01/17/2017 — CV2016051857 BISHOP, RENE 01/17/2017 HONORABLE JOHN R. HANNAH JR View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
01/19/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
01/17/2017
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOHN R. HANNAH JR
W. Tenoever
Deputy
RENE BISHOP
JEFFREY MILLER
v.
SUNLAND VILLAGE COMMUNITY
ASSOCIATION, et al.
NICOLE PAYNE
AUGUSTUS H SHAW IV
ALTERNATIVE DISPUTE
RESOLUTION - CCC
ORDER ENTERED BY COURT
Pursuant to the Scheduling Order signed by the Court on January 17, 2017 and filed
(entered) by the clerk on January 18, 2017,
IT IS ORDERED that the parties shall participate in a mandatory Settlement
Conference. This case is referred to the Court's Alternative Dispute Resolution Office for the
appointment of a judge pro tempore to conduct a settlement conference. Counsel and/or the
parties will receive a minute entry from ADR appointing the judge pro tempore. Counsel and
any "pro per" parties will contact the appointed judge pro tempore to arrange the date, time and
location for the settlement conference. The judge pro tempore is requested to conduct a
settlement conference not later than July 17, 2017. The Office of Alternative Dispute Resolution
will not do the scheduling of the settlement conference so please do not contact that office. If
counsel prefer to use a private mediator to conduct the Settlement Conference, a Stipulation and
Order Re: Alternative to ADR must be presented to the Court.
01/17/2017 — CV2016051857 BISHOP, RENE 01/17/2017 HONORABLE JOHN R. HANNAH JR View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
01/19/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
01/17/2017
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOHN R. HANNAH JR
W. Tenoever
Deputy
RENE BISHOP
JEFFREY MILLER
v.
SUNLAND VILLAGE COMMUNITY
ASSOCIATION, et al.
NICOLE PAYNE
AUGUSTUS H SHAW IV
ORAL ARGUMENT SET
IT IS ORDERED setting Oral Argument on Defendant’s Motion for Summary
Judgment and Plaintiff’s Cross-Motion for Summary Judgment on April 14, 2017 at 3:00 p.m.
(1 hour allotted) before:
Judge John R. Hannah
Northeast Regional Court
18380 N. 40th St., Courtroom 102
Phoenix, Arizona 85032
(602) 372-0759
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.
03/31/2017 — CV2016051857 BISHOP, RENE 03/31/2017 HONORABLE JOHN R. HANNAH JR View Minute Entry ↑ top
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Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
04/04/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
03/31/2017
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOHN R. HANNAH JR
W. Tenoever
Deputy
RENE BISHOP
JEFFREY MILLER
v.
SUNLAND VILLAGE COMMUNITY
ASSOCIATION, et al.
NICOLE PAYNE
ORAL ARGUMENT SET
On the Court’s own motion,
IT IS ORDERED setting Oral Argument on Plaintiff’s Motion to Certify as a Class
Action on April 14, 2017 at 3:00 p.m. (1 hour allotted) before:
Judge John R. Hannah
Northeast Regional Court
18380 N. 40th St., Courtroom 102
Phoenix, Arizona 85032
(602) 372-0759
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.
04/14/2017 — CV2016051857 BISHOP, RENE 04/14/2017 HONORABLE JOHN R. HANNAH JR View Minute Entry ↑ top
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Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
04/18/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
04/14/2017
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOHN R. HANNAH JR
W. Tenoever
Deputy
RENE BISHOP
JEFFREY MILLER
v.
SUNLAND VILLAGE COMMUNITY
ASSOCIATION, et al.
AUGUSTUS H SHAW IV
MATTER UNDER ADVISEMENT
Courtroom 102 - NE
3:00 p.m. This is the time set for Oral Argument on Plaintiff’s Motion to Certify as a
Class Action, Defendant’s Motion for Summary Judgment and Plaintiff’s Cross-Motion for
Summary Judgment. Plaintiff Rene Bishop is present and represented by counsel, Jeffrey Miller.
Defendants Sunland Village Community Association, et al. are represented by counsel, Augustus
H. Shaw IV.
A record of the proceedings is made digitally in lieu of a court reporter.
