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Maricopa County Superior Court Case CV2018-015165: public docket details, parties, minute entries, documents, and official source links for Desert Mountain Master Association.

Case Number

CV2018-015165

County

Maricopa

Caption

Not captured

Filed

12/12/2018

Case Type

Civil

Judge

Whitten, Christopher

Location

Downtown

Official Court Record

Official Court Record

Parties

No parties captured.

Minute Entries

Clerk of the Superior Court

*** Electronically Filed ***

01/16/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

01/15/2020

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIELLE J. VIOLA
K. Cabral

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE VIOLA

MINUTE ENTRY

The Court has received and considered the following:

1.
Plaintiff's Motion for New Trial Pursuant to Ariz. R. Civ. P. 59 filed November 13,
2019;
2.
Defendant's Response filed December 2, 2019;
3.
Plaintiff's Request for Oral Argument on Motion for New Trial Pursuant to Ariz. R.
Civ. P. 59 filed November 14, 2019;
4.
Defendant's Notice of Errata Re: Response to Plaintiff's Motion for New Trial filed
December 6, 2019;
5.
Defendant's Response to Plaintiff's Request for Oral Argument on Motion for New
Trial filed December 2, 2019; and
6.
Plaintiff's Reply filed December 11, 2019.

The Court does not believe oral argument is necessary to rule on the Motion.

IT IS ORDERED denying Plaintiff's Motion for New Trial Pursuant to Ariz. R. Civ. P.
59 filed November 13, 2019.

Clerk of the Superior Court

*** Electronically Filed ***

02/21/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

02/14/2019

Docket Code 005
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE COLLEEN L. FRENCH
G. Verbil

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

COMM. FRENCH

MINUTE ENTRY

Courtroom 714 – East Court Building

8:39 a.m. This is the time set for an Order to Show Cause Return Hearing on Plaintiff’s
Application for Preliminary Injunction, filed 12/12/18. Plaintiff is represented by counsel,
Jonathan A, Dessaules. Defendant is represented by counsel, Curtis S. Ekmark and Gregory A.
Stein.

A record of the proceedings is made digitally in lieu of a court reporter.

Counsel present argument to the Court.

Based on the information that is provided to the Court, the Court does not find that
Plaintiff has complied with the requirements for relief pursuant to Rule 56(d), ARCP.

IT IS ORDERED denying Plaintiff’s Motion for Rule 56(d) Relief.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

02/14/2019

Docket Code 005
Form V000A
Page 2

IT IS FURTHER ORDERED Plaintiff shall have an opportunity to respond to
Defendant’s Motion for Summary Judgment by no later than February 22, 2019.

9:07 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

02/19/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

02/18/2020

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIELLE J. VIOLA
K. Cabral

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE VIOLA

MINUTE ENTRY

The contact number for Judge McCoy’s division listed in the minute entry dated 1/15/2020
is incorrect.

IT IS ORDERED correcting Judge McCoy’s division contact information to be as
follows:

THE HONORABLE SCOTT McCOY
JUDICIAL OFFICER OF THE SUPERIOR COURT
EAST COURT BUILDING – 6TH FLOOR
COURTROOM 612
101 WEST JEFFERSON
PHOENIX, AZ 85003
(602) 372-3603 TEL

Clerk of the Superior Court

*** Electronically Filed ***

03/12/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

03/10/2020

Docket Code 056
Form V056
Page 1

CLERK OF THE COURT
HONORABLE M. SCOTT MCCOY
J. Celian/C. Mai

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE MCCOY

HEARING SET

The Court has received and reviewed Plaintiff’s Motion to Set Supersedeas Bond and
Stay Enforcement of Judgement filed on February 19, 2020. Because Plaintiff waited more than
two weeks after filing a notice of appeal to file the motion,

IT IS ORDERED denying the request for expedited hearing.

IT IS FUTHER ORDERED setting an Evidentiary Hearing on April 10, 2020 at 9:00
a.m. (time allotted: 1 hour) for the purpose of Plaintiff’s Motion to Set Supersedeas Bond and
Stay Enforcement of Judgement filed February 19 2020. Counsel and parties shall appear in
person before:

HONORABLE M. SCOTT MCCOY
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
6TH FLOOR, COURTROOM 612
101 WEST JEFFERSON
PHOENIX, AZ 85003
(602) 372-3603

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

03/10/2020

Docket Code 056
Form V056
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.

Clerk of the Superior Court

*** Electronically Filed ***

03/27/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

03/25/2020

Docket Code 025
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE M. SCOTT MCCOY
E. Tran/C. Mai

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE MCCOY

MINUTE ENTRY

Due to the current COVID-19 pandemic, and on the Court’s own motion,

IT IS ORDERED converting the in-person Evidentiary Hearing set on April 10, 2020 at
9:00 a.m. to telephonic in this Division.

Counsel for Plaintiff(s) shall initiate the telephonic conference by first arranging the
presence of all other counsel or self-represented parties on the conference call and by calling this
division at: (602) 372-3603 promptly at the scheduled time. All persons appearing shall appear on
land lines and not on cellular phones, and shall not use the speakerphone features of their
telephones, in order to maximize all participants’ ability to hear and be heard.

NOTE: All court proceedings are recorded by audio and video method 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.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

03/25/2020

Docket Code 025
Form V000A
Page 2

TRIAL EXHIBITS

Counsel (and any self-represented party) shall deliver all trial exhibits to the courtroom
clerk no later than 3:00 p.m. on April 7, 2020. The division clerk can be reached 602-506-7514 for
questions on the submission of exhibits.

The parties shall present all exhibits to be used at trial, along with a written list of brief exhibit
descriptions, to the clerk on the date referenced above unless other arrangements have been made
with the clerk before that date. All exhibits will be clearly labeled by the parties to correspond with
the list provided. Exhibit numbers will not be reserved for exhibits. Any exhibits submitted at a later
date will be assigned the next available exhibit number.

The exhibits will be marked numerically and consecutively, plaintiff’s first and defendant’s
second. Before presenting the exhibits to the clerk, the parties shall meet and confer to eliminate any
duplicate exhibits.

If large charts or blow-ups are anticipated to be used, please include a small version (or photo)
which can be marked as the exhibit. The charts and blow-ups are used for demonstrative purpose
only, are not marked as the exhibits, and are returned to counsel.

Each multiple page exhibit MUST be securely fastened together by staple, binder clip (only
if staple does not hold) or pronged fasteners (if a binder clip does not hold). DO NOT use paper clips,
rubber bands, or submit loose sheets of paper.

Do not put numbers on the exhibits themselves; instead, use a COLORED sheet with the
exhibit number on it. Place the colored sheet in front of each exhibit, however, DO NOT staple or
paper-clip it to the exhibit itself (this should be the only loose sheet).

Depositions are not marked as exhibits. Original deposition transcripts shall be provided to
the courtroom clerk for filing no later than the first day of trial. The depositions will be available to
the parties and the Court during the trial, and will be retained by the clerk for record purposes.

The Court requires one set of exhibits to be marked and an electronic set for the
Judge’s use during the trial.

Clerk of the Superior Court

*** Electronically Filed ***

04/07/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

04/03/2020

Docket Code 002
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE M. SCOTT MCCOY
J. Eaton

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE MCCOY

MINUTE ENTRY

The Court has received and reviewed the Motion to Set Supersedeas Bond and to Stay
Enforcement of Judgment, filed on February 19, 2020, and the Response thereto. No reply brief
has been filed.

The Court originally set this matter for evidentiary hearing and oral argument, but after
reviewing the authorities cited, the Court finds the homeowner's association's argument is
persuasive and that neither additional evidence nor argument would be helpful. Accordingly,

IT IS ORDERED setting the bond amount at $113,818.79.

IT IS FURTHER ORDERED vacating the Evidentiary Hearing set on April 10, 2020 at
9:00 a.m.

Clerk of the Superior Court

*** Electronically Filed ***

04/08/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

04/07/2020

Docket Code 005
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE M. SCOTT MCCOY
K. Cabral

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE MCCOY

MINUTE ENTRY

East Court Building – Courtroom 612

10:02 a.m. This is the time set for an Emergency Hearing on Plaintiff’s Motion to Quash
Subpoena to Bank of America filed April 6, 2020. Plaintiff Nicdon 10663, LLC is represented by
counsel, Jonathan A. Dessaules. Defendant Desert Mountain Master Association is represented
by counsel, Curtis S. Ekmark.

A record of the proceedings is made digitally in lieu of a court reporter.

Discussion is held on the Motion to Quash Subpoena to Bank of America and on the parties
Joint Statement of Discovery filed April 2, 2020.

The parties state their respective positions.

For the reasons stated on the record,

IT IS ORDERED placing a stay on the production of documents by Bank of America.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

04/07/2020

Docket Code 005
Form V000A
Page 2

IT IS FURTHER ORDERED that Mr. Ekmark shall notify Bank of America directing
them to not produce the documents requested in the subpoena and if the documents are produced,
counsel for Defendant shall not open the package.

IT IS FURTHER ORDERED that the enforcement of the judgment is stayed for thirty
(30) days from today. Any Motion for Reconsideration shall be filed on or before April 17, 2020.

10:12 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

05/15/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

05/07/2019

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIELLE J. VIOLA
S. Perez

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE VIOLA

MINUTE ENTRY

IT IS ORDERED, setting Oral Argument regarding Defendant’s Motion for Summary
Judgment filed on January 1, 2019 on June 7, 2019 at 9:30 a.m. (Time allotted: 30 minutes).
All attorneys and self-represented parties appearing at this hearing must appear in person and not
telephonically, before:

THE HONORABLE DANIELLE J. VIOLA
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 WEST JEFFERSON
7TH FLOOR, COURTROOM 714
PHOENIX, AZ 85003
602-506-3442 TEL

The Court has considered the Defendant’s Motion for Summary Judgment filed on
January 1, 2019.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

05/07/2019

Docket Code 094
Form V000A
Page 2

IT IS ORDERED setting Oral Argument regarding Defendant’s Motion for Summary
Judgment filed on January 1, 2019 for June 7, 2019 at 9:30 a.m. (Time allotted: 30 minutes).
All attorneys and self-represented parties appearing at this hearing must appear in person unless
otherwise ordered, before:

THE HONORABLE DANIELLE VIOLA
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 WEST JEFFERSON
7TH FLOOR, COURTROOM 714
PHOENIX, AZ 85003
602-506-3442 TEL
602-372-8636 FAX

Failure to appear may result in the Court granting the relief requested by the other party
without further notice.

Clerk of the Superior Court

*** Electronically Filed ***

05/21/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

05/17/2019

Docket Code 085
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIELLE J. VIOLA
S. Brown

Deputy

NICDON 10663 L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE VIOLA

MINUTE ENTRY

ECB Courtroom: 714

11:08 a.m. This is the time set for a telephonic status conference set at the request of the
parties on Plaintiff’s Motion for Extension to File Reply in Support of Its Motion for Summary
Judgment (First Request) filed May 15, 2019. Plaintiff is represented by counsel, Jacob Kubert
(appearing for Jonathan Dessaules). Defendant is represented by counsel, Curtis Ekmark.

A record of the proceedings is made digitally in lieu of a court reporter.

Argument is presented on Plaintiff’s Motion and request to add all pending motions to the
oral argument currently set on June 7, 2019.

