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Maricopa County Superior Court Case CV2020-008714: public docket details, parties, minute entries, documents, and official source links for Gallery Community Association.

Case Number

CV2020-008714

County

Maricopa

Caption

Not captured

Filed

7/27/2020

Case Type

Civil

Judge

Minder, Scott

Location

Downtown

Official Court Record

Official Court Record

Parties

Minute Entries

Clerk of the Superior Court

*** Electronically Filed ***

01/17/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

01/13/2023

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KATHERINE COOPER
L. Gilbert

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
LOUIS W HOROWITZ

STEPHEN BEST
JASON J BOBLICK
LEONARD T FINK
SHANNON G HUFF
RINA K RAI
AMY WILKENS
DENNIS I WILENCHIK
JUDGE COOPER

MINUTE ENTRY

East Court Building – Courtroom 711

9:00 a.m. This is the time set for Oral Argument on the following motions:

 Defendants/Third-Party Plaintiffs K. Hovnanian at Gallery, LLC and K. Hovnanian
Arizona Operations, LLC’s Motion for Partial Summary Judgment Regarding Claims
of Unsupported Defects filed September 30, 2022;
 Defendants/Third-Party Plaintiffs K. Hovnanian at Gallery, LLC and K. Hovnanian
Arizona Operations, LLC’s Motion for Summary Judgment Regarding Each of
Plaintiff’s Causes of Action filed September 30, 2022;

Third Party Defendants Desert Vista, Inc. and Renco, LLC’s Joint Motion for
Summary Judgment filed September 30, 2022; and

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

01/13/2023

Docket Code 020
Form V000A
Page 2

 Third Party Defendant Leblanc Building Co., Inc.’s Joinder in Defendants/Third-
Party Plaintiffs K. Hovnanian at Gallery, LLC and K. Hovnanian Arizona Operations,
LLC’s Joint Motion for Summary Judgment Dated September 30, 2022 filed October
3, 2022.

Plaintiff is represented by counsel, Penny Jane Manship, appearing in person, and Craig
S. Nuss, appearing virtually through the Court Connect platform. Defendants/Third-Party
Plaintiffs K. Hovnanian at Gallery, LLC and K. Hovnanian Arizona Operations, LLC are
represented by counsel, Dennis I. Wilenchik and Louis Horowitz. Third Party Defendants Desert
Vista, Inc. and Renco, LLC are represented by counsel, Rina K. Rai, appearing virtually through
the Court Connect platform.

A record of the proceedings is made digitally in lieu of a court reporter.

Third Party Defendant Leblanc Building Co., Inc., having filed a Notice of Settlement
and Notice of Withdrawal of its’ pending motion,

IT IS ORDERED that Joinder in Third-Party Defendants Desert Vista, Inc. and Renco,
LLC’s Joint Motion for Summary Judgment Dated September 30, 2022 filed October 3, 2022 is
moot and oral argument on it is vacated.

Third Party Defendant Liberty Constructors LLC, having filed a Notice of Settlement and
Notice of Withdrawal of its’ pending motion,

IT IS ORDERED that Third Party Defendant Liberty Constructors LLC’s Motion for
Summary Judgment filed September 30, 2022 is moot.

Argument is presented on the pending motions.

IT IS ORDERED taking this matter under advisement.

IT IS FURTHER ORDERED affirming the Final Trial Management Conference set for
February 10, 2023 at 1:30 p.m. and the 15-Day Jury Trial set to commence on March 13, 2023 at
9:00 a.m.

10:53 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

01/28/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

01/27/2022

Docket Code 377
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KATHERINE COOPER
C. Ladden

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
AMY WILKENS

STEPHEN BEST
JASON J BOBLICK
LEONARD T FINK
AMANDA R HOUGH
MOHAMAD TOKKO
TERESA HAYASHI WALES
M. RYAN WILLIAMS
DENNIS I WILENCHIK
SHANNON G HUFF
JUDGE COOPER

CASE ON DISMISSAL CALENDAR – PARTIAL

The Court has received Third Party Plaintiff Chas Roberts Air Conditioning, Inc.’s
Notice of Settlement filed January 21, 2022.

IT IS ORDERED setting this matter for dismissal on March 28, 2022 as to Third Party
Plaintiff Chas Roberts Air Conditioning, Inc., only. Unless a stipulated judgment or a
stipulation for dismissal, along with a proposed form of order, is submitted to the Court before
that date, or the Court otherwise extends the deadline for good cause shown, all remaining claims
against the above-referenced party will be dismissed.

Clerk of the Superior Court

*** Electronically Filed ***

02/06/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/02/2023

Docket Code 083
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KATHERINE COOPER
C. Ladden

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
LOUIS W HOROWITZ

MOHAMAD TOKKO
JUDGE COOPER

FINAL TRIAL MANAGEMENT CONFERENCE RESET/PRETRIAL DEADLINES
EXTENDED

East Court Building – Courtroom 711

11:02 a.m. This is the time set for an Informal Status Conference. Plaintiff is represented
by counsel, Penny J. Manship. Defendants/Third-Party Plaintiffs K. Hovnanian at Gallery, LLC
and K. Hovnanian Arizona Operations, LLC are represented by counsel, Louis Horowitz. Third
Party Defendants Desert Vista, Inc. and Renco, LLC are represented by counsel, Mohamad
Tokko. All parties are present via Court Connect audio-video platform.

A record of the proceedings is made digitally in lieu of a court reporter.