Arguments are heard.
IT IS ORDERED taking Plaintiff’s Motion to Certify as a Class Action, Defendant’s
Motion for Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment under
advisement.
4:30 p.m. Hearing concludes.
04/28/2016 — CV2016051857 BISHOP, RENE 04/28/2016 HONORABLE JOHN R. HANNAH JR View Minute Entry ↑ top
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Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
04/29/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
04/28/2016
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOHN R. HANNAH JR
W. Tenoever
Deputy
RENE BISHOP
JEFFREY MILLER
v.
SUNLAND VILLAGE COMMUNITY
ASSOCIATION, et al.
NICOLE PAYNE
ORAL ARGUMENT SET
IT IS ORDERED setting Oral Argument on Sunland Village Community Association’s
Motion to Dismiss on May 26, 2016 at 9:00 a.m. (30 minutes allotted) before:
Judge John R. Hannah
Northeast Regional Court
18380 N. 40th St., Courtroom 102
Phoenix, Arizona 85032
(602) 372-0759
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.
05/26/2016 — CV2016051857 BISHOP, RENE 05/26/2016 HONORABLE JOHN R. HANNAH JR View Minute Entry ↑ top
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Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
05/27/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
05/26/2016
Docket Code 005
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOHN R. HANNAH JR
E. Morgenstern
Deputy
RENE BISHOP
JEFFREY MILLER
v.
SUNLAND VILLAGE COMMUNITY
ASSOCIATION, et al.
NICOLE PAYNE
AUGUSTUS H SHAW IV
ORAL ARGUMENT
Courtroom 102 - NE
9:04 a.m. This is the time set for Oral Argument on Sunland Village Community
Association’s Motion to dismiss filed on April 4, 2016. Counsel, Jeffrey Miller, is present with
Plaintiff, Rene Bishop. Counsel, Augustus Shaw, is present on behalf of Defendants, Sunland
Village Community Association, et al.
A record of the proceedings is made digitally in lieu of a court reporter.
Argument is presented.
Based on the arguments of counsel and for the reasons more fully stated on the record,
THE COURT FINDS that the homeowners who are not similarly situated to the Plaintiff
are proper parties who can appear in this lawsuit and argue their position if they choose too, but,
they are not necessary parties.
Therefore,
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
05/26/2016
Docket Code 005
Form V000A
Page 2
The Defendants’ Motion to Dismiss is denied.
9:50 a.m. Matter concludes.
06/12/2017 — CV2016051857 BISHOP, RENE 06/12/2017 HONORABLE JOHN R. HANNAH JR View Minute Entry ↑ top
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Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
06/14/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
06/12/2017
Docket Code 926
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOHN R. HANNAH JR
W. Tenoever
Deputy
RENE BISHOP
JEFFREY MILLER
v.
SUNLAND VILLAGE COMMUNITY
ASSOCIATION, et al.
AUGUSTUS H SHAW IV
UNDER ADVISEMENT RULING
The Court has had under advisement the parties’ cross-motions for summary judgment.
The Court has considered all of the written filings, the in-court arguments of counsel and the
record in this case.
RELEVANT UNDISPUTED FACTS
Defendant Sunland Village Homeowners’ Association (“the HOA”) formerly allocated
its annual assessment among its members by a formula that was based in part on the number of
residents in a given unit. The plaintiff, Ms. Bishop, was one of the HOA members who
benefitted from this formula. Her share of the common expenses was less than what some of her
neighbors paid.
In late 2014, the HOA, through its Board, decided to change the allocation of the annual
assessment so that each residential unit paid the same amount regardless of the number of
occupants. The Board adopted a resolution placing on the annual HOA ballot an amendment to
the community’s CC&Rs to that effect. The HOA advised its members of the effect of the
amendment through, among other things, a “ballot document” that included an estimate of each
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
06/12/2017
Docket Code 926
Form V000A
Page 2
member’s annual assessment payment if the resolution was adopted. The key passage of the
ballot document said:
If this proposed amendment was already in our CC&Rs and using our current
2015 Budget passed by the Board, a calculation of an assessment for a single
residential unit would be $414. Aforesaid equates to the single occupant paying
$86.00 dollars more annually, or $7.00 per month more and a two occupant
residential unit paying $59.00 less annually.
