02/20/2018 — CV2016000042 INC, OPTIMA CONSTRUCTION 02/20/2018 HON. TERESA SANDERS View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
02/22/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-000042
02/20/2018
Docket Code 375
Form V000A
Page 1
CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda
Deputy
JOYTSNA MORJARIA
KEVIN J TUCKER
v.
OPTIMA CONSTRUCTION INC, et al.
JASMINA RICHTER
JAMES MINHA CHONG
WALTER GROCHOWSKI
DISMISSAL CALENDAR
The Court having read Defendant Optima Camelview Village Condominium
Association’s Notice of Settlement filed on February 16, 2018,
IT IS ORDERED placing this matter on the Dismissal Calendar for dismissal on April
23, 2018, without prejudice and without further notice, unless prior to said date a judgment is
entered or filed or a stipulation of dismissal is presented.
IT IS FURTHER ORDERED vacating the Trial Setting Conference on April 19, 2018
at 9:00 a.m. in this division.
11/28/2017 — CV2016000042 INC, OPTIMA CONSTRUCTION 11/28/2017 HON. TERESA SANDERS View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
11/30/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-000042
11/28/2017
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HON. TERESA SANDERS
P. Culp
Deputy
JOYTSNA MORJARIA
KEVIN J TUCKER
v.
OPTIMA CONSTRUCTION INC, et al.
JASMINA RICHTER
JAMES MINHA CHONG
WALTER GROCHOWSKI
RULING
The Court has read and considered Defendant European Pavers’ Motion for Summary
Judgment: Re Accepted Work Doctrine and Separate Statement of Facts, filed September 11,
2017, Plaintiff’s response and Statement of Facts, Defendants Optima, Inc., Optima Camelview
Village, LLC and Optima Camelview Village Condominium Association’s Joinder in Plaintiff’s
Response to European Pavers’ Motion for Summary Judgment Re: Accepted Work Doctrine and
In Plaintiff’s Response to Defendant European Pavers’ Statement of Fact and Plaintiff’s
Statement of Facts in Opposition to Defendant European Pavers’ Statement of Fact (With
Qualification), Defendant Optima Construction’s Partial Joinder in Plaintiff’s Opposition to
Defendant European Pavers’ Motion for Summary Judgment, and Defendant European Pavers’
reply.
It its motion, Defendant contends that it is entitled to summary judgment in this matter
because there are no genuine issues of material fact and that “the accepted work doctrine applies
to relieve European Pavers of any liability.” In support of this argument, Defendant sets forth
several examples of how the accepted work doctrine applies, including the following:
(1) It did not design the driveway.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-000042
11/28/2017
Docket Code 019
Form V000A
Page 2
(2) It performed all work in conformity with the plans and specifications provided, as
well as in conformity with the requests and instructions of the co-defendants.
(3) Optima Construction accepted and paid it for the paving work.
(4) Optima Camelview Village Condominium Association did not reject the driveway or
request repairs after it was completed.
(5) It does not own the subject property, manage the property, and is not responsible for
its upkeep and maintenance.
(6) It followed the architect’s design and blueprints when installing the pavers. This plan
specified the type of paver to be used and the pattern in which the pavers were to be
installed.
(7) The contract between it and Optima required that all work be installed in accordance
with the subcontract documents.
(8) It was instructed to, and performed in accordance with the architect’s blueprints, the
subcontract documents, and manufacturer standards and recommendations.
(9) Plaintiff provided no evidence that the condition of the pavers at the time of the
accident was the same condition as the time of completion.
Defendant submits that the accepted work doctrine must apply because it had no
discretionary decision-making with respect to its installation of the subject pavers.
In response to Defendant’s motion, Plaintiff sets forth several examples of areas in which
Defendant had substantial discretion, including the following:
(1) Defendant selected the pavers, ordered them, accepted delivery of them, and installed
them.
(2) Defendant determined what type of, and how much sand to use in the installation of the
pavers.
(3) Defendant used its discretion in deciding what method to use to compact the sand.
(4) Defendant used its discretion with regard to the spacing between the pavers.
(5) Defendant used its discretion with regard to the application of sand, the amount of sand,
and whether to force the sand between the pavers.
(6) Defendant used its discretion in determining how to prevent the pavers from moving after
installation.
