03/10/2025 — CV2023093035 CONDOMINIUM ASSOCIATION, DESERT COVE 03/10/2025 HONORABLE ADAM D. DRIGGS View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
03/11/2025 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-093035
03/10/2025
Docket Code 049
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE ADAM D. DRIGGS
C. Curley
Deputy
DESERT COVE CONDOMINIUM
ASSOCIATION
MARK A HOLMGREN
v.
B C K COATINGS INC
CHRISTINA W KELLY
JUDGE DRIGGS
JUDGMENT SIGNED
The Court having received and reviewed the Plaintiff’s Notice of Filing Proposed Form of
Judgment filed on December 11, 2024,
IT IS ORDERED granting Judgment in favor of Plaintiff, Desert Cove Condominium
Association, and against Defendant, BCK Coatings, Inc, all in accordance with the formal written
Order signed by the Court on February 13, 2025 and filed (entered) by the Clerk on March 10,
2025.
It is important that counsel and self-represented parties read the order that the court
signed. The Court may have made changes to the order that the parties submitted.
Please note: The court has signed a paper copy of the Order. After the Order has been
scanned and docketed by the Clerk of Court, copies of the Order will be available through the ECR
online at www.clerkofcourt.maricopa.gov or through www.AZTurboCourt.gov and from the
Public Access Terminals at the Clerk of Court’s offices located throughout Maricopa County.
09/24/2024 — CV2023093035 CONDOMINIUM ASSOCIATION, DESERT COVE 09/24/2024 HONORABLE ADAM D. DRIGGS View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
09/25/2024 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-093035
09/24/2024
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE ADAM D. DRIGGS
C. Avena
Deputy
DESERT COVE CONDOMINIUM
ASSOCIATION
MARK A HOLMGREN
v.
B C K COATINGS INC
CHRISTINA W KELLY
JUDGE DRIGGS
ORAL ARGUMENT SET
The Court is in receipt of the following:
Plaintiff’s Motion for Summary Judgment, filed May 31, 2024.
Response to Plaintiff’s Motion for Summary Judgment, filed June 28, 2024.
Reply In Support of Plaintiff’s Motion for Summary Judgment, filed July 18, 2024.
Accordingly,
IT IS ORDERED setting Oral Argument on November 15, 2024 at 11:00 a.m. (time
allotted: 1 hour) in this in this division.
HONORABLE ADAM DRIGGS
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
COURTROOM 813
101 W. JEFFERSON ST.
PHOENIX, AZ 85003.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-093035
09/24/2024
Docket Code 094
Form V000A
Page 2
Your hearing will be conducted through the new TEAMS program offered by the Superior
Court of Arizona in Maricopa County. Hearings are preferably conducted by video-conference but
can also be conducted by phone. Lawyers (and self-represented litigants) are responsible for
distributing this notice to anyone who will be appearing on their behalf.
Virtual Proceedings are held via the Court Connect platform. Please review the brief Court
Connect training prior to the hearing:
https://superiorcourt.maricopa.gov/virtual-justice/.
When you are ready to connect to the proceedings via Court Connect, please follow the
steps below.
1. CLICK THE JOIN MICROSOFT TEAMS MEETING BUTTON BELOW
2. ENTER YOUR FULL NAME AND ROLE IN NAME FIELD.
3. WAIT IN THE LOBBY UNTIL GRANTED ADMISSION BY FACILITATOR.
You can also join by phone if necessary by using the number below with the Conference
ID #
If you have called into your hearing and are still waiting in the lobby after the scheduled
start time, please call the division telephone number at 602-372-5561.
Virtual Courtroom
Please join my Teams meeting from your computer, tablet or smartphone.
https://tinyurl.com/jbazmc-cvj22
You can also dial in using your phone.
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Access Code: 969-248-722#
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.
NOTICE: As of October 14, 2024, the Honorable Adam Driggs’ division will be
relocating to the East Court Building, Courtroom 813, 101 W. Jefferson St., Phoenix, AZ
85003. In-person hearings held on or after October 14, 2024, will be held at this location.
11/15/2024 — CV2023093035 CONDOMINIUM ASSOCIATION, DESERT COVE 11/15/2024 HONORABLE ADAM D. DRIGGS View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
11/19/2024 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-093035
11/15/2024
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE ADAM D. DRIGGS
A. Smith/C. Hall
Deputy
DESERT COVE CONDOMINIUM
ASSOCIATION
MARK A HOLMGREN
v.
B C K COATINGS INC
CHRISTINA W KELLY
JUDGE DRIGGS
MINUTE ENTRY
East Court Building-Courtroom 813
11:07 a.m. This is the time set for a virtual Oral Argument regarding Plaintiff’s Motion
for Summary Judgment, filed May 31, 2024. Plaintiff, Desert Cove Condominium Association is
represented by Counsel, Mark A. Holmgren. Desert Cove Condominium Association Board
President, Bob Fisher, is also present. Defendant, BCK Coatings Inc., is represented by Counsel
of Record, Christina Kelly and Co-Counsel, Chris Enos.
A record of the proceedings is made digitally in lieu of a court reporter.
Discussion is held and arguments are presented.
IT IS ORDERED taking this matter Under Advisement.
11:37 a.m. Matter concludes.
