Case Header

Maricopa County Superior Court Case CV2018-052668: public docket details, parties, minute entries, documents, and official source links for Dove Valley Ranch Community Association.

Case Number

CV2018-052668

County

Maricopa

Caption

Not captured

Filed

6/27/2018

Case Type

Civil

Judge

Gordon, Michael

Location

Northeast

Official Court Record

Official Court Record

Parties

Minute Entries

Clerk of the Superior Court

*** Electronically Filed ***

01/06/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

01/05/2021

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
G. Chavez

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JUDGE CAMPAGNOLO

MINUTE ENTRY

The Court has received Defendant’s Statement of Facts in Support of Defendant Baron’s
Motion for Summary Judgment, filed on December 23, 2020, which the Court cannot consider
because the Statement of Facts does not comply with the Court’s protocol on
bookmarking/hyperlinking exhibits.

IT IS ORDERED rejecting Defendant’s Statement of Facts in Support of Defendant
Baron’s Motion for Summary Judgment for failure to comply with the Court’s protocol on
bookmarking/hyperlinking exhibits.

IT IS FURTHER ORDERED that Defendant shall refile the Statement of Facts in
Support of Defendant Baron’s Motion for Summary Judgment in compliance with the Court’s
protocol on bookmarking/hyperlinking exhibits no later than January 19, 2021.

**Counsel please review the information below**

Motions with Exhibits: Bookmarking and hyperlinking in pleadings is encouraged. See
Rule 5.2(c)(3)(A), Ariz. R. Civ. P. All e-filed pleadings, including, but not limited to, summary

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

01/05/2021

Docket Code 023
Form V000A
Page 2

judgment pleadings, that contain more than 5 exhibits shall contain bookmarks/hyperlinks to all
exhibits attached to your pleading(s). All bookmarks/hyperlinks must be contained in your e-
filed pleading in pdf format. The bookmarking/hyperlinking to exhibits is crucial, so that the
Court can readily locate an exhibit without undue delay. The Court does not want hard copies of
the exhibits, and the Court does not want the materials on thumb drive or email. DO NOT
bookmark or hyperlink case citations. Any bookmarks/hyperlinks to any websites or the internet
(e.g., Westlaw) will not work. Failure to provide the bookmarks/hyperlinks as required above
will result in the issuance of a Minute Entry rejecting the pleading. The party will be required to
efile a new pleading with proper bookmarking/hyperlinking no later than 14 days after the filing
of the Minute Entry rejecting the original pleading. The Court reserves the right to disallow any
pleadings that are not re-efiled within 14 days. You may obtain further information on e-filing
with bookmarks/hyperlinks under Section 2.03(b) of the following webpage:
https://efiling.clerkofcourt.maricopa.gov/efilingguidelines/#formattofefileddocuments

I am aware that some attempted bookmarkings/hyperlinkings may be unsuccessful due to
software incompatibility with the Clerk's software, or because the documents' size exceeds the
Clerk's capacity. In those situations, upon the filing of a notice to that effect signed by the party's
attorney, the bookmarked/hyperlinked document may be submitted to the Court on a CD.

Motion Practice: Motions, responses and related pleadings shall comply with the length
and other requirements of the Rules. If an extension of response or reply time is necessary, try to
reach agreement among the parties, and then submit a stipulation. If you file a motion for leave
to exceed the page length of a pleading, you will need to provide specific reasons. A generic
statement that you need more pages may result in denial of your motion.

This division requires that all motions, responses, replies and other Court requested filings
in this case must be submitted individually. The parties shall not combine any motion with a
responsive pleading. All motions are to be filed separately and designated as such. No pleadings
will be accepted if filed in combination with another. Motions or stipulations shall be efiled with
proposed orders. ALL proposed orders when applicable, shall be efiled in Word format.

Clerk of the Superior Court

*** Electronically Filed ***

01/14/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

01/13/2021

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
J. Holguin

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JUDGE CAMPAGNOLO

MINUTE ENTRY

The Court has reviewed the Motion to Extend Case Deadlines, Uniformly. Because it is
not stipulated, the Court needs to be informed of the position of the other parties.

IT IS ORDERED that the Court will not consider the Motion until it has received a
written response from Defendants, either by a joint filing or separate filings. The responses shall
be filed no later than January 22, 2021.

IT IS FURTHER ORDERED that the parties shall submit a proposed order that lists
each deadline to be extended, and the corresponding proposed date for each deadline. The Court
will not sign a generic Order in the form submitted by Plaintiffs.

NOTE: Due to the spread of COVID-19, the Arizona Supreme Court Administrative
Order 2020-197 requires all individuals entering a court facility to wear a mask or face covering
at all times they are in the court facility. With limited exceptions, the court will not provide
masks or face coverings. Therefore, any individual attempting to enter the court facility must
have an appropriate mask or face covering to be allowed entry to the court facility. Any person

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

01/13/2021

Docket Code 019
Form V000A
Page 2

who refuses to wear a mask or face covering as directed will be denied entrance to the court
facility or asked to leave. In addition, all individuals entering a court facility will be subject to a
health screening protocol. Any person who does not pass the health screening protocol will be
denied entrance to the court facility.

Due to social distancing requirements, only the parties, their respective attorneys, and one
witness will be allowed in the Courtroom. Any additional witnesses will have to remain outside
the courtroom until they are called to testify. The Court will designate where each person will be
located in the courtroom.

Clerk of the Superior Court

*** Electronically Filed ***

01/24/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

01/22/2020

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
A. Wood

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
COMM. POPHAM
JUDGE CAMPAGNOLO

MINUTE ENTRY

This Court has received Plaintiff’s e-filed Application/Motion for Default against
Defendant(s), Dana V. Schwartz in the above-captioned case.

IT IS ORDERED that no action will be taken by this division on the above-referenced
document(s).

The parties are advised that commissioners handle Rule 55(b) Default Judgment
proceedings and that the default proceedings in this matter are to be heard by Commissioner
Popham.

IT IS ORDERED that all documents necessary to support the entry of a default judgment
must be e-filed.

Pursuant to the Maricopa County eFiling Guidelines, Section 2.09, attorneys shall
electronically file all the documents required to request a default judgment, such as the Application for

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

01/22/2020

Docket Code 023
Form V000A
Page 2

Entry of Default, Motion for Entry of Default Judgment, Sum Certain Affidavit, and Application for
Attorneys’ Fees when appropriate and Statement of Costs, but shall submit a default judgment packet
required by the Court, including the documents identified on the default judgment packet coversheet,
in paper to the assigned commissioner’s division. A commissioner will not act upon a Motion for Entry
of Default Judgment until the default judgment packet with all the required documents has been
received by the division in paper form.

The parties/counsel can find additional information in the form of frequently asked questions
at: http://www.superiorcourt.maricopa.gov/SuperiorCourt/CivilDepartment/howDoI.asp

Clerk of the Superior Court

*** Electronically Filed ***

02/04/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

02/03/2021

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
E. Wolf

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JUDGE CAMPAGNOLO

MINUTE ENTRY

The Court has received Plaintiff’s Statement of Facts in Support of Partial Summary
Judgment as to Count Two of Plaintiff’s Complaint Only which the Court cannot consider because
the Motion does not comply with the Court’s protocol on bookmarking/hyperlinking exhibits.

IT IS ORDERED rejecting Plaintiff’s Statement of Facts in Support of Partial Summary
Judgment as to Count Two of Plaintiff’s Complaint Only for failure to comply with the Court’s
protocol on bookmarking/hyperlinking exhibits.

IT IS FURTHER ORDERED that Plaintiff shall refile the Statement of Facts in Support
of Partial Summary Judgment as to Count Two of Plaintiff’s Complaint Only in compliance with
the Court’s protocol on bookmarking/hyperlinking exhibits no later than February 17, 2021.

**Counsel please review the information below**

Motions with Exhibits: Bookmarking and hyperlinking in pleadings is encouraged. See
Rule 5.2(c)(3)(A), Ariz. R. Civ. P. All e-filed pleadings, including, but not limited to, summary

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

02/03/2021

Docket Code 019
Form V000A
Page 2

judgment pleadings, that contain more than 5 exhibits shall contain bookmarks/hyperlinks to all
exhibits attached to your pleading(s). All bookmarks/hyperlinks must be contained in your e-filed
pleading in pdf format. The bookmarking/hyperlinking to exhibits is crucial, so that the Court can
readily locate an exhibit without undue delay. The Court does not want hard copies of the exhibits,
and the Court does not want the materials on thumb drive or email. DO NOT bookmark or
hyperlink case citations. Any bookmarks/hyperlinks to any websites or the internet (e.g., Westlaw)
will not work. Failure to provide the bookmarks/hyperlinks as required above will result in the
issuance of a Minute Entry rejecting the pleading. The party will be required to efile a new pleading
with proper bookmarking/hyperlinking no later than 14 days after the filing of the Minute Entry
rejecting the original pleading. The Court reserves the right to disallow any pleadings that are not
re-efiled within 14 days. You may obtain further information on e-filing with
bookmarks/hyperlinks under Section 2.03(b) of the following webpage:
https://efiling.clerkofcourt.maricopa.gov/efilingguidelines/#formattofefileddocuments

I am aware that some attempted bookmarkings/hyperlinkings may be unsuccessful due to
software incompatibility with the Clerk's software, or because the documents' size exceeds the
Clerk's capacity. In those situations, upon the filing of a notice to that effect signed by the party's
attorney, the bookmarked/hyperlinked document may be submitted to the Court on a CD.

Motion Practice: Motions, responses and related pleadings shall comply with the length
and other requirements of the Rules. If an extension of response or reply time is necessary, try to
reach agreement among the parties, and then submit a stipulation. If you file a motion for leave to
exceed the page length of a pleading, you will need to provide specific reasons. A generic statement
that
you
need
more
pages
may
result
in
denial
of
your
motion.

This division requires that all motions, responses, replies and other Court requested filings
in this case must be submitted individually. The parties shall not combine any motion with a
responsive pleading. All motions are to be filed separately and designated as such. No pleadings
will be accepted if filed in combination with another. Motions or stipulations shall be efiled with
proposed orders. ALL proposed orders when applicable, shall be efiled in Word format.

Clerk of the Superior Court

*** Electronically Filed ***

02/12/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

02/10/2021

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
D. Charbagi

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JUDGE CAMPAGNOLO

MINUTE ENTRY

The Court is in receipt of Plaintiff’s Motion to Extend Case Deadlines, Uniformly filed
December 17, 2020, Defendant Beatrice Lee Baron’s Certificate of No Objection to Extend Case
Deadlines filed January 22, 2021, and Defendants Dove Valley Ranch Community Association,
and Michaels D. Schwartz’s Notice of Non-Opposition to Motion to Extend Case Deadlines filed
January 25, 2021. The motion does not contain specific proposed deadlines. The Court will not
consider an Order that contains generic deadlines, which may cause confusion and future
scheduling disputes.

IT IS ORDERED rejecting Plaintiff’s Motion to Extend Case Deadlines, Uniformly filed
December 17, 2020. The parties shall submit a proposed Amended Scheduling Order with specific
deadlines no later than February 26, 2021.

Clerk of the Superior Court

*** Electronically Filed ***

02/28/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

02/26/2019

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
K. Hartley

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JUDGE CAMPAGNOLO

MINUTE ENTRY

The Court has reviewed and considered the Motion to Dismiss with Prejudice filed by
Defendant Bea Baron (Baron), Plaintiffs’ Response thereto, Baron’s Reply, the Complaint, and
the applicable law. The Court finds that oral arguments would not significantly assist the Court in
ruling on the Motion.

