George Nackard's Other Legal Battles
By Dan R. Frazier 
Posted June 22, 2004

At age 77, one of George Nackardís biggest legal battles is just beginning as he faces the City of Flagstaff over the illegal clear-cutting of some 300 trees in the heart of Flagstaff. Nackard is not leading a quiet, peaceful, retired life. In fact, court records suggest that during the last two decades he has had his share of legal battles, squabbling with the City of Flagstaff, various family members, and others.

Perhaps Nackardís various legal entanglements are not so surprising. After all, he appears to be a wealthy man with numerous business dealings and a large extended family. Disputes are bound to arise. In light of recent events, some of these disputes may be worth a second look.

Unfortunately, George Nackardís court records are incomplete. Sometimes the courts do not retain records more than five years. Other records have been misplaced. Even when a record relating to a case is available and intact, it is time consuming to review the hundreds of documents often involved. I had time to review only a few documents pertaining to each case. I took photographs and made copies of a handful of these documents. Because I do not have all the documents at my fingertips, and because I am not a lawyer, the meaning of the documents is not always clear. Nonetheless, some information of interest can be gleaned from even a cursory inspection of the court records.

Those who are interested in finding out more may go to the courthouse and view the records themselves. A good starting place is the Supreme Courtís Public Access Case Lookup service. Unfortunately, some courts do not offer online access to records. These include the court(s) serving Paradise Valley, where Nackard currently resides.

One of George Nackardís most interesting legal battles of recent years was a 1998 case that Nackard and his company, Consolidated Investment Company, brought against the City of Flagstaff. (Coconino County Superior Court, S-0300-CV-98000089) Among other things, Nackard alleged that the City had "engaged in an impermissible taking of plaintiffís property Ö without due process and without just compensation." At least one letter writer to the Daily Sun has suggested that a City ordinance intended to protect trees and tree canopy may constitute a similar illegal taking. Nackard had sought to evade the ordinance prior to the clear-cutting of his property.

In the 1998 case, the alleged taking did not involve the tree ordinance. According to Nackardís complaint, the City refused to issue a permit for the development of one of his properties on East Huntington Drive until he completed an expensive FEMA study of how his proposed alterations to the property would affect stormwater runoff. "When Plaintiff (Nackard) sought to improve the land, Kim M. Gavigan (the Cityís stormwater manager) stated his concern that Plaintiffís property was in a flood plain and could not be improved without creating the risk of flooding an adjacent property. Kim M. Gavigan then refused the permit and told Mr. Nackard that, ĎYou will never do anything with that property because I wonít approve it.í"

Nackardís allegation of a taking was the third count of a seven-count complaint. Counts I and II were eventually dismissed without prejudice, meaning that Nackard had the option of attempting a legal action on these counts at a later date. The other counts were dismissed with prejudice, meaning that there was a good reason for these counts to be dismissed, and additional legal action was not an option.

The complaint begins with introductory material, including a listing of the defendants.

Count I of Nackardís complaint against the City and various City staff members alleged "Harrassment; Solicitation of an Illegal Act; and Negligent and Intentional Infliction of Emotional Distress." Nackard alleged that he was wrongly charged with "contracting without a license" when one of his commercial tenants made alterations to his property without his knowledge. Nackard also alleged that two City staffers encouraged him to apply for a Commercial Building Permit even though he had told them that he did not have a contractorís license. Nackardís complaint makes it sound like he was intentionally set up so that he could be charged with contracting without a license: "Richard Meachamís and Vince Knaggsís (both City staffers) combined actions were a deliberate, successful ploy to entangle Mr. Nackard in criminal activity when they knew Mr. Nackard had nothing to do with the building improvements; to harass Mr. Nackard; and to negligently or intentionally inflict emotional distress upon him."

Count II of the complaint alleged "Harassment; Interference with Prospective Business Advantage; Injunction." Nackard alleged that the City stormwater manager refused to allow him to get a permit to grade one of his properties on East Huntington. According to the allegation, this refusal arose because the stormwater manager, Kim M. Gavigan, believed Nackard had dumped more than 6,000 cubic yards of fill dirt on an adjacent property also owned by Nackard. The permit only allowed 6,000 yards of dirt to be brought onto the property. Nackard questioned whether there was sound evidence to believe too much dirt had been added to the property. According to Nackardís allegation, "Gavigan refused to issue the permit on the grounds that he does not like what Plaintiff did with the southern lot. This is not a valid ground for denial of a permit to grade a separate parcel of land."

As discussed above, Count III alleged "Taking without Compensation; Harassment; Injunction." Among other things, Nackard alleged that the City had allowed the construction of a road near his property that increased the risk of flooding on his property. Whatís more, the City was requiring him to undertake an expensive FEMA study of his own property due to the potential for flooding. Nackard alleged, "If the City had not built the raised road, all of the stormwater would flow downstream and Plaintiffís (proposed) land improvements would have no effect."

Count IV alleged "Harassment; Civil Rights Violation." Nackard alleged that the City was unfairly enforcing a rule requiring him to apply an expensive fire retardant to the posts supporting the canopy over the fuel pumps at the Varsity Gasser station he was constructing on South Milton. The retardant was designed to delay the collapse of the canopy in the event of a catastrophic fire. Nackard claimed to have hired a fire engineer who confirmed his belief that the construction of the canopy was quite sturdy, and that it was unlikely to collapse even in the event of a major fire. Therefore, Nackard believed the fire retardant was not needed. He also claimed that two other gas stations being constructed at the same time in Flagstaff were not required to apply the fire retardant. The complaint notes that "Mr. Nackard is of Arabic descent," suggesting that perhaps the City fire marshall had singled Nackard out for racially motivated reasons.