11/25/2024 — CV2023093035 CONDOMINIUM ASSOCIATION, DESERT COVE 11/25/2024 HONORABLE ADAM D. DRIGGS View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
12/04/2024 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-093035
11/25/2024
Docket Code 926
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE ADAM D. DRIGGS
T. Aird
Deputy
DESERT COVE CONDOMINIUM
ASSOCIATION
MARK A HOLMGREN
v.
B C K COATINGS INC
CHRISTINA W KELLY
CHRISTOPHER L ENOS
ANDREW APODACA
JUDGE DRIGGS
UNDER ADVISEMENT RULING
On November 15, 2024, the Court heard argument on Plaintiff’s Motion for Summary
Judgment filed May 31, 2024, the Defendant’s Response to Plaintiff’s Motion for Summary
Judgment filed June 28, 2024, and Plaintiff’s Reply in Support of Motion for Summary
Judgment filed July 18, 2024. At the conclusion of the hearing, the Court took the matter under
advisement and now issues its ruling.
Plaintiff moves for summary judgment asserting that all discovery deadlines have passed,
and that defendants have not disclosed a witness to testify at trial, nor have they disclosed any
competent, admissible evidence that could support a jury finding in their favor.
A motion for summary judgment should be granted “if 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 Sch. v. Reeves, 166 Ariz. 301, 309 (1990); Ariz. R. Civ. P. 56(c)(1).
The party moving for summary judgment must produce evidence that it believes
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-093035
11/25/2024
Docket Code 926
Form V000A
Page 2
demonstrates the absence of a genuine issue of material fact and must explain why summary
judgment is warranted. Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, 115 (App. 2008). 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. Id. at 119. The nonmoving party cannot
then rest on its pleadings, but must call to the court’s attention evidence to explain why the
motion should be denied. Id. “If the party with the burden of proof on the claim or defense
cannot respond to the motion by showing that there is evidence creating a genuine issue of fact
on the element in question, then the motion for summary judgment should be granted.” Orme
Sch. v. Reeves, 166 Ariz. 301, 310 (1990).
“The court does not try issues of fact, but only whether the same are genuine and in good
faith disputed. The mere general statement in a pleading, when attacked by such motion
supported by proof of specific facts in the form of affidavit or deposition, places on the author of
the statement the obligation to present something which will show that when the date of trial
arrives, he will have some proof to support the allegation in the pleading.” Stevens v. Anderson,
75 Ariz. 331, 334 (1953). “[A] party opposing a motion for summary judgment may not rest on
the pleadings; it must respond with specific facts showing a genuine issue for trial.” Kelly v.
NationsBanc Mortg. Corp., 199 Ariz. 284, 287 (App. 2000), citing Doe v. Roe, 191 Ariz. 313,
323 (1998).
In this case, the Court finds that the Plaintiff has demonstrated the absence of a genuine
issue of material fact by producing undisputed facts in the form of affidavits and expert reports.
The Defendant in response relied almost entirely on a two-page affidavit from Robert Welch,
who has been president of Defendant BCK for nearly 25 years. Defendant BCK had not
previously disclosed Mr. Welch as a witness, although their disclosure statement advised that an
agent or representative from BCK would testify as to their versions of the events surrounding the
contract and the work performed under the contract. Perhaps more problematic, Defendant BCK
had not previously disclosed the content of Mr. Welch’s affidavit testimony during the discovery
period.
THE COURT FINDS that Plaintiff has met its burden by offering competent, admissible
evidence demonstrating the existence of a contract, implied warranty, and legal duties that the
defendant breached by performing defective work.
THE COURT FURTHER FINDS that the Plaintiff has presented evidence of the
appropriate repair, the cost of that repair, and the damages already incurred by the Plaintiff in
performing other repairs and patching before and during the lawsuit.
THE COURT FURTHER FINDS that Defendant has failed to offer any competent,
admissible evidence to dispute any material fact, because Mr. Welch was not disclosed as a
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2023-093035
11/25/2024
Docket Code 926
Form V000A
Page 3
witness and a summary of his testimony was not disclosed within the disclosure period.
Additionally, Defendant’s statement of facts and controverting statement of facts include
statements that cite to Mr. Welch’s affidavit but are not supported by the affidavit. The Court
also notes that Defendant did not request to extend disclosure deadlines or demonstrate any good
cause for which the Court would consider extending the disclosure period.
IT IS THEREFORE ORDERED granting Plaintiff’s Motion for Summary Judgment
filed May 31, 2024, and entering summary judgment in Plaintiff’s favor on all counts in the
amount of $1,042,429.24, plus attorneys’ fees and costs.
IT IS FURTHER ORDERED that not later than 20 calendar days after the entry of
this order, Plaintiff may submit an application for an award of attorney’s fees and statement of
costs. If an application or statement is submitted that Defendant wishes to oppose, a response
must be filed not later than 20 calendar days after service. Plaintiff is not permitted to file a
reply unless requested to do so by the court.
IT IS FURTHER ORDERED that not later than 20 calendar days after the entry of
this order, Plaintiff must also submit a proposed form of judgment, leaving blank spaces
for attorney’s fees and taxable costs. That form of judgment may incorporate by reference what
is said here but otherwise should be confined to the amounts being awarded along with
Rule 54(c) language.
