property or services
by the DelCupps) or participation in “marriage fraud,” both of which Plaintiff alleges as RICO
predicate acts. There is no evidence of a “pattern of racketeering” or any threat of continued
criminal activity. There is nothing to suggest the DelCupps were involved in a conspiracy to
defraud.

Plaintiff’s alternative motion to amend his complaint “to plead [his] causes of action with
greater specificity” will be denied as moot and futile. It is moot because Plaintiff has addressed
these issues, as have Defendants, in the current briefing. It is futile because the issue now is not
pleading, but whether there are facts sufficient to withstand Defendants’ motion. There are none.

Defendants’ Counterclaims

The Court agrees with Plaintiff that the Defendants’ counterclaims are not meritorious
and should be dismissed. Whether Plaintiff’s lawsuit qualifies as “malicious prosecution” must
be determined in a separate action. Plaintiff’s statements made in litigation are per se privileged.
Plaintiff’s actions do not constitute the sort of “extreme and outrageous conduct” necessary to
support imposition of tort liability. The request for sanctions under A.R.S. § 12-349 is not
supported in this record.
Docket Code 019 Form V000A Page 2
 SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2006-000439 03/05/2008

ORDER

IT IS ORDERED:

1. Granting Defendants’ motion for summary judgment.

2. Denying Plaintiff’s alternative motion for leave to amend complaint.

3. Granting Plaintiff’s cross-motion for summary judgment on counterclaims.

4. Either party wishing to submit a form of judgment to be entered with the Court
consistent with this order may submit such not later than April 10, 2008. Failing submission of
an appropriate form of judgment, the Court will, on its own motion, enter a judgment of
dismissal of all claims and counterclaims asserted in this case with prejudice.

5. For the purposes of an award of taxable costs, in the totality of the circumstances,
the Court finds the Defendants to be the prevailing parties.

Docket Code 019 Form V000A Page 3

 APPENDIX 3

Minute Entry of 4/2/2007

-44-
 Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
04/04/2007 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2006-000439 04/02/2007

CLERK OF THE COURT

JUDGE PENDLETON GAINES A. Beery
Deputy

KERMICK Z DORSEY CRAIG A STEPHAN

v.

ROBERT MICHAEL DELCUPP III, et al. ROBERT MICHAEL DELCUPP III

1846 SO PAGOSA WAY
AURORA CO 80017

MAKDA TEWOLDEMEDHIN
KAHSSAY DELCUPP
1846 S PAGOSA WAY
AURORA CO 80017

MINUTE ENTRY

Plaintiff’s Request for Clarification of Minute Entry Order Filed 3/26/2007 is denied.
Only documents which say, mention or refer to Mihret Kahssay need be produced.

Docket Code 019 Form V000A Page 1

 APPENDIX 4

Cingular Wireless Cell Phone Records

-45-
 APPENDIX 5

AT&T Compliance Department Fax

-46-
 APPENDIX 6

DVD With Clips of Makda DelCupp’s Deposition Taken 8/2/2007

-47-
 NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24

IN THE COURT OF APPEALS

STATE OF ARIZONA
DIVISION ONE
DIVISION ONE FILED: 02/11/2010
PHILIP G. URRY,CLERK
BY: GH
KERMICK Z. DORSEY, ) 1 CA-CV 08-0472
)
Plaintiff/Appellant, ) DEPARTMENT D
)
v. ) MEMORANDUM DECISION
)
ROBERT MICHAEL DELCUPP, III, and )
MAKDA TEWOLDEMEDHIN KAHSSAY ) Not for Publication –
DELCUPP, husband and wife, ) (Rule 28, Arizona Rules
) of Civil Appellate Procedure)
Defendants/Appellees. ) FILED 02-11-2010
)

