03/22/2021 — CV2021090882 HAN, YUHUAN 03/22/2021 HONORABLE JANICE CRAWFORD View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
03/26/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
03/22/2021
Docket Code 004
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JANICE CRAWFORD
V. Felix
Deputy
VISTA DORADA I I HOMEOWNERS
ASSOCIATION
CHAD M GALLACHER
v.
YUHUAN HAN
YUHUAN HAN
1354 E WALNUT RD
GILBERT AZ 85298
CITS
JUDGE CRAWFORD
MINUTE ENTRY
Courtroom 205 – SEA
1:45 p.m. This is the time set for Order to Show Cause – Return Hearing regarding
Plaintiff’s Application for Preliminary and Permanent Injunction filed on February 23, 2021.
Defendant, Yuhuan Han, is present on his own behalf. Court interpreter, Ken Lee, is present
assisting Defendant in the Mandarin language.
Today’s proceeding is being held virtually through Court Connect. A record of the
proceedings is made digitally in lieu of a court reporter.
Discussion is held.
LET THE RECORD REFLECT Ken Lee is sworn to act as interpreter of the Mandarin
language.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
03/22/2021
Docket Code 004
Form V000A
Page 2
Further discussion is held.
IT IS ORDERED if Defendant requires the assistance of a court interpreter, he must file
a verified statement formally requesting the appointment of a court interpreter.
1:57 p.m. Court stands in recess.
1:58 p.m. Court reconvenes. Plaintiff’s counsel Chad Gallacher, Defendant, and the
court interpreter are present.
A record of the proceedings is made digitally in lieu of a court reporter.
Discussion is held.
IT IS ORDERED continuing today’s Return Hearing to April 21, 2021 at 10:00 a.m. (1
hour allotted) before Judge Janice Crawford. The hearing shall be held virtually through Court
Connect. All parties and their counsel will be provided with the Court Connect link invitation in
advance of the hearing. No evidence will be taken at the Return Hearing.
Judge Crawford’s Remote Courtroom
Hearings will be held via video conference through Court Connect utilizing the
Microsoft Teams application. An invite to the hearing will be sent out to the
email on file for each party or counsel of record. It is the party’s responsibility
to ensure receipt of the invitation prior to the hearing date. The information is
included below as well:
Please join my meeting from your computer, tablet or smartphone.
https://www.tinyurl.com/jbazmc-cvj05
You can also dial in using your phone.
Teams Phone Number: +1 (917) 781-4590 Access Code: 916 796 193#
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
03/22/2021
Docket Code 004
Form V000A
Page 3
PLEASE READ THE FOLLOWING INSTRUCTIONS IN ADVANCE OF YOUR
SCHEDULED HEARING
(1) Court Connect Invitation: An invitation to join the video conference will be provided via
email. If you do not receive the invitation via email within 3 business days before your
hearing, email this division at [email protected] and request an
invitation to the hearing.
(2) Downloading & Testing Software: Upon your receipt of the invitation, click on the link
provided to download the Microsoft Teams application software. The software can be
downloaded via a computer, smart phone, or other smart device. You should ensure that you
download the application software on the device you intend to use at the actual hearing.
Ensure that device has a microphone and webcam (most laptops, smart phones, and Ipads
already do).
New to Microsoft Teams? Get the app now and be ready when your first meeting starts:
https://www.microsoft.com/en-us/microsoft-365/microsoft-teams/group-chat-software
(3) Admonitions:
a. You are responsible for ensuring that you have downloaded the Microsoft Teams
software in advance of the hearing. In the event that you have any technical issues
with the software or access to a device, you must contact this division in advance so
that we can assist you in resolving any such issues.
b. You are responsible for ensuring that you provide your clients (if represented) and any
third-party witnesses with a copy of the link so that they can testify during the hearing
without delay.
c. You must ensure that you have access to a quiet, secure room during the hearing that
is free from audio and visual distractions.
