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Jeffrey S.

Newton
30766 Woodward Avenue, Suite 210
Royal Oak, Michigan 48073
(248) 694-1400
JEFFREY S. NEWTON, IN PRO PER

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ORANGE

JEFFREY S. NEWTON, ESTATE OF JOYCE )A.Case No.: 30-2011-00469301-CU-EN-CJC


NEWTON (Deceased), )
) NEWTON‟S MEMORANDUM OF POINTS
Plaintiffs, ) AND AUTHORITIES IN RESPONSE
) TOFREYDL’SMOTION TO VACATE
vs. ) CALIFORNIA JUDGMENT
)
THOMAS PATRICK FREYDL, ind. and ) Date: Wednesday, November 5, 2014
D/B/A FREYDL & ASSOCIATES, ) Time: 9:00 a.m.
) Location: Dept.
Defendants ) Judge: Hon. Franz E. Miller
) Date Action Filed: April 21, 2011
)
)
)
)
)

Plaintiff/Judgment Creditor Jeffrey S. Newton hereby submits the following Memorandum of

Points and Authorities in Reply to Defendant/Judgment Debtor Thomas Patrick Freydl‟s Motion to

Vacate California Judgment (“Freydl Vacation Motion”). The Court should deny Freydl‟s Vacation

Motion in its entirety or, in the alternative, either (a) take the matter under advisement or (b) stay

enforcement of Newton‟s California Judgment and grant a continuance of Newton‟s OSC re:

Contempt of Freydl & Gamarrapending the decision of the Michigan trial Judge1 on Newton‟s

Motion For Relief From Order Granting Freydl‟s Motion To Vacate Renewal Of Michigan Judgment,

1
The Honorable Denise Langford-Morris took Newton‟s Motion For Relief under advisement on
October 15, 2014. Newton‟s Brief is attached hereto and labeled as Exhibit 2.

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ORDER
and require both Freydl and Third Parties Richard Gamarra, Focus on Cars, Inc., South Bay Studios

(a division of Focus on Cars) and California Tequila to post bond pursuant to CCP §1750(c)(1).

1. INTRODUCTION.

Newton urges the Court to be mindful that this matter arose out of the theft of Newton‟s life

savings at the hands of Freydl, a savvy professional thief and disbarred Michigan and California

attorney – whose disbarment resulted from the stealing of money from a multiplicity of clients.

Freydl has perfect contempt for the rule of law, for the rights of others and for the judicial system.

He has no conscience whatsoever. Freydl‟s venom and spite toward Newton, whose life he destroyed

by his avarice and greed, literally oozes out of the pages of his Vacation Motion. Freydl‟s belittling,

condescending attitude and supercharged, gargantuan-sized ego are palpable from his gratuitous use

of obscure words and unnecessary invectives hurled at his criminal victim, Newton. Visual evidence

of Freydl‟s contempt, utter lack of civility and outright hatred towards Newton is attached hereto and

labeled as Exhibit 1.2

2. COUNTER-STATEMENT OF FACTS AND PROCEDURAL HISTORY.

Newton incorporates herein by reference the factual and procedural portion of his Reply to

Gamarra‟s Opposition Re: Order to Show Cause Re: Contempt, previously filed herein.

3. ARGUMENT.

3.1 Freydl’s Challenge To The 2011 California Judgment Is Fatally Time-Barred.

The time period to challenge the 2011 California Judgment fatally expired 30 days after

Freydl was served with the Notice of Domestication of Sister State Judgment pursuant to CCP

2
Freydl‟s “giving Newton the bird” was accomplished in the hallway of this Courthouse immediately
after the Court arraigned Freydl on contempt charges on August 4, 2014. Newton‟s photograph is
being partially blocked by Steven T. Devlin, Esq., who represented Freydl in the Assignment Order
proceedings in 2011, when Mr. Devlin‟s law office was located next to Freydl‟s at the Focus on Cars
compound in Long Beach, California.

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ORDER
§1710.30(a).3Conseco Marketing v. IFI And Insurance Services, Inc., 221 Cal.App.4th 831 (2013).

The Notice was served on Freydl on May 10, 2011 (Exhibit 3 hereto). Accordingly, Freydl only had

until June 9, 2011 to file his California Judgment Vacation Motion, which he irrefutably did not do.

Therefore, he cannot meet his burden of proof.4

CCP §1710.40(b)5 is the exclusive vehicle for challenges to domesticated sister state

judgments. Liquidator of Integrity Insurance Company v. Hendrix, 54 Cal.App.4th 971, 978 (1997)

(“[t]he procedural remedy for vacating entry of a sister state judgment lies within section

1710.40 alone”) (emphasis added). However, Freydl‟s Motion To Vacate California Judgment is

3
CCP §1710.30(a) provides:

Notice of entry of judgment shall be served promptlyby the judgment creditor upon
the judgment debtor in the mannerprovided for service of summons by Article 3
(commencing with Section415.10) of Chapter 4 of Title 5 of Part 2. Notice shall be in
a formprescribed by the Judicial Council and shall inform the judgment debtor that
the judgment debtor has 30 days within which to make a motion to vacate the
judgment.Id. (emphasis added).
4
Freydl must prove, by a preponderance of the evidence, that (1) his motion is not time-barred, and
(2) plead and prove a viable defense to an action in California on the sister state judgment. Id.

The Court inTsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd., 12
Cal.App.4th at pp. 89–90, 15 Cal.Rptr.2d 585(1993) set forth a two-part procedure to vacate the entry
of a sister state judgment: (1) the petitioner must demonstrate a meritorious defense such that a
different result would follow if a new trial were granted in the sister state; and (2) there must be a
procedural ground in California to vacate the judgment. Freydl cannot demonstrate a meritorious
defense since he entered into a consent judgment and was represented by counsel. Moreover, in
Michigan, Judgment Renewal is a matter of absolute right and generally accomplished on an ex
parte basis. Neither service of process nor even notice of the renewal is required. Michigan Ex Parte
Judgment Renewal Form (attached hereto as Exhibit 4).
5
CCP §1710.40(b) provides:

Not later than 30 days after service of notice of entry of judgment pursuant to
Section 1710.30, proof of which has been made inthe manner provided by Article 5
(commencing with Section 417.10) ofChapter 4 of Title 5 of Part 2, the judgment
debtor, on written notice to the judgment creditor, may make a motion to vacate the
judgment under this section.Id. (emphasis added).

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ORDER
based exclusively upon CCP §473 (which deals with mistake, surprise, excusable neglect, et. cetera

and which is the equivalent of MCR 2.612) is not available to challenge Newton‟s California

Judgment. Id.

The sole exception to CCP §1710.40(b)‟s 30 day limit is a challenge to the fundamental

jurisdiction of the Michigan Court to enter the judgment itself. However, this challenge is only

available if the issue of jurisdiction was not litigated in the sister state. Freydl consented to personal

jurisdiction in Michigan in 19976 and waived the opportunity to litigate this issue there, and,

6
Freydl signed the Acknowledgement of Service of the 1997 Summons and Complaint. Therefore,
the rule that the 30 day limit does not apply where the judgment debtor was not served properly with
process in the sister state action is inapplicable to the case at bar. Airlines Reporting Corp. v. Renda,
177 Cal.App.4th 14, 20, 99 Cal.Rptr.3d 66(2009) (30 day limit does not apply where sister state
judgment void for lack of personal jurisdiction). “When a court lacks jurisdiction in a fundamental
sense, an ensuing judgment is void, and „thus vulnerable to direct or collateral attack at any time.‟
[internal citation authority omitted].” People v. American Contractors Indemnity Co., 33 Cal.4th 653,
660, 16 Cal.Rptr.3d 76, 93 P.3d 1020 (2004). In addition to the irrefutable fact that Freydl consented
to jurisdiction in Michigan, was personally served with the Summons and Complaint and litigated the
matter for 2 years before entering into a consent judgment, for renewal purposes, the Michigan Court
of Appeals held in Van Reken v. Darden, Neef & Heitsch, 259 Mich. App. 454; 674 N.W.2d 731
(2004) that:

we agree with other jurisdictions which have generally deemed any action on the
judgment, whether pursuant to a new complaint or a writ of scire facias, to be a
continuation of the original action such that jurisdiction is proper in the court which
rendered the original judgment."Van Reken v. Darden, Neef & Heitsch, 259 Mich.
App. 454; 674 N.W.2d 731 (2004). Id. (emphasis added).

A copy of the Van Reken decision is attached hereto as Exhibit 5. It is irrefutable that
Newton filed “an action” in the Michigan litigation prior to the 10 year anniversary of the Michigan
Judgment (August 11, 2009). Michigan Docket, “2009 Case” (attached as Exhibit 6 hereto).
Accordingly, jurisdiction was proper in the Michigan Court and Freydl‟s California Judgment
Vacation Motion is lethally time-barred. See also McGraw v Parsons, 142 Mich App 22 (1985), also
Exhibit 5 hereto.

Moreover, Freydl utilized MCR 2.612(B), entitled “Relief From Judgment Or Order –
Defendant Not Personally Notified” to acquire the Judgment Vacation Order. It provides:

A defendant over whom personal jurisdiction was necessary and acquired, but who
did not in fact have knowledge of the pendency of the action, may enter an appearance

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ORDER
accordingly, this challenge is not available to him in California. Moreover, his challenge is subject to

this Court‟s scrutiny of his credibility, which is less than zero. Conseco, supra.

Finally, the extent to which Freydl contends that the Michigan Court lost jurisdiction over him

(due to an alleged failure of service of process) is the extent to which the statute of limitations is and

remains tolled, pursuant to Michigan Complied Laws (“MCL”) §600.5853, which provides:

If any person is outside of this state at the time any claim accrues against him the
period of limitation shall only begin to run when he enters this stateunless a means
of service of process sufficient to vest the jurisdiction of a Michigan court over him
was available to the plaintiff. If after any claim accrues the person against whom the
claim accrued is absent from this state, any and all periods of absence in excess of 2
months at a time shall not be counted as any part of the time limited for the
commencement of the action unless while he was outside of this state a means for
service of process sufficient to vest the jurisdiction of a Michigan court over him was
available to the plaintiff. Id. (emphasis added).

Freydl was absent from Michigan when the 1999 Michigan Consent Judgment was entered,

and his own testimony constitutes an admission that he remained outside of Michigan, un-locatable

by design, for most of the next ten years.7Exhibits 8and 9 hereto. In other words, the Michigan

Judgment doesn’t even need renewing yet.8

within 1 year after final judgment, and if the defendant shows reason justifying relief
from the judgment and innocent third persons will not be prejudiced, the court may
relieve the defendant from the judgment, order, or proceedings for which personal
jurisdiction was necessary, on payment of costs or on conditions the court deems just.
Id. (emphasis added).

Freydl‟s Michigan Motion is attached hereto as Exhibit 7. In typical Freydl duplicity, he


intentionally mislabeled this Motion as a motion to Vacate a Renewal Judgment (so that he could
claim that the resulting Order is a Judgment with preclusive effect), when the document is irrefutably
an Order, not a new Judgment.Freydl could not have utilized this rule unless the Michigan Court
accomplished and retained personal jurisdiction over him, which Freydl also admitted on the record
on July 13, 2011. Accordingly, his California Judgment Vacation Motion is terminally time-barred.
7
Freydl‟s claim of failure of service of the Judgment Renewal Complaint upon him is mutually
exclusive to his claim that the Michigan Court did not have (or lost) personal jurisdiction over him.
He cannot have it both ways, and either way by itself is deadly to his challenge. If the Michigan
Court had (or retained) jurisdiction, his challenge to Newton‟s California Judgment is time-barred. If

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ORDER
3.2 CCP §473 Is Unavailable To Vacate The California Judgment Or For Relief
From The Assignment Order.

CCP §473 is unavailable to vacate the California Judgment because CCP §1710.40(b) is the

exclusive procedural vehiclefor such relief, absent extremely limited equitable circumstances, which

are not present here. Liquidator of Integrity, supra.Freydl has unclean hands9 and is guilty of

laches.10To the extent that §473 is otherwise available to either Freydl or Gamarra for relief (from

either the California Judgment itself or the June 23, 2011 Assignment Order) their inequitable

the Michigan Court didn‟t have (or retain) jurisdiction, the statute has not run, the Michigan
Judgment survives, and Freydl thus lacks any basis to challenge the California Judgment.
8
Pursuant to Freydl‟s testimony at the Evidentiary Hearing in Michigan, he was absent from
Michigan when the Consent Judgment was entered and for almost all of the next 10 years, thereby
extending the limitations period for several years from the present (Exhibit 8 hereto).
9
Freydl stole nearly $100,000.00 from Newton under false pretenses, resulting in the Michigan and
California Consent Judgments. The fact that Freydl agreed to repay Newton should equitably estop
him from finagling the Michigan Judgment renewal to his advantage. Moreover, he hid from Newton
from the date of entry of the Michigan Judgment (August 11, 1999) until 2011, when Newton found
him via the Internet and Freydl vs. Meringolo. In the meantime, Gamarra and Freydl conspired to
“throw Newton off course” by falsely claiming that Gamarra threw Freydl out of Focus on Cars in
2003, when this was untrue, delaying both collection and judgment renewal. Similarly, in 2009,
Gamarra and Freydl again conspired to attempt to defeat judgment renewal by (a) instructing the
South Bay Studios security guard to block service of the renewal package (the guard was substitute
served anyway, discussed, infra) and (b) failing to give Freydl his mail (ultimately resulting in the
December 21, 2011 Michigan Judgment Renewal Vacation Order). Likewise, in 2011, Gamarra and
Freydl conspired to feign lack of notice of the June 23, 2011 Assignment Order by again conscripting
the South Bay Studios security guard to block service of said Order (again, the guard was substitute
served anyway). Finally, in the ultimate act of inequity, Freydl actually lied under oathin the
Michigan Court, falsely testifying that he was in New York when he was served in California with
the Michigan Judgment renewal package. His perjury and malfeasance is more fully set forth and
completely exposed in Exhibit 2 hereto. If this behavior is somehow equitable and deserving of
equitable relief, then so is mass murder.
10
Freydl never sought to vacate the April 21, 2011 California Judgment (despite being personally
served with Notice of it on May 10, 2011) for over three years, until October, 2014, while literally on
the precipice of incarceration for his flagrant contempt. Surely, this is laches.

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ORDER
behavior fully estops them from enjoying it, pursuant to the equitable maxim of “he who seeks equity

must do equity.” Manufacturers' Finance Co. v. McKey, 294 U.S. 442 (1935).11

3.3 The Doctrine of Res Judicata Is Inapplicable.

The doctrine of res judicata is not a bar to re-litigation of the Michigan Judgment Vacation

Order.Said Order is NOT a Judgment. Freydl‟s contrary intentionally misplaced contrary reasoning

ignores the fundamental rule that the doctrine of res judicataapplies exclusively to final

judgments.12In the Michigan case, the one and only final judgment is the August 11, 1999 Revised

11
“The maxim „[h]e who seeks equity must do equity‟ presupposes that equitable, as distinguished
from legal, rights have arisen from the subject matter in favor of each of the parties, and it requires
that such rights shall not be enforced in favor of one who affirmatively seeks their enforcement,
except upon condition that he accord to the other his correlative equitable rights.”Id. at 449
(emphasis added).
12
As the Court in In re Eaton‟s Estate v Armour, et. al,38 Cal.App.2d 180 (1940) stated:

….it is only when the judgment or decree becomes final that the matter is res judicata.
There can be but one final judgment or its equivalent in any proceeding.Such
intermediate orders, sought to be relied upon as final, are as a matter of law not final
and cannot be given such effect by any voluntary or gratuitous order of the court.Id.
(emphasis added).

Similarly, in the case at bar, the Michigan Judgment Vacation Order was not a “final order”
and is not res judicata. Indeed, it is precisely because said Order (achieved under MCR 2.612(B),
discussed, infra) is not a “final order” that Newton did not have an appeal as of right from it under
the Michigan Court Rules. MCR 7.203 provides, in pertinent part:

Rule 7.203 Jurisdiction of the Court of Appeals


(A) Appeal of Right. The court has jurisdiction of an appeal of right filed by an
aggrieved party from the following:
(1) A final judgment or final order of the circuit court, or court of claims, as defined
in MCR 7.202(6)…. Id.

Meanwhile, MCR 7.202(6)(a)(i) provides:

(6) "final judgment" or "final order" means:


(a) In a civilcase,
(i) the first judgment or order that disposes of all the claims andadjudicates the
rights and liabilities of all the parties, including such an order entered after reversal
of an earlier final judgment or order. Id. (emphasis added).

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ORDER
Final Consent Judgment, and it is this Order,13 only, that is entitled to full faith and credit and that is

a bar to re-litigation under the doctrine of res judicata.

