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Maricopa County Superior Court Case CV2017-001777: public docket details, parties, minute entries, documents, and official source links for Russell Ranch Homeowners Association Inc.

Case Number

CV2017-001777

County

Maricopa

Caption

Not captured

Filed

3/3/2017

Case Type

Civil

Judge

Kreamer, Joseph

Location

Downtown

Official Court Record

Official Court Record

Parties

Minute Entries

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

01/09/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

01/05/2018

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
C. Fisher

Deputy

JOSH CLARK FAMILY TRUST DATED MAY 9
2013, et al.
JONATHAN A DESSAULES

v.

RUSSELL RANCH HOMEOWNERS
ASSOCIATION INC
GREGORY A STEIN

ALTERNATIVE DISPUTE
RESOLUTION - CCC

MINUTE ENTRY

The Court has read Plaintiffs’ Joint Report filed on December 26, 2017.

IT IS ORDERED approving the parties’ deadlines, all as set forth in the formal written
Scheduling Order electronically signed by the Court on January 3, 2018.

IT IS FURTHER ORDERED the parties shall participate in a mandatory Settlement
Conference. This case is referred to the Court’s Alternative Dispute Resolution 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 April 5, 2018. The Office of Alternative Dispute Resolution
will not do the scheduling of the settlement conference so please do not contact that office.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

01/05/2018

Docket Code 023
Form V000A
Page 2

IT IS FURTHER ORDERED all counsel and their clients, or non-lawyer
representatives who have full and complete authority to settle the case, shall personally
appear and participate in good faith in the Settlement Conference. Sanctions may be
imposed for failure to participate.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

01/09/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

01/05/2018

Docket Code 041
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
C. Fisher

Deputy

JOSH CLARK FAMILY TRUST DATED MAY 9
2013, et al.
JONATHAN A DESSAULES

v.

RUSSELL RANCH HOMEOWNERS
ASSOCIATION INC
GREGORY A STEIN

TELEPHONIC TRIAL SCHEDULING CONFERENCE SET

Pursuant to the parties’ Scheduling Order granted by the Court,

IT IS ORDERED setting a Telephonic Trial Scheduling Conference for the purpose of
assigning a trial date on December 12, 2018 at 9:00 a.m. (15 minutes allotted) in this division,
before:

HONORABLE JUDGE TERESA SANDERS
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W. JEFFERSON
8TH FLOOR, COURTROOM 811
PHOENIX, AZ 85003
602-506-4791

Counsel/parties shall have their trial calendars available for the conference.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

01/05/2018

Docket Code 041
Form V000A
Page 2

NOTE: Counsel for the Plaintiff is to 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’s courtroom directly at 602-506-4791 at the scheduled time.

PRETRIAL ORDERS

The Court having been assigned to this case, the parties shall make note of the pretrial
orders identified below. To the extent that the orders are inconsistent with any order that has
been entered in this matter, including any scheduling order, this minute entry controls and the
inconsistent language in any such previous order is vacated.

Discovery Disputes:

If a discovery dispute needs judicial intervention, the parties must first comply with Rule
37’s meet and confer provision. Absent resolution, counsel for the movant shall email the
Court’s Judicial Assistant, Loretta Velarde, at [email protected], and all
other counsel to advise them of his/her request for a telephonic hearing. Each party shall
thereafter email the Court’s Judicial Assistant a one-page summary of the dispute. Please make
certain all parties are copied on the email. The emails will be filed with the clerk. Once the
Court receives a summary from each party and a certification of compliance with Rule 37, the
judicial assistant will email the parties to schedule a telephonic conference with the judge.

Motion Practice:

Do not combine pleadings. (Responses, replies, cross motions, etc., should each be filed
as a separate pleading).

A proposed order/judgment must be attached as a Word doc. using the proper turbo court
code. All stipulations, joint scheduling reports, unopposed motions, etc., MUST contain a
proposed order. If your system is not allowing you to attach a Word order, you must email a
copy to this division’s Judicial Assistant, Loretta Velarde, at
[email protected], and she can attach it on our end.

ALL motions are held for a briefing period. If you need a determination sooner than a
normal briefing period would allow, please do the following: 1. Speak with opposing counsel to
make certain if they have an objection. If there is no objection, file a stipulation. 2. E-file the
motion and email the filed document in Word format to the judicial assistant and opposing
counsel. 3. Indicate that you are asking for a shortened briefing schedule and when you need a
ruling. 4. The Court will review your request and email all parties with a briefing schedule if
necessary.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

01/05/2018

Docket Code 041
Form V000A
Page 3

If the parties have agreed to an extension of time for filing responses/replies, email my
judicial assistant regarding the agreement. Otherwise, the Court may assume that no
responses/replies will be filed and rule without the benefit of the response/reply.

Unless another order in this case establishes an earlier deadline, the deadline for filing a
summary judgment motion is 120 days before trial. No modification, including a stipulated
modification, of this deadline will be honored absent a motion explaining why the 120-day
deadline is impractical in the circumstances.

Motions in Limine:

The granting or denial of a motion in limine turns on whether the admission of evidence
reaches the level of reversible error or a mistrial. Motions in limine are not granted “except
upon a clear showing of non-admissibility.” The parties shall not file motions denominated as
“in limine” that are, in substance, late-filed motions for summary judgment.

1. Page Limit and Format: Neither the motion in limine nor the response may exceed
three pages, including the caption. Showing that the motion has merit should not require more
than that. Motions in limine shall be consecutively numbered in the caption identifying the party
filing it and the subject of the motion; e.g. “Defendant’s Motion in Limine No. 1 Re: Insurance
Agreement,” and shall deal with one discrete subject per motion. Do not respond to more than
one motion in limine in each response.

Any motion in limine or response to such a motion should begin with a simple declarative
sentence that identifies the evidence that is the subject of the motion, with the understanding that
the broader the scope of the evidence to be excluded, the less likely it is that a motion in limine
will be granted. The remainder of the motion or response should then explain why a mistrial or
reversible error would or would not result if the motion is denied, with citations to authority that
have reached the same conclusion in the same or similar circumstances (this also applies to
motions in limine based on any failure to disclose, keeping in mind that nondisclosure implicates
Ariz. R. Civ. P. 37(c)). If the motion is unable to explain why its denial would result in a
mistrial or reversible error, the remainder should then demonstrate persuasively what efficiency,
economy, or other benefit is to be gained by granting the motion.