Appeal from the Superior Court in Maricopa County

Cause No. CV2006-000439

The Honorable F. Pendleton Gaines, Judge

AFFIRMED

Craig A. Stephan Scottsdale

Attorney for Plaintiff/Appellant

Robert and Makda DelCupp Aurora, CO

In Propia Persona

G E M M I L L, Judge

¶1 Kermick Z. Dorsey (“Dorsey”) appeals from the trial

court’s grant of summary judgment in favor of Robert DelCupp

(“Robert”) and Makda DelCupp (“Makda”) (collectively,

“DelCupps”). Dorsey argues the trial court erred (1) in denying

his motion for additional disclosure and discovery, (2) in

granting the DelCupps’ motion for summary judgment, (3) in

denying his motion for leave to amend the complaint, (4) in its

ruling on his request for clarification, and (5) in denying his

motion for sanctions. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Dorsey met Mihret Kahssay (“Mihret”) via an online

agency in 2002. Dorsey traveled from the United States to

Ethiopia, where Mihret lived, and married her on November 17,

2002. After returning alone to the United States, Dorsey

obtained a K-3 visa for Mihret. At all relevant times, Mihret’s

sister, Makda, has resided in Colorado with her husband, Robert.

Mihret came to the United States on July 19, 2003. On August 7,

2003, Mihret left Dorsey, and Dorsey has not seen Mihret since.

Their marriage was annulled on May 18, 2005.

¶3 On January 10, 2006, Dorsey filed a complaint against

the DelCupps and some of Mihret’s other relatives setting forth

eight causes of action.1 Dorsey alleged the defendants

1
The eight causes of action were racketeering, slander,
intentional infliction of emotional distress, aiding and
abetting tortious conduct, willful or wanton conduct (aggravated
negligence), negligence per se, negligence, and negligent
infliction of emotional distress.

2
fraudulently induced Mihret to marry Dorsey2 and then facilitated

Mihret’s abandonment of him. The DelCupps filed an answer

denying any involvement in facilitating Mihret’s abandonment or

disappearance and asserted counterclaims for the filing of a

malicious lawsuit, defamation and emotional distress. They

subsequently filed a motion to dismiss alleging that the court

lacked personal jurisdiction over them and that any fraud claims

were barred by the statute of limitations. The court denied the

motion. Thereafter, the parties engaged in discovery.

¶4 On June 29, 2006, the court dismissed the action

against all defendants who had not been served, leaving only the

DelCupps in the case. The DelCupps filed a motion for summary

judgment. The court limited the DelCupps’ motion to the issue

of whether there was personal jurisdiction over them.

¶5 Dorsey scheduled depositions of the DelCupps in

Colorado and the DelCupps failed to appear. Dorsey moved for

sanctions, on which the court deferred ruling.

¶6 On January 10, 2007, the court issued an order

allowing Dorsey to subpoena the DelCupps’ telephone records from

Cingular Wireless for the period August 1, 2003 through

2
In his “Response to Motion to Quash,” Dorsey alleges
that the gist of his action is that family members “colluded
against Plaintiff to induce him to marry Mihret . . . in order
to use Plaintiff to facilitate getting Mihret out of Ethiopia to
the west.”

3
September 30, 2003. Additionally, Dorsey sought discovery from

the DelCupps of “financial records evidencing payment to or on

behalf of Mihret Kahssay from February 1, 2002, to September 30,

2003.” The court ordered that such financial records “which say

or specifically relate or refer to Mihret Kahssay on their face”

be produced to the court in-camera. Dorsey filed a motion for

clarification, which was denied.

¶7 On May 7, 2007, the court issued a ruling finding

there was personal jurisdiction over the DelCupps because they

filed a permissive counterclaim. The court suspended the

remainder of the DelCupps’ motion for summary judgment.

¶8 On June 15, 2007, the court ordered all discovery to

be concluded by November 15. On August 27, the DelCupps

requested leave of court to file a motion for summary judgment,

which the court subsequently accepted for filing on September

10. The court extended the discovery deadline to November 30,

2007, granted Dorsey’s request for Arizona Rules of Civil

Procedure3 (“Ariz. R. Civ. P.”) 56(f) relief, and stated it would

defer ruling on the motion for summary judgment until discovery

was completed.

¶9 On December 10, Dorsey filed a response to the

DelCupps’ motion for summary judgment, an alternative motion for

3
Unless otherwise noted, all subsequent references to
Rules will be to the Arizona Rules of Civil Procedure.

4
leave to amend the complaint, and a cross-motion for summary

judgment on the DelCupps’ counterclaims. Dorsey stated he

intended to pursue only his racketeering claim4 and his aiding

and abetting tortious conduct claim “which is essentially a

claim for Conspiracy to Defraud,” and requested leave to amend

the complaint to plead such causes of action with greater

specificity.

