03/27/2007 — CV2006009625 ASSOCIATION, TERRAMAR HOMEOWNERS 03/27/2007 THE HONORABLE ANNA M. BACA View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
03/28/2007 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2006-009625
03/27/2007
Docket Code 019
Form J000
Page 1
CLERK OF THE COURT
THE HONORABLE ANNA M. BACA
A. Gonzalez
Deputy
TERRAMAR HOMEOWNERS ASSOCIATION
CHARLES E MAXWELL
v.
PAINTING COMPANY, THE, et al.
PAUL E STEEN
RULING
This court has received and reviewed Defendants’ Motion/Application to Compel
Arbitration, Plaintiff’s Response and Defendants’ Reply. The court has considered the legal
memorandua, the court’s file and the relevant law. The court finds and rules as follows.
Defendants move to compel arbitration under the Construction Industry Arbitration Rules
of the American Arbitration Association pursuant to their arbitration agreement and A.R.S. § 12-
1501 and 12-1502(A). Defendants also seek dismissal of Plaintiff’s complaint and an award of
costs and attorneys’ fees.
“The public policy of Arizona favors arbitration,” and courts prefer to uphold arbitration
agreements where possible. City of Cottonwood v. James L. Fann Contracting, Inc., 179 Ariz. 185,
189 (App. Div. 1 1994). “Unless repudiation is clear…the court should not infer it.” Id. at 192.
Despite that preference for enforcing arbitration agreements, a party may, through its actions, waive its
rights under the arbitration agreement. U.S. Insulation, Inc. v. Hilro Const. Co., Inc., 146 Ariz. 250
(1985); Bolo Corp. v. Homes & Son Const. Co., 105 Ariz. 343 (1970). Arizona courts have held that
filing a lawsuit or answering on the merits despite the existence of an arbitration agreement will
“nearly always indicate a clear repudiation of the right to arbitrate.” Meineke v. Twin City Fire Ins.
Co., 181 Ariz. 576, 582 (App. Div. 1 1994). See also, Bolo, 105 Ariz. 343, 346 (1970) (“[D]efendants
joined in the repudiation by answering to the merits without a demand for arbitration or a motion to stay
the suit until arbitration could be had.”).
Plaintiffs in this case choose to submit the controversy to the courts, and consequently waived
any right they may have had to arbitrate the matter. Defendants answered the complaint on its merits
without demanding arbitration or otherwise objecting to the forum, thereby waiving their right to demand
arbitration. Defendants argue that they made a tactical decision not to demand arbitration and that
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2006-009625
03/27/2007
Docket Code 019
Form J000
Page 2
Plaintiff’s later decision to seek greater damages will result in their incurring higher costs. However,
frustration of a tactical decision is no basis on which to compel arbitration. Rancho Pescado, Inc. v.
Northwestern Mut. Life Ins. Co., 140 Ariz. 174 (App. Div. 1 1984). Defendants could have chosen to
pursue arbitration in addition to or instead of answering the Complaint. They did not.
The court finds that because Defendants responded to the Complaint on the merits, and
because they did not then seek to enforce their right to arbitrate the dispute, Defendants
repudiated the arbitration agreement and thereby waived their right to arbitrate. Consequently,
IT IS ORDERED denying Defendant’s Motion/Application to Compel Arbitration.
IT IS FURTHER ORDERED denying Defendant’s request for an award of costs and
attorneys’ fees.
05/31/2007 — CV2006009625 ASSOCIATION, TERRAMAR HOMEOWNERS 05/31/2007 HON. MARK F. ACETO View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
06/05/2007 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2006-009625
05/31/2007
Docket Code 026
Form V000A
Page 1
CLERK OF THE COURT
HON. MARK F. ACETO
M. Sahli
Deputy
TERRAMAR HOMEOWNERS ASSOCIATION
CHARLES E MAXWELL
v.
PAINTING COMPANY, THE, et al.