(7) Defendant determined whether a moisture barrier was required.
As noted by both Defendant and Plaintiff, Arizona courts have narrowly restricted the
scope of the accepted work doctrine. An essential element of the accepted work doctrine is that
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-000042
11/28/2017
Docket Code 019
Form V000A
Page 3
the contractor has no discretion regarding the manner in which the work is done, and is merely
following the directives of its employer.
Pursuant to Ariz. R. Civ. P. Rule 56(a), “the court shall grant summary judgment if the moving
party shows that there is no genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” Evidence is viewed in the light most favorable to the
nonmoving party. Sanchez v. City of Tucson, 191 Ariz. 128, 953 P.2d 168 (1998). “Motions for .
. . summary judgment serve the . . .purpose of expediting the business of the court by removing
meritless claims.” Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (Ariz. 1990).
“It is only the existence of uncontroverted competent evidence favorable to a movant, from
which only one inference can be drawn, that entitles a party to summary judgment.” Nemec v.
Rollo, 114 Ariz. 589, 592, 562 Pl.2d 1087, 1090 (Ariz. Ct. App. 1977) (citing Choisser v. State
ex rel. Herman, 12 Ariz. App. 259, 469 P.2d 493 (1970)). “Where the evidence or inferences
would permit a jury to resolve a material issue in favor of either party, summary judgment is
improper.” United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012, 1016 (App. 1990).
A review of the pleadings in this matter shows that there is a genuine issue of material
fact regarding the discretion that was exercised by Defendant during the installation of the
subject pavers.
IT IS THEREFORE ORDERED denying Defendant’s Motion for Summary Judgment:
Re Accepted Work Doctrine filed September 11, 2017.
12/01/2017 — CV2016000042 INC, OPTIMA CONSTRUCTION 12/01/2017 HON. TERESA SANDERS View Minute Entry ↑ top
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Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
12/04/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-000042
12/01/2017
Docket Code 083
Form V000A
Page 1
CLERK OF THE COURT
HON. TERESA SANDERS
N. Johnson/S. Brown
Deputy
JOYTSNA MORJARIA
KEVIN J TUCKER
v.
OPTIMA CONSTRUCTION INC, et al.
JASMINA RICHTER
JAMES MINHA CHONG
WALTER GROCHOWSKI
TRIAL SETTING CONFERENCE RESET
On the Court's own motion,
IT IS ORDERED vacating the Telephonic Trial Setting Conference on December 1,
2017 and resetting same to April 19, 2018 at 9:00 a.m. in this division. The parties will appear
telephonically.
Counsel for Plaintiff shall initiate the conference call by calling (602) 506-0423. The call
should be placed from a telephone in an area with no background noise as this will prevent the
parties from hearing the proceedings. The call may not be placed from a vehicle. Also, the use
of cellular telephones and speakerphones is strongly discouraged.
This is a 15-minute proceeding. The Court will determine if more time is needed. If
there is a failure to appear, the Court may make such orders as are just, including granting the
relief requested by the party who does appear.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-000042
12/01/2017
Docket Code 083
Form V000A
Page 2
NOTE: All court proceedings are recorded digitally and not by a court reporter. Pursuant
to Local Rule 2.22, if a party desires a court reporter for any proceeding in which a court reporter
is not mandated by Arizona Supreme Court Rule 30, the party must submit a written request to
the assigned judicial officer at least ten (10) judicial days in advance of the hearing, and must
pay the authorized fee to the Clerk of the Court at least two (2) judicial days before the
proceeding. The fee is $140 for a half-day and $280 for a full day.
12/04/2017 — CV2016000042 INC, OPTIMA CONSTRUCTION 12/04/2017 HON. TERESA SANDERS View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
12/05/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-000042
12/04/2017
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HON. TERESA SANDERS
N. Johnson/S. Brown
Deputy
JOYTSNA MORJARIA
KEVIN J TUCKER
v.
OPTIMA CONSTRUCTION INC, et al.
JASMINA RICHTER
JAMES MINHA CHONG
WALTER GROCHOWSKI
MINUTE ENTRY
A clerical error having occurred,
IT IS ORDERED correcting the minute entry dated December 1, 2017, page 1, paragraph
2, to reflect the correct phone number to call into the Division is (602) 506-4791.
