Maricopa County Superior Court Case CV2016-007601 - Arizona HOA Transparency ProjectArizona HOA Transparency Project

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Maricopa County Superior Court Case CV2016-007601: public docket details, parties, minute entries, documents, and official source links for Olive Grove Village Association Inc.

Case Number: CV2016-007601
County: Maricopa
Caption: Not captured
Filed: 5/20/2016
Case Type: Civil
Judge: Kreamer, Joseph
Location: Downtown
Official Court Record: Official Court Record

Parties

No parties captured.

Minute Entries

01/05/2018 — CV2016007601 & B T TRUST, M R 01/05/2018 HON. TERESA SANDERS View Minute Entry ↑ top

Source: Minute Source

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

01/10/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

01/05/2018

Docket Code 005
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

v.

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

MINUTE ENTRY

Courtroom 811 (ECB)

9:52 a.m. This is the time set for an Oral Argument regarding Defendant’s Motion to
Enforce Settlement Agreement, filed December 1, 2017. Plaintiff, MR&BT Trust, is represented
by counsel, Philip B. Whitaker. Defendant, Olive Grove Village Association, is represented by
counsel, Jonathan D. Ebertshauser.

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

The Court has read and considered Defendant’s Motion, Plaintiff’s Response and
Defendant’s reply.

Argument is presented.

For the reasons as stated on the record,

IT IS ORDERED denying Defendant’s Motion to Enforce Settlement Agreement.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

01/05/2018

Docket Code 005
Form V000A
Page 2

IT IS FURTHER ORDERED that the parties shall submit an amended Scheduling
Order to the Court no later than 5:00 p.m. on January 19, 2018.

10:05 a.m. Matter concludes.

01/11/2019 — CV2016007601 & B T TRUST, M R 01/11/2019 HON. TERESA SANDERS View Minute Entry ↑ top

Source: Minute Source

Clerk of the Superior Court

*** Electronically Filed ***

01/14/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

01/11/2019

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

v.

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

JUDGE SANDERS

MINUTE ENTRY

The Court has read and considered Plaintiffs’ Motion for Reconsideration, filed January
8, 2019.

IT IS ORDERED denying Plaintiffs’ Motion for Reconsideration, filed January 8, 2019.

01/24/2018 — CV2016007601 & B T TRUST, M R 01/24/2018 HON. TERESA SANDERS View Minute Entry ↑ top

Source: Minute Source

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

01/29/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

01/24/2018

Docket Code 041
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

TELEPHONIC TRIAL SCHEDULING CONFERENCE SET

Pursuant to the parties’ Scheduling Order electronically filed and granted by the Court,

IT IS ORDERED setting a Telephonic Trial Scheduling Conference for the purpose of
assigning a trial date on May 30, 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

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

01/24/2018

Docket Code 041
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 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

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

01/24/2018

Docket Code 041
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 2016-007601

01/24/2018

Docket Code 041
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 2016-007601

01/24/2018

Docket Code 041
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.

03/30/2017 — CV2016007601 & B T TRUST, M R 03/30/2017 HONORABLE LORI HORN BUSTAMANTE View Minute Entry ↑ top

Source: Minute Source

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

04/03/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

03/30/2017

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE LORI HORN BUSTAMANTE
T. Nosker

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

MINUTE ENTRY

IT IS ORDERED setting a Telephonic Status Conference for April 7, 2017 at 1:30 p.m.
in this division.

The court notes the deadline to provide the Joint Report and Scheduling Order was March
10, 2017.

IT IS ORDERED directing counsel to meet and confer regarding the issues addressed in
Defendants’ Request for Rule 16(d) Scheduling Conference and provide a Proposed Scheduling
Order 3 days prior to the hearing.

IT IS FURTHER ORDERED that this case will be dismissed without prejudice on
April 14, 2017 pursuant to the 150 Day Order filed on October 26, 2016 if a Joint Report and
Proposed Scheduling Order is not filed prior to the hearing.

Counsel for Plaintiff shall initiate the conference call by calling (602) 506-0423. The call
should be placed from a telephone in an area with no background noise as this will prevent the
parties from hearing the proceedings. The call may not be placed from a vehicle. Also, the use
of cellular telephones and speakerphones is strongly discouraged.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

03/30/2017

Docket Code 028
Form V000A
Page 2

This is a 15 minute proceeding. The Court will determine if more time is needed. If
there is a failure to appear, the Court may make such orders as are just, including granting the
relief requested by the party who does appear.

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.

04/07/2017 — CV2016007601 & B T TRUST, M R 04/07/2017 HONORABLE LORI HORN BUSTAMANTE View Minute Entry ↑ top

Source: Minute Source

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

04/11/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

04/07/2017

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE LORI HORN BUSTAMANTE
T. Nosker

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

TIMOTHY REGIS GRIMM

MINUTE ENTRY

Courtroom ECB 811

1:27 p.m. This is the time set for Telephonic Status Conference. Plaintiffs are
represented by counsel, Philip B. Whitaker. Defendant is represented by counsel, Jonathan D.
Ebertshauser and Timothy Regis Grimm.

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

Discussion is held regarding case status and scheduling.

Counsel shall confer and submit proposed deadlines for the court’s review.

IT IS ORDERED setting a Telephonic Status Conference for April 14, 2017 at
9:15 a.m. in this division.

Counsel for Plaintiff shall initiate the conference call by calling (602) 506-0423. The call
should be placed from a telephone in an area with no background noise as this will prevent the

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

04/07/2017

Docket Code 028
Form V000A
Page 2

parties from hearing the proceedings. The call may not be placed from a vehicle. Also, the use
of cellular telephones and speakerphones is strongly discouraged.