A copy of the ballot document was sent to all members who requested an early ballot and placed
in each voting booth on the day of the election.
The resolution was approved by majority vote of the HOA members in January 2015. A
year later, in January 2016, the HOA asked the members to pay the reallocated assessment for
the first time. Based on the HOA’s 2016 budget, Ms. Bishop’s payment increased by about
thirty percent, from $328 to $425.
THE PLAINTIFF’S CLAIMS
Ms. Bishop alleges in this lawsuit that the HOA breached the agreement embodied in the
CC&Rs and the related duty of good faith and fair dealing, and violated Arizona law, by
increasing her annual payment by more than ten percent without following the proper
procedures. She relies on Article XI, Section 3 of the Sunland Village CC&Rs, the relevant
portion of which says:
By December 31st of each year the Board shall establish the regular annual
assessment per residential unit for the next calendar year that shall be payable
prior to the following January 31st, unless the Board designates otherwise. If the
Board establishes a regular annual assessment per residential unit with respect to
any year that exceeds the regular annual assessment and dues per residential unit
of the preceding year by more than ten percent (10%), then and in that event such
regular annual assessment per residential unit so fixed by the Board shall be
referred by the Board to a vote of the voting members of the Association to be
taken during January of the year to which the assessment applies.
The analogous statute, A.R.S. section 33-1803(A), says in pertinent part:
Unless limitations in the community documents would result in a lower limit for
the assessment, the association shall not impose a regular assessment that is more
than twenty percent greater than the immediately preceding fiscal year's
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
06/12/2017
Docket Code 926
Form V000A
Page 3
assessment without the approval of the majority of the members of the
association.
According to Ms. Bishop, these rules required the Board to determine the specific amount
of her payment before referring the issue for a vote, to put the specific amount on the ballot, and
to put the increase into effect immediately upon approval. Because the Board did not do these
things, she says, the 2016 and 2017 assessments are invalid to the extent that she and others in
her position paid more than in 2015.
Ms. Bishop’s arguments are not persuasive. Assuming for the sake of discussion that
section 33-1803(A) and Article XI, section III of the CC&Rs apply here,1 the 2015 resolution
was sufficient to satisfy the requirements of those provisions.
THE STATUTORY CLAIM
A statute's language is the best and most reliable index of a statute's meaning. When the
language is clear, the court must apply it without resorting to other methods of statutory
interpretation. North Valley Emergency Specialists, L.L.C. v. Santana, 208 Ariz. 301, 93 P.3d
501, ¶ 9 (2004).
The plain language of section 33-1803(A) requires a homeowners’ association to secure
the “the approval of the majority of the members of the association.” The HOA here did that
when its members adopted the 2015 resolution equalizing the allocation of the annual
assessment. Nothing more was required.
The plaintiff complains about the timing of the members’ approval in relation to the
effective date of the reallocated assessment, and about the ballot language, and about the fact that
the Board did not expressly approve the “ballot document.” Section 33-1803(A) says nothing
about any of those details. The plaintiff would read those requirements into the statute. The
statute’s terms provide no basis for that.
The plaintiff implied in her written presentation, and her attorney argued directly at oral
argument, that the manner in which the HOA presented and enacted the 2015 resolution did not
comply with Arizona election law. But the plaintiff has cited nothing in election law that
1
The HOA argues that section 33-1803(A) does not apply because the Board did not “impose a
regular assessment . . . more than twenty percent greater than . . .” the previous year’s assessment but
rather merely reallocated the existing assessment, and similarly that Article XI, section III of the CC&Rs
does not apply because the aggregate “annual assessment” did not increase by more than ten percent.
The Court has not addressed those arguments because it is unnecessary on the facts presented.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
06/12/2017
Docket Code 926
Form V000A
Page 4
mandates the steps she says should have been taken. She likewise has not brought to the Court’s
attention any provision concerning governance of homeowners’ associations or even
condominiums, in Title 33, that might support her argument.