¶10 On March 5, 2008, the court issued a ruling granting

the DelCupps’ motion for summary judgment, denying Dorsey’s

motion for leave to amend the complaint, and granting Dorsey’s

motion for summary judgment on the DelCupps’ counterclaims. On

April 12, Dorsey moved for additional disclosure and discovery

based on “newly discovered evidence” regarding certain telephone

records. Dorsey also moved for reconsideration of the summary

judgment ruling and requested a ruling on his motion for

sanctions that the court had previously deferred. The court

issued final judgment on May 5, 2008, denying all of Dorsey’s

motions. Dorsey timely appealed. We have jurisdiction pursuant

to Arizona Revised Statutes (“A.R.S.”) section 12-2101(B)

(2003).

4
Dorsey abandoned his racketeering claim in his motion
for reconsideration, which was confirmed in his docketing
statement. Thus, the racketeering claim is not at issue on
appeal.

5
 DISCUSSION

I. Motion for Additional Discovery

¶11 Dorsey argues the trial court erred by denying his

motion for additional disclosure and discovery. We review a

trial court’s ruling on discovery matters for an abuse of

discretion. Lewis v. Arizona Dep’t of Economic Security, 186

Ariz. 610, 616, 925 P.2d 751, 757 (App. 1996). A court abuses

its discretion when the reasons given for the court’s

conclusions are “clearly untenable, legally incorrect, or amount

to a denial of justice.” State v. Chapple, 135 Ariz. 281, 297

n.18, 660 P.2d 1208, 1224 n.18 (1983).

¶12 The “newly discovered evidence” Dorsey offers is an

interpretation of the codes on Makda’s cellular telephone

records. The evidence purports to show that Makda’s cellular

telephone was in Phoenix on August 7, 2003, the day Mihret left

Dorsey. The trial court denied Dorsey’s motion for additional

discovery explaining, in part:

Plaintiff’s counsel says that, after he

received the Court’s ruling on the cross-
motions for summary judgment . . . he and
his client “spent considerable time
reviewing all the evidence.” This review
included contacting a private investigator
in Houston, a cell phone expert at AT&T and
a cell phone expert in Arkansas. Plaintiff
and his counsel later learned, according to
them, that a certain code on Ms. DelCupp’s
cellular telephone bills established that
her cellular telephone (and, by inference,
she) was in Phoenix on the day her sister

6
 left Mr. Dorsey.

. . .[T]he proffered evidence is untimely,

confusing, inconclusive and inconsistent.
It includes multiple hearsay. It is non-
probative and irrelevant.

. . . Here, Plaintiff’s new “evidence”

(actually a new interpretation of previous
evidence) was not obtained until long after
the discovery cutoff of November 30, 2007.

. . .

Plaintiff has shown no reason why his new

“evidence” could not and should not have
been discovered sooner.

We perceive no abuse of discretion in the trial court’s ruling.

¶13 The telephone records for Makda’s cellular telephone

were first produced in January 2007. Dorsey’s counsel contacted

the Cingular Wireless compliance department about the records

and was apparently told that information about “RSYS” numbers

was not available and that “as a result” counsel and Dorsey

“turned their attention to analyzing factual data contained in

the records.” Dorsey further contends that if he had not been

misled into believing information about RSYS numbers was not

available, he would have pursued the information more

vigorously. However, the DelCupps were not the ones who (even

arguably) misled Dorsey. Further, it does not appear that

Dorsey retained his cellular telephone experts and private

investigator until after the court granted the DelCupps’ motion

for summary judgment. Dorsey waited well over a year after

7
receiving the phone records to contact these experts to further

investigate the RSYS codes. When a motion for summary judgment

is filed, that is the time for an opposing party to come forth

with specific facts to controvert the motion. Patton v.

Paradise Hills Shopping Center, Inc., 4 Ariz. App. 11, 14, 417

P.2d 382, 385 (App. 1966); see also Lujan v. MacMurtrie, 94

Ariz. 273, 278, 383 P.2d 187, 190 (1963) (“A party cannot sit

idly by on the presentation of a motion for summary judgment

which may well resolve the entire case and fail to urge his

defense.”). In fact, the court specifically extended the time

to reply to the DelCupps’ motion until discovery was completed.