Moreover, even if the doctrine of res judicata applied to orders as well as judgments, the

December 21, 2011 Michigan Judgment Renewal Vacation Order was an interlocutoryorder in the

sense that it did not finally dispose of the litigation, but rather reopened it for further proceedings. 14

Accordingly, the August 11, 1999 Revised Final Consent Judgment is the only“final order” in
the Michigan case, and, therefore, the only order entitled to bar re-litigation under the doctrine of res
judicata.
13
All judgments are orders, but not all orders are judgments.
14
As set forth in the definitive Michigan treatise on the Michigan Court Rules, Michigan Court Rules
Practice (Dean & Longhofer):

An order denying a motion for relief from judgment under MCR 2.612(C) is final and
appealable. An order granting such a motion is technically interlocutory, in the sense
that it does not finally dispose of the case but reopens it for further proceedings in the
trial court. However, its operation in this respect is essentially the same as an order
granting a new trial after final judgment. As observed in the Author‟s Commentary on
Rule 2.611, there are good reasons for appellate review of such an order before the
new trial is undertaken, and in recent years the appellate courts have quite routinely
granted leave to appeal in such situations. The same practice should apply to appeals
from orders granting relief from a judgment under MCR 2.6123(C). Id., §2612.19,
Page 625 (emphasis added).

Parenthetically, Newton took his yearlong Civil Procedure class at the University of Michigan
Law School with the treatise‟s first and main author, the late James Martin, a luminous legal scholar
and textbook author in Civil Procedure, Conflict of Laws and Contracts. Professor Martin also held a
PhD in applied mathematics.

Newton‟s Application to Appeal the December 21, 2011 Michigan Judgment Renewal
Vacation Order was timely filed pursuant to longstanding Michigan practice.However, the Michigan
Supreme Court unilaterally shortened the time for such an appeal from 12 to 6 months without
publishing said rule change, and Newton‟s motion was denied on said procedural ground exclusively.
Accordingly, it was not considered and decided on any substantive grounds, and any argument by
either Freydl or Gamarra that the December 21, 2011 Michigan Judgment Renewal Vacation Order
was upheld on appeal must be viewed exclusively in this regard, rather than as any substantive ruling
on the merits of Newton‟s appeal.

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ORDER
Finally, on December 21, 2012, Newton timely filed a Motion For Relief From Consent

Judgment Vacation Order, and said motion was heard by the Michigan trial Judge, the Honorable

Denise Langford-Morris, on Wednesday, October 15, 2014. Newton utilized the same Michigan

Court Rule that Freydl used to obtain the December 21, 2011 Michigan Judgment Renewal Vacation

Order– MCR 2.612.15 Judge Langford-Morris took the matter under advisement, and has yet to issue

her opinion and order. Accordingly, at minimum, this Honorable Court should either take the instant

matter under advisement or stay enforcement proceedings and require Freydl and Gamarra to post

bond pending Judge Langford-Morris‟ ruling.16

3.4 Discussion Re: Witkin §447, Stay of Enforcement, Bond.

At the October 1, 2014 Hearing on Contempt, the Court expressed interest in 8 Witkin, Cal.

Proc. 5th (2008) Enf Judgm, § 447 regarding the Full Faith and Credit Clause of the United States

Constitution and its impact upon the Court‟s ability to enforce the California Judgment. That section

reads in its entirety:

(4) Judgment not enforceable in state of rendition. Under the Full Faith and Credit
Clause, the judgment will not be given greater effect in the state of the forum than in
the state of rendition. (See Gilmer v. Spitalny (1948) 84 C.A.2d 39, 44, 189 P.2d 744
[Arizona judgment against husband and wife on community debt was not enforceable
in California as personal judgment against wife]; Rall v. Lovell (1951) 105 C.A.2d
507, 510, 233 P.2d 681 [Montana child support judgment]; St. Sava Mission Corp. v.
Serbian Eastern Orthodox Diocese for the United States of America & Canada (1990)
223 C.A.3d 1354, 1374, 273 C.R. 340 [Illinois judgment purporting to vest title in
church was not entitled to full faith and credit, where judgment was void as to
California corporation, under Illinois law, for failure to join it as indispensable party];
7 Summary (10th), Constitutional Law, §38.). Id., Page 484.

15
Accordingly, at minimum, if the Court is inclined to grant Freydl‟s Motion but not hear Newton‟s,
it should defer adjudication of the matter until after the Michigan Judge hears and decides Newton‟s
Motion.
16
As set forth infra, Newton would have an appeal as of right from an adverse decision by Judge
Langford-Morris.

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ORDER
This section does not give this Honorable Court discretion to grant Freydl‟s Vacation Motion,

only to temporarily deny enforcement of the California Judgment until the Michigan Judge reverses

herself on the basis of Freydl‟s Fraud on the Court that culminated in the temporary vacation of the

Michigan Consent Judgment.17 The Court should bear in mind that CCP §1750(4) provides for a

stay of enforcement where “[a]ny other circumstance exists where the interests of justicerequire a

stay of enforcement.” Newton suggests that the instant matter presents such circumstances,

especially since if Newton loses his Michigan Motion for Relief, he shall immediately sue Freydl for

fraud on the Michigan court, which lawsuit (before a jury), shall result in a reinstatement of the

Michigan Judgment, notwithstanding any adverse ruling by Judge Langford-Morris. Pursuant to

MCR 2.612(C)(3), which provides:

(3) This subrule does not limit the power of a court to entertain an independent action
to relieve a party from a judgment, order, or proceeding …. or to set aside a judgment
for fraud on the court. Id. (emphasis added).

Since Freydl stole Newton‟s life savings and ruined his life, Newton will never stop attempting to

seek legal justice against Freydl, until Freydl (who is much older than Newton) is dead.

17
The Court should also be aware that Freydl could have simply honored the initial Michigan Consent
Judgment in full for only $35,000.00, as this was the amount that Newton needed in 1999 to save his
home from foreclosure. Freydl‟s welching on the Consent Judgment not only cost Newton his home
and all of the equity in it ($300,000.00), but resulted in the nearly half million dollar California
Judgment that Freydl now seeks to weasel out of. Frankly, Newton has bent over backwards to
accommodate Freydl and his theft. Freydl manufactured the temporal vacation of the Michigan
Consent Judgment through perjury and intentionally interfering with that renewal. Gamarra also
intentionally interfered with the service of the Assignment Order, by instructing his guard to block
service. SeeBein v Brechtel-Jochim Group, 6 Cal.App.4th 1387, 8 Cal.Rptr.2d 351 (1992) (substitute
service on the guard at a gated community is good service and notice).

Simply put, if Newton is, at this point in time, unable to finally get some justice against
Freydl and Gamarra in light of their multiple and repeated intentional interference with the legal
process, then they have unfortunately reduced the Court system to nothing more than a rule-bound
fraud.

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ORDER
If the Court grants a stay of enforcement (as opposed to taking the matter under advisement

pending the Michigan Judge‟s decision), then Newton respectfully requests that the Court require that

both Freydl and Gamarra post bond pursuant to CCP §1750(c)(1), which provides:

(c) The court shall grant a stay of enforcement under this sectionon such terms and
conditions as are just including but not limitedto the following:
(1) The court may require an undertaking in an amount itdetermines to be just, but
the amount of the undertaking shall notexceed double the amount of the judgment
creditor's claim.Id. (emphasis added).

The current amount of the California Judgment is approximately $460,000.00 Accordingly,

Newton respectfully requests that both Freydl and Gamarra post bond in the amount of $920,000.00.

To the extent that Gamarra complains about this amount, Newton urges the Court to be mindful that

Gamarra has refused to disclose how much he paid Freydl since June 23, 2011 (the operative date of

the Assignment Order), that Gamarra sold his car businesses (Focus of Cars, South Bay Studios) and

his home of 30 years, all to concentrate on his tequila company, which is in Mexico (his probable

destination if freed by the Court). As to Freydl, his theft of Newton‟s life savings would have

resulted in a lifetime incarceration, but for Newton‟s charity toward Freydl in not prosecuting him.

Accordingly, since Freydl alone is responsible for any failure of renewal of the Michigan Judgment,

Freydl cannot be heard to complain about the amount of bond.

3.5 The Judgment Renewal Vacation Order Was Not Nunc Pro Tunc And Has No
Retroactive Effect.

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ORDER
The December 21, 2011 Michigan Judgment Renewal Vacation Order does not contain any

language that would make it nunc pro tunc.18 Since the Michigan Consent Judgment was already

renewed (on February 16, 2011), and since the California Judgment was already obtained, the

Judgment Renewal Vacation Order has no retroactive effect, the renewal was validly entered and any

actions taken prior to December 21, 2011 cannot be nullified by it. This is why CCP §1710.40(b)

imposes a 30 day limit to file a motion to vacate: then is no requirement to indefinitely keep a sister

state judgment, where the judgment debtor no longer lives and probably won‟t return, after

domestication in another state.

3.6 Freydl Was Served By Mail At The Focus On Cars Compound In August, 2009
With A Summons and Complaint For Judgment Renewal.

Freydl did not challenge whether the service by mail to him at the Focus on Cars compound

of the Summons and Complaint for Judgment Renewal was actually mailed by Newton‟s Michigan

Process Server, Richard Ferrette (Exhibit 10). Furthermore, Freydl did not challenge whether the

United States Postal Service actually fulfilled its mission to actually deliver that mailing to Freydl at

Focus on Cars. Rather, Freydl lied to the Court, testifying that he was in New York when the service

was received at Focus on Cars on or about August 18-20, 200919 and throughout the alleged life of

the Summons, i.e., until November 11, 2009. Freydl‟s perjurious Affidavit stating that he was in

New York for most of 2009 and especially in mid-August, 2009 and then on is attached hereto and

18
The function of an order nunc pro tunc is to supply an omission in the record of action previously
taken by the court but not properly recorded; an order nunc pro tunc may not be utilized to supply
previously omitted action. Briefly stated, the purpose of a nunc pro tunc order is not to change or
alter an order or judgment actually made. In other words its function is not to make an order now for
then, but to enter now for then an order previously made. Sleboede v. Sleboede, 384 Mich. 555
(1971).

19
Ferrette mailed the Summons and Complaint on Sunday, August 16, 2009, by depositing same into
a mailbox located at the Royal Oak, Michigan Post Office, located a short walk from Ferrette‟s home
(where Newton has lived twice). Newton personally witnessed Ferrette accomplish this mailing.

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ORDER
labeled as Exhibit 9. His perjury is utterly exposed and conclusively proven by the bank statements

of his corporation, “Freydl & Associates, LTD” (there are no associates), attached hereto and as

Exhibit 11. These statements conclusively demonstrate that, with the exception of a few days when

he flew from California to New York and back to file the Meringolo Complaint, Freydl was

consistently in Long Beach, California, precisely where Focus on Cars is located.20

Since the United States Postal Service is presumed to accomplish its mission and to deliver

mail, and since Freydl did not challenge Ferrette‟s mailing21 of the service of process of the Michigan

Judgment Renewal Complaint, and since, pursuant to Michigan law, service is complete upon

mailing, Freydl was, in fact, served with the said documents prior to the supposed expiration of the

Summons.22

3.7 Freydl Was Served By Substitute Service At The Focus On Cars Compound In
July, 2009 With A Complaint And Application/Petition For Judgment Renewal.

Freydl was also served in July, 2009, Freydl with an Application/Petition for Judgment

Renewal, as well as a Complaint for Judgment Renewal by substitute service on the Focus on Cars‟

20
It is irrefutable that Freydl‟s own bank records, which prove that he used his ATM card near
Focus on Cars in mid-august, 2009, are conclusive proof that said Order was procured by intrinsic
fraud. Newton asks the Court to take judicial notice of these records (kept in the ordinary course of
business), disregard the December 21, 2011 Order(it‟s not a Judgment) Vacating Michigan Consent
Judgment Renewal and instead recognize the February 16, 2009 Order (also not a Judgment) that
renewed the Michigan Consent Judgment (this one‟s a Judgment).
21
Freydl also wrongfully challenged (in Michigan) and continues to challenge (in his current Motion)
Newton‟s service of a February, 2009 Judgment Renewal Motion upon him at his Park Avenue, New
York lawfirm address, which he used on his Affidavit in the Meringolo litigation. Exhibit 13 hereto.
Freydl even claimed that Newton mailed it from Indiana (not Michigan) to deceive him, but Newton
was living in Indiana at the time. Due to Gamarra‟s deception through Agent Kusumi, Newton
erroneously thought that Freydl had been given the boot from Focus on Cars. Freydl further claimed
and claims that said lawfirm didn‟t give him his mail. In reality, Freydl just ignored it, just like he
did in the 1990‟s when Newton worked for him.
22
MCR 2.107(C)(3) provides that….[s]ervice on a party must be made by delivery or by mailing to
the party at the address stated in the party's pleadings…(3) Service by mail is complete at the time
of mailing. Id. (emphasis added).

- 13 -
ORDER
Guard and Agent of Gamarra. The Proof of Service of Patricia Rosenthal for said service (Exhibit 12

hereto) was not available until recently and, therefore, this service was not considered by the

Michigan Judge at the September 2, 2011 Evidentiary Hearing on Service, which concerned service

exclusively (and not limitation of action issues.

Accordingly, the successful renewal of the Michigan Consent Judgment is not dependent

upon whether or not service of the Complaint for Judgment Renewal was accomplished by mail23

upon Freydl at the Focus on Cars Compound and, accordingly, not dependent upon a ruling adverse

to Freydl at the September 2, 2011 Evidentiary Hearing.

3.8 Conclusion.

Freydl‟s Motion to Vacate California Judgment is fatally time-barred. Freydl alone caused

failure of the renewal of the Michigan Judgment, and is equitably estopped from seeking relief

pursuant to CCP §473. Gamarra is similarly estopped from seeking relief from enforcement of the

Assignment Order. Accordingly, the Court should deny Freydl‟s motion in its entirety and hold both

Freydl and Gamarra in contempt and punish them summarily. In the alternative, the Court, in its

discretion, should take the matter under advisement or stay enforcement and require both Freydl and

Gamarra to post bond in an amount of double the California Judgment pending resolution of the

Michigan Judgment renewal Motion.

I hereby declare under penalty of perjury under the laws ofthe State of California that the
foregoing is true and correct.

Respectfully submitted,
Jeffrey S. Newton
________________________
Jeffrey S. Newton
Plaintiff/Judgment Creditor

23
Moreover, the successful renewal of the Michigan Consent Judgment is not dependent upon
whether Freydl ever received the substitute service upon the Focus on Cars‟ Guard and Agent.
Pursuant to CCP § 415.20, substitute service is complete 10 days after mailing.

- 14 -
ORDER
DATED: October 24, 2014 In Pro Per

TABLE OF EXHIBITS

1. Photo of Freydl Giving Newton “The Bird”


2. Newton Michigan Motion For Relief From Renewal Vacation Order
3. Notice of Domestication
4. Michigan Judgment Renewal Form
5. Van Reken Case, McGraw Case (Michigan)
6. Michigan Docket – 2007 and 2009 Cases
7. Freydl‟s Michigan Motion To Vacate Renewal Order
8. Evidentiary Hearing Transcript Excerpts
9. Freydl Affidavit, Newton vs. Freydl (Michigan)
10. Richard E. Ferrette Proof of Service
11. Account Statements, 2009 and 2011 and Signature Card (LTD)
12. Patricia Rosenthal Proof of Service
13. Freydl Affidavit, Freydl vs. Meringolo

- 15 -
ORDER
Ex. 1

1
STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

JEFFREY STEWART NEWTON )


)
Plaintiff, )
)
vs. ) Oakland County Circuit Court
)
THOMAS PATRICK FREYDL and ) Case No. 1997-543058-CZ
FREYDL & ASSOCIATES, )
) Honorable Denise Langford-Morris
Defendants. )
)

PLAINTIFF'S BRIEF IN SUPPORT OF MOTION FOR RELIEF


FROM DECEMBER 21, 2011 ORDER GRANTING DEFENDANT
THOMAS PATRICK FREYDL AND FREYDL & ASSOCIATES'
MOTION TO VACATE ORDER OF CONSENT JUDGMENT RENEWAL

JEFFREY STEWART NEWTON THOMAS PATRICK FREYDL


Plaintiff FREYDL & ASSOCIATES
In Pro Per Defendants
208 Willis Avenue In Pro Per
Royal Oak, MI 48067 1549 Placentia Avenue Apt. 204
(248) 694-1400 Newport Beach, CA 92663
(310) 629-8254

NOW COMES Plaintiff, Jeffrey Stewart Newton, in pro per, and for his Brief In

Support Of Motion For Relief From December 21, 2011 Order Granting Defendant Thomas

Patrick Freydl and Freydl & Associates' Motion To Vacate Order Of Consent Judgment

Renewal, hereby states onto this Honorable Court, as follows:

1
INTRODUCTION

Plaintiff Jeffrey Stewart Newton ("Newton") brings this motion pursuant to MCR

2.612(C)(1)(b)(c) and (f) for relief from an Order shamelessly procured by the massive and

ingenuous intrinsic fraud, shameless effrontery and insolent misrepresentation practiced upon his

Court and Newton by the Defendants, Thomas Patrick Freydl and Freydl & Associates

("Freydl") to improperly procure the correspondently issued December 21, 2011 Order Granting

Motion To Vacate Order Of Consent Judgment Renewal. Newton has new evidence that

irrefutably proves that Freydl committed fraud on the Court during the evidentiary hearing

concerning service of the 2009 Judgment Renewal Action. Some of this new evidence is

presented herein. The rest of it will be available for the requested hearing on the fraud of Freydl.

