03/21/2023 — CV2023050577 ASSOCIATION, WESTWIND HOMEOWNERS 03/21/2023 HONORABLE ALISON BACHUS View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
03/22/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-050577
03/21/2023
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE ALISON BACHUS
C. Lett
Deputy
WESTWIND HOMEOWNERS ASSOCIATION
THOMAS MELFORD NICHOLS
v.
MOMBO HAKIZIMANA
MOMBO HAKIZIMANA
3914 N 105TH LN
AVONDALE AZ 85392
JUDGE BACHUS
MINUTE ENTRY
Before the Court is Plaintiff’s March 15, 2023 e-filed Application for Entry of Default
against Defendant(s) Mombo Hakizimana in the above-captioned case. An Answer was filed
subsequent to the Default Application. Defendant is not in default, as an Answer has been filed.
The application will therefore be denied.
IT IS ORDERED denying Plaintiff’s Application for Entry of Default.
07/10/2023 — CV2023050577 ASSOCIATION, WESTWIND HOMEOWNERS 07/10/2023 HONORABLE MICHAEL D. GORDON View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
07/11/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-050577
07/10/2023
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MICHAEL D. GORDON
C. Ladden
Deputy
WESTWIND HOMEOWNERS ASSOCIATION
THOMAS MELFORD NICHOLS
v.
MOMBO HAKIZIMANA
MOMBO HAKIZIMANA
3914 N 105TH LN
AVONDALE AZ 85392
JUDGE GORDON
MINUTE ENTRY
The Court has considered Plaintiff’s Motion for Summary Judgment filed on May 16,
2023. Defendant did not file a Response nor a request for additional time to submit a response.
The failure to respond to a motion may be treated as consent to its being granted. Ariz.
R. Civ. P. 7.1(b). Moreover, an unopposed motion for summary judgment will be granted unless
the moving party fails to present facts showing the absence of any materially disputed issue of
fact. E.g., Biondo v. General Motors Corp., 5 Ariz. App. 286, 291, 425 P.2d 856, 861 (1967)
(affirming summary judgment); see also Siner v. Stewart, 9 Ariz. App. 101, 103, 449 P.2d 635,
637 (1969) (same). When, as here, the party against whom the motion is directed fails to
respond, the facts asserted by the moving party are assumed to be true. E.g., Sato v. Van
Denburgh, 123 Ariz. 225, 599 P.2d 181 (1979) (affirming summary judgment); Schuldes v.
National Surety Corp., 27 Ariz. App. 611, 617, 557 P.2d 543, 549 (App. 1976)
(same). However, the Court still must review the Motion to ensure that it is at least factually
well-founded. Schwab v. Ames Const., 207 Ariz. 56 (App. 2004).
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-050577
07/10/2023
Docket Code 019
Form V000A
Page 2
In Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 292 P.3d 195 (App. 2012), the court
detailed the requirements for affidavits offered in support of motions for summary
judgment. Among other things, an affidavit must be made on personal knowledge, and must
affirmatively demonstrate that the affiant is competent to testify to the matters set forth
therein. Where the affiant is acting as a records custodian, the records should be attached to the
affidavit, and the affidavit should describe specifically why they fall within the business records
exception. And, the affidavit should provide a means to evaluate the accuracy of the calculation
of damages.
There has been no affidavit provided and there is insufficient admissible evidence
supporting the Motion for Summary Judgment.
Accordingly, the Motion for Summary Judgment is denied.
09/05/2023 — CV2023050577 ASSOCIATION, WESTWIND HOMEOWNERS 09/05/2023 HONORABLE MICHAEL D. GORDON View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
09/07/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-050577
09/05/2023
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MICHAEL D. GORDON
C. Ladden
Deputy
WESTWIND HOMEOWNERS ASSOCIATION
THOMAS MELFORD NICHOLS
v.
MOMBO HAKIZIMANA
MOMBO HAKIZIMANA
3914 N 105TH LN
AVONDALE AZ 85392
JUDGE GORDON
MINUTE ENTRY
The Court has considered Plaintiff’s Motion for Summary Judgment (filed
7/24/23). Defendant did not file a Response nor a request for additional time to submit a
response.
The failure to respond to a motion may be treated as consent to its being granted. Ariz.
R. Civ. P. 7.1(b). Moreover, an unopposed motion for summary judgment will be granted unless
the moving party fails to present facts showing the absence of any materially disputed issue of
fact. E.g., Biondo v. General Motors Corp., 5 Ariz. App. 286, 291, 425 P.2d 856, 861 (1967)
(affirming summary judgment).
The case law directs that “[s]ummary judgment is appropriate when the record shows that
there is no real dispute as to any material facts and the moving party is entitled to judgment as a
matter of law.” United Bank of Ariz. v. Allyn, 167 Ariz. 191, 194-95 (App. 1990) (citing Rule 56,
Arizona Rules of Civil Procedure; Nicoletti v. Westcor, Inc., 131 Ariz. 140, 142 (1982); State ex
rel. Corbin v. Sabel, 138 Ariz. 253, 255 (App.1983)). If a genuine issue of material fact exists
upon which reasonable people might reach different conclusions, summary judgment is not
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-050577
09/05/2023
Docket Code 019
Form V000A
Page 2
appropriate. Orme Sch. V. Reeves, 166 Ariz. 301, 309-10 (1990); see also Celotex Corp. v.
Catrett, 477 U.S. 317 (1986). “Even if no factual dispute exists, summary judgment is
inappropriate when reasonable jurors could draw conflicting inferences from the circumstances.”
Bishop v. State Dep’t of Corrections, 172 Ariz. 472, 475 (App. 1992) (citing N. Contracting Co.
v. Allis-Chalmers Corp., 117 Ariz. 374, 376 (1977)).
The party moving for summary judgment must produce evidence that it believes
demonstrates the absence of a genuine issue of material fact and must explain why summary
judgment is warranted. Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, 115 (App. 2008); If the
nonmoving party has the burden of proof of the claim or defense at trial, the moving party need
not disprove the nonmoving party’s claim or defense but need only point out the lack of evidence
on an essential element of the claim or defense. Thruston, 218 Ariz. at 117; see also Vig v. Nix
Project II P’ship, 221 Ariz. 393, 396 (App. 2009). If the moving party meets its burden, the
burden shifts to the nonmoving party to present sufficient evidence demonstrating the existence
of a disputed fact. Thruston, 218 Ariz. at 119.
The Court has carefully reviewed the Motion for Summary Judgment to ensure that it is
well-founded. Schwab v. Ames Const., 207 Ariz. 56 (App. 2004). On the record before it, the
Court finds that Plaintiff has sufficiently addressed the liability issues and has demonstrated an
absence of material facts with respect to the breach of contract. Further, Plaintiff has
demonstrated and that there are no material questions of fact with respect to defenses listed in the
Answer. The record demonstrates service was appropriate and the tort doctrine of contributory
negligence is inapplicable. While the Defendant also checked the box next to “illegality,”
Plaintiff’s motion demonstrates that there is no evidence of an illegality and, therefore,
Defendant was required to provide admissible evidence demonstrating a material question of fact
exists---which was not done.
Finally, the record fully supports the relief requested in terms of damages. The supporting
affidavit and evidence demonstrate the amounts due and owing of $5,704.50.
Accordingly, the Motion for Summary Judgment is granted. Plaintiff shall lodge a form
of judgment along with any application for attorney’s fees and costs no later than 20 days from
the filing date of this minute entry.