Public Access for Observers: More information regarding Court Connect can be found at:
https://superiorcourt.maricopa.gov/court-connect/
2:12 p.m. Matter concludes.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
03/22/2021
Docket Code 004
Form V000A
Page 4
The Arizona Constitution requires the Arizona Commission on Judicial Performance Review to
conduct performance evaluations of superior court judges. The Commission is asking for your help
to evaluate Maricopa County Superior Court judges currently undergoing performance
review. After your hearing, if the judge you are in front of is undergoing review, a survey will be
emailed to you and you can take the survey online. The survey is conducted by the Docking
Institute of Public Affairs at Fort Hays State University and is anonymous and confidential. Your
participation in the review process is important! More information on Judicial Performance
Review can be found at www.azjudges.info.
La Constitución de Arizona exige que la Comisión de la Evaluación del Desempeño Judicial
realice evaluaciones de desempeño de los jueces de los tribunales superiores. La comisión pide su
ayuda para evaluar a los jueces del Tribunal Superior del Condado de Maricopa a quienes
actualmente se les está evaluando su desempeño. Después de su audiencia, si el juez ante el cual
comparece está sometido a una evaluación se le enviará por correo electrónico una encuesta que
usted podrá tomar por Internet. La encuesta es realizada por el Docking Institute of Public Affairs
de la Fort Hays State University y se mantiene anónima y confidencial. ¡Su participación en el
proceso de la evaluación es importante! Para obtener más información sobre la evaluación del
desempeño judicial, diríjase a www.azjudges.info.
04/22/2021 — CV2021090882 HAN, YUHUAN 04/22/2021 HONORABLE JANICE CRAWFORD View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
04/26/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
04/22/2021
Docket Code 056
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JANICE CRAWFORD
V. Felix
Deputy
VISTA DORADA I I HOMEOWNERS
ASSOCIATION
CHAD M GALLACHER
v.
YUHUAN HAN
YUHUAN HAN
1354 E WALNUT RD
GILBERT AZ 85298
CITS
JUDGE CRAWFORD
MINUTE ENTRY
Courtroom 205 – SEA
10:00 a.m. This is the time set for Order to Show Cause – Return Hearing regarding
Plaintiff’s Application for Preliminary and Permanent Injunction filed on February 23, 2021.
Plaintiff is represented by above-named counsel Chad Gallacher. Defendant, Yuhuan Han, is
present on his own behalf. Court interpreter, Ken Lim, is present assisting Defendant in the
Mandarin language.
Today’s proceeding is being held virtually through Court Connect. A record of the
proceedings is made digitally in lieu of a court reporter.
Discussion is held.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
04/22/2021
Docket Code 056
Form V000A
Page 2
LET THE RECORD REFLECT Ken Lim is sworn to act as interpreter of the Mandarin
language.
Further discussion is held.
Plaintiff’s counsel addresses the Court.
Further discussion is held.
IT IS ORDERED setting an Evidentiary Hearing regarding Plaintiff’s Application for
Preliminary Injunction to begin on June 29, 2021 at 9:30 a.m. before:
HONORABLE JANICE CRAWFORD
SOUTHEAST ADULT FACILITY
222 EAST JAVELINA - COURTROOM 205
MESA AZ 85210
Hearing dates and times are as follows:
June 29, 2021 from 9:30 a.m. – 12:00 p.m. and July 1, 2021 from 9:30 a.m. – 12:00 p.m.
IT IS FURTHER ORDERED all parties and counsel must appear in person for the
above-set hearing.
IT IS FURTHER ORDERED that the parties and, if represented, counsel shall
exchange a list of witnesses and exhibits not later than June 1, 2021.
LET THE RECORD REFLECT the parties have agreed to exchange their respective
list of witnesses and exhibits by email.
IT IS FURTHER ORDERED each party shall file a separate Pretrial Statement not later
than June 14, 2021. The Pretrial Statement shall include the following:
A brief summary of the claims and defense.
A list of all exhibits and witnesses the party intends on presenting at the hearing.
IT IS FURTHER ORDERED all exhibits are to be submitted to the clerk no later than
June 14, 2021.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
04/22/2021
Docket Code 056
Form V000A
Page 3
This Division requires hard copies of all exhibits. Exhibits must be hand-delivered to
the Clerk Of Court file counter located at the Southeast Adult Facility. Follow directions upon
arrival. Exhibits that are submitted electronically through either E-File or the Clerk of Court
website will not be accepted.
An Exhibits Coversheet must be completed and submitted as the top coversheet of your
exhibits. The Exhibit Coversheet must include your case number, the case caption, the
date of your hearing, the Judicial Officer assigned to your case, and the name of the party
submitting the exhibits.