1:36 p.m. Matter concludes.

04/10/2017 — CV2016007601 & B T TRUST, M R 04/10/2017 HONORABLE LORI HORN BUSTAMANTE View Minute Entry ↑ top

Source: Minute Source

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

04/12/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

04/10/2017

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE LORI HORN BUSTAMANTE
T. Nosker

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

ALTERNATIVE DISPUTE
RESOLUTION - CCC

MINUTE ENTRY

The Court has read Plaintiff’s Joint Report filed on April 5, 2017.

IT IS ORDERED approving the parties’ deadlines, all as set forth in the formal written
Scheduling Order electronically signed by the Court on April 10, 2017.

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 August 8, 2017. The Office of Alternative Dispute
Resolution will not do the scheduling of the settlement conference so please do not contact that
office.

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

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

04/10/2017

Docket Code 023
Form V000A
Page 2

appear and participate in good faith in the Settlement Conference. Sanctions may be
imposed for failure to participate.

04/14/2017 — CV2016007601 & B T TRUST, M R 04/14/2017 HONORABLE LORI HORN BUSTAMANTE View Minute Entry ↑ top

Source: Minute Source

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

04/19/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

04/14/2017

Docket Code 003
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE LORI HORN BUSTAMANTE
T. Nosker

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

v.

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

MINUTE ENTRY

IT IS ORDERED vacating the Telephonic Status Conference to set trial date on April
14, 2017 at 9:15 a.m. and resetting same to September 8, 2017 at 11:45 a.m. in this division.

Counsel for Plaintiff shall initiate the conference call by calling (602) 506-0423. The call
should be placed from a telephone in an area with no background noise as this will prevent the
parties from hearing the proceedings. The call may not be placed from a vehicle. Also, the use
of cellular telephones and speakerphones is strongly discouraged.

04/30/2018 — CV2016007601 & B T TRUST, M R 04/30/2018 HON. TERESA SANDERS View Minute Entry ↑ top

Source: Minute Source

Chris DeRose, Clerk of Court

*** Electronically Filed ***

05/03/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

04/30/2018

Docket Code 083
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

TIMOTHY REGIS GRIMM

MINUTE ENTRY

Courtroom ECB 811

9:33 a.m. This is the time set for a telephonic Status Conference. Plaintiff, MR & BT
Trust, is represented by counsel, Philip B. Whitaker. Defendant, Olive Grove Village
Association Inc., is represented by counsel, Jonathan D. Ebertshauser and Timothy R. Grimm.

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

Discussion is held regarding Plaintiff’s Stipulated Motion for Scheduling Conference,
filed April 20, 2018.

For the reasons as stated on the record,

IT IS ORDERED granting Plaintiff’s request to extend discovery until May 31, 2018.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

04/30/2018

Docket Code 083
Form V000A
Page 2

IT IS FURTHER ORDERED granting Plaintiff’s request to take the depositions of
Anne Pierce and Hank Rybacki, Defendant may state any objections to questions during the
depositions.

IT IS FURTHER ORDERED granting Defendant’s request for production of the trust
document of MR & BT Trust that was provided to prior counsel. Upon review, Defendant may
bring any concerns to the Court’s attention.

IT IS FURTHER ORDERED the parties shall submit an amended Scheduling Order no
later than 5:00 p.m. on May 11, 2018.

9:56 a.m. Matter concludes.

05/09/2019 — CV2016007601 & B T TRUST, M R 05/09/2019 HON. TERESA SANDERS View Minute Entry ↑ top

Source: Minute Source

Clerk of the Superior Court

*** Electronically Filed ***

05/13/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

05/09/2019

Docket Code 041
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

JUDGE SANDERS

TELEPHONIC TRIAL SCHEDULING CONFERENCE SET

On the Court’s own motion,

IT IS ORDERED setting a Telephonic Trial Scheduling Conference for the purpose of
assigning a trial date on June 27, 2019 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 2016-007601

05/09/2019

Docket Code 041
Form V000A
Page 2

PRETRIAL ORDERS

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).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

05/09/2019

Docket Code 041
Form V000A
Page 3

ruling. 4. The Court will review your request and email all parties with a briefing schedule if
necessary.

Unless another order in this cause establishes a date-certain deadline, the deadline for
filing a summary judgment motion is 120 days before the trial management conference. The
parties are limited to filing one motion for summary judgment. No modification, including a
stipulated modification, of this deadline and filing limit will be honored absent a motion
explaining why the deadline or filing limit is impractical in the circumstances.

Motions in Limine:

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 2016-007601

05/09/2019

Docket Code 041
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.

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:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

05/09/2019

Docket Code 041
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.

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

05/10/2018 — CV2016007601 & B T TRUST, M R 05/10/2018 HON. TERESA SANDERS View Minute Entry ↑ top

Source: Minute Source

Chris DeRose, Clerk of Court

*** Electronically Filed ***

05/11/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

05/10/2018

Docket Code 083
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

TELEPHONIC TRIAL SCHEDULING CONFERENCE RESET

In light of the parties’ Stipulation to Extend Deadlines,

IT IS ORDERED vacating the Telephonic Trial Scheduling Conference on July 12,
2018 at 9:00 a.m. and resetting same to August 8, 2018 at 9:15 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 2016-007601

05/10/2018

Docket Code 083
Form V000A
Page 2

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

PRETRIAL ORDERS

Discovery Disputes:

Motion Practice:

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

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

05/10/2018

Docket Code 083
Form V000A
Page 3

ruling. 4. The Court will review your request and email all parties with a briefing schedule if
necessary.

