02/09/2009 — CV2008015560 INC, PIPELINE DYNAMICS 02/09/2009 HONORABLE BETHANY G. HICKS View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
02/10/2009 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-015560
02/09/2009
Docket Code 095
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE BETHANY G. HICKS
C. Castro
Deputy
PIPELINE DYNAMICS INC
D KIM LOUGH
v.
PONTICELLO L L C, et al.
ROBERT P LINDFORS
JOHN G RYAN
ORAL ARGUMENT RESET
On the Court's own motion,
IT IS ORDERED vacating oral argument on February 27, 2009, and resetting same to
March 3, 2009, at 10:30 a.m. (15 minutes) in this division.
03/03/2009 — CV2008015560 INC, PIPELINE DYNAMICS 03/03/2009 HONORABLE BETHANY G. HICKS View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
03/06/2009 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-015560
03/03/2009
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE BETHANY G. HICKS
D. Whitford
Deputy
PIPELINE DYNAMICS INC
D KIM LOUGH
v.
PONTICELLO L L C, et al.
ROBERT P LINDFORS
ORAL ARGUMENT
MOTIONS TAKEN UNDER ADVISEMENT
PRETRIAL CONFERENCE VACATED
10:29 a.m. This is the time set for Oral Argument on Mortgage Equities XIII, LLC’s
Motion for Summary Judgment Against Pipeline Dynamics, Inc. and Pipeline Dynamics, Inc.’s
Cross-Motion for Summary Judgment. Plaintiff is represented by counsel D. Kim Lough.
Mortgage Equities XIII, LLC is represented by counsel Robert Lindfors. John Peterson,
president of Pipeline Dynamics, Inc., is present with counsel Lough.
Court reporter, Michael Babicky, is present.
Oral argument having been presented,
IT IS ORDERED taking the following motions under advisement:
•
Mortgage Equities XIII, LLC’s Motion for Summary Judgment Against Pipeline
Dynamics, Inc. and
•
Pipeline Dynamics, Inc.’s Cross-Motion for Summary Judgment
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-015560
03/03/2009
Docket Code 020
Form V000A
Page 2
LET THE RECORD REFLECT that Plaintiff’s counsel will provide the Court with
authority regarding his position.
IT IS FURTHER ORDERED vacating the Comprehensive Pretrial Conference set for
March 9, 2009 at 9:00 a.m. pending the Court’s ruling on the Cross-Motions for Summary
Judgment.
11:00 a.m. Oral argument concludes.
NOTE: The parties are advised that failure to appear at a hearing may result in sanctions,
including a Default Judgment.
03/11/2009 — CV2008015560 INC, PIPELINE DYNAMICS 03/11/2009 HONORABLE BETHANY G. HICKS View Minute Entry ↑ top
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Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
03/17/2009 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-015560
03/11/2009
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE BETHANY G. HICKS
D. Whitford
Deputy
PIPELINE DYNAMICS INC
D KIM LOUGH
v.
PONTICELLO L L C, et al.
ROBERT P LINDFORS
RULING ON MATTERS TAKEN UNDER ADVISEMENT
On March 3, 2009, the Court heard oral argument on defendant Mortgage Equities XIII, L.L.C.’s
Motion for Summary Judgment and plaintiff Pipeline Dynamics, Inc.’s Cross Motion for
Summary Judgment, following which the Court took the matter under advisement.
Although the pleadings are unclear, and in some respects in conflict, it appears that, on or about
June 7, 2005, Ponticello, LLC borrowed $7.3 million from Merchants Funding, LLC to acquire
and development a parcel of real property located in Maricopa County, Arizona. On or about
October 31, 2005, Ponticello entered into an agreement with plaintiff Pipeline Dynamics to
construct water, sewer and storm drain improvements on the property and commenced
construction on or about December 26, 2005. Thereafter, on or about August 2, 2006, Ponticello
borrowed $7.5 million from Cattlemen’s Mortgage and Investment Corporation and applied
approximately $5,145,524.72 to pay the outstanding balance on the Merchants Funding loan.
Subsequently, the project appears to have encountered difficulties and, on or about May 21,
2008, the property was sold to defendant Mortgage Equities at a trustee’s sale. The pleadings
and argument of the parties suggest, although not definitively, that Mortgage Equities acquired
the property by purchasing (at some price) and taking an assignment of the Cattlemen’s
Mortgage loan and submitting a credit bid equal to all or a portion of the outstanding balance of
the Cattlemen’s Mortgage loan, although the plaintiff Pipeline Dynamics has asserted that
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-015560
03/11/2009
Docket Code 019
Form V000A
Page 2
Mortgage Equities paid cash in the amount of $7,710,308.54 to purchase the property at the
trustee’s sale.
Absent the foregoing information, the Court is unable to determine whether, and, if so, to what
extent, the doctrine of “equitable subrogation” may or may not apply in this case and, even if it
does, whether there are moneys that should have been available from which the plaintiff’s lien
claim could and should properly have been paid in order to avoid the prejudice or injustice
referenced in Lamb Excavation, Inc. v. Chase Manhattan Mortgage Corporation, 208 Ariz. 478,
95 P.3d 542 (App. Div. 2004), and the many cases cited therein.
Accordingly, defendant Mortgage Equities’ Motion for Summary Judgment and plaintiff
Pipeline Dynamics’ Cross-Motion for Summary Judgment are denied.
12/31/2008 — CV2008015560 INC, PIPELINE DYNAMICS 12/31/2008 HONORABLE BETHANY G. HICKS View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
01/02/2009 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-015560
12/31/2008
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE BETHANY G. HICKS
D. Whitford
Deputy
PIPELINE DYNAMICS INC
D KIM LOUGH
v.