Discussion is held regarding the parties’ pretrial deadlines and the Final Trial
Management Conference currently set for February 10, 2023. Counsel request more time to file
the Joint Pretrial Statement and submit exhibits and to reset the Final Trial Management
Conference.

Based on the foregoing,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/02/2023

Docket Code 083
Form V000A
Page 2

IT IS ORDERED vacating the Final Trial Management Conference set for February 10,
2023 at 1:30 p.m. and resetting same to February 24, 2023 at 2:00 p.m. (time allotted: 1 hour)
in this division. All counsel and self-represented parties shall appear in-person or via Court
Connect before:

The Honorable Katherine Cooper
Maricopa County Superior Court
East Court Building
101 W. Jefferson
7th Floor, Courtroom 711
Phoenix, AZ 85003
Phone: 602-506-8311

Court Connect is the Superior Court in Maricopa County’s new video court hearing
platform. For more information about Court Connect, please visit:
https://superiorcourt.maricopa.gov/court-connect.

Join on your computer or mobile app
Click here to join the meeting

Or call in (audio only)
+1 917-781-4590,,860084431# United States, New York City
Phone Conference ID: 860 084 431#

All persons are strongly urged to appear by video instead of audio alone. For questions,
please call Judge Cooper’s division at 602.506.8311, or email this division’s Courtroom
Assistant Brandon Powell at [email protected] or Judicial Assistant Avery
Vaughn at [email protected].

IT IS FURTHER ORDERED extending the deadline to file the Joint Pretrial Statement
to 12:00p.m., February 21, 2023. (See below for instructions.)

IT IS FURTHER ORDERED extending the deadline to submit exhibits to February
21, 2023. (See below for instructions.)

The Court notes that there is a pending Motion for Summary Judgment and Motion for
Partial Summary Judgment under advisement and will issue a ruling on same as promptly as
possible.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/02/2023

Docket Code 083
Form V000A
Page 3

11:10 a.m. Matter concludes.

NOTE: If/when a party files a pleading within 5 days or less of a scheduled event, the
party should also e-mail same this division’s Courtroom Assistant Brandon Powell at
[email protected] or Judicial Assistant Avery Vaughn at
[email protected].

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.

Should you want an unofficial copy (CD) of the proceedings, please email Electronic
Records Services at [email protected] or call (602) 506-7100. Please note that
there is a $30.00 fee. To obtain a copy of a hearing on the day it is conducted, you must first fill
out a “Request for Daily Copy” form and pay the fee at the Court’s Law Library Resource
Center. Forms are available at the Law Library Resource Center. To order transcripts of digitally
recorded court proceedings, call Electronic Records Services for instructions.

DUTIES BEFORE THE FINAL TRIAL MANAGEMENT CONFERENCE

JOINT PRETRIAL STATEMENT. The parties shall file with the Court no later than
5:00 p.m. on February 21, 2023, a Joint Pretrial Statement, signed by all counsel (and any self-
represented party) and containing the following. This order modifies the requirements of Ariz. R.
Civ. P. 16(f).

1. List of Claims. The Joint Pretrial Statement must contain a list of all claims or causes of
action on which a verdict is sought by any party. Such list shall specify (1) the cause of
action (e.g., breach of contract, negligence, etc.), (2) each party asserting that cause of
action, and (3) each party against whom that cause of action is asserted.

2. No List of Issues. The Joint Pretrial shall also contain the items listed in Ariz. R. Civ. P.
16(f)(2)(A), (B) and (C). The parties may also, if they wish, submit one or more separate
stipulations regarding facts, evidence or other matters.

3. Summary of the Case for Jury Selection. The Joint Pretrial Statement must include an
agreed-upon brief (generally less than 200 words) summary of the case for jury selection
purposes. If the parties cannot agree, they must submit separate proposed summaries.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/02/2023

Docket Code 083
Form V000A
Page 4

4. Final Trial Witnesses. The Joint Pretrial Statement must include an exhibit entitled
Final Trial Witness List (see attached), which must list each witness a party expects to
call at trial (in person or by deposition), the estimated time needed for direct, cross, and
redirect, and the day on which they expect to call that witness. If the court finds that a
party unreasonably included witnesses not likely to be called at trial, it may consider
appropriate sanctions.

5. Trial Exhibits. As required by Rule 16(f)(E), all trial exhibits must be listed in the Joint
Pretrial Statement along with objections. The Court typically resolves objections to
exhibits at trial, but objections must be listed in the Joint Pretrial Statement to be
preserved. If the Court finds that a party unreasonably included exhibits not likely to be
used at trial, it may consider appropriate sanctions.

6. Deposition Designations. Deposition designations and objections should not be
included in the Joint Pretrial Statement, but must be submitted to the Court three judicial
days before the start of trial. The Court will resolve deposition designations as follows:
By 4:00 p.m. the day before a party plans to read deposition testimony, that party must
provide the Court a hard copy of the deposition transcript with (1) the portions to be read
highlighted, (2) any counter-designations highlighted in a different color, and (3) any
objections written in the margin. The Court will rule on any objections by the next day.
If the party plans to play a video deposition, the transcript must be provided by 4:00 p.m.
two days before the deposition will be played.

7. Other Matters. The Joint Pretrial Statement must include the matters in Ariz. R. Civ. P.
16(f)(2)(H), (I), (J) and (K).