IT IS ORDERED granting Plaintiff’s request to hear all pending motions and extending
the time set for oral argument set on June 7, 2019 from 30 minutes to 60 minutes. The motions
to be heard at the oral argument are as follows:

 Defendant’s Motion for Summary Judgment filed January 14, 2019;
 Plaintiff’s Motion for Summary Judgment filed April 10, 2019;
 Defendant’s Motion to Strike filed May 6, 2019;

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

05/17/2019

Docket Code 085
Form V000A
Page 2

 Defendant’s Request for Rule 56(d) Relief filed May 6, 2019; and
 Defendant’s Rule 11 Motion filed May 9, 2019.

IT IS FURTHER ORDERED granting Plaintiff’s Motion for Extension to File Reply
and extending the date to file the Reply to no later than noon on May 31, 2019.

For the reasons stated on the record,

IT IS FURTHER ORDERED denying Defendant’s oral request to continue the oral
argument.

11:18 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

05/22/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

05/19/2020

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE M. SCOTT MCCOY
J. Celian/C. Mai

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE MCCOY

MINUTE ENTRY

The Court has received and reviewed Defendants' Affidavit in Support of Supplemental
Application for Attorneys' Fees and Costs, filed on April 27, 2020 and all associated
briefing. The application is untimely.

IT IS THEREFORE ORDERED denying the supplemental application.

Additionally, because a supersedeas bond has been posted,

IT IS ORDERED granting Plaintiff's Motion to Quash filed on April 6, 2020.

Clerk of the Superior Court

*** Electronically Filed ***

05/24/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

05/23/2019

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIELLE J. VIOLA
S. Brown

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE VIOLA

MINUTE ENTRY

The Court has received Defendant’s Request for Rule 56(d) Relief filed May 6, 2019.
Upon review, the Request is not seeking expedited relief from the Court as contemplated under
Rule 56(d). At page 3, the Defendant suggests that it would be more efficient for the Court to
hold this motion until after oral argument on the competing motions for summary judgment. The
Court is unclear as to the specific request of Defendant since the request suggests that Defendant
seeks discovery before responding to the Plaintiff’s motion. Accordingly, the request to hold the
motion seems to defeat the purpose of the request if the parties anticipate the Court is going to
hold oral argument which would be scheduled after the motions are fully briefed.

IT IS ORDERED Defendant shall file an amended Request on or before May 31, 2019
with a clarification to address the above concern noted by the Court. If no amended Request if
filed, the Court will deem this request abandoned.

Clerk of the Superior Court

*** Electronically Filed ***

06/11/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

06/07/2019

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIELLE J. VIOLA
D. Tapia

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE VIOLA

MINUTE ENTRY

East Court Building – Courtroom 714

9:33 a.m. This is the time set for Oral Argument on the following filings:

 Plaintiff’s Request for Rule 56(d) Relief and for Expedited Hearing filed on February
13, 2019.
 Plaintiff’s Motion for Summary Judgment filed on April 10, 2019.
 Defendant’s Motion to Strike filed on May 6, 2019.
 Defendant’s Rule 11 Motion filed on May 9, 2019.
 Defendant’s Amended Request for Rule 56(d) Relief filed on May 31, 2019.

Plaintiff Nicdon 10663, LLC is represented by counsel, Jacob A. Kubert and Jonathan A.
Dessaules, who appears telephonically. Defendant Desert Mountain Master Association is
represented by counsel, Curtis S. Ekmark and Gregory A. Stein.

A record of the proceedings is made digitally in lieu of a court reporter.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

06/07/2019

Docket Code 020
Form V000A
Page 2

The Court notifies the parties that she is aware that this litigation has taken a tone, and to
the extent that it has become personal, the Court advises the parties that same tone is not allowed
in Court.

Argument is heard and considered on Defendant’s Motion for Summary Judgment filed on
January 14, 2019.

LET THE RECORD REFLECT the Court does not need to hear argument on the Rule
56(d) Requests.

Discussion is held regarding Defendant’s Rule 11 Motion filed on May 9, 2019. With
respect to the tenants’ records,

IT IS ORDERED taking under advisement the following Motions:
 Plaintiff’s Motion for Summary Judgment filed on April 10, 2019.
 Defendant’s Motion to Strike filed on May 6, 2019.
 Defendant’s Rule 11 Motion filed on May 9, 2019.

IT IS FURTHER ORDERED 2 weeks after the issuance of the Court’s ruling, the parties
shall submit a Joint Report and Proposed Scheduling Order, or if appropriate, a form of Judgment.

10:48 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

07/31/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

07/29/2019

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIELLE J. VIOLA
K. Cabral

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE VIOLA

Under Advisement Ruling
Defendant’s Motion for Summary Judgment - Granted
Plaintiff’s Motion for Summary Judgment - Denied
Defendant’s Motion to Strike – Denied
Defendant’s Rule 11 Motion – Denied
Defendant’s Amended Request for Rule 56(D) Relief - Denied as Moot

The Court has received and considered the following:
1.
Defendant’s Motion for Summary Judgment filed January 14, 2019;
2.
Defendant’s Statement of Facts In Support of Its Motion for Summary Judgment
(DSOF) filed January 14, 2019;
3.
Plaintiff’s Response to Defendant’s Motion for Summary Judgment (PCSOF) filed
February 22, 2019;
4.
Plaintiff’s Controverting Statement of Facts In Opposition to Defendant’s Motion
for Summary Judgment (PCSOF) filed February 22, 2019;
5.
Defendant’s Reply filed March 25, 2019;
6.
Defendant’s Supplemental Statement of Facts (DSSOF) filed March 25, 2019;
7.
Plaintiff’s Motion for Summary Judgment filed April 10, 2019;
8.
Plaintiff’s Statement of Facts filed April 10, 2019;

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

07/29/2019

Docket Code 926
Form V000A
Page 2

9.
Defendant’s Response filed May 6, 2019;
10.
Defendant’s Controverting Statement of Facts In Support of Its Opposition to
Plaintiff’s Motion for Summary Judgment (DCSOF) filed May, 6, 2019;
11.
Plaintiff’s Reply filed May 31, 2019;
12.
Defendant’s Motion to Strike filed May 6, 2019;
13.
Plaintiff’s Response filed May 10, 2019;
14.
Rule 11 Motion filed May 9, 2019;
15.
Plaintiff’s Response to Rule 11 Motion filed May 20, 2019;
16.
Defendant’s Reply in Support of Rule 11 Motion filed May 30, 2019;
17.
Defendant’s Amended Request for Rule 56(D) Relief Submitted Pursuant to
Court’s Minute Entry dated May 31, 2019;
18.
Defendant’s Notice of Errata filed June 3, 2019; and
19.
Plaintiff’s Response to Defendant’s Amended Request for Rule 56(D) Relief filed
June 3, 2019.
The Court has further considered the arguments of counsel presented on June 7, 2019. The
parties have filed competing motions for summary judgment. Despite the number of filings, the
dispute between the parties is fairly simple: 1) whether a homeowners’ association followed the
correct procedures in adopting an amendment to the association governing document that restricted
homeowners’ ability to lease their property on a short term (less than 30 day) basis; and 2) whether
the restriction is valid.
Each summary judgment motion must be decided independently of the other. E.g., Arizona
Land Title & Trust Co. v. Safeway Stores, Inc., 6 Ariz. App. 52, 58, 429 P.2d 686, 692 (App. 1967)
(“The well-settled rule is that [c]ross-motions for summary judgment do not warrant the court in
granting summary judgment unless one of the moving parties is entitled to judgment as a matter
of law upon facts that are not disputed” (citation and internal quotations marks omitted)). Thus,
when considering the Defendant’s Motion for Summary Judgment, the court is required to view
all facts in the light most favorable to the Defendant, and when considering the Plaintiff’s Motion
for Summary Judgment, the court must view all facts in the light most favorable to the Plaintiff.
See e.g., Airfreight Express Ltd v. Evergreen Air Center, Inc., 215 Ariz. 103, 106, ¶2, 158 P.3d
232, 235 (App. 2008)
General Background
Plaintiff is the owner of a resident home which is part of a homeowners association called
Desert Mountain Master Association (DMMA). Plaintiff’s principals purchased the home in
November 2015 and conveyed the home to Plaintiff (an LLC holding company) in September
2017. DCSOF ¶¶ 7, 8. As of the transfer, the Association’s Master Declaration Use Restrictions
did not contain any restrictions concerning the length of time that one could rent their own
property. DCSOF ¶ 6. For purposes of these Motions, the Court will accept Plaintiff’s allegation

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

07/29/2019

Docket Code 926
Form V000A
Page 3

that the principals looked for a home without restrictions. PSOF ¶¶ 2, 6 filed April 10, 2019. In
July 2018, DMMA recorded an amendment (the Amendment) to its Master Declaration which
banned homeowners from renting their homes to outsiders unless these guests are prospective
members of the Desert Mountain Golf Club (the Club) or the lease is for longer than thirty days.
Plaintiff’s principals claim they would not have purchased the property if they were aware the
Master Declaration could restrict rentals. DCSOF ¶ 12. At the time Plaintiff’s principals
purchased the property, a City of Scottsdale municipal ordinance prohibited Plaintiff from using
their property for rentals of less than 30 days. DSSOF ¶ 1.
In July 2017, the DMMA Board of Directors announced to the members that it had
approved a resolution purporting to add a new Use Restriction to the Master Declaration restricting
rentals to “Ineligible Renters” for periods of less than sixty (60) days in duration. DSCOF ¶ 4.
The Board further announced it would unilaterally adopt the new restrictions unless more than
10% of the Members objected in writing within 45 days. DCSOF ¶ 15. The proposal contemplated
“Eligible Renters” would include individuals or entities that are members of the Association and/or
members of the Club. DCSOF ¶ 17. “Ineligible Renters” were those who were not members of
the Association or the Club. DCSOF ¶ 18. The Amendment also allowed “for prospective Club
members to rent short-term.” DCSOF ¶ 19. DMMA sent an email to the owners to explain the
restriction which clarified when rentals would be allowed or not allowed under the Amendment.
DSCOF 20. The email clarified that owners could not rent to non-club/non-property owners for
less than 60 days. DSCOF ¶ 20.
Approximately 700 people objected to the proposed Amendment. DCSOF ¶ 22. Later, On
December 4, 2017 and January 29, 2018, the Board considered options given the survey results
related to the Amendment. On January 29, 2018, the Board voted to rescind the 2017 proposed
Amendment and proposed a 30-day minimum. DCSOF ¶¶ 23-27. The Board further appointed
an ad hoc committee to vet the options and set rules in place. DCSOF ¶¶ 30-31.
The Board later approved a Resolution adopted by the Master Board of Directors at the
Board Meeting held on February 26, 2018. DSSOF, Ex. F at ¶¶ 2, 5-7.1 On March 8, 2018, the
Board emailed the homeowners to trigger the 45 day objection period under Section 5.20 of the
Master Declaration expressly giving members until April 27, 2018 to object to the Amendment.
DCSOF ¶ 56. The DMMA obtained written objections from 10% of the community before the

1 For purposes of the competing motions, the Court has focused on the conduct as of February 26,
2018. To the extent that the Board may have failed to comply with open meeting requirements at
a past board meeting, Plaintiff has not presented authority to establish such actions are void or
otherwise invalidate the subsequent actions of the Board taken consistent with Section 5.20.
Accordingly, the Court does not set forth the description of the various meetings leading up to the
unanimous approval of the instant Amendment at the February 26, 2018 meeting.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