¶14 Dorsey argues the new evidence establishes the

DelCupps had contacts with Arizona on August 7, 2003, and it

supports “an undeniable inference” that the DelCupps assisted

Mihret in abandoning Dorsey. A conspiracy is an agreement to

accomplish an unlawful purpose that causes damages. Baker v.

Stewart Title & Trust of Phoenix, Inc., 197 Ariz. 535, 542, ¶

30, 5 P.3d 249, 256 (App. 2000). See infra ¶ 19. Even if the

DelCupps were in Arizona on August 7 and had contact with Mihret

that day, that evidence does not establish the DelCupps were

part of a conspiracy to defraud Dorsey. A trip to Phoenix does

not show there was an agreement to defraud.

¶15 Finally, Dorsey argues that the DelCupps never

explained what happened on August 7 and that “the trial court

8
placed the entire burden in this matter on plaintiff ... without

regard to the fact that” the DelCupps obstructed discovery. It

is Dorsey’s burden to prove the DelCupps were part of a

conspiracy to defraud him. See Wells Fargo Bank v. Arizona

Laborers, Teamsters and Cement Masons Local No. 395 Pension

Trust Fund, 201 Ariz. 474, 499, ¶ 100, 38 P.3d 12, 37 (2002)

(noting the burden of proof for civil conspiracy is one of clear

and convincing evidence). Dorsey has not submitted any

admissible evidence to show the DelCupps, or anyone on their

behalf, took any action to defraud him.

¶16 The trial court did not abuse its discretion in

denying the motion.

II. Summary Judgment

¶17 Dorsey argues the trial court erred in granting the

DelCupps’ motion for summary judgment and in denying his motion

for reconsideration.5 A court properly grants summary judgment

when there are no genuine issues of material fact and the moving

party is entitled to judgment as a matter of law. Ariz. R. Civ.

P. 56(c). On appeal, we determine de novo whether genuine

issues of material fact exist and whether the superior court

erred in applying the law. Prince v. City of Apache Junction,

185 Ariz. 43, 45, 912 P.2d 47, 49 (App. 1996). Additionally, we

5
Dorsey makes the same arguments on appeal as he did in
his motion for reconsideration.

9
view the facts in the light most favorable to the party against

whom summary judgment was entered. Orme School v. Reeves, 166

Ariz. 301, 309-10, 802 P.2d 1000, 1008-09 (1990). We will

affirm a grant of summary judgment if the trial court was

correct for any reason. City of Tempe v. Outdoor Sys., Inc.,

201 Ariz. 106, 111, ¶ 14, 32 P.3d 31, 36 (App. 2001). We review

the denial of a motion for reconsideration for an abuse of

discretion. Tilley v. Delci, 220 Ariz. 233, 238, ¶ 16, 204 P.3d

1082, 1087 (App. 2009).

¶18 In granting the DelCupps’ motion for summary judgment,

the trial court ruled:

Plaintiff’s counsel describes Plaintiff’s

case as consisting of circumstantial
evidence. It does not rise to that level.
It consists of speculation and innuendo.

The DelCupps have consistently maintained

and stated under oath that they never met
Plaintiff, have never been to Arizona, had
nothing to do with Plaintiff’s marriage to .
. . Mihret . . . . Plaintiff has done
nothing to challenge these facts. As noted
in the Court’s order of May 7, 2007, the
most that Plaintiff can show is that, on
August 7, 2003, the day that Plaintiff’s
wife allegedly abandoned him, one of the
DelCupp Defendants may have had four
telephone calls on a cellular telephone to
which Plaintiff’s wife allegedly had access
at a time when she, according to Plaintiff,
was still in Arizona. Plaintiff also offers
evidence that Mrs. DelCupp may have spoken
to her sister a number of times from August
7 through August 27, 2007, through a
Getachew Yeneneh in Aurora, Colorado,
although this evidence is far from clear.

10
 Noticeably absent and missing from
Plaintiff’s colorful tales of Mrs. DelCupp’s
family in Ethiopia and their efforts to
bring various sisters to the West is
evidence of any kind that either of the
DelCupps was involved in activity or actions
directed toward Plaintiff. On this record,
they were not.

There is no submissible jury issue. . . .

