08/30/2005 — CV2004070758 GRAND COMMUNITY ASSOCIATION INC, SUN CITY 08/30/2005 HONORABLE COLLEEN MCNALLY View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-070758
08/30/2005
Docket Code 078
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE COLLEEN MCNALLY
L. Glenn
Deputy
FILED: 09/01/2005
PETER WILLIAMSON, et al.
SAMUEL T CRUMP SR.
v.
SUN CITY GRAND COMMUNITY
ASSOCIATION INC
PAUL MICHAEL DUDA
TRAYLOR E RICHARDSON
MINUTE ENTRY
10:00 a.m. This is the time set for hearing on Order to Show Cause.
Plaintiffs/Counterdefendants are neither present nor represented by counsel.
Defendant/Counterclaimant is represented by counsel, Traylor E. Richardson.
A recording of this proceeding is made by CD and videotape in lieu of a court
reporter.
This matter was set for 9:30 a.m. and neither Defendant’s counsel, Mr. Duda, nor
Plaintiffs’ counsel has not contacted the Court to advise of the reason for non-
appearance.
IT IS THEREFORE ORDERED vacating the hearing set this date.
IT IS ORDERED setting this matter for a telephonic oral argument on
Defendants’ Expedited Motion for Withdrawal of Admissions of Sun City Grand
Community Association, Inc. to be held in conjunction with a Status/Scheduling
Conference to determine the need for further litigation on September 9, 2005 at 9:00
a.m. in this Division. Defendant/Counterclaimant’s counsel, Traylor E. Richardson shall
initiate the placement of the conference call to all parties and shall then contact this
Division at (602) 506-5961 on the designated date and time listed above.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-070758
08/30/2005
Docket Code 078
Form V000A
Page 2
Oral argument shall not exceed five minutes for each side. If extended oral
argument is necessary, counsel must so advise the Court no later than four (4) court
days prior to the date set for hearing so that oral argument can be rescheduled.
Counsel are further advised to have their trial calendars available during the
Status/Scheduling Conference.
10:05 a.m. Matter ends.
09/09/2005 — CV2004070758 GRAND COMMUNITY ASSOCIATION INC, SUN CITY 09/09/2005 HONORABLE COLLEEN MCNALLY View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-070758
09/09/2005
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE COLLEEN MCNALLY
L. Glenn
Deputy
FILED: 09/21/2005
PETER WILLIAMSON, et al.
SAMUEL T CRUMP SR.
v.
SUN CITY GRAND COMMUNITY
ASSOCIATION INC
LISA A SHANNON
TRAYLOR E RICHARDSON
MINUTE ENTRY
9:00 a.m. This is the time set for Return Hearing on Defendants’ Expedited
Motion for Withdrawal of Admissions of Sun City Grand Community Association, Inc.
and Status Scheduling Conference. Plaintiffs/Counterdefendants are represented by
counsel, Samuel T. Crump, Sr., appearing telephonically. Defendant/Counterclaimant
is represented by Lisa A. Shannon and Traylor E. Richardson, respectively.
A recording of this proceeding is made by CD and videotape in lieu of a court
reporter.
Upon inquiry from the Court, Plaintiffs’ counsel advises that he did not file a
response to Defendants’ Expedited Motion for Withdrawal of Admissions of Sun City
Grand Community Association, Inc.
The Court notes that this matter was set for hearing on August 30, 2005 and that
neither Plaintiffs’ counsel nor Defendant’s counsel, Lisa A. Shannon appeared.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-070758
09/09/2005
Docket Code 023
Form V000A
Page 2
Discussion ensues regarding the need to resolve the issue of the admissions
being addressed prior to proceeding on the Plaintiffs’ Motion for Summary Judgment.
Mr. Crump advises of his intent to file a response to the Motion to Withdraw Admissions,
and Ms. Shannon advises that she intends to file a reply.
The parties agree that the Court will not hear further oral argument on the
admissions issue, but will rule following receipt and consideration of the response and
reply.
Further discussion is held regarding the scheduling of depositions.
IT IS ORDERED, upon the agreement of the parties, that all depositions in this
matter will be completed by September 23, 2005, and that the amended motion for
summary judgment will be filed no later than September 30, 2005.
When the Court gets the amended summary judgment motion, or alternatively,
notice that no amended motion will be filed, the Court will set the matter for oral
argument within 45 to 60 days.
Mr. Richardson brings up the pending Order to Show Cause and the Request for
Permanent Injunction. Additionally, Mr. Richardson advises Counterclaimant may file a
summary judgment motion simultaneously with the response to Plaintiffs’ Motion for
Summary Judgment.
Discussion is held.
The Court notes that its intent is to first resolve the legal issues presented, then
set an evidentiary hearing on the Request for Permanent Injunction which will be
consolidated with a trial on the merits.
9:20 a.m. Matter ends.
09/20/2005 — CV2004070758 GRAND COMMUNITY ASSOCIATION INC, SUN CITY 09/20/2005 HONORABLE COLLEEN MCNALLY View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-070758
09/20/2005
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE COLLEEN MCNALLY
L. Glenn
Deputy
FILED: 09/22/2005
PETER WILLIAMSON, et al.
SAMUEL T CRUMP SR.
v.
SUN CITY GRAND COMMUNITY
ASSOCIATION INC
LISA A SHANNON
TRAYLOR E RICHARDSON
MINUTE ENTRY
The Court read and considered Defendant’s Expedited Motion for Withdrawal of
Admissions of Sun City Grand Community Association, Inc., Plaintiff’s response, and
Defendant’s reply.
IT IS ORDERED granting Defendant’s Motion for Withdrawal of Admissions. The
responses submitted by Defendant on July 18, 2005 shall stand.