Motions in Limine:

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 2016-007601

05/10/2018

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.

Daubert Motions:

Miscellaneous Issues:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

05/10/2018

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.”

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

06/17/2019 — CV2016007601 & B T TRUST, M R 06/17/2019 HON. TERESA SANDERS View Minute Entry ↑ top

Source: Minute Source

Clerk of the Superior Court

*** Electronically Filed ***

06/18/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

06/17/2019

Docket Code 083
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

JUDGE SANDERS

TELEPHONIC TRIAL SCHEDULING CONFERENCE RESET

Due to a scheduling conflict with the Court,

IT IS ORDERED vacating the Telephonic Trial Scheduling Conference on June 27, 2019
at 9:00 a.m. and resetting same to June 25, 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 2016-007601

06/17/2019

Docket Code 083
Form V000A
Page 2

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

NOTE: Counsel for the Plaintiffs 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

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).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

06/17/2019

Docket Code 083
Form V000A
Page 3

Motions in Limine:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

06/17/2019

Docket Code 083
Form V000A
Page 4

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.

Daubert Motions:

Miscellaneous Issues:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

06/17/2019

Docket Code 083
Form V000A
Page 5

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.

Oral Argument/Trial time will be divided equally between Plaintiff and Defendant.

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

06/22/2018 — CV2016007601 & B T TRUST, M R 06/22/2018 HON. TERESA SANDERS View Minute Entry ↑ top

Source: Minute Source

Chris DeRose, Clerk of Court

*** Electronically Filed ***

06/25/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

06/22/2018

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

v.

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

MINUTE ENTRY

The Court has read and considered Olive Grove Village Association, Inc.’s Motion to
Exceed Page Limit, filed June 14, 2018.

The motion does not set forth the number of pages that Defendant is seeking to exceed
the page limit by, Therefore,

IT IS ORDERED denying Olive Grove Village Association, Inc.’s Motion to Exceed
Page Limit without prejudice.

08/02/2016 — CV2016007601 & B T TRUST, M R 08/02/2016 HONORABLE LORI HORN BUSTAMANTE View Minute Entry ↑ top

Source: Minute Source

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

08/04/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

08/02/2016

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE LORI HORN BUSTAMANTE
T. Nosker

Deputy

M R & B T TRUST
PHILIP B WHITAKER

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

ORAL ARGUMENT SET

IT IS ORDERED setting oral argument for August 12, 2016 at 11:30 a.m.
(30 minutes) in this division on the following motion:

 Defendant’s Motion to Dismiss

HONORABLE LORI HORN BUSTAMANTE
JUDICIAL OFFICER OF THE SUPERIOR COURT
EAST COURT BUILDING
COURTROOM 811
101 W. JEFFERSON
PHOENIX, AZ 85003
(602) 506-0423

Each side will have 15 minutes per Motion.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

08/02/2016

Docket Code 094
Form V000A
Page 2

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.

08/08/2018 — CV2016007601 & B T TRUST, M R 08/08/2018 HON. TERESA SANDERS View Minute Entry ↑ top

Source: Minute Source

Chris DeRose, Clerk of Court

*** Electronically Filed ***

08/13/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

08/08/2018

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

JUDGE SANDERS

MINUTE ENTRY

Courtroom ECB 811

9:16 a.m. This is the time set for a Trial Setting Conference. Plaintiff, MR & BT Trust,
is represented by counsel, Philip B. Whitaker. Defendant, Olive Grove Village Association, Inc.,
is represented telephonically by counsel, Jonathan D. Ebertshauser and Timothy R. Grimm.

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

Discussion is held regarding status.

For the reasons as stated on the record,

IT IS ORDERED setting oral argument on November 2, 2018 at 9:30 a.m. in this
division on the following motion,

 Defendant’s Motion for Summary Judgment, filed August 3, 2018.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

08/08/2018

Docket Code 094
Form V000A
Page 2

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.

9:28 a.m. Matter concludes.

08/12/2016 — CV2016007601 & B T TRUST, M R 08/12/2016 HONORABLE LORI HORN BUSTAMANTE View Minute Entry ↑ top

Source: Minute Source

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

08/16/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

08/12/2016

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE LORI HORN BUSTAMANTE
T. Nosker

Deputy

M R & B T TRUST
PHILIP B WHITAKER

v.

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

MINUTE ENTRY

Courtroom ECB 811

11:32 a.m. This is the time set for Oral Argument. Plaintiff is represented by counsel,
Philip B. Whitaker. Defendant is represented by counsel, Jonathan D. Ebertshauser.

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

Argument is heard on Defendant’s Motion to Dismiss.

IT IS ORDERED taking this matter under advisement.

11:57 a.m. Matter concludes.