For the following reasons, Newton urges this Honorable Court to grant him relief from

the referenced Order and reinstate the Court's properly and previously issued Order Of Consent

Judgment Renewal. Newton respectfully asserts that refusal to do so is inconsistent with

substantial justice, since renewal of a consent judgment may be made ex parte. See Longhofer,

Michigan Court Rules Practice, §2.612.9, P 506.1

1
Not only did Freydl have actual notice of the 2009 Consent Judgment Renewal Action, he
lacked a meritorious defense to it, since such a renewal is essentially Plaintiff's by right
(inasmuch as renewal may be accomplished ex parte). See Michigan Supreme Court
Administrative Office ("SCAO") Memorandum, attached hereto and labeled as Exhibit 1; Van
Reken v Heitch, 259 Mich App 454, 674 N.W.2d 731 (2003), attached hereto and labeled as
Exhibit 2. See also Lawrence M. Clarke, Inc. v Richco Const., Inc., 489 Mich 265, 281-82; 803
N.W.2d 151 (2011) ("[W]e conclude that a defendant may satisfy the requirement of a 'reason
justifying relief from the judgment' by a showing that he or she (1) did not have actual notice of
the action and (2) has a meritorious defense."). Since ..."the defendant in this situation will
generally be seeking relief from a default judgment, MCR 2.612(B) is, in effect, a special
provision as to relief from default judgments." Longhofer, Michigan Court Rules Practice,
§2.612.8, P 505 (emphasis added). As such, the Court's December 21, 2011 Order ..."is
technically interlocutory, in the sense that it [did] not finally dispose of the case but reopen[ed] it
for further proceedings in [this] [C]ourt." Id. §2.612.19, P 520.

2
RELEVANT PROCEDURAL AND FACTUAL HISTORY

On February 16, 2011, this Court properly renewed Newton's 1999 Revised Final

Judgment By Consent after Freydl failed to appear, notwithstanding proper notice, for the

scheduled hearing on the matter. Newton was able to bring the motion because he had finally

located Freydl after many years of fruitless searching. Newton noticed Freydl for the hearing at

a newly discovered address for him, a lawfirm in Manhattan, New York City.2

It is critical for the Court to be aware of the fact that, immediately subsequent to the entry

of the 1999 Revised Final Judgment By Consent, Freydl "disappeared," moving many times and

always eluding Newton's attempts to hunt him down and collect the large sum of money that

Freydl shamelessly stole from him, ruining his life. However, and this is also critical for

purposes of the instant motion (because Freydl lied to the Court under oath about it):

Continuously since at least 1991, Freydl maintained (and still maintains) an office
at a "movie studio" of sorts in Long Beach, California ("Focus on Cars"), in
which he also maintains an ownership interest. The address of this movie studio
is 20434 South Santa Fe Avenue, Long Beach, California. This is the address at
which Newton served the Summons and Complaint in the 2009 Consent
Judgment Renewal Action by mail.

Freydl never filed an Answer or Motion in Opposition to the 2009 Consent Judgment

Renewal Action. However, Newton's mailing was not returned to him by the Post Office.

The Court in Clarke, supra, required evidentiary support for the defendant's contentions.
In the instant case, Freydl offered only his self-serving Declaration and perjurous testimony.
Newton, however, offers real, irrefutable written evidence that Freydl lied to this Honorable
Court, infra.
2
Freydl, of course, also challenged service of the motion upon him at Vernon & Ginsburg,
claiming, surreptitiously, that said Vernon & Ginsburg did not give him his mail, even though he
selected said lawfirm as the official recipient of his important mail concerning the newly
discovered lawsuit featuring Freydl as Plaintiff, discussed, infra. While Freydl's contention is
beyond ludicrous, the effectiveness of said service was not ruled upon by the Court and is not
germane to the instant motion.

3
Newton assumed at the time that Freydl no longer had any relationship with "Focus on Cars,"

due to phony information that Freydl's collusive cronies at "Focus on Cars" had previously given

him.

Somehow, Newton finally "hit pay dirt" in January, 2011 when visiting his brother,

Richard, in Woodstock, New York. Newton's constant "Googling" of Freydl at last produced a

"hit": Freydl was suing somebody in Federal Court in New York City!3 Newton cannot

emphasize strongly enough how fortuitous this "hit" was: Newton had been searching in vain for

Freydl for over a decade, and none of his efforts, including hiring a private investigator, had

previously borne any fruit. Newton has new evidence to support this position: the December 29,

2003 "Change of Address or Boxholder Information Request Format" showing that Freydl

departed his address of 7 Birdie Lane, Traybuco Canyon, California 92679-4927 with "moved,

left no forwarding address." This form was "liened and locked" in storage and absolutely

unavailable to Newton at the 2011 Evidentiary Hearing. He was only able to retrieve it in

October, 2012.4 It is attached hereto and labeled as Exhibit 3. As fully demonstrated, Newton

3
Apparently, Newton inadvertently utilized "Google Local" (rather than simply "Google"),
which produced information that never appeared during Newton's Michigan "Google" searches.
4
No amount of due diligence could have produced these records, which were liened and locked
by Newton's storage facility. The requirements for newly discovered evidence include a
showing of reasonable diligence and that the evidence (1) was not previously available, (2) is not
merely cumulative, and (3) is likely to change the result. Longhofer, Michigan Court Rules
Practice, §2.612.11, P 509.

The "Freydl & Associates, LTD" bank statements, discussed, infra, concern an entity that
is not a party to this litigation. Moreover, the records were not available to Newton until well
after the Court issued its challenged December 21, 2011 Order. They were fortuitously
provided to him by an unrelated third party in 2012. Moreover, the bank records are completely
different from the other evidence that was presented to the Court at the September 2nd and 6th
Evidentiary Hearing, discussed, infra. Their materiality was camouflaged by Freydl himself,
who spent the better part of the second quarter of 2011 litigating the irrelevance of "Freydl &
Associates, LTD" to Newton's Judgment in the Superior Court for the County of Orange, State of
4
has been trying to find Freydl and serve him with documents at an address other than "Focus on

Cars" for a decade.5 Newton should not be punished by having his Consent Judgment vacated

simply because Freydl has done everything in his power to avoid Newton's collection efforts of

that Consent Judgment. Newton served Freydl at the only address that he had for Freydl at the

time: "Focus on Cars." Freydl cannot simply avoid Newton's efforts to find him, get his cronies

California. However, Freydl's herculean fraud revealed itself once again: Freydl used the
"Freydl & Associates, LTD" bank account and debit card as his personal bank account, wholly
unrelated to so-called "corporate" expenses. There is simply no way that Newton could have
known this materiality prior to the September 2nd and 6th, 2011 Evidentiary Hearing.
Moreover, this fraud is, of course, extrinsic to the instant case, and prevented Newton from
having a fair, adversarial trial on this issue.

Most importantly, the newly discovered, "Freydl & Associates, LTD" bank records are a
veritable "game changer" and, as such, are extremely likely to change the result, inasmuch as they
prove, with irrefutable certainty, that Freydl misled the Court on the critical, decisive and
singular issue of whether Freydl was at "Focus on Cars" when Newton mailed the Summons and
Complaint in the 2009 Consent Judgment Renewal Action to him there. Newton is not required
to prove anything other than that Freydl received his mail at "Focus on Cars" during the relevant
time period and that Newton mailed the service there, since "Focus on Cars" was the address that
Freydl "used in the pleadings" in this case since 1997, and service was required to be mailed to it
there, pursuant to MCR 2.107(C) (Service on a party must be made by delivery or by mailing to
the party at the address stated in the party's pleadings") (emphasis added). Meanwhile, MCR
2.107(B)(1)(a) is inapplicable, since this was not service of an original Summons and Complaint
- it was a Renewal Complaint, since personal jurisdiction over Freydl was admitted by him, since
it was required by virtue of his chosen motion vehicle [MCR 2.612(B)], and since it was
continuous from 1997. Simply put, service of a "new" Summons was superfluous.

Moreover, the Court Clerk made a mistake by assigning the matter a new case number:
2009-103041-CZ. Pursuant to the SCAO Memorandum, supra, no new case number should
have been assigned. A Summons was already issued and personally served on Freydl in the
year 1997 in the instant case - Case No. 1997-543058-CZ. Plaintiff knows of no authority for
the issuance of a second Summons after one has already been personally served, as was the 1997
Summons.

Simply put, the Court's December 21, 2011 Order (that vacated Newton's successful
renewal of the 1999 Revised Final Judgment By Consent) was based singularly upon the fraud
and deceit of Freydl as to the penultimate material fact, and Newton is entitled to relief from it
pursuant to MCR 2.612(C)(1)(b)(c) and (f).
5
This is hardly "abandoning the case," as Freydl claimed.
5
at "Focus on Cars" to lie to Newton about kicking him out, and then lie to the Court under oath

about not receiving mail or being at his decades old office at "Focus on Cars" where service was,

indisputably, made - when Freydl was indisputably there, as fully demonstrated, infra. Letting

Freydl "get away with it" is simply not substantial justice, and Newton is entitled to the relief

requested in the instant Motion.

Freydl did not challenge the Order of Consent Judgment Renewal until Newton

succeeded in garnishing $21,055.59 from what Freydl has called an "affiliated" (but actually

suspended) corporation that Freydl maintained to divert his personal funds into for the purpose of

thwarting the collection efforts of creditors such as Newton.6

6
Freydl succeeded in unwinding Newton's successful garnishment, arguing to the Superior Court
for the County of Orange, California that said corporation ("Freydl & Associates, LTD") was
unrelated to Freydl himself and, of course, could not be garnished. A copy of the June 23, 2011
"Minute Order" in Newton v Freydl, is attached hereto and labeled as Exhibit 4.

For purposes of the instant motion, Newton respectfully requests that the Court recognize
Freydl's fabricated hypocrisy: Freydl only responded to the 2009 Judgment Renewal Lawsuit
and the Order of Consent Judgment Renewal after said corporation was garnished nearly three
(3) years after service of the Summons and Complaint for Renewal of Consent Judgment (thus
showing a relationship between the two - and proving that Freydl was aware of the 2009
Judgment Renewal Lawsuit and the Order of Consent Judgment Renewal all along, not only
after Vernon & Ginsburg belatedly gave him his mail from Newton a couple of months before he
filed his Motion to Vacate Order of Consent Judgment Renewal). However, as to the
garnishment itself, of course, Freydl claimed that the two entities (Mr. Freydl vs. "Freydl &
Associates, LTD") were completely unrelated.

The actual relationship between Mr. Freydl and "Freydl & Associates, LTD" is vitally
important to the instant motion because:

1. At the time of the garnishment, all that Newton had to work with was the
bank account number of an account at Bank of America. He had no idea
who or what owned the account, except that it was somehow at issue in
the New York Freydl vs. Meringolo litigation, discussed, infra.
Accordingly, on the April 1, 2011 Request And Writ For Garnishment
issued by this Court, Newton had an a friend (since Newton was in New
York at the time) handwrite "and any account of Thomas Freydl & Freydl
& Ass" on the margin of the "Garnishee Name And Address" box of the
6
On On July 6, 2011, Freydl filed his Motion To Vacate Order Of Consent Judgment

Renewal. Newton, who was in California at the time and busy litigating against Freydl in the

Orange County Superior Court, had to fly (he despises flying) to Michigan for the hearing on

short (and expensive) notice. On July 13th, 2011, this Court heard Freydl's oral argument

concerning his Motion To Vacate Order Of Consent Judgment Renewal. The Court granted

Newton's request to conduct an evidentiary hearing and, accordingly, the Court did not entertain

his oral argument.

On September 2nd and 6th, 2011, this Court conducted an evidentiary hearing

("Evidentiary Hearing") on the sole issue of service (not on service of process) of Newton's

irrefutably timely Consent Judgment Renewal Action to Freydl, which, as noted, was served by

mail at the "Focus on Cars" address in California. Freydl's challenged MCR 2.612(B) Motion

("Challenged Motion") is res ipsa loquitor of this Court's personal jurisdiction over him.7

form. The eventual garnishment was against the "Freydl & Associates
LTD" account.

2. Almost all of the money that was deposited in the "Freydl & Associates,
LTD" "corporate" bank account (the total in the account as of the
garnishment was $21,055.59) came from checks written by Focus on Cars
(or its subsidiary, "South Bay Studios") to Freydl himself. Accordingly,
there is simply no way that Freydl could be aware that the Focus on Cars
checks were being garnished unless he maintained an office at Focus on
Cars, where the 2009 Renewal Lawsuit Summons and Complaint were
served upon him, since the checks were written by an entity located at the
very same address, 20434 South Santa Fe Avenue, Long Beach,
California.
7
MCR 2.612(B) provides:

(B) Defendant Not Personally Notified. A defendant over whom personal


jurisdiction was necessary and acquired, but who did not in fact have knowledge
7
Accordingly, it is undisputed and unchallenged it was not necessary to personally serve Freydl

with a Summons.8

Throughout the September 2nd and 6th, 2011 Evidentiary Hearing, Freydl repeatedly and

continuously lied - both in argument and under oath on the witness stand - concerning virtually

every aspect of this entire lengthy litigation - litigation of which he is irrefutably the sole cause.9

of the pendency of the action, may enter an appearance within 1 year after final
judgment, and if the defendant shows reason justifying relief from the judgment
and innocent third persons will not be prejudiced, the court may relieve the
defendant from the judgment, order, or proceedings for which personal
jurisdiction was necessary, on payment of costs or on conditions the court deems
just. Id. (emphasis added).

Accordingly, by the very terms of the rule itself, Freydl could not have utilized MCR
2.612(B) as the vehicle for his Challenged Motion unless the Court had already obtained
personal jurisdiction over him. The Court did not impose any conditions or order Freydl to pay
any costs.
8
Personal service of a summons is required to acquire personal jurisdiction over a defendant.
See MCR 2.105. However, the 2009 Action was a renewal action, not a brand new lawsuit.
This Court obtained personal jurisdiction over Freydl in 1997. See Longhofer, Michigan Court
Rules Practice, §2.612.8, P 505 ("MCR 2.612(B) does not apply to cases in which the court
lacked personal jurisdiction over the defendant, but such jurisdiction was required for entry of a
valid judgment"). Accordingly, by the very terms of MCR 2.612(B) itself, Freydl could not
have utilized such rule as the vehicle for his Challenged Motion unless the Court already had
personal jurisdiction over him. Regardless, the Summons and Renewal Complaint of the
Renewal Action were served upon Freydl by mail, as testified to by witness Richard E. Ferrette.
9
Predictably, there was nothing new about Freydl's intrinsic fraud and misrepresentations.
Among a few of Freydl's voluminous lies and misrepresentations to Newton, this Court and the
Courts of New York are and California:

A. When Freydl stole virtually all of Newton's money in 1994 and 1995, he
began his deniability charade immediately, offering blatantly false claims
that "he would never put Newton (and his brother) at risk;"

B. When Freydl stole an additional $27,000.00 from Newton in 1995 (these


funds were not part of the eventual 1999 Revised Final Consent Judgment)
he cleverly insulated himself from the transaction stream, conning Newton
into directly wire transferring the $27,000.00 into the bank account of one
of his cronies, a California Corporation known as "3 Ring Productions;"

8
Of special interest is his ludicrous attempt to distance himself from the "Focus on Cars" movie

compound by committing perjury that he never had an office there.