11/16/2005 — CV2004070758 GRAND COMMUNITY ASSOCIATION INC, SUN CITY 11/16/2005 HONORABLE COLLEEN MCNALLY View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-070758
11/16/2005
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE COLLEEN MCNALLY
L. Glenn
Deputy
FILED: 11/18/2005
PETER WILLIAMSON, et al.
SAMUEL T CRUMP SR.
v.
SUN CITY GRAND COMMUNITY
ASSOCIATION INC
PAUL MICHAEL DUDA
TRAYLOR E RICHARDSON
LISA A SHANNON
TELEPHONIC ORAL ARGUMENT SET
IT IS ORDERED setting this matter for a telephonic oral argument on Plaintiffs’
Amended Motion for Summary Judgment, filed October 11, 2005 on December 9, 2005
at 8:45 a.m. in this Division. Plaintiffs’ counsel shall initiate the placement of the
conference call to all parties and shall then contact this Division at (602) 506-5961 on
the designated date and time listed above.
Oral argument shall not exceed five minutes for each side. If extended oral
argument is necessary, counsel must so advise the Court no later than four (4) court
days prior to the date set for hearing so that oral argument can be rescheduled.
12/20/2005 — CV2004070758 GRAND COMMUNITY ASSOCIATION INC, SUN CITY 12/20/2005 HONORABLE COLLEEN MCNALLY View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-070758
12/20/2005
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE COLLEEN MCNALLY
L. Glenn
Deputy
FILED: 12/23/2005
PETER WILLIAMSON, et al.
SAMUEL T CRUMP SR.
v.
SUN CITY GRAND COMMUNITY
ASSOCIATION INC
PAUL MICHAEL DUDA
TRAYLOR E RICHARDSON
LISA A SHANNON
RULING
The Court read and considered the cross motions for summary judgment, the
responses and the replies, as well as the associated statements of fact and the court
file.
The uncontested facts are as follows:
Plaintiffs are homeowners in the Sun City Grand housing development and are
subject to the governance of the Sun City Grand Community Association (Defendant)
pursuant to the Declaration of Covenant, Conditions, and Restrictions (CC&Rs)
recorded and referenced in the deed. Defendant is authorized by the CC&Rs to adopt
rules regulations and guidelines for the benefit of the community and to enforce the
CC&Rs as well as the rules, regulations and guidelines.
Plaintiffs sought authorization from Defendant to construct a barbeque in their
backyard. Plaintiffs submitted an Architectural Review Committee Application for
Approval on May 10, 2004. On that day, Julie Madden, Defendant’s employee, met with
Plaintiff, Mr. Williamson, to accept the Application. The governing documents as well as
the Application required that the applicant submit two copies of plans illustrating where
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-070758
12/20/2005
Docket Code 019
Form V000A
Page 2
the proposed structure was planned to be built. Mr. Williamson and Ms. Madden
discussed the need for plans to accompany the application. Ms. Madden provided Mr.
Williamson with a copy of the plot plan for his lot so that he could show the placement of
the barbeque on the lot. Ms. Madden drew the proposed barbeque on the plot plan at
Mr. Williamson’s direction. The modified plot plan showed the barbeque as being
placed within 10 feet from the rear of the residence and well outside the 15 foot rear
setback required by the CC&Rs.
The Application was submitted to the Architectural Review Committee with the
modified plot plan. On May 14, 2004, the Application was conditionally approved. (The
conditions were unrelated to location of the barbeque.) Plaintiffs contracted to have the
barbeque built. The barbeque was constructed in an area different from that set forth in
the modified plot plan and within the 15 foot rear yard setback. Defendant notified
Plaintiffs of the violation on May 24, 2004. Plaintiffs appealed the Committee’s decision
to the Association. The appeal was denied. Plaintiffs applied to Defendant for a
variance. The variance was also denied.
Plaintiffs claim that they are entitled to a variance by estoppel and that the
barbeque should be allowed to remain as constructed.
Defendant claims that there are no disputed issues of material fact and that it is
entitled to injunctive relief based upon the governing documents as a matter of contract
law.
With respect to Defendant’s position, the CC&Rs, and other governing
documents adopted by Defendant constitute a contract between Plaintiffs and
Defendant. By building a barbeque in a location other than that approved by Defendant,
Plaintiffs are in breach of contract. Defendant is entitled to judgment as a matter of law.
As to Plaintiffs’ claim of estoppel, Plaintiffs fail to show evidence of the elements.
There is no evidence that Defendant committed acts inconsistent with a position it later
adopted. The approval of the barbeque construction was based upon incorrect
information provided by Plaintiffs. When Plaintiffs constructed the barbeque in a
location different than the location presented to the Committee, Defendant rightfully
enforced the governing documents. Plaintiffs did not rely upon Defendant’s acts, but
rather failed to use care in presenting an accurate plan or in using the approved plan to
ensure that the location of the barbeque was consistent with the approved Application.
Finally, Defendant never repudiated prior conduct, but rather enforced the specific and
clear requirements of the governing documents and the approved Application.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-070758
12/20/2005
Docket Code 019
Form V000A
Page 3
IT IS ORDERED denying Plaintiffs’ Amended Motion for Summary Judgment.
IT IS ORDERED granting Defendant’s Motion for Summary Judgment.
Defendant seeks injunctive relief in the form of an order requiring Plaintiffs to
remove the barbeque. Because Defendant has prevailed on the merits and money
damages would not adequately compensate Defendant and the members of the
Association, a permanent injunction is appropriate.
Defendant also seeks attorneys’ fees.
Counsel for Defendant is directed to submit a formal written judgment and an
affidavit regarding attorneys’ fees and costs. The form of judgment shall either be
approved as to form or lodged for objection. The Court expects the documents to be
submitted no later than January 31, 2006.
