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MCA Financial Group, Ltd. v. Enterprise Bank & Trust

Court of Appeals of Arizona, Second Division

December 30, 2014

MCA FINANCIAL GROUP, LTD., Appellant,
v.
ENTERPRISE BANK & TRUST, Plaintiff/Appellee

Appeal from the Superior Court in Santa Cruz County. No. CV2010000422. The Honorable Anna M. Montoya-Paez, Judge.

Page 1162

Snell & Wilmer L.L.P., Tucson, By Christopher H. Bayley, Jonathan M. Saffer, and Katherine V. Foss, Counsel for Appellant.

Minkin & Harnisch PLLC, Phoenix, By Ethan B. Minkin and Andrew A. Harnisch, Counsel for Plaintiff/Appellee.

Judge Espinosa authored the opinion of the Court, in which Presiding Judge Miller and Judge Brammer[1] concurred.

OPINION

Page 1163

[236 Ariz. 492] ESPINOSA, Judge:

[¶1] MCA Financial Group, Ltd. (MCA) appeals from an order requiring it to disgorge over $118,000 in fees paid to it by Enterprise Bank & Trust (Enterprise), arguing that, because MCA was not a party to the underlying proceeding, it was not subject to the trial court's jurisdiction. It also contends the court erred by failing to hold an evidentiary hearing on the merits of the disgorgement claim and by failing to conclude Enterprise had waived any objection to MCA's fees. Because we agree the court lacked jurisdiction, its order must be vacated.

Factual and Procedural Background

[¶2] " We view the facts in the light most favorable to upholding the trial court's ruling." Hammoudeh v. Jada, 222 Ariz. 570, ¶ 2, 218 P.3d 1027, 1028 (App. 2009). In April 2009, Enterprise agreed to loan $4,182,000 to Americana Nogales, LLC (Americana) to acquire a hotel in Santa Cruz County. The following year, Enterprise filed a lawsuit alleging that Americana had defaulted on its loan obligations by failing to remit payments as required under the loan agreement and promissory note.[2] In addition to seeking monetary relief, Enterprise requested that a receiver be appointed pursuant to a provision in the deed of trust that Americana had executed to secure the loan.

[¶3] In January 2011, the trial court appointed " Robert Itkin of MCA Financial Group, Ltd." as receiver in an order that directed him to, among other things, " operate, manage, maintain, preserve and protect the Receivership Property; . . . employ any person or firm to collect, manage, lease, maintain and operate the Receivership Property[; and] hire . . . consultants, property management companies, brokers and any other personnel or employees which the Receiver deems necessary to assist it in the discharge of its duties." Enterprise subsequently filed an " Oath of Receiver," in which Itkin swore to " faithfully discharge the duties of receiver" and " obey all orders of the Court." Itkin executed this oath on a line designated for his signature.

[¶4] From January to October 2011, MCA on a monthly basis submitted bills to Enterprise for " professional services" rendered by several of its employees, including Itkin. Enterprise paid the invoices by checks made out to " MCA Financial Group." In October, Enterprise filed a " Notice of Receiver's Change of Firm," in which it stated that Itkin, who had been " appointed as Receiver over the subject collateral pursuant to this Court's Order," had become a managing director at Simon Consulting Group, LLC. Following Itkin's departure, both he and MCA continued to perform management and consulting services, but MCA ceased billing for Itkin's services. In November 2012, the trial court granted Enterprise's application to appoint a new receiver, Resolute Commercial Services, LLC (Resolute), and an amended

Page 1164

[236 Ariz. 493]order of appointment was filed to ...


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