For these reasons, the HOA is entitled to summary judgment on the plaintiff’s statutory
claim.
THE BREACH OF CONTRACT CLAIM
In order to prevail on a claim for breach of contract, the plaintiff must show that the
alleged breach or breaches of the contract were material. A material breach occurs when a party
fails to do something required by the contract which is so important to the contract that the
breach defeats the very purpose of the contract. Ry-Tan Const., Inc. v. Washington Elem. Sch.
Dist. No. 6, 208 Ariz. 379, 401, 93 P.3d 1095, 1117 (Ct. App. 2004), vacated on other grounds,
210 Ariz. 419, 111 P.3d 1019 (2005). Factors in determining materiality include, among others,
the extent to which the injured party will be deprived of the benefit which he reasonably
expected and the extent to which the party failing to perform or to offer to perform will suffer
forfeiture. Foundation Development Corp. v. Loehmann's, Inc., 163 Ariz. 438, 447-448, 788
P.2d 1189, 1197-1198 (1990) (citing Restatement (Second) of Contracts § 241).
Ms. Bishop has not explained why the differences between what she says the CC&Rs
required the Board to do and what the Board actually did, in connection with the reallocation of
the assessment, were significant enough to defeat the purpose of section XI, Article III of the
CC&Rs and thus to relieve her of the responsibility for paying her share of the assessment. In
other words, there is no evidence from which a jury could find that the alleged breaches were
material. Her breach of contract claim therefore fails as a matter of law.
The reasonable expectation of the plaintiff in this case, based on Article XI, Section 3 of
the Sunland Village CC&Rs, would have been that the HOA would submit any substantial
assessment increase to a fair vote of adequately-informed members. That occurred when the
Board adopted and the members ratified the uniform assessment allocation. There is no evidence
that what appeared on the ballot, or what resulted from the vote, was not what the Board
intended. None of the information in the ballot document was incorrect or materially misleading.
The ballot document carefully explained how the resolution would affect members’ assessments.
Though the plaintiff questions whether the HOA members knew the resolution would lead to a
significant assessment increase for some units, she offers no evidence from which a jury could
reasonably find that the ballot document did not in fact inform the members of that. None of
alleged irregularities fundamentally compromised the fairness of the election.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
06/12/2017
Docket Code 926
Form V000A
Page 5
The plaintiff emphasizes the fact that her increased assessment payment did not take
effect in 2015, immediately following the Board’s action, but rather in 2016. What she has never
made clear, even when pressed during oral argument, is why the delay made any difference to
her. If anything it benefitted her, by sparing her the increased assessment for a year.
It also matters, for purposes of assessing materiality, that the plaintiff seeks a refund of
the amounts she has paid in excess of what she paid in 2015. As a matter of contract law that
remedy follows from the rule that a material breach relieves the other party of the duty of
performance. But the result in practice would be to force the HOA to disgorge revenues that it
has received and spent since 2015. Because the 2015 resolution merely reallocated the total
annual assessment, without increasing it, the HOA would wind up poorer than it would have
been had the 2015 resolution never been enacted. If everyone in the plaintiff’s position got the
refund, the impoverishment would be substantial. That outcome would be tantamount to a
forfeiture from the HOA’s point of view.
For all of those reasons, the defendant HOA is entitled to summary judgment on the
plaintiff’s claim for breach of contract as well as the claim for breach of the duty of good faith
and fair dealing.
ORDERS
IT IS ORDERED the defendant’s Motion for Summary Judgment is granted.
IT IS FURTHER ORDERED Plaintiff’s Cross-Motion for Summary Judgment is denied.
IT IS FURTHER ORDERED the plaintiff’s Motion to Certify as a Class Action is denied
as moot.
IT IS FURTHER ORDERED the defendant shall lodge a proposed form of judgment, and
any application for attorneys’ fees or costs that may be appropriate, not more than 20 days from
the date on which the Clerk issues this order. The plaintiff shall have ten days in which to object
and/or respond. The defendant shall have five days to submit replies.