08/16/2016 — CV2016007601 & B T TRUST, M R 08/16/2016 HONORABLE LORI HORN BUSTAMANTE View Minute Entry ↑ top

Source: Minute Source

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

08/18/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

08/16/2016

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE LORI HORN BUSTAMANTE
T. Nosker

Deputy

M R & B T TRUST
PHILIP B WHITAKER

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

RULING MINUTE ENTRY

The court considered the oral arguments presented as well as the following pleadings regarding
Defendant’s Motion to Dismiss:
 Defendant’s Motion to Dismiss
 Affidavit of Art Self in Support of Defendant’s Motion to Dismiss
 Response to Motion To Dismiss
 Reply in Support of Defendant’s Motion to Dismiss

In reviewing a Rule 12(b)(6) Motion, the “[c]ourts must . . . assume the truth of the well-pled
factual allegations and indulge all reasonable inferences therefrom.” Cullen v. Auto-Owners Ins.
Co., 218 Ariz. 417, 419, 189 P.3d 344, 346 (2008). “Motions to dismiss for failure to state a
claim are not favored and should not be granted unless it appears that the plaintiff should be
denied relief as a matter of law given the facts alleged.” Logan v. Forever Living Products
Intern., Inc., 203 Ariz. 191, 193, ¶ 7, 52 P.3d 760, 762 (2002) (emphasis added) (citing State ex
rel. Corbin v. Pickrell, 136 Ariz. 589, 594, 667 P.2d 1304, 1309 (1983)). However, “[d]ismissal
is appropriate under Rule 12(b)(6) only if ‘as a matter of law [] plaintiffs would not be entitled to
relief under any interpretation of the facts susceptible of proof.’” Coleman v. City of Mesa, 230

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

08/16/2016

Docket Code 926
Form V000A
Page 2

Ariz. 352, 356, ¶ 8, 284 P.3d 863, 867 (2012) (citing Fid. Sec. Life Ins. Co. v. State Dep’t of Ins.,
191 Ariz. 222, 224 ¶ 4, 954 P.2d 580, 582 (1998)).

Plaintiff’s Unverified Complaint
Defendant requests dismissal of Plaintiff’s Complaint because it was not verified at the time of
filing. On June 30, 2016 Plaintiff filed a Notice of Filling Plaintiff’s Verification to Complaint.
Since the Plaintiff verified the complaint, Defendant’s Motion to Dismiss as to this claim is now
moot.
Trustee Must Bring Action on Behalf of Trust

The “trustee is the holder of legal title.” Eardley v. Greenberg, 164 Ariz. 261, 265, 792 P.2d
724, 728 (1990). “[B]eneficiaries hold the beneficial interests (or ‘equitable title’) in the trust
property, while the trustee (ordinarily) hold ‘bare’ legal title to the property.” Restatement
(Third) of Trusts § 42, cmt. a (2003). “A claim based on a contract entered into by a trustee in
the trustee’s fiduciary capacity, on an obligation arising from ownership or control of trust
property . . . may be asserted in a judicial proceeding against the trustee in the trustee’s fiduciary
capacity.” A.R.S. § 14-11010(C).

Defendant, Olive Grove Village Association, Inc. (“Olive Grove”), asserts that Plaintiff, MR &
BT Trust’s (“BT Trust”) complaint should be dismissed because Plaintiff did not bring an action
on behalf of the trustee. The trustee is the holder of the legal title to the property, not the trust.
The court agrees that the “Plaintiff” is the trustee(s) of the trust, not the trust itself. Plaintiff
asserts the Trustee is very private and does not want his name reflected in the caption. The court
is not aware of any rule, statute or case law that would protect the Plaintiff’s identity under the
circumstances presented.

The court recognizes that Plaintiffs should be given an opportunity to amend their Complaint
prior to dismissal of a claim if the amendment would correct the defect. Therefore, Plaintiff will
be given an opportunity to amend the Complaint to reflect the name of the Trustee(s).

IT IS ORDERED directing Plaintiff to amend the Complaint to reflect the name of the
Trustee(s) on or before September 9, 2016.

Breach of Fiduciary Duty
Defendant further contends that Olive Grove did not owe any fiduciary duty to BT Trust, and
that this count of Plaintiff’s Complaint should be dismissed.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

08/16/2016

Docket Code 926
Form V000A
Page 3

“The Restatement imposes upon the association the duty . . . to act reasonably in the exercise of
its discretionary powers including rulemaking, enforcement, and design-control powers.” Tierra
Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 201, ¶ 25, 165 P.3d 173, 179 (App.
2007). In following the Restatement approach, Arizona Courts reasoned that “unlike jurisdictions
requiring the association to prove the reasonableness of its actions, the Restatement approach
requires the member challenging the association to establish that its actions were unreasonable.”
Id. at 201-02, ¶ 26, 165 P.3d 179-80. The Arizona Court of Appeals has held that a homeowners
association does not owe a fiduciary duty to a member of the association. Rohde v. Beztak of
Ariz., Inc., 164 Ariz. 383, 388, 793 P.2d 140, 145 (App. 1990).
Homeowners Associations are held to a standard of reasonableness. There is no Arizona case
law or authority that allows a member of a homeowners association to assert a breach of
fiduciary claim against a homeowners association. The Rohde’s court specifically found that a
member’s breach of fiduciary duty cause of action against a homeowners association had “no
merit.” As a homeowners association Defendants do not owe a fiduciary duty to Plaintiff, a
member of the association, so there can be no breach of fiduciary duty. Thus, as a matter of law
Plaintiff would not be entitled to relief and Defendant’s Motion to Dismiss regarding the Breach
of Fiduciary Duty claim must be granted.
IT IS ORDERED granting Defendant’s Motion to Dismiss as to the Breach of Fiduciary Duty
claim.

09/08/2017 — CV2016007601 & B T TRUST, M R 09/08/2017 HON. TERESA SANDERS View Minute Entry ↑ top

Source: Minute Source

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

09/12/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

09/08/2017

Docket Code 041
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda/T. Cooley

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

MINUTE ENTRY

11:56 a.m. This is the time set for a telephonic Status Conference. Plaintiffs MR&BT
Trust and Philip Sinnott are represented by counsel, Philip B. Whitaker. Defendant Olive Grove
Village Association Inc. is represented by counsel, Tim Grimm for Jonathan D. Ebertshauser.
All parties appear telephonically.