07/29/2019

Docket Code 926
Form V000A
Page 4

April 27, 2018 deadline. DCSOF ¶¶ 57, 58. Before the objection period ended, the Board sent
out a ballot for the Amendment and a Notice of Special Meeting scheduling a vote for May 2,
2018. DCSOF. Out of 2,397 total members, 1,323 voted for the Amendment and 430 voted against
with 8 abstentions. DCSOF ¶ 59; DSSOF ¶ 16. The only substantive differences between the
2017 proposed Amendment and the 2018 Amendment were the reduction of the rental restriction
from 60 days to 30 days and allowing home exchanges. DCSOF ¶ 61. The Amendment was
recorded in July 2018. DCSOF ¶ 60.
Defendant asserts the Amendment is valid for the following reasons:
1.
Section 4.2 of the Declaration, titled Permitted Uses and Restrictions, warns
prospective purchasers that “the Board shall have the right, from time to time, to
amend, repeal or add to the restrictions. . .”
2.
The process for amending Use Restrictions is set forth in section 5.20 of the
Declaration. The process allows for amendment by 2/3 of the owners who vote at
a meeting called for a specific purpose. The instant Amendment required a 2/3
approval of the owners who voted.
Plaintiff asserts the Amendment is invalid for the following reasons:
1.
No provisions contained in the four corners of the Master Declaration specifically
alerted purchasers to the possibility that DMMA would create an entirely new
covenant imposing a 30-day minimum duration on leases;
2.
The Amendment unreasonably favors the Golf Club over non-Golf Club members.
3.
The Amendment was passed in violation of the Arizona Open Meeting Law (A.R.S.
§ 33-1804) and DMMA’s own governing documents.
ANALYSIS
DMMA Followed the Procedures to Amend the Use Restrictions in the Declaration
Defendant asserts the Amendment could be adopted by a vote of 2/3 of the homeowners
attending the meeting (or by absentee ballot) for the purpose of considering the Amendment.
Plaintiff contends that either a majority of all members or all of the members should have approved
the Amendment.

1. Section 4.2 Expressly Contemplates Use Restrictions Can Be Added
Plaintiff asserts that an association cannot use the general amendment provision contained
in CC&Rs to “unreasonably alter the nature of the covenants” in a manner that “substitutes new
obligations of the original bargain” or has a “substantial and unforeseeable impact on owners.”
Wilson v. Playa de Serrano, 211 Ariz. 511, 513 (App. 2005). In Wilson, a resident of a townhouse

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Form V000A
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subdivision challenged the homeowners’ association after the association adopted bylaws that
imposed a 55 year or older requirement. The original declaration provided that the development
was an “adult” development. Later, the owners attempted to pass an amendment to the by-laws
by a vote of 25 to 6 to make the community an age-restricted community. The plaintiff in Wilson
asserted the declaration does not impose a 55 year or older age restriction so the bylaws could not
create an enforceable deed restriction. See Shamrock v. Wagon Wheel Part Homeowners Ass’n,
206 Ariz. 42 42, ¶ 14 (App. 2003) (“If the recorded declaration does not contain or at least provide
for later adoption of a particular restriction or requirement, that restriction or requirement is
invalid.”).
In Wilson, the association relied on a portion of the Restatement (Third) of Property:
Servitudes (2000) to support restricting occupancy by amending its bylaws. As the Wilson court
explained, the Restatement provides that a common interest association does not have inherent
authority to restrict the occupancy of its lots absent specific authorization in the declaration unless
the restrictions are designed to protect the common property. The court further concluded the
declaration did not expressly impose a 55 year or older restriction nor did it grant the association
the power to impose such a restriction. Id. at 513. This case is different than Wilson because
Section 4.2 specifically contemplates the addition of restrictions under the process outlined in
Section 5.20.
Section 4.2 of the Declaration addresses lot restrictions:

Permitted Uses and Restrictions. The permitted uses and
restrictions of the Lots, Parcels and Common Area are set forth on
the attached Exhibit “E” and made a part hereof. The Board shall
have the right, from time to time, to amend, repeal, or add to the
restrictions in Exhibit “E” concerning the Lots, Parcels or
Common Area by Recording a certificate of amendment, subject
to the approval of the Members as set forth in Section 5.20 hereof
for Major Decisions.
(Emphasis added). Section 4.2 expressly recognizes that restrictions may be added and then
identifies the Section under which such amendment shall be considered.
2. Section 5.20 of the Declaration Does Not Require Unanimous Consent or a
Majority of Members to Approve an Amendment

The process for amending Use Restrictions is set forth in section 5.20 of the Declaration:

Major Decisions. All decisions of the Master Association
identified as Major Decisions herein shall be approved according

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to the following procedure. All Major Decisions shall first be
approved by the Board of Directors through a written Board
resolution. Thereafter, the Master Association shall give notice
to all Owners of the proposed Major Decision and of their right
to object to it. If not more than ten percent (10%) of the Members
object to the Major Decision in writing within forty-five (45)
days after notice is given, the Board is authorized to implement
to the Major Decision without a meeting or vote of the Members.
If, however, more than ten percent (10%) of the Members object
to the Major Decision in writing within forty-five (45) days after
notice is given, the Major Decision may only be authorized if
approved by eligible Members holding two-thirds (2/3) of the
eligible votes in the Master Association who are present in person
or by absentee ballot at a meeting of the Master Association
called for this purpose. The following actions are Major
Decisions of the Master Association:

(a) . . .
(b) Subject to the Developer’s written approval, if required, the
Board’s right to amend, repeal, or add restrictions in Exhibit “E”,
pursuant to Section 4.2.
Accordingly, under Section 5.20, a Major Decision can be implemented by the Board
without a vote if no more than 10% of the Members object in writing within 45 days after notice.
Alternatively, if 10% of the Members object, authorization may only be authorized by a vote of
2/3 of the eligible votes in the Master Association who are present at a meeting called for “this
purpose.”
Here, there was a written Board resolution approved by the Board of Directors. The Board
approved a Resolution adopted by the Master Board of Directors at the Board Meeting held on
February 26, 2018. DSSOF, Ex. F at ¶¶ 2, 5-7. More than 10% of the Members objected in writing
within 45 days. DCSOF ¶¶ 57, 58. The Board held a meeting where 2/3 of the Members voted
in person or by absentee ballot. Out of 1761 votes cast, 1,323 voted for the Amendment and 430
voted against it with 8 abstaining. DCSOF ¶ 59; DSSOF ¶ 16. Under the plain reading of 5.20,
the appropriate number of Members voted for the Amendment.
3. DMMA Correctly Required a 2/3 Majority of the Members Voting
The parties have a fundamental disagreement as to whether the Amendment required a
majority of all Members or a majority of all the Members who voted at the meeting. Plaintiff
asserts a majority of all Members was required and Defendant asserts only a majority of the

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Members voting was required. Plaintiff asserts that a majority of members (i.e. 1,199) would be
required to approve various “mundane or minor issues” such as how to handle surplus funds,
budgets, assessments, late fees, etc. Response filed February 22 at 11.
Under Plaintiff’s theory, it is inconsistent with Arizona law and fundamental precepts of
common interest communities to allow such significant decisions to be made by potentially so few
owners (i.e., 2/3 of the owners voting). Plaintiff queries why “Major Decisions” would require a
lesser percentage. “Major Decisions” include selling, conveying, and abandoning common areas;
borrowing money; annexing property into the Association; de-annexing property out of the
Association; and adding, repealing or amending use restrictions.
Plaintiff argues it is an absurd result that DMMA would seek to allow so few members to
make fundamental changes but require more for more mundane and minor changes. Compare
language in Section 19.1 with Section 5.20.
Section 19.1 of the Master Declaration provides:
Amendments may be adopted only with the affirmative vote or
written consent of a Majority of all of the Members and written
consent of Developer as long as Developer owns any portion of the
Potential Development Parcels or Club owns the Golf Club
Facilities. Notwithstanding the foregoing, the percentage of
Members necessary to amend a specific clause or provision of the
Master Declaration shall not be less than the percentage of
affirmative votes prescribed for actions to be taken under the clause
or provision.
The plain language in Section 5.20 provides an amendment could be approved by “Members
holding two-thirds of the eligible votes in the Master Association who are voting in person or by
absentee ballot at a meeting of the Master Association called for this purpose.” The language in
5.20 is different and more specific than language appearing in other sections of the Declaration:
7.3.4 “majority of all the Members”
10.3 “Majority of Members”
5.20
“2/3 of the eligible votes who are present in person or by absentee ballot at a
meeting of the Master Association called for this purpose”
Section 1.33 defines the term “Majority of Members” as:

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any specified fraction or percentage of the Members means that
fraction or percentage of the total votes entitled to be cast by
Members with respect to a given matter.
PSOF, Ex. 1 at 1.33. The language in 5.20 contains a specified fraction or percentage but then it
also makes clear that the percentage required applies to the eligible votes in the Master Association
who are present in person or by absentee ballot at a meeting of the Master Association called for
this purpose. PSOF, Ex. 1 at 5.20.
Moreover, Section 5.20 does not contain the term “Majority of the Members.” Plaintiff
argues that 5.20 should be reasonably interpreted to mean that DMMA needed 2/3 of the whole
which is supported by 1.33. While the Court recognizes the arguments presented by Plaintiff,
accepting the argument would require the Court to ignore the express language of 5.20 - “who are
voting in person or by absent ballot.” If the Court ignores the express language, such language
would be rendered superfluous. See Taylor v. State Farm Mut. Auto Ins. Co., 175 Ariz. 148, 153,
158-159, no. 9 (1993). Other portions of the Declaration provide support that the drafters intended
to use the specific language contained in 5.20:
7.34
requires vote of a “majority of all the Members”
10.3
requires a vote of “Majority of Members, at a special meeting held for such
purpose”
Neither of the above sections contains the additional language for members “who are
present in person or by absentee ballot at a meeting called by the Master Association for this
purpose.” Additionally, while not dispositive, Bob Borsch was involved with drafting 5.20 and he
testified that Section 5.20 requires only two-thirds of those voting. DCSOF filed May 6, 2019 at
¶ 13.
4. Dreamland is Distinguishable
Plaintiff relies on Dreamland Villa Community Club, Inc. v. Raimey, 224 Ariz. 42, 49-41,
¶¶ 31-35 (App. 2010) to argue that any amendment “must be directed at, and is limited by, the
scope of restrictions and cannot create new obligations not previously mentioned.” Id. at 49-50.
Dreamland is distinguishable from the present case because it was governed by deed restrictions
which required that every residence be occupied by at least one person over 55 years old.2 In
Dreamland, the homeowners objected to an amendment to the declaration which required
membership in a non-profit corporation. The question presented was whether deed restrictions for

2 Defendants identify seventeen reasons why Dreamland is distinguishable from this case. See
Reply filed March 25, 2019 at pages 3-4.