Baron contends that the Complaint fails to state a claim for relief against her as to any of
the causes of action contained therein, pursuant to Rule 12(b)(6) of the Arizona Rules of Civil
Procedure. Baron attached a number of documents as exhibits to its Motion. In considering a
motion to dismiss for failure to state a claim, if the trial court considers matters outside the
pleadings (extraneous matters), it must treat the motion as a Rule 56 motion for summary judgment
and allow the non-movant a reasonable opportunity to present all pertinent material in response.
Strategic Development and Construction, Inc. v. 7th and Roosevelt Partners, LLC, 224 Ariz. 60,
¶1 (App. 2010). Matters of public record or matters that are central to a complaint are not
considered “extraneous matters.” Id. Referring to documents attached to a complaint are not
extraneous matters. Id. at ¶10. However, none of the exhibits attached to the Motion were attached

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

02/26/2019

Docket Code 019
Form V000A
Page 2

to the Complaint. The Court finds that all of the exhibits attached to the Motion, with the possible
exception of Exhibit F, are extraneous matters, which attempt to create issues of fact. Exhibit F
appears to be a page from the “CCR’s” of the Homeowners Association. Generally, such CCR’s
are filed of public record, thereby removing them from the category of extraneous matters.
However, Baron failed to provide evidence of such a public filing. Therefore, the Court finds that
Exhibit F is also an extraneous matter, and cannot be considered by the Court in a Rule 12(b)(6)
proceeding. The Court does not believe this matter is ripe for summary judgment consideration.
Therefore, Exhibits A through F attached to the Motion to Dismiss are extraneous matters, and the
Court has not considered them in making its determination on the Motion to Dismiss.

As a general policy matter, Rule 12(b)(6) motions are not favored under Arizona law. State
ex rel. Corbin v. Pickrell, 136 Ariz. 589, 594 (1983). That is especially true when such motions
are based on pleading insufficiencies. See e.g., Rowland v. Kellogg Brown & Root, Inc., 210 Ariz.
530, ¶10 (App. 2005) (reversing summary judgment for defendant and recognizing sufficiency of
complaint despite numerous technical deficiencies in the document).

The court assumes the truth of plaintiff's factual allegations when analyzing a complaint
for failure to state a claim upon which relief can be granted. Hogan v. Washington Mutual Bank,
N.A., 230 Ariz. 584 (2012). Arizona follows a notice pleading standard. Coleman v. City of Mesa,
230 Ariz. 352, 356 (2012). Rule 8 of the Arizona Rules of Civil Procedure provides that a plaintiff
must provide a “short and plain statement of the claim showing that the pleader is entitled to relief.”
The purpose of a complaint is to give the opponent fair notice of the nature and basis of the claim
and indicate generally the type of litigation involved. Cullen v. Auto-Owners Insurance Co., 218
Ariz. 417, ¶7 (2008). A complaint that states only legal conclusions, without supporting factual
allegations, does not comply with Rule 8’s notice pleading standard. Cullen v. Auto-Owners
Insurance Co., 218 Ariz. 417, ¶7 (2008). A Court cannot accept as true allegations consisting of
conclusions of law, inferences or deductions that are not necessarily implied by well-pleaded facts,
unreasonable inferences or unsupported conclusions from such facts, or legal conclusions alleged
as facts. Jeter v. Mayo Clinic Arizona, 211 Ariz. 386, 389 (App. 2005).

The Court finds that the Complaint sufficiently alleges causes of action as pled against
Baron. The Complaint adequately asserts facts to support its allegations and legal conclusions that
Baron breached her contractual duties under the CCR’s as to a party wall dispute, and interfered
with a contract between Plaintiffs and the Association. By virtue of adequately alleging a breach
of contract, Plaintiff has also adequately alleged a breach of the covenant of good faith and fair
dealing, because such a covenant is implied in every contract. Kuehn v. Stanley, 208 Ariz. 124,
¶29 (App. 2004).

Additionally, the Complaint adequately alleges a cause of action for aiding and abetting a
fiduciary duty held by the Association. The Court finds that it is unclear whether or not a

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

02/26/2019

Docket Code 019
Form V000A
Page 3

homeowners association or the association’s board of directors owes a fiduciary duty to a member
of the association, and under what circumstances such a duty may or may not exist. In Rohde v.
Beztak of Arizona, Inc., 164 Ariz. 383,388 (App. 1990), the Court of Appeals held that no such
duty exists. However, a subsequent appellate decision held that, on remand, the trial court should
have considered the plaintiff’s claim of breach of fiduciary duty in a homeowners association
lawsuit. Johnson v. Pointe Community Association, Inc., 205 Ariz. 485, ¶38 (App. 2003). Arizona
law implies a duty upon a homeowners association to treat members fairly and to act reasonably
in the exercise of its discretionary powers including rulemaking, enforcement, and design-control
powers. Tierra Ranchos Homeowners Association v. Kitchukov, 216 Ariz. 195, ¶25 (App. 2007).
This is not the appropriate avenue to interpret this area of the law without substantially more
briefing, perhaps in a summary judgment proceeding.

The Court noted that Baron’s Motion repeatedly argued that the allegations in the
Complaint were false or wrong. A motion to dismiss is not a procedure for resolving disputes about
the facts or merits of a case. Coleman v. City of Mesa, 230 Ariz. 352, ¶46 (2012). Instead, the
narrow question presented by a Rule 12(b)(6) motion is whether facts alleged in a complaint are
sufficient to warrant allowing a plaintiff to attempt to prove his or her case. Id. Dismissal is
permitted only when a plaintiff would not be entitled to relief under any interpretation of the facts
susceptible of proof. Fidelity Security Life Insurance. Co. v. State Department of Insurance, 191
Ariz. 222, ¶4 (1998).

If a complaint reasonably states a cause of action under Rule 8, the motion must be denied.
The more effective and efficient way to deal with the issue is through the disclosure and discovery
process. See e.g., State ex. rel. Corbin, 136 Ariz. at 594. If disclosure and discovery fail to establish
proof sufficient to meet the plaintiffs’ prima facie burden, then Baron is allowed to file a motion
for summary judgment under the principle stated in Orme School v. Reeves, 166 Ariz. 301, 310
(1990).

The Complaint sufficiently states the elements of the causes of action and states claims
for relief as to each count against Baron, pursuant to Rule 8. It is not subject to dismissal under
Rule 12(b)(6).

The Court also noted that the pleadings from both sides contained language of a personal
nature criticizing the opposing party or parties, opposing counsel and the other side’s arguments.
The Court believes that such personalized criticisms against the other side do not advance either
side’s substantive arguments, and certainly do not assist the Court in making its decision. In fact,
such unnecessary language generally detracts from counsel’s arguments. The Court understands
that the parties themselves may not like each other. A primary purpose of having legal counsel is
to serve as a buffer of such sentiments, rather than to adopt the clients’ personal sentiments towards

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

02/26/2019

Docket Code 019
Form V000A
Page 4

the other side in the pleadings. The Court is hopeful that it will not see any further examples of
this.

IT IS ORDERED that Defendant Bea Baron’s Motion to Dismiss with Prejudice is
DENIED.

Clerk of the Superior Court

*** Electronically Filed ***

03/06/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

02/27/2019

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
K. Hartley

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JUDGE CAMPAGNOLO

MINUTE ENTRY

The Court is in receipt of Plaintiff’s Response to Defendant, Dove Valley Ranch
Community Association’s Motion for Judgment on the Pleadings and Cross-Motion for
Judgment on the Pleadings as to Counts One, filed January 4, 2019.

The above-mentioned pleading combines a response to the Motion for Summary Judgment
and a Cross-Motion for Summary Judgment. The Court’s protocol regarding motions states:

“This division requires that all motions, responses, replies and other Court
requested filings in this case must be submitted individually. The parties
shall not combine any motion with a responsive pleading. All motions are
to be filed separately and designated as such. No pleadings will be accepted
if filed in combination with another.”

IT IS THEREFORE ORDERED rejecting Plaintiff’s above pleading.

IT IS FURTHER ORDERED Plaintiff shall refile by separate pleadings, the Response
to Defendant, Dove Valley Community Association and the Cross-motion for Judgment on the

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

02/27/2019

Docket Code 023
Form V000A
Page 2

Pleadings as to Count One no later than 10 days from the date of this minute entry. The Response
and Reply deadlines under the Rules of Civil Procedure apply upon the refiling of the pleadings.

**Counsel please review the information below**

Becoming familiar with the Court’s requirements is crucial, failure to comply with any of
the requirements can and will delay any resolution to the issue.

Counsel are encouraged to visit Judge Campagnolo’s online profile for information on
the Court’s expectations regarding motion practices and requirements, discovery disputes, and
hearing/trial procedures at the following website:
http://www.superiorcourt.maricopa.gov/JudicialBiographies/judges/profile.asp?jdgID=327&jdg
USID=12118

Clerk of the Superior Court

*** Electronically Filed ***

03/06/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

02/28/2019

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
K. Hartley

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JUDGE CAMPAGNOLO

MINUTE ENTRY

The Court is in receipt of the following pleadings:

1. Defendant Dove Valley Ranch Community Association’s Request for Judicial Notice
in Support of Motion for Summary Judgment on the Pleadings filed November 16,
2018.
2. Defendant Dove Valley Ranch Community Association’s Motion to Exceed Page Limit
filed January 16, 2019.
3. Defendant Michael S. Schwartz’s Request for Judicial Notice in Support of Motion to
Dismiss filed January 23, 2019.

The above-mentioned pleadings were not accompanied with a proposed form of order in
Word format.

IT IS THEREFORE ORDERED rejecting the above-mentioned pleadings. The parties
may refile the pleadings with an order in Word format.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

02/28/2019

Docket Code 023
Form V000A
Page 2

**Counsel please review the information below**

Becoming familiar with the Court’s requirements is crucial, failure to comply with any of
the requirements can and will delay any resolution to the issue.

Counsel are encouraged to visit Judge Campagnolo’s online profile for information on
the Court’s expectations regarding motion practices and requirements, discovery disputes, and
hearing/trial procedures at the following website:
http://www.superiorcourt.maricopa.gov/JudicialBiographies/judges/profile.asp?jdgID=327&jdg
USID=12118

Clerk of the Superior Court

*** Electronically Filed ***

03/08/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

03/04/2019

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
K. Hartley

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JUDGE CAMPAGNOLO

MINUTE ENTRY

The Court has reviewed and considered Defendant Michael Schwartz’s Motion to Dismiss,
Plaintiffs’ Response thereto, Defendant’s Reply, the Complaint, and the applicable law.

Defendant Michael Schwartz (Schwartz) contends that the Complaint fails to state a claim
for relief as to any of the causes of action against him, pursuant to Rule 12(b)(6) of the Arizona
Rules of Civil Procedure. Schwartz’ Motion pertains to Counts 1, 4, 5, 6, 7 and 8 of the Complaint.
Schwartz filed a separate pleading, asking the Court to take judicial notice of Exhibit 1 to his
Motion, which is a copy of the Declaration of Covenants, Conditions, Restrictions, Assessments,
Charges, Servitudes, Liens, Reservations and Easements for Dove Valley Ranch (the CCR). In
considering a motion to dismiss for failure to state a claim, if the trial court considers matters
outside the pleadings (extraneous matters), it must treat the motion as a Rule 56 motion for
summary judgment and allow the non-movant a reasonable opportunity to present all pertinent
material in response. Strategic Development and Construction, Inc. v. 7th and Roosevelt Partners,
LLC, 224 Ariz. 60, ¶1 (App. 2010). Matters of public record or matters that are central to a
complaint are not considered “extraneous matters.” Id. Referring to documents attached to a
complaint are not extraneous matters. Id. at ¶10. Schwartz’ Request for Judicial Notice in Support

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

03/04/2019

Docket Code 023
Form V000A
Page 2

of Motion to Dismiss pertaining to the CCR is granted, because the CCR is central to the Complaint
and because it was filed with the County Recorder, which makes it a public record. Further,
Plaintiff’s Response agreed that it should be allowed. Therefore, the Court finds that Exhibit 1 to
the Motion to Dismiss (the CCR) is not an extraneous matter, and it can be considered by the Court
in a Rule 12(b)(6) proceeding.

As a general policy matter, Rule 12(b)(6) motions are not favored under Arizona law. State
ex rel. Corbin v. Pickrell, 136 Ariz. 589, 594 (1983). That is especially true when such motions
are based on pleading insufficiencies. See e.g., Rowland v. Kellogg Brown & Root, Inc., 210 Ariz.
530, ¶10 (App. 2005) (reversing summary judgment for defendant and recognizing sufficiency of
complaint despite numerous technical deficiencies in the document).