There is nothing to suggest the DelCupps
were involved in a conspiracy to defraud.[6]

¶19 “For a civil conspiracy to occur two or more people

must agree to accomplish an unlawful purpose or to accomplish a

lawful object by unlawful means, causing damages.” Baker, 197

Ariz. at 542, ¶ 30, 5 P.3d at 256 (citations omitted). To incur

liability for civil conspiracy there must be an agreement plus a

wrongful act. Id. (citations omitted). Essentially, a civil

conspiracy requires the conspirators to agree to commit an

underlying tort. Id. at ¶ 42; see also Wells Fargo Bank, 201

Ariz. at 498, ¶ 99, 38 P.3d at 36. Here, the underlying tort is

fraud -- entering into a sham marriage unbeknownst to Dorsey.

6
The DelCupps argue that conspiracy to defraud was
never a cause of action in the case. Although the conspiracy to
defraud claim was not specifically pleaded, it was addressed by
the trial court and became the controlling issue in the case.
See MacRae v. Betts, 40 Ariz. 454, 458-59, 14 P.2d 253, 254-
55 (1932) (explaining that although fraud was not specifically
pleaded, the facts showing fraud were elicited and fraud became
the controlling issue in the case); Pruitt v. Pavelin, 141 Ariz.
195, 205-06, 685 P.2d 1347, 1357-58 (App. 1984) (noting the
purpose of Rule 9(b), requiring fraud to be pleaded with
particularity, is to eliminate surprise; and where parties are
not prejudiced, insufficiency of pleadings will not require
reversal).

11
“A conspiracy may be established by circumstantial evidence

through the nature of the acts, the relationship of the parties,

the interests of the conspirators, or other circumstances.”

Dawson v. Withycombe, 216 Ariz. 84, 103, ¶ 53, 163 P.3d 1034,

1053 (App. 2007).

¶20 Dorsey first argues that the trial court’s evaluation

“begins backwards” by assuming the DelCupps’ assertions were

true and by making initial credibility determinations. Dorsey

challenges the finding by the trial court that the DelCupps

consistently maintained that they never met Dorsey, have never

been to Arizona, and had nothing to do with Dorsey’s marriage.

However, Dorsey then states it is irrelevant that the DelCupps

never met him or whether the DelCupps have ever traveled to

Arizona.7

¶21 The issue on appeal is whether there is any genuine

issue of material fact regarding Dorsey’s claim for conspiracy

to defraud. “A ‘genuine’ issue is one that a reasonable trier

7
Dorsey also challenges two “facts” cited by the court
in granting the DelCupps’ motion for summary judgment. However,
for purposes of this review, we accept all of Dorsey’s facts as
true. Thus, we accept that Mihret abandoned Dorsey on August 7,
2003; Makda used her cellular telephone to call Mihret four
times on August 7; Mihret had possession of Dorsey’s Cricket
telephone; Makda called a third party (Getachew Yeneneh)
residing in Aurora, Colorado forty times between August 9 and
August 26, 2003; and Mihret was in Aurora with Yeneneh during
that time. Because neither of the two facts Dorsey challenges
affect the grant of summary judgment, we decline to address this
argument.

12
of fact could decide in favor of the party adverse to summary

judgment on the available evidentiary record.” Martin v.

Schroeder, 209 Ariz. 531, 534, ¶ 12, 105 P.3d 577, 580 (App.

2005). We conclude there are no genuine issues of material fact

based on this record.

¶22 First, there is no evidence of an agreement between

the Delcupps and Mihret to defraud Dorsey. There is nothing

connecting the DelCupps to Dorsey’s actions of meeting Mihret

through an online agency; choosing to fly to Ethiopia in 2002;

and choosing to marry Mihret while in Ethiopia. Further, the

allegations regarding Makda’s alleged involvement in Mihret

“agreeing” to marry Dorsey for the sole purpose of gaining entry

into the United States are speculative at best. The first

allegation is that Makda married a United States citizen in 1999

and therefore “understands the process involved in getting into

the United States as the spouse of a . . . citizen.” The fact

that Makda immigrated to the United States after marrying a

citizen does not prove the alleged conspiracy in this case. The

second allegation is that after Mihret received telephone calls

from Makda and two other sisters in November 2002, when Dorsey

was in Ethiopia, Mihret appeared “very eager to get married.”

Notably, there is no evidence regarding the conversation between

Makda and Mihret, and no evidence of any improper agreement.