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a community without common areas, containing only restrictive covenants pertaining to each lot
owner’s personal residence, can be amended by majority vote of the lot owners to require
membership in an association and the imposition of assessments. Id. at 49. As noted in
Dreamland, homeowners had no right appurtenant to the lot ownership to membership in the club
and no right in the recreational facilities. Additionally, there were no assessments paid to the club
and many homeowners chose not to become members. In Dreamland, the Court concluded that
the authority to amend the original declaration did not allow 51% of the lot owners to force the
other 49% into club membership against their wishes nor to assess and lien the properties of such
homeowners for an association they did not seek. This case, unlike Dreamland, does not involve
forcing the homeowners to join an association or to pay assessments.
Plaintiff further asserts that its principals purchased the property in reliance on the Master
Declaration which had no restrictions related to short term rentals. At the time Plaintiff purchased
the home, however, Scottsdale banned all rentals under thirty days. Declaration section 20.8 and
Use Restriction 1.1.2 stated any violations of law are Declaration violations. Even if Plaintiff’s
subjective belief was that the Use Restrictions would never be amended, such a belief is not
objectively reasonable given the plain language of the Declaration. Specifically, Section 4.2
warned that Use Restrictions existed and the Board had the right to repeal, amend or add to the
restrictions under 5.20.
Unlike in Dreamland, Section 4.2 specifically pertains to Use Restrictions and Section 4.2
expressly provides notice that use restrictions exist and can be amended via 5.20. According to
Plaintiff, the Master Declaration expressly recognized and affirmed unfettered rental rights in
Section 1.2.2 of Exhibit E as long as the owner leased “the entire Dwelling Unit on a Lot.” This
exact language, however, supports a finding that it was foreseeable that the scope of lease
restrictions could be altered. For example, a modification could be made to allow for a lease of
something less than the entire dwelling. Plaintiff argues there were no rental restrictions in the
terms of who you can rent to or for what period of time prior to the Amendment and nothing in
Section 5.20 or anywhere else gave any warning that such rights could be eliminated without
owners’ consent. On the contrary, the fact that owners had to lease the entire dwelling is
necessarily a limitation against leasing only one room of the dwelling. At the time that Plaintiff
purchased the home, the Declaration contained various other leasing restrictions, including:
1. “all leases must restrict occupancy to a single family” (1.2.2)
2. Leases “must contain a provision that any violation of the Governing Documents of
Master Association shall be a default under the lease and is grounds for eviction”
(1.2.2)
3. All property shall be devoted “exclusively to residential use by Single Families” (1.2.1)
4. “No Business Use or other nonresidential use shall be made of any Lot or Parcel”
(1.2.1)

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5. Prohibited any type of plan that allows three or more unrelated persons to use the
property during any 365 day period 1.8/1.2.3
6. No violation of Law or Insurance and Laws, Ordinances and Regulations (20.8/11.2).
Although none of the identified restrictions specifically restricts rentals based on time restrictions,
the restrictions certainly provide notice that restrictions existed and the plain language of 4.2
explains the Board could add restrictions using the process outlined in 5.20.
Additionally, Section 5.4 specifically authorizes the Board to enact Rules regulating the
Lots and those rules shall have the same force and effect as if in the Declaration. Section 1.2.2 of
the Use Restrictions specifically states that leases are “subject to the provisions of the Master
Declaration and the Association Rules.” Accordingly, the rental restriction would also be valid
and enforceable if adopted under 5.4.
5. The Amendment Equally Impacts Those That Consented and Those That Did
Not Consent
Plaintiff relies on Restatement 6.10 to claim that non-unanimous amendments that
materially change the allocation of burdens in the community and that have an unfair or
disproportionate impact on only certain lot owners should be rejected. See Response filed
February 22, 2019 at p. 6. Plaintiff asserts the Amendment “unfairly shifts the lucrative benefits
of short-terms rentals from Plaintiff to the Club.” Response filed February 22, 2019 at page 7.
Contrary to Plaintiff’s assertion, there is no meaningful difference in the impact of the restrictions
as between the homeowners and the Club. For example, homeowners, including the Club, may
not enter into a short term rental of less than thirty days with any “Ineligible Renter.”
Homeowners, including the Club, may enter into short term rentals of less than thirty days with
any “Eligible Renter.” Eligible Renter is defined as “individuals and/or entities that are members
of the Association (set forth in the Master Declaration at 6.1) and/or individuals and/or entities that
are members of the Desert Mountain Club).” PSOF ¶ 62.
Plaintiff’s position focuses on the status of the renters as opposed to the property owner.
The fact that eligible short-term renters may ultimately be Club members or prospective Club
members does not unfairly impact the property owners who may enter into short-term leases with
those individuals. The effect of the Amendment is that short-term rentals will only be made to
people who are associated with the Association or the Club as opposed to others. The Club or
Club members cannot enter into short-term leases with a different population of renters than any
other member of the association. The Amendment does not provide that the Club be involved in
transactions nor that the Club receive any remuneration. That the Club may receive some
incidental benefit as a result ofmore golfers entering into short-term rentals does not equate to
Plaintiff’s interests being disproportionately impacted.

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6. The Amendment Is Not Invalid As A Result of Board Informalities
Plaintiff claims DMMA violated the open meeting law or its amendment procedures.
Defendant asserts that Plaintiff did not raise this issue in the Complaint but instead only in response
to summary judgment and is not properly before the Court. Cutrera v. Board of Supervisors, 429
F.3d 108, 113 (2005). The Court agrees. The procedural deficiencies were not pled except to
the extent the Complaint alleges the Amendment is invalid, improper, “was not adopted in
accordance with the Declaration or Arizona law”, and the “voting process was defective.” None
of these allegations makes clear that Plaintiff was complaining about a process that preceded
putting the Amendment to a vote of the members. Even if Plaintiff had raised the issues in the
Complaint, as explained at pages 15-18 of the Defendant’s Response fled May 6, 2019, the issues
are not material.
The Court has addressed the procedural question as to the voting requirement elsewhere in
this ruling. As to the alleged violation of the open meeting law, Plaintiff cites to authority drafted
by opposing counsel in support of its position. A review of the authority cited does not support the
proposition for which Plaintiff offers it. Moreover, Plaintiff relies on A.R.S. § 33-1804 (A)-(E)
and Op. Atty. Gen. No. 197-012. The Court recognizes that the opinion concludes that a board of
a homeowner’s association must follow the open meeting and notice provisions of A.R.S. § 33-
1804 if a quorum of the board meets informally to discuss board matters, regardless of whether
the board votes or takes action on any matters. The opinion does not address the validity of action
taken following a failure to comply. The statute does not support a conclusion that the action of
2/3 of the voting members at a meeting called to consider the Amendment should be considered
void or otherwise invalidated. Neither does the citation to Community Association Law in
Arizona, 5th Ed. (2015), Scott B. Carpenter, Esq., § 4.8.
Whether or not a violation of an open meeting law may have occurred is not necessarily
dispositive to the issues presented. While perhaps significant, Plaintiff presented no authority to
support a conclusion that the Board’s alleged past failures result in voiding a properly noticed
proposed amendment when the requisite number of Members voted for approval. See A.R.S. §
33-1804(D). Moreover, that the vote was called early after receiving objections from 10% of the
members does not necessarily invalidate the process nor has Plaintiff cited to any such authority.
The Court concludes no purpose is served to wait the entire objection period when only 10% need
object in order to force a vote. If the Board instead adopted the Amendment without a vote or
without waiting until the deadline to see if 10% objected, the Court would agree that the process
was deficient. Plaintiff has not alleged any such defect.

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Unanimous Consent Was Not Required
1. DMMA Was Not Required by A.R.S. § 33-1227 to Obtain Unanimous Consent
In the Arizona Condominium Act (ACA), the Arizona Legislature imposed a unanimous
consent requirement for restrictions that create or increase the uses to which any unit is restricted.
See A.R.S. § 33-1227(D). The unanimous consent requirement in A.R.S. § 33-1227 is not
applicable here. According to section 33-1201, the chapter applies to all condominiums created
within this state without regard to the date the condominium was created. A.R.S. § 33-1201
(emphasis added). See also Vales v. King’s Hill, 211 Ariz. 561, 566 (2005) (noting that trial court
was correct in ruling the unanimous consent requirement in A.R.S. § 33-1227 only applies to
condominiums).
Plaintiff asserts the Amendment violates the ACA because it unfairly shifts the lucrative
benefits of short-term rentals from Plaintiff to the Club. Contrary to this position, there is nothing
about the Amendment that shifts the benefits of rentals from Plaintiff to the Club. Nor is the
Amendment designed to financially benefit DMMA and the Club and there is nothing in the record
to the contrary. Plaintiff admits that the Amendment does not allow the Club to rent properties
and then sublease to third parties. Reply filed March 25, 2019 at page 8, fn 5.
2. Restatement 6.10 Does Not Require Unanimous Consent
Plaintiff asserts Restatement 6.10 requires unanimous approval of amendments that
deprive owners of significant property rights or unfairly/disproportionately impacts them. To the
extent Plaintiff relies on § 6.10(2), the section is not applicable for two reasons: 1) as discussed
above, the Amendment applies uniformly; and 2) the Declaration expressly provides that
amendments may be made to use restrictions. To the extent Plaintiff relies on § 6.10(1), the section
is not applicable because Section 4.2 and 5.20 include a specific process for making amendments,
including a specific voting requirement. Arizona recognizes that when a homeowner “takes deed
containing restriction allowing amendment by majority vote, homeowner implicitly consents to
any subsequent majority vote to modify or extinguish deed restrictions.” Nickerson v. Green
Valley Recreation, Inc., 228 Ariz. 309, 319-20 (citing Shamrock v. Wagon Wheel Park
Homeowners Ass’n, 206 Ariz. 42 at ¶¶ 15-16).
Arizona Law Allows Associations to Restrict Rental Periods
Under A.R.S. § 33-1806, an association member by use their property “as a rental property
unless prohibited in the declaration and shall use it in accordance with the declaration’s rental time
period restrictions.” Under A.R.S. § 33-1802, declaration includes any amendment. In this case,
the DMMA has imposed a restriction on rental periods via amendment. Accordingly, the Court
concludes § 33-1806 supports enforcement of the restriction.

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A motion for summary judgment should be granted “if the facts produced in support of the
claim or defense have so little probative value, given the quantum of evidence required, that
reasonable people could not agree with the conclusion advanced by the proponent of the claim or
defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990). A plaintiff “may only obtain summary
judgment if it submits undisputed admissible evidence that would compel any reasonable juror to
find in its favor on every element of its claim.” Comerica Bank v. Mahmoodi, 224 Ariz. 289, 293,
229 P.3d. 1031, 1035 (2010). Defendant has met the burden. Plaintiff has not met the burden.
Based on the above, the Court finds as follows: 1) DMMA followed the requirements in
the Declaration for amending the use restrictions; 2) DMMA applied the correct voting threshold
for approval; and 3) the restrictions are not inconsistent with Arizona law.
IT IS ORDERED granting Defendant’s Motion for Summary Judgment filed January 14,
2019.
IT IS ORDERED denying Plaintiff’s Motion for Summary Judgment filed April 10, 2019.
IT IS FURTHER ORDERED denying Defendant’s Motion to Strike filed May 6, 2019.
IT IS FURTHER ORDERED denying Defendant’s Rule 11 Motion filed May 9, 2019.
IT IS FURTHER ORDERED deeming the Joint Statement of Discovery Dispute filed May
31, 2019 and the Notice of Errata Re: Joint Statement of Discovery Dispute resolved as moot.
IT IS FURTHER ORDERED Defendant shall lodge a proposed form of order and any related
Motion for Attorneys’ Fees and Statement of Costs on or before August 29, 2019.