The court assumes the truth of plaintiff's factual allegations when analyzing a complaint
for failure to state a claim upon which relief can be granted. Hogan v. Washington Mutual Bank,
N.A., 230 Ariz. 584 (2012). Arizona follows a notice pleading standard. Coleman v. City of Mesa,
230 Ariz. 352, 356 (2012). Rule 8 of the Arizona Rules of Civil Procedure provides that a plaintiff
must provide a “short and plain statement of the claim showing that the pleader is entitled to relief.”
The purpose of a complaint is to give the opponent fair notice of the nature and basis of the claim
and indicate generally the type of litigation involved. Cullen v. Auto-Owners Insurance Co., 218
Ariz. 417, ¶7 (2008). A complaint that states only legal conclusions, without supporting factual
allegations, does not comply with Rule 8’s notice pleading standard. Cullen v. Auto-Owners
Insurance Co., 218 Ariz. 417, ¶7 (2008). A Court cannot accept as true allegations consisting of
conclusions of law, inferences or deductions that are not necessarily implied by well-pleaded facts,
unreasonable inferences or unsupported conclusions from such facts, or legal conclusions alleged
as facts. Jeter v. Mayo Clinic Arizona, 211 Ariz. 386, 389 (App. 2005).

Count 1: Breach of Contract – Governing Documents
Count 5: Breach of Duty of Good Faith and Fair Dealing

Count 1 alleges breach of contract against all of the Defendants, including Schwartz.
During the relevant time period of the Complaint, Schwartz was a member of the Association’s
Board of Directors. Schwartz contends that the CCR is a contract between the Association and the
individual members, and not between the individual members and board members. Plaintiff
contends that Schwartz, as a member of the Board, committed individual wrongful acts on behalf
of the Board that caused the Association to take allegedly wrongful action against Plaintiff.

A corporation will generally be treated as a legal entity until sufficient reason appears to
disregard the corporate form. Dietel v. Day, 16 Ariz. App. 206, 208 (1972). However, if a board
member acts independently to cause a board to take action, that director may be personally liable.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

03/04/2019

Docket Code 023
Form V000A
Page 3

See Dawson v. Withycombe, 216 Ariz. 84, ¶47 (App. 2007)(directors can be liable for torts in
which they were personally involved or to which they acquiesced in board action). Further, a
director can be liable for his own acts under A.R.S. §10-3830. The Complaint alleges individual
action allegedly committed by Schwartz that resulted in the Board taking adverse action against
Plaintiff. The Complaint adequately asserts facts to support its allegations and legal conclusions
that Schwartz breached the CCR in his capacity as a board member. By virtue of adequately
alleging a breach of contract, Plaintiff has also adequately alleged a breach of the covenant of good
faith and fair dealing in Count 5, because such a covenant is implied in every contract. Kuehn v.
Stanley, 208 Ariz. 124, ¶29 (App. 2004).

Count 4: Negligence Per Se - Schwartz

Count 4 alleges negligence per se against Schwartz. Schwartz contends that he cannot be
found liable for negligence per se as a matter of law under the statute listed in Count 4. Count 4
asserts that the statute upon which negligence per se would attach is A.R.S. §10-3830, which
provides, in pertinent part:

A. A director’s duties, including duties as a member of a committee, shall be discharged:

1. In good faith.

2. With the care an ordinarily prudent person in a like position would exercise under
similar circumstances.

3. In a manner the director reasonably believes to be in the best interests of the
corporation.

B. In discharging duties, a director is entitled to rely on information, opinions, reports or
statements, including financial statements and other financial data, if prepared or
presented by any of the following:

1. One or more officers or employees of the corporation whom the director reasonably
believes are reliable and competent in the matters presented.

2. Legal counsel, public accountants or other person as to matters the director reasonably
believes are within the person’s professional or expert competence.

3. A committee of or appointed by the board of directors of which the director is not a
member if the director reasonably believes the committee merits confidence.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

03/04/2019

Docket Code 023
Form V000A
Page 4

Negligence per se applies when a person violates a specific legal requirement. Reyes v.
Frank’s Service and Trucking, LLC, 235 Ariz. 605, ¶¶34-5 (App. 2014). The statute must
proscribe certain or specific acts; if a statute defines only a general standard of care, negligence
per se is inappropriate. Id. The Court finds that A.R.S. §10-3830 refers to acting “in good faith,”
as “an ordinarily prudent person” would do in a manner that the director “reasonably believes” is
in the best interests of the corporation. This language defines a standard of care. It does not contain
the certainty or specificity required to invoke negligence per se.

The Court notes that Plaintiff’s Response, putting aside its unnecessary stridency and
hyperbole, did not even address this issue. It appears that Plaintiff’s Response on this count
mistakenly pertained to Count 3, which is not alleged against Schwartz, rather than Count 4.

As a matter of law, Count 4 does not state a claim for relief as pled.

Count 6: Interference with Contract – Escrow Agreement [Real Estate Purchase Contract]

Plaintiff admitted that Count 6 referred to an Escrow Agreement, when it should have
referred to the real estate purchase contract. The Court finds that this was an inadvertent mistake,
and the Court will presume from a reading of the entire Complaint that the alleged interference
pertained to the real estate purchase contract. The Court will grant leave to Plaintiff to amend the
Complaint to make this change.

Plaintiff has adequately alleged that Schwartz interfered with the real estate purchase
contract. The Complaint contains numerous fact-based allegations as to Schwartz’ alleged acts to
delay or derail the consummation of Plaintiff’s real estate purchase contract.

Count 7: Breach of Fiduciary Duty/Negligence

The Court finds that it is unclear whether or not a homeowners association or the
association’s board of directors owes a fiduciary duty to a member of the association, and under
what circumstances such a duty may or may not exist. In Rohde v. Beztak of Arizona, Inc., 164
Ariz. 383,388 (App. 1990), the Court of Appeals held that no such duty exists. However, a
subsequent appellate decision held that, on remand, the trial court should have considered the
plaintiff’s claim of breach of fiduciary duty in a homeowner’s association lawsuit. Johnson v.
Pointe Community Association, Inc., 205 Ariz. 485, ¶38 (App. 2003). Arizona law implies a duty
upon a homeowners association to treat members fairly and to act reasonably in the exercise of its
discretionary powers including rulemaking, enforcement, and design-control powers. Tierra
Ranchos Homeowners Association v. Kitchukov, 216 Ariz. 195, ¶25 (App. 2007). This is not the
appropriate avenue to interpret this area of the law without substantially more briefing, perhaps in
a summary judgment or other pre-trial proceeding.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

03/04/2019

Docket Code 023
Form V000A
Page 5

As to the negligence component of Count 7, a director can be liable for his own negligence
while acting as a board member. Dawson v. Withycombe, 216 Ariz. 84, ¶47 (App. 2007).

For purposes of a 12(b)(6) proceeding, Plaintiff has adequately alleged a cause of action
for breach of fiduciary duty and negligence.

Count 8: Aiding and Abetting Breach of Fiduciary Duty

For the same reasons stated as to Count 7, Plaintiff has adequately alleged a cause of action
for aiding and abetting a breach of fiduciary duty.

The Rule 12(b)(6) Standard is not the Same as a Rule 56 Standard

A motion to dismiss is not a procedure for resolving disputes about the facts or merits of a
case. Coleman v. City of Mesa, 230 Ariz. 352, ¶46 (2012). Instead, the narrow question presented
by a Rule 12(b)(6) motion is whether facts alleged in a complaint are sufficient to warrant allowing
a plaintiff to attempt to prove his or her case. Id. Dismissal is permitted only when a plaintiff would
not be entitled to relief under any interpretation of the facts susceptible of proof. Fidelity Security
Life Insurance. Co. v. State Department of Insurance, 191 Ariz. 222, ¶4 (1998).

If a complaint reasonably states a cause of action under Rule 8, the motion must be denied.
The more effective and efficient way to deal with the issue is through the disclosure and discovery
process. See e.g., State ex. rel. Corbin, 136 Ariz. at 594. If disclosure and discovery fail to establish
proof sufficient to meet the plaintiffs’ prima facie burden, then Baron is allowed to file a motion
for summary judgment under the principle stated in Orme School v. Reeves, 166 Ariz. 301, 310
(1990).

The Complaint sufficiently states the elements of the causes of action and states claims for
relief as to each count against Schwartz, pursuant to Rule 8, except for Count 4.

Unnecessary Language by Plaintiff’s Counsel

Plaintiff’s counsel’s Response contained numerous examples of petty insults, derogatory
statements, and unnecessary commentary pertaining to Schwartz, his lawyer and/or Schwartz’
Motion. Such language included the following words, phrases or sentences:

 “Shockingly….”
 Schwartz’ “unfounded assertions and misdirection….”
 “…failing to substantiate argument of its counsel at all”

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

03/04/2019

Docket Code 023
Form V000A
Page 6

 The “Motion fails to be grounded in any good faith argument”
 Schwartz should have “simply [read] the Complaint and should not have been made to
waste this Court’s time”
 Schwartz “should be sanctioned for defending against these claims without substantial
justification”
 Schwartz’ “authorities and unsupported argument of counsel [as to] Counts I and V is
misleading, at best”
 “the argument constitutes a violation of counsel’s duty of candor to this Court
embodied within the Rules of Professional Conduct”
 “Schwartz “audaciously states without basis….”
 Schwartz’ arguments “are not only ridiculous, but also are utterly insufficient”
 “Schwartz’ unsupported and ludicrous argument….”
 “Despite [Schwartz’ counsel’s] superficial read of §10-11601(F)….” [As noted above,
Plaintiff’s counsel was arguing about a count unrelated to Schwartz]
 “Schwartz offers no support or even argument that rationally approaches….”
 “Schwartz’ entire argument is based upon dicta this Court may simply ignore”
 “Schwartz’ failure to properly apprise the Court of this fact has again caused these
proceedings to be expanded for no reason”
 “No authority supports Schwartz’ position” on breach of fiduciary duty [even though
Defendant cited specific authority on his position]
 Accusing Schwartz’ counsel of having an inherent conflict of interest
 “Schwartz baldly asserts….”
 “Schwartz’ argument…constitutes an attempt to mislead the Court and is a clear
violation of Schwartz’ obligations to disclose adverse authorities, properly apprise the
Court and Schwartz’ counsel’s duty of candor to this Court”
 “If Schwartz intended to deceive this Court…”

There is absolutely no reason for including such invectives and hyperbolic adjectival
sentences in a court pleading. The Court believes that such personalized criticisms are counter-
productive and raise potential issues of lack of professionalism. Such uncivil commentary breeds
more uncivil commentary. For example, in this case, Schwartz’ Motion stated the facts and the
law as he perceived them in a customary and professional manner. The Motion did not contain any
insults against Plaintiff. After reading Plaintiff’s Response, which contains the comments
mentioned above, Schwartz’ Response then stooped to the level of hurling invectives and insults
against Plaintiff’s lawyer.

Additionally, Plaintiff’s counsel repeatedly requested that sanctions be imposed, basically
on the ground that Schwartz’ arguments were baseless, and that it was presumptuous of him to
even seek dismissal under Rule 12(b)(6). Merely because the Court has denied the bulk of

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

03/04/2019

Docket Code 023
Form V000A
Page 7

Schwartz’ Motion does not mean that his arguments were baseless. The Court will not impose the
requested sanctions.

If the tone of the Response was a one-time anomaly, the Court would not be highlighting
this issue as much. However, in the Court’s Minute Entry denying Defendant Baron’s motion to
dismiss, filed on February 28, 2019, the Court observed the same type of tone in Plaintiff’s
Response, and found it to be inappropriate. Since this appears to be a pattern in Plaintiff’s
pleadings, the Court admonishes Plaintiff’s counsel to refrain from further unnecessary language
to avoid the possibility that the Court may consider imposing sanctions against them.

IT IS ORDERED that Defendant Michael Schwartz’s Schwartz’ Request for Judicial
Notice in Support of Motion to Dismiss is granted.

IT IS FURTHER ORDERED that Michael Schwartz’ Motion to Dismiss is granted in part
and denied in part.

IT IS FURTHER ORDERED that leave is granted to Plaintiff to amend the Complaint to
change the references in Count 6 from “escrow agreement” to “real estate purchase contract.”

IT IS FURTHER ORDERED that Defendant Michael Schwartz’s Motion to Dismiss is
granted as to Count 4 entitled “Negligence Per Se – Schwartz,” which Count is dismissed.

IT IS FURTHER ORDERED that, except as granted above, Defendant Michael Schwartz’s
Motion to Dismiss is denied.