JURY INSTRUCTIONS; VOIR DIRE. The parties shall meet and agree on as many
proposed jury instructions as possible. The parties shall file with the Court, with their Joint Pretrial
Statement, copies of:

1. Proposed voir dire questions.

2. Agreed-upon preliminary and final jury instructions and proposed forms of verdicts.

3. Separate sets of requested instructions that have not been agreed upon. Recommended
Arizona Jury Instructions (“RAJI”) may be referred to by name without reprinting, but if
the RAJI contains options for the Court the party should indicate which options it is
requesting.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/02/2023

Docket Code 083
Form V000A
Page 5

Jury instructions not requested by the final trial management conference will be deemed
waived unless good cause exists for the untimely request.

SETTLEMENT. The parties are reminded to promptly notify the Court of any settlement
pursuant to Ariz. R. Civ. P. 5.3(d). One day’s jury fees will be assessed unless the Court is notified
of settlement before 2:00 p.m. on the judicial day before the trial.

DUTIES AT TRIAL MANAGEMENT CONFERENCE

At the final trial management conference, the parties shall be prepared to discuss:

1. The claims and parties as to which a verdict is sought.

2. The length of the trial and any time limits to complete the trial in the allotted time.

3. Any scheduling or equipment issues.

4. Voir dire.

5. Any special issues regarding exhibits or deposition designations.

6. Preliminary jury instructions.

7. The case summary for jury selection purposes.

8. Motions in limine.

9. The potential for settlement before trial.

TRIAL EXHIBITS

Counsel (and any self-represented party) shall deliver all trial exhibits to the Clerk of the
Court no later than 3:00 p.m. on February 21, 2023.

**PLEASE NOTE: FOR JURY TRIALS, ONLY PAPER EXHIBITS SHALL BE
SUBMITTED**

For in-person exhibit submission, please visit,
https://www.clerkofcourt.maricopa.gov/services/exhibits-submission. The webpage will provide
instructions and guidance for locations for in-person submission of exhibits.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/02/2023

Docket Code 083
Form V000A
Page 6

For filing paper exhibits, please adhere to the following guidelines:

1. Exhibits will be marked consecutively. The clerk cannot reserve numbers for exhibits
that will be provided at a later date. Any missing exhibits will not be considered and
the numbers of all following exhibits will be moved up. If Defendant’s exhibits are
received prior to Plaintiff’s exhibits, the clerk may mark them first with Plaintiff’s
exhibits following.

2. Do not place exhibits in a notebook when submitting them to the clerk for marking
and do not provide the clerk with stacks of loose paper. Individual exhibits
consisting of multiple pages shall be BOUND BY STAPLES OR TWO-PRONG
FASTENERS. DO NOT use paper clips, rubber bands, binder clips or submit
loose sheets of paper.

3. Original Depositions will not be marked as an exhibit. Original depositions to be
used for impeachment purposes shall be provided to the clerk on the first day of trial
to be hand-filed.

4. Do not submit duplicate exhibits, it is essential that the parties confer to avoid
submitting duplicate exhibits.

5. If large charts or blow-ups are anticipated to be used, please include a small version
(or photo) which can be marked as the exhibit. The charts and blow-ups are used for
demonstrative purpose only, are not marked as the exhibits, and are returned.

6. Do not put numbers on the exhibits themselves; instead, use a COLORED sheet
with the exhibit number on it. Place the colored sheet in front of each exhibit,
however, DO NOT staple or paper-clip it to the exhibit itself (this should be the
only loose sheet).

7. The parties are to provide a workable list of exhibits. The list should include a title or
description of each exhibit. (See blank sample of the following table as a reference).

8. If media files or video-recordings are anticipated to be submitted for marking, please
submit them on thumb-drives, not on a CD, and deliver them to the division for
marking. If multiple exhibits need to be placed on a thumb drive, please submit
separate thumb drives for each individual exhibit so they may be marked as their
own exhibit.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/02/2023

Docket Code 083
Form V000A
Page 7

Exhibit
No.
Identified
By
Description
Should be verifiable when viewing the first page of the exhibit
Stipulated in
Evidence/Objection

PLEASE NOTE: Each party shall provide a binder of exhibits for the Court’s use. Each
exhibit shall be separated by numbered divider tabs.

For additional assistance in preparation of exhibits contact the courtroom clerk at:
[email protected].

NOTICE: Exhibits Marked But Not Offered

Exhibits submitted to the Court for a hearing/trial, whether through hard copy or submitted
electronically, that are marked as exhibits but are not offered into evidence at the hearing/trial will
be destroyed following the hearing/trial, unless a party requests that the evidence be returned at the
conclusion of the hearing/trial. Such requests must be filed with the Court and served on all parties
in advance of the hearing/trial or by no later than the conclusion of the hearing/trial.

WITNESS INFORMATION FORM

Allocation time for Jury Selection, Opening Statements, witness examinations, and Closing
Argument. You should assume 5 hours of trial time per day, starting at 9:30am to 4:30 pm with
1.5 hours for lunch and two 15-minunte breaks. Closing arguments shall be completed and the
case submitted to the jury no later than 2pm on the last day of trial.

TOTAL ESTIMATED TRIAL TIME: 15 days.