Clerk of the Superior Court

*** Electronically Filed ***

10/04/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

10/03/2019

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIELLE J. VIOLA
K. Cabral

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE VIOLA

MINUTE ENTRY

The Court has received and considered the following:

 Plaintiff’s Notice of Lodging Proposed Form of Judgment
 Plaintiff’s Application for Attorneys’ Fees and Costs, and the related response and
reply
 Plaintiff’s Statement of Costs, and the related objection and reply
 Defendant’s Notice of Lodging Proposed Rule 54(c) Final Judgment, and the related
objection and reply
 Defendant’s Application for Attorneys’ Fees and Costs, and the related response and
reply
 Defendant’s Statement of Costs, and the related objection and reply
 Defendant’s Motion to Clarify the Court’s Minute Entry Ruling Dated July 31, 2019,
and the related response and reply
 Plaintiff's Motion for Leave to File a First Amended Complaint , and the related
response and reply

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Docket Code 094
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Page 2

IT IS ORDERED setting Oral Argument regarding the aforementioned motions on
October 21, 2019 at 10:00 a.m. (Time allotted: 2 hours). All attorneys and self-represented
parties appearing at this hearing must appear in person unless otherwise ordered, before:

THE HONORABLE DANIELLE J. VIOLA
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 WEST JEFFERSON
7TH FLOOR, COURTROOM 714
PHOENIX, AZ 85003
602-506-3442 TEL

Failure to appear may result in the Court granting the relief requested by the other party
without further notice.

NOTE: All court proceedings are recorded by audio and video method 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.

Clerk of the Superior Court

*** Electronically Filed ***

10/23/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

10/21/2019

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIELLE J. VIOLA
K. Cabral

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE VIOLA

MINUTE ENTRY

East Court Building – Courtroom 714

10:01 a.m. This is the time set for Oral Argument on the following filings:

 Plaintiff’s Notice of Lodging Proposed Form of Judgment August 12, 2019.
 Plaintiff’s Application for Attorneys’ Fees and Costs August 12, 2019.
 Plaintiff’s Statement of Costs filed August 12, 2019.
 Defendant’s Notice of Lodging Proposed Rule 54(c) Final Judgment filed August 29,
2019.
 Defendant’s Application for Attorneys’ Fees and Costs filed August 29, 2019.
 Defendant’s Statement of Costs filed August 29, 2019.
 Defendant’s Motion to Clarify the Court’s Minute Entry Ruling Dated July 31, 2019
filed August 29, 2019.
 Plaintiff's Motion for Leave to File a First Amended Complaint filed September 19,
2019.

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Docket Code 020
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Page 2

Plaintiff Nicdon 10663, LLC is represented by counsel, Jacob A. Kubert and Jonathan A.
Dessaules. Members of Nicdon 10663, LLC are also present. Defendant Desert Mountain Master
Association is represented by counsel, Curtis S. Ekmark and Gregory A. Stein.

A record of the proceedings is made digitally in lieu of a court reporter.

Argument is presented.

For the reasons stated on the record,

IT IS ORDERED taking under advisement the following motions:

 Plaintiff’s Application for Attorneys’ Fees and Costs August 12, 2019.
 Plaintiff’s Notice of Lodging Proposed Form of Judgment August 12, 2019.
 Defendant’s Application for Attorneys’ Fees and Costs filed August 29, 2019.
 Defendant’s Motion to Clarify the Court’s Minute Entry Ruling Dated July 31, 2019
filed August 29, 2019.
 Defendant’s Notice of Lodging Proposed Rule 54(c) Final Judgment filed August 29,
2019.
 Plaintiff's Motion for Leave to File a First Amended Complaint filed September 19,
2019.

11:33 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

10/23/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

10/21/2019

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIELLE J. VIOLA
K. Cabral

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE VIOLA

CORRECTING MINUTE ENTRY

On the Court’s own motion:

IT IS ORDERED correcting the Court’s Minute Entry dated July 29, 2019, filed July 31,
2019, with docket code 926, page 2, paragraph 2, so that the paragraph reads as follows:

Each summary judgment motion must be decided independently of the other. E.g., Arizona
Land Title & Trust Co. v. Safeway Stores, Inc., 6 Ariz. App. 52, 58, 429 P.2d 686, 692 (App. 1967)
(“The well-settled rule is that [c]ross-motions for summary judgment do not warrant the court in
granting summary judgment unless one of the moving parties is entitled to judgment as a matter
of law upon facts that are not disputed” (citation and internal quotations marks omitted)). Thus,
when considering the Defendant’s Motion for Summary Judgment, the court is required to view
all facts in the light most favorable to the Plaintiff, and when considering the Plaintiff’s Motion
for Summary Judgment, the court must view all facts in the light most favorable to the Defendant.
See e.g., Airfreight Express Ltd v. Evergreen Air Center, Inc., 215 Ariz. 103, 106, ¶¶2, 158 P.3d
232, 235 (App. 2008).

The balance of the Minute Entry shall remain the same.

Clerk of the Superior Court

*** Electronically Filed ***

10/30/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

10/24/2019

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIELLE J. VIOLA
K. Cabral

Deputy

NICDON 10663 L L C
JONATHAN A DESSAULES

v.

DESERT MOUNTAIN MASTER
ASSOCIATION
CURTIS S EKMARK

JUDGE VIOLA

UNDER ADVISEMENT RULINGS

Defendant’s Motion to Clarify the Court’s Minute Entry Ruling
Dated July 31, 2019 – Granted

Plaintiff's Motion for Leave to File a First Amended Complaint
Filed September 19, 2019 - Denied

Defendant’s Application for Attorneys’ Fees and Costs Filed August 29, 2019 – Granted

Plaintiff’s Application for Attorneys’ Fees and Costs Filed August 12, 2019 – Denied

The Court has received and considered the following:

1. Plaintiff’s Notice of Lodging Proposed Form of Judgment
2. Plaintiff’s Application for Attorneys’ Fees and Costs, and the related Response and
Reply

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3. Plaintiff’s Statement of Costs, and the related Objection and Reply
4. Defendant’s Notice of Lodging Proposed Rule 54(c) Final Judgment, and the related
Objection and Reply
5. Defendant’s Application for Attorneys’ Fees and Costs, and the related Response and
Reply
6. Defendant’s Statement of Costs, and the related Objection and Reply
7. Defendant’s Motion to Clarify the Court’s Minute Entry Ruling Dated July 31, 2019,
and the related Response and Reply
8. Plaintiff’s Motion for Leave to File a First Amended Complaint, and the related
Response and Reply.

The Court further considered the arguments of counsel presented on Monday, October 21,
2019.

Defendant’s Motion to Clarify the Court’s Minute Entry Ruling Dated July 31, 2019

At the hearing on October 21, 2019, the Court indicated that it would on its own motion
correct a typographical error in the July 31, 2019 minute entry. The minute entry issued on October
21, 2019 reflects the correction discussed on the record. The Court also indicated that it identified
other incorrect citation references in the body of the ruling issued on July 31, 2019.

IT IS ORDERED granting Defendant’s Motion to Clarify by clarifying that the Court did
not change or add to the definition of Ineligible Renter or Eligible Renter under the Amendment
to Section 1.2.2 of Exhibit E of the Declaration that is the subject of the July 31, 2019 Ruling. The
Court further did not grant Plaintiff any new right to rent to prospective club members who are not
otherwise Eligible Renters as defined by amended 1.2.2 or who are otherwise Ineligible Renters
as defined by amended Section 1.2.2.

On the Court’s own motion, and consistent with Rule 60(a), Ariz. R. Civ. P.

IT IS ORDERED correcting the July 31, 2019 Ruling to reflect the appropriate citations to
the record. The substance of the ruling is not altered but the corrected citations are set forth below
in bold at the end of this ruling. The Court has included the corrected ruling, along with the
corrections referenced in the October 21, 2019 minute entry in bold so the parties have a complete
document for purposes of the record and any appeal.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

10/24/2019

Docket Code 926
Form V000A
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Plaintiff’s Motion for Leave to File a First Amended Complaint
Filed September 19, 2019- Denied

Plaintiff seeks to amend the Complaint because the Court found that Plaintiff did not
specifically plead a theory regarding violations of the Arizona Open Meeting law. The Court made
this finding as part of the July 31, 2019 ruling on the competing motions for summary judgment.
Plaintiff seeks leave to amend because “the Association is now asking this Court to rewrite the
Ruling and dismiss Plaintiff’s entire Complaint with prejudice without giving Plaintiff an
opportunity to pursue its meritorious theories.” Motion at 2.

The Court agrees that motions for leave to amend are liberally granted to promote justice
before the entry of final judgment. Plaintiff asserts now, after the briefing on the summary
judgment motions was filed, argued, and ruled on, that it would be deprived of a meaningful
opportunity to invalidate the Rental Restriction. The Court already found that the DMMA
followed the requirements in the Declaration for amending the use restrictions, DMMA applied
the correct voting threshold for approval, and the restrictions are not inconsistent with Arizona
law. In making these findings, the Court considered and rejected Plaintiff’s claims as to violations
of open meeting law or amendment procedures as invalidating the Amendment which would
render the requested leave to amend futile. Plaintiff asserts that Defendant cannot claim prejudice
now because Defendant was engaged in the discovery that gives rise to the requested amendment.
While perhaps true, the request for relief did not come until after the summary judgment ruling
was issued which served to resolve the issue presented to the Court and the issue giving rise to the
Complaint.

The Plaintiff was notified of Defendant’s position that such claims had not been pled as
early as March 25, 2019 when Defendant filed its Reply in support of the Defendant’s Motion for
Summary Judgment. Plaintiff made no attempt to seek to leave to amend nor did Plaintiff seek to
request Rule 56(d) relief to conduct additional discovery related to any alleged violations of the
open meeting law. Instead, Plaintiff waited until the Court ruled on the pending motions to request
an opportunity for leave to amend.

The Court has considered Rule 15 and the recognized policy that leave to amend shall be
freely given. Leave to amend, however, is balanced against undue delay, prejudice, and futility.
Here, delay, prejudice to Defendant, and futility all weigh against granting leave to amend.

IT IS ORDERED denying Plaintiff’s Motion for Leave to File a First Amended Complaint
filed August 29, 2019.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-015165

10/24/2019

Docket Code 926
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Defendant’s Application for Attorneys’ Fees and Costs – Granted

Attorneys’ Fees

The Court invited Defendant to submit an application for attorneys’ fees after issuing the
ruling on the competing motions for summary judgment. Defendant asks the Court to award fees
based on the provision in the Declaration as follows:

If any lawsuit is filed by any Owner or third party beneficiary to
enforce the provisions of the Governing Documents or in any other
manner arising out of the Governing Documents or the operations
of the Master Association, the prevailing party in such action shall
be entitled to recover from the other party all attorneys’ fees incurred
by the prevailing party in the action.

Article 5, Section 5.13; see also McDowell Mountain Ranch Cmty. Ass’n Inc. v. Simons, 216 Ariz.
266, 269 (App. 2007) (“Unlike fees awarded under A.R.S. 12-341.01(A), the court lacks discretion
to refuse to award fees under [a] contractual provision . . . Indeed, it is well-settled in Arizona that
[c]ontracts for payment of attorneys’ fees are enforced in accordance with the terms of the
contract.”). According to McDowell Mountain Ranch, the Court assumes the fees are facially
reasonable and the burden shifts to the non-moving party to show the fees are clearly excessive.
Id. at 271. In the absence of such a showing the moving party is entitled to receive its full attorneys’
fees. Id. Defendant also urges the Court to enter an award for fees and costs under A.R.S. § 12-
341 and § 12-341.01. Defendant submitted the corresponding Affidavit in Support of the
Application for Attorneys’ Fees and Costs. Specifically Defendant requests fees in the amount of
$140,550.00 and costs in the amount of $4673.79.