IT IS FURTHER ORDERED that Plaintiff’s request for sanctions is denied.

IT IS FURTHER ORDERED that Defendant Michael Schwartz shall file an Answer to
the Complaint no later than March 22, 2019.

Clerk of the Superior Court

*** Electronically Filed ***

03/18/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

03/14/2019

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
K. Hartley

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JUDGE CAMPAGNOLO

MINUTE ENTRY

The Court has reviewed and considered Defendant Dove Valley Ranch Community
Association’s Motion for Judgment on the Pleadings, Plaintiffs’ Response thereto, Defendant’s
Reply, Bea Baron’s Joinder of Co-Defendant’s Motion for Judgment on the Pleadings, the
Complaint, and the applicable law.

Defendant Dove Valley Ranch Community Association (the HOA) contends that the
Complaint fails to state a claim for relief under Rule 12(c) of the Arizona Rules of Civil Procedure
as to Counts 1, 3 and 7. A Rule 12(c) motion tests the sufficiency of the complaint, and should be
granted if the complaint fails to state a claim for relief. Save Our Valley Association v. Arizona
Corporation Commission, 216 Ariz. 216, ¶6 (App. 2007); Emmett McLoughlin Realty, Inc. v. Pima
County, 203 Ariz. 557, ¶4 (App. 2002); Giles v. Hill Lewis Marce, 195 Ariz. 358, ¶2 (App. 1999).
On a motion for judgment on the pleadings, all of the allegations of the opposing party’s pleadings
must be accepted as true, and the moving party is entitled to judgment only if the position of the
opposing party, as stated in its pleadings, clearly entitles the moving party to judgment. Wenrich
v. Household Finance Corp., 5 Ariz. App. 335, 338 (1967).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

03/14/2019

Docket Code 019
Form V000A
Page 2

The HOA filed a separate pleading, asking the Court to take judicial notice of Exhibit 1 to
its Request, which is a copy of the Declaration of Covenants, Conditions, Restrictions,
Assessments, Charges, Servitudes, Liens, Reservations and Easements for Dove Valley Ranch (the
CCR). The HOA’s Request for Judicial Notice in Support of Motion for Judgment on the Pleadings
is granted, because the Court considered the CCR in Co-Defendant Schwartz’ Motion to Dismiss.

Rule 8 of the Arizona Rules of Civil Procedure provides that a plaintiff must provide a
“short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose
of a complaint is to give the opponent fair notice of the nature and basis of the claim and indicate
generally the type of litigation involved. Cullen v. Auto-Owners Insurance Co., 218 Ariz. 417, ¶7
(2008). A complaint that states only legal conclusions, without supporting factual allegations, does
not comply with Rule 8’s notice pleading standard. Cullen v. Auto-Owners Insurance Co., 218
Ariz. 417, ¶7 (2008). A Court cannot accept as true allegations consisting of conclusions of law,
inferences or deductions that are not necessarily implied by well-pleaded facts, unreasonable
inferences or unsupported conclusions from such facts, or legal conclusions alleged as facts. Jeter
v. Mayo Clinic Arizona, 211 Ariz. 386, 389 (App. 2005).

Count 1: Breach of Contract – Governing Documents

Count 1 alleges breach of contract against all of the Defendants, including the HOA. The
Complaint adequately asserts facts to support its allegations and legal conclusions that the HOA
breached the CCR.

Count 3: Negligence Per Se - Association

Count 3 alleges negligence per se against the HOA for alleged violations of A.R.S. §33-
1804 (Open Meetings) & §10-11601 (Corporate Records).

Negligence per se applies when a person violates a specific legal requirement. Reyes v.
Frank’s Service and Trucking, LLC, 235 Ariz. 605, ¶¶34-5 (App. 2014). The statute must proscribe
certain or specific acts; if a statute defines only a general standard of care, negligence per se is
inappropriate. Id. A statute “enacted for the public safety, or governmental regulations made in
pursuance thereof,” which provides that a certain thing must or must not be done, can invoke a
claim for negligence per se, if a failure to comply with the statute is the proximate cause of injury
to another. Griffith v. Valley of Sun Recovery and Adjustment Bureau, Inc., 126 Ariz. 227, 229
(App. 1980).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

03/14/2019

Docket Code 019
Form V000A
Page 3

Neither party provided any appellate authority that a violation of the Open Meetings or
Corporate Records statute is or is not a basis for a claim of negligence per se. Without further
briefing on this issue, this Court cannot determine it on the current pleadings. For purposes of a
Rule 12(c) proceeding, the Court finds that the HOA has not met its burden to obtain a dismissal
of Count 3.

Count 7: Breach of Fiduciary Duty/Negligence

The Court finds that it is unclear whether or not a homeowners association or the
association’s board of directors owes a fiduciary duty to a member of the association, and under
what circumstances such a duty may or may not exist. In Rohde v. Beztak of Arizona, Inc., 164
Ariz. 383,388 (App. 1990), the Court of Appeals held that no such duty exists. However, a
subsequent appellate decision held that, on remand, the trial court should have considered the
plaintiff’s claim of breach of fiduciary duty in a homeowner’s association lawsuit. Johnson v.
Pointe Community Association, Inc., 205 Ariz. 485, ¶38 (App. 2003). Arizona law implies a duty
upon a homeowners association to treat members fairly and to act reasonably in the exercise of its
discretionary powers including rulemaking, enforcement, and design-control powers. Tierra
Ranchos Homeowners Association v. Kitchukov, 216 Ariz. 195, ¶25 (App. 2007). This is not the
appropriate avenue to interpret this area of the law without substantially more briefing, perhaps in
a summary judgment or other pre-trial proceeding.

As to the negligence component of Count 7, the Court finds that the Complaint is not
limited to a contract claim, and, therefore, the economic loss rule does not apply.

The HOA has failed to meet its burden to obtain a Rule 12(c) dismissal of Count 7.
For purposes of a Rule 12(c) proceeding, Plaintiff has adequately alleged a cause of action for
breach of fiduciary duty and negligence.

IT IS ORDERED that Defendant Dove Valley Ranch Community Association’s Request
for Judicial Notice in Support of Motion for Judgment on the Pleadings is granted.

IT IS FURTHER ORDERED that Defendant Dove Valley Ranch Community
Association’s Motion for Judgment on the Pleadings is denied.

IT IS FURTHER ORDERED that Defendant Dove Valley Ranch Community Association
shall file an Answer to the Complaint no later than April 8, 2019.

Clerk of the Superior Court

*** Electronically Filed ***

04/08/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

04/07/2021

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
J. Holguin

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JUDGE CAMPAGNOLO

MINUTE ENTRY

The Court has received and reviewed Plaintiffs’’ Motion to Exceed Page Limitation, filed
on March 29, 2021.

IT IS ORDERED denying Plaintiffs’ Motion to Exceed Page Limitation, filed on March
29, 2021.

IT IS FURTHER ORDERED that Plaintiffs’ shall be in compliance with the page
limitations in Rule 7.1(a)(3) of the Rules of Civil Procedure.

**Counsel please review the information below**

Becoming familiar with the Court’s requirements is crucial; failure to comply with any of
the requirements can and will delay any resolution to the issue.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

04/07/2021

Docket Code 023
Form V000A
Page 2

Counsel are encouraged to visit Judge Campagnolo’s online profile for information on
the Court’s expectations regarding motion practices and requirements, discovery disputes, and
hearing/trial procedures at the following website:

http://www.superiorcourt.maricopa.gov/JudicialBiographies/judges/profile.asp?jdgID=32
7&jdgUSID=12118

NOTE: Due to the spread of COVID-19, the Arizona Supreme Court Administrative
Order 2020-197 requires all individuals entering a court facility to wear a mask or face covering
at all times they are in the court facility. With limited exceptions, the court will not provide
masks or face coverings. Therefore, any individual attempting to enter the court facility must
have an appropriate mask or face covering to be allowed entry to the court facility. Any person
who refuses to wear a mask or face covering as directed will be denied entrance to the court
facility or asked to leave. In addition, all individuals entering a court facility will be subject to a
health screening protocol. Any person who does not pass the health screening protocol will be
denied entrance to the court facility.

Clerk of the Superior Court

*** Electronically Filed ***

04/19/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

04/14/2021

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
J. Holguin

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JUDGE CAMPAGNOLO

MINUTE ENTRY

The Court has received Defendants Dove Valley Ranch Community Association and
Michael D. Schwartz’s Volume of Exhibits in Support of Dove Valley Ranch Community
Associations’ Statement of Facts in Opposition to Plaintiffs’ Motion for Partial Summary
Judgment, filed on March 3, 2021, which the Court cannot consider because the Motion does not
comply with the Court’s protocol on bookmarking/hyperlinking exhibits.

IT IS ORDERED rejecting Defendants Dove Valley Ranch Community Association and
Michael D. Schwartz’s Volume of Exhibits in Support of Dove Valley Ranch Community
Associations’ Statement of Facts in Opposition to Plaintiffs’ Motion for Partial Summary
Judgment, filed on March 3, 2021for failure to comply with the Court’s protocol on
bookmarking/hyperlinking exhibits.

IT IS FURTHER ORDERED that Defendants shall refile the said Motion in
compliance with the Court’s protocol on bookmarking/hyperlinking exhibits no later than April
28, 2021.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

04/14/2021

Docket Code 023
Form V000A
Page 2

**Counsel please review the information below**

Motions with Exhibits: Bookmarking and hyperlinking in pleadings is encouraged. See
Rule 5.2(c)(3)(A), Ariz. R. Civ. P. All e-filed pleadings, including, but not limited to, summary
judgment pleadings, that contain more than 5 exhibits shall contain bookmarks/hyperlinks to all
exhibits attached to your pleading(s). All bookmarks/hyperlinks must be contained in your e-
filed pleading in pdf format. The bookmarking/hyperlinking to exhibits is crucial, so that the
Court can readily locate an exhibit without undue delay. The Court does not want hard copies of
the exhibits, and the Court does not want the materials on thumb drive or email. DO NOT
bookmark or hyperlink case citations. Any bookmarks/hyperlinks to any websites or the internet
(e.g., Westlaw) will not work. Failure to provide the bookmarks/hyperlinks as required above
will result in the issuance of a Minute Entry rejecting the pleading. The party will be required to
efile a new pleading with proper bookmarking/hyperlinking no later than 14 days after the filing
of the Minute Entry rejecting the original pleading. The Court reserves the right to disallow any
pleadings that are not re-efiled within 14 days. You may obtain further information on e-filing
with bookmarks/hyperlinks under Section 2.03(b) of the following webpage:
https://efiling.clerkofcourt.maricopa.gov/efilingguidelines/#formattofefileddocuments

I am aware that some attempted bookmarkings/hyperlinkings may be unsuccessful due to
software incompatibility with the Clerk's software, or because the documents' size exceeds the
Clerk's capacity. In those situations, upon the filing of a notice to that effect signed by the party's
attorney, the bookmarked/hyperlinked document may be submitted to the Court on a CD.

Motion Practice: Motions, responses and related pleadings shall comply with the length
and other requirements of the Rules. If an extension of response or reply time is necessary, try to
reach agreement among the parties, and then submit a stipulation. If you file a motion for leave
to exceed the page length of a pleading, you will need to provide specific reasons. A generic
statement that you need more pages may result in denial of your motion.

This division requires that all motions, responses, replies and other Court requested filings
in this case must be submitted individually. The parties shall not combine any motion with a
responsive pleading. All motions are to be filed separately and designated as such. No pleadings
will be accepted if filed in combination with another. Motions or stipulations shall be efiled with
proposed orders. ALL proposed orders when applicable, shall be efiled in Word format.

The Court’s under advisement time period shall be extended by one week due to the
delay caused by the need for the amended response to be re-filed in compliance with this Court’s
protocols.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

04/14/2021

Docket Code 023
Form V000A
Page 3

NOTE: Due to the spread of COVID-19, the Arizona Supreme Court Administrative
Order 2020-197 requires all individuals entering a court facility to wear a mask or face covering
at all times they are in the court facility. With limited exceptions, the court will not provide
masks or face coverings. Therefore, any individual attempting to enter the court facility must
have an appropriate mask or face covering to be allowed entry to the court facility. Any person
who refuses to wear a mask or face covering as directed will be denied entrance to the court
facility or asked to leave. In addition, all individuals entering a court facility will be subject to a
health screening protocol. Any person who does not pass the health screening protocol will be
denied entrance to the court facility.