Exhibits must be separated by a colored sheet of paper with the exhibit number written on
front. Each exhibit must be clipped or bound if too large to be stapled. Exhibits also may
be provided in a three-ring binder, with each exhibit separated by a tabbed, numbered
divider. If exhibits are not clearly separated, they will be combined as one (1) document.
Provide a separate copy of exhibits in a three-ring binder, with each exhibit separated by
a tabbed, numbered divider, to be used by the judge.
Failure to obey these orders may result in exclusion of the exhibit and/or waiver of
objections.
PLEASE NOTE: The Clerk of Court policies and procedures do not allow the clerk
to hold exhibit numbers for exhibits to be submitted later. Exhibits are marked in the order
in which they are received.
10:43 a.m. Matter concludes.
Expectations of a self-represented party. The law requires this Court to hold all
persons representing themselves to the same standard as a licensed attorney. This means that the
parties should familiarize themselves with the Arizona Rules of Civil Procedure. You can find
them at:
https://www.azcourts.gov/rules/Recent-Amendments/Rules-of-Civil-Procedure
or
https://govt.westlaw.com/azrules/
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
04/22/2021
Docket Code 056
Form V000A
Page 4
If you are not represented by an attorney you must provide the Court with a current
address, telephone number, and email address. If your address, phone number, or email
address changes in the future, you must file a notice of change of address/phone number/email
address. That form can be downloaded at no charge from the following website
http://www.superiorcourt.maricopa.gov/SuperiorCourt/LawLibraryResourceCenter
Please note that only a licensed attorney may represent a corporation, LLC, or similar
business entity in the Superior Court.
Filing documents. After the complaint or petition is served, the parties have to file
subsequent documents with the Clerk of the Court. It is the Clerk’s job to keep an independent
record of everything that happens at the court. Please pay particular attention to Rule 5, which
tells you how to get your filed documents to the other party, to the Clerk of the Court and to the
Court.
If you want to file papers with the Clerk of the Court by mail, please send them to:
Clerk of the Superior Court’s Office
Civil File Counter
222 East Javelina
Mesa, AZ 85210
The clerk’s guidelines for filing by mail can be found at:
http://www.clerkofcourt.maricopa.gov/filing-by-mail.asp
Requests to the Court. Before the judge can consider anything you must:
1. File it with the Clerk of the Court. The court cannot act on a document that has not
been made a part of that record; and
2. Provide a copy of anything filed to every other party involved in the case. This is so
all parties have a fair chance to respond to the request and provide their positions.
Please provide the Division with a copy of anything you have filed that you want heard
by the judge.
Cases subject to Compulsory Arbitration. The Rules for Compulsory Arbitration are
contained in Rules 73-77, Ariz. R. Civ. P. As set forth in Rule 74, the assigned arbitrator shall
rule on certain motions. Accordingly, you are required to provide a copy of any applicable
motion to the assigned arbitrator as set forth in Rule 74(D)(2), Ariz. R. Civ. P.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
04/22/2021
Docket Code 056
Form V000A
Page 5
Proof that a document was delivered. Rule 5.c.3 requires the sending party to provide
a certificate of delivery of a case-related document. At the end of each document or in a separate
certificate, include the information substantially as follows:
A copy has been or will be mailed/emailed/hand-delivered [select one] on [insert date]
to:
[Name of opposing party or attorney]
[Address of opposing party or attorney]
If a party is represented by an attorney, you must send or deliver the copy to the attorney,
not to the party.
Scheduling and managing the case; setting it for trial. Rule 16 governs the scheduling
and management of a case. For example, Rule 16.b explains that the parties are expected to meet
fairly shortly after the complaint is filed and provides the minimum topics for them to discuss.
After that, the parties file a joint report about the case and a joint proposed scheduling
order, Rule 16.c. You can find instructions and forms at
https://superiorcourt.maricopa.gov/media/4124/cvt54z.pdf
Exchanging information. In an Arizona civil case, the law requires the parties to
exchange relevant information such as documents, emails, text messages and social media
posting. Rules 26 and 26.1. This exchange is called “disclosure.” The law also requires you to
disclose to the other party the name and contact information for each witness you expect to call,
and a description of what the witness’s testimony will be at trial. Some pointers:
Disclose anything that may be relevant. Don’t wait for the other person to ask.
