Free Motion to Withdraw - District Court of Arizona - Arizona

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John A. Weil, Bar No. 005621 Lori A. Butler, Bar No. 016139 WEIL & WEIL , PLLC 1600 S. Fourth Avenue, Suite C Yuma, Arizona 85366-1977 Tel: (928) 783-2161 Fax: (928) 783-6082 Attorney for Curtis/Perricone

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case No. CV 03 2006 PHX SRB MOTION FOR WITHDRAWAL OF REMAINDER OF DEPOSIT BY DEFENDANTS CURTIS/PERRICONE

UNITED STATES OF AMERICA, Plaintiff, v. 192.019 Acres of Land, more or less, located in Yuma County, State of Arizona; Glen G. Curtis, Trustee of Curtis Family Trust; Sam Perricone, Trustee of Amended and Restated Declaration of Revocable Trust of Sam Perricone and Mary Louise Perricone; Earl O. Zion and Esther E. Zion; Yuma County Tax Assessor, Yuma Hospital District No. 1; Yuma County Citrus Pest Control District; Yuma County Pest Abatement District; Yuma County Flood Control District; Farm Credit Services Southwest; Intangible property rights, Yuma Mesa Irrigation and Drainage District; and Unknown Owners, Defendants.

Defendants, Glen G. Curtis, Trustee of the Curtis Family Trust Dated July 25, 1986 and Sam Perricone, Trustee of the Amended and Restated Declaration of Revocable Trust of Sam Perricone and Mary Louise Perricone Dated May 22, 1992 (collectively "Curtis/Perricone"), Defendants in the above-entitled condemnation action, move the court for an order pursuant to Rule 71(A)(c)(2) and 71(A)(j) of the Federal Rules of Civil Procedure permitting their withdrawal of the remaining deposit in the sum of $179,439.55, deposited in the Registry of the Court.

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In support of the Motion, Defendants Curtis/Perricone allege: 1. On October 16, 2003, the United States of America filed a Complaint in

Condemnation and a Declaration of Taking for the taking of condemnation for the property described in the Complaint. Simultaneously therewith, the United States of America deposited estimated just compensation in the amount of $2,332,982.90. 2. Defendants Curtis/Perricone sought withdrawal of the entire deposit of Plaintiff responded that distribution of the full deposit to Defendants

$2,332,982.90.

Curtis/Perricone was premature because (a) Esther and Earl Zion had not been served and (b) Yuma Mesa Irrigation and Drainage District and Yuma County Treasurer were claiming an interest in the estimated just compensation on deposit. Yuma Mesa Irrigation and Drainage District also filed an objection. 3. Earl and Esther Zion have been served by publication. (Notice of Publication,

Docket No. 46.) Earl and Esther Zion failed to respond to the Summons and Complaint that was served by publication. This failure to respond shows that Earl and Esther Zion do not intend to seek distribution of the deposit. 4. Yuma County Treasurer filed a Disclaimer of Interest. Thus, the Yuma County

Treasurer does not claim any interest in the estimated just compensation on deposit. 5. On April 1, 2004, the Court entered an Order granting distribution of $1,744,030.00

to Defendants Curtis/Perricone. The Court stated that immediate distribution to Defendants Curtis/Perricone must be limited to the difference between the deposit and Yuma Mesa Irrigation and Drainage District's claim. (Order, Docket No. 59) 6. Subsequently, Plaintiff settled all claims with Yuma Mesa Irrigation and Drainage

District. On June 21, 2005, the Court entered an order granting distribution of $409,513.35 to Yuma Mesa Irrigation and Drainage District. Therefore, Yuma Mesa Irrigation and Drainage District do not have any outstanding claims to the estimated just compensation on deposit. 7. No other parties have filed an Answer in this case. Therefore, no other party seeks

distribution of the remaining estimated just compensation on deposit.

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8.

Accordingly, Defendants Curtis/Perricone seek distribution of the remaining balance

of estimated just compensation on deposit in the amount of $179,439.55. 9. Counsel has contacted counsel for Plaintiff seeking a stipulation for withdrawal of

remaining estimated just compensation on deposit. Counsel for Plaintiff is unable to stipulate to distribution, but can consent to the form of a motion for withdrawal if the proposed order adequately warrants ownership and protects the interests of parties served by publication, unknown owners, and the rights of others who subsequently establish ownership to have their share of the distributed funds returned together with Declaration of Taking Act interest. WHEREFORE, Movants request that the court enter its order as follows: A. Disbursing jointly to Defendants, Glen G. Curtis, Trustee of the Curtis Family Trust

Dated July 25, 1986 and Sam Perricone, Trustee of the Amended and Restated Declaration of Revocable Trust of Sam Perricone and Mary Louise Perricone Dated May 22, 1992, the sum of $179,439.55. B. That payment of $179,439.55 shall be a credit against any ultimate award to which

Defendants Curtis/Perricone may be entitled in this case without prejudice to the right of any party herein to claim a greater or lesser amount as just compensation. C. That Defendants Curtis/Perricone having warranted their right, title and interest in

the property must remit any portion of the deposit distributed by the order that is later shown to belong to any other claimant together with interest thereon at the rate established by the Declaration of Taking Act. D. For such other and further relief as may be appropriate under the circumstances.

DATED this 9th day of September, 2005. 23 WEIL & WEIL , PLLC 24 25 26 27 28 By:

/s/ John A. Weil
John A. Weil Attorney for Defendants Curtis/Perricone

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A COPY of the foregoing was mailed this 9th day of September, 2005, to: Honorable Susan R. Bolton United States District Court 401 W. Washington Street, SPC1 Suite 130 Phoenix, Arizona 85003-2118 Sue A. Klein Two Renaissance Square 40 N. Central Ave., #1200 Phoenix, AZ 85004-4408 Douglas Wright U.S. Department of Justice PO Box 561 Washington, DC 20044 Matthew S. Clifford U.S. Department of Justice PO Box 561 Washington, DC 20044 A. James Clark 256 S. 2nd Avenue Yuma, AZ 85364 By: /s/ Linda Simpson

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