Dorsey merely speculates that Makda must have said something to

13
Mihret to peak Mihret’s interest in marrying Dorsey. This

theory, however, is not supported by any evidence, only

speculation. The last allegation is that Dorsey had a

conversation with Makda in 2003 and Makda told him that she was

planning on having another sister “marry a gay guy . . . from

the United States” so that her sister could get into the United

States and get alien spousal benefits and then obtain a divorce.

Dorsey has submitted no proof that this actually happened.

Further, even if true, this allegation does not connect Makda’s

actions to Mihret or Dorsey. None of these allegations show any

agreement between Makda and Mihret to defraud Dorsey.

¶23 The remainder of Dorsey’s evidence goes to the

DelCupps’ apparent assistance to Mihret in leaving Dorsey.

“Assistance to the tortfeasor by itself, however, which courts

often use to infer a conspiratorial agreement, may be

insufficient to prove an actual agreement to participate in the

conspiracy.” Dawson, 216 Ariz. at 103, ¶ 54, 163 P.3d at 1053.

“This is because there is a qualitative difference between

showing an agreement to participate in a tort (conspiracy) and a

knowing action which might substantially aid the tortfeasor to

commit a tort.” Id. Here, even if the DelCupps provided

assistance to Mihret in leaving Dorsey, that does not show the

DelCupps were part of Mihret’s supposed “plan” to enter into a

sham marriage. Leaving a spouse, by itself, is not a tort. If

14
the DelCupps assisted a family member in leaving her spouse, we

cannot conclude that such assistance raises a genuine issue of

material fact regarding the existence of a conspiracy to defraud

Dorsey.

¶24 Dorsey’s evidence shows the DelCupps purchased Makda’s

cellular telephone on August 5, 2003. Dorsey alleges the

DelCupps purchased the phone specifically for use on the August

7 Phoenix trip8 and to communicate with Mihret afterwards. He

further maintains the cellular telephone’s presence in Phoenix

on August 7 shows evidence of collusion between the DelCupps and

Mihret. Dorsey argues a reasonable person could infer that the

DelCupps knew in advance that Mihret would abandon him and that

they were conspiring with Mihret. We disagree. This evidence,

even if it is appropriate to consider it, is simply too

speculative.

¶25 Similarly, the fact that Makda’s and Mihret’s mother

was in Colorado with Makda when Mihret abandoned Dorsey is

irrelevant to the conspiracy issue. We fail to see any

connection between Mihret’s mother staying with Makda and Mihret

leaving her husband.

¶26 Moreover, Dorsey’s contention that Makda lied

throughout the litigation does not mean summary judgment was

8
This Phoenix trip is based on the “newly discovered
evidence.” See supra ¶¶ 13-14.

15
improperly granted. Accepting all of Dorsey’s assertions as

true, if Makda lied about being in contact with her sister the

day Mihret left Dorsey, there remains no evidence that Makda

agreed with Mihret to commit a tort.

¶27 Next, Dorsey argues the evidence shows Mihret traveled

to Colorado after she left Dorsey. Wherever Mihret traveled

after leaving Dorsey is irrelevant to establish an agreement for

purposes of a conspiracy to defraud Dorsey. The existence of an

agreement to defraud would have to have been in place prior to

the marriage. Even if Mihret joined her sister in Colorado

after leaving her husband, that does not create any genuine

issue of fact regarding a conspiracy.

¶28 Finally, Dorsey argues that the DelCupps provided

assistance to Mihret because Mihret had no financial means of

her own to travel. There is no evidence the DelCupps provided

financial assistance to Mihret, but even if the DelCupps did

assist Mihret, financial assistance alone does not establish a

conspiracy. The fact that Makda and her husband might help

Mihret during a time of need does not give rise to an inference

of a tortious conspiracy.

¶29 The evidence, even when viewed in the light most

favorable to Dorsey, does not create a genuine issue of material

fact that the DelCupps agreed to participate in a conspiracy to

defraud Dorsey. The record shows that Dorsey traveled to

16
Ethiopia in 2002 after being introduced to Mihret online,

married Mihret, and obtained the relevant documentation to have

Mihret come to the United States. No evidence in the record

shows the DelCupps had anything to do with Dorsey’s marriage.