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

Court and counsel discuss the status of the case and scheduling.

IT IS ORDERED counsel shall be referred back to Judge Pro Tem, Jeff Messing, for a
settlement conference.

IT IS FURTHER ORDERED setting a Trial Setting Conference on November 6, 2017
at 9:30 a.m. in this division.

Counsel for Plaintiff shall initiate the conference call by calling (602) 506-4791. The call
should be placed from a telephone in an area with no background noise as this will prevent the
parties from hearing the proceedings. The call may not be placed from a vehicle. Also, the use
of cellular telephones and speakerphones is strongly discouraged.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

09/08/2017

Docket Code 041
Form V000A
Page 2

11/02/2018 — CV2016007601 & B T TRUST, M R 11/02/2018 HON. TERESA SANDERS View Minute Entry ↑ top

Source: Minute Source

Chris DeRose, Clerk of Court

*** Electronically Filed ***

11/06/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

11/02/2018

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

v.

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

JUDGE SANDERS

MINUTE ENTRY

Courtroom ECB 811

9:33 a.m. This is the time set for an Oral Argument regarding Defendant’s Motion for
Summary Judgment, filed August 3, 2018. Plaintiff, MR & BT Trust, is represented by counsel,
Phillip B. Whitaker. Defendant, Olive Grove Village Association Inc., is represented by counsel,
Jonathan D. Ebertshauser and Tim Grimm.

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

Argument is presented.

IT IS ORDERED dismissing Count 2 – “Breach of Contract” from the amended
Complaint, filed September 6, 2016.

Further argument is presented.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

11/02/2018

Docket Code 020
Form V000A
Page 2

Defendant withdraws demand for jury trial.

IT IS FURTHER ORDERED dismissing Count 3 – “Receivership” from the amended
Complaint, filed September 6, 2016.

For the reasons as stated on the record,

IT IS FURTHER ORDERED taking Count 1 – “Declaratory Judgment” under
advisement.

10:41 a.m. Matter concludes.

11/06/2017 — CV2016007601 & B T TRUST, M R 11/06/2017 HON. TERESA SANDERS View Minute Entry ↑ top

Source: Minute Source

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

11/08/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

11/06/2017

Docket Code 083
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
J. Eaton

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

v.

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

MINUTE ENTRY

Upon request of counsel,

IT IS ORDERED vacating the telephonic Trial Setting Conference scheduled for
November 6, 2017, at 9:30 a.m. (time allotted: 15 minutes) and resetting same to November 27,
2017, at 10:30 a.m. in this division.

Counsel for Plaintiff shall initiate the conference call by calling (602) 506-4791. The call
should be placed from a telephone in an area with no background noise as this will prevent the
parties from hearing the proceedings. The call may not be placed from a vehicle. Also, the use of
cellular telephones and speakerphones is strongly discouraged.

11/27/2017 — CV2016007601 & B T TRUST, M R 11/27/2017 HON. TERESA SANDERS View Minute Entry ↑ top

Source: Minute Source

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

12/04/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

11/27/2017

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

ORAL ARGUMENT SET

Courtroom 811 (ECB)

10:42 a.m. This is the time set for a telephonic Status Conference. Plaintiffs, MR & BT
Trust and Philip Sinnott, are represented by counsel, Philip B. Whitaker. Defendant, Olive Grove
Village Association Inc., is represented by counsel, Tim Grimm for Jonathan D. Ebertshauser.

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

Discussion is held regarding status.

For the reasons as stated on the record,

IT IS ORDERED that Defendant shall file a Petition to Enforce Agreement with the
Court by 5:00 p.m. on December 1, 2017 with the response due on December 12, 2017 and
reply due on December 19, 2017.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

11/27/2017

Docket Code 094
Form V000A
Page 2

IT IS FURTHER ORDERED setting an oral argument for January 5, 2018 at 10:00
a.m. (30 minutes) in this division on the following motion(s):

 Defendant’s Forthcoming Petition to Enforce Agreement

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

Each side will have 15 minutes to present their argument.

12/06/2018 — CV2016007601 & B T TRUST, M R 12/06/2018 HON. TERESA SANDERS View Minute Entry ↑ top

Source: Minute Source

Chris DeRose, Clerk of Court

*** Electronically Filed ***

12/11/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

12/06/2018

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

JUDGE SANDERS

RULING

The Court has read and considered Defendant’s Motion to Dismiss filed September 25,
2018, Plaintiff’s response filed October 15, 2018, and Defendant’s reply filed October 22, 2018.
The Court has also considered the authorities cited by counsel, and the arguments of counsel
made on November 2, 2018.

In his Amended Complaint, filed September 6, 2016, Plaintiff, on behalf of a private trust
that he claims to be the trustee and trustor of, seeks a declaratory judgment from the Court
regarding numerous disputes between himself and the Homeowners’ Association of the property
where he resides.