Send a cover letter identifying every document you’re sending. Don’t write
something generic like, “Emails.” Specify the dates/times/parties to the emails so we
know which ones you disclosed.
Keep a copy of all of your disclosures so we have an exact record of what you sent
one another.
You have to disclose it even if you think the other side already possesses the
information.
If you don’t disclose it, you probably will not be able to use it at trial. If you don’t
disclose it and it is harmful to your case, the Court may sanction you.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
04/22/2021
Docket Code 056
Form V000A
Page 6
While you are expected to know the rules, there are resources to help you.
In addition to the links to the actual rules above on page 1, you may also find help at the
link for the Law Library Resource Center:
https://superiorcourt.maricopa.gov/llrc/cv_group_1/
https://superiorcourt.maricopa.gov/civil/civil-faq/
The Arizona Constitution requires the Arizona Commission on Judicial Performance Review to
conduct performance evaluations of superior court judges. The Commission is asking for your help
to evaluate Maricopa County Superior Court judges currently undergoing performance
review. After your hearing, if the judge you are in front of is undergoing review, a survey will be
emailed to you and you can take the survey online. The survey is conducted by the Docking
Institute of Public Affairs at Fort Hays State University and is anonymous and confidential. Your
participation in the review process is important! More information on Judicial Performance
Review can be found at www.azjudges.info.
La Constitución de Arizona exige que la Comisión de la Evaluación del Desempeño Judicial
realice evaluaciones de desempeño de los jueces de los tribunales superiores. La comisión pide su
ayuda para evaluar a los jueces del Tribunal Superior del Condado de Maricopa a quienes
actualmente se les está evaluando su desempeño. Después de su audiencia, si el juez ante el cual
comparece está sometido a una evaluación se le enviará por correo electrónico una encuesta que
usted podrá tomar por Internet. La encuesta es realizada por el Docking Institute of Public Affairs
de la Fort Hays State University y se mantiene anónima y confidencial. ¡Su participación en el
proceso de la evaluación es importante! Para obtener más información sobre la evaluación del
desempeño judicial, diríjase a www.azjudges.info.
06/29/2021 — CV2021090882 HAN, YUHUAN 06/29/2021 HONORABLE RODRICK COFFEY View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Filed ***
07/15/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
06/29/2021
Docket Code 042
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE RODRICK COFFEY
K. Tiero
Deputy
VISTA DORADA I I HOMEOWNERS
ASSOCIATION
CHAD M GALLACHER
v.
YUHUAN HAN
YUHUAN HAN
1354 E WALNUT RD
GILBERT AZ 85298
CITS
COURT ADMIN-CIVIL-ARB DESK
JUDGE COFFEY
MINUTE ENTRY
Courtroom 205 - SEA
9:32 a.m. This is the time set for Evidentiary Hearing on Plaintiff’s Application for
Preliminary and Permanent Injunction filed February 23, 2021. Counsel, Chad Gallacher, is
present on behalf of Plaintiff. Defendant, Yuhuan Han, is present on his own behalf. Court
interpreter, Grace Ong, is present to assist the Defendant in the Mandarin language.
A record of the proceedings is made digitally in lieu of a court reporter.
Discussion is held.
9:49 a.m. The Court stands at recess.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
06/29/2021
Docket Code 042
Form V000A
Page 2
9:56 a.m. The Court reconvenes with the parties and respective counsel present.
A record of the proceedings is made digitally in lieu of a court reporter.
Discussion is held.
For the reasons stated on the record,
IT IS ORDERED dismissing Plaintiff’s Application for Preliminary and Permanent
Injunction filed February 23, 2021 and this matter without prejudice, as to all parties and claims.
DATED this 29th day of June 2021.
/S/ HONORABLE RODRICK COFFEY
______________________________________________________________
HONORABLE RODRICK COFFEY
JUDICIAL OFFICER OF THE SUPERIOR COURT
08/30/2021 — CV2021090882 HAN, YUHUAN 08/30/2021 HONORABLE RODRICK COFFEY View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
09/01/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
08/30/2021
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE RODRICK COFFEY
K. Tiero
Deputy
VISTA DORADA I I HOMEOWNERS
ASSOCIATION
CHAD M GALLACHER
v.