2. Rule 7.2: Motions in limine shall be filed in accordance with Ariz.R.Civ.P. 7.2. Prior
to filing any motion in limine, the parties through counsel must meet and confer to attempt to
resolve issues to be raised by such motions, and any motions in limine must include a
certification that counsel have so conferred.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

01/05/2018

Docket Code 041
Form V000A
Page 4

3. Deadlines: The deadline for motions in limine is 30 days before the final pretrial
management conference. In both instances, responses must be filed 15 days after service, and no
replies should be filed unless requested.

4. Under Advisement: Although motions in limine will be considered as quickly as the
court’s schedule permits, they will not be taken under advisement any sooner than 15 days before
the start of the trial, regardless of when they are filed. If the parties believe that a ruling on such
a motion early in the case will facilitate settlement, they should notify this division (by telephone
at 602-506-4791 or e-mail to the judicial assistant) and every effort will be made to decide the
issue as soon as time allows.

Daubert Motions:

Any motion brought for a Daubert hearing or brought under Ariz.R.Evid. 702, shall be
filed at least 120 days before the Final Trial Management Conference). Failure to file such a
motion by this date shall constitute a waiver of (1) any objection that the expert is not qualified
to render expert testimony, and/or (2) any objection that any opinion of the expert should be
excluded under Ariz.R.Evid. 702.

Miscellaneous Issues:

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 up to three hours and $280 for any hearing in excess of three
hours. This fee does not include preparation of transcripts.

Should you want an unofficial copy of the proceedings, the parties or counsel may
request a CD of the proceedings for a $30.00 charge. If a CD is requested, please obtain a form
from the Self Service Center to request a daily copy of a court hearing or trial proceeding being
conducted. Pay the applicable fee at the Self Service Center. Attach the receipt showing
payment of the fee and present both the receipt and the form to the bailiff. For copies of
hearings or trial proceedings recorded previously, please call Electronic Records Services
at 602-506-7100.

Requests for interpreters, court reporters or video conference must be made at least two
weeks prior to your hearing date.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

01/05/2018

Docket Code 041
Form V000A
Page 5

Oral Argument/Trial time will be divided equally between Plaintiff and Defendant.
“When you are out of time, you are out of words.”

If you are not familiar with this division’s electronic equipment, please make an
appointment with this division’s bailiff, Kay Fleminger, via email at
[email protected], to test the equipment at least one week prior to your
hearing.

Preferred communication with this division is via email to the judicial assistant, Loretta
Velarde, at [email protected]. We are able to respond much quicker to an
email. Please make sure you endorse all parties involved in the case.

All inquiries regarding exhibit procedures should be directed to this division’s courtroom
clerk at (602) 506-1375.

Clerk of the Superior Court

*** Electronically Filed ***

02/27/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

02/25/2019

Docket Code 083
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

JOSH CLARK FAMILY TRUST DATED MAY 9
2013, et al.
JONATHAN A DESSAULES

v.

RUSSELL RANCH HOMEOWNERS
ASSOCIATION INC
GREGORY A STEIN

JUDGE SANDERS

TELEPHONIC TRIAL SCHEDULING CONFERENCE RESET

In light of the parties’ Stipulation to Extend Deadlines,

IT IS ORDERED vacating the Telephonic Trial Scheduling Conference on April 18, 2019
at 9:00 a.m. and resetting same to August 16, 2019 at 9:00 a.m. in this division.

HONORABLE JUDGE TERESA SANDERS
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W. JEFFERSON
8TH FLOOR, COURTROOM 811
PHOENIX, AZ 85003
602-506-4791

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

02/25/2019

Docket Code 083
Form V000A
Page 2

Counsel/parties shall have their trial calendars available for the conference.

NOTE: Counsel for the Plaintiff is to 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’s courtroom directly at 602-506-4791 at the scheduled time.

PRETRIAL ORDERS

The Court having been assigned to this case, the parties shall make note of the pretrial
orders identified below. To the extent that the orders are inconsistent with any order that has
been entered in this matter, including any scheduling order, this minute entry controls and the
inconsistent language in any such previous order is vacated.

Discovery Disputes:

If a discovery dispute needs judicial intervention, the parties must first comply with Rule
37’s meet and confer provision. Absent resolution, counsel for the movant shall email the
Court’s Judicial Assistant, Loretta Velarde, at [email protected], and all
other counsel to advise them of his/her request for a telephonic hearing. Each party shall
thereafter email the Court’s Judicial Assistant a three-page summary of the dispute with each
party entitled to submit one and one-half pages of that text, pursuant to Rule 26(d)(2). Please
make certain all parties are copied on the email. The emails will be filed with the clerk. Once
the Court receives a summary from each party and a certification of compliance with Rule 37,
the judicial assistant will email the parties to schedule a telephonic conference with the judge.

Motion Practice:

Do not combine pleadings. (Responses, replies, cross motions, etc., should each be filed
as a separate pleading).

A proposed order/judgment must be attached as a Word doc. using the proper turbo court
code. All stipulations, joint scheduling reports, unopposed motions, etc., MUST contain a
proposed order. If your system is not allowing you to attach a Word order, you must email a
copy to this division’s Judicial Assistant, Loretta Velarde, at
[email protected], and she can attach it on our end.

ALL motions are held for a briefing period. If you need a determination sooner than a
normal briefing period would allow, please do the following: 1. Speak with opposing counsel to
make certain if they have an objection. If there is no objection, file a stipulation. 2. E-file the
motion and email the filed document in Word format to the judicial assistant and opposing

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

02/25/2019

Docket Code 083
Form V000A
Page 3

counsel. 3. Indicate that you are asking for a shortened briefing schedule and when you need a
ruling. 4. The Court will review your request and email all parties with a briefing schedule if
necessary.

If the parties have agreed to an extension of time for filing responses/replies, email my
judicial assistant regarding the agreement. Otherwise, the Court may assume that no
responses/replies will be filed and rule without the benefit of the response/reply.

Unless another order in this case establishes an earlier deadline, the deadline for filing a
summary judgment motion is 120 days before trial. No modification, including a stipulated
modification, of this deadline will be honored absent a motion explaining why the 120-day
deadline is impractical in the circumstances.

Motions in Limine:

The granting or denial of a motion in limine turns on whether the admission of evidence
reaches the level of reversible error or a mistrial. Motions in limine are not granted “except
upon a clear showing of non-admissibility.” The parties shall not file motions denominated as
“in limine” that are, in substance, late-filed motions for summary judgment.

1. Page Limit and Format: Neither the motion in limine nor the response may exceed
three pages, including the caption. Showing that the motion has merit should not require more
than that. Motions in limine shall be consecutively numbered in the caption identifying the party
filing it and the subject of the motion; e.g. “Defendant’s Motion in Limine No. 1 Re: Insurance
Agreement,” and shall deal with one discrete subject per motion. Do not respond to more than
one motion in limine in each response.