The fact that the DelCupps may have known that Mihret was

leaving Dorsey and provided assistance to her is insufficient to

permit a finding by clear and convincing evidence of an

agreement between the DelCupps and Mihret for Mihret to enter

into a sham marriage and then abandon it. See Dawson, 216 Ariz.

at 105, ¶ 59, 163 P.3d at 1055; and Wells Fargo Bank, 201 Ariz.

at 499, ¶ 101, 38 P.3d at 37 (noting the difference between

proving an agreement to participate in a tort and proving a

knowing action that aids another to commit a tort). The trial

court properly granted summary judgment to the DelCupps and did

not abuse its discretion in denying Dorsey’s motion for

reconsideration.

III. Leave to Amend Complaint

¶30 Dorsey argues the trial court erred by denying his

motion for leave to amend the complaint. Leave to amend should

be granted liberally. Owen v. Superior Court, 133 Ariz. 75, 79,

649 P.2d 278, 282 (1982). “Amendments will be permitted unless

the court finds undue delay in the request, bad faith, undue

prejudice, or futility in the amendment.” MacCollum v.

Perkinson, 185 Ariz. 179, 185, 913 P.2d 1097, 1103 (App. 1996).

17
A motion for leave to amend is left to the trial court's sound

discretion, and we will not disturb its ruling absent an abuse

of discretion. Romo v. Reyes, 26 Ariz. App. 374, 375-76, 548

P.2d 1186, 1187-88 (1976).

¶31 Here, the trial court ruled:

Plaintiff’s alternative motion to amend his

complaint “to plead [his] causes of action
with greater specificity” will be denied as
moot and futile. It is moot because
Plaintiff has addressed these issues, as
have Defendants, in the current briefing.
It is futile because the issue now is not
pleading, but whether there are facts
sufficient to withstand Defendants’ motion.
There are none.

We discern no abuse of discretion in this ruling.

¶32 When issues not raised in pleadings are tried by

express or implied consent, they shall be treated as if they had

been raised in the pleadings. Ariz. R. Civ. P. 15(b). Here,

the court and both sides treated the complaint as including a

claim for conspiracy to defraud. For instance, in the DelCupps’

motion to dismiss, they alleged that Dorsey’s action was “based

on the false claim of a vast conspiracy to defraud him.” Later,

the court noted that Dorsey’s theory was that the DelCupps

allegedly committed acts in Arizona, “in furtherance of the

alleged ‘conspiracy’ to deprive Plaintiff of his wife, or,

perhaps, in furtherance of the alleged conspiracy to entice

Plaintiff to fraudulently marry [Mihret] in Ethiopia to allow

18
her to [immigrate] to the United States.” In its ruling on

personal jurisdiction, the court explained Dorsey’s allegations

as a conspiracy among all the defendants inducing him to marry

Mihret to bring her to the United States and then causing her to

abandon Dorsey. In his eighth supplemental disclosure statement

filed four months later, Dorsey alleged a civil conspiracy to

defraud in conjunction with his aiding and abetting tortious

conduct cause of action. The motion for leave to amend was

filed over two months later. Thus, the court was correct that

the issue was futile in that the pleading was not the issue, but

only whether the facts supported the claim.

¶33 Because an amendment would not have changed the

outcome of the action, we conclude the trial court did not abuse

its discretion in denying the motion.

IV. Request for Clarification

¶34 Dorsey argues that the court abused its discretion in

denying his request for clarification regarding the DelCupps’

financial records. In December 2006, Dorsey served a request

for production of documents specifically requesting financial

records evidencing payments to or on behalf of Mihret from

February 1, 2002 through September 30, 2003. The DelCupps

objected. The court ruled that the request was broad, poorly

phrased, and was potentially intrusive of the DelCupps’ privacy.

Accordingly, the court ordered an in-camera inspection of any

19
financial documents “which say or specifically relate or refer

to Mihret Kahssay on their face.” Dorsey filed a request for

clarification asking whether the documents must specifically say

“Mihret Kahssay” if they in some way relate to Mihret and

whether documents specifically relate to Mihret if they show

payments for or on behalf of Mihret, such as the purchase of

airline or bus tickets. The court denied the motion,

specifically stating “only documents which say, mention or refer

to Mihret Kahssay need [to] be produced.” No documents were

produced as the DelCupps asserted they did not have any such

documents.