VOIR DIRE EXAMINATION

TIME ESTIMATE FOR:

PLAINTIFF(S) VOIR DIRE

DEFENDANT(S) VOIR DIRE

WITNESSES FOR PLAINTIFF(S)

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/02/2023

Docket Code 083
Form V000A
Page 8

WITNESS NAME
DIRECT &
RE-DIRECT
CROSS

1

2

3

4

5

6

DIRECT, RE-DIRECT & CROSS TOTAL: _________________

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/02/2023

Docket Code 083
Form V000A
Page 9

WITNESSES FOR DEFENDANT(S)

WITNESS NAME
DIRECT &
RE-DIRECT
CROSS

1

2

3

4

5

6

DIRECT, RE-DIRECT & CROSS TOTAL: _______________

TOTAL WITNESS TIME ESTIMATE: ___________________________

TIME ESTIMATE FOR:
PLAINTIFF
DEFENDANT
OPENING STATEMENT

CLOSING ARGUMENT
1st:
2nd:

Clerk of the Superior Court

*** Electronically Filed ***

02/13/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/08/2023

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KATHERINE COOPER
C. Ladden

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
LOUIS W HOROWITZ

STEPHEN BEST
JASON J BOBLICK
LEONARD T FINK
SHANNON G HUFF
RINA K RAI
AMY WILKENS
DENNIS I WILENCHIK
JUDGE COOPER

RULINGS RE MOTIONS FOR SUMMARY JUDGMENT

Pending before the Court are the following dispositive motions fully-briefed and argued:

 Defendants’ Motion for Summary Judgment Regarding Each of Plaintiff’s Causes of
Action filed September 30, 2022;
 Defendants’ Motion for Partial Summary Judgment Regarding Claims of
Unsupported Defects filed September 30, 2022; and
 Third-Party Defendants Desert Vista, Inc. and Renco, LLC dba Renco Roofing’s
Joint Motion for Summary Judgment filed September 30, 2022.

The Court has reviewed the briefs and considered counsels’ oral argument.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/08/2023

Docket Code 926
Form V000A
Page 2

KHOV MOTION FOR SUMMARY JUDGMENT
REGARDING PLAINTIFF’S CAUSES OF ACTION

Defendants K. Hovnanian at Gallery, LLC (“KHov Gallery”) and K. Hovnanian Arizona
Operations, LLC (“KHov Arizona”) move for judgment on the remaining claims against them,
Counts 2, 3, and 4.

For the reasons stated, the Court finds that:

1. Plaintiff Gallery Community Association’s (“Association”), a homeowners
association, cannot assert the claim for breach of the implied warranty of
workmanship and habitability. (Count 3)

2. The Association cannot establish that KHov Gallery breached a contract or the
implied covenant of good faith and fair dealing because the Declaration of Covenants,
Conditions, Restrictions, and Easements for Gallery (“Declaration”) does not impose
a contractual obligation on KHov Gallery to perform or warrant construction. (Counts
2 and 4)

Summary judgment is granted, and Counts 2, 3, and 4 are dismissed.

Facts

The following facts are undisputed:

The Association is a homeowner’s association (“HOA”) and non-profit corporation
formed under A.R.S. § 10-3010, et. seq. for The Gallery subdivision in Scottsdale.

The Article of Incorporation for the Association state that the Association was formed to
maintain the “Common Area,” collect assessments, and enforce the Declaration. It also imposes
on the Association the duty to maintain the “Association Property” for the benefit of the unit
owners. These terms are defined in the Declaration.

KHov Gallery developed The Gallery and sold the units. KHov Gallery is the “Declarant”
of the Declaration.

KHov Gallery conveyed fee simple title to the Common Area to the Association by quit
claim deed dated October 6, 2016.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/08/2023

Docket Code 926
Form V000A
Page 3

KHov Arizona was the general contractor responsible for constructing the residences.

The Association filed this action on behalf of itself, not the individual homeowners
within The Gallery.

Count 3 - Breach of the Implied Warrant of Workmanship and Habitability

Count 3 alleges that KHov Gallery and KHov Arizona breached an implied warranty of
workmanship and habitability.

The implied warranty of workmanship and habitability is a right of action available to
individual purchasers of single-family homes. In Arizona, the Court of Appeals first recognized
the implied warranty in Columbia Western Corp. v. Vela, 122 Ariz. 28 (App. 1979). The
Supreme Court defined it further in Richards v. Powercraft Homes, 139 Ariz. 242 (1984).

The implied warranty arises from the construction of a home. Lofts at Fillmore
Condominium Assoc’n v. Reliance Commercial Construction, 218 Ariz. 574, 577 (2008)
(“Columbia Western and Richards…make clear that an implied warranty arises from
construction of the home…”). It is implied into all contracts between builder-vendors and a
home buyer. It is enforceable by the original owner per Columbia Western and by subsequent
purchasers under Richards. A claim based on the implied warranty is a cause of action for
damages caused by latent construction defect(s) that manifest after an owner buys a home and
are not detectable with a reasonable pre-purchase inspection. The owner must prove that the
builder-vendor caused the defect. Columbia Western, 122 Ariz. at 32; Richards, 139 Ariz. at 245.
The implied warranty is enforceable against the builder even if the builder (who constructs the
home) and the vendor (who sells the home) are separate entities. Lofts, 218 Ariz. 574, 577
(2008).

The cases hold that the right of implied warrant belongs to the homeowner and applies to
homes. It serves “to protect innocent purchasers and hold builders accountable for their work.”
Richards, 139 Ariz. at 245. Richards extended this protection to subsequent purchasers based on
the same policy considerations underlying an original owner’s right to an implied warranty. Id.
as a warranty of habitability, the warranty applies to structures built for living purposes. As
stated in Zambrano v. M & RC II, LLC, 254 Ariz. 53, 59 (2022), “Under this implied warranty,
the builder-vendor guarantees it built the home in a workmanlike manner and that it is
habitable.” (emphasis added.) The public policy behind the implied warranty is “to protect
buyers of newly built homes and successive owners against latent construction defects that were
not reasonably discoverable when the home was initially sold.” Id. (internal citations omitted)
(emphasis added).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/08/2023