Clerk of the Superior Court

*** Electronically Filed ***

04/24/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

04/19/2019

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
K. Hartley

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JUDGE CAMPAGNOLO

MINUTE ENTRY DENYING PLAINTIFF’S MOTION FOR
JUDGMENT ON THE PLEADINGS

The Court has reviewed and considered Plaintiff’s Motion for Judgment on the Pleadings
as to Count One, Defendant Dove Valley Ranch Community Association’s Response thereto,
Defendant Baron’s Response thereto and Request for Clarification, Plaintiff’s Reply, and the
applicable law.

Plaintiff contends that Defendant Dove Valley Ranch Community Association (the HOA)
filed its Answer in violation of Rules 8 and 36, ARIZ. R. CIV. P., by not providing a detailed and
specific response to its denials to the allegations in the Complaint. Plaintiff contends that this
failure to provide specific responses should result in deeming Defendant’s Answer as admitting to
the allegations in the Complaint.

On a motion for judgment on the pleadings, all of the allegations of the opposing party’s
pleadings must be accepted as true, and the moving party is entitled to judgment only if the position
of the opposing party, as stated in its pleadings, clearly entitles the moving party to judgment.
Wenrich v. Household Finance Corp., 5 Ariz. App. 335, 338 (1967).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

04/19/2019

Docket Code 019
Form V000A
Page 2

The HOA’s Answer provided denials, admissions or partial denials and admissions. This
is precisely what Rule 8 requires. The HOA did not file any answers in violation of Rule 8(c)(2).
The HOA’s Answer also asserted affirmative defenses, pursuant to Rule 8(d). The Court is unclear
as to why Plaintiff cited to Rule 36. Nothing was presented to the Court in regard to Requests for
Admissions.

The Court does not read Rule 8 as broadly as Plaintiff reads it. In fact, the Court finds that
the HOA’s Answer complied with Rule 8. Further, all of the authority cited by Plaintiff on this
issue was neither precedential nor persuasive.

IT IS ORDERED that Plaintiff’s Motion for Judgment on the Pleadings as to Count One is
denied.

IT IS FURTHER ORDERED that Defendant Baron’s Request for Clarification is denied
as moot.

Clerk of the Superior Court

*** Filed ***

05/25/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

05/24/2021

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
J. Escarcega

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JUDGE BACHUS
JUDGE CAMPAGNOLO

MINUTE ENTRY

The Court has reviewed and considered Defendant Baron’s Motion for Summary
Judgment, Plaintiff’s Response thereto, Defendant Baron’s Reply, the respective Statements of
Facts, the declarations and exhibits attached to the foregoing pleadings, the Complaint and the
First Amended Complaint, other relevant filings, and the applicable law. The Court finds that
oral arguments would not materially assist the Court in ruling on the Motion. Because the parties
did not request oral arguments, the Court is authorized to grant the Motion without holding an
oral arguments hearing. See Rule 56(c)(1), ARIZ. R. CIV. P.; Maricopa County Local Rule 3.2(d).

Defendants Dove Valley Community Association, Michael D. Schwartz and Dana V.
Schwartz filed a joinder to Defendant Baron’s Motion for Summary Judgment. None of these
defendants filed their own summary judgment motions. The Court finds that these three
defendants stand in different positions than Defendant Baron. This Court’s Ruling on Defendant
Baron’s Motion for Summary Judgment is based entirely on the discreet facts applicable to
Defendant Baron. Therefore, this Ruling does not include the other three defendants, and they
will not be joined in such Ruling.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

05/24/2021

Docket Code 023
Form V000A
Page 2

The Motion for Summary Judgment, filed on December 23, 2020, pertained to the original
Complaint. Plaintiff subsequently filed its First Amended Complaint on February 4, 2021. Plaintiff
did not file its Response to Defendant Baron’s Motion until March 29, 2021, nearly two months
after the First Amended Complaint was filed. The First Amended Complaint is now the operative
pleading, taking the place of the original Complaint. Because the First Amended Complaint alleged
the same causes of action against Defendant Baron, although numbered differently, the Court’s
Ruling will pertain to the First Amended Complaint.

On summary judgment, the court must view the evidence and all reasonable inferences that
such evidence will permit in the way that is most favorable to the party opposing summary
judgment and must assume the truth of that party’s allegations. Esplendido Apartments v. Olsson,
144 Ariz. 355, 361 (App. 1985). 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 (App. 1994).

The party moving for summary judgment must produce evidence that it believes
demonstrates the absence of a genuine issue of material fact, and must explain why summary
judgment is warranted. National Bank of Arizona v. Thruston, 218 Ariz. 112, ¶12 (App. 2008). If
the movant has made a prima facie showing that no genuine issue of material fact exists, the non-
movant has the burden to produce sufficient evidence that there is indeed an issue. W.J. Kroeger
Co. v. Travelers Indemnity Co., 112 Ariz. 285, 286 (1975); see also Thruston, 218 Ariz. at ¶26
(If the moving party meets its burden, the burden shifts to the nonmoving party to present
sufficient evidence demonstrating the existence of a disputed fact).

The First Amended Complaint alleged the following causes of action against Defendant
Baron:

Count One: Breach of contract under the CCR;
Count Four: Breach of duty of good faith and fair dealing;

Count Five: Interference with contract (purchase agreement); and

Count Seven: Aiding and abetting breach of fiduciary duty.

Defendant Baron was the adjoining neighbor to the Rowleys’ property on the other side
of the party wall in question. Defendant Baron contended that Plaintiff does not have any viable
claims against her.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

05/24/2021

Docket Code 023
Form V000A
Page 3

Count One
Breach of Contract (CCR)

Plaintiff’s only breach of contract claim against Defendant Baron is that she is a party to
the Dove Valley Ranch Declaration of Covenants, Conditions, Restrictions, Assessments,
Charges, Servitudes, Liens, Reservations and Easements (the CCR), and she breached the terms
of the CCR. Specifically, the First Amended Complaint claimed that Defendant Baron breached
Article V, Section 5.1.14.5 and Art. XIV of the CCR.

Article V, Section 5.1.14.5 provides:

In the event of a dispute between Owners with respect to the construction, repair or
rebuilding of a Party Wall, or with respect to the sharing of the cost thereof, such
adjoining Owners shall submit the dispute to the Board, the decision of which shall
be binding.

Article XIV pertains primarily to the Association’s duty to maintain common areas. In its
Response, Plaintiff relied upon Section 14.8, which provides the procedure for the Association to
take legal action against a property owner. That section does not require any affirmative action
by a property owner.

Although not specifically cited by Plaintiff, the only provision that seems to apply to a
property owner’s duty to maintain premises is Section 14.1.4, which merely refers back to
Article V. Section 14.1.4 provides as follows:

All walls and fences situated upon the Common Area, except that the allocation
of responsibility for the maintenance and repair of party walls and party fences.is
set forth in Subparagraph 5.1.14

Before even reaching the specifics of Plaintiff’s breach of contract claim against
Defendant Baron, the Court questions Plaintiff’s assertion that property owners in an HOA have
a contractual duty to each other. The Court could find nothing in the CCR that created such a
contractual obligation. The only provision in the CCR that even came close was Article 21,
which simply provided that the Association and property owners were encouraged to participate
in dispute resolution. Section 21.2 provided that dispute resolution was not mandatory.

There is no question that a recorded declaration forms a contract between the association
and the individual property owners. Johnson v. Pointe Community Association, Inc., 205 Ariz.
485, ¶23 (App. 2003). The Court could find no appellate cases that a recorded declaration creates
a separate contract between the individual property owners. Plaintiff did not cite to any provision

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

05/24/2021

Docket Code 023
Form V000A
Page 4

in the CCR, or any appellate case, that supports this assumption. Further, such a doctrine would
defeat the essence of contract law, because there is no written agreement between one property
owner and any or all of the other property owners. The CCR is between the Association and each
property owner as the latter becomes a member.

Even assuming arguendo that such a contractual relationship existed, the summary
judgment evidence, in the form of Association Minutes, undisputedly shows that Defendant
Baron presented her complaint about the party wall to the Association, per Section 5.1.14.5. That
was all that Defendant Baron was required to do. The Minutes show that the Association found
that Plaintiff was responsible for the repair, which was binding. If the Association failed to
follow the procedures upon receipt of a dispute, as alleged by Plaintiff, that does not create
liability for Defendant Baron.

The interpretation of restrictive covenants is a question of law for the court. Johnson v.
Pointe Community Association, Inc., 205 Ariz. at ¶23. The Court finds that, pursuant to the terms
of the CCR, assuming they created a contract between Plaintiff and Defendant Baron, Defendant
Baron did not breach the CCR.

In any event, the Court finds that Defendant Baron presented a prima facie case that there
is no genuine issue of material fact as to Count One, Plaintiff failed to rebut that prima facie
showing. Defendant Baron is entitled to summary judgment on Count One as a matter of law.

Count Four
Breach of Duty of Good Faith and Fair Dealing

A covenant of good faith and fair dealing is implied in every contract; it requires that
neither party act to impair the right of the other to receive the benefits that flow from their
agreement or contractual relationship. Kuehn v. Stanley, 208 Ariz. 124, ¶29 (App. 2004).

Having found that there was no contract between Plaintiff and Defendant, there can be no
duty of good faith and fair dealing. Even if there was a contract, the Court has found that there
was no genuine issue of material fact as to the lack of breach. Therefore, Defendant Baron could
not have breached the duty of good faith and fair dealing.

Count Five
Interference with Contract (Purchase Agreement)

The Court notes that Count Six of the Original Complaint alleged interference with
contract as to the escrow agreement. The First Amended Complaint, which is now the operative

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

05/24/2021

Docket Code 023
Form V000A
Page 5

pleading, changed the underlying contract to the purchase agreement. In any event, the Court’s
Ruling applies to either agreement.

To establish a prima facie claim for intentional interference with a contractual
relationship, a plaintiff must show the existence of a valid contractual relationship or business
expectancy; the interferer’s knowledge of the relationship or expectancy; intentional interference
inducing or causing a breach or termination of the relationship or expectancy; and resultant
damage to the party whose relationship or expectancy has been disrupted. Safeway Insurance
Co., Inc. v. Guerrero, 210 Ariz. 5, 10 (2005).

Defendant Baron has again presented a prima facie case that there is no genuine issue of
material facts on this issue. Plaintiff has not only failed to rebut this showing, but it has failed to
even show that it can establish a prima facie case of contractual interference by Defendant
Baron. Plaintiff presented no specific evidence of any act by Defendant Baron that would even
approach the elements of this cause of action. At most, Plaintiff attempted to substantiate its
claim through speculative and unsupported conclusions.

Count Seven
Aiding and Abetting Breach of Fiduciary Duty

Plaintiff claimed that Defendant Baron aided and abetted the Association’s alleged
breach of fiduciary duty in carrying out its business. However, Plaintiff presented no evidence,
other than speculative and conclusory statements, to support any claim of aiding and abetting by
Defendant Baron.

Again, Defendant Baron presented a prima facie showing that there is no genuine issue of
material fact on this Count, and Plaintiff wholly failed to rebut it. Defendant Baron is entitled to
summary judgment as a matter of law on Count Seven.

Conclusion

Plaintiff can no longer simply rely on the presumed truthfulness of its allegations, as it
could in the face of a motion to dismiss. In a summary judgment proceeding, Plaintiff must
present evidence that there is a genuine issue of material fact that would allow it to present its
claims to a jury.

A motion for summary judgment should not be denied “simply on the speculation that
some slight doubt, some scintilla of evidence, or some dispute over irrelevant or immaterial facts
might blossom into a real controversy in the midst of trial.” Shaw v. Petersen, 169 Ariz. 559,
560-61 (App. 1991) [citation omitted]. A motion for summary judgment should be granted “if

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

05/24/2021

Docket Code 023
Form V000A
Page 6

the facts produced in support of the claim or defense have so little probative value, given the
quantum of evidence required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.” Orme School v. Reeves, 166 Ariz. 301, 309
(1990).