In its motion, Defendant requests that the Court dismiss Plaintiff’s Amended Complaint
in its entirety pursuant to Rule 12(b)(6) of the Arizona Rules of Civil Procedure. Based upon
prior proceedings, only Count One, the declaratory judgment claim, remains. With regard to that
remaining count, Defendant contends that Plaintiff has “failed to show that he has standing to
bring suit to challenge the corporate acts.” Specifically it claims that Plaintiff is not the owner of
record with the Maricopa County Recorder, and that he has refused to provide any
documentation that supports his claim that he is the “settlor, beneficiary, trustor, and trustee” of
the MR & BT Trust.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

12/06/2018

Docket Code 926
Form V000A
Page 2

Plaintiff submits that Defendant’s motion should be denied because it is untimely,
waived, and that Defendant, through counsel, specifically admitted that Plaintiff was a member
of the association and it would not contest that he is a member. Specifically, in written
correspondence dated January 27, 2016, Defendant’s counsel at the time, wrote:

1. The status of Mr. Sinnott as Owner and Voting Member.
Thank you for kindly allowing me to review documentation of January 20,
2016 in order to verify that Mr. Sinnott is a member of Olive Grove. Olive
Grove appreciates that Mr. Sinnott is Trustee. As a Trustee, Mr. Sinnott is
entitled to vote on behalf of the Trust. Olive Grove does not contest that Mr.
Sinnott is a member, and he will be accorded the rights and responsibilities of
a member as set forth in the Olive Grove community documents.
Arizona Rules of Civil Procedure Rule 12(b)(6) allows for the dismissal of a claim for
“failure to state a claim upon which relief can be granted.” Motions to dismiss for failure to state
a claim are strongly disfavored. Acker v. CSO Chevira, 188 Ariz. 252, 934 P.2d 816 (Ariz. App.
Div. 1 1997) (citing Folk v. City of Phoenix, 27 Ariz.App. 146, 151, 551 P.2d 595, 600 (1976)).
In reviewing a Rule 12(b)(6) Motion, the “[c]ourts must . . . assume the truth of the well-pled
factual allegations and indulge all reasonable inferences therefrom.” Cullen v. Auto-Owners Ins.
Co., 218 Ariz. 417, 419, 189 P.3d 344, 346 (2008). Rule 12(b)(6) requires that the Court look
only to the complaint itself to determine whether or not a claim is stated upon which relief can be
granted. The court must indulge all reasonable inferences in favor of Plaintiff.

In reviewing the Complaint, the Court notes that Plaintiff alleges he is the “settlor and
beneficiary”, and “trustee of the Trust.” Pursuant to Rule 12(b)(6) standards, the Court must
accept this allegation as true. This presumption is further bolstered by Defendant’s admission
through counsel.

Under the standards imposed for motions to dismiss, assuming the truth of the factual
allegations in the Complaint and indulging all reasonable inferences therefrom, a dismissal of
Plaintiff’s Complaint pursuant to Rule 12(b)(6) is not appropriate.

It is therefore ordered denying Defendant’s Motion to Dismiss filed September 25, 2018.

12/17/2018 — CV2016007601 & B T TRUST, M R 12/17/2018 HON. TERESA SANDERS View Minute Entry ↑ top

Source: Minute Source

Chris DeRose, Clerk of Court

*** Electronically Filed ***

12/19/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

12/17/2018

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HON. TERESA SANDERS
A. Durda

Deputy

M R & B T TRUST, et al.
PHILIP B WHITAKER

OLIVE GROVE VILLAGE ASSOCIATION INC
JONATHAN D EBERTSHAUSER

JUDGE SANDERS

RULING

The Court has read and considered Defendant’s Motion for Summary Judgment filed
August 3, 2018, Plaintiff’s response filed September 28, 2018, and Defendant’s reply filed
October 26, 2018, as well as the accompanying Statement of Facts for each. The Court has also
considered the authorities cited by counsel, and the arguments of counsel made on November 2,
2018.

Plaintiff’s claims for Breach of Contract (Count Two), and Receivership (Count Three)
have been dismissed. The only remaining claim is for Declaratory Judgment (Count One).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

12/17/2018

Docket Code 926
Form V000A
Page 2

Defendant contends that it is entitled to summary judgment on each of Plaintiff’s disputes
against the Association. Specifically, Defendant contends that it is entitled to judgment as a
matter of law for the following reasons:

1. Plaintiff’s failure to comply with the Association’s governing documents and
refusal to provide proof of his identify to serve as a qualified member of the
Association precludes him from relief.

2. The Association’s 2016 election was held in accordance with the governing
documents.

3. The 2015 special election was held properly and the removal of the Treasurer was
proper.

4. Audits have been completed for 2014 and 2016.

5. The former property manager did not have a conflict of interest with the Board of
Directors.

6. Architectural approval is required for modifications on Plaintiff’s balcony.

7. The Board has authority to impose fines for violations of $100.00 per day for
continued use of the unapproved architectural modifications.

8. The Board’s treatment of the unapproved lattice on Unit 2008 as a violation of the
governing documents is appropriate.

9. The late fees and charges on the Plaintiff’s ledger were properly assessed.

10. The engagement of the plumbing contractor in the Association was proper.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

12/17/2018

Docket Code 926
Form V000A
Page 3

11. The Association’s meetings are held in accordance with open meeting
requirements.

12. The Association is entitled to enforce violations relating to door hangings.

13. Plaintiff’s claims for relief regarding removal of the current board members and a
request for a new election are moot.

In his response, although not specifically identified as a cross-motion for summary
judgment, and not accompanied by a statement of facts in support of such a motion, Plaintiff
contends that he is entitled to judgment as a matter of law regarding several issues. In any event,
it appears it is his position there are genuine issues of material fact that preclude summary
judgment in Defendant’s favor.

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).