¶35 Dorsey argues that this ruling placed an unreasonable

restriction on discovery and deprived him of an opportunity to

obtain relevant evidence because relevant financial records

would not necessarily have the name Mihret Kahssay on them. As

the DelCupps note, Dorsey was not so restricted in his discovery

because he was given complete access to their telephone records

and internet accounts, he deposed the DelCupps twice and

submitted interrogatories.

¶36 The court did not abuse its discretion in limiting the

discovery of financial documents and denying Dorsey’s motion for

clarification.

V. Motion for Sanctions

¶37 Dorsey argues the trial court erred in denying his

20
motion for sanctions for the DelCupps’ failure to appear at

their depositions. We review the denial of a motion for

sanctions for an abuse of discretion, giving “considerable

deference to the trial court's perspective and judgment.” State

v. Meza, 203 Ariz. 50, 55, ¶ 19, 50 P.3d 407, 412 (App. 2002).

¶38 On October 23, 2006, Dorsey noticed the depositions of

the DelCupps for November 16 in Colorado. The DelCupps failed

to appear for their depositions. However, Robert appeared the

following day to defend Dorsey’s deposition of a private

investigator. Dorsey moved for $1,559.49 in sanctions against

the DelCupps. The DelCupps responded that the issue of personal

jurisdiction had not been decided and that Dorsey’s notice of

deposition was “defective and invalid.” The court eventually

issued a ruling as follows:

The Court will not and need not recite the

extended, tortured procedural history of
this case. The Court was flooded with
motions from both sides. Plaintiff, as well
as Defendants, violated rules of procedure,
defaulted in discovery obligations and
responses and made frequent and unnecessary
applications to the Court for relief against
the other side’s alleged defaults. The case
was no model of procedural perfection.

. . . .

Plaintiff’s request for sanctions arises

from Defendants’ failure to appear for their

21
 initially-noticed depositions in Denver,
Colorado. The matter required Court
intervention and was satisfactorily
resolved. Defendants’ legal reasons for not
appearing were marginally persuasive, at
best. Plaintiff’s counsel was in Denver for
two other depositions, which did occur. The
Court deferred ruling on Plaintiff’s motion
for sanctions at the time and advised
Plaintiff that he could renew his request
after verdict or judgment. Plaintiff has
now done so.

In the totality of circumstances of this

case, and in the exercise of its discretion,
the Court denies both motions for
sanctions.[9]

¶39 The trial court enjoys considerable discretion in

rulings such as this one, and we find no abuse of discretion.

¶40 Additionally, if a party fails to appear for a

deposition, the court has discretion to make orders in regard to

the failure as are just. Ariz. R. Civ. P. 37(f). Although the

court did not find the DelCupps’ failure to appear to be

substantially justified, it considered other circumstances,

including the occurrence of another deposition in Colorado that

Dorsey took during the same visit, the proceedings throughout

the case regarding all of the discovery disputes, and the

DelCupps’ own motion for sanctions. The court impliedly found

an award of expenses unjust. The court did not abuse its

discretion.

9
The DelCupps requested sanctions against Dorsey under
A.R.S. § 12-349 for filing a frivolous lawsuit, for which
sanctions were denied.

22
 CONCLUSION

¶41 For the foregoing reasons, we affirm the judgment of

the trial court in favor of the DelCupps on Dorsey’s claims

against them.

___/s/____________________________
JOHN C. GEMMILL, Judge

CONCURRING:

____/s/_____________________________
PETER B. SWANN, Presiding Judge

____/s/_____________________________
DIANE M. JOHNSEN, Judge

23
January 18, 2011

RE: KERMICK DORSEY v ROBERT DELCUPP et ux

Arizona Supreme Court No. CV-10-0254-PR
Court of Appeals Division One No. 1 CA-CV 08-0472
Maricopa County Superior Court No. CV2006-000439

GREETINGS:

The following action was taken by the Supreme Court of the State of
Arizona on January 18, 2011, in regard to the above-referenced cause:

ORDERED: Petition for Review = DENIED.

A panel composed of Chief Justice Berch, Vice Chief Justice Hurwitz,

and Justice Bales participated in the determination of this matter.

Record returned to the Court of Appeals, Division One, Phoenix, this

18th day of January, 2011.

Rachelle M. Resnick, Clerk

TO:
Robert Michael Delcupp III
Kermick Z Dorsey
Ruth Willingham
adc!