FREYDL LIED TO THE COURT UNDER OATH ABOUT


THE SERVICE OF THE 2009 JUDGMENT RENEWAL ACTION

C. During the actual litigation phase (1997-1999) of this lawsuit, Freydl


surreptitiously entered into a Consent Judgment which he had no
intention of ever paying anything on. Indeed, during the September 2,
2011 Evidentiary Hearing, Freydl testified that he not only did not enter
into the Consent Judgment, but also, that he had no knowledge of it;

D. During the initial collection attempt phase of this lawsuit, Freydl entered
into a fraudulent, "sham" divorce from Karen V. Freydl, his wife of thirty
five (35) years, to avoid collection from Newton - all within six (6)
months of Mrs. Freydl's absurd, collusive claims of spousal immunity in
this Court in response to Newton's subpoena to her as to Freydl's
whereabouts, since Newton, despite continuous effort, had been unable to
locate him for years. The entire Freydl "divorce case"9 (Case No. 2006-
725235-DO, Hon Lisa Gorcyca) which is on file herein) took only seventy
eight (78) days to produce a Judgment of Divorce that granted Mrs. Freydl
over twenty five million dollars ($25,000.00) in alimony and spousal
support;

E. Lying to this Court under oath during the September 2, 2011 Evidentiary
Hearing that Newton's Motion for Judgment Renewal was not mailed to or
received at the swank, Park Avenue, Manhattan, New York City lawfirm
of Vernon & Ginsburg, even though Freydl used Vernon & Ginsburg's
physical address as his official address for his one hundred and fifty
thousand dollar ($150,000.00 lawsuit) against a Brooklyn, New York
attorney. In that lawsuit, Freydl criminally held himself out to the New
York Courts and Brooklyn attorney John Meringolo as a licensed attorney,
despite Freydl's disbarment for stealing money from clients in both
Michigan and California. New York is unable to disbar Freydl, who has
never been a member of the New York Bar. This "minor detail" has not
stopped Freydl from suing attorney John Meringolo for attorney
professional fees at several hundred dollars per hour;

F. Filing a barratrous lawsuit against Newton's brother, Richard (but not


against Plaintiff Newton himself) in California as "agent" of Plaintiff
Newton for the latter's alleged slander of Freydl. This vexatious litigation
cost Richard Newton $3,500.00 in legal fees to dispose of. That the said
litigation was vexatious is res ipsa loquitor due to Plaintiff Newton's
pending bar readmission status.

9
On September 2, 2011 and again on September 6, 2011, Freydl testified in this Court

under oath that he was in New York City the entire time between August 11th, 2011 and

November 11th, 2011. Relevant portions of the Evidentiary Hearing Transcript, September 2nd

and 6th, 2011, are attached hereto and labeled as Exhibit 5. Freydl also submitted a perjurous

Declaration to this Court, which also falsely claims that he was in New York when Newton

served him in California. It is attached hereto and labeled as Exhibit 6. A chart in response,

showing the falsity of each of Freydl's self-serving claims, is attached hereto and labeled as

Exhibit 7.

Of course, this time period completely bookends the “life” of the Summons issued by the

Court Clerk in the 2009 Judgment Renewal Action,10 during which it is (and has been) Newton’s

resolute contention that Freydl was properly served with the Summons and Complaint by mail to

the address that he used in the pleadings,11 20434 South Fanta Fe Avenue, Long Beach, CA

10
The 2009 Consent Judgment Renewal Action was not a “new” lawsuit but instead was a “mere
continuation” of the original, 1997 Action, 1997-543058-CZ. See Michigan SCAO
Memorandum, supra. The 2009 Consent Judgment Renewal Action was irrefutably filed prior
to the expiration of the ten (10) year anniversary of the August 11, 1999 Revised Final Consent
Judgment. Since the 2009 Consent Judgment Renewal Action was a “mere continuation” of the
original 1997 Action, personal service of process of the summons and Complaint under MCR
2.105(A) was not required. Michigan SCAO Memorandum, supra; Van Reken v Heitch, supra.
Service by mail to the address that Freydl used in the original pleadings (20434 South Santa Fe
Avenue, Long Beach, CA 90810 – "Focus on Cars") – which was accomplished on August 16,
2009 [and service by mail is complete upon mailing, MCR 2.107(C)(3)], was all that was
required.
11
Personal service of the Summons and Complaint of the 2009 Judgment Renewal Action was
not required, because:

A. The 2009 Judgment Renewal Action was a mere continuation of the original 1997
Action (despite the new case number), as opposed to a “new” lawsuit, which would
require the acquisition of jurisdiction over the person of Freydl and thus a new Summons;
Michigan SCAO Memorandum, supra; Van Reken v Heitch, supra;

B. Jurisdiction over Freydl (i) was already acquired, McGraw v Parsons, 142 Mich App
22, 369 N.W.2d 251 (1985); Ewing v Bolden, 194 Mich App 95, 486 N.W.2d 96 (1992),
10
90810 (“Focus on Cars”), see, e.g., 1997 Answer to Complaint (on file herein and to be supplied

at Hearing).12 In his Brief, Freydl did not dispute the success of this mailing,13 only that he

was absent from Focus on Cars to receive it. Freydl Brief in Support of Motion to Vacate

Renewal of Consent Judgment (on file herein).

(ii) was admitted by Freydl, (July 13th, 2011 Hearing Transcript, to be supplied at
Hearing), and (iii) was an absolute condition precedent to his ability to proceed under
MCR 2.612(B) (“Defendant Not Personally Notified. A defendant over whom personal
jurisdiction was necessary and acquired, but who did not in fact have knowledge of the
pendency of the action, may enter an appearance within 1 year after final judgment, and
if the defendant shows reason justifying relief from the judgment and innocent third
persons will not be prejudiced, the court may relieve the defendant from the judgment,
order, or proceedings for which personal jurisdiction was necessary, on payment of costs
or on conditions the court deems just”). Id. (emphasis added). No costs or conditions
were ordered by the Court.

C. MCR 2.107(B)(3) and (C) direct service by mail to the address used by an unrepresented
party in the pleadings, except for the initial Complaint (which was filed in 1997 and
which was personally served upon Freydl pursuant to MCR 2.105) (“[i]f a party
prosecutes or defends the action on his or her own behalf, service of papers must be made
on the party in the manner provided by subrule [C]”); (“[s]ervice on a party must be made
by delivery or by mailing to the party at the address stated in the party's pleadings”). The
address that Freydl used in the pleadings was 20434 South Santa Fe Avenue, Long
Beach, CA, 90810, and this was the address to which Richard E. Ferrette mailed the 2009
Renewal Action. January 26th, 2011 Proof of Service, Richard E. Ferrette (on file
herein); Form MC 230, Proof of Mailing, Richard E. Ferrette (on file herein). Because
Mr. Ferrette also utilized ordinary mail, Freydl was not able to thwart delivery of the
service to the Focus on Cars address, which is otherwise blocked by the gate guard.
Affidavit of Reasonable Diligence, Hamilton Barco, on file herein).

D. Newton notes that, because jurisdiction over Freydl was already acquired, the statute
of limitations was tolled, pursuant to MCL §600.5856 (“[t]he statutes of limitations or
repose are tolled in any of the following circumstances … (b) [a]t the time jurisdiction
over the defendant is otherwise acquired”).
12
Freydl co-owns the "Focus on Cars-South Bay Studios" movie studio. Newton was assigned
Freydl’s monthly "Focus on Cars-South Bay Studios" royalty checks ($3,000.00 each) in
California in June, 2011, “Minute Order,” June 23, 2011, Honorable Steven L. Perks, Orange
County Superior Court Case No. 30-2011-0046932-CU-EN-CJC, supra. It was this assignment
that prompted Freydl to file his Motion to Vacate Consent Judgment.
13
The MCR 2.114 Verification of Service of Richard E. Ferrette is on file herein.

11
Based upon Freydl's fraud and perjury concerning his whereabouts on the date of service

of the Summons and Complaint of the 2009 Consent Judgment Renewal Action, on December

21st, 2011, this Court granted Freydl's Motion To Vacate Order Of Consent Judgment Renewal.

A copy of the challenged Order is attached hereto and labeled as Exhibit 8.

FREYDL'S OWN BANK STATEMENTS PROVE WITH


ABSOLUTE CERTAINTY THAT HE WAS PRESENT AT "FOCUS ON CARS"
WHEN THE SUMMONS AND COMPLAINT IN THE 2009 CONSENT JUDGMENT
RENEWAL ACTION WERE SERVED UPON HIM THERE BY MAIL

Try as he might to outsmart Newton and bamboozle this Honorable Court, even Freydl

cannot alter bank records. Subsequent to the September 2nd and 6th, 2011 Evidentiary Hearing,

Newton obtained the bank statements showing individual purchases with Freydl's debit card (not

just the cancelled checks from the account, which were all that was available to Newton for the

September 2nd and 6th, 2009 Evidentiary Hearing) for Freydl's phony “Freydl & Associates,

LTD” “corporate” account.14 Copies of these records are attached hereto and labeled as Exhibit

9. These records prove with conclusive, irrefutable certainty that Freydl was not in New York

City when service was accomplished in Long Beach, California on August 18th, 2009 as he

falsely testified; rather, he was exclusively in Long Beach and Newport Beach California,

making purchases nearly every day with his debit card. Many purchases occurred right near

the service address at "Focus on Cars," where he visited to pick up his checks, which he

cashed immediately in California, not in New York. The following chart shows all of

Freydl’s spending activity; note that he was served on August 16th, 2011 with the Summons and

Complaint in the 2009 Consent Judgment Renewal Action at the address that he used in his 1997

14
Newton could not have produced these specific bank records even with extraordinary diligence
prior to the September 2nd and 6th, 2009 Evidentiary Hearing, as they were only subsequently
made available to him by a third party, and he does not have subpoena power to command their
production otherwise.
12
pleadings.15 Assuming normal mail delivery, the mailing arrived at Focus on Cars two (2) days

later, on August 18th, 2011 (Form MC 230 Proof of Mailing, Richard E. Ferrette, is on file

herein). Especially note that not a single purchase occurred in New York, and only one

purchase was made outside of the Southern California area, in Las Vegas:

DATE PURCHASE AMOUNT WHERE

August 7, 2009 City Grill Check Card $128.49 New York City

>> August 14, 2009 ~ FREYDL FILES SUIT AGAINST MERINGOLO IN NYC <<

>> August 14 or 15, 2009 ~ FREYDL FLIES FROM NYC BACK TO LONG BEACH <<

16
August 15, 2009 Ampco Parking Lot $198.00 LONG BEACH

(Freydl, back in Long Beach, pays for the long term parking of his car during his NYC trip)

August 16, 2009 SERVICE MAILED FROM ROYAL OAK, MI TO LONG BEACH

August 17, 2009 Union 76 Gas Station $10.12 Newport Beach, CA

August 18, 2009 SERVICE RECEIVED IN LONG BEACH, CA

August 18, 2009 Time Warner Cable Bill $130.88 Newport Beach, CA

August 21, 2009 Rubinos Pizza $13.00 Newport Beach, CA

August 25, 2009 Jack in the Box $8.29 Newport Beach, CA

15
Newton was not aware of the Meringolo litigation until seventeen (17) months after he served
Freydl (August 16, 2009 to January, 2011).
16
How transparent can this be?!? Freydl filed suit against Meringolo in New York City on
August 14, 2009. He flew to Long Beach, California on August 14, 2009, and paid his $198.00
parking bill at the Ampco parking lot (which is just minutes away from "Focus on Cars") in
Long Beach, California on August 15, 2009. He was at "Focus on Cars" in Long Beach,
Califrornia, not in New York City, on August 18, 2009, when Newton's service arrived at his
longstanding office at "Focus on Cars."
13
August 27, 2009 Norm’s Restaurant $8.25 Costa Mesa, CA

August 28, 2009 C&L Cleaners $36.35 Newport Beach, CA

August 30, 2009 National Minute King $8.39 Newport Beach, CA

August 31, 2009 National Minute King $3.20 Newport Beach, CA

September 3, 2009 Rent Payment – Apt $1,595.00 Newport Beach, CA

September 09, 2009 Chevron Gas $10.01 LONG BEACH, CA

September 9, 2009 Jack in the Box $9.89 Newport Beach, CA

September 10, 2009 Chevron Gas $10.10 LONG BEACH, CA

September 11, 2009 Chevron Gas $19.66 Barstow, CA

September 11, 2009 C & L Cleaners $32.00 Newport Beach, CA

September 14, 2009 Sahara Casino $30.99 Las Vegas, NV

September 21, 2009 Ampco Parking Lot $60.00 LONG BEACH, CA

September 24, 2009 Time Warner Cable $130.88 Newport Beach, CA

September 24, 2009 Jack in the Box $6.35 Newport Beach, CA

September 26. 2009 Exxon Mobil $12.03 La Mirad, CA

September 26, 2009 Albertsons $15.56 Newport Beach, CA

September 27, 2009 Marios Taste of Italy $10.32 Newport Beach, CA

September 27, 2009 CVS Pharmacy $13.68 Newport Beach, CA

September 29, 2009 Marie Callen $16.29 Montebello, CA

September 29, 2009 $2,000.00 FOCUS ON CARS CHECK WRITTEN

14
September 30, 2009 $2,000.00 FOCUS ON CARS CHECK CASHED

September 30, 2009 Chevron Gas $10.00 LONG BEACH, CA

FREYDL TESTIFIED THE ABOVE CHECK WAS


FEDEXED TO HIM IN NYC AND THAT HE CASHED IT THERE

October 1, 2009 Charlie’s Chili $11.12 Newport Beach, CA

October 1, 2009 ATM Cash Withdrawal $43.00 Corona, CA

October 1, 2009 ATM Cash Withdrawal $103.00 Corona, CA

October 1, 2009 Union 76 Gas $15.03 Newport Beach, CA

October 1, 2009 C & L Cleaners $42.35 Newport Beach, CA

October 2, 2009 Enterprise Car Rental $500.0 Newport Beach, CA

October 2, 2009 Enterprise Car Rental $978.72 Newport Beach, CA

October 2, 2009 Albertson’s $16.22 Newport Beach, CA

October 2, 2009 ATM Cash Withdrawal $43.00 Tustin, CA

October 3, 2009 National Minute King $4.70 Newport Beach, CA

October 3, 2009 National Minute King $6.83 Newport Beach, CA

October 3, 2009 Round Table Pizza $11.41 Costa Mesa, CA

October 3, 2009 Petrolink Gas $21.29 Newport Beach, CA

October 4, 2009 National Minute King $16.81 Newport Beach, CA

October 5, 2009 CVS Pharmacy $12.56 Costa Mesa, CA

October 6, 2009 National Minute King $4.79 Newport Beach, CA

15
October 6, 2009 Jack in the Box $6.35 Newport Beach, CA

October 6, 2009 7-Eleven $7.85 Newport Beach, CA

October 7, 2009 Albertsons $3.09 Newport Beach, CA

October 7, 2009 National Minute King $12.03 Newport Beach, CA

October 7, 2009 Rubinos Pizza $13.00 Newport Beach, CA

October 8, 2009 National Minute King $13.93 Newport Beach, CA

October 9, 2009 National Minute King $8.44 Newport Beach, CA

October 10, 2009 7-Eleven $8.94 Newport Beach, CA

October 13, 2009 Charlie’s Chili $12.82 Newport Beach, CA

October 13, 2009 Chevron Gas $10.09 Long Beach, CA

October 14, 2009 Enterprise Car Rental $500.00 Newport Beach, CA

October 21, 2009 Time Warner Cable $130.88 Newport Beach, CA

October 23, 2009 Chevron Gas $10.00 Costa Mesa, CA

October 29, 2009 National Minute King $5.66 Newport Beach, CA

October 29, 2009 Jack in the Box $10.04 Newport Beach, CA

October 30, 2009 Staples $12.26 Newport Beach, CA

October 30, 2009 Charlie’s Chili $11.12 Newport Beach, CA

October 30, 2009 Union 76 Gas $13.08 Newport Beach, CA

November 1, 2009 Petrolink Gas $12.78 Newport Beach, CA

November 1, 2009 Charlie’s Chili $13.09 Newport Beach, CA

16
November 2, 2009 Cash Withdrawal $1,000.00 Costa Mesa, CA

November 2, 2009 Union 76 Gas $12.01 Newport Beach, CA

November 2, 2009 C & L Cleaners $28.90 Newport Beach, CA

November 3, 2009 Albertson’s $10.84 Newport Beach, CA

November 3, 2009 Kinkos $2.53 Newport Beach, CA

November 3, 2009 Enterprise Car Rental $207.06 Newport Beach, CA

November 3, 2009 Enterprise Car Rental $300.00 Newport Beach, CA

November 5, 2009 Chevron Gas $15.49 LONG BEACH, CA

November 9, 2009 C & L Cleaners $20.50 Newport Beach, CA

November 10, 2009 Kinkos $2.93 Newport Beach, CA

November 10, 2009 Enterprise Car Rental $300.00 Newport Beach, CA

November 11, 2009 Jack in the Box $8.20 Newport Beach, CA

A copy of Freydl’s Bank Statements is attached hereto and labeled as Exhibit 9.