Any motion in limine or response to such a motion should begin with a simple declarative
sentence that identifies the evidence that is the subject of the motion, with the understanding that
the broader the scope of the evidence to be excluded, the less likely it is that a motion in limine
will be granted. The remainder of the motion or response should then explain why a mistrial or
reversible error would or would not result if the motion is denied, with citations to authority that
have reached the same conclusion in the same or similar circumstances (this also applies to
motions in limine based on any failure to disclose, keeping in mind that nondisclosure implicates
Ariz. R. Civ. P. 37(c)). If the motion is unable to explain why its denial would result in a
mistrial or reversible error, the remainder should then demonstrate persuasively what efficiency,
economy, or other benefit is to be gained by granting the motion.

2. Rule 7.2: Motions in limine shall be filed in accordance with Ariz.R.Civ.P. 7.2. Prior
to filing any motion in limine, the parties through counsel must meet and confer to attempt to

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

02/25/2019

Docket Code 083
Form V000A
Page 4

resolve issues to be raised by such motions, and any motions in limine must include a
certification that counsel have so conferred.

3. Deadlines: The deadline for motions in limine is 30 days before the final pretrial
management conference. In both instances, responses must be filed 15 days after service, and no
replies should be filed unless requested.

4. Under Advisement: Although motions in limine will be considered as quickly as the
court’s schedule permits, they will not be taken under advisement any sooner than 15 days before
the start of the trial, regardless of when they are filed. If the parties believe that a ruling on such
a motion early in the case will facilitate settlement, they should notify this division (by telephone
at 602-506-4791 or e-mail to the judicial assistant) and every effort will be made to decide the
issue as soon as time allows.

Daubert Motions:

Any motion brought for a Daubert hearing or brought under Ariz.R.Evid. 702, shall be
filed at least 120 days before the Final Trial Management Conference). Failure to file such a
motion by this date shall constitute a waiver of (1) any objection that the expert is not qualified
to render expert testimony, and/or (2) any objection that any opinion of the expert should be
excluded under Ariz.R.Evid. 702.

Miscellaneous Issues:

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 up to three hours and $280 for any hearing in excess of three
hours. This fee does not include preparation of transcripts.

Should you want an unofficial copy of the proceedings, the parties or counsel may
request a CD of the proceedings for a $30.00 charge. If a CD is requested, please obtain a form
from the Self Service Center to request a daily copy of a court hearing or trial proceeding being
conducted. Pay the applicable fee at the Self Service Center. Attach the receipt showing
payment of the fee and present both the receipt and the form to the bailiff. For copies of
hearings or trial proceedings recorded previously, please call Electronic Records Services
at 602-506-7100.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

02/25/2019

Docket Code 083
Form V000A
Page 5

Requests for interpreters, court reporters or video conference must be made at least two
weeks prior to your hearing date.

Oral Argument/Trial time will be divided equally between Plaintiff and Defendant.
“When you are out of time, you are out of words.”

If you are not familiar with this division’s electronic equipment, please make an
appointment with this division’s bailiff, Kay Fleminger, via email at
[email protected], to test the equipment at least one week prior to your
hearing.

Preferred communication with this division is via email to the judicial assistant, Loretta
Velarde, at [email protected]. We are able to respond much quicker to an
email. Please make sure you endorse all parties involved in the case.

All inquiries regarding exhibit procedures should be directed to this division’s courtroom
clerk at (602) 506-1375.

Clerk of the Superior Court

*** Electronically Filed ***

03/23/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

03/20/2020

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Walker

Deputy

JOSH CLARK FAMILY TRUST DATED MAY 9
2013, et al.
JONATHAN A DESSAULES

v.

RUSSELL RANCH HOMEOWNERS
ASSOCIATION INC
CARLOTTA L TURMAN

JUDGE SANDERS

MINUTE ENTRY

The Court has considered Defendant’s Application for Attorneys’ Fees and Costs filed
December 9, 2019, Plaintiffs’ Objection filed February 14, 2020, and Defendant’s reply filed
March 13, 2020. Defendant seeks an order for $73,871.00 in attorneys’ fees, and $1,730.41 in
costs. Defendant asserts that an award of attorneys’ fees is mandated pursuant to the
Declaration, and also appropriate pursuant to A.R.S. § 12-341.01. Plaintiffs contend that
attorneys’ fees are not mandated pursuant to the Declaration, and urge to Court to exercise its
discretion and deny Defendant’s request for an award of attorneys’ fees.

The Court has reviewed Article 14, Section 14.8, of the Declaration, which is the
provision relied upon by Defendant to support its argument that an award of attorneys’ fees is
mandated pursuant to the Declaration. Although the Court agrees with Plaintiffs that a plain

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

03/20/2020

Docket Code 019
Form V000A
Page 2

reading of the provision cites circumstances that are not applicable to this lawsuit, Defendant is
also correct in that both parties contended, in their respective Complaint and Answer, that they
were mandated pursuant to the provisions of the Declaration.

The Court has considered the factors set forth in Associated Indemnity Corp. v. Warner,
143 Ariz. 585, 589, 694 P.2d 1199, 1203 (App.1983), and finds as follows:

1. Whether the unsuccessful party’s claim or defense was meritorious.

Although the Court believes Plaintiffs asserted their claims in good faith, their
positions were ultimately rejected by the Court for the reasons set forth in its
minute entry dated November 7, 2019.

2. Whether the litigation could have been avoided or settled and the successful
party’s efforts were completely superfluous in achieving the results.

The litigation could have been avoided. The successful party did not bring the
lawsuit, and was required to incur substantial attorneys’ fees and costs in
connection with defending it. The successful party made a settlement offer to
Plaintiffs, which was rejected, and thereafter defended the lawsuit in its entirety.
Defendant’s efforts were necessary to achieve the results.

3. Whether a fee award would be an extreme hardship.

The Court has not been provided with sufficient information to determine whether
or not an award of attorneys’ fees would not present an extreme hardship to any
of the Plaintiffs.

4. Whether the successful party prevailed with respect to all of the relief sought.

Defendant prevailed with respect to all relief sought by Plaintiffs.

5. Whether the matter presented a novel legal question.

The matter did not present novel legal questions.

6. Whether the award would discourage other parties with tenable claims or
defenses from litigating them.

An award would not discourage parties with tenable claims from pursuing them.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

03/20/2020

Docket Code 019
Form V000A
Page 3

The Court finds that an award of fees is appropriate under A.R.S. § 12-341.01(A).

