09/14/2022 — LC2022000227 I I I HOMEOWNERS ASSOCIATION, DESERT CROWN 09/14/2022 HONORABLE DANIEL J. KILEY View Minute Entry ↑ top
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Clerk of the Superior Court
*** Filed ***
09/15/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2022-000227-001 DT
09/14/2022
Docket Code 512
Form L512
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CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
J. Eaton
Deputy
DESERT CROWN I I I HOMEOWNERS
ASSOCIATION
EMILY ELIZABETH COOPER
v.
DEBABRATA GUPTA (001)
DEBABRATA GUPTA
11419 E GAMBLE LN
SCOTTSDALE AZ 85262
JUDGE KILEY
MCDOWELL MOUNTAIN JUSTICE
COURT
REMAND DESK-LCA-CCC
RECORD APPEAL REVIEW / REVERSED
McDowell Mountain Justice Court Case No. CC2021124323RC
Defendant/Appellant Debabrata Gupta (“Appellant”) appeals from the March 30, 2022
judgment that the McDowell Mountain Justice Court entered against him and in favor of
Plaintiff/Appellee Desert Crown III Homeowners Association (“Appellee” or the “Association”).
For the following reasons, this Court reverses the Judgment and remands for further proceedings.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
Appellant owns real property (the “Property”) located at 11419 East Gamble Lane in
Scottsdale, Arizona. The Property is subject to a declaration of covenants, conditions and
restrictions that was recorded in 1996. See Declaration of Covenants, Conditions, and
Restrictions for Desert Crown III (“Declaration”), attached as Exhibit B to Complaint.
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MARICOPA COUNTY
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Form L512
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On or about August 4, 2021, the Association filed a Complaint against Appellant in
McDowell Mountain Justice Court, alleging that, “[p]ursuant to the Declaration” and “by virtue
of [his] ownership of property within the Association,” Appellant “agreed to pay” “annual
maintenance assessments,” “special and/or fine assessments,” and “other charges.” Complaint at
p. 2. The Association further alleged that Appellant “breached said agreement” and was
“indebted” to the Association “in the amount” of $3,123.05.” Id. Further, it alleged, “[t]he
assessment levied against” Appellant was “continuing to accrue monthly at a rate of” $51.45,
“plus…periodic late charges” and “fines.” Id.
On September 7, 2021, Appellant filed an Answer in which he denied the Association’s
substantive allegations, insisting that he “has been paying Homeowners dues to the [Association]
every month.” Answer at p. 1. He further asserted that the Association imposed fines on him that
are “baseless.” Id. at p. 3. He explained, for example, that he has been fined for his
“failure/unwillingness” to “paint the exterior of [his] home” even though the Association has
never explained “on what basis was this being asked for.” Id. at p. 2. The Association had no
justification for requiring him to re-paint his house, he argued, adding that “the paint” on his
neighbor’s house “looks exactly like” the paint on his house. Id.
Along with his Answer, Appellant asserted certain counterclaims against the Association,
asking that the Association be ordered to (1) send him a written “Letter of Apology”; (2) “do
remedial service” by “providing free Weed Cleaning” at his house “for the next 6 mo.s.”; (3)
“complete the repairs to the Holding Pond they had agreed to at the General Meeting in Oct
2018”; and (4) “[i]mmediate[ly] change” the “Modus Operandi” of its “HOA Agent AmCor.”
Answer at p. 5.1
The Association moved to dismiss Appellant’s counterclaims, asserting, inter alia, that
Appellant “fail[ed] to state a valid claim” for relief or to identify “any legal theory” under which
he would be entitled to the relief he requested. [Association’s] Motion to Dismiss Counterclaim
(“Motion to Dismiss”) at p. 3. Appellant filed a response (which he erroneously identified as a
“reply”) on October 18, 2021. Shortly thereafter, the trial court granted the Motion to Dismiss.
See Order Dismissing Counterclaim With Prejudice dated November 4, 2021.
In December 2021, the Association filed a Motion for Summary Judgment in which it
requested “summary judgment in the principal amount of $4,204.50, which represents past due
assessments, late charges, pre-litigation attorney fees, fines, and other charges which are
1 Although it is not entirely clear, the phrase “HOA Agent AmCor” appears to refer to the Association’s
management company.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2022-000227-001 DT
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Docket Code 512
Form L512
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unpaid…as of November 29, 2021.” Motion for Summary Judgment (“MSJ”) at p. 2. The
Association asserted that Appellant owns real property that is “subject to” the Declaration, and
that, pursuant to the Declaration, Appellant “agreed to pay all assessments, late charges, interest,
fines, attorney fees, and other charges levied by the Association.” Id. at pp. 2, 3. Appellant
“breached the Declaration,” the Association asserted, “by failing to pay the assessments, fines,
and related charges.” Id. at p. 4. The Association acknowledged that Appellant “made partial
payments,” but insisted that his “account remains delinquent.” Id. The Association concluded by
asserting that, after “credit[ing] [Appellant’s] account for any and all payments made toward the
account,” Appellant “remains indebted to the Association” in “the principal amount of
$4,204.50.” Id.