Plaintiff’s Standing as a Qualified Member of the Association

For the reasons set forth in the Court’s minute entry dated December 6, 2018, which
denied Defendant’s Motion to Dismiss, it is ordered denying Defendant’s Motion for Summary
Judgment regarding this issue.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

12/17/2018

Docket Code 926
Form V000A
Page 4

The 2016 Election

Plaintiff contends that the 2016 election “was marred by material violations of the
governing documents.” Specifically, Plaintiff alleges that the Board improperly refused to
place his name on the ballot, the ballots were not “secret”, no nomination committee was used,
and irregularities in the election because “a last-minute, write-in candidate received more votes
than names on the pre-printed ballot when there were mail-in ballots.”

Defendant claims it is entitled to summary judgment on this issue because the ballots
utilized were compliant with A.R.S. § 33-1250(C), and the Bylaws provide for a secret written
ballot, even though they do not set forth a procedure for executing a secret ballot. Defendant
ultimately asserts that “despite the fact that Arizona law arguably does not require the
Association to do so, it has retained the secrecy of the ballots cast at the Association’s 2016
annual meeting of the members.”

In reviewing each party’s respective Statement of Facts, the Court finds there are
multiple disputed material facts with regard to this issue.

It is therefore ordered denying Defendant’s Motion for Summary Judgment regarding
this issue.

The 2015 Special Election

Plaintiff contends the 2015 special election to remove the treasurer was improper.
Specifically, he alleges that the petition did not include the valid number of signatures,
Defendant could not identify who circulated the petition, how it was circulated, who verified
the signatures, and whether they were ever verified. He further alleges that “since the election
is required to be by secret ballot, then an implicit term is any removal election also must be
secret ballot.”

Defendant claims it is entitled to summary judgment on this issue because the petition
for removal exceeded the requisite threshold, ballots cast for the removal of a member of the
Board of Directors are not required to be secret ballots, and the volunteers that counted the
ballots were impartial.

In reviewing each party’s respective Statement of Facts, the Court finds there are
multiple disputed material facts with regard to this issue.

It is therefore ordered denying Defendant’s Motion for Summary Judgment regarding
this issue.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

12/17/2018

Docket Code 926
Form V000A
Page 5

The 2014 and 2016 Audits

The Association has performed an audit, by a certified public accountant, for 2014 and
2016. There is no disputed material fact regarding this issue. This issue is moot.

The Property Manager

Plaintiff contends that the property manager, Art Self, engaged in misconduct, “was
self-serving and was not neutral”, and was “demeaning, nasty, and unprofessional.” His major
areas of complaint refer to a conflict of interest with regard to soliciting plumbing bids, and that
he “retaliated” against Plaintiff in several regards.

Defendant asserts that the former property manager was a hired agent for the Board of
Directors and lacked any independent authority over the Association. It further contends that
Plaintiff has provided “no case law or support for Plaintiff’s claim”, and is therefore entitled to
summary judgment on this issue.

In reviewing each party’s respective Statement of Facts, the Court finds there are
disputed material facts with regard to this issue.

It is therefore ordered denying Defendant’s Motion for Summary Judgment regarding
this issue.

Architectural Approval for Modifications on Plaintiff’s Balcony

Plaintiff contends that architectural approval is not required for the lattice on his
balcony. Defendant asserts it is entitled to summary judgment on this issue because the
Declaration and Bylaws clearly state that architectural approval is required for modifications on
Plaintiff’s balcony.

In reviewing each party’s respective Statement of Facts, the Court finds there is no
genuine dispute that (1) Plaintiff’s modifications to his balcony required architectural approval,
and (2) Plaintiff did not seek or obtain the Board’s approval prior to making any modifications.

It is therefore ordered granting Defendant’s Motion for Summary Judgment regarding
this issue.

The Board’s Authority to Impose Monetary Fines

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

12/17/2018

Docket Code 926
Form V000A
Page 6

Plaintiff contends that the Board does not have authority to impose monetary fines. In
support of this argument he points out that (1) the CC & R’s to not authorize the Board to
impose financial fines, (2) the Articles of Incorporation expressly limits remedies to suspension
of voting rights and the use of recreational facilities for 90 days, (3) Defendant has not
“proffered any duly adopted Rules”, and (4) Defendant “has never established the foundation to
show any type of fine was ever approved.”

Defendant asserts it is entitled to summary judgment on this issue because A.R.S. § 33-
1242(A)(11) specifically provides, subject to the provisions of the declaration, it may impose
reasonable monetary penalties on unit owners for violations of the declaration, bylaws and rules
of the Association. It further points out that the Associations Rules and Regulations provide for
fines “ranging from $10.00 to $500.00 per violation.”

The Court finds, as a matter of law, that the Association is empowered to impose
monetary fines for violations pursuant to A.R.S. § 33-1242(A)(11).

It is therefore ordered granting Defendant’s Motion for Summary Judgment regarding
this issue.

The Board’s Treatment of Plaintiff’s Lattice

Plaintiff contends that he “has not been furnished a declaration or any deposition
testimony to support the claim that any fine currently is outstanding based on alleged lattice
violations.”

Defendant asserts it is entitled to summary judgment on this issue because (1) Plaintiff
failed to submit the required written architectural application, (2) Plaintiff’s unapproved
modification constitutes a violation, and (3) he was provided with violation notices.

In reviewing each party’s respective Statement of Facts, the Court finds there is no
genuine dispute that (1) Plaintiff’s modifications to his balcony required architectural approval,
(2) Plaintiff did not seek or obtain the Board’s approval prior to making any modifications, (3)
Plaintiff’s modifications constitute a violation, and (4) Plaintiff was provided with violation
notices.