The next issue is to determine the amount of reasonable attorney’s fees. The Court has
reviewed the entries contained in Plaintiff’s application for reasonableness. Considering the
length of time that this lawsuit remained pending, and the efforts involved with respect to
reviewing and drafting pleadings and other memoranda, client consultations, attending court
appearances, and preparing for and participating in a settlement conference, the Court cannot
find that the fees incurred by Defendant are unreasonable.

Based upon the matters presented, and for the reasons set forth above, the Court finds that
Defendant’s request for attorney’s fees of $73,871.00 is reasonable, as well its request for
$1,730.41 in costs.

The above-referenced attorneys’ fees and costs shall be borne by Plaintiffs as follows:

(1) The fees and costs shall be divided equally by each LOT that each Plaintiff
owns.
(2) As among a particular lot, each owner of that lot is jointly and severally liable
for the total amount of that lot’s fees and costs.

Counsel for Defendant is directed to submit a form of order, including language pursuant
to Rule 54(c) within thirty (30) days of the date of this minute entry.

Clerk of the Superior Court

*** Electronically Filed ***

04/28/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

04/27/2020

Docket Code 049
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Walker

Deputy

JOSH CLARK FAMILY TRUST DATED MAY 9
2013, et al.
JONATHAN A DESSAULES

v.

RUSSELL RANCH HOMEOWNERS
ASSOCIATION INC
CARLOTTA L TURMAN

JUDGE SANDERS

JUDGMENT SIGNED

IT IS ORDERED granting judgment in favor of Defendant, all in accordance with the
formal written Judgment signed by the Court on April 27, 2020, and filed (entered) by the Clerk
on April 27, 2020.

IT IS FURTEHR ORDERED granting judgment against Plaintiff Josh Clark, as Trustee
of The Josh Clark Family Trust Dated May 9, 2013, all in accordance with the formal written
Judgment signed by the Court on April 27, 2020, and filed (entered) by the Clerk on April 27,
2020.

IT IS FURTEHR ORDERED granting judgment against Plaintiffs Robert Garcia and
Diane Garcia, all in accordance with the formal written Judgment signed by the Court on April 27,
2020, and filed (entered) by the Clerk on April 27, 2020.

IT IS FURTEHR ORDERED granting judgment against Plaintiffs John R. Kidwell, Jr.
and Pauline Kidwell, all in accordance with the formal written Judgment signed by the Court on
April 27, 2020, and filed (entered) by the Clerk on April 27, 2020.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

04/27/2020

Docket Code 049
Form V000A
Page 2

IT IS FURTEHR ORDERED granting judgment against Plaintiffs David N. Latta and
Julia A. Latta, all in accordance with the formal written Judgment signed by the Court on April
27, 2020, and filed (entered) by the Clerk on April 27, 2020.

IT IS FURTEHR ORDERED granting judgment against Plaintiffs Julio and Sophia
Lewis, all in accordance with the formal written Judgment signed by the Court on April 27, 2020,
and filed (entered) by the Clerk on April 27, 2020.

IT IS FURTEHR ORDERED granting judgment against Plaintiffs Kerry Lindstrom and
Sandra Lindstrom, all in accordance with the formal written Judgment signed by the Court on
April 27, 2020, and filed (entered) by the Clerk on April 27, 2020.

IT IS FURTEHR ORDERED granting judgment against Plaintiffs Joseph L. Maher and
Victoria L. Maher, all in accordance with the formal written Judgment signed by the Court on
April 27, 2020, and filed (entered) by the Clerk on April 27, 2020.

IT IS FURTEHR ORDERED granting judgment against Plaintiffs Kenneth C. Runnels
and Brenda S. Runnels, all in accordance with the formal written Judgment signed by the Court
on April 27, 2020, and filed (entered) by the Clerk on April 27, 2020.

IT IS FURTEHR ORDERED granting judgment against Plaintiffs Thomas Seros and
Cathy Seros, all in accordance with the formal written Judgment signed by the Court on April 27,
2020, and filed (entered) by the Clerk on April 27, 2020.

IT IS FURTEHR ORDERED granting judgment against Plaintiff Joel C. Turner, all in
accordance with the formal written Judgment signed by the Court on April 27, 2020, and filed
(entered) by the Clerk on April 27, 2020.

Please note: The court has signed a paper copy of the orders which were originally
provided electronically. After the orders have been scanned and docketed by the Clerk of Court,
copies of these orders will be available through the ECR online at www.clerkofcourt.maricopa.gov
or through www.AZTurboCourt.gov and from the Public Access Terminals at the Clerk of Court’s
offices located throughout Maricopa County.

Clerk of the Superior Court

*** Electronically Filed ***

05/29/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

05/23/2019

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

JOSH CLARK FAMILY TRUST DATED MAY 9
2013, et al.
JONATHAN A DESSAULES

v.

RUSSELL RANCH HOMEOWNERS
ASSOCIATION INC
CARLOTTA L TURMAN

JUDGE SANDERS

ORAL ARGUMENT SET

IT IS ORDERED setting oral argument on July 1, 2019 at 9:00 a.m. in this division on
the following motion,

 Plaintiffs’ Motion for Summary Judgment, filed March 1, 2019.

HONORABLE TERESA SANDERS
JUDICIAL OFFICER OF THE SUPERIOR COURT
EAST COURT BUILDING
COURTROOM 811
101 W. JEFFERSON
PHOENIX, AZ 85003
(602) 506-4791

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

05/23/2019

Docket Code 094
Form V000A
Page 2

Oral argument shall be limited to thirty (30) minutes with the time divided equally
between the sides.

IT IS FURTHER ORDERED any motion or stipulation for continuance must be filed
with the Court no later than four court days prior to the date set for hearing. After that date, no
continuances will be granted except for extraordinary circumstances.

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 ***

06/21/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

06/19/2019

Docket Code 095
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

JOSH CLARK FAMILY TRUST DATED MAY 9
2013, et al.
JONATHAN A DESSAULES

v.

RUSSELL RANCH HOMEOWNERS
ASSOCIATION INC
CARLOTTA L TURMAN

JUDGE SANDERS

ORAL ARGUMENT RESET

Due to a scheduling conflict with the Court,

IT IS ORDERED vacating oral argument on Plaintiff’s Motion for Summary Judgment,
filed March 1, 2019 scheduled for July 1, 2019 at 9:00 a.m., and resetting same for July 10, 2019
at 9:45 a.m. in this division.

HONORABLE TERESA SANDERS
JUDICIAL OFFICER OF THE SUPERIOR COURT
EAST COURT BUILDING
COURTROOM 811
101 W. JEFFERSON
PHOENIX, AZ 85003
(602) 506-4791

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

06/19/2019

Docket Code 095
Form V000A
Page 2

Oral argument shall be limited to thirty (30) minutes with the time divided equally
between the sides.