Docket Code 926
Form V000A
Page 4

In this case, the Association holds no implied warranty. It does not own the residences. It
owns the Common Area that KHov Gallery conveyed to it in the quit claim deed and as defined
in the Declaration. The Common Area is exactly that -- areas such as the parking lot, pool, and
cabana intended for “for the common use and enjoyment” of the homeowners, not the residences.
The Declaration defines Common Area as “all areas (including the improvements thereon)
owned, or to be owned, by the Association for the common use and enjoyment of the
Owners and/or Residents of the Property, and any other areas that the association is
required to maintain, either by this Declaration or the recorded subdivision plat, other
than those areas located on the Lots.” Decl. § 1.12

The Association’s responsibility to maintain common aspects of the residences, such as
exterior walls and roofs, cannot create an implied warranty. The Association did not purchase the
homes; it assumed a duty to help maintain their exteriors. The homes – and the implied warranty
– belongs to the homeowners.

Finally, the Association relies on Lofts for the proposition that the Association can assert
an implied warranty claim. In fact, the Lofts Association brought an action against the builder on
behalf of the unit owners and was statutorily authorized to do so. Id. at 577 (issue was whether
“suit on this warranty can be brought by residential homebuyers like those in the Association,”);
(A.R.S. § 33-1242(A)(4). Here, the Association filed this lawsuit on behalf of the Association
only and has no authority to bring an action for the affected homeowners. Lofts is consistent with
Columbia Western and Richards and does not support the Association’s position. Count 3 is
dismissed.

Counts 2 and 4 -- Breach of Contract Claims

Counts 2 and 4 allege Breach of the Implied Covenant of Good Faith and Fair Dealing
and Breach of Contract, respectively, against KHov Gallery only.1 The Association claims that,
under the Declaration, KHov Gallery owed the Association a contractual duty to perform,
construct, and warrant “work.” It claims KHov Gallery breached that duty and the implied
covenant of good faith and fair dealing.

To prove that KHov Gallery breached a contract, the Association must prove the terms of
the contract, that KHov Gallery breached a term of the contract, and that the Association
incurred damages as a result of that breach. Revised Arizona Jury Instructions (Civil) 6th –
Contract 2; Holmes v. Graves, 83 Ariz. 174, 177 (1957).

1 Counts 2 and 4 are not alleged as to KHov Arizona. The Defendants who were named with KHov Gallery have
been dismissed.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/08/2023

Docket Code 926
Form V000A
Page 5

To prove breach of the duty of good faith and fair dealing. the Association must prove the
existence of a valid contract and that KHov Gallery deprived the Association from receiving the
benefit of the contract. Enyart v. Transamerica Ins. Co., 195 Ariz. 71, ¶ 14 (1998) (citing
Rawlings v. Apodaca, 151 Ariz. 149, (1986); Johnson Int’l, Inc. v. City of Phoenix, 192 Ariz. 466
(App. 1998).

The Complaint does not identify the “terms” of the Declaration that KHov Gallery
allegedly violated. Nor does the Association’s Response. In fact, there is no provision in the
Declaration that states that KHov Gallery agreed to “build[ing] a project” that conformed to
“applicable laws and building codes” or that KHov Gallery promised that the work would be or
had been done correctly.” Complaint, ¶¶ 25-26, 39.

Alternatively, the Association contends that KHov Gallery’s contractual obligation to
construct and warrant work is derived from the “duties and obligations” imposed on KHov
Gallery in the Declaration. Response, 11:7. The Association relies on Arizona cases that hold
that a declaration (also referred to as the Covenants, Conditions, and Restrictions or CC&Rs) is a
contract between and among lot owners and cases from other jurisdictions that also find a
contract between owners and the declarant. See Powell v. Washburn, 211 Ariz. 553, 557 (2006)
citing Ahwatukee Custom Estates Management Ass’n Inc. v. Turner, 196 Ariz. 631 634 (App.
2000); Villa Milano Homeowners Assn. v. IL Davorge, 84 Cal. App. 4th 819 (2000); Solowicz v.
Forward Geneva Nat’l, LLC, 780 N.W.2d 111, 125 (Wis. 2010).

The cases cited by the Association rely on widely recognized principles of contract
interpretation. Courts construe contract language to give effect to the intent of the parties. Courts
look to the language to ascertain the scope and purpose of the document. meaning of the words
as well as the surrounding circumstances. Powell, 211 Ariz. at 376 (citing Taylor v. State Farm
Mut. Auto. Ins. Co., 175 Ariz. 148, 153 (1993) (“When interpreting a contract ... it is
fundamental that a court attempt to ‘ascertain and give effect to the intention of the parties at the
time the contract was made if at all possible.”)

In this case, the language shows that KHov Gallery prepared the Declaration to promote
the orderly preservation and use of The Gallery by establishing permitted uses and restrictions
for the property and an Association to enforce the restrictions, collect assessments, and maintain
the Common Area. (Recitals B, C, D). The Declaration imposed minimal requirements on KHov
Gallery. Under the Declaration, KHov Gallery is required:

 to convey fee simple title to the Common Area to the Association, § 3.5
 to control the make-up of the Association, including the Board and Architectural
Committee until control transferred to the Owners, and then to keep one seat on the
Board post-transition §§ 5.3, 7.1, 4.3.1

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/08/2023

Docket Code 926
Form V000A
Page 6

 as an Owner of a unit (if any), to pay for repairs in the Common Area caused by
Owner or Owner’s guest, § 8.2.4

(Declaration, Exh. A to Defendants’ SOF). None of these duties are at issue. This case is about
alleged defective original construction.