It is therefore ordered granting Defendant’s Motion for Summary Judgment regarding
this issue.

The Late Fees and Charges on Plaintiff’s Ledger

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

12/17/2018

Docket Code 926
Form V000A
Page 7

Plaintiff disputes the late fees and charges on his ledger and asserts “there is no
foundation for the purported ledger of fines.”

Defendant asserts that the late fees and charges on Plaintiff’s ledger were properly
assessed.

In reviewing each party’s respective Statement of Facts, the Court finds there are
disputed material facts with regard to this issue.

It is therefore ordered denying Defendant’s Motion for Summary Judgment regarding
this issue.

The Plumbing Contractor

Plaintiff, who describes himself as a “retired plumber” believes that a plumber engaged
by the association “did not properly repair the boiler”, and this caused the former property
manager to “retaliate against him.”

Defendant asserts that the engagement of the plumbing contractor was appropriate, not a
conflict-of-interest, the sought bids, and “the Association’s right to engage vendors and to
decide whether to submit a claim to its insurance carrier is held by the corporation.”

The Court finds that Defendant has the authority to engage vendors to make repairs to
the property. No evidence has been presented that Defendants acted improperly in this regard.

It is therefore ordered granting Defendant’s Motion for Summary Judgment regarding
this issue.

Open Meeting Laws

Plaintiff contends the Board is violating open meeting laws. Defendant asserts the
Association’s meetings are conducted in accordance with open meeting requirements.

Defendant also submits that the specific examples of violations that Plaintiff refers to in
his response all allegedly occurred after he filed his Amended Complaint and therefore are not
properly pled or before this Court for determination.

In reviewing each party’s respective Statement of Facts, the Court finds no evidence has
been presented to support the claim that Defendant violated open meeting requirements as set
forth in Plaintiff’s Amended Complaint.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-007601

12/17/2018

Docket Code 926
Form V000A
Page 8

It is therefore ordered granting Defendant’s Motion for Summary Judgment regarding
this issue.

Door Hangings

This dispute involves Plaintiff posting documents on the front door of his residence,
which pertain to judgments issued against certain members or residents within the Association.

Defendant contends that the Declaration provides that Plaintiff’s front door is a
“common area”, and prohibits “advertising or other signs” remaining on it “except as otherwise
approved by the Condominium Association.”

Plaintiff argues that this is a “content based prohibition” and violates his constitutional
right to free speech.

The Court finds, as a matter of law, that Plaintiff’s front door is part of the Association
“common area”, and subject to the Declaration and Association Bylaws and Rules and
Regulations.

It is therefore ordered granting Defendant’s Motion for Summary Judgment regarding
this issue.

Plaintiff’s Claim for Removal of Current Board Members and a New Election

Insofar as Plaintiff requests the Court issue orders invalidating prior elections and
ordering a new one, the Court agrees with Defendant that this issue is moot.

Conclusion

Based upon the matters presented, and for the reasons set forth above, it is ordered
granting in part, and denying in part, Defendant’s Motion for Summary Judgment filed August
3, 2018.

Documents

Type	Title	Content Type	Size	Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 01/05/2018 HON. TERESA SANDERS View Minute Entry	application/pdf	80.0 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 01/11/2019 HON. TERESA SANDERS View Minute Entry	application/pdf	77.1 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 01/24/2018 HON. TERESA SANDERS View Minute Entry	application/pdf	105.3 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 03/30/2017 HONORABLE LORI HORN BUSTAMANTE View Minute Entry	application/pdf	83.6 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 04/07/2017 HONORABLE LORI HORN BUSTAMANTE View Minute Entry	application/pdf	83.8 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 04/10/2017 HONORABLE LORI HORN BUSTAMANTE View Minute Entry	application/pdf	83.4 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 04/14/2017 HONORABLE LORI HORN BUSTAMANTE View Minute Entry	application/pdf	9.5 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 04/30/2018 HON. TERESA SANDERS View Minute Entry	application/pdf	83.5 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 05/09/2019 HON. TERESA SANDERS View Minute Entry	application/pdf	144.9 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 05/10/2018 HON. TERESA SANDERS View Minute Entry	application/pdf	105.1 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 06/17/2019 HON. TERESA SANDERS View Minute Entry	application/pdf	144.9 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 06/22/2018 HON. TERESA SANDERS View Minute Entry	application/pdf	79.6 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 08/02/2016 HONORABLE LORI HORN BUSTAMANTE View Minute Entry	application/pdf	98.9 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 08/08/2018 HON. TERESA SANDERS View Minute Entry	application/pdf	100.3 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 08/12/2016 HONORABLE LORI HORN BUSTAMANTE View Minute Entry	application/pdf	77.3 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 08/16/2016 HONORABLE LORI HORN BUSTAMANTE View Minute Entry	application/pdf	159.6 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 09/08/2017 HON. TERESA SANDERS View Minute Entry	application/pdf	13.0 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 11/02/2018 HON. TERESA SANDERS View Minute Entry	application/pdf	82.7 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 11/06/2017 HON. TERESA SANDERS View Minute Entry	application/pdf	9.6 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 11/27/2017 HON. TERESA SANDERS View Minute Entry	application/pdf	110.8 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 12/06/2018 HON. TERESA SANDERS View Minute Entry	application/pdf	125.2 KB	Document Source
minute_entry_pdf	CV2016007601 & B T TRUST, M R 12/17/2018 HON. TERESA SANDERS View Minute Entry	application/pdf	177.1 KB	Document Source