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 ***

07/09/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

07/08/2019

Docket Code 002
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

JOSH CLARK FAMILY TRUST DATED MAY 9
2013, et al.
JONATHAN A DESSAULES

v.

RUSSELL RANCH HOMEOWNERS
ASSOCIATION INC
CARLOTTA L TURMAN

JUDGE SANDERS

MINUTE ENTRY

The Court has received Defendant’s Motion for Summary Judgment, filed June 28, 2019.

The Court notes that Defendant’s Motion for Summary Judgment involves the same
issues set forth in Plaintiff’s Motion for Summary Judgment, filed March 1, 2019, for which an
Oral Argument is currently set on July 10, 2019 at 9:45 a.m. in this division.

IT IS ORDERED vacating the Oral Argument set on July 10, 2019 at 9:45 a.m. in this
division.

The Court shall reset the Oral Argument once both motions for summary judgment are
fully briefed.

Clerk of the Superior Court

*** Electronically Filed ***

08/19/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

08/16/2019

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

JOSH CLARK FAMILY TRUST DATED MAY 9
2013, et al.
JONATHAN A DESSAULES

v.

RUSSELL RANCH HOMEOWNERS
ASSOCIATION INC
CARLOTTA L TURMAN

DAVID E WOOD
JUDGE SANDERS

ORAL ARGUMENT SET

Courtroom ECB 811

9:00 a.m. This is the time set for a telephonic Trial Setting Conference. Plaintiffs, Josh
Clark Family Trust Dated May 9, 2013, Thomas Seros, Kathy Seros, and Kerry Lindstrom, are
represented by counsel, David E. Wood for Jonathan A. Dessaules. Defendant, Russell Ranch
Homeowners Association, Inc., is represented by counsel, Gregg Stein and Carlotta L. Turman.

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

Discussion is held regarding status.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

08/16/2019

Docket Code 094
Form V000A
Page 2

For the reasons as stated on the record,

IT IS ORDERED setting oral argument on October 1, 2019 at 10:30 a.m. in this division
on the following motion(s):

 Plaintiff’s Motion for Summary Judgment, filed March 1, 2019.
 Defendant’s Motion for Summary Judgment, filed June 28, 2019.

HONORABLE TERESA SANDERS
JUDICIAL OFFICER OF THE SUPERIOR COURT
EAST COURT BUILDING
COURTROOM 811
101 W. JEFFERSON
PHOENIX, AZ 85003
(602) 506-4791

Oral argument shall be limited to sixty (60) minutes with the time divided equally between
the sides.

IT IS FURTHER ORDERED any motion or stipulation for continuance must be filed
with the Court no later than four court days prior to the date set for hearing. After that date, no
continuances will be granted except for extraordinary circumstances.

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.

9:11 a.m. Matter concludes.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

08/30/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

08/28/2018

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

JOSH CLARK FAMILY TRUST DATED MAY 9
2013, et al.
JONATHAN A DESSAULES

v.

RUSSELL RANCH HOMEOWNERS
ASSOCIATION INC
GREGORY A STEIN

JUDGE SANDERS

MINUTE ENTRY

The Court has read and considered Plaintiffs’ Motion for Class Certification filed June
29, 2018, Defendant’s response filed July 23, 2018, and Plaintiffs’ reply filed August 6, 2018.
The Court has also considered the authorities cited by counsel. The Court does not need oral
argument to determine this issue.

In their motion, Plaintiffs seek an order from the Court certifying this matter as a class
action pursuant to Rule 23 of the Arizona Rules of Civil Procedure. Plaintiffs contend that this
matter meets all four pre-requisites set forth in Rule 23(a), and they have established that
certification is appropriate pursuant to Rule 23(b). Defendant argues that Plaintiffs have not met
the condition set forth in Rule 23(a)(1), and therefore, certification is inappropriate.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

08/28/2018

Docket Code 023
Form V000A
Page 2

This matter involves a dispute between ten homeowners and their Homeowners
Association. The homeowners claim the Association improperly imposed a Special Use Capital
Improvement Charge in the amount of $2700 against “Phase III” lot owners. There are
approximately 104 additional “Phase III” homeowners who are not named-plaintiffs that are also
affected by the assessment.

Rule 23(a)(1) imposes a requirement that “the class is so numerous that joinder is
impracticable”. The additional homeowners are identifiable, and can be consulted with regard to
whether or not they want to participate in this lawsuit. Based upon the circumstances specific to
this narrow dispute, the Court cannot find that this group of homeowners “is so numerous that
joinder is impracticable”.

The Court does find that Plaintiffs have established the requirements set forth in Rule
23(a)(2), (a)(3), and (a)(4).

For the reasons set forth above, it is ordered denying Plaintiffs’ Motion for Class
Certification filed June 29, 2018.

Clerk of the Superior Court

*** Electronically Filed ***

10/03/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

10/01/2019

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

JOSH CLARK FAMILY TRUST DATED MAY 9
2013, et al.
JONATHAN A DESSAULES

v.

RUSSELL RANCH HOMEOWNERS
ASSOCIATION INC
CARLOTTA L TURMAN

DAVID E WOOD
GREGORY A STEIN
JUDGE SANDERS

MINUTE ENTRY

Courtroom ECB 811

10:35 a.m. This is the time set for Oral Argument regarding Plaintiffs’ Motion for
Summary Judgment, filed March 1, 2019 and Defendant’s Motion for Summary Judgment, filed
June 28, 2019. Plaintiffs, Josh Clark Family Trust, et al., are represented by counsel, David E.
Wood for Jonathan A. Dessaules. Defendant, Russell Ranch Homeowners Association, is
represented by counsel, Carlotta L. Turman and Gregory A. Stein.

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

Argument is presented.

For the reasons as stated on the record,

IT IS ORDERED taking this matter under advisement.

11:40 a.m. Matter concludes.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

10/12/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

10/10/2018

Docket Code 083
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

JOSH CLARK FAMILY TRUST DATED MAY 9
2013, et al.
JONATHAN A DESSAULES

v.

RUSSELL RANCH HOMEOWNERS
ASSOCIATION INC
GREGORY A STEIN

JUDGE SANDERS

TELEPHONIC TRIAL SCHEDULING CONFERENCE RESET

In light of the parties’ Stipulation to Extend Deadlines,

IT IS ORDERED vacating the Telephonic Trial Scheduling Conference on December 12,
2018 at 9:00 a.m. and resetting same to April 18, 2019 at 9:00 a.m. in this division.