In support of its MSJ, the Association submitted a copy of the Declaration and recorded
documents reflecting ownership of the real property at issue. See Exhibits B, C, and D to MSJ.
The Association also submitted, as Exhibit E to its MSJ, a document it described as “an
accounting…that supports the principal amount alleged in [the] Complaint.” MSJ at p. 5 and
Exhibit E thereto. Exhibit E to the MSJ, which will be referred to herein as the “Ledger,”
consists of a chart of columns of line items under such headings as “date,” “description,”
“amount,” and “balance.” See generally Ledger. The Association provided no evidence,
however, about how the Ledger was created, nor does anything in the Ledger explain the basis
for the dollar figures set forth therein. See generally id. Additionally, the Association submitted,
as Exhibit A to the MSJ, the affidavit (the “Thomas Affidavit”) of Robin Thomas (“Thomas”),
who is identified as an “employee of” the Association’s “management agent.” Exhibit A to MSJ,
Thomas Affidavit, at ¶ 1.2
Appellant filed a response to the MSJ on January 7, 2022. See generally Response to
Motion for Summary Judgment (“Response to MSJ”). Although Appellant’s Response to MSJ is
difficult to follow, the arguments he raised in the Response to MSJ include his assertion that the
Association “failed to prove” the “violations” it alleged, and that the Association’s “claim[] that
there are NO DISPUTES” was not true. Id. at pp. 1, 11.
In its reply in support of its MSJ, the Association asserted that Appellant’s Response to
MSJ “fails to dispute the outstanding balance.” [Association’s] Reply in Support of Its Motion
for Summary Judgment at p. 2. The Association further asserted that Appellant “failed to provide
2 The affidavit that the Association originally submitted with its MSJ was unsigned. The Association
later supplemented its MSJ with a copy of the Affidavit signed by Thomas. See Notice of Lodging
Declaration of Association filed December 10, 2021 and Exhibit A thereto.
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any evidence disputing the accounting ledgers,” and that he “[t]herefore...has failed to allege a
material fact in genuine dispute as to the principal balance.” Id.
On February 24, 2022, the trial court granted the MSJ. See Order Granting Motion for
Summary Judgment dated February 24, 2021 at p. 1. The trial court subsequently entered a
judgment awarding the Association damages in the principal amount of $4,204.50 along with
attorney fees of $9,517.50.00 and court costs of $244.04. Judgment dated March 30, 2022
(“Judgment”) at pp. 1-2.
Appellant filed a timely Notice of Appeal. This Court has jurisdiction pursuant to Ariz.
Const. art. VI, § 16 and A.R.S. §§ 12-124, 22-261.
DISCUSSION
The Court has reviewed and considered Appellant’s Appellant Memorandum, which will
be referred to herein as the “Opening Memorandum or “O.M.” The Court has also reviewed and
considered Appellee’s Memorandum on Appeal, which will be referred to herein as the
“Answering Memorandum” or “A.M.” Although Appellant has requested Oral Argument, the
Court finds the parties’ arguments well-presented in the briefings, and so will rule without Oral
Argument as permitted by S.C.R.A.P. – Civ. 11.
In his Opening Memorandum, Appellant argues that the trial court erred in granting the
MSJ because “the requirements for Summary Judgment” were “NOT met.” O.M. at p. 6. The
Association “had argued for Summary Judgment on the grounds that…there is no genuine issue
as to ANY material fact,” he asserts, “[b]ut this is NOT true.” Id. at p. 7. On the contrary,
Appellant contends, he “submitt[ed] evidence” to prove “that [Appellee’s] claims are baseless,”
but his evidence was “ignored.” Id. at p. 6. Because the Association “did NOT satisfy
requirement [sic] for Summary Judgment,” Appellant concludes, “[i]t is requested that” this
Court “reverse the original judgment of Feb 24, 2022 and the award of April 2, 2022 to
[Appellee].” Id. at pp. 8, 9-10.3
3 In his Opening Memorandum, Appellant does not challenge the trial court’s November 4, 2021 ruling
dismissing his counterclaims. See generally Opening Memorandum. Appellant could hardly do so; the
trial court’s ruling dismissing his counterclaims was clearly correct. After all, the relief that a justice
court is authorized to grant is limited to that set forth in statute. See A.R.S. § 22-201. Such relief does
not include issuing the orders Appellant requested in his counterclaims, such as orders requiring the
Association to send him a written apology, to change its management company’s “Modus Operandi,”
and to “provid[e]” him with free Weed Cleaning” for “the next 6 mo.s.” Answer at p. 5.
