Free Order on Motion for Judgment - District Court of Arizona - Arizona

Phoenix Division CV-02-2405-PHX-HRH Year Case No Initials

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CIVIL MINUTES - BENCH TRIAL DATE: 3/4/2008

Title: Biltmore Associates, as Trustee for Visitalk Creditors' Trust vs. Peter Thimmesch, et al. Plaintiff Defendants ============================================================================== HON: H. RUSSEL HOLLAND Deputy Clerk : Christine Boucher Christopher Kaup Attorney(s) for Plaintiff(s) Judge # 7-08 Court Reporter: Linda Schroeder/Candy Potter

Gary Birnbaum (Snell & Wilmer LLP) Tim Thomason (Snell & Wilmer LLP) Gary Birnbaum (Snell & Wilmer LLP) Petter Thimmesch (Pro Se) Attorney(s) for Defendant(s) =============================================================================== PROCEEDINGS: JURY TRIAL X NON-JURY TRIAL VOIR DIRE JURY SWORN Trial day # 2 8:31 a.m. Court is called to order. Court addresses all parties regarding the Defendants' Motion [#458] for Judgment as a Matter of Law filed yesterday. IT IS ORDERED denying Defendants' Motion [#458] for Judgment as a Matter of Law. Court discusses exhibits 508, 522 and 566 with parties. Plaintiff objects to the admittance of exhibit 522. Exhibits 508, 522 and 566 are admitted. Judge informs the parties that he wants to see the underlying motion that lead to the order that is marked as exhibit 658. Mr Kaup states he will provide it to the Court later this afternoon. 8:44 a.m. Recess. 8:57 a.m. Reconvene. Plaintiff's case continues: James Fallon is sworn and examined. Plaintiff refers to exhibits 78, 75, and 165. Plaintiff moves to admit exhibit 165 with objections from defense. Exhibit 165 is admitted. 9:59 a.m. Cross-examination. 10:22 a.m. Recess. 10:34 a.m. Court reconvenes. Re-direct of witness James Fallon. 10:45 a.m. Court asks witness further questions. Witness is excused and released. Richard Rothwell is sworn and examined. Plaintiff makes reference to previously stipulated exhibits 302, 303 and previously admitted exhibit 294. Plaintiff moves to admit exhibit 304 with objection from defense. Exhibit 304 is admitted. Plaintiff refers to previously stipulated exhibits 105, 177, 305,15, 114, and 112. 11:58 a.m. Recess. 1:08 p.m. Court reconvenes. Witness Richard Rothwell continues testifying. Plaintiff refers to previously stipulated exhibits 115 and 118. 1:28 p.m. Cross-examination. Defendant refers to previously stipulated exhibit 105. Defendant moves to admit exhibit 562, with no objection from Plaintiff. Exhibit 562 is admitted. Defendant further moves to admit exhibits 536, 537, and 538 with no objection from Plaintiff. Exhibits 536, 537, and 538 are admitted. Defendant refers to previously stipulated exhibit 638. 2:55 p.m. Recess. 3:12 p.m. Mr. Kaup provides the Court a copy of the motion previously requested by the Court. A of 2 Case 2:02-cv-02405-HRH Document 465 Filed 03/04/2008 Page 1 certified copy of

the "Joint Motion of Creditors' Trustee and the Reorganized Debtor to Claify Terms of the Creditors' Trust" marked as Plaintiff's exhibit 391 and admitted into evidence, with no objection defense. Previously stipulated exhibit 545, 549, and 305 referred to by Defense. Exhibit 28 is referred to. Defendant makes motions to admit exhibits 747 and 748 with no objection from Plaintiff. Exhibits 747 and 748 are admitted. Defendant further moves to admit exhibit 750. Plaintiff objects and requests page one be omitted. Defendant agrees. Exhibit 750 is admitted, omitting page one. Defendant makes motions to admit exhibits 752, 753, and 513. No objections. Exhibits 752, 753, and 513 are admitted. Defendant refers to exhibit 754. 4:28 p.m. Court is in recess and to reconvene on Wednesday, March 5, 2008 at 8:30 a.m. Time in Court: 6 hrs. 5 min.

Case 2:02-cv-02405-HRH

Document 465

Filed 03/04/2008

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