YUHUAN HAN
YUHUAN HAN
1354 E WALNUT RD
GILBERT AZ 85298
JUDGE COFFEY
MINUTE ENTRY
The Court has considered Plaintiff, Vista Dorado Homeowners Association’s Motion for
New Trial Pursuant to Rules 59(A)(1)(A) and (H) and Rule 60, ARCP and Defendant, Yuhuan
Han’s Response to that Motion. No reply was filed and the deadline for filing a reply has expired.
This case involves a dispute between Plaintiff, a homeowners association and Defendant,
who is a homeowner. Plaintiff sought injunctive relief against Defendant for alleged violations of
the parties’ Declaration of Covenants Conditions and Restrictions (the contract”). On June 29,
2021, at the beginning of the evidentiary hearing, after hearing arguments from both parties, the
Court dismissed this case. In its Motion, Plaintiff asks the Court to reverse that decision and
reschedule another evidentiary hearing. Defendant opposes Plaintiff’s request.
DEFENDANT DID NOT WAIVE HIS RIGHT TO ARBITRATION.
Plaintiff first argues that Defendant waived his right to object to the Court’s jurisdiction
because he did not raise that issue in his Answer. “Jurisdiction of the subject matter cannot be
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
08/30/2021
Docket Code 019
Form V000A
Page 2
waived by a consent, acquiescence or otherwise, and the lack of it can be raised at any time
including on appeal.” State ex rel. Baumert v. Mun. Ct. of City of Phoenix, 124 Ariz. 543, 545,
606 P.2d 33, 35 (App. 1979). However, parties may waive their right to enforce an arbitration
provision through their conduct in litigation. Bolo Corp. v. Homes & Son Contr. Co., 105 Ariz.
343, 346, 464 P.2d 788, 791 (1970).
Plaintiff incorrectly argues that Defendant did not contest the Court’s jurisdiction until he
filed his Pre-Trial Statement on June 9, 2021. Unlike the defendant in Bolo, Defendant, who is
self-represented and whose primary language is Mandarin, listed lack of subject matter jurisdiction
as one of his affirmative defenses in his Answer, which was filed on March 22, 2021. Construing
the pleadings liberally, the Court deems Defendant’s assertion that the Court lacked subject matter
jurisdiction as an objection to litigating the case in this Court when the parties’ contract required
them to participate in multiple forms of alternative dispute resolution rather than litigating their
dispute. Less than three months elapsed between the filing of his Answer and the filing of his Pre-
Trial Statement in which Defendant more specifically explained his objection to proceeding with
litigation, citing the specific sections of the parties’ contract that requires them to participate in
alternative dispute resolution. Given that Defendant raised the jurisdictional issue in his Answer
and followed that with a more detailed explanation of the issue in his Pre-Trial Statement shortly
thereafter, the Court does not find that Defendant waived his right to enforce the alternative dispute
resolution provision of the contract.
THE COURT HAD AUTHORITY TO DISMISS THE CASE.
Plaintiff’s second argument is that the Court improperly dismissed the case without having
a motion to dismiss before it. A trial court has inherent authority to dismiss claims sua sponte. See
Acker v. CSO Chevira, 188 Ariz. 252, 254, 934 P.2d 816, 818 (App.1997); City of Casa Grande
v. Ariz. Water Co., 199 Ariz. 547, 549, 554, ¶¶ 4, 22, 20 P.3d 590, 592, 597 (App.2001). Moreover,
on page four of his Pre-Trial Statement, Defendant stated:
Exhibit THIRTEEN: The Plaintiff violates the CC&R himself.
Based on Plaintiff’s CC&R, Article XIII, section 13.6, The Plaintiff may only
file a (law)suit after Defendant fails to abide by the terms of such
Negotiation (Step One) or Mediation (Step TWO), or Arbitration award
(Step THREE). Filing a (law)suit would be Step FOUR.
What are the terms written down on Negotiation, Mediation, Arbitration?
Which terms the Defendant fails to abide? Nothing, Right???, but there is
a lawsuit now!!!