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MARICOPA COUNTY
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Form L512
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In response, Appellee asserts that “the trial court did not commit any error in weighing
the evidence presented from both sides” and “award[ing] judgment in favor of the Association.”
A.M. at p. 2. It argues that “[t]he Association presented a valid prima facie case against”
Appellant, and that Appellant subsequently failed to establish “that the Association [was] not
entitled to judgment as a matter of law” because he failed to show “a disputable genuine issue of
material fact.” Id. at p. 8.
A party that moves for summary judgment bears the burden of making a prima facie
showing of its entitlement to judgment as a matter of law. See, e.g., Nat’l Bank of Ariz. v.
Thruston, 218 Ariz. 112, 114-15 ¶ 12 (App. 2008). “Only if the moving party satisfies this
burden” does the burden shift to the non-moving party “to come forward with evidence
establishing the existence of a genuine issue of material fact that must be resolved at trial.” Id.
trial. If the moving party fails to make the requisite prima facie showing, summary judgment
must be denied even if the non-moving party fails to file any response at all. See Schwab v. Ames
Constr., 207 Ariz. 56, 60 ¶ 16 (App. 2004) (“[I]f a moving party’s summary judgment motion
fails to show an entitlement to judgment, the nonmoving party need not respond to controvert the
motion.”).
In support of its MSJ, the Association attached a copy of a Ledger that includes various
line items for “monthly assessment[s]” and “fines” with associated dollar amounts. See Exhibit E
to MSJ. Nothing in the Ledger, however, purports to explain how the Ledger was created.
Likewise, nothing in the Ledger purports to explain the line items set forth therein or the dollar
amounts listed. See generally id. Although, for example, the Ledger contains a line item dated
“11/09/2021” with an “amount” of $2,884.59 and a “description” that reads, “MAXWELL
INV/2021/3693 2021,” id. at p. 2, nothing in the Ledger purports to explain what this charge
represents, or why Appellant should be expected to pay it.
Similarly, although the Ledger contains multiple line items with descriptions that include
the word “violation,” nothing in the Ledger indicates what Appellant did or failed to do that
purportedly “violated” any obligation. For example, although the Ledger indicates that a charge
of $100.00 was imposed on “7/6/2021” for what is described only as “Violation Yard,” Exhibit E
to MSJ at p. 3, nothing in the Ledger explains what, exactly, Appellant did to merit the
imposition of this $100.00 fine.
Likewise, the Ledger includes eight different line items for “Pre-litigation attorney fees
and costs,” in amounts ranging from $4.50 to $175, Exhibit E to MSJ at p. 3, the Ledger gives no
indication of what these fees and costs represent. Id.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2022-000227-001 DT
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Docket Code 512
Form L512
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Because the Ledger contains no explanation for the charges listed therein, the Ledger, by
itself, has little evidentiary value. Certainly, the Ledger, by itself, is insufficient to establish the
Association’s entitlement to judgment as a matter of law.
In order to give meaning to the figures listed in the Ledger, the Association was required
to submit an affidavit explaining how the Ledger was prepared and providing a factual basis for
the figures therein. A review of the Thomas Affidavit shows that it makes no attempt to do so.
Nothing in the Thomas Affidavit explains how the Ledger was created. See generally Affidavit.
Nothing in the Thomas Affidavit identifies any specific act or omission by Appellant that
purportedly constituted a breach of an obligation he purportedly had. See generally id. Indeed,
the Thomas Affidavit does not even mention the Ledger at all. See generally id.
Instead of attempting to explain and/or justify the figures listed in the Ledger, the
Thomas Affidavit simply states, in conclusory terms, that, based on Thomas’s “personal
experience” and “review of Association documents and records” - - documents and records that
Thomas never identifies - - Thomas has concluded that Appellant “breached” his obligations
under the Declaration “by failing to pay the assessments, monetary penalties and all other
charges and fees owed.” Exhibit A to MSJ at ¶¶ 2, 9. Accordingly, Thomas has concluded,
Appellant “is indebted to the Association…in the principal amount of $4,204.50.” Id. at ¶ 10.
The Arizona Court of Appeals has already held that conclusory assertions of the sort
found in the Thomas Affidavit are wholly insufficient to establish the moving party’s entitlement
to summary judgment. See Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209 (App. 2012). In Allen,
a bank that had sued the defendants for unpaid credit card charges filed a motion for summary
judgment that was supported by the affidavit of a bank employee and a summary chart
purporting to reflect that no payments had been received during the time period covered by the
chart. 231 Ariz. at 211 ¶ 4, 212 ¶ 7. The employee’s affidavit “made a general avowal” that the
employee was the bank’s “custodian of records” and that he had “personally reviewed records
that established the amount of” the indebtedness. Id. at 213-14 ¶ 18. The records that the affiant
purportedly reviewed were, however, “neither described nor attached.” Id. Moreover, in his
affidavit, the affiant neither identified “any specific documents” that he reviewed nor
“claimed…to know the manner in which” the unidentified documents “were prepared and kept.”