PONTICELLO L L C, et al.
ROBERT P LINDFORS
JOHN G RYAN
ORAL ARGUMENT SET
COMPREHENSIVE PRETRIAL CONFERENCE SET
IT IS ORDERED setting Oral Argument for February 27, 2009 at 11:30 a.m. in this
division on the following motion:
•
Mortgage Equities XIII, LLC’s Motion for Summary Judgment Against Pipeline
Dynamics, Inc.
Judge BETHANY G. HICKS
Maricopa County Superior Court
East Court Building
101 W. Jefferson, Courtroom 811
Phoenix, Arizona 85003
(602) 506-2139
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-015560
12/31/2008
Docket Code 094
Form V000A
Page 2
Counsel’s arguments are limited to five (5) minutes per side. If additional time is requested,
counsel shall contact the Court.
Unless otherwise advised by the Court at oral argument, the parties should assume that
the Court has reviewed the parties’ memoranda. Accordingly, the parties should be prepared to
focus on the key issues in dispute and to answer questions from the Court.
If the parties’ Motions contain citations to out-of-state cases, that party shall
provide the Court with copies of those cases.
On the Court’s own motion,
IT IS ORDERED setting a telephonic Comprehensive Pretrial Conference for March 9,
2009 at 9:00 a.m., with Plaintiff to initiate call to this Division, telephone number 602-506-
2139.
Suggestions to conference call attendees calling from outside the court system:
•
Do not use a speaker phone.
•
Do not use a cell phone. If possible, use a desk phone.
•
Avoid noisy areas.
•
Mute phone when not speaking.
•
State your name every time you address the Court.
IT IS FURTHER ORDERED that the parties shall submit a Joint Pretrial Memorandum
as set forth below.
The Court will review the Joint Pretrial Memorandum and proposed discovery and
disclosure order, required below. If the dates are mutually agreeable to all parties, then the
parties may incorporate the order by reference. The Court may set a trial date and a trial
management conference date at that time. The Court may also adopt the discovery and
disclosure schedule order and set a scheduling conference after the completion of disclosures or
the Court may place the matter back on the Inactive Calendar for a period of time for counsel to
complete the requirements under Rule 38.11. If counsel feel a pretrial conference is still
necessary at this stage of the litigation, they should address the reasons for the need for a pretrial
conference in the first paragraph of the Joint Pretrial Memorandum.
1 The Court will strictly enforce Rule 38.1(a)(3)(I) and Local Rule 3.4.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-015560
12/31/2008
Docket Code 094
Form V000A
Page 3
If the parties fail to file a timely memorandum, sanctions may issue pursuant to Rule
16(f).
IT IS FURTHER ORDERED:
All counsel are directed to meet personally to discuss all of the matters set forth in Rule
16(b). Counsel shall prepare and file with the Court, 5 days prior to the Pre-Trial Conference, a
Joint Pretrial Memorandum, and prepare a proposed order for Discovery and Disclosure
deadlines with dates certain. The proposed order shall include dates certain for the following
items.
The proposed order shall include dates for the following items.
1.
An agreed-upon schedule for completion of non-expert depositions. As far as
can reasonably be anticipated, each party shall set forth the depositions they
anticipate taking and the approximate time required for each; any and all medical
examinations which may be required of any of the parties; the person or persons
to conduct such examinations; all requests for production; and all tangible
evidence to be disclosed or exchanged.
2.
A date for the final disclosure of expert witnesses, and/or to supplement
disclosures made to date.
3.
A date or dates for the final disclosure of all non-expert witnesses, and/or to
supplement disclosures made to date.
4.
A date by which all written discovery will be propounded and concluded. Further,
counsel shall set forth any written discovery outstanding and a date when it will be
complete.
5.
The position of each counsel on whether the Rule 38.1 time limits should be
waived.
6.
A proposed date for a Mandatory Settlement Conference pursuant to Rule 16.1
A.R.C.P.
7.
An agreed-upon date for compliance with Rule 16(d). The parties shall attach a
copy of the Rule 16(g) form so the Court can issue the appropriate order for
Alternate Dispute Resolution.
8.
Set forth any discovery disputes to date or Rule 26.1 compliance issues.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-015560
12/31/2008
Docket Code 094
Form V000A
Page 4
9.
A date for completion of all discovery, including expert discovery.
10.
A date by which all dispositive or partially-dispositive motions shall be filed.
11.
A proposed trial date agreed upon by all counsel and anticipated length of trial.
If the parties agree as to the dates, they need only prepare the proposed order and
incorporate it by reference. If counsel are unable to agree on any of the items of the Pretrial
Statement, the reasons for their inability to agree shall be set forth in the Pretrial Statement and
each shall prepare a separate proposed order.
IT IS FURTHER ORDERED that should any discovery disputes arise, counsel shall
MEET AND CONFER pursuant to Rule 37, then telephonically contact the Court to set up a
telephonic conference before any motions are filed.
IT IS FURTHER ORDERED that counsel shall notify the Court of any agreed-upon
extension of any time period provided by the Rules of Civil Procedure. The purpose of this order
is not to discourage extensions as a matter of professionalism, but to ensure that no party suffers
summary disposition of any issue by virtue of an extension of which the Court is not aware.
Any dispositive motions must be filed within 90 days of trial. Any motions in limine must
be filed within 30 days of trial.
NOTE: The parties are advised that failure to appear at a hearing may result in sanctions,
including a Default Judgment.