Freydl’s perjurous testimony that he was in New York City when he was served in Long

Beach, California was the sole basis for this Honorable Court’s December 21st, 2011 Order

Vacating Renewal of Consent Judgment, inasmuch as the Court apparently determined that

Freydl was not served in California since he testified that he was in New York on the date of

service.17

17
The Court Explorer online docket to this case shows that Freydl filed self-serving "Findings of
Fact and Conclusions of Law." Freydl never served them on Newton, who has never seen them.
Presumably, they state that Freydl was in New York City when Plaintiff served him in Long
Beach, California. Newton did not file a similar document because he did not believe that the
Court had permitted them to be filed. Pursuant to MCR 2.517, the Court, not the parties, makes
findings of fact.
17
As conclusively demonstrated by the above chart, Freydl was in Long Beach, California

during the life of the Summons of the 2009 Consent Judgment Renewal Action at least seven (7)

times, on September 9, 10, 21, 30, October 13 and November 3, 2009.18 He picked up his regular

monthly check from "Focus on Cars" on September 29, 2009 and cashed in in California the next

day. He lied on the witness stand about being in New York City on these dates and having the

"Focus on Cars" check mailed to him. He spent time at "Focus on Cars," where he has, and has

had for decades, an office and where he gets paid each and every month of the year. He was

served with the Summons and Complaint in the 2009 Consent Renewal Judgment Action at

"Focus on Cars," at the very same the address that he used in the pleadings in this case fifteen

(15) years ago. It is ludicrous beyond description for him to overturn a Consent Judgment on

the basis of his criminal perjury. At the same time, it is not surprising that someone who stole

nearly $100,000.00 would lie repeatedly in Court to protect that theft. Thomas Patrick Freydl

has treated this Honorable Court as a mockery of justice and used it as an instrumentality of theft

in order to steal Newton’s life savings. This is not justice, and this cannot stand. Justice must be

served in this case by this Honorable Court. Justice does not permit Freydl to steal Newton’s life

savings and “get away with it” by lying under oath.

WHEREFORE, Plaintiff, Jeffrey Stewart Newton, hereby requests that his Honorable

Court enter its Order:

1. Setting the matter down for an evidentiary hearing on the issue of the fraud of the

Defendants, Thomas Patrick Freydl and Freydl & Associates;

18
It also appears that Freydl was in California, not New York, for the entire life of the Summons,
with the exception of his brief visit to New York City to sue attorney John Meringolo and a one
day trip to gamble in Las Vegas.
18
2. Granting Plaintiff, Jeffrey Stewart Newton, relief from the Court's December 21,

2011 Order that Granted Defendant Thomas Patrick Freydl & Freydl & Associates' Motion To

Vacate Order Renewing Consent Judgment;

3. Reinstating the Court's February 11, 2011 Order Renewing the 1999 Revised

Final Judgment by Consent;

4. In the alternative, issuing a new summons so that this matter can proceed forward

to final resolution; and

5. Ordering any other and further relief that the Court deems advisable in the

premises.

Respectfully submitted,
Jeffrey S. Newton
__________________________
Jeffrey Stewart Newton
Plaintiff In Pro Per
DATED: December 21, 2012

19
Ex. 10

1
2
Ex. 17

Michigan Supreme Court


State Court Administrative Office
Trial Court Services Division
Michigan Hall of Justice
P.O. Box 30048
Lansing, Michigan 48909
Phone (517) 373-4835

MEMORANDUM

DATE: February 4, 2005

TO: Circuit, District and Municipal Court Judges


cc: Court Administrators, Clerks of Court

FROM: Sandi Hartnell, Management Analyst

RE: Renewal of Judgment

The following information is provided in response to inquiries received by the State Court Administrative
Office regarding the appropriate procedure for handling an action to renew judgment pursuant to MCL
600.5809.

On November 20, 2003, the Court of Appeals issued an opinion in the case of Van Reken v Darden, Neef
& Heitsch, 259 Mich App 454, 461 (2003). The court found that “…plaintiff’s ex parte motion
constituted an assertion of a right through a judicial proceeding and, thus, was sufficient to be considered
‘an action’ under MCL 600.5809(3). There was an ex parte motion and an order on that motion within
the applicable time period provided to renew the judgment.”

Therefore, it appears that plaintiffs have two methods by which they may seek a renewal of the judgment:
 by filing an ex parte motion and payment of the motion fee, or
 by filing a summons and complaint and payment of the applicable filing fee.

If the plaintiff files an ex parte motion, the court may not require any additional fee or portion of a fee
other than the motion fee required under MCR 2.119(G).

Whether a party seeks to renew the judgment by filing a summons and complaint or by ex parte motion,
the court should not create a new case file. The complaint is not the commencement of a new action, but
a means to extend the life of the judgment. Filing the pleadings in the existing file will eliminate tracking
and cross-referencing two files for the same action, eliminate the possibility of collection action on both
judgments, and improve the accuracy of caseload statistics.

The opinion may be viewed at the Court of Appeals website, as follows:


http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20031120_C240478_43_240478.OP
N.PDF

Procedural questions may be referred to Dawn Childress, childressd@courts.mi.gov , 517-373-3756, or


Sandi Hartnell, hartnells@courts.mi.gov , 517-373-0122.

1
| | Positive
As of: September 27, 2014 5:43 PM EDT 36
McGraw v. Parsons
Court of Appeals of Michigan
November 13, 1984, Submitted ; April 15, 1985, Decided
Docket No. 77003

Reporter
142 Mich. App. 22; 369 N.W.2d 251; 1985 Mich. App. LEXIS 2600

S. TENNEY MCGRAW, Plaintiff-Appellee, v. DONALD Outcome


H. PARSONS, Defendant-Appellant. The court concluded that the minimum contacts test was
met in this case and that the trial court had limited personal
Subsequent History: [***1] Leave to appeal applied for.
jurisdiction over defendant, and held the award of interest
Disposition: Affirmed. was appropriate so affirmed the judgment of the trial court.

Core Terms LexisNexis® Headnotes

personal jurisdiction, consent judgment, forum state, Civil Procedure > ... > In Rem & Personal Jurisdiction > In
borrower, trial court, contacts, statutory interest, judgment Personam Actions > General Overview
interest
HN1 Any action on a judgment, whether pursuant to a new
complaint or a writ of scire facias, is a continuation of the
Case Summary original action such that jurisdiction over the person is
proper in the court which rendered the original judgment.
Procedural Posture
In an action to enforce a prior judgment, appellant borrower Civil Procedure > ... > Jurisdiction > Jurisdictional Sources >
sought review of the decision of the Oakland County Circuit General Overview
Court (Michigan) in favor of appellee lender, finding the Civil Procedure > ... > Jurisdiction > In Rem & Personal
court had personal jurisdiction over the borrower and Jurisdiction > General Overview
awarding statutory interest.
Civil Procedure > ... > In Rem & Personal Jurisdiction > In
Overview Personam Actions > General Overview
The borrower, who was a resident of Michigan prior to Civil Procedure > ... > Jurisdiction > Subject Matter
1977, and of Florida thereafter, did substantial business Jurisdiction > General Overview
within the state prior to 1977. The lender made a loan to the
borrower in 1968, which the borrower failed to repay, and HN2 Mich. Comp. Laws § 600.705; Mich. Stat. Ann. §
for which the lender obtained an earlier consent judgment. 27A.705, provides in pertinent part that the existence of any
The instant cause of action clearly arose from the borrower’s of the following relationships between an individual or his
activities in Michigan, including the initial loan, the consent agent and the state shall constitute a sufficient basis of
judgment and the borrower’s failure to satisfy his obligations jurisdiction to enable a court of record of this state to
under the consent judgment. The court agreed with the trial exercise limited personal jurisdiction over the individual
court, and found that the borrower could reasonably have and to enable the court to render personal judgments against
expected to be haled before a Michigan court in the event he the individual or his representative arising out of an act
failed to satisfy the judgment or the underlying obligation. which creates any of the following relationships: (1) The
The court held Michigan courts continued to have personal transaction of any business within the state.
jurisdiction over the borrower. The court also concluded that
a six-percent interest provision in the earlier consent Civil Procedure > ... > In Rem & Personal Jurisdiction > In
judgment did not preclude the award by the trial court of Personam Actions > General Overview
statutory judgment interest under the instant judgment. Civil Procedure > ... > In Rem & Personal Jurisdiction > In
Therefore, the court affirmed the decision. Personam Actions > Minimum Contacts

DAVID RUDOI
1
Page 2 of 4
142 Mich. App. 22, *22; 369 N.W.2d 251, **251; 1985 Mich. App. LEXIS 2600, ***1

Civil Procedure > ... > Jurisdiction > Subject Matter Counsel: Fischer, Franklin, Ford, Simon & Hogg (by Mark
Jurisdiction > General Overview W. McInerney), for plaintiff.

HN3 To exercise limited personal jurisdiction over a Hardig, Goetz, Heath, Merritt & Reebel (by Joseph L.
nonresident defendant, due process requires only that the Hardig, Jr. and Joseph L. Hardig III), for defendant.
defendant have certain minimum contacts with the state
such that maintenance of the suit does not offend traditional Judges: Hood, P.J., and Bronson and R. L. Tahvonen, * JJ.
notions of fair play and substantial justice.
Opinion by: TAHVONEN
Civil Procedure > ... > In Rem & Personal Jurisdiction > In
Personam Actions > General Overview
Opinion
Civil Procedure > ... > In Rem & Personal Jurisdiction > In
Personam Actions > Minimum Contacts
[*23] [**252] On August 10, 1972, the Oakland County
Civil Procedure > ... > In Rem & Personal Jurisdiction > In Circuit Court entered a consent judgment in favor of
Personam Actions > Purposeful Availment plaintiff McGraw and against defendant Parsons, in the
Civil Procedure > ... > Jurisdiction > Subject Matter amount of $ 66,666.66, plus interest. The judgment remained
Jurisdiction > General Overview unsatisfied, and on May 27, 1982, plaintiff commenced the
instant action to renew the judgment pursuant to MCL
HN4 The courts apply a three-part test for determining 600.5809; MSA 27A.5809. Defendant was served with the
whether a given set of circumstances provides sufficient complaint and summons in Palm Beach County, Florida.
minimum contacts between a nonresident defendant and a
forum state to support limited personal jurisdiction. First, [*24] Defendant filed a motion for accelerated judgment
the defendant must purposefully avail himself of the privilege averring that he had been a resident of Florida since 1977,
of acting in the forum state, thus invoking the benefits and and therefore the Oakland County Circuit Court lacked
protections of its laws. Second, the cause of action must personal jurisdiction over him. The motion was denied and
arise from defendant’s activities in the forum state. Finally, the question certified for immediate appeal, but this Court
the acts of defendant must have substantial enough denied leave to appeal.
connection with the forum state to make the exercise of
jurisdiction over defendant reasonable. An important factor Defendant subsequently filed [***2] an answer admitting
bearing upon the reasonableness of asserting jurisdiction is that the August 10, 1972, judgment was valid and remained
whether defendant’s conduct and connection with the forum unsatisfied, and again asserting lack of personal jurisdiction
state are such that he would have reasonably anticipated by way of an affirmative defense. Defendant further alleged
being haled into court there. that interest on the judgment from and after the date of entry
was inappropriate. On February 27, 1984, the trial court
Civil Procedure > Judgments > Entry of Judgments > Consent granted plaintiff’s motion for summary judgment and
Decrees awarded statutory judgment interest. MCL 600.6013; MSA
Civil Procedure > Remedies > Judgment Interest > General 27A.6013. Defendant appeals as of right.
Overview
I
Civil Procedure > Remedies > Judgment Interest > Prejudgment
Interest Did the Trial Court Have Personal Jurisdiction Over
Defendant?
HN5 There is a distinction between interest on a judgment,
which is purely statutory, and prejudgment interest included Defendant concedes that had plaintiff proceeded by obtaining
as an element of damages. Statutory interest is computed on a writ of scire facias, which is considered an extension of
and added to the judgment. The statutory judgment interest the original action, mere notice, rather than an independent
provision is designed to compensate the plaintiff for the loss ground for assertion of personal jurisdiction, would be all
of use of the funds and is mandatory in nature. On the other that is required. Defendant contends, however, that the
hand, prejudgment interest as an element of damages is present action to renew the judgment under MCL 600.5809;
awarded as part of the general verdict or, as in the instant MSA 27A.5809 was a new action which required plaintiff to
case, incorporated into the consent judgment. independently establish personal jurisdiction over defendant.

*
Circuit judge, sitting on the Court of Appeals by assignment.

DAVID RUDOI
2
Page 3 of 4
142 Mich. App. 22, *24; 369 N.W.2d 251, **252; 1985 Mich. App. LEXIS 2600, ***2

Defendant asserts that, since he has not resided or transacted S Ct 1228; [***5] 2 L Ed 2d 1283 (1958). Second, the cause
any business in Michigan since 1977, no personal jurisdiction of action must arise from defendant’s activities in the forum
exists. state. Finally, the acts of defendant must have substantial
enough connection with the forum state to make the
While there does not appear to be any Michigan [***3] exercise of jurisdiction over defendant reasonable. In-
decision directly on point, we agree with other [*25] Flight Devices Corp, supra, p 226, quoting Southern
jurisdictions which have generally deemed HN1 any action Machine Co, Inc v Mohasco Industries, Inc, 401 F 2d 374,
on the judgment, whether pursuant to a new complaint or a 381, (CA 6, 1968). An important factor bearing upon the
writ of scire facias, to be a continuation of the original reasonableness of asserting jurisdiction is whether
action such that jurisdiction is proper in the court which defendant’s conduct and connection with the forum state are
rendered the original judgment. See Smith v Carlson, 8 Ill such that he would have reasonably anticipated being haled
2d 74; 132 NE2d 513 (1956); Bahan v Youngstown Sheet & into court there. World-Wide Volkswagen Corp v Woodson,
Tube Co, 191 So 2d 668 (La App, 1966); Donellan Jerome, 444 U.S. 286, 297; 100 S Ct 559; 62 L Ed 2d 490 (1980).
Inc v Trylon Metals, Inc, 270 F Supp 996 (ND Ohio, 1967);
First Federal Savings & Loan Ass’n of Coffeyville v Liebert, In the present case defendant was a resident of Michigan
195 Kan 100; 403 P2d 183 (1965). prior to 1977 and did substantial business within the state.
Plaintiff made a loan to defendant in 1968, which defendant
In addition, an independent basis for assertion of limited failed to repay. The instant cause of action clearly arose
personal jurisdiction over defendant exists under MCL from defendant’s activities here, including the initial loan,
600.705; MSA 27A.705, which states in part: the consent judgment and defendant’s failure to satisfy his
obligations under the consent judgment. Defendant could
HN2 ″The existence of any of the following relationships reasonably have expected to be haled before a Michigan
between an individual or his agent and the state shall [***6] court in the event he failed to satisfy the judgment
constitute a sufficient basis of jurisdiction to enable a court or the underlying [*27] obligation. We conclude that the
of record of this state to exercise limited personal jurisdiction minimum contacts test is met in the instant case and that the
over the individual and to enable the court to render trial court had limited personal jurisdiction over defendant.
personal judgments against the individual or his
representative arising out of an [**253] act which creates II
any of [***4] the following relationships: Did the Trial Court Err in Awarding Statutory Interest on the
Judgment Pursuant to MCL 600.6013; MSA 27A.6013?
″(1) The transaction of any business within the state.″
The original action was based on a promissory note dated
This section was intended to bestow upon the courts the January 15, 1968, in the amount of $ 111,111.10, requiring
broadest grant of jurisdiction consistent with due process. annual payments of $ 22,222.22 on January 15 of each year
Sifers v Horen, 385 Mich 195; 188 NW2d 623 (1971). HN3 until paid, with interest on the unpaid balance at 6% per
To exercise limited personal jurisdiction over a nonresident annum. The first two annual payments were made, but the
defendant, due process requires only that the defendant have payment due January 15, 1970, was not made, and plaintiff
certain ″minimum contacts″ with the state such that brought suit for the balance of $ 66,666.66, plus interest
maintenance of the suit does not offend traditional notions from January 15, 1970. The August, 1972, consent judgment
of fair play and substantial justice. International Shoe Co v provided in part:
Washington, 326 U.S. 310; 66 S Ct 154; 90 L Ed 2d 95
″It is ordered that judgment be and it is hereby entered in
(1945); Khalaf v Bankers & [*26] Shippers Ins Co, 404
favor of plaintiff and against defendant for the sum of $
Mich 134; 273 NW2d 811 (1978).
66,666.66, plus interest at the rate of six percent per annum
HN4 We apply a three-part test for determining whether a from January 15, 1970 until the date hereof and without
given set of circumstances provides sufficient minimum costs to either party hereto.″
contacts between a nonresident defendant and a forum state Defendant contends that the interest provision in the
to support limited personal jurisdiction. In- Flight Devices judgment precludes the award of statutory [***7] interest.
Corp v Van Dusen Air, Inc, 466 F2d 220 (CA 6, 1972). First, We do not agree.
the defendant must purposefully avail himself of the privilege
of acting in the forum state, thus invoking the benefits and HN5 This Court has recognized the distinction between
protections of its laws. Hanson v Denckla, 357 U.S. 235; 78 interest on a judgment, which is purely statutory, and

DAVID RUDOI
3
Page 4 of 4
142 Mich. App. 22, *27; 369 N.W.2d 251, **253; 1985 Mich. App. LEXIS 2600, ***7

prejudgment interest included as an element of damages. verdict or, as in the instant case, incorporated into the
Moore v Dep’t of Military Affairs, 88 Mich App 657, 660; consent judgment.
278 NW2d 711 [**254] (1979). Statutory interest is
computed on and added to the judgment. The statutory We conclude that the 6% interest provision in the 1972
judgment [*28] interest provision is designed to compensate consent judgment does not preclude the award of statutory
the plaintiff for the loss of use of the funds and is mandatory judgment interest under MCL 600.6013; MSA 27A.6013.
in nature. Osinski v Yowell, 135 Mich App 279, 288; 354
NW2d 318 (1984). On the other hand, prejudgment interest
as an element of damages is awarded as part of the general Affirmed.