HONORABLE JUDGE TERESA SANDERS
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W. JEFFERSON
8TH FLOOR, COURTROOM 811
PHOENIX, AZ 85003
602-506-4791

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

10/10/2018

Docket Code 083
Form V000A
Page 2

Counsel/parties shall have their trial calendars available for the conference.

NOTE: Counsel for the Plaintiff is to 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’s courtroom directly at 602-506-4791 at the scheduled time.

PRETRIAL ORDERS

The Court having been assigned to this case, the parties shall make note of the pretrial
orders identified below. To the extent that the orders are inconsistent with any order that has
been entered in this matter, including any scheduling order, this minute entry controls and the
inconsistent language in any such previous order is vacated.

Discovery Disputes:

If a discovery dispute needs judicial intervention, the parties must first comply with Rule
37’s meet and confer provision. Absent resolution, counsel for the movant shall email the
Court’s Judicial Assistant, Loretta Velarde, at [email protected], and all
other counsel to advise them of his/her request for a telephonic hearing. Each party shall
thereafter email the Court’s Judicial Assistant a three-page summary of the dispute with each
party entitled to submit one and one-half pages of that text, pursuant to Rule 26(d)(2). Please
make certain all parties are copied on the email. The emails will be filed with the clerk. Once
the Court receives a summary from each party and a certification of compliance with Rule 37,
the judicial assistant will email the parties to schedule a telephonic conference with the judge.

Motion Practice:

Do not combine pleadings. (Responses, replies, cross motions, etc., should each be filed
as a separate pleading).

A proposed order/judgment must be attached as a Word doc. using the proper turbo court
code. All stipulations, joint scheduling reports, unopposed motions, etc., MUST contain a
proposed order. If your system is not allowing you to attach a Word order, you must email a
copy to this division’s Judicial Assistant, Loretta Velarde, at
[email protected], and she can attach it on our end.

ALL motions are held for a briefing period. If you need a determination sooner than a
normal briefing period would allow, please do the following: 1. Speak with opposing counsel to
make certain if they have an objection. If there is no objection, file a stipulation. 2. E-file the
motion and email the filed document in Word format to the judicial assistant and opposing

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

10/10/2018

Docket Code 083
Form V000A
Page 3

counsel. 3. Indicate that you are asking for a shortened briefing schedule and when you need a
ruling. 4. The Court will review your request and email all parties with a briefing schedule if
necessary.

If the parties have agreed to an extension of time for filing responses/replies, email my
judicial assistant regarding the agreement. Otherwise, the Court may assume that no
responses/replies will be filed and rule without the benefit of the response/reply.

Unless another order in this case establishes an earlier deadline, the deadline for filing a
summary judgment motion is 120 days before trial. No modification, including a stipulated
modification, of this deadline will be honored absent a motion explaining why the 120-day
deadline is impractical in the circumstances.

Motions in Limine:

The granting or denial of a motion in limine turns on whether the admission of evidence
reaches the level of reversible error or a mistrial. Motions in limine are not granted “except
upon a clear showing of non-admissibility.” The parties shall not file motions denominated as
“in limine” that are, in substance, late-filed motions for summary judgment.

1. Page Limit and Format: Neither the motion in limine nor the response may exceed
three pages, including the caption. Showing that the motion has merit should not require more
than that. Motions in limine shall be consecutively numbered in the caption identifying the party
filing it and the subject of the motion; e.g. “Defendant’s Motion in Limine No. 1 Re: Insurance
Agreement,” and shall deal with one discrete subject per motion. Do not respond to more than
one motion in limine in each response.

Any motion in limine or response to such a motion should begin with a simple declarative
sentence that identifies the evidence that is the subject of the motion, with the understanding that
the broader the scope of the evidence to be excluded, the less likely it is that a motion in limine
will be granted. The remainder of the motion or response should then explain why a mistrial or
reversible error would or would not result if the motion is denied, with citations to authority that
have reached the same conclusion in the same or similar circumstances (this also applies to
motions in limine based on any failure to disclose, keeping in mind that nondisclosure implicates
Ariz. R. Civ. P. 37(c)). If the motion is unable to explain why its denial would result in a
mistrial or reversible error, the remainder should then demonstrate persuasively what efficiency,
economy, or other benefit is to be gained by granting the motion.

2. Rule 7.2: Motions in limine shall be filed in accordance with Ariz.R.Civ.P. 7.2. Prior
to filing any motion in limine, the parties through counsel must meet and confer to attempt to

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

10/10/2018

Docket Code 083
Form V000A
Page 4

resolve issues to be raised by such motions, and any motions in limine must include a
certification that counsel have so conferred.

3. Deadlines: The deadline for motions in limine is 30 days before the final pretrial
management conference. In both instances, responses must be filed 15 days after service, and no
replies should be filed unless requested.

4. Under Advisement: Although motions in limine will be considered as quickly as the
court’s schedule permits, they will not be taken under advisement any sooner than 15 days before
the start of the trial, regardless of when they are filed. If the parties believe that a ruling on such
a motion early in the case will facilitate settlement, they should notify this division (by telephone
at 602-506-4791 or e-mail to the judicial assistant) and every effort will be made to decide the
issue as soon as time allows.

Daubert Motions:

Any motion brought for a Daubert hearing or brought under Ariz.R.Evid. 702, shall be
filed at least 120 days before the Final Trial Management Conference). Failure to file such a
motion by this date shall constitute a waiver of (1) any objection that the expert is not qualified
to render expert testimony, and/or (2) any objection that any opinion of the expert should be
excluded under Ariz.R.Evid. 702.

Miscellaneous Issues:

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 up to three hours and $280 for any hearing in excess of three
hours. This fee does not include preparation of transcripts.

Should you want an unofficial copy of the proceedings, the parties or counsel may
request a CD of the proceedings for a $30.00 charge. If a CD is requested, please obtain a form
from the Self Service Center to request a daily copy of a court hearing or trial proceeding being
conducted. Pay the applicable fee at the Self Service Center. Attach the receipt showing
payment of the fee and present both the receipt and the form to the bailiff. For copies of
hearings or trial proceedings recorded previously, please call Electronic Records Services
at 602-506-7100.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

10/10/2018

Docket Code 083
Form V000A
Page 5

Requests for interpreters, court reporters or video conference must be made at least two
weeks prior to your hearing date.

Oral Argument/Trial time will be divided equally between Plaintiff and Defendant.
“When you are out of time, you are out of words.”

If you are not familiar with this division’s electronic equipment, please make an
appointment with this division’s bailiff, Kay Fleminger, via email at
[email protected], to test the equipment at least one week prior to your
hearing.