Plaintiff objects to the fee request alleging that it is the prevailing party and the Association
has not identified the “relief” that it won in this case. The Court’s ruling from July 31, 2019
specifically addresses the relief: 1) DMMA followed the requirements in the Declaration for
amending the use restrictions; 2) DMMA applied the correct voting threshold for approval; and 3)
the restrictions are not inconsistent with Arizona law. The Plaintiff requested relief in the form of
a Declaratory Judgment that the Amendment was unlawful and invalid because it was not adopted
with the unanimous consent of the Members as required by Arizona law; or alternatively, it was
not adopted with the requisite percentages set forth in Sections 1.33, 5.20 and 19.1 of the
Declaration; that the Association is not permitted to add new and material use restrictions that are
substantial and not foreseeable from the face of the then-operative declaration; and the voting
process was otherwise defective and not in compliance with Arizona law. The Plaintiff separately

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sought a temporary restraining order and preliminary injunction. The Court’s ruling addressed the
relief requested in favor of Defendant. Contrary to Plaintiff’s suggestions, the Court did not
authorize Plaintiff to rent or lease its home to prospective Club members that were not otherwise
Eligible Renters. Accordingly, the Court concludes that Defendant was the prevailing party.

Plaintiff further objects that Defendant is not entitled to fees because the Association can
only recover fees “it” incurred. The Affidavit establishes that Defendant incurred fees in the
amount of $140,550.00 and costs in the amount of $4673.79. That an insurer may be paying the
costs of those fees does not preclude an award. In the context of fee awards under A.R.S. § 12-
341.01, Arizona courts have recognized that such a rule would misdirect the benefit derived
through the foresight of the cautious individual who procured insurance. Catalina Foothills
Association, Inc. v. Richard White, 132 Ariz. 427 (Div. 2 1982) (citations omitted). The same
policy considerations support an award here.

Finally, Plaintiff claims Defendant incurred fees that were unreasonable, excessive or
unnecessary. Plaintiff asserts that the case should have been litigated for half the expense and that
motions were filed without merit and were summarily rejected (Motion to Strike, Rule 11 Motion,
Rule 56(d) Motion and refiled Rule 56(d) Motion and the Joint Discovery Dispute). While there
is no basis provided for the Court to conclude that the case could have been litigated for half the
expense, the Court does find that the fees identified by Plaintiff were excessive.

Even if Defendant is not entitled to an award of fees based on the express terms of the
Declaration, for the reasons set forth above, Defendant is entitled to an award of attorneys’ fees
under § 12-341.01, [i]n any contested action arising out of a contract, express or implied, the court
may award the successful party reasonable attorney fees. Here, the Defendant was the successful
party for the same reasons the Court concluded Defendant was the prevailing party. The Court
has further considered the Warner factors: 1) the merits of the claim or defense presented by the
unsuccessful party; 2) whether the litigation could have been avoided or settled and whether the
successful party’s efforts were completely superfluous in achieving the result; 3) whether assessing
fees against the unsuccessful party would cause an extreme hardship; 4) whether the successful
party prevailed with respect to all of the relief sought; 5) the novelty of the legal question
presented; 6) whether such claim had previously been adjudicated in this jurisdiction; and 7)
whether the award would discourage other parties with tenable claims or defenses from litigating
or defending legitimate contract issues. Associated Indem. Corp. v. Warner, 143 Ariz. 567, 570
(1985).

Here, the Court found in Defendant’s favor on the validity of the amendment which was
the basis of the lawsuit and the relief requested. The claim presented by Plaintiff was not one
totally lacking in merit. There were settlement discussions and Plaintiff apparently did offer to

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waive a portion of its attorneys’ fees to resolve the case in exchange for Defendant agreeing that
the short-term restriction was null and void and that the CC&Rs be amended to clarify that 2/3 of
lot owners must vote to amend versus 2/3 of those present. This was a disputed issue that was
resolved in favor of Defendant. It is also clear that the parties discussed settlement by phone as
reflected in Exhibit C to Plaintiff’s Response filed September 19, 2019. Here, Defendant’s efforts
were not superfluous in achieving the result. The Court was not presented with sufficient
information to conclude that a fee award would cause an extreme hardship. The Defendant
prevailed as to all of the relief sought. The issues presented were not novel but they did involve
extensive discovery and preparation for summary judgment. The Court finds no basis to conclude
the award of fees on its own is likely to discourage parties from litigating legitimate issues in the
future. The factors weigh in favor of a reasonable fee award to Defendant.

IT IS ORDERED granting Defendant’s Application for Attorneys’ Fees and awarding
Defendant attorneys’ fees in the amount of $109,145.00.

Costs

The Court has reviewed and considered the objections asserted by Plaintiff. The Court
finds no good cause to reject the costs expended which are supported by Defendant’s filing.

IT IS ORDERED awarding Defendant costs in the amount of $4,673.79.

Plaintiff’s Application for Attorneys’ Fees and Costs - Denied

Having concluded that Defendant was the prevailing and/or successful party, and having
awarded Defendant attorneys’ fees,

IT IS ORDERED denying Plaintiff’s Application for Attorneys’ Fees and Costs as moot.

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Corrected version of 07/29/2019 (filed 07/31/19) Rulings:

Under Advisement Ruling
Defendant’s Motion for Summary Judgment - Granted
Plaintiff’s Motion for Summary Judgment - Denied
Defendant’s Motion to Strike – Denied
Defendant’s Rule 11 Motion – Denied
Defendant’s Amended Request for Rule 56(D) Relief - Denied as Moot

The Court has received and considered the following:
1.
Defendant’s Motion for Summary Judgment filed January 14, 2019;
2.
Defendant’s Statement of Facts In Support of Its Motion for Summary Judgment
(DSOF) filed January 14, 2019;
3.
Plaintiff’s Response to Defendant’s Motion for Summary Judgment (PCSOF) filed
February 22, 2019;
4.
Plaintiff’s Controverting Statement of Facts In Opposition to Defendant’s Motion
for Summary Judgment (PCSOF) filed February 22, 2019;
5.
Defendant’s Reply filed March 25, 2019;
6.
Defendant’s Supplemental Statement of Facts (DSSOF) filed March 25, 2019;
7.
Plaintiff’s Motion for Summary Judgment filed April 10, 2019;
8.
Plaintiff’s Statement of Facts (PSOF) filed April 10, 2019;
9.
Defendant’s Response filed May 6, 2019;
10.
Defendant’s Controverting Statement of Facts In Support of Its Opposition to
Plaintiff’s Motion for Summary Judgment (DCSOF) filed May, 6, 2019;
11.
Plaintiff’s Reply filed May 31, 2019;
12.
Defendant’s Motion to Strike filed May 6, 2019;
13.
Plaintiff’s Response filed May 10, 2019;
14.
Rule 11 Motion filed May 9, 2019;
15.
Plaintiff’s Response to Rule 11 Motion filed May 20, 2019;
16.
Defendant’s Reply in Support of Rule 11 Motion filed May 30, 2019;
17.
Defendant’s Amended Request for Rule 56(D) Relief Submitted Pursuant to
Court’s Minute Entry dated May 31, 2019;
18.
Defendant’s Notice of Errata filed June 3, 2019; and
19.
Plaintiff’s Response to Defendant’s Amended Request for Rule 56(D) Relief filed
June 3, 2019.
The Court has further considered the arguments of counsel presented on June 7, 2019. The
parties have filed competing motions for summary judgment. Despite the number of filings, the
dispute between the parties is fairly simple: 1) whether a homeowners’ association followed the

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correct procedures in adopting an amendment to the association governing document that restricted
homeowners’ ability to lease their property on a short term (less than 30 day) basis; and 2) whether
the restriction is valid.
Each summary judgment motion must be decided independently of the other. E.g., Arizona
Land Title & Trust Co. v. Safeway Stores, Inc., 6 Ariz. App. 52, 58, 429 P.2d 686, 692 (App. 1967)
(“The well-settled rule is that [c]ross-motions for summary judgment do not warrant the court in
granting summary judgment unless one of the moving parties is entitled to judgment as a matter
of law upon facts that are not disputed” (citation and internal quotations marks omitted)). Thus,
when considering the Defendant’s Motion for Summary Judgment, the court is required to view
all facts in the light most favorable to the Plaintiff, and when considering the Plaintiff’s Motion
for Summary Judgment, the court must view all facts in the light most favorable to the Defendant.
See e.g., Airfreight Express Ltd v. Evergreen Air Center, Inc., 215 Ariz. 103, 106, ¶¶2, 158 P.3d
232, 235 (App. 2008).
General Background
Plaintiff is the owner of a resident home which is part of a homeowners association called
Desert Mountain Master Association (DMMA). Plaintiff’s principals purchased the home in
November 2015 and conveyed the home to Plaintiff (an LLC holding company) in September
2017. PCSOF ¶¶ 7, 8. As of the transfer, the Association’s Master Declaration Use Restrictions
did not contain any restrictions concerning the length of time that one could rent their own
property. PCSOF ¶ 6. For purposes of these Motions, the Court will accept Plaintiff’s allegation
that the principals looked for a home without restrictions. PSOF ¶¶ 2, 6 filed April 10, 2019. In
July 2018, DMMA recorded an amendment (the Amendment) to its Master Declaration which
banned homeowners from renting their homes to outsiders unless these guests are prospective
members of the Desert Mountain Golf Club (the Club) or the lease is for longer than thirty days.
Plaintiff’s principals claim they would not have purchased the property if they were aware the
Master Declaration could restrict rentals. PCSOF ¶ 12. At the time Plaintiff’s principals
purchased the property, a City of Scottsdale municipal ordinance prohibited Plaintiff from using
their property for rentals of less than 30 days. DSSOF ¶ 1.
In July 2017, the DMMA Board of Directors announced to the members that it had
approved a resolution purporting to add a new Use Restriction to the Master Declaration restricting
rentals to “Ineligible Renters” for periods of less than sixty (60) days in duration. PCSOF ¶ 14.
The Board further announced it would unilaterally adopt the new restrictions unless more than
10% of the Members objected in writing within 45 days. PCSOF ¶ 15. The proposal contemplated
“Eligible Renters” would include individuals or entities that are members of the Association and/or
members of the Club. PCSOF ¶ 17. “Ineligible Renters” were those who were not members of
the Association or the Club. PCSOF ¶ 18. The Amendment also allowed “for prospective Club
members to rent short-term.” PCSOF ¶ 19. DMMA sent an email to the owners to explain the

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restriction which clarified when rentals would be allowed or not allowed under the Amendment.
PCSOF ¶ 20. The email clarified that owners could not rent to non-club/non-property owners for
less than 60 days. PCSOF ¶ 20.
Approximately 700 people objected to the proposed Amendment. PCSOF ¶ 22. Later,
On December 4, 2017 and January 29, 2018, the Board considered options given the survey results
related to the Amendment. On January 29, 2018, the Board voted to rescind the 2017 proposed
Amendment and proposed a 30-day minimum. PCSOF ¶¶ 23-27. The Board further appointed
an ad hoc committee to vet the options and set rules in place. PCSOF ¶¶ 30-31.
The Board later approved a Resolution adopted by the Master Board of Directors at the
Board Meeting held on February 26, 2018. DSSOF, Ex. F at ¶¶ 2, 5-7.1 On March 8, 2018, the
Board emailed the homeowners to trigger the 45 day objection period under Section 5.20 of the
Master Declaration expressly giving members until April 27, 2018 to object to the Amendment.
PCSOF ¶ 56. The DMMA obtained written objections from 10% of the community before the
April 27, 2018 deadline. PCSOF ¶¶ 57, 58. Before the objection period ended, the Board sent
out a ballot for the Amendment and a Notice of Special Meeting scheduling a vote for May 2,
2018. PCSOF ¶ 57. Out of 2,397 total members, 1,323 voted for the Amendment and 430 voted
against with 8 abstentions. PCSOF ¶ 59; DSSOF ¶ 16. The only substantive differences between
the 2017 proposed Amendment and the 2018 Amendment were the reduction of the rental
restriction from 60 days to 30 days and allowing home exchanges. PCSOF ¶ 61. The Amendment
was recorded in July 2018. PCSOF ¶ 60.
Defendant asserts the Amendment is valid for the following reasons:
1.
Section 4.2 of the Declaration, titled Permitted Uses and Restrictions, warns
prospective purchasers that “the Board shall have the right, from time to time, to
amend, repeal or add to the restrictions. . .”
2.
The process for amending Use Restrictions is set forth in section 5.20 of the
Declaration. The process allows for amendment by 2/3 of the owners who vote at
a meeting called for a specific purpose. The instant Amendment required a 2/3
approval of the owners who voted.
Plaintiff asserts the Amendment is invalid for the following reasons:

1 For purposes of the competing motions, the Court has focused on the conduct as of February 26,
2018. To the extent that the Board may have failed to comply with open meeting requirements at
a past board meeting, Plaintiff has not presented authority to establish such actions are void or
otherwise invalidate the subsequent actions of the Board taken consistent with Section 5.20.
Accordingly, the Court does not set forth the description of the various meetings leading up to the
unanimous approval of the instant Amendment at the February 26, 2018 meeting.