Further, the Declaration provisions related to construction appear as restrictive covenants
under Section 8 regarding “Use Restrictions.” For example, Section 8.1.1 restricts development
to single family residences that are subject to Architectural Committee approval. Section 8.1.30
limits an owner’s choice of contractor to KHov Gallery or its designee as long as KHov Gallery
owns or has an option to purchase a lot.

These provisions state limitations on the use of the lots; they do not impose a contractual
obligation on KHov Gallery. The restrictions refer specifically to the property: § 8.1.1.1 -- “All
lots shall be used [for]…single family residential use;” 8.1.30 -- “Dwelling Units on the Property
must be constructed by Declarant or its designees.” By contrast, where KHov Gallery is required
to act, the Declaration states that it “shall” act: § 3.5 – “Declarant covenants that it shall convey
fee simple title to the Common Area to the Association.” 5.3 – “Declarant shall maintain
absolute control over the Association…until the Transition Date;” § 7.1 – Declarant shall appoint
all of the original member of the Architectural Committee; § 8.2.4 – repairs caused by an Owner
to the Common Area “shall be paid by such Owner.” Had KHov Gallery intended to require it to
perform and warrant construction for the Association, it would have stated that requirement – as
it did for the duties listed above.

Accordingly, in considering the language of the Declaration and the purpose behind it, no
contractual duty to perform or warrant construction for the Association can be derived from this
document. As a result, KHov Gallery cannot be held liable for breaching a contract or the
implied covenant of good faith within a contract. There are no disputed issues of fact, as the
Association relies solely on the Declaration in alleging a contractual duty. Summary judgment is
granted on Counts 2 and 4.

Conclusion

The ruling granting Defendants’ Motion on Plaintiff’s Causes of Action disposes of the
Complaint and, therefore, Defendants’ Third-Party Complaint for indemnity. The Court need not
reach Defendants’ Motion for Partial Summary Judgment Regarding Claims of Unsupported
Defects and Third-Party Defendants Desert Vista, Inc. and Renco, LLC’s Joint Motion for
Summary Judgment. Had the Court reached those motions, material issues of fact would have
precluded summary judgment as to both motions.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

02/08/2023

Docket Code 926
Form V000A
Page 7

IT IS ORDERED:

1. Granting Defendant’s Motion for Summary Judgment Regarding Each of Plaintiff’s
Causes of Action,

2. Denying as moot Defendant’s Motion for Partial Summary Judgment Regarding
Claims of Unsupported Defects, and

3. Denying as moot Third-Party Defendants Desert Vista, Inc. and Renco, LLC’s Joint
Motion for Summary Judgment.

IT IS FURTHER ORDERED Defendants shall submit a proposed Judgment and
Statement of Costs by February 24, 2023.

IT IS FURTHER ORDERED vacating the Final Trial Management Conference set on
February 24, 2023 at 2:00 p.m. and the Jury Trial set to begin on March 13, 2023 at 9:00 a.m. in
this division.

Clerk of the Superior Court

*** Electronically Filed ***

03/16/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

03/14/2022

Docket Code 083
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KATHERINE COOPER
C. Ladden

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
AMY WILKENS

STEPHEN BEST
JASON J BOBLICK
LEONARD T FINK
AMANDA R HOUGH
MOHAMAD TOKKO
TERESA HAYASHI WALES
M. RYAN WILLIAMS
JUDGE COOPER

TRIAL SETTING CONFERENCE RESET

Pursuant to the Order Granting Stipulation to Amend Scheduling Order electronically
signed by the Court on March 13, 2022 and filed (entered) by the Clerk on March 15, 2022,

IT IS ORDERED vacating the Trial Setting Conference set for June 10, 2022 at 10:30
a.m. and resetting same to August 12, 2022 at 8:45 a.m. (time allotted: 15 minutes) in this
division for the purpose of setting trial, if the case is ready to set trial. This matter will be heard
by video/audio conference using Court Connect. Court Connect is the Superior Court in
Maricopa County’s new video court hearing platform. For more information about Court
Connect, please visit: https://superiorcourt.maricopa.gov/court-connect.

Join on your computer or mobile app

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

03/14/2022

Docket Code 083
Form V000A
Page 2

Click here to join the meeting

Or call in (audio only)
+1 917-781-4590,,860084431# United States, New York City
Phone Conference ID: 860 084 431#

All persons are strongly urged to appear by video instead of audio alone. For questions,
please call Judge Cooper’s division at 602.506.8311, or email Judicial Assistant Jennifer Madrid
at [email protected].

IT IS FURTHER ORDERED that, no less than five (5) days before the conference set
above, the parties shall file a joint status report containing (1) a very brief description of the case;
(2) a statement of the status of discovery and other pertinent matters; (3) a list of pending
motions or other matters, whether at issue or not; (4) the status of alternative dispute resolution;
(5) when the parties anticipate the case will be ready for trial; and (6) how many trial days the
parties estimate will be needed.

NOTE: If/when a party files a pleading within 5 days or less of a scheduled event, the
party should also e-mail same to this division’s Judicial Assistant Jennifer Madrid at
[email protected].

Clerk of the Superior Court

*** Electronically Filed ***

03/17/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

03/16/2022

Docket Code 377
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KATHERINE COOPER
C. Ladden

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
AMY WILKENS

STEPHEN BEST
JASON J BOBLICK
LEONARD T FINK
AMANDA R HOUGH
MOHAMAD TOKKO
TERESA HAYASHI WALES
M. RYAN WILLIAMS
DARWIN BARNEY
JUDGE COOPER

CASE ON DISMISSAL CALENDAR – PARTIAL

The Court has received Defendant Custom Leasing, Inc.’s Notice of Settlement RE
Defendant Custom Leasing, Inc. filed March 11, 2022.