The Court finds that Plaintiff’s allegations against Defendant Baron were unsupported by
admissible evidence, and were completely speculative and conclusory. The “facts” produced by
Plaintiff against Defendant Baron had no probative value. Reasonable people could not agree
that Defendant Baron is liable for the claims made against her. As to all four Counts alleged
against Defendant Baron, there are no genuine issues of material fact, and Defendant Baron is
entitled to summary judgment as a matter of law.

IT IS ORDERED granting Defendant Baron’s Motion for Summary Judgment.

IT IS FURTHER ORDERED that Counts One, Four, Five, and Seven of the First
Amended Complaint are dismissed with prejudice against Defendant Beatrice Lee Baron.

IT IS FURTHER ORDERED that the Court has rejected the Joinder to Defendant
Baron’s Motion for Summary Judgment filed by Defendants Dove Valley Community
Association, Michael D. Schwartz and Dana V. Schwartz. The Court’s Ruling shall not apply to
such Joinder.

IT IS FURTHER ORDERED that Defendant Baron may submit an application and
affidavit for attorney’s fees under A.R.S. §12-341.01, and a verified statement of costs, no later
than June 21, 2021. Plaintiff may file an objection/response no later than July 6, 2021. No Reply
shall be allowed.

IT IS FURTHER ORDERED that the undersigned Judge shall rule on any application
for attorney’s fees, despite judicial rotations on June 23, 2021. The remainder of the case shall
remain in this Division, presided by the Honorable Alison S. Bachus.

HON. THEODORE CAMPAGNOLO

JUDGE OF THE SUPERIOR COURT

Clerk of the Superior Court

*** Electronically Filed ***

05/25/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

05/24/2021

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
J. Escarcega

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
CYNTHIA M SCHWARTZ
NO ADDRESS ON RECORD
JUDGE CAMPAGNOLO

MINUTE ENTRY

The Court has reviewed and considered Plaintiffs’ Motion for Partial Summary Judgment
as to Count Two of Plaintiffs’ Complaint Only, Defendant Dove Valley Community Association’s
Response in Opposition thereto, Plaintiffs’ Reply, the respective Statements of Facts, the
declarations and exhibits attached to the foregoing pleadings, the Complaint and the First
Amended Complaint, other relevant filings, and the applicable law.

In its Response, Defendant requested that summary judgment be granted in its favor as to
Count Two. Defendant did not file a cross-motion for summary judgment. The Court will,
therefore, not consider Defendant’s request for affirmative summary judgment relief.

The parties did not request an oral arguments hearing, and the Court finds that oral
arguments are not necessary for the Court to render a decision. See Rule 56(c)(1), ARIZ. R. CIV.
P.; Maricopa County Local Rule 3.2(d).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

05/24/2021

Docket Code 019
Form V000A
Page 2

On summary judgment, the court must view the evidence and all reasonable inferences that
such evidence will permit in the way that is most favorable to the party opposing summary
judgment and must assume the truth of that party’s allegations. Esplendido Apartments v. Olsson,
144 Ariz. 355, 361 (App. 1985). 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 (App. 1994).

In this case, Plaintiffs contended that they are entitled to summary judgment on Count Two,
alleging a breach of the escrow agreement. Taken in the light most favorable to Defendant, the
Court finds that there are genuine issues of material facts that preclude the granting of summary
judgment. Specifically, there are factual issues as to the steps taken or not taken by Defendant in
regard to the escrow agreement. There are also factual disputes as to the alleged condition of the
wall.

IT IS ORDERED denying Plaintiffs’ Motion for Partial Summary Judgment as to Count
Two of Plaintiffs’ Complaint Only.

Clerk of the Superior Court

*** Electronically Filed ***

06/05/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

06/04/2019

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
W. Tenoever

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
COURT ADMIN-CIVIL-ARB DESK
JUDGE CAMPAGNOLO

MINUTE ENTRY REGARDING COMPULSORY ARBITRATION

The Court has reviewed Plaintiffs’ Certificate of Compulsory Arbitration filed on June 27,
2018, and Defendant Dove Valley Ranch Community Association’s Controverting Certificate
Regarding Compulsory Arbitration filed on September 19, 2018. Defendants dispute Plaintiffs
contention that the amount in controversy exceeds $50,000.00. Neither party brought this dispute
to the Court’s attention, so the Court was only recently made aware of it by Court Administration.
The Court needs to determine if there is still a dispute, and, if so, to resolve this dispute.

IT IS ORDERED that if the dispute has been resolved by the parties, they shall file a joint
notice of the resolution no later than June 21, 2019. If the dispute has not been resolved, the
following procedures must be followed:

 If not already done, Plaintiff shall, no later than July 1, 2019, serve a comprehensive
disclosure statement that addresses the issue of Plaintiff’s claimed damages. In addition to
what otherwise may suffice as compliance with Rule 26.1, “comprehensive” should be
understood to include an itemized list of each element of compensatory and consequential
damages that Plaintiff seeks together with a detailed description that would allow one to
understand how each such amount of claimed damages was calculated (merely reciting a

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

06/04/2019

Docket Code 023
Form V000A
Page 2

number will not be sufficient). If Plaintiff is serious about seeking recovery for any
damages that do not lend themselves to more than an approximate calculation, then
Plaintiff must disclose the approximate amount or range that Plaintiff anticipates requesting
as an award at trial and a detailed explanation showing that the amount or range is
reasonable. In addition, with that disclosure, Plaintiff must attach all documents that in
any way support the claimed damages.

 After receipt of the comprehensive disclosure statement, or if Plaintiff fails to comply with
the requirements of the preceding paragraph, if Defendants continue to maintain that the
case is subject to compulsory arbitration, then Defendants shall file a request with this
division to refer the case to Civil Court Administration-Arbitration Desk, attaching a copy
of Plaintiff’s comprehensive disclosure statement. The motion should not be longer than
three pages, including the caption and signature block. The Court will then determine
whether the matter should or should not be referred for compulsory arbitration.

 After receipt of the Plaintiff’s comprehensive disclosure statement, if Defendants conclude
that it would be pointless to request a referral to arbitration, Defendants shall notify
Plaintiff, and in that event, the parties shall comply immediately with Rule 16(b) and (c),
failing which, this case will be dismissed.

IT IS FURTHER ORDERED that, whether before, during, or after preparation of the
comprehensive disclosure statement, if Plaintiff concludes that the case is subject to compulsory
arbitration, Plaintiff’s attorney should notify this division by email to the Division’s Judicial
Assistant, Carla Estrada, at [email protected], and a referral to the Civil
Court Administration – Arbitration Desk will be made.

IT IS FURTHER ORDERED that if the Court does not receive any notification from either
party by July 5, 2019 as to whether this case is or is not subject to compulsory arbitration, the
Court will automatically presume that the case is subject to compulsory arbitration, and will refer
the parties to the Civil Court Administration – Arbitration Desk for the appointment of an
arbitrator.

Clerk of the Superior Court

*** Electronically Filed ***

07/23/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

07/18/2019

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
K. Hartley

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JUDGE CAMPAGNOLO

MINUTE ENTRY

IT IS ORDERED that this matter is not subject to compulsory arbitration.

IT IS FURTHER ORDERED that the parties shall immediately comply with Rule 16(b)
and (c), Ariz. R. Civ. P.

Clerk of the Superior Court

*** Electronically Filed ***

08/06/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

08/01/2019

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
K. Hartley

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JOSHUA LEE WALTMAN
ALTERNATIVE DISPUTE
RESOLUTION - CCC
JUDGE CAMPAGNOLO

MINUTE ENTRY

On the Court’s own motion and at the request of ADR,

IT IS ORDERED extending the deadline to conduct a settlement conference until
November 5, 2019.

Clerk of the Superior Court

*** Electronically Filed ***

08/05/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

08/04/2020

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
V. Felix

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
CYNTHIA M SCHWARTZ
NO ADDRESS ON RECORD
MICHAEL S SCHWARTZ
NO ADDRESS ON RECORD
DANA V SCHWARTZ
NO ADDRESS ON RECORD
COMM. POPHAM
JUDGE CAMPAGNOLO

MINUTE ENTRY

This Court has received Plaintiff’s e-filed Application/Motion for Default against
Defendant(s), Dana V. Schwartz, in the above-captioned case.

IT IS ORDERED that no action will be taken by this division on the above-referenced
document(s).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

08/04/2020

Docket Code 023
Form V000A
Page 2

The parties are advised that commissioners handle Rule 55(b) Default Judgment
proceedings and that the default proceedings in this matter are to be heard by Commissioner
Popham.

IT IS ORDERED that all documents necessary to support the entry of a default judgment
must be e-filed.

Pursuant to the Maricopa County eFiling Guidelines, Section 2.09, attorneys shall
electronically file all the documents required to request a default judgment, such as the Application
for Entry of Default, Motion for Entry of Default Judgment, Sum Certain Affidavit, and
Application for Attorneys’ Fees when appropriate and Statement of Costs, but shall submit a
default judgment packet required by the Court, including the documents identified on the default
judgment packet coversheet, in paper to the assigned commissioner’s division. A commissioner
will not act upon a Motion for Entry of Default Judgment until the default judgment packet with
all the required documents has been received by the division in paper form.

The parties/counsel can find additional information in the form of frequently asked
questions at:
http://www.superiorcourt.maricopa.gov/SuperiorCourt/CivilDepartment/howDoI.asp

Clerk of the Superior Court

*** Electronically Filed ***

08/12/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

08/06/2020

Docket Code 056
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE GARY L. POPHAM JR.
V. Burton

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
CYNTHIA M SCHWARTZ
NO ADDRESS ON RECORD
COMM. POPHAM

MINUTE ENTRY

The Court is in receipt of and has reviewed Dana Schwartz’s Motion to Set Aside Default
filed on June 15, 2020.

IT IS ORDERED setting a Telephonic Hearing in this matter for August 19, 2020, at
10:00 a.m. (time allotted: 1 hour) before the Honorable Gary L. Popham, Jr. The parties and
counsel shall attend the hearing by calling 1-855-506-9695 and when prompted, enter participant
code 199943 followed by the # sign.

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.

Clerk of the Superior Court

*** Electronically Filed ***

08/13/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

08/11/2021

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
S. Mejia

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
CYNTHIA M SCHWARTZ
NO ADDRESS ON RECORD
JUDGE BACHUS
JUDGE CAMPAGNOLO

MINUTE ENTRY

The Court has reviewed and considered Defendant Baron’s Motion for Leave to Reply in
Support of Her Application for an Award of Attorney Fees and Costs filed on July 8, 2021.

IT IS ORDERED denying the Motion for Leave to File a Reply.

This does not affect the application for attorney’s fees, which the Court will rule on
separately.

Clerk of the Superior Court

*** Electronically Filed ***

08/17/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

08/16/2021

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
S. Mejia

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
CYNTHIA M SCHWARTZ
NO ADDRESS ON RECORD
JUDGE BACHUS
JUDGE CAMPAGNOLO

MINUTE ENTRY

In reviewing the pleadings related to Defendant Baron’s Application for an Award of
Attorney Fees and Costs, the Court has determined that it needs additional briefing on one of the
issues raised in Plaintiff’s Response. In its Response, Plaintiff contended that Ms. Baron is not
entitled to an award of attorney’s fees under A.R.S. §12-341.01, because Ms. Baron has no
obligation to pay attorney’s fees to her counsel. Counsel is employed by the insurance carrier,
and is apparently paid on a set salary by the carrier.

In reviewing the pleadings, neither side provided adequate support for their respective
positons on this issue. In the supplemental pleadings, the parties need to provide legal authority
(from Arizona or outside of Arizona) that pertain to the facts in this case: to-wit, an insurance
defense attorney, who is on salary with the carrier, and has no fee agreement with either the
insurer or the insured.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

08/16/2021

Docket Code 023
Form V000A
Page 2

If the parties are unable to find any legal authority in Arizona or in a foreign jurisdiction,
then the supplemental briefs shall need to include legal authority, preferably from Arizona law or
Arizona reported decisions, that provide an analogy to the facts of this case, such as in-house
counsel, public entities, etc., with arguments as to why such holdings in those cases would support
their respective arguments.

IT IS ORDERED that the parties shall provide simultaneous supplemental briefing as
discussed above. The Court believes that simultaneous briefing is appropriate, because each side
will be providing independent authorities and arguments that support their position. The Court
sees no need to delay its decision by requiring responses and replies.