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1.
No provisions contained in the four corners of the Master Declaration specifically
alerted purchasers to the possibility that DMMA would create an entirely new
covenant imposing a 30-day minimum duration on leases;
2.
The Amendment unreasonably favors the Golf Club over non-Golf Club members.
3.
The Amendment was passed in violation of the Arizona Open Meeting Law (A.R.S.
§ 33-1804) and DMMA’s own governing documents.
ANALYSIS
DMMA Followed the Procedures to Amend the Use Restrictions in the Declaration
Defendant asserts the Amendment could be adopted by a vote of 2/3 of the homeowners
attending the meeting (or by absentee ballot) for the purpose of considering the Amendment.
Plaintiff contends that either a majority of all members or all of the members should have approved
the Amendment.

1. Section 4.2 Expressly Contemplates Use Restrictions Can Be Added
Plaintiff asserts that an association cannot use the general amendment provision contained
in CC&Rs to “unreasonably alter the nature of the covenants” in a manner that “substitutes new
obligations of the original bargain” or has a “substantial and unforeseeable impact on owners.”
Wilson v. Playa de Serrano, 211 Ariz. 511, 513 (App. 2005). In Wilson, a resident of a townhouse
subdivision challenged the homeowners’ association after the association adopted bylaws that
imposed a 55 year or older requirement. The original declaration provided that the development
was an “adult” development. Later, the owners attempted to pass an amendment to the by-laws
by a vote of 25 to 6 to make the community an age-restricted community. The plaintiff in Wilson
asserted the declaration does not impose a 55 year or older age restriction so the bylaws could not
create an enforceable deed restriction. See Shamrock v. Wagon Wheel Part Homeowners Ass’n,
206 Ariz. 42 42, ¶ 14 (App. 2003) (“If the recorded declaration does not contain or at least provide
for later adoption of a particular restriction or requirement, that restriction or requirement is
invalid.”).
In Wilson, the association relied on a portion of the Restatement (Third) of Property:
Servitudes (2000) to support restricting occupancy by amending its bylaws. As the Wilson court
explained, the Restatement provides that a common interest association does not have inherent
authority to restrict the occupancy of its lots absent specific authorization in the declaration unless
the restrictions are designed to protect the common property. The court further concluded the
declaration did not expressly impose a 55 year or older restriction nor did it grant the association
the power to impose such a restriction. Id. at 513. This case is different than Wilson because
Section 4.2 specifically contemplates the addition of restrictions under the process outlined in
Section 5.20.

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Section 4.2 of the Declaration addresses lot restrictions:

Permitted Uses and Restrictions. The permitted uses and
restrictions of the Lots, Parcels and Common Area are set forth on
the attached Exhibit “E” and made a part hereof. The Board shall
have the right, from time to time, to amend, repeal, or add to the
restrictions in Exhibit “E” concerning the Lots, Parcels or
Common Area by Recording a certificate of amendment, subject
to the approval of the Members as set forth in Section 5.20 hereof
for Major Decisions.
(Emphasis added). Section 4.2 expressly recognizes that restrictions may be added and then
identifies the Section under which such amendment shall be considered.
2. Section 5.20 of the Declaration Does Not Require Unanimous Consent or a
Majority of Members to Approve an Amendment

The process for amending Use Restrictions is set forth in section 5.20 of the Declaration:

Major Decisions. All decisions of the Master Association
identified as Major Decisions herein shall be approved according
to the following procedure. All Major Decisions shall first be
approved by the Board of Directors through a written Board
resolution. Thereafter, the Master Association shall give notice
to all Owners of the proposed Major Decision and of their right
to object to it. If not more than ten percent (10%) of the Members
object to the Major Decision in writing within forty-five (45)
days after notice is given, the Board is authorized to implement
to the Major Decision without a meeting or vote of the Members.
If, however, more than ten percent (10%) of the Members object
to the Major Decision in writing within forty-five (45) days after
notice is given, the Major Decision may only be authorized if
approved by eligible Members holding two-thirds (2/3) of the
eligible votes in the Master Association who are present in person
or by absentee ballot at a meeting of the Master Association
called for this purpose. The following actions are Major
Decisions of the Master Association:

(a) . . .

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(b) Subject to the Developer’s written approval, if required, the
Board’s right to amend, repeal, or add restrictions in Exhibit “E”,
pursuant to Section 4.2.
Accordingly, under Section 5.20, a Major Decision can be implemented by the Board
without a vote if no more than 10% of the Members object in writing within 45 days after notice.
Alternatively, if 10% of the Members object, authorization may only be authorized by a vote of
2/3 of the eligible votes in the Master Association who are present at a meeting called for “this
purpose.”
Here, there was a written Board resolution approved by the Board of Directors. The Board
approved a Resolution adopted by the Master Board of Directors at the Board Meeting held on
February 26, 2018. DSSOF, Ex. F at ¶¶ 2, 5-7. More than 10% of the Members objected in writing
within 45 days. PCSOF ¶¶ 57, 58. The Board held a meeting where 2/3 of the Members voted
in person or by absentee ballot. Out of 1761 votes cast, 1,323 voted for the Amendment and 430
voted against it with 8 abstaining. PCSOF ¶ 59; DSSOF ¶ 16. Under the plain reading of 5.20,
the appropriate number of Members voted for the Amendment.
3. DMMA Correctly Required a 2/3 Majority of the Members Voting
The parties have a fundamental disagreement as to whether the Amendment required a
majority of all Members or a majority of all the Members who voted at the meeting. Plaintiff
asserts a majority of all Members was required and Defendant asserts only a majority of the
Members voting was required. Plaintiff asserts that a majority of members (i.e. 1,199) would be
required to approve various “mundane or minor issues” such as how to handle surplus funds,
budgets, assessments, late fees, etc. Response filed February 22 at 11.
Under Plaintiff’s theory, it is inconsistent with Arizona law and fundamental precepts of
common interest communities to allow such significant decisions to be made by potentially so few
owners (i.e., 2/3 of the owners voting). Plaintiff queries why “Major Decisions” would require a
lesser percentage. “Major Decisions” include selling, conveying, and abandoning common areas;
borrowing money; annexing property into the Association; de-annexing property out of the
Association; and adding, repealing or amending use restrictions.
Plaintiff argues it is an absurd result that DMMA would seek to allow so few members to
make fundamental changes but require more for more mundane and minor changes. Compare
language in Section 19.1 with Section 5.20.
Section 19.1 of the Master Declaration provides:

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Amendments may be adopted only with the affirmative vote or
written consent of a Majority of all of the Members and written
consent of Developer as long as Developer owns any portion of the
Potential Development Parcels or Club owns the Golf Club
Facilities. Notwithstanding the foregoing, the percentage of
Members necessary to amend a specific clause or provision of the
Master Declaration shall not be less than the percentage of
affirmative votes prescribed for actions to be taken under the clause
or provision.
The plain language in Section 5.20 provides an amendment could be approved by “Members
holding two-thirds of the eligible votes in the Master Association who are voting in person or by
absentee ballot at a meeting of the Master Association called for this purpose.” The language in
5.20 is different and more specific than language appearing in other sections of the Declaration:
7.3.4 “majority of all the Members”
10.3 “Majority of Members”
5.20
“2/3 of the eligible votes who are present in person or by absentee ballot at a
meeting of the Master Association called for this purpose”
Section 1.33 defines the term “Majority of Members” as:
any specified fraction or percentage of the Members means that
fraction or percentage of the total votes entitled to be cast by
Members with respect to a given matter.
DSOF, Ex. A at 1.33. The language in 5.20 contains a specified fraction or percentage but then
it also makes clear that the percentage required applies to the eligible votes in the Master
Association who are present in person or by absentee ballot at a meeting of the Master Association
called for this purpose. DSOF, Ex. A at 5.20.
Moreover, Section 5.20 does not contain the term “Majority of the Members.” Plaintiff
argues that 5.20 should be reasonably interpreted to mean that DMMA needed 2/3 of the whole
which is supported by 1.33. While the Court recognizes the arguments presented by Plaintiff,
accepting the argument would require the Court to ignore the express language of 5.20 - “who are
voting in person or by absent ballot.” If the Court ignores the express language, such language
would be rendered superfluous. See Taylor v. State Farm Mut. Auto Ins. Co., 175 Ariz. 148, 153,
158-159, no. 9 (1993). Other portions of the Declaration provide support that the drafters intended
to use the specific language contained in 5.20:
7.34
requires vote of a “majority of all the Members”

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10.3
requires a vote of “Majority of Members, at a special meeting held for such
purpose”
Neither of the above sections contains the additional language for members “who are
present in person or by absentee ballot at a meeting called by the Master Association for this
purpose.” Additionally, while not dispositive, Bob Borsch was involved with drafting 5.20 and he
testified that Section 5.20 requires only two-thirds of those voting. DCSOF filed May 6, 2019 at
¶ 13.
4. Dreamland is Distinguishable
Plaintiff relies on Dreamland Villa Community Club, Inc. v. Raimey, 224 Ariz. 42, 49-41,
¶¶ 31-35 (App. 2010) to argue that any amendment “must be directed at, and is limited by, the
scope of restrictions and cannot create new obligations not previously mentioned.” Id. at 49-50.
Dreamland is distinguishable from the present case because it was governed by deed restrictions
which required that every residence be occupied by at least one person over 55 years old.2 In
Dreamland, the homeowners objected to an amendment to the declaration which required
membership in a non-profit corporation. The question presented was whether deed restrictions for
a community without common areas, containing only restrictive covenants pertaining to each lot
owner’s personal residence, can be amended by majority vote of the lot owners to require
membership in an association and the imposition of assessments. Id. at 49. As noted in
Dreamland, homeowners had no right appurtenant to the lot ownership to membership in the club
and no right in the recreational facilities. Additionally, there were no assessments paid to the club
and many homeowners chose not to become members. In Dreamland, the Court concluded that
the authority to amend the original declaration did not allow 51% of the lot owners to force the
other 49% into club membership against their wishes nor to assess and lien the properties of such
homeowners for an association they did not seek. This case, unlike Dreamland, does not involve
forcing the homeowners to join an association or to pay assessments.
Plaintiff further asserts that its principals purchased the property in reliance on the Master
Declaration which had no restrictions related to short term rentals. At the time Plaintiff purchased
the home, however, Scottsdale banned all rentals under thirty days. Declaration section 20.8 and
Use Restriction 1.1.2 stated any violations of law are Declaration violations. Even if Plaintiff’s
subjective belief was that the Use Restrictions would never be amended, such a belief is not
objectively reasonable given the plain language of the Declaration. Specifically, Section 4.2
warned that Use Restrictions existed and the Board had the right to repeal, amend or add to the
restrictions under 5.20.