IT IS ORDERED setting this matter for dismissal on May 16, 2022 as to Defendant(s)
Custom Leasing, Inc., only. Unless a stipulated judgment or a stipulation for dismissal, along
with a proposed form of order, is submitted to the Court before that date, or the Court otherwise
extends the deadline for good cause shown, all remaining claims against the above-referenced
party will be dismissed.

Clerk of the Superior Court

*** Electronically Filed ***

04/23/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

04/22/2021

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE MICHAEL W. KEMP
R. Sheppard

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
DENNIS I WILENCHIK

STEPHEN BEST
JASON J BOBLICK
SAMANTHA EGAN
LEONARD T FINK
AMANDA R HOUGH
TERESA HAYASHI WALES
JUDGE KEMP

MINUTE ENTRY

The Court has received and considered Plaintiff’s Request for Rule 56(d) Relief and
Expedited Hearings; and Memorandum of Points and Authorities in Support Thereof filed March
22, 2021. Accordingly,

IT IS ORDERED setting a Telephonic Status Conference on April 27, 2021 at 10:15
a.m. (Time allotted: 15 minutes) before:

THE HONORABLE MICHAEL W. KEMP
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W. JEFFERSON
7TH FLOOR, COURTROOM 711
PHOENIX, AZ 85003

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

04/22/2021

Docket Code 028
Form V000A
Page 2

NOTE Counsel and self-represented parties shall call this division promptly at the
scheduled time on the division bridgeline at: (locally) 602-506-9695, or (toll free) 1-855-506-
9695 (participation code 406635). The call should be placed from an area with no background
noise as this will prevent the parties from hearing the proceedings. The call may not be placed
from a vehicle. Counsel who will be lead counsel at trial must participate in the Telephonic Status
Conference. Additionally, counsel shall have their calendars available for this proceeding.

This is a 15 minute proceeding. The Court will determine if more time is needed. If there
is a failure to appear, the Court may make such orders as are just, including granting the relief
requested by the party who does appear.

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.

The Arizona Constitution requires the Arizona Commission on Judicial Performance
Review to conduct performance evaluations of superior court judges. The Commission is asking
for your help to evaluate Maricopa County Superior Court judges currently undergoing
performance review. After your hearing, if the judge you are in front of is undergoing review, a
survey will be emailed to you and you can take the survey online. The survey is conducted by the
Docking Institute of Public Affairs at Fort Hays State University and is anonymous and
confidential. Your participation in the review process is important! More information on Judicial
Performance Review can be found at www.azjudges.info.

La Constitución de Arizona exige que la Comisión de la Evaluación del Desempeño
Judicial realice evaluaciones de desempeño de los jueces de los tribunales superiores. La
comisión pide su ayuda para evaluar a los jueces del Tribunal Superior del Condado de Maricopa
a quienes actualmente se les está evaluando su desempeño. Después de su audiencia, si el juez
ante el cual comparece está sometido a una evaluación se le enviará por correo electrónico una
encuesta que usted podrá tomar por Internet. La encuesta es realizada por el Docking Institute of
Public Affairs de la Fort Hays State University y se mantiene anónima y confidencial. ¡Su
participación en el proceso de la evaluación es importante! Para obtener más información sobre
la evaluación del desempeño judicial, diríjase a www.azjudges.info.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

04/22/2021

Docket Code 028
Form V000A
Page 3

ALERT: Due to the spread of COVID-19, the Arizona Supreme Court Administrative
Order 2020-79 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 ***

04/27/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

04/25/2023

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KATHERINE COOPER
C. Ladden

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
LOUIS W HOROWITZ

JASON J BOBLICK
LEONARD T FINK
SHANNON G HUFF
MICHAEL A LUDWIG
RINA K RAI
AMY WILKENS
DENNIS I WILENCHIK
JUDGE COOPER

RULINGS RE KHOV AND RENCO/DESERT VISTA
APPLICATIONS FOR ATTORNEYS’ FEES/COSTS

Pending before the Court are the fully-briefed KHov Defendants’ Motion for Award of
Attorneys’ Fees filed February 24, 2023; and Third-Party Defendants Renco, LLC DBA Renco
Roofing (“RR”) and Desert Vista, Inc.’s (“DV”) Joint Application for Attorneys’ Fees, Costs &
Expert Fees filed February 24, 2023. The Court has reviewed the motions and supporting
documentation, Responses, Replies, and Statements of Cost.

KHOV APPLICATION

KHov seeks $156,311.22 for attorneys’ fees pursuant to A.R.S. §§ 12-341.01 (contract
actions) and 12-1364 (dwelling actions).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

04/25/2023

Docket Code 023
Form V000A
Page 2

A.R.S. § 12-341.01 Claim

A.R.S. § 12-341.01 gives the Court discretion to award attorneys’ fees to the “successful
party” in a “contested action arising out of a contract’ to ‘mitigate the burden of the expense of
litigation to establish a just claim or a just defense.’” Fulton Homes Corp. v. BBP Concrete, 214
Ariz. 566, 569, ¶ 9 (App. 2007) (citing A.R.S. § 12–341.01(A), (B)).

Gallery’s claims against the KHov Defendants were based on a contract, specifically, the
Declaration of Covenants, Conditions Restrictions and Easements for Gallery (“Declaration”).
KHov is the successful party because it prevailed on all counts. Gallery stipulated to the
dismissal of all but three claims which the Court dismissed by summary judgment. Ruling,
February 8, 2023.