Preferred communication with this division is via email to the judicial assistant, Loretta
Velarde, at [email protected]. We are able to respond much quicker to an
email. Please make sure you endorse all parties involved in the case.

All inquiries regarding exhibit procedures should be directed to this division’s courtroom
clerk at (602) 506-1375.

Clerk of the Superior Court

*** Electronically Filed ***

11/08/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

11/07/2019

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

JOSH CLARK FAMILY TRUST DATED MAY 9
2013, et al.
JONATHAN A DESSAULES

v.

RUSSELL RANCH HOMEOWNERS
ASSOCIATION INC
CARLOTTA L TURMAN

JUDGE SANDERS

RULING

The Court has read and considered Plaintiffs’ Motion for Summary Judgment filed March
1, 2019, Defendant’s Response in Opposition to Plaintiffs’ Motion for Summary Judgment filed
April 8, 2019, Plaintiffs’ Reply in Support of Motion for Summary Judgment filed May 17, 2019,
as well as Defendant’s Motion for Summary Judgment filed June 28, 2019, Plaintiffs’ Response
to Defendant’s Motion for Summary Judgment filed August 2, 2019, and Defendant’s Reply in
Support of Motion for Summary Judgment filed August 26, 2019, as well as the accompanying
Statement of Facts for each. The Court has also considered the authorities cited by counsel, and
their arguments made on October 1, 2019.

In their Complaint, filed March 3, 2017, Plaintiffs, owners of real property in the Russell
Ranch planned community, seek a declaratory judgment, and monetary damages, including
reimbursement for special use fees, monetary penalties, attorney’s fees, and expenses and costs,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

11/07/2019

Docket Code 926
Form V000A
Page 2

for breach of contract against Defendant, the Russell Ranch Homeowner’s Association, in
connection with Defendant’s imposition of “special use” fees against homeowners in the “Phase
III” portion of the planned community.

Plaintiffs contend that they are entitled to summary judgment on their claims against
Defendant. Specifically, Plaintiffs allege that they are entitled to judgment as a matter of law for
the following reasons: (1) the $2,700.00 per lot charge does not meet the definition of a “special
use fee”, or a “special use charge”, (2) Defendant’s use of Section 5.6 of the Declaration is
contrary to the Declarant’s intent, and (3) exempting twenty-one (21) lots from the special use
charge renders it invalid.

In their response, and own motion for summary judgment, Defendant submits that it is
entitled to summary judgment, and Plaintiff’s motion must be denied because (1) the plain
language of Section 5.6 entitled the association to impose the special use capital improvement
charge and/or special use fee, (2) the Association did not exempt 21 lots from the special use fee,
(3) at least half of the Plaintiffs have waived their claims because they specifically approved it,
and (4) the requisite number of Phase III lot owners approved the proposed special use capital
improvement charge in accordance with the Declaration’s procedural requirements.

Pursuant to Ariz. R. Civ. P. Rule 56(a), “[t]he court shall grant summary judgment if the
moving party shows that there is no genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law.” Evidence is viewed in the light most favorable to the
nonmoving party. Sanchez v. City of Tucson, 191 Ariz. 128, 953 P.2d 168 (1998). “It is only the
existence of uncontroverted competent evidence favorable to a movant, from which only one
inference can be drawn, that entitles a party to summary judgment.” Nemec v. Rollo, 114 Ariz.
589, 592, 562 Pl.2d 1087, 1090 (App. 1977) (citing Choisser v. State ex rel. Herman, 12
Ariz.App. 259, 469 P.2d 493 (1970)).

“When deciding a motion for summary judgment, ‘[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.’” Allstate Indem. Co. v. Ridgely, 214 Ariz. 440, 444, ¶ 19, 153
P.3d 1069, 1073 (App. 2007) (quoting Thomspon v. Better-Bilt Aluminum Prds. Co., 171 Ariz.
550, 558, 832 P.2d 203, 211 (1992)). “Summary judgment is inappropriate where the facts, even
if undisputed, would allow reasonable minds to differ.” Nelson v. Phoenix Resort Corp., 181
Ariz. 188, 191, 888 P.2d 1375, 1378 (App. 1994).

From a review of the motions and responses filed by the parties, it appears that neither
party alleges disputed issues of material fact, but each contends they are entitled to summary
judgment regarding this action.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

11/07/2019

Docket Code 926
Form V000A
Page 3

As noted above, Plaintiffs are all “Phase III” homeowners in the planned community of
Russell Ranch, and Defendant is the Homeowner’s Association. Russell Ranch is located in
Litchfield Park, Arizona, and the Association is governed by the “Declaration of Covenants,
Conditions and Restrictions for Russell Ranch” and its amendments.

The community was originally planned to be developed in six phases, with construction
commencing within Phases I and II in 2001 and 2003. These phases are mostly developed.
Construction commenced within Phase III in 2005, but it remains largely undeveloped. Phases II
and III are gated. The remaining phases have never been developed or annexed into the
community.

Due to drainage issues in Phase III, Maricopa County imposed a construction moratorium
in 2007 which prohibited further construction until these issues could be resolved. Between that
time and 2015, Defendant expended approximately $165,000.00 in connection with assessing and
repairing Phase III drainage issues. By early 2015, Maricopa County had continued to refuse to
grant new building permits to Phase III lot owners, and imposed a deadline of June 15, 2015 for
Defendant to correct these issues.

In an effort to comply with the deadline imposed by the county, and to allow the further
development of Phase III, Defendant obtained bids and determined that the cost for correcting
the drainage defects would be approximately $415,000.00. After reviewing the governing
documents, specifically the Declaration, and reviewing its options, it formally proposed the
imposition of a $2,700.00 “Special Use Capital Improvement Charge” upon each Phase III lot
owner, with two exceptions noted below, to finance the cost, correct the drainage issues, and
succeed in having the new construction moratorium imposed by the county lifted. The “SUCIC”
was ultimately approved by a majority of the Phase III lot owners, 65-8. The Kidwell, Latta,
Lindstrom, Maher, and Runnels Plaintiffs each voted in favor of the assessment. Thereafter, in
December, 2015, Maricopa County lifted the moratorium on new construction within Phase III.