Id. at 214 ¶ 19. Further, nothing in the affidavit “provide[d] a reviewing court with the means to
evaluate the accuracy of the [affiant’s] calculation of the amount claimed to be due.” Id. ¶ 18.
The Allen court concluded by holding that “conclusory affidavits” that merely set forth
“liquidated amounts” are not “sufficient” to establish the moving party’s “entitlement to
judgment as a matter of law.” Id. at 214-15 ¶¶ 20-21.
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MARICOPA COUNTY
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Form L512
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Since Allen was decided, the Court of Appeals has made clear, in two unpublished
memorandum decisions, that a court cannot simply defer to the plaintiff’s avowal that the
defendant owes a debt, and that the plaintiff’s affiant must do more than simply “identify” or
“describe” the documents he or she reviewed that purportedly establish the defendant’s
indebtedness. Instead, the affiant must supply copies of those documents for the court’s own
independent review. Additionally, the affiant must describe the manner in which those
documents were created in enough detail to allow the court to determine that the figures on the
documents can be trusted. See Copper State Fin. Mgmt., LLC v. High Valley Builders, LLC, 2016
WL 275458 at *4 ¶ 13 (Ariz.App., Div. 1, Jan. 21, 2016) (affidavit in support of motion for
summary judgment to recover on a debt “must substantively address the accompanying evidence
well enough to establish its credibility and allow a court to review its accuracy”); CACH, LLC v.
Martin, 2015 WL 5620322 at *3 ¶ 16 (Ariz.App. Div. 1, Sept. 24, 2015) (affidavit “which
summarily recited an amount owed and little else” was insufficient to sustain summary
judgment).
Allen and subsequent appellate decisions stand for the proposition that a plaintiff moving
for summary judgment cannot meet its burden of establishing its entitlement to judgment in its
favor merely by submitting an affidavit avowing, in conclusory terms, that the affiant has
reviewed unidentified documents and decided that the defendant owes money. The court cannot
blindly accept the plaintiff’s avowal of the amount owed; the plaintiff must provide the court
with enough information to allow the court to independently determine that the defendant does,
in fact, owe the amount the plaintiff claims. To make this showing, the plaintiff must supply to
the court the underlying documents that establish the defendant’s indebtedness, and must provide
an affidavit that explains the underlying documents in enough detail to allow the court can make
a finding that the information contained in the documents is accurate.
Here, the Thomas Affidavit makes no reference to the Ledger or the figures set forth
therein. Moreover, although the Thomas Affidavit states that Thomas reviewed unidentified
“documents and records,” Thomas Affidavit at ¶ 2, the Association never supplied the trial court
with copies of any of the documents that Thomas reviewed. Indeed, the Thomas Affidavit does
not even identify those documents, or indicate that Thomas has any familiarity with the manner
in which they were prepared. And although the Thomas Affidavit asserts in conclusory terms
that Appellant is “indebted to the Association…in the amount of $4,204.50,” Thomas Affidavit
at ¶ 10, neither the Thomas Affidavit nor any other exhibit submitted by Appellee provided the
trial court with a means to evaluate the accuracy of Thomas’s calculation. Pursuant to Allen, the
Thomas Affidavit and the other exhibits submitted by the Association in support of its MSJ are
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2022-000227-001 DT
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Docket Code 512
Form L512
Page 8
insufficient as a matter of law to establish the Association’s entitlement to judgment as a matter
of law.
Because the Association’s MSJ failed to make the requisite prima facie showing of the
Association’s entitlement to judgment as a matter of law, the trial court erred in granting the
Association’s MSJ. See Schwab, 207 Ariz. at 60 ¶ 16 (“[I]f a moving party’s summary judgment
motion fails to show an entitlement to judgment, the nonmoving party need not respond to
controvert the motion.”). Accordingly, the Judgment must be reversed and the matter remanded
for further proceedings.
CONCLUSION
In accordance with the foregoing,
IT IS ORDERED reversing the judgment entered by the McDowell Mountain Justice
Court in this matter on March 30, 2022.
IT IS FURTHER ORDERED remanding this matter to the McDowell Mountain Justice
Court for further appropriate proceedings.
No matters remain pending in connection with this appeal. This is a final order. See Rules
12(c), 12(d), 14(b), Sup. Ct. R. App. P. – Civil and Rule 54(c), Ariz. R. Civ. P.
/s/ Daniel J. Kiley
THE HON. DANIEL J. KILEY
Judge of the Superior Court
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