DAVID RUDOI
4
| | Positive 37
As of: September 27, 2014 6:46 PM EDT

Van Reken v. Darden, Neef & Heitsch


Court of Appeals of Michigan
September 3, 2003, Submitted ; November 20, 2003, Decided
Docket No. 240478.

Reporter
259 Mich. App. 454; 674 N.W.2d 731; 2003 Mich. App. LEXIS 2893

STANLEY VAN REKEN, Plaintiff-Appellant, v DARDEN, outstanding balance. In the firm’s motion for reconsideration,
NEEF & HEITSCH and LAWRENCE D. HEITSCH, the trial court held that the judgment was time barred by
Defendants-Appellees. Mich. Comp. Laws § 600.5809(3), as the March 7, 1991,
judgment was the final judgment. On appeal, the court held
Subsequent History: [***1] Updated Copy January 30, that there was no time bar, as the ex parte motion constituted
2004. ″an action″ within § 600.5809(3), which was sufficient to
Appeal denied by Van Reken v. Darden,Neef & Heitsch, extend the judgment. The court arrived at this determination
2004 Mich. LEXIS 1580 (Mich., July 29, 2004) by statutory interpretation, wherein it was noted that the
term ″an action″ was meant to extend to more than just the
Prior History: LC No. 01-032857.
filing of a civil complaint. The determinative judgment date
Disposition: Reversed and remanded for entry of summary was thus not determined.
disposition in favor of plaintiff.
Outcome
The court reversed the order of the trial court and remanded
Core Terms the matter for entry of summary disposition in favor of the
creditor.
renew, ex parte motion, limitations period, final judgment,
summary disposition, circuit court, civil action, legislative
intent, reconsideration, statutory interpretation, personal LexisNexis® Headnotes
jurisdiction, civil complaint, plain meaning, scire facias,
decree Civil Procedure > Appeals > Standards of Review > De Novo
Review

Case Summary Governments > Legislation > Statute of Limitations > General
Overview
Procedural Posture Governments > Legislation > Statute of Limitations > Judicial
Plaintiff judgment creditor appealed from an order of the Review
Circuit Court (Michigan), which granted the motion for
reconsideration of defendant law firm, and thereupon denied HN1 Absent a disputed issue of fact, an appellate court
the creditor’s motion for summary disposition from his decides de novo, as a question of law, whether a cause of
action that sought to renew a judgment. action is barred by a statute of limitations.

Overview Civil Procedure > Appeals > Standards of Review > De Novo
The creditor obtained a judgment in a legal malpractice Review
action against the firm on March 7, 1991. Thereafter, an Governments > Legislation > Interpretation
amended ″final judgment″ was entered on July 29, 1991.
The firm never paid on the judgment and the creditor’s ex HN2 Statutory interpretation is also a question of law that is
parte motion was granted, which extended the prior judgment considered de novo on appeal. With regard to statutory
for 10 years. Subsequently, the creditor filed a complaint on interpretation, the Michigan Supreme Court stated the
June 27, 2001, to renew the judgment in order to avoid the following: The primary goal of judicial interpretation of
10-year limitations period on the prior judgment, which he statutes is to discern and give effect to the intent of the
alleged was July 29, 1991. The trial court granted summary Legislature. The Michigan Supreme Court discerns that
judgment to the creditor and entered judgment for the intent by examining the specific language of a statute. If the

DAVID RUDOI

1
Page 2 of 5
259 Mich. App. 454, *454; 674 N.W.2d 731, **731; 2003 Mich. App. LEXIS 2893, ***1

language is clear, the court presumes that the Legislature ″Any action″ is sufficient to continue a judgment for the
intended the meaning it has plainly expressed and the statute purpose of personal jurisdiction using the same language,
will be enforced as written. Unless otherwise defined in the ″any action,″ as the Legislature used in Mich. Comp. Laws
statute, or understood to have a technical or peculiar § 600.5809(3). For purposes of personal jurisdiction, any
meaning in the law, every word or phrase of a statute will be subsequent action based on the original judgment is deemed
given its plain and ordinary meaning. to be a continuation of the original action.
Governments > Legislation > Interpretation Civil Procedure > Judgments > Entry of Judgments > Revival
of Judgments
HN3 When interpreting a statute, the fair and natural import
of the terms employed, in view of the subject matter of the HN8 The Legislature in Mich. Comp. Laws § 600.5809(3)
law, should govern. Courts may not speculate as to the clearly intended actions beyond just civil complaints to
probable intent of the Legislature beyond the language extend or renew a judgment. The phrase ″any action″ is
expressed in the statute. If the plain and ordinary meaning of broader than the phrase ″civil action,″ which reveals the
the language is clear, judicial construction is normally
Legislature’s intent to allow actions beyond a civil complaint
neither necessary nor permitted.
to extend a judgment pursuant to § 600.5809(3).
Civil Procedure > Judgments > Entry of Judgments > Revival
Governments > Legislation > Interpretation
of Judgments

HN4 See Mich. Comp. Laws § 600.2903. HN9 Once the intention of the Legislature is discovered, it
must prevail regardless of any conflicting rule of statutory
Civil Procedure > Judgments > Entry of Judgments > Revival construction.
of Judgments
Governments > Legislation > Interpretation
Governments > Legislation > Statute of Limitations > Time
Limitations HN10 Common words must be understood to have their
everyday, plain meaning. Mich. Comp. Laws § 8.3a.
HN5 See Mich. Comp. Laws § 600.5809(3).

Civil Procedure > ... > Pleadings > Complaints > General
Counsel: Daniel I. Weberman for the plaintiff. West
Overview Bloomfield.

Civil Procedure > Judgments > Entry of Judgments > Revival Lawrence D. Heitsch for the defendants. Birmingham.
of Judgments
Judges: Before: O’Connell, P.J., and Jansen and Fort Hood,
Governments > Legislation > Statute of Limitations > Time
Limitations
JJ.

HN6 Both Mich. Comp. Laws § 600.1901 and Mich. Ct. R. Opinion by: Kathleen Jansen
2.101 refer to a ″civil action.″ However, Mich. Comp. Laws
§ 600.5809(3) uses the phrase ″an action,″ thus, supporting Opinion
that the legislature intended a broader definition.
[**732] [*455] JANSEN, J.
Civil Procedure > ... > Jurisdiction > In Rem & Personal
Jurisdiction > General Overview Plaintiff appeals as of right from a circuit court order
Civil Procedure > Judgments > Entry of Judgments > Revival granting defendants’ motion for reconsideration and denying
of Judgments plaintiff’s motion for summary disposition. 1 We reverse
and remand.
HN7 Michigan courts agree with other jurisdictions which
have generally deemed any action on the judgment, whether Following a jury verdict, a judgment in the amount of $
pursuant to a new complaint or a writ of scire facias, to be 115,691.96 was entered on March 7, 1991, in favor of
a continuation of the original action such that jurisdiction is plaintiff, who, apparently, sued defendants for legal
proper in the court which rendered the original judgment. malpractice. An amended ″final judgment″ was entered on

1
On the motion for reconsideration of the circuit court’s prior grant of summary disposition to plaintiff, defendants successfully
argued that plaintiff’s complaint to renew a judgment was not filed within the statutory ten-year period of limitations.

DAVID RUDOI

2
Page 3 of 5
259 Mich. App. 454, *455; 674 N.W.2d 731, **732; 2003 Mich. App. LEXIS 2893, ***1

July 29, 1991. 2 Defendants paid no part of the judgment the Legislature intended the meaning it has plainly expressed
amount, and on February 28, 2001, Oakland Circuit Judge and the statute will be enforced as written. Unless otherwise
Gene Schnelz [***2] 3 granted an ex parte motion, extending defined in the statute, or understood to have a technical or
the previous judgment in favor of plaintiff for ten years and peculiar meaning in the law, every word or phrase of a
showing an outstanding $ 399,642.79 [**733] balance on statute will be given its plain and ordinary meaning.
the judgment. Subsequently, plaintiff filed a complaint on Federated Publications, Inc v City of Lansing, 467 Mich.
June 27, 2001, to renew the judgment because the ten-year 98, 107; 649 N.W.2d 383 (2002) (citation omitted).]
period of limitations [*456] on the previous judgment,
which he alleged was entered on July 29, 1991, was set to HN3 When interpreting a statute, the fair and natural import
expire. Plaintiff moved for summary disposition, and the of the terms employed, in view of the subject matter of the
circuit court granted this motion on October 17, 2001, law, should govern. In re Wirsing, 456 Mich. 467, 474; 573
entering judgment against defendants in the amount of $ N.W.2d 51 (1998). Courts may not speculate regarding the
399,642.79. probable intent of the Legislature beyond the language
expressed in the statute. [***5] Pohutski v Allen Park, 465
Defendants subsequently moved for reconsideration pursuant Mich. 675, 683; 641 N.W.2d 219 (2002); Cherry Growers,
to MCR 2.119(F). The circuit court granted this motion, Inc v Michigan Processing Apple Growers, Inc, 240 Mich.
finding that plaintiff’s action to [***3] renew the judgment App. 153, 173; 610 N.W.2d 613 (2000). If the plain and
was time-barred by MCL 600.5809(3). The circuit court ordinary meaning of the language is clear, judicial
found that the March 7, 1991, judgment, and not the July 29, construction is normally neither necessary nor permitted.
1991, amended judgment, was the final judgment. Sun Valley Foods Co v Ward, 460 Mich. 230, 236; 596
Consequently, the circuit court found that the ten-year N.W.2d 119 (1999); Toth v Auto Alliance Int’l, Inc, 246
period of limitations began to run on March 7, 1991, and, Mich. App. 732, 737; 635 N.W.2d 62 (2001).
thus, the June 27, 2001, complaint to renew the judgment
was time-barred. The circuit court held that neither the July Plaintiff contends that the period of limitations should run
29, 1991, amended judgment nor the February 28, 2001, ex from the amended final [**734] judgment or, in the
parte order affected the running of the period of limitations. alternative, that the order granting the ex parte motion was
sufficient to renew the judgment. MCL 600.2903 provides:
Plaintiff argues that the trial court erred in finding that his ex
parte motion and complaint to renew a previous judgment [*458] HN4 Any judgment in tort heretofore or hereafter
entered in his favor against defendants was time-barred. We rendered and of record in any court of record in this state
agree. HN1 ″Absent a disputed issue of fact, this Court may be sued on and renewed, within the time and as
decides de novo, as a question of law, whether a cause of provided by law, and such renewal judgment or judgments,
action is barred by a statute of limitations.″ Novi v Woodson, when obtained, shall likewise be in tort and have the same
251 Mich. App. 614, 621; 651 N.W.2d 448 (2002). attributes as the original tort judgment or judgments, with
all the rights and remedies of tort judgments attaching
A proper determination of the issues presented in this case thereto.
requires us to interpret statutory provisions. HN2 Statutory
interpretation is also a question of law that is considered de MCL 600.5809(3) [***6] states:
novo on appeal. [***4] Eggleston v Bio-Medical
Applications of Detroit, Inc, 468 Mich. 29, 32; 658 N.W.2d HN5 Except as provided in subsection (4), the period of
139 (2003). With regard to statutory interpretation, [*457] limitations is 10 years for an action founded upon a
our Supreme Court has stated the following: judgment or decree rendered in a court of record of this state
. . . from the time of the rendition of the judgment or decree.
The primary goal of judicial interpretation of statutes is to . . . Within the applicable period of limitations prescribed by
discern and give effect to the intent of the Legislature. This this subsection, an action may be brought upon the judgment
Court discerns that intent by examining the specific language or decree for a new judgment or decree. The new judgment
of a statute. If the language is clear, this Court presumes that or decree is subject to this subsection. [Emphasis added.]

2
It appears that the only difference between the final judgment and the amended final judgment is the caption identifying one of
the defendants.
3
Judge Schnelz was subsequently disqualified from this case because his son represented plaintiff in the underlying claim, and the
case was reassigned to Judge Wendy Potts.

DAVID RUDOI

3
Page 4 of 5
259 Mich. App. 454, *458; 674 N.W.2d 731, **734; 2003 Mich. App. LEXIS 2893, ***9

We find that plaintiff’s ex parte motion to modify and [***9] Taking the plain meaning of the phrase ″an action,″
extend the judgment, an ex parte action, constituted ″an we find HN8 that in MCL 600.5809(3) clearly intended
action″ under MCL 600.5809(3) that was sufficient to renew actions beyond just civil complaints to extend or renew a
the judgment. Plaintiff’s ex parte motion was granted on judgment. See Federated Publications, supra at 107;
February 28, 2001, which is within the ten-year period of Pohutski, supra at 683. The phrase ″an action″ is broader
limitations set forth in MCL 600.5809(3), regardless of than the phrase ″civil action,″ which reveals the Legislature’s
whether we consider the March 7, 1991, judgment or the intent to allow actions beyond a civil complaint to extend a
July 29, 1991, amended judgment as the final judgment. judgment pursuant to MCL 600.5809(3). HN9 Once the
intention of the Legislature is discovered, it must prevail
Plaintiff contends either that (1) his ex parte motion was
regardless of any conflicting rule of statutory construction.
actually a writ of scire facias, 4 which may be granted to
Green Oak Twp v Munzel, 255 Mich. App. 235, 240; 661
extend a judgment, or that (2) [***7] McGraw [*459] v N.W.2d 243 (2003). Thus, the remaining question is whether
Parsons, 142 Mich. App. 22; 369 N.W.2d 251 (1985), stands
plaintiff’s ex parte motion constitutes ″an action″ for the
for the proposition that ″any action,″ including a motion,
purposes of MCL 600.5809(3). We find that plaintiff’s ex
will suffice to extend a judgment. There is no indication that
parte motion, as an ex parte action, constitutes an action
the order granting the ex parte motion to modify and extend
sufficient to extend the judgment.
the judgment was a writ of scire facias. See McRoberts v
Lyon, 79 Mich. 25, 33-34; 44 NW 160 (1889). In CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich.
549, 554; 640 N.W.2d 256 (2002), our Supreme Court,
Defendants argue that pursuant to MCL 600.1901 and MCR
quoting Black’s [***10] Law Dictionary (7th ed), used the
2.101, plaintiff’s ex parte motion was not an action within
the meaning of the statute because it was not commenced by following definition for ″action″: ″’The process of doing
filing a complaint with the court. HN6 Both MCL 600.1901 something; conduct or behavior. 2. A thing done . . . . 3. A
and MCR 2.101 refer to a ″civil action.″ However, MCL civil or criminal judicial proceeding.″’ The Court, then,
600.5809(3) [***8] uses the phrase ″an action,″ thus, provided that ″according to the plain meaning of these
supporting a finding that the Legislature intended a broader words, a claim consists of facts giving rise to a right asserted
definition. See Federated Publications, supra at 107; in a judicial proceeding, which is an action. In other words,
Pohutski, supra at 683. the action encompasses the claims asserted.″ Id. at 555. 6
[*461] HN10 Common words must be understood to have
In McGraw, supra at 24-25, this Court stated that HN7 ″we their everyday, plain meaning. Id. at 554; MCL 8.3a.
agree with other jurisdictions which have generally deemed Applying the plain meaning of ″an action″ to this matter,
any action on the judgment, whether pursuant to a new plaintiff’s ex parte motion was ″’doing something’″ and was
complaint or a writ of scire facias, to be a continuation of asserting a right in a judicial proceeding, albeit ex parte. See
the original action such that jurisdiction is proper in the Cam, supra at 554-555, quoting Black’s Law Dictionary
court which rendered the original judgment.″ 5 This Court in (7th ed).
McGraw, supra, provided that ″any action″ was sufficient to
continue a judgment for the purpose of personal jurisdiction. [***11] We find that plaintiff’s ex parte motion constituted
Id. at 25. In Ewing v [**735] Bolden, 194 Mich. App. 95, an assertion of a right through a judicial proceeding and,
101; 486 N.W.2d 96 (1992), this Court discussed McGraw, thus, was sufficient to be considered ″an action″ under MCL
supra in conjunction with MCL 600.5809(3), and reaffirmed 600.5809(3). There was an ex parte motion and an order on
that for purposes of personal jurisdiction ″any subsequent that motion within the applicable time period provided to
action based on the original judgment [*460] . . . is deemed renew the judgment. Consequently, the circuit court erred in
to be a continuation of the original action. . . . ″ granting defendants’ motion for reconsideration and denying