Section 5.6 of the Declaration provides as follows:

5.6 Special Use Fees. The Board shall assess to each Lot (except as provided in
Section 5.12) that is within a Gated Community, as identified in Section 3.13
above, Special Use Fees allocating to such Lots the costs and expenses incurred
or to be incurred by the Association that are related specifically to the Gated
Community but not common to all Lots. The Special Use Fees relating to ordinary
and customary costs and expenses concerning the Gated Community shall be
determined each year by the Board as provided in Section 5.11 below. Such
Special Use Fees shall be paid on the dates and in such installments as may be
determined by the Board.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

11/07/2019

Docket Code 926
Form V000A
Page 4

In addition to the other Assessments identified in this Section 5, in any assessment
year, an additional Special Use Fee may be levied by the Association applicable
only to that fiscal year for purposes of defraying, in whole or in part, the cost of
any construction, reconstruction, repair or replacement of a capital improvement
of the Common Area that is situated solely within the Gated Community in
question, including, without limitation, the gate structures and private roads
situated within or at the boundary of such Gated Community (the “Special Use
Capital Improvement Charge”), provided, that, unless otherwise provided herein,
any such Assessment for a Special Use Capital Improvement Charge shall have
the assent of Members having at least two-third (2/3) of the votes cast by Members
of the Gated Community in question who are voting in person or by proxy at a
meeting of the Members of such Gated Community called for such purposes. For
these purposes, the presence of Members or of proxies entitled to cast ten percent
(10%) of all of the votes of Members owing Lots in the Gated Community in
question shall constitute a quorem.

It is pursuant to this provision that Defendant sought and gained approval from a quorem
of the Phase III lot owners, and ultimately imposed the $2,700.00 fee upon each lot owner, except
those noted below. Plaintiffs contend that the approval was not validly obtained because
Defendant failed to disclose prior to the vote that Western Camelback Property, LLC, an owner
of twenty undeveloped Phase III lots, was exempt from paying any assessments, including the
“SUCIC” during the time period that the construction moratorium was in place, and two years
afterwards. Western Camelback Property has since paid the SUCIC applicable to its lots, after
the commencement of this lawsuit and the two-year period since the moratorium was lifted.
Defendant, the owner of one lot, did not impose the assessment against itself because it had
already expended approximately $165,000.00 towards assessing and correcting the drainage
defects.

Plaintiffs further contend that the $2,700.00 per lot assessment did not meet the definition
of a “special use fee” because the costs and expenses associated with it were not “related
specifically to the Gated Community”, but were “common to all Lots”, and “the Declarations
definitions of ‘Common Area’ and ‘Common Expenses’ underscore the conclusion that an
additional Special Use Fee to pay for drainage repairs was improper.”

Defendant submits that contrary to Plaintiffs’ assertions, it complied with all requirements
set forth in Section 5.6, and that “the drainage work performed within Phase III was only
performed to or in relation to ‘private streets’, ‘private storm drains’, ‘drainage ways’, ‘retention
basins’, ‘certain landscaped areas’, and other similar facilities located exclusively on Tracts A
through P”, and “the Phase III Gated Community includes all of the Lots located within Phase III

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

11/07/2019

Docket Code 926
Form V000A
Page 5

‘together with the adjacent Common Areas’.”

Arizona courts interpret CC & Rs according to their plain language. Saguaro Highlands
Cmty. Ass'n v. Biltis, 224 Ariz. 294, ¶ 14, 229 P.3d 1036, 1040 (App. 2010). As noted above,
Section 5.6 permits Defendant to levy an “additional special use fee”, applicable to only one fiscal
year, “for purposes of defraying, in whole or in part, the cost of any construction, reconstruction,
repair or replacement of a capital improvement of the Common Area that is situated solely within
the Gated Community in question, including, without limitation, the gate structures and private
roads situated within or at the boundary of such Gated Community.” “Special Use Fee” includes
“the costs and expenses incurred or to be incurred by the Association that are related specifically
to the Gated Community but not common to all Lots.” “Gated Community” includes “such
designated lots, together with the adjacent common areas.” “Common areas” includes real
property located within the community used “for the common use and enjoyment of the
members”, which includes, without limitation, “private streets, private storm drains, drainage
ways, retention basins, walkways, parking areas, certain landscaped areas, walls or fences.”

Based upon the matters presented, and for the reasons set forth above, the Court finds as
follows:

(1) Due to drainage issues in Phase III, Maricopa County imposed a construction
moratorium in 2007 which prohibited further construction until these issues could
be resolved. The moratorium only applied to Phase III, the drainage issues only
related to Phase III, and the “Memorandum of Understanding” entered into
between Defendant and Maricopa County in December, 2015, only related to
Phase III.
(2) Section 5.6 of the Declaration authorizes Defendant to impose an “additional
special use fee” for purposes of defraying, in whole or in part, the cost of any
construction, reconstruction, repair or replacement of a capital improvement of
the common area that is situated solely within the gated community in question,
including, without limitation, the gate structures and private roads situated within
or at the boundary of such gated community. By its definition, the “additional
special use fee” is not limited to only gate structures and private roads.
(3) The Court finds that addressing the drainage issues in Phase III that were so severe
they caused the county to place a moratorium on construction within that phase
only are within the type of contemplated costs that an “additional special use fee”
would be utilized to fund. Although such funds had not been expended in this
manner in the past, such use is authorized, and not prohibited by, the Declaration.
(4) The drainage issues were peculiar to Phase III, and “situated solely” within it.
(5) Phase III is a “gated community”.
(6) The “gated community” includes Phase III and its “adjacent common areas”.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-001777

11/07/2019

Docket Code 926
Form V000A
Page 6

(7) The repairs funded by the “additional special use fee” were utilized for Phase III
and its “adjacent common areas”, in order to have the construction moratorium
imposed by the county lifted.
(8) The requisite two-thirds (2/3) of the Phase III lot owners approved the “additional
special use fee”, including several Plaintiffs.
(9) The drainage issues that had prevented construction in the Phase III area for
several years were repaired and/or addressed by the funds generated from the
“additional special use fee”, the construction moratorium was thereafter lifted, and
Phase III lot owners benefitted as a result.
(10)
The agreement entered into between Defendant and Western Camelback
Property on or about January 9, 2015, delayed Western Camelback’s
responsibility for payment of assessments, including “special use fees”, and
“additional special use fees”, but did not exempt it from this obligation. Western
Camelback Property has since paid its proportionate share of the $2,700.00 per lot
fee pursuant to that agreement.

For the reasons set forth above, the Court finds that the $2,700.00 “additional special use
fee” and/or “Special Use Capital Improvement Charge” was approved by, and properly imposed
upon the Phase III lot owners, and therefore, they are not entitled to reimbursement of that
assessment or any other requested relief as set forth in their Complaint filed March 3, 2017.

Therefore, it is ordered granting Defendant’s Motion for Summary Judgment filed June
28, 2019.

It is further ordered denying Plaintiffs’ Motion for Summary Judgment filed March 1,
2019.

Defendant is directed to submit a form of Order within 30 days of the date of this
minute entry.

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