Although Defendant’s statement is not an articulate way of asking for dismissal, the Court
deems it to be a request for dismissal. During the June 29, 2021 hearing, after the Court expressed
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
08/30/2021
Docket Code 019
Form V000A
Page 3
its concerns about whether this matter should proceed, the Court gave Plaintiff an opportunity to
review the parties’ contract and argue its position in opposition to a dismissal. Plaintiff’s counsel
stated Plaintiff’s best arguments in opposition to a dismissal on the record. After considering those
arguments, the Court dismissed the case. Plaintiff could have, but did not request an opportunity
to brief the issue more fully before the case was dismissed. Given the Court’s inherent authority
to dismiss the case sua sponte and the fact that the Court gave Plaintiff an opportunity to argue its
position in opposition to the dismissal before the case was dismissed, there was nothing improper
about the dismissal.
THE ARBITRATION CLAUSE IS VALID AND ENFORCEABLE.
Plaintiff’s third argument is that the alternative dispute resolution provisions of the contract
it drafted are invalid and unenforceable. Arbitration provisions are appropriate “so long as the
prospective litigant effectively may vindicate his or her rights in the arbitral forum.” Harrington
v. Pulte Home Corp., 211 Ariz. 241, 247, 119 P.3d 1044, 1050 (App. 2006). “A provision in a
written contract to submit to arbitration any controversy thereafter arising between the parties is
valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the
revocation of any contract. Grounds in equity or law for revocation of a contract include an
allegation that the contract is void for lack of mutual consent, consideration or capacity or voidable
for fraud, duress, lack of capacity, mistake, or violation of a public purpose.” U.S. Insulation, Inc.
v. Hilro Const. Co., 146 Ariz. 250, 253, 705 P.2d 490, 493 (App. 1985). “[I]t is also well
established that, due to the public policy favoring arbitration, arbitration clauses should be
construed liberally and any doubts as to whether or not the matter in question is subject to
arbitration should be resolved in favor of arbitration.” Id. at 258, 705 P.2d at 498.
Section 13.4 of the contract provides:
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
08/30/2021
Docket Code 019
Form V000A
Page 4
In essence, that provision means that any dispute between Plaintiff and Defendant, except
for disputes about the payment of fees Defendant might owe to Plaintiff, must go through
negotiation, mediation and arbitration before either party may file a lawsuit against the other
party. The subsequent sections of the contract explain in detail the processes for negotiation and
mediation. Section 13.4.3 then states:
Section 13.6 then explains the limited scenario when litigation is permissible under the
contract. That Section states:
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
08/30/2021
Docket Code 019
Form V000A
Page 5
Plaintiff offers virtually no explanation for its contention that the contract is
unconscionable other than its claim that going through the alternative dispute resolution steps it
established and required when it created the contract, would be expensive and cumbersome for
it. Plaintiff’s argument that the contract is unconscionable is ironic given that during the June 29,
2021 hearing, Plaintiff’s counsel stated that the applicable provisions of the contract, which were
drafted for Plaintiff, were deliberately designed to make litigation difficult for homeowners. But
apparently, Plaintiff does not think it should be bound by the terms of its own contract when it
wants to pursue claims against homeowners. And, contrary to Plaintiff’s claim, Plaintiff can seek
and obtain injunctive relief through an arbitration pursuant to the Arbitration Rule of the American
Arbitration Association. And, its Rules, including Rule 38, set forth procedures for expedited
relief. Had Plaintiff availed itself to that Rule, instead of seeking to reverse the Court’s ruling, the
underlying dispute likely could have already been addressed in an arbitration forum.
SECTION 13.4 OF THE CONTRACT IS NOT AMBIGUOUS.
Plaintiff’s final argument is that the contract is ambiguous. The Court strongly
disagrees. “Contracts are ‘to be read in light of the parties' intentions as reflected by their language
and in view of all circumstances; if the intention of the parties is clear from such a reading, there
is no ambiguity.’” In re Estate of Lamparella, 210 Ariz. 246, 250, 109 P.3d 959, 963 (App. 2005),
as amended (June 20, 2005). “A contract is not ambiguous just because the parties to it or, as
here, a party to it and the other party's successor, disagree about its meaning.” Id. “Language in
a contract is ambiguous only when it can reasonably be construed to have more than one meaning.”