PAUL E STEEN
TELEPHONIC COMPREHENSIVE PRETRIAL CONFERENCE SET
A Controverting Certificate on Motion to Set and Certificate of Readiness having been
filed in this case,
IT IS ORDERED setting a telephonic Rule 16 Comprehensive Pretrial Conference on
July 19, 2007 at 11:00 a.m., (allotted time: 15 minutes) in this division.
NOTE: This division will place the conference call at the time of the hearing.
IT IS FURTHER ORDERED that counsel for all parties shall meet personally before
the Pretrial Conference and prepare a Joint Pretrial Memorandum addressing all applicable
subjects set forth in Rule 16(b) or Rule 16(c) of the Arizona Rules of Civil Procedure. The
parties shall file and provide this Division with a copy of the Joint Pretrial Memorandum no later
than five (5) judicial days before the conference, addressing all applicable subjects in ARCP 16.
Suggested dates for disclosure and discovery will be stated as dates certain and not, for example,
as “___ days before trial”. If counsel are unable to agree on any of the items in the Joint Pretrial
Memorandum, the reasons for their inability to agree shall be set forth in the Memorandum.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2006-009625
05/31/2007
Docket Code 026
Form V000A
Page 2
Counsel are reminded that the Court may impose sanctions against counsel and/or their
clients for failure to participate in good faith in the Joint Pretrial Conference Memorandum or the
Pretrial Conference.
If a party is not represented by counsel, that party has all of the obligations that would
otherwise be the obligations of counsel.
07/19/2007 — CV2006009625 ASSOCIATION, TERRAMAR HOMEOWNERS 07/19/2007 HON. MARK F. ACETO View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
07/23/2007 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2006-009625
07/19/2007
Docket Code 083
Form V000A
Page 1
CLERK OF THE COURT
HON. MARK F. ACETO
M. Sahli
Deputy
TERRAMAR HOMEOWNERS ASSOCIATION
CHARLES E MAXWELL
v.
PAINTING COMPANY, THE, et al.
PAUL E STEEN
MINUTE ENTRY
On the Court’s own Motion,
IT IS ORDERED continuing Comprehensive Pretrial Conference to August 1, 2007 at
9:45 a.m. The Court shall initiate the conference call.
08/01/2007 — CV2006009625 ASSOCIATION, TERRAMAR HOMEOWNERS 08/01/2007 HON. MARK F. ACETO View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/03/2007 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2006-009625
08/01/2007
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HON. MARK F. ACETO
L. Owens
Deputy
TERRAMAR HOMEOWNERS ASSOCIATION
JEFFREY B CORBEN
v.
PAINTING COMPANY, THE, et al.
PAUL E STEEN
MINUTE ENTRY
9:56 a.m. This is the time set for Telephonic Rule 16 Comprehensive Pretrial
Conference. Plaintiff is represented by counsel Jeffrey Corben. Defendants are represented by
counsel Paul Steen. Both counsel appear telephonically.
Court Reporter Lisa Edgar is present.
The Court enters the following ORDERS:
September 24, 2007 is the deadline for complete Rule 26.1 disclosure regarding
Plaintiff’s expert witnesses.
November 26, 2007 is the deadline for complete Rule 26.1 disclosure regarding
Defendants’ expert witnesses.
December 21, 2007 is the deadline for complete Rule 26.1 disclosure regarding
Plaintiff’s rebuttal expert witnesses.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2006-009625
08/01/2007
Docket Code 023
Form V000A
Page 2
January 18, 2008 is the deadline for complete Rule 26.1 disclosure regarding non-expert
witnesses.
IT IS FURTHER ORDERED the parties shall participate in private mediation. The
parties shall share the costs of private mediation on a 50/50 basis. The deadline for private
mediation is December 15, 2007.
IT IS FURTHER ORDERED setting a telephonic Status Conference on January 11,
2008 at 9:45 a.m. The Court will initiate the conference call.
10:01 a.m. Conference concludes.