2 Defendants identify seventeen reasons why Dreamland is distinguishable from this case. See
Reply filed March 25, 2019 at pages 3-4.

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Unlike in Dreamland, Section 4.2 specifically pertains to Use Restrictions and Section 4.2
expressly provides notice that use restrictions exist and can be amended via 5.20. According to
Plaintiff, the Master Declaration expressly recognized and affirmed unfettered rental rights in
Section 1.2.2 of Exhibit E as long as the owner leased “the entire Dwelling Unit on a Lot.” This
exact language, however, supports a finding that it was foreseeable that the scope of lease
restrictions could be altered. For example, a modification could be made to allow for a lease of
something less than the entire dwelling. Plaintiff argues there were no rental restrictions in the
terms of who you can rent to or for what period of time prior to the Amendment and nothing in
Section 5.20 or anywhere else gave any warning that such rights could be eliminated without
owners’ consent. On the contrary, the fact that owners had to lease the entire dwelling is
necessarily a limitation against leasing only one room of the dwelling. At the time that Plaintiff
purchased the home, the Declaration contained various other leasing restrictions, including:
1. “all leases must restrict occupancy to a single family” (1.2.2)
2. Leases “must contain a provision that any violation of the Governing Documents of
Master Association shall be a default under the lease and is grounds for eviction”
(1.2.2)
3. All property shall be devoted “exclusively to residential use by Single Families” (1.2.1)
4. “No Business Use or other nonresidential use shall be made of any Lot or Parcel”
(1.2.1)
5. Prohibited any type of plan that allows three or more unrelated persons to use the
property during any 365 day period 1.8/1.2.3
6. No violation of Law or Insurance and Laws, Ordinances and Regulations (20.8/11.2).
Although none of the identified restrictions specifically restricts rentals based on time restrictions,
the restrictions certainly provide notice that restrictions existed and the plain language of 4.2
explains the Board could add restrictions using the process outlined in 5.20.
Additionally, Section 5.4 specifically authorizes the Board to enact Rules regulating the
Lots and those rules shall have the same force and effect as if in the Declaration. Section 1.2.2 of
the Use Restrictions specifically states that leases are “subject to the provisions of the Master
Declaration and the Association Rules.” Accordingly, the rental restriction would also be valid
and enforceable if adopted under 5.4.
5. The Amendment Equally Impacts Those That Consented and Those That Did
Not Consent
Plaintiff relies on Restatement 6.10 to claim that non-unanimous amendments that
materially change the allocation of burdens in the community and that have an unfair or
disproportionate impact on only certain lot owners should be rejected. See Response filed
February 22, 2019 at p. 6. Plaintiff asserts the Amendment “unfairly shifts the lucrative benefits

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of short-terms rentals from Plaintiff to the Club.” Response filed February 22, 2019 at page 7.
Contrary to Plaintiff’s assertion, there is no meaningful difference in the impact of the restrictions
as between the homeowners and the Club. For example, homeowners, including the Club, may
not enter into a short term rental of less than thirty days with any “Ineligible Renter.”
Homeowners, including the Club, may enter into short term rentals of less than thirty days with
any “Eligible Renter.” Eligible Renter is defined as “individuals and/or entities that are members
of the Association (set forth in the Master Declaration at 6.1) and/or individuals and/or entities that
are members of the Desert Mountain Club).” DSOF, Ex. B.
Plaintiff’s position focuses on the status of the renters as opposed to the property owner.
The fact that eligible short-term renters may ultimately be Club members or prospective Club
members does not unfairly impact the property owners who may enter into short-term leases with
those individuals. The effect of the Amendment is that short-term rentals will only be made to
people who are associated with the Association or the Club as opposed to others. The Club or
Club members cannot enter into short-term leases with a different population of renters than any
other member of the association. The Amendment does not provide that the Club be involved in
transactions nor that the Club receive any remuneration. That the Club may receive some
incidental benefit as a result of more golfers entering into short-term rentals does not equate to
Plaintiff’s interests being disproportionately impacted.
6. The Amendment Is Not Invalid As A Result of Board Informalities
Plaintiff claims DMMA violated the open meeting law or its amendment procedures.
Defendant asserts that Plaintiff did not raise this issue in the Complaint but instead only in response
to summary judgment and is not properly before the Court. Cutrera v. Board of Supervisors, 429
F.3d 108, 113 (2005). The Court agrees. The procedural deficiencies were not pled except to
the extent the Complaint alleges the Amendment is invalid, improper, “was not adopted in
accordance with the Declaration or Arizona law”, and the “voting process was defective.” None
of these allegations makes clear that Plaintiff was complaining about a process that preceded
putting the Amendment to a vote of the members. Even if Plaintiff had raised the issues in the
Complaint, as explained at pages 15-18 of the Defendant’s Response filed May 6, 2019, the issues
are not material.
The Court has addressed the procedural question as to the voting requirement elsewhere in
this ruling. As to the alleged violation of the open meeting law, Plaintiff cites to authority drafted
by opposing counsel in support of its position. A review of the authority cited does not support the
proposition for which Plaintiff offers it. Moreover, Plaintiff relies on A.R.S. § 33-1804 (A)-(E)
and Op. Atty. Gen. No. 197-012. The Court recognizes that the opinion concludes that a board of
a homeowner’s association must follow the open meeting and notice provisions of A.R.S. § 33-
1804 if a quorum of the board meets informally to discuss board matters, regardless of whether
the board votes or takes action on any matters. The opinion does not address the validity of action

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taken following a failure to comply. The statute does not support a conclusion that the action of
2/3 of the voting members at a meeting called to consider the Amendment should be considered
void or otherwise invalidated. Neither does the citation to Community Association Law in
Arizona, 5th Ed. (2015), Scott B. Carpenter, Esq., § 4.8.
Whether or not a violation of an open meeting law may have occurred is not necessarily
dispositive to the issues presented. While perhaps significant, Plaintiff presented no authority to
support a conclusion that the Board’s alleged past failures result in voiding a properly noticed
proposed amendment when the requisite number of Members voted for approval. See A.R.S. §
33-1804(D). Moreover, that the vote was called early after receiving objections from 10% of the
members does not necessarily invalidate the process nor has Plaintiff cited to any such authority.
The Court concludes no purpose is served to wait the entire objection period when only 10% need
object in order to force a vote. If the Board instead adopted the Amendment without a vote or
without waiting until the deadline to see if 10% objected, the Court would agree that the process
was deficient. Plaintiff has not alleged any such defect.

Unanimous Consent Was Not Required
1. DMMA Was Not Required by A.R.S. § 33-1227 to Obtain Unanimous Consent
In the Arizona Condominium Act (ACA), the Arizona Legislature imposed a unanimous
consent requirement for restrictions that create or increase the uses to which any unit is restricted.
See A.R.S. § 33-1227(D). The unanimous consent requirement in A.R.S. § 33-1227 is not
applicable here. According to section 33-1201, the chapter applies to all condominiums created
within this state without regard to the date the condominium was created. A.R.S. § 33-1201
(emphasis added). See also Vales v. King’s Hill, 211 Ariz. 561, 566 (2005) (noting that trial court
was correct in ruling the unanimous consent requirement in A.R.S. § 33-1227 only applies to
condominiums).
Plaintiff asserts the Amendment violates the ACA because it unfairly shifts the lucrative
benefits of short-term rentals from Plaintiff to the Club. Contrary to this position, there is nothing
about the Amendment that shifts the benefits of rentals from Plaintiff to the Club. Nor is the
Amendment designed to financially benefit DMMA and the Club and there is nothing in the record
to the contrary. Plaintiff admits that the Amendment does not allow the Club to rent properties
and then sublease to third parties. Reply filed March 25, 2019 at page 8, fn 5.
2. Restatement 6.10 Does Not Require Unanimous Consent
Plaintiff asserts Restatement 6.10 requires unanimous approval of amendments that
deprive owners of significant property rights or unfairly/disproportionately impacts them. To the

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extent Plaintiff relies on § 6.10(2), the section is not applicable for two reasons: 1) as discussed
above, the Amendment applies uniformly; and 2) the Declaration expressly provides that
amendments may be made to use restrictions. To the extent Plaintiff relies on § 6.10(1), the section
is not applicable because Section 4.2 and 5.20 include a specific process for making amendments,
including a specific voting requirement. Arizona recognizes that when a homeowner “takes deed
containing restriction allowing amendment by majority vote, homeowner implicitly consents to
any subsequent majority vote to modify or extinguish deed restrictions.” Nickerson v. Green
Valley Recreation, Inc., 228 Ariz. 309, 319-20 (citing Shamrock v. Wagon Wheel Park
Homeowners Ass’n, 206 Ariz. 42 at ¶¶ 15-16).
Arizona Law Allows Associations to Restrict Rental Periods
Under A.R.S. § 33-1806, an association member by use their property “as a rental property
unless prohibited in the declaration and shall use it in accordance with the declaration’s rental time
period restrictions.” Under A.R.S. § 33-1802, declaration includes any amendment. In this case,
the DMMA has imposed a restriction on rental periods via amendment. Accordingly, the Court
concludes § 33-1806 supports enforcement of the restriction.
A motion for summary judgment should be granted “if the facts produced in support of the
claim or defense have so little probative value, given the quantum of evidence required, that
reasonable people could not agree with the conclusion advanced by the proponent of the claim or
defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990). A plaintiff “may only obtain summary
judgment if it submits undisputed admissible evidence that would compel any reasonable juror to
find in its favor on every element of its claim.” Comerica Bank v. Mahmoodi, 224 Ariz. 289, 293,
229 P.3d. 1031, 1035 (2010). Defendant has met the burden. Plaintiff has not met the burden.
Based on the above, the Court finds as follows: 1) DMMA followed the requirements in
the Declaration for amending the use restrictions; 2) DMMA applied the correct voting threshold
for approval; and 3) the restrictions are not inconsistent with Arizona law.
IT IS ORDERED granting Defendant’s Motion for Summary Judgment filed January 14,
2019.
IT IS ORDERED denying Plaintiff’s Motion for Summary Judgment filed April 10, 2019.
IT IS FURTHER ORDERED denying Defendant’s Motion to Strike filed May 6, 2019.
IT IS FURTHER ORDERED denying Defendant’s Rule 11 Motion filed May 9, 2019.
IT IS FURTHER ORDERED deeming the Joint Statement of Discovery Dispute filed
May 31, 2019 and the Notice of Errata Re: Joint Statement of Discovery Dispute resolved as moot.

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IT IS FURTHER ORDERED Defendant shall lodge a proposed form of order and any
related Motion for Attorneys’ Fees and Statement of Costs on or before August 29, 2019.

End of Corrected Version of 07/29/2019 (filed 07/31/19) Rulings

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