Id. “Although determination of the intent of contracting parties from extrinsic evidence may
require fact finding, whether contract language is reasonably susceptible to more than one
interpretation so that extrinsic evidence is even admissible is a question of law for the court.” Id.
(internal citations omitted). Section 13.4 of the contract is not susceptible to being construed as
having more than one meaning.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
08/30/2021
Docket Code 019
Form V000A
Page 6
A contract’s interpretation is controlled by the intent of the parties, as ascertained through
its language. See generally ELM Ret. Ctr., L.P. v. Callaway, 226 Ariz. 287, 290-91 (App. 2010)
(citations omitted). Words are given their ordinary, common sense meaning, Aztar Corp. v. U.S.
Fire Ins. Co., 223 Ariz. 463, 469 (App. 2010), quoting A Tumbling-T Ranches v. Flood Control
Dist. of Maricopa Cty., 220 Ariz. 202, 209 (App. 2008), and, when the language is plain and
unambiguous, it will be enforced as written. Emp’rs Mut. Cas. Co. v. DGG & CAR, Inc., 218
Ariz. 262, 267 (2008), quoting D.M.A.F.B. Fed. Credit Union v. Emp’rs Mut. Liab. Ins. Co., 96
Ariz. 399, 403 (1964). “Our law generally presumes, especially in commercial contexts, that
private parties are best able to determine if particular contractual terms serve their interests.” 1800
Ocotillo, LLC v. WLB Grp., Inc., 219 Ariz. 200, 202 (2008). “It [is] neither the duty nor the right
of the superior court to rewrite the contract with terms more favorable to either party than those
provided by the instrument.” Coury Bros. Ranches, Inc. v. Ellsworth, 103 Ariz. 515, 522 (1968),
citing Goodman v. Newzona Inv. Co., 101 Ariz. 470, 472 (1966). “[A] court will enforce a valid
contract according to its terms, even though enforcement may be harsh or result in a forfeiture.”
Freedman v. Cont’l Serv. Corp., 127 Ariz. 540, 545 (App. 1980).
When interpreting a contract, the Court must give effect to the intent of the parties at the
time the contract was entered. Polk v. Koerner, 111 Ariz. 493, 495 (1975). “A general principle of
contract law is that when parties bind themselves by a lawful contract, the terms of which are clear
and unambiguous, a court must give effect to the contract as written.” Grosvenor Holdings, L.C.
v. Figueroa, 222 Ariz. 588, 593 (App. 2009), citing Grubb & Ellis Mgmt. Serv., Inc. v. 407417
B.C., L.L.C., 213 Ariz. 83, 86 (App. 2006). In order to determine intent, the Court will first look
to “the plain meaning of the words in the context of the contract as a whole.” Id.
Contrary to Plaintiff’s claim, neither the Court nor Defendant have agreed with Plaintiff’s
claim that the contract was unclear or poorly drafted. To the contrary, during the June 29, 2021
hearing, the Court carefully read aloud and discussed Section 13.4 of the contract with Plaintiff
and explained that it clearly provides that all disputes between homeowners and Plaintiff must go
through the alternative dispute resolution process set forth in that section unless the dispute solely
involves a claim by Plaintiff for unpaid assessments. Plaintiff’s reliance on provisions of the
contract that discuss construction defects is misplaced. Section 13.4 expressly states that it applies
to disputes between Plaintiff and homeowners. There is nothing ambiguous about that
provision. Plaintiff cannot unilaterally change the provisions of its contract through a “fine policy”
it writes or through a demand letter from its attorney. Nor could Defendant modify the contract
by writing a letter to Plaintiff that contained contrary terms to what is stated in the
contract. Plaintiff is bound by the contract just as Defendant is bound by the same contract.
For all of those reasons, the Court will not reschedule an evidentiary hearing. However,
pursuant to A.R.S. § 12-1502,
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-090882
08/30/2021
Docket Code 019
Form V000A
Page 7
IT IS ORDERED reinstating and staying this case pending the outcome of the parties’
compliance with the all of various alternative dispute resolution measures required under Section
13.4 of the contract. The parties are encouraged to move forward with the various phases of
alternative dispute resolution that are required under Section 13.4 of the contract.
IT IS FURTHER ORDERED denying Plaintiff’s Motion for New Trial Pursuant to Rules
59(A)(1)(A) and (H) and Rule 60, ARCP.