4
Scire facias is defined in Black’s Law Dictionary (7th ed, 1999), p 1347, as ″[a] writ requiring the person against whom it is
issued to appear and show cause why some matter of record should not be annulled or vacated, or why a dormant judgment against
that person should not be revived.″
5
We note that McGraw, supra, addressed whether a Michigan court had personal jurisdiction over a defendant in a new action to
extend a previous judgment. Id. at 24.
6
We note that in Cam, supra, the Court was interpreting MCR 2.403(M)(1) and not MCL 600.5809(3), but we find the definition
of ″action″ useful to the present case. In Wilcoxon v Wayne Co Neighborhood Legal Services, 252 Mich. App. 549, 554-555; 652
N.W.2d 851 (2002), this Court noted that the term ″action″ in MCR 2.403(A) applies to a ″civil action″ because the term ″civil
action″ is used. However, as noted, MCL 600.5809(3) uses the broader phrase ″an action″ rather than the phrase ″civil action.″

DAVID RUDOI

4
Page 5 of 5
259 Mich. App. 454, *461; 674 N.W.2d 731, **735; 2003 Mich. App. LEXIS 2893, ***11

plaintiff’s motion for summary disposition because plaintiff’s /s/ Kathleen Jansen
ex parte action was sufficient to renew the judgment. 7
/s/ Peter D. O’Connell
Reversed and remanded for entry of summary disposition in
favor of plaintiff. We do not retain jurisdiction. /s/ Karen M. Fort Hood

7
Based on our resolution, it is unnecessary to address, at this time, whether the March 7, 1991, judgment or the July 29, 1991,
amended judgment was the final judgment for purposes of MCL 600.5809(3).

DAVID RUDOI
5
5
19

1
2
Ex. 13
1 DIRECT TESTIMONY

2 BY MR. FREYDL:

3 Q What is your name?

4 A My name is Thomas Patrick Freydl. I go by the name Patrick

5 Freydl.

6 Q What is your occupation?

7 A My occupation is that I'm a consultant to attorneys and to

8 entrepreneurs. I generally handle business affairs both in

9 California and in New York and internationally.

10 Q You've heard testimony today that there was a mailing sent

11 to you in August of 2009 without a return receipt requested

12 on it that was sent to 20434 South Sante Fe Avenue. Do you

13 recall hearing that testimony?

14 A Yes, I do.

15 Q Where were you situated during the year 2009 physically?

16 A I worked from December -- strike that.

17 My answer is from approximately August of

18 2008 through October of 2009 I worked in the city of New

19 York for both as a consultant to a law firm named, titled

20 Meringolo & Associates and ultimately I filed a lawsuit

21 because of a disagreement between myself and Mr. Meringolo

22 in the Federal District Court in New York for the Southern

23 District of New York. Case Number 09-CV7196. I'm

24 referring now in my testimony to Exhibit I. Strike that.

25 (Whereupon Defendant's Exhibit I identified for

24
1
1 the record)

2 Q (By Mr. Freydl, continuing) Is Exhibit I a copy of the

3 complaint you filed, a verified complaint you filed in the

4 litigation caption T. Patrick Freydl versus John C.

5 Meringolo and Associates, PC, a New York professional

6 service corporation and Angelo Cuomo?

7 A Yes, it is.

8 Q Directing your attention to the last, to the Page 26,

9 actually I-25(sic) of this record, did you sign a, did you

10 execute that as "In Propria Persona", as the plaintiff in

11 that action on August 14th, 2009 in the city of New York?

12 A Yes, I did.

13 Q Was your signature on that date verified by a notary public

14 in the city of New York?

15 A Yes, it was. Lucy H. Levy dated, "sworn to before me this

16 14 day of August 2009".

17 Q After you filed the Meringolo litigation, which you just

18 referred to, Mr. Freydl, did you remain in New York to work

19 in the furtherance of getting it served?

20 A Yes, I did. I had been in New York for the entire year.

21 Q And how long did you stay in New York during that period?

22 A With one exception, I flew back in California in mid

23 October and returned in a few days back to New York. I was

24 in New York continuously from October, from January through

25 2000 -- to October 30th of 2009.

25
2
1 opposition." Does it reflect that it was sent on

2 March 8th, 2011, as verified by the Exhibit M or does it

3 say, "March 7th, 2011"?

4 A It states it was sent Monday, March 11th by mail from

5 LaPorte, Indiana.

6 Q Mr. Freydl -- strike that.

7 Did you ever receive any of these pleadings

8 before March 11th of 2011 regarding the hearing, the order

9 to show cause, and temporary restraining order in this

10 matter that were entered by the court on February 3rd?

11 A No, I did not.

12 MR. FREYDL: If you would give me a minute,

13 your Honor.

14 Q (By Mr. Freydl, continuing) Is it your understanding after

15 reviewing the record that this action was dismissed, the

16 underlying action was dismissed by Judge Langford Morris on

17 November 19th of 2009?

18 A Yes, it is.

19 Q Finally, Mr. Freydl, did you ever receive a copy of the

20 summons and complaint referred to in the Ferrette proof of

21 service at anytime prior to these proceedings that you

22 brought after the discovery of this and Mr. Newton's

23 appearance in New York on March 29th, 2011?

24 A No, I did not.

25 MR. FREYDL: The rest of it is argument, your

33
3
1 you entered into this judgment did you intend to pay it?

2 A I've answered that. Yes.

3 Q Okay. Okay. And I've ask if you made --

4 THE COURT: Again, this is a hearing

5 concerning service of process.

6 MR. NEWTON: I know. Right.

7 I'm just trying to -- my offer of proof is

8 that Mr. Freydl has made substantial money during the last

9 10, 12 years, whatever it is, years and hasn't paid me

10 anything, and has completely ignored --

11 THE COURT: Okay. That goes to the

12 enforcement --

13 MR. NEWTON: Yeah.

14 THE COURT: -- collection issues.

15 MR. NEWTON: True.

16 Q (By Mr. Newton, continuing) Okay. So, just one more

17 question on that subject if I may. Is it fair to say that

18 you've ignored this document since you entered into it?

19 A I don't adopt the characterization whether I ignored it or

20 not. The only person I'm sure ignored it was you.

21 Q Well, I thought about it just about every day, Mr. Freydl.

22 A I'm not a mind reader.

23 THE COURT: Excuse me. This is not the time

24 to testify.

25 MR. NEWTON: Okay.

42

4
1 Resume the witness stand.

2 You want to restate your name?

3 THE WITNESS: My name is T. Patrick Freydl.

4 THE COURT: Okay. Go ahead.

5 Q (By Mr. Newton, continuing) Mr. Freydl, is it your

6 testimony today that you were in New York from August,

7 approximately, August 14th of 2011 through October 15th, or

8 so, 2011?

9 A No. My testimony is that from approximately November of

10 2008 through that period I was in New York, with a couple

11 of exceptions when I travelled back to California for brief

12 stays in Newport Beach.

13 Q Okay. November of 2008 through approximately when, sir?

14 A October of 2009, as I stated earlier in my testimony, I

15 came, went back to California a couple times for brief

16 stays.

17 Q Okay.

18 How long have you been associated with Focus

19 on Cars or South Bay Studios?

20 A Since, I would say, 1992.

21 Q Okay. And you received regular payment from them?

22 A No.

23 (Whereupon Plaintiff's Exhibit 17 identified for

24 the record)

25 Q (By Mr. Newton, continuing) I'd like to introduce. It's

44
5
1 already introduced.

2 I'm handing you Plaintiff's Exhibit 17?

3 A Uh-huh.

4 Q Do you know if, what these documents are, sir?

5 A Yeah. They're checks that you somehow got ahold of from my

6 bank account with Bank of America.

7 Q And who are they written from?

8 A From South Bay Studios.

9 Q And who are they written to?

10 A Excuse me. If I can clarify?

11 Q Yes.

12 A The first one is 1-27-2010.

13 There's one that was signed and sent to me in

14 New York in September of 2009.

15 Q Who is the payee on that September of 2009 check, sir?

16 A Patrick Freydl.

17 Q And who was the payer?

18 A If I can clarify about that, my answer?

19 Q Sure.

20 A The reason I know it was sent to me in New York is because

21 it wasn't signed by Mr. Gamarra. It was signed by who, it

22 was signed by Ron Kusumi, who is his associate, and I

23 remember the incident that we, they were going to send me

24 some money in New York.

25 Q So, you were associated with Focus on Cars or South Bay

45
6
1 Studios in some capacity on the date of the check, sir?

2 A Yes.

3 Q And the date of that check is September 29th of 2009,

4 correct?

5 A Yes.

6 Q And you claim that this check was mailed to you?

7 A No, it was FedEx to me.

8 Q Do you have any proof of that?

9 A No. I just got my sworn testimony.

10 Q But you have no FedEx tracking number?

11 A No. I didn't keep a FedEx from September 2009. I didn't

12 know it would be necessary. But I do know it's not signed

13 by Camarra. It's signed by Ron Kusumi as oppose to the

14 other checks that you've got here.

15 I think, there's one other of them that

16 Kusumi sent me and that's in 2008. Yeah. That's 1-3-2008

17 when I was in New York.

18 Q Okay. We've heard, going through the pile, we have checks

19 from 2007 and 2006 and so on and so fourth, don't we?

20 THE COURT: Excuse me. This is as to service

21 of process?

22 MR. NEWTON: Yes.

23 THE COURT: You've got five minutes to finish

24 up with this witness.

25 MR. NEWTON: Okay.

46
7
1 Q And you used to live there, correct?

2 A Yes, I did.

3 Q When was the last date you lived there, approximately?

4 A Well, I don't know probably -- what's the date of it, 2003?

5 Q January 21, 2003?

6 A Yeah, that's possible that I was there in 2006. I really

7 didn't live there, per se, I was separated from my wife but

8 that was our residence.

9 Q Let's try it this way. Since 1999 to today, how much time

10 have you spent in the state of Michigan?

11 Cumulatively?

12 Approximately?

13 A Let me orientate myself.

14 Cumulatively, I would say about -- well, I

15 don't know, you mean, months you mean?

16 I was married here until 2006. So, I did,

17 you know, obviously, I had business on the west coast so I

18 don't know that in 2000 during this period I probably, I

19 don't know that I split my time there, but in the first few

20 years when I started to get separated I, you know, I

21 probably spent, umm, I don't know, maybe half my time here

22 and then afterwards I spent most of my time on the west

23 coast.

24 Q So, sort of as a summation there of your testimony

25 regarding your whereabouts, since 1999 you spent maybe

59

8
1 approximately five years total in the state of Michigan?

2 A No, I don't think --

3 Q Less than that?

4 A Not that much.

5 Q Is that your handwriting on that letter, sir?

6 A No.

7 Q Is that your handwriting on the exhibit, plaintiff's

8 Exhibit 6 from Focus on Cars?

9 A I don't --

10 Q That says, "not at this address" is that your handwriting?

11 A No. No.

12 Q Okay. So --

13 A For all I know, it's your handwriting.

14 Q It's not mine.

15 A I don't know that.

16 Q I know you don't know.

17 But I think it's yours.

18 Anyway, the --

19 A I've just sworn under oath it's not mine. So what you

20 think is irrelevant to me.

21 Q I know.

22 (Whereupon Plaintiff's Exhibit 15 identified for

23 the record)

24 Q (By Mr. Newton, continuing) The -- okay. I'd like to

25 direct your attention to Plaintiff's Exhibit 15 at this

60
9
1 Q Okay.

2 Turning to Page 1 of your declaration.

3 One moment, please.

4 Page 1 of your declaration, Paragraph 2, will

5 you please read aloud the third, fourth, fifth lines of

6 Paragraph 2?

7 A

8 "When I was not living and working in New

9 York City, or Connecticut, I was residing in the

10 City of Newport Beach, California. During this

11 time, I had no office, business, or agents

12 operating in Long Beach, California."

13 Q I apologize. Would you also please read lines 1 and 2 of

14 Paragraph 2?

15 A Of which, sir?

16 Q Of Paragraph 2. The first two lines.

17 A

18 "From approximately 2008 through 2009, I

19 spent the vast majority of my time working as a

20 consultant in New York City with the Meringolo and

21 Associate, PC law firm."

22 Q Okay. So, is it your testimony this day approximately 2008

23 through 2009, I guess, it's both of those years, full year,

24 you've had no office at Focus on Cars?

25 A Yes, that's exactly my testimony. Focus on Cars, South

73

10
1 Bay studios was closed virtually. I was working in New

2 York.

3 Q Was the facility shut down?

4 A It was shut down virtually. I was working in New York for

5 the Meringolo law firm, I testified on direct, direct

6 testimony that's what I was doing.

7 Q Right. But, that doesn't really answer my question. My

8 question is a little more precise than that. Did you still

9 have an office at the time at Focus on Cars/South Bay

10 Studios?

11 A No. I never had a real office there.

12 Q Mr. Freydl, I don't have it with me, but in the case file

13 here is a letterhead from you from maybe 1992 showing your

14 offices at Focus on Cars, and, in fact, there's more

15 current ones, would you like to retract that statement?

16 A First of all, show me the document. We'll go from --

17 Q I would be happy to do so, but I'll have to hunt for it?

18 A All right. Fine.

19 Q Okay. Did --

20 A It's a writing, sir.

21 Q Did you have a secretary at Focus on Cars/South Bay Studios

22 during 2008, 2009?

23 A Absolutely, not.

24 Q But you received and have testified today that you received

25 payment for work you did for Focus on Cars/South Bay

74

11
1 Studios during September of 2009, is that not true, sir?

2 A No, that was, it was not my testimony at all.

3 Q Okay. Then, what is your testimony.

4 A My testimony is that, you know, the check you showed me,

5 that they sent me the two checks. I don't know if there's

6 one or two that you showed me. They sent those to New York

7 because I was in New York for the whole your year, and I

8 might point out that all the checks you've presented none

9 of them show any payments from the first ten months of 2009

10 to me from any of those entities.

11 Q What did you do to earn the September 29, 2009 check?

12 A Well --

13 Q What did you do to earn the check. It's $2,000, I think,

14 isn't it?

15 A Yes. And I testified in my direct testimony that I took

16 phone calls and gave advice and they were happy to send me

17 the money in New York.

18 Q So, how many phone calls did you take for $2,000?

19 A I don't recall.

20 Q Approximately?

21 A Two thousand dollars worth.

22 Q Duly noted.

23 How many phone calls might that be,

24 approximately?

25 A I've already indicated I can't recall.

75

12
1 Q More than ten?

2 A Over the previous nine months, yes, probably, more than

3 ten.

4 Q So, that check represents nine, represents -- excuse me.

5 Represents nine months worth of work?

6 A As I said to you, Mr. Newton, and you have no evidence to

7 contradict it, I didn't work at South Bay Studios or Focus

8 on Cars or do, I was in New York in 2009, and you don't

9 have any checks prior to the one in September of,

10 September 29, 2000, was it 2009? That's ten months. If

11 you have a check that shows I was paid in 2009 besides

12 those two that were sent by Kusumi, please show them to me,

13 sir.

14 Q How about 11-3-2008, is that good enough?

15 A Yeah. That's the same thing.

16 Is it signed by Ron Kusumi?

17 THE COURT: Excuse me. This is not your

18 time to ask questions, sir.

19 THE WITNESS: All right. I'm sorry, your

20 Honor.

21 THE COURT: All you can do is answer the

22 questions at this point.