IT IS ORDERED that Plaintiff and Defendant Beatrice Baron shall file their individual
supplemental memorandum no later than September 14, 2021. No Responses or Replies shall be
allowed. The Court will take Defendant Baron’s Application for an Award of Attorney Fees and
Costs under advisement upon the filing of both memoranda.

Clerk of the Superior Court

*** Electronically Filed ***

08/19/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

08/18/2020

Docket Code 002
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE GARY L. POPHAM JR.
V. Burton

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
CYNTHIA M SCHWARTZ
NO ADDRESS ON RECORD
COMM. POPHAM

MINUTE ENTRY

The Court is in receipt of Plaintiff’s Notice of Withdrawal of Application for Entry of
Default Dated January 16, 2020 as to Dana V. Schwartz Only and Expedited Request to Vacate
August 19, 2020 Telephonic Hearing on the January 16, 2020 Application for Entry of Default
filed on August 18, 2020.

IT IS ORDERED vacating the Telephonic Hearing set for August 19, 2020, at 10:00 a.m.
in this Division regarding Dana Schwartz’s Motion to Set Aside Default.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

10/02/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

09/26/2018

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
A. Wood

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
JAY PRICHER

JUDGE CAMPAGNOLO

MINUTE ENTRY

The Court has received Plaintiff’s Motion for Order Authorizing Alternative Service as to
Defendant, Beatrice Lee Baron filed September 21, 2018.

IT IS ORDERED denying Plaintiff’s Motion for Order Authorizing Alternative Service
as a proposed form of order was not provided in word format.

Clerk of the Superior Court

*** Electronically Filed ***

10/12/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

10/11/2021

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE THEODORE CAMPAGNOLO
J. Holguin

Deputy

ROWLEY FAMILY TRUST, THE, et al.
JUSTIN R COOLEY

v.

DOVE VALLEY RANCH COMMUNITY
ASSOCIATION, et al.
B AUSTIN BAILLIO

AMANDA E NELSON
JUDGE BACHUS
JUDGE CAMPAGNOLO

MINUTE ENTRY
AWARD OF RULE 68 SANCTIONS

On May 25, 2021, the Court granted Defendant Beatrice Lee Baron’s Motion for Summary
Judgment. The Ruling dismissed all causes of action that had been brought against Ms. Baron.
Because it resolved all issues between Plaintiff and Ms. Baron, the Court ordered Ms. Baron to
submit an application for attorney’s fees under A.R.S. §12-341.01(A). Ms. Baron timely filed an
application for attorney’s fees, and also lodged a proposed form of Judgment.

The Court has reviewed and considered Defendant Baron’s Application for an Award of
Attorney Fees and Costs, Declaration of Amanda Nelson in Support of Application for Award of
Attorney Fees and Costs, Defendant Baron’s Verified Statement of Costs and Motion for Rule 68
Sanctions, Plaintiff’s Response to Defendant Baron’s Application for Attorneys’ Fees and Costs,
Objection to Defendant Baron’s Proposed Form of Judgment – and - Objection to Statement of
Costs, the exhibits attached to any of the forgoing pleadings, and the applicable law.

In its Response, Plaintiff first contended that attorney’s fees were not available under
A.R.S. §12-341.01, because the cause of action did not arise out of a contract, or alternatively, no

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

10/11/2021

Docket Code 019
Form V000A
Page 2

contract existed between Plaintiff and Ms. Baron, pursuant to the Court’s Ruling. Based on the
Court’s Ruling that the CCR did not create a contractual basis between the individual property
owners, Plaintiff contended that the only remaining counts sounded in tort.

Secondly, Plaintiff contended that Ms. Baron is being provided a defense by her insurance
carrier, and that she has no duty to pay her attorney. Because the Court’s Ruling specifically
prohibited the filing of a Reply, Ms. Baron filed a request for leave to file a Reply based upon
this second issue raised by Plaintiff. The Court denied Ms. Baron’s request.

Third, Plaintiff contended that Ms. Baron did not satisfy the factors under Associated
Indemnity Corp. v. Warner, 143 Ariz. 567, 570 (1985).

Fourth, Plaintiff contended that Ms. Baron’s hourly rate of $350.00 was unreasonable.

Plaintiff did not challenge any of the time entries, or the amount of the attorney’s fees
requested by Ms. Baron.

Defendant also objected to Ms. Baron’s Verified Statement of Costs and Motion for Rule
68 Sanctions. Plaintiff objected to the proposed award of attorney’s fees under Rule 68 in the
proposed judgment. Plaintiff also objected to the reasonableness of Ms. Baron’s expert witness
fees under Rule 68. Plaintiff’s only other objection was that the proposed form of judgment should
have referenced Rule 78(b) with the appropriate wording.

Although the Court denied leave for Ms. Baron to file a Reply, the Court realized that
neither party had fully addressed or fully briefed Plaintiff’s second issue as to whether a carrier’s
in-house litigators were entitled to attorney’s fees. For that reason, on August 17, 2021, the Court
ordered both parties to file simultaneous briefs on whether attorney’s fees could be awarded to
“an insurance defense attorney, who is on salary with the carrier, and has no fee agreement with
either the insurer or the insured.”

Both parties timely filed their respective supplemental memoranda on September 14,
2021. Both memoranda were extremely helpful; they provided the additional legal support the
Court needed to issue a Ruling.

Discussion

Deciding on an award of attorney’s fees requires a two-step analysis. The first step is to
determine whether a movant is entitled to receive an award of attorney’s fees. The second step is
to decide whether a monetary amount of attorney’s fees should be awarded.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

10/11/2021

Docket Code 019
Form V000A
Page 3

Is Ms. Baron Eligible for an Award of Attorney’s Fees?

A.R.S. §12-341.01(A) provides as follows:

In any contested action arising out of a contract, express or implied, the court may
award the successful party reasonable attorney fees. If a written settlement offer
is rejected and the judgment finally obtained is equal to or more favorable to the
offeror than an offer made in writing to settle any contested action arising out of
a contract, the offeror is deemed to be the successful party from the date of the
offer and the court may award the successful party reasonable attorney fees. This
section shall not be construed as altering, prohibiting or restricting present or
future contracts or statutes that may provide for attorney fees.

Under A.R.S. §12-341.01, the Court may award reasonable attorneys’ fees to the successful
party in a disputed action arising out of a contract. There can be no legitimate dispute that Ms.
Baron was the successful party in the litigation that was brought against her.

However, before the Court is able to reach the issue of whether the Court should exercise
its discretionary authority to award attorney’s fees, it must first determine whether or not this
litigation arose out of a contract. Attorney’s fees are not recoverable where there is no contractual
or statutory basis for their award. State Farm Mutual Automobile Insurance Company v. O’Brien,
24 Ariz. App. 18, 21-2 (1975).

Three of the four counts against Ms. Baron arose out of an alleged contract. The fact that
the court determined that there was no contract between Plaintiff and Ms. Baron, and that there
was no interference with a contract, does not negate Ms. Baron’s claim for attorney’s fees.

A prevailing party is entitled to its fees under §12–341.01 when sued on a contract even if
the judgment is based on the absence of any contract. Rogus v. Lords, 166 Ariz. 600, 604 (App.
1991). A court may award fees to a party that prevails on the basis that there is no contract. Nolan
v. Starlight Pines Homeowners Association, 216 Ariz. 482, ¶36 (App. 2007). Accord, Rudinsky v.
Harris, 231 Ariz. 95, ¶27 (App. 2012). A party is entitled to an award of its attorney’s fees under
A.R.S. §12–341.01 if judgment in its favor is based upon the absence of the contract sued upon by
the adverse party. Lacer v. Navajo County, 141 Ariz. 392, 394 (App. 1984)

The fourth count against Ms. Baron alleged the tort of breach of fiduciary duty. Tort actions
generally do not allow for the recovery of attorney’s fees.

However, a party may recover attorneys’ fees expended in litigating an interwoven tort
claim. Modula Mining Systems, Inc. v. Jigsaw Technologies, Inc., 221 Ariz. 515, 522, ¶23 (App.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

10/11/2021

Docket Code 019
Form V000A
Page 4

2009). Claims are interwoven when they are based on the same set of facts and involve common
allegations, which require the same factual and legal development. Id. at ¶23; see also Bennett v.
Baxter Group, Inc., 223 Ariz. 414, 420, ¶23 (App. 2010) (concluding that fees can be awarded on
non-contract claims “when these claims are so factually connected to a contract claim that they
require the same work that is already necessary for the defense or prosecution of the contract claim
alone”); Zeagler v. Buckley, 223 Ariz. 37, 39, ¶9 (App. 2009) (holding that fees may be awarded
when “claims are so interrelated that identical or substantially overlapping discovery would
occur”).

A tort claim arises out of contract if it could not exist but for the contract. See, e.g.,
Caruthers v. Underhill, 230 Ariz. 513, 526, ¶57 (App. 2012)(holding that the contract must be the
essential basis of the action and not merely a factual predicate); Sparks v. Republic National Life
Insurance Co., 132 Ariz. 529, 543 (1982). An action arises out of a contract when the contract is
“the factor” giving rise to the litigation; it does not arise out of contract if the contract is merely
peripheral to the cause of action. Lewin v. Miller Wagner & Co., 151 Ariz. 29, 37 (App.1986).

Section 12-341.01 does not apply if the contract is a factual predicate to the action, but not
the essential basis of it. Hanley v. Pearson, 204 Ariz. 147, ¶17 (App. 2003). When a cause of action
is based on a statute rather than a contract, the peripheral involvement of a contract does not
support the application of the fee statute. Id. See also Keystone Floor & More, LLC v. Arizona
Registrar of Contractors, 223 Ariz. 27, ¶18 (App. 2009 (holding that the sole basis for the
substantive result of disciplinary action against a contractor was a violation of statutory and
regulatory requirements, and not the underlying contract).

The modifying phrase “arising out of” refers to a cause or origin, thereby describing an
action in which a contract was a factor causing the dispute. ASH, Inc. v. Mesa Unified School
District No. 4, 138 Ariz. 190, 192 (App. 1983). If the lawsuit was initiated because of a contract,
the non-contract cause of action arises out of the contract. Id.

Under the facts of this case, the tort claim was interwoven with the contractual claims, such
that it, too, arose out of the alleged contract.

Before determining whether an amount of attorney’s fees should be awarded, the Court
should consider the following factors to analyze whether there is an entitlement to an award. The
factors are listed in Associated Indemnity Corp. v. Warner, 143 Ariz. 567, 570 (1985), as follows:

1. The merits of the claim or defense presented by the unsuccessful party: The factual
and legal merits of Plaintiff’s claim against Ms. Baron were not strong.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

10/11/2021

Docket Code 019
Form V000A
Page 5

2. The litigation could have been avoided or settled and the successful party’s efforts
were completely superfluous in achieving the result: Plaintiff should have settled, if not
dismissed, its claims against Ms. Baron. Its failure to do so required Ms. Baron to continue
to defend the claims, and to seek summary judgment. Ms. Baron’s efforts were not
superfluous.

3. Assessing fees against the unsuccessful party would cause an extreme hardship:
Plaintiff asserted that an attorney’s fee award would cause an extreme hardship on it.
Plaintiff’s assertions may or may not be well-founded, but its reasons were conclusory
without any supporting basis. Thus, the Court finds that an award of attorney’s fees would
not cause an extreme hardship on Plaintiff.

4. The successful party did not prevail with respect to all of the relief sought: Ms. Baron
prevailed in full.

5. The novelty of the legal question presented, and whether such claim or defense had
previously been adjudicated in this jurisdiction: This was not a novel legal question.
There are other appellate cases pertaining to this type of issue.

6. Whether the award in any particular case would discourage other parties with
tenable claims or defenses from litigating or defending legitimate contract issues for
fear of incurring liability for substantial amounts of attorney’s fees: Based on the
unique facts of this case, a monetary award of attorney’s fees would not discourage other
litigants.

The Court finds that Ms. Baron has shown that she would be entitled to an award of
attorney’s fees under A.R.S. §12-341.01(A).

Has Ms. Baron Showed that She is Entitled to a Specific Amount of Attorney’s Fees?