Count V alleged "Harassment; Denial of Access to City Services." Nackard alleged that some City staffers were refusing to meet with him or talk to him, while they routinely met with other developers. In particular, he singled out Dave Wilcox, the city manager, and Joseph R. Bertoldo, the city attorney, basically saying that they were avoiding him. The complaint said that Nackard had on several occasions attempted to meet with Bertoldo. "On at least one such occasion, the receptionist told Mr. Nackard that Joseph Bertoldo was not in the building. When Mr. Nackard discovered that Joseph Bertoldo was in his office, Jospeph Bertoldo told Mr. Nackard that he does not want to and will not meet with Mr. Nackard for any reason."

Count VI alleged, "Harassment; Abuse of Power." Nackard alleged that the Flagstaff building inspector had shut down construction work on one of his properties because Nackard did not have a minor permit costing $30 before installing an interior wall in the building. Nackard claimed that he had all of the major construction permits needed, and that it is common in the industry to install interior walls and do similar alterations without the minor permits, so long as the permits are obtained prior to occupancy.

Count VII alleged, "Harassment." Nackardís complaint said, "Counts 1-6 above and the actions of the Defendants and each of them, when taken together, evince a repeated pattern of general harassment against; and antagonism toward and discrimination against Plaintiffs. These actions have caused plaintiff substantial damage, delay and undue costs."

Nackard hoped that through his legal action he could recoup these costs. He also hoped the court would also award him and his company punitive damages. No amounts were specified in the complaint.

Some of Nackardís other legal battles in the last two decades have involved his family and squabbles over money and property. In 1984, his wife of 36 years, Lenora Millar Nackard, filed for divorce. Twelve years later, in 1996, Lenora was in court again, this time fighting to get George to pay her what she believed was spelled out in the Settlement Agreement established following the divorce. The Settlement Agreement stipulated that his monthly payments would be adjusted upwards annually. She alleged that he had not been paying the increased amount owed each month. By this time George had remarried. He and his wife, Karen Wood Nackard, brought a counterclaim against Lenora.

In 1999, Lenora and George and Karen were squabbling again, this time over property that they had agreed would be transferred from Georgeís company to Lenoraís. His company was Consolidated Investment Company, Inc. Her company was called L.N.N. Enterprises, Inc. She had entered into a business partnership with George's son, Khatter Joseph Nackard (Joe). There was apparently a problem with the deed to the property, and the legal description of the property was incorrect. Lenora and Joe wanted this fixed. The property in question was at 2690 E. Huntington, and was known as the "radio station property."

In another case, brought in 1985, Patrick M. Nackard alleged that George Nackard had essentially stolen money from Fred M. Nackard. Fred M. Nackard was Patrickís father, and Georgeís brother. Fred died in 1984. Patrick, representing his fatherís estate, alleged that certain monies that should have been distributed regularly to Fred M. Nackard through an entity known as Nackard Investments had not been distributed to Fred M. Nackard, and George was to blame. The complaint accused George of "Statutory Racketeering." The complaint said, "The distribution of funds just mentioned were approved and organized by George M. Nackard. In authorizing such distribution, George Nackard engaged in a scheme or artifice to defraud Fred M. Nackard and committed a theft of funds owed to Fred M. Nackard by converting the funds owed to Fred M. Nackard to himself and the partnership."

The complaint went on to allege that shortly before Fred M. Nackard died, he signed his interests in Nackard Investments over to another Fred Nackard: Fred J. Nackard. However, the ailing Fred M. Nackard may have done this without knowing the full extent of what he was passing on to Fred J. Nackard. Allegedly, the reason he did not know was because George had been careful not to tell him the truth: there may have been much more money at stake than Fred M. Nackard realized.

It does not appear that Fred J. Nackard was Fred M. Nackardís son. His obituary mentioned only one son, Patrick. Fred J. Nackard may be the son of Victor and Mary Nackard. Victor was one of Georgeís brothers. Victor died June 19, 2004 and reportedly had four children, including a son named Fred, who was alive at the time of Victorís death. Whether this is Fred J. Nackard is not clear. It may be that there is yet another Fred in the Nackard family.

There have been other legal battles as well, some of which apparently did not involve George Nackardís family. There was for instance a small claims hearing in 2000 in which Nackard was a defendant. The man who brought this case against George Nackard was named Bruce W. Scarberry. One Bruce W. Scarberry of Oklahoma died in 2002 at age 87, though it is not known if this is the same person (*see note below). I do not have the full court record, though I understand it is available for a fee of $17 at Flagstaff Justice court.

Another intriguing case was filed in 1996. State of Arizona vs. George Nackard, Nackard apparently plead guilty to one or more of the following charges: "1 Assault-Intent/Reckless/Injure. 2 Assault-Cause Fear of Physical Injury. 3 Disorderly Conduct." Because this case is more than five years old, I was not able to obtain any details about the case.

(*On Jan. 20, 2005, I received an e-mail from someone claiming to be a relative of Bruce W. Scarberry of Oklahoma. This individual claims that the late Bruce W. Scarberry of Oklahoma was not the same Bruce W. Scarberry who was involved in a legal battle with George Nackard.)

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