23 THE WITNESS: I understand. I apologize.

24 THE COURT: You're the witness.

25 THE WITNESS: I apologize, your Honor.

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1 THE COURT: Go ahead.

2 (Whereupon Plaintiff's Exhibit 24 identified for

3 the record)

4 Q (By Mr. Newton, continuing) I'm going to mark Check Number

5 22857 South Bay Studios under division Focus on Cars as

6 Plaintiff's Exhibit 24 and hand that to you, about 750 for

7 consulting fees from 10-27-08, I guess, dash 10, do you

8 recognize that document?

9 A Yeah, I testified to this. It was signed by Ron Kusumi,

10 and I know for a fact that the two checks that I got from

11 Ron Kusumi was sent to me in New York and deposited into my

12 Bank of America account when I was over in New York.

13 There's a branch on 42nd and Lexington.

14 Q Okay. What's Square Planet Media, sir?

15 A Square Planet Media?

16 Q Yes.

17 A It's a, I believe, it's a California corporation that's

18 engaged in live action productions.

19 Q Do they also have an office at 20434 South Sante Fe Avenue

20 in Long Beach?

21 A No.

22 Q They don't?

23 A No, it does not.

24 Q Who owns that company if you know?

25 A I'm sorry. I didn't hear your question.

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1 Q (By Mr. Newton, continuing) I'm going to mark the

2 following check Plaintiff's Exhibit 25 and hand it to you

3 and it's Check Number 23525 South Bay Studios Division of

4 Focus on Cars $2,000 payable to you date 10-22-09. Do you

5 recognize that document?

6 A Yeah.

7 Q What did you do to earn that money?

8 A What did I do to earn it?

9 Q Yes.

10 A I'm sure I rendered consulting services to the studio.

11 Q Would that also have been by phone?

12 A Yeah. It's signed by Ron Kusumi. That's his signature.

13 Q What does that have to do with anything?

14 A Well, you want me to answer that question?

15 Q Yes.

16 A If I called Ron instead of Rick Camarra, who owns the

17 company, and he signed the check for me and sent it to me,

18 that was the arrangement that I had with Mr. Kusumi when I

19 was on the road, and Rick Camarra approved it. And so,

20 the checks that you're talking about that are sent by

21 Kusumi were issued to me, undoubtedly, when I was in New

22 York.

23 Q And that was October 22 of 2009?

24 A Yeah. I, as I testified, I mean, yes. As I testified

25 earlier, I did go back to California a couple times during

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1 the, during that period after the filing of the Meringolo

2 lawsuit and then I would go back to the east coast

3 regarding the discovery in that case.

4 Q Do you have any plane tickets regarding those trips?

5 A No, but you do.

6 Q I what?

7 A You indicated in your exhibits that you had evidence of a

8 plane ticket that I had from, in August of 2009 and I, and,

9 I think, I'm almost reciting verbatim your exhibit list in

10 this proceeding exhibit, item number six said that a plane

11 ticket proving in August of 2009 I was in New York and

12 thereafter. I refer you to your own pleadings, sir.

13 Q Sure.

14 I take it that you don't realize that I was

15 asking you to produce that?

16 A I certainly don't realize that, but if you need any

17 evidence of me being in New York during that period of

18 time, I refer you to the verified complaint that's been

19 admitted in this proceeding.

20 Q Which verified complaint? In the Meringolo litigation?

21 A Yes. The one that's dated August 14th, 2009.

22 Q Do I have -- would you be so kind as to provide me a copy

23 of that?

24 A You want me to get up and get it for you?

25 Q No.

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1 your declaration that you filed in this case, which is

2 Plaintiff's Exhibit 14, and we were discussing Paragraph 2

3 of that declaration where you stated that, testified that

4 during 2008 through 2009 you had no office, business, or

5 agents operating in Long Beach, California pursuant to the

6 declaration, and, I believe, that's your testimony; is that

7 correct, sir?

8 A Yes, that's my testimony, but I don't have a copy of the

9 document, the exhibit. Can I have one, please?

10 Q Yes.

11 A When we did all this I returned it.

12 Q I thought we just did that, but, I think, I gave you the --

13 A Well, is it, it might be --

14 Q Yeah, I believe it would be in your pile?

15 A I didn't bring all your exhibits to the witness stand.

16 Q Yes, I understand that.

17 Is that the file?

18 A Yes, it is.

19 Q May I?

20 A Absolutely.

21 Q Which file?

22 A It's the one on your right. Your right.

23 Q Here?

24 A Uh-huh.

25 Thank you.

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1 its relevancy since it goes back to 1994.

2 THE COURT: What's the relevance?

3 MR. NEWTON: The relevancy, your Honor, is

4 that I believe Mr. Freydl has had an office at Focus on

5 Cars for almost 20 years.

6 THE COURT: So what?

7 The objection is sustained.

8 MR. NEWTON: Okay.

9 The offer of proof is simply that --

10 THE COURT: This hearing is about service of

11 process.

12 MR. NEWTON: Correct.

13 THE COURT: Next question.

14 MR. NEWTON: Okay.

15 Q (By Mr. Newton, continuing) One moment, please. Turning

16 to Paragraph 2 of your declaration --

17 A I'm sorry, Mr. Newton, which paragraph?

18 Q Page 2, Paragraph 6?

19 A Yes, sir, I got it.

20 Q Okay. This is regarding the service of the 2009 action at

21 the 20434 South Santa Fe Avenue, Long Beach address?

22 A Yes.

23 Q Is it your contention in this declaration that you were not

24 receiving mail at the 20434 South Santa Fe Avenue address

25 at that time?

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1 A It's my contention that I was not, because I wasn't in

2 California during that period of time and that I never did

3 receive this and at that particular time for purposes of

4 clarity South Bay Studios was virtually closed during that

5 period of time. South Bay Studios is in the business of

6 producing automotive commercials and there was an enormous

7 downturn in the economy in California beginning in the

8 middle of 2008 through the present and South Bay Studios

9 was virtually out of business.

10 So, it's my testimony, no, I was not

11 receiving them, number one, because I wasn't down there,

12 and they weren't, they didn't have anybody even working

13 there that I know of, and, number two, I was in New York at

14 all times during this period as evidenced by the verified

15 complaint I filed.

16 Q Did you not also earlier testify today that during that

17 same period of time that Mr. Ron Kusumi wrote you checks

18 for almost $5,000 from Focus on Cars?

19 A No. That wasn't my testimony. My testimony was that Ron

20 Kusumi issued me a check, I think, it's in the record, for

21 $2,000 and was it October, Mr. Newton, or late September?

22 Q I believe, your testimony for the record was that there

23 were two checks each of which were $2,000. One was in late

24 September and one was in mid/late October, October 22nd, I

25 believe.

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1 A My testimony was those checks were sent to me in New York

2 and also my testimony is I don't believe that record

3 reflects that amount of money. So, if you show me the

4 exhibits, because they're in your exhibits, I believe, that

5 you'll see that one was $750, or something, I believe.

6 Q That may be. One was 9-29-09 check was --

7 THE COURT: Excuse me. Now is the time to

8 ask questions.

9 MR. NEWTON: Yes. Sorry, your Honor. I just

10 wanted to clarify that.

11 Q (By Mr. Newton, continuing) At least one of the checks is

12 for $2,000.

13 My question simply is, is it your testimony

14 Ron Kusumi was not your agent at Focus on Cars in 2009?

15 A Of course not. Of course not. He's -- you're confusing

16 something that, Focus on Cars is a holding company that, of

17 several operating divisions, and maybe this will help

18 clarify, one of which is South Bay Studios. Ron Kusumi is

19 the chief operating officer of the Focus on Cars Division

20 of the South Bay Studios. I did very little or no work

21 for Focus on Cars during that period, although, he had

22 check writing powers and I was in, as I stated already, I

23 was in New York and he did send me, I guess, $2,000.

24 Q Well, I'm obviously not familiar with the inner workings,

25 but those two companies or several holding companies, or

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1 whatever it is it might be, but for our purposes they all

2 emanate out of the physical address of 20434 South Santa Fe

3 Avenue.

4 Is it your, therefore, testimony that there

5 was no agent at the 20434 South Sante Fe Avenue, Long Beach

6 address for you during the fall of 2009?

7 A Absolutely that's my testimony.

8 Q And is it your further testimony that Ron Kusumi wrote you

9 checks during that time period from that address?

10 A No. He was at Focus. Focus is in a different part of the

11 property. It's not technically at 20434 South Sante Fe

12 Avenue.

13 Q That is in fact the address on the checks, is it not?

14 A Yeah, but that's because that's the checking account

15 address for the bank. It's not where he was.

16 Q And it is in fact the address that you used for the

17 California Bar at one time, is it not?

18 A Oh, absolutely. I'm talking about what happened in 2008

19 and 2009.

20 Q Right. And your testimony is that you deny that you

21 received mailings sent to 20434 South Sante Fe Avenue; is

22 that correct?

23 A In August of 2009?

24 Q In August?

25 A Absolutely that's my testimony.

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1 Q Even though a month later, two months later you were

2 receiving checks coming out of that very same address?

3 A What's one got to do with the other whether I received mail

4 there?

5 Q Well --

6 A I was in New York, sir.

7 Q Yeah, I understand that your testimony is that you were

8 physically in New York. I'm not disputing that that's your

9 testimony. I'm simply trying to square your testimony, if

10 possible, that you were receiving, what I consider at

11 least, maybe you don't, but I consider substantial funds

12 and salary or whatever it is from an address that you claim

13 wasn't giving you your mail. I'd like to know how that's

14 possible?

15 A You want to know how it's possible?

16 Q Yes?

17 A First of all --

18 Q How is that possible?

19 A -- there's no proof that there was mail sent there.

20 Secondly, I wasn't receiving mail there

21 because I was in New York and I haven't worked at South Bay

22 Studios in probably over a year in 2000 -- latter part of

23 2008 and 2009.

24 This is all documented, by the way, in my

25 exhibit regarding the verified complaint which shows the

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1 enormous amount of work I performed in New York during that

2 period of time.

3 The fact that I spoke to Mr. Kusumi and they

4 sent me out a check doesn't mean that I was receiving mail

5 at that address, sir, at least I didn't receive mail.

6 Q Does it not mean that you had an agent at that address,

7 sir?

8 A Absolutely not. He wasn't my agent. He worked for Focus

9 on Cars and South Bay Studios.

10 Q Why is he sending you money?

11 A Because I was an independent contractor to them.

12 Q So, it's your testimony that somebody who would send you

13 $3,000 or more is not capable of sending you a letter?

14 A I'm not saying he wasn't incapable of it. I'm saying that

15 it never happened. I mean, I don't know that any letters

16 were received.

17 Q I understand that's your testimony, but I also understand

18 it's your testimony that when I tried to serve you in New

19 York, you were in California; when I tried to serve you in

20 California, you're in New York, and I don't have a crystal

21 ball inside of my head, Mr. Freydl, to know where you are

22 to serve you and I've tried recently to serve --

23 A Is there a question?

24 THE COURT: Excuse me. You can't both speak

25 at once. One at a time.

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1 What's the question?

2 THE WITNESS: What's the question?

3 Q (By Mr. Newton, continuing) The question is, how can you

4 reconcile your competing testimonies that on the one hand

5 checks from a physical, particular physical address are

6 coming to you at the same, or approximately the same time

7 that mail at that same physical address is not coming to

8 you?

9 A It's simple. I wasn't there, there was no one to receive

10 the mail at that time, or well, you're talking about August

11 of 2009?

12 Q Yes.

13 A As far as I know, nobody was there. They may have had some

14 skeleton people, but I hadn't been there.

15 And the fact that I could call Mr. Kusumi and

16 tell him to send me some money, you know, speaks to my

17 relationship with an organization.

18 But, there was no indication that anyone had

19 ever received mail for me at that time.

20 Q Do you currently have an address, an office at the address

21 of 20434 South Sante Fe in Long Beach, California?

22 A Absolutely not.

23 Q Absolutely not?

24 A Yes. I don't have an address there.

25 Q Do you currently have an office address anywhere?

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1 A Yeah, I have an office address out of my apartment in

2 Newport Beach, California. Fifteen four, fifteen forty-nine

3 Placentia Avenue. Also, I have space at 30242 South Sante

4 Fe avenue, which is not connected with the studio.

5 Q What is that address again?

6 A There's different addresses. It's 20432 South --

7 Q Two oh four three two?

8 A -- South Sante Fe Avenue, Carson, Mich, or Carson,

9 California.

10 Q Is Carson and Long Beach the same thing?

11 A Virtually it is, not entirely. It bifurcates the zip code

12 there. This is a different address than the studio.

13 Q Yeah, I understand it's a big place.

14 Mr. Freydl, have you actively resisted

15 service from my process server recently in this matter?

16 A Absolutely not. I don't even know who your process server

17 was.

18 Q Is there a guard at the 20434 South Sante Fe complex?

19 A Yes, there is.

20 Q And has he let even one person in to serve you with process

21 in the last five months?

22 A I don't know. I'm not there all the time.

23 Q Have you been served with process in the past five months

24 from anything involving me at 20434 South Sante Fe Avenue

25 or thereabouts in Long Beach or Carson, California?

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1 A No. You mean in your California case?

2 Q In any case?

3 A No.

4 Q No?

5 A No. I have not been served with anything.

6 Q Does that include the service of process that Trish

7 Rosenthal personally served on you regarding the

8 domestication in California of the judgment of this court?

9 A I did receive personal service at 20432 in July, I believe.

10 I was there to see Steve. That's where his office is.

11 Q Was that at 20432?

12 A His office is 20432 J, I think. It's a different, it's a

13 different part of the property.

14 Q Weren't you sitting in the parking lot at that time you

15 were served?

16 A Yeah, I was in the parking lot.

17 Q So, you were served there once, right?

18 A Yes, now that you've mentioned it. You're absolutely

19 right. I was and I acknowledge that. I was there to see

20 Steve about some matters that we were doing together.

21 Q And how many days a week on average these days would you

22 spend any time at 20434 or 20432 South Sante Fe Avenue in

23 Long Beach or Carson California?

24 A Four oh four three four South Sante Fe Avenue?

25 Q Either one of them. Any address, sir, but, yeah?

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Ex. 7
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
Jeffrey Stewart Newton,
Plaintiff,
vs. Case No. 1997-543097-CZ
Thomas Patrick Freydl, et. al., Han. Denise Langford-Morris
Defendants.
____________________/
PROOF OF SERVICE OF COMPLAINT AND PETITION/MOTION
FOR RENEWAL OF REVISED CONSENT .JUDGMENT

STATE OF CALIFORNIA)
))ss
LOS ANGELES COUNTY)

I, Patricia Rosenthal, am over the age of eighteen (18) years and am not a party to this
action. I make this Proof of Service on my own personal knowledge and am competent to testify
to the contents thereof if called upon to do so at trial. I declare under the penalty of perjury that
the following is true to the best of my information, knowledge and belief:

On June 30, 2009, I visited the premises of Focus on Cars/South Bay Studios, located at
20434 South Santa Fe Avenue, Long Beach, California, 90810. I was informed by Plaintiff
Jeffrey Stewart Newton that this address is the address where Defendant Thomas Patrick Freydl
had an office and is the address that he used on pleadings in this case. After accessing the gate, I
was greeted by a South Bay Security guard. I asked to meet with Mr. Freydl. I was informed
that he was not present. The time was 3:45p.m.

On July 9, 2009, I again visited the premises of Focus on Cars/South Bay Studios, located
at 20434 South Santa Fe Avenue, Long Beach, California, 90810. I was again greeted by a
South Bay Security guard. I asked to meet with Mr. Freydl. I was again informed that he was
not present. The time was 2:10p.m.

On July 13, 2009, I again visited the premises of Focus on Cars/South Bay Studios,
located at 20434 South Santa Fe Avenue, Long Beach, California, 90810. I was once again
greeted by a South Bay Security guard. I asked to meet with Mr. Freydl. I was once again
informed that he was not present. The time was 10:20 a.m. At this point, I handed the guard two
(2) copies of the Petition/Motion for Renewal of Final Consent Judgment, Complaint for

1
Renewal of Final Consent Judgment and Proposed Order Renewing Judgment, informed him that
they were for Mr. Freydl, and left the premises.

Also on July 9, 2009, I mailed two copies of the Petition/Motion for Renewal of Final
Consent Judgment and the Complaint for Renewal of Final Consent Judgment to Mr. Freydl at
20434 South Santa Fe Avenue, Long Beach, California, 90810, by depositing same in a sealed
envelope with U.S. postage fully prepaid, at a U.S.P.S. mail facility in Long Beach, California.

The foregoing is true to the best of my information, knowledge and belief.

Further Deponent Sayeth Not.

DATED: August 27, 2014

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Ex. 4

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