The next issue is to determine if Ms. Baron has justified an amount to which she would be
entitled. Ms. Baron sought an award of attorney’s fees under A.R.S. §12-341.01. Therefore, an
award under A.R.S. §12-341.01 is limited to the statute’s parameters.

A.R.S. §12-341.01(B) provides:

The award of reasonable attorney fees pursuant to this section should be made
to mitigate the burden of the expense of litigation to establish a just claim or a
just defense. It need not equal or relate to the attorney fees actually paid or

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

10/11/2021

Docket Code 019
Form V000A
Page 6

contracted, but the award may not exceed the amount paid or agreed to be
paid.

[emphasis added].

In this case, Ms. Baron’s attorneys requested attorney’s fees at an hourly rate of $350.00,
based upon the prevailing rate of non-in-house attorneys with similar time and experience in the
legal profession. For purposes of this Ruling, the Court does not question that $350.00 an hour
may be the prevailing rate for non-in-house attorneys with Ms. Baron’s counsel’s experience.

The Arizona cases indicate that a litigator who serves as in-house counsel for an insurance
carrier can be entitled to attorney’s fees under A.R.S. §12-341.01. In an unreported decision, which
is not precedential, the Court of Appeals held that both governmental attorneys and in-house
defense counsel for an insurance carrier’s insured were entitled to attorney’s fees. HSBC Bank
USA, N.A. v. Cluff, 2018 WL 5117167, ¶36 (Ariz. App., Oct. 18, 2018). Although Cluff’s
discussion of attorney’s fees seemed to mostly refer to an award of attorney’s fees under A.R.S.
§33-420(A), the Court’s concluding paragraph stated that the award was also under A.R.S. §12-
341.01.

The Court finds HSBC to have persuasive value in that it equates governmental lawyers
with in-house insurance litigators. This is helpful, because most, if not all of the reported cases on
this issue pertain to governmental lawyer having a right to seek attorney’s fees under A.R.S. §12-
341.01. See Barth v. Cochise County, Arizona, 213 Ariz. 59, ¶19 ( App. 2006); Smith v. City of
Phoenix, 175 Ariz. 509, 516 (App. 1992); Lacer v. Navajo County, 141 Ariz. 392, 395 (App. 1984).

Ms. Baron cited a number of appellate cases in which a governmental lawyer received an
award of attorney’s fees based upon the hourly rate in the legal community. Because A.R.S. §12-
341.01 limits the recovery of attorney’s fees to the amount paid or agreed to be paid, the Court
finds that many of the cases cited by Ms. Baron are inapplicable. Many of the cases cited by
Plaintiff awarded fees under statutes that did not have a restriction on the amount of fees that
could be awarded as contained in §12-341.01. See, e.g., Matter of Shannon, 179 Ariz. 52, 80 (1994)
(holding that the assessment of costs and expenses of a disciplinary proceeding are assessed against
a sanctioned attorney pursuant to Supreme Court rule 52(a)(8), which does not contain language
that limits the recovery to actual costs or expenses incurred); City of Tempe v. State, 237 Ariz. 360,
¶¶25-27 (App. 2015) (awarding fees to a governmental entity under A.R.S. § 12–348.01, which
authorizes reasonable attorney’s fees to the successful party); Day v. Armendt, 2017 WL 2332892,
¶¶34-36 (Ariz. App., May 30, 2017) (insurer’s in-house counsel awarded attorney’s fees as a
sanction under Rule 77).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

10/11/2021

Docket Code 019
Form V000A
Page 7

Ms. Baron also cited a number of California appellate cases in which in-house counsel
were awarded attorney’s fees. All of these cases, however, were decided under California Civil
Code section 1717(a), which provides in pertinent part as follows:

In any action on a contract, where the contract specifically provides that
attorney’s fees and costs, which are incurred to enforce that contract, shall be
awarded either to one of the parties or to the prevailing party, then the party
who is determined to be the party prevailing on the contract, whether he or she
is the party specified in the contract or not, shall be entitled to reasonable
attorney’s fees in addition to other costs.

As in the other cases cited above, the California cases rely upon a statute that is not only
inapplicable to the facts of this case, but does not contain the limitation in A.R.S. §12-341.01(B).
Likewise, Ms. Baron listed federal case citations, as well as numerous case citations in a footnote
from other jurisdictions in which in-house counsel were awarded attorney’s fees based on hourly
rates in the legal community. It appears that none of these foreign cases pertained to attorney’s
fees under a statute like A.R.S. §12-341.01(B).

Fortunately, there are a few Arizona cases that discuss the components of a request for
attorney’s fees by governmental attorneys or in-house counsel under A.R.S. §12-341.01. In the
seminal case of Lacer v. Navajo County, 141 Ariz. 392 (App. 1984), Navajo County sought an
award of attorney’s fees at $70.00 per hour. The Court of Appeals, noting that such a fee may be
reasonable, held that A.R.S. §12–341.01(B) requires that the amount awarded “not exceed the
amount paid or agreed to be paid.” Lacer, 141 Ariz. at 396. The Court further held that Navajo
County could not “receive greater than its actual hourly cost, irrespective of the reasonableness
of the hourly fee requested.” Id. [emphasis added]. The Court noted that Navajo County had not
provided evidence of the hourly cost actually incurred by the County. Id.

The Court then set forth general guidelines for attorney’s fee requests for governmental
attorneys, which would be applicable to in-house counsel, as follows: 1) the share of the party’s
attorney’s salaries which are allocable to the case based upon the time expended, and 2) allocated
shares of the costs of office space, support staff, office equipment and supplies, law library and
continuing legal education. Id.

In Barth v. Cochise County, 213 Ariz. 59, ¶19 (App. 2006), the Court of Appeals, relying
on Lacer, approved a request from Cochise County that contained an affidavit that based the hourly
rate on the attorney’s “hourly rate of pay, the reasonable costs of associated support staff, the costs
of equipment and materials allocated to this effort, administrative costs, and other direct and
indirect costs incurred by the County.” Id. at ¶20.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

10/11/2021

Docket Code 019
Form V000A
Page 8

Lastly, in an unreported case, the Court of Appeals affirmed the trial court’s award of
attorney’s fees for a title insurer’s in-house counsel, in which the affidavit set the attorney’s hourly
rate that was based on “attorneys’ salaries ... costs of office space, support staff, office equipment
and supplies, law library and continuing legal education.” HSBC Bank USA, N.A. v. Cluff, 2018
WL 5117167 at ¶37. This case, while not precedential, has persuasive value, because it pertained
to similar counsel as in this case.

The facts are undisputed that Ms. Baron has no contract to pay or agree to pay anything to
her counsel. The fact that she may have paid premiums to the insurer does not equate with an
agreement to pay legal fees to her counsel. There is no evidence that CSAA, counsel’s employer,
has a contract with in-house counsel to pay them $350.00 per hour, as requested by Ms. Barons’
counsel. In the absence of evidence, the Court must presume that CSAA has agreed to pay its in-
house counsel an annual salary to handle many cases. No evidence was presented as to counsel’s
annual salary. No evidence was presented as to the share of CSAA’s attorney’s salaries which are
allocable to this case based upon the time expended, and no evidence was presented as to the
allocated shares of the costs of office space, support staff, office equipment and supplies, law
library and continuing legal education.

Plaintiff did not object to Amanda Nelson’s time entries. The Court finds that the time
incurred appeared to be reasonable. However, the Court finds that Amanda Nelson’s affidavit did
not satisfy the directives in Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183 (App. 1983),
because it failed to provide a reasonable basis for the hourly rate requested by Ms. Nelson as
required by Lacer.

An award of attorneys’ fees under A.R.S. §12-341.01 is permissive; there is no requirement
that the trial court grant fees to the prevailing party in a contested contract action. Title Insurance
discretion to determine whether a party is entitled to an award of attorneys’ fees under A.R.S. §12-
341.01(A). Associated Indemnity Corp. v. Warner, 143 Ariz. at 570.

For the reasons stated herein, Ms. Baron’s counsel has failed to show a reasonable basis
for the amount requested, and there is no basis to award any amount of attorney’s fees to Ms.
Baron.

In Lacer, because it was a case of first impression, the Court of Appeals remanded the case
to allow the County to submit an amended application based on the newly-created guidelines
provided in Lacer. However, Lacer provided these guidelines nearly 30 years ago. Thus, the
application of these guidelines for in-house counsel should come as no surprise to Ms. Baron’s
attorney, especially since Lacer and its prodigy were cited in Ms. Baron’s supplemental
memorandum. Thus, Ms. Baron’s attorneys are not entitled to a second bite at the apple to submit
a new application. Ms. Baron’s counsel failed to present a proper application for attorney’s fees.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

10/11/2021

Docket Code 019
Form V000A
Page 9

Taxable Costs and Rule 68 Sanction

Ms. Baron is requesting an award of reasonable expert witness fees, taxable costs, and
double Ms. Baron’s taxable costs incurred after the offer of judgment was made, pursuant to Rule
68 of the Rules of Civil Procedure.

Rule 68(a) provides that “any party may serve upon any other party an offer to allow
judgment to be entered in the action.”

Rule 68(g) provides:

If the offeree rejects an offer and does not later obtain a more favorable
judgment ... the offeree must pay, as a sanction, reasonable expert witness fees
and double the taxable costs, as defined in A.R.S. § 12–332, incurred by the
offeror after making the offer and prejudgment interest on unliquidated claims
to accrue from the date of the offer.

Rule 68 requires specificity. Greenwald v. Ford Motor Co., 196 Ariz. 123, ¶5 (App. 1999).
The Offer must 1) contain a specific monetary sum to settle the asserted causes of action; 2) must
contain a specific monetary sum for attorneys’ fees; and 3) be specific enough so that it can be
determined, at the time of judgment, whether the offer or the judgment favored the offeree. Id. at
¶6.

An award of sanctions pursuant to Rule 68(g) is mandatory. Arellano v. Primerica Life Ins.
Co., Co., 235 Ariz. 371, ¶48 (App. 2014). See also Levy v. Alfaro, 215 Ariz. 443, ¶8 (App. 2007)
(holding that an award of sanctions is mandatory if the party has complied with Rule 68).

Ms. Baron’s offer of judgment was served on Plaintiff’s counsel on March 14, 2019
(Exhibit A to Ms. Baron’s Verified Statement of Costs and Motion for Rule 68 Sanctions). Ms.
Baron offered to settle the claims against her by paying Plaintiff the amount of $1,000, inclusive
of attorney’s fees and costs. The offer of judgment complied with the requirements of Rule 68.

Plaintiff rejected the offer. Based on the summary judgment ruling, Plaintiff did not receive
a more favorable judgment than the offer.

Plaintiff agreed that Ms. Baron was entitled to sanctions under Rule 68, but objected to Ms.
Baron’s expert fees as being unreasonable. Plaintiff’s objection was generic and conclusory.
Plaintiff largely relied upon a “general” rule that “lawyers are generally held to a 1 hour per page
of legal writing standard with respect to reasonableness of attorneys’ fees….” Based on this,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-052668

10/11/2021

Docket Code 019
Form V000A
Page 10

Plaintiff argued that expert’s fees should be based on the same rule, if not a more restrictive one.
This Court is unaware of such a rule, and has never applied that rule to a determination of
reasonable attorney’s fees. After reviewing the expert’s invoice in Exhibit B to the Motion for
Rule 68 Sanctions, the Court finds that the expert’s fees appear to be reasonable, and should be
allowed.

The Court has reviewed the remainder of Exhibit B, and finds that the items requested are
allowable as mandatory sanctions under Rule 68, and as taxable costs under A.R.S. §§12-341 and
12-332. Ms. Baron is entitled to Rule 68 sanctions in the amount of $2,323.45.

IT IS ORDERED that no judgment for attorney’s fees shall be awarded against Plaintiff
due to Ms. Baron’s failure to provide sufficient evidence as to an amount of attorney’s fees to
which she would be legally entitled.

IT IS FURTHER ORDERED that Judgment shall be separately entered against Plaintiff
in the amount of $2,323.45, as mandatory sanctions under Rule 68 of the Rules of Civil Procedure.

IT IS FURTHER ORDERED that this Ruling is entered as an Order of the Court.

Dated: October 11, 2021

/s/ HONORABLE THEODORE CAMPAGNOLO

HON. THEODORE CAMPAGNOLO

JUDGE OF THE SUPERIOR COURT

Documents