07/06/2017 — CV2016051857 BISHOP, RENE 07/06/2017 HONORABLE JOHN R. HANNAH JR View Minute Entry ↑ top
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Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
07/10/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
07/06/2017
Docket Code 375
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOHN R. HANNAH JR
W. Tenoever
Deputy
RENE BISHOP
JEFFREY MILLER
v.
SUNLAND VILLAGE COMMUNITY
ASSOCIATION, et al.
NICOLE PAYNE
AUGUSTUS H SHAW IV
CASE ON DISMISSAL CALENDAR
A Joint Notice of Settlement and Stipulation to Continue Deadline for Filing Application
for Attorney’s Fees and Costs has been received.
IT IS ORDERED placing this matter on the Dismissal Calendar for dismissal on August
7, 2017 without further notice unless prior to said date Judgment is entered or filed, a Stipulation
for Dismissal is presented, or one or both parties make such filing(s) as the Rules of Civil
Procedure may require in order for the action to proceed.
IT IS FURTHER ORDERED extending the deadline for filing the Application for
Attorneys' Fees and Costs. If such an application is filed before the dismissal date, this matter
will be removed from the Dismissal Calendar and the Application will be adjudicated on the
schedule previously set by the Court.
IT IS FURTHER ORDERED vacating all pending hearings in this case.
08/15/2016 — CV2016051857 BISHOP, RENE 08/15/2016 HONORABLE JOHN R. HANNAH JR View Minute Entry ↑ top
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Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/17/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
08/15/2016
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOHN R. HANNAH JR
W. Tenoever
Deputy
RENE BISHOP
JEFFREY MILLER
v.
SUNLAND VILLAGE COMMUNITY
ASSOCIATION, et al.
NICOLE PAYNE
AUGUSTUS H SHAW IV
RULING
The Court has read and considered Defendant Board Members' Motion to Dismiss, the
response and reply, and the record in this case.
The plaintiff bring claims for breach of contract (violation of the CC & Rs) and violation
of A.R.S. section 33-1803, and for breach of the implied duty of good faith and fair dealing. The
contract claim against the director defendants fails because the directors individually are not
parties to the contract between the plaintiff and the defendant Sunland Valley Community
Association. Similarly, the statutory claim against the directors fails because the statute limits
the power of the Association but does not create a cause of action against individual directors for
a violation.
Though an HOA director can be personally liable for dishonest or bad-faith actions on
behalf of the association, See Albers v. Edelson Technology Partners L.P., 201 Ariz. 47, 31 P.3d
821, ¶ 29 (App. 2001); Restatement (Third) of Property (Servitudes) § 6.14, comment c (2000),
the Amended Complaint does not allege specific facts that would support an inference of
dishonesty or bad faith on the part of the directors. That the directors got a letter from the
plaintiff's lawyer, giving the lawyer's opinion that their actions were illegal, is not enough.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
08/15/2016
Docket Code 019
Form V000A
Page 2
IT IS THEREFORE ORDERED dismissing all claims against the defendants other than
the Sunland Village Community Association.
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Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/30/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2016-051857
08/28/2017
Docket Code 049
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOHN R. HANNAH JR
W. Tenoever
Deputy
RENE BISHOP
JEFFREY MILLER
v.
SUNLAND VILLAGE COMMUNITY
ASSOCIATION, et al.
NICOLE PAYNE
AUGUSTUS H SHAW IV
JUDGMENT SIGNED
IT IS ORDERED approving and settling the formal written Stipulated Judgment against
Plaintiff Rene Bishop signed by the Court on August 28, 2017 and filed (entered) by the clerk on
August 28, 2017.
Please note: The Court has signed a hard-copy version of the judgment provided with an
electronically filed pleading. Therefore, copies of the judgment and self-addressed, stamped
envelopes were not available for mailing to the parties. After the order has been scanned and
docketed by the Clerk of Court, copies of this order may be available through ECR Online at
clerkofcourt.maricopa.gov or through AZTurboCourt.gov and from the Public Access Terminals
at the Clerk of Court’s offices located throughout Maricopa County.