In evaluating KHov’s Application, the Court considers the factors identified in
Associated Indemnity. Corp. v. Warner, 143 Ariz. 567, 570 (1985). The Court finds as follows:

1. Whether the unsuccessful party’s claims or defenses had merit.

No. Gallery sued KHov entities that should not have been sued, asserted claims that had
no legal basis (negligence), and pursued claims based non-existent contractual obligations.

2. Whether litigation could have been avoided or settled.

Yes, the parties participated in a pre-litigation repair and offer process pursuant to the
Purchaser Dwelling Act; two formal mediations before Hon. Lawrence Fleischman, Ret.; and
exchanged multiple settlement offers. (Motion, p. 4).

In addition, KHov raised the issues dispositive to Counts 2, 3, and 4 early in a Motion for
Summary Judgment (filed February 1, 2021). These were the same issues on which the Court
granted summary judgment two years later. (Ruling, February 8, 2023) These were legal issues
related to the Declaration and ultimately resolved as a matter of law. Nevertheless, Gallery
opposed the 2021 Motion claiming discovery was necessary. (Request for Rule 56(d) Relief filed
March 22, 2021). Had the 2021 Motion been addressed when filed, further litigation would have
been avoided.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

04/25/2023

Docket Code 023
Form V000A
Page 3

3. Whether assessing fees against the unsuccessful party would pose an unreasonable or
undue hardship.

Gallery contends that imposing fees on the Association would cause extreme hardship to
the Association and is members. In support of this argument, Gallery provides the Declaration of
Matthew Jones, the Association’s President. He states that the Association cannot pay because its
$191,800 in assets is for capital improvements.

The declaration is conclusory and fails to provide sufficient information to establish
unreasonable, undue hardship to the Association or its members. Gallery’s members authorized
the filing of this lawsuit and would have received the financial benefit of it had Gallery
prevailed. It is not uncommon for HOA members to pay assessments for specific purposes.
Gallery offers no information as to why a special assessment could not be imposed, perhaps over
a period of time, to pay KHov’s (or Renco/Desert Vista’s) attorneys’ fees. There is no
information presented as the number of households/members and, therefore, an estimated cost
per member. As to the Association’s current assets, there is no information provided regarding
the nature of the purported long term capital projects, the date(s) for undertaking these projects,
or their estimated cost. Gallery does not provide any factual basis for a determination of
unreasonable or undue hardship.

4. Whether the successful party prevailed as to all relief sought.

Yes.

5. Whether the claims involved complex or novel legal issues.

No. The dispositive legal issues had been addressed by the Arizona Supreme Court and
Court of Appeals. See Ruling, February 8, 2023.

6. Whether the claims or defenses at issue have been previously adjudicated in this
jurisdiction.

Construction defect cases are common. There is no information as to whether the
specific issues in this case have been previously adjudicated.

7. Whether a fees award would unreasonably discourage litigants from pursuing or
defending valid claims or defenses.

No, an award of reasonable fees in this matter will not discourage litigants with
legitimate claims or defenses.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

04/25/2023

Docket Code 023
Form V000A
Page 4

Reasonableness of Fees

The Court has considered the Rule 80(c) declarations and fee summaries. Requests for an
award of fees must be supported by proof of their reasonableness. Schweiger v. China Doll
Rest., Inc., 138 Ariz. 183, 187 (App. 1983). The Court determines the billing rate charged by
counsel, relying on the rate charged by the lawyer to the client “as the best indication of what is
reasonable under the circumstances of a particular case.” Id. at 187. The Court must also decide
whether the lawyer billed a reasonable number of hours for proper tasks. Id. at 188. A fee
application must describe the type of legal services provided, the date the service was provided,
the attorney providing the service, and the time spent in providing the service. Id. The
description of the tasks performed should include enough detail to “allow the court to determine
whether the hours claimed are justified.” Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260, 266 ¶
23 (App. 2004).

Regarding Gallery’s objection to KHov’s representation by two law firms, the Court does
not find such representation to be unreasonable given the substantial exposure KHov faced with
Gallery’s $3 million damages claim.

KHov does not seek fees related to the dismissal of K. Hovnanian Companies of Arizona,
LLC and K. Hovnanian Developments of Arizona, Inc. and all claims related to the claims
related to civil grading, drainage, and concrete issues that resolved by settlement. These fees for
the dismissed parties total $2,422. The fees related to the civil grading/drainage/concrete issues
total $6,245.75.

KHov was required to file its indemnity claims against Third- Party Defendants. These
claims were integral to the defense of Gallery’s claims. The fees and costs related to litigating
the indemnity claims were necessary to KHov’s overall defense against Gallery’s lawsuit.

As to the time entries, the Court reviewed them and finds that they are sufficiently
detailed to determine their reasonableness and that they are all, in fact, reasonable. The Court
considers the nature of the tasks described, the relationship (if any) of the tasks to each other, the
description of other work by the time-keeper, and the time entered. Gallery has not identified fee
entries showing the time billed to be excessive, duplicative, or otherwise unreasonable. The time
entries meet the China Doll standard.

Statement of Costs

KHov is entitled to its taxable costs pursuant to A.R.S. § 12-332(A)(6). The Court has
reviewed the Statement of Costs, seeking $23,536.06. KHov agrees that the costs related to the

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

04/25/2023

Docket Code 023
Form V000A
Page 5

deposition of Liberty Constructors, LLC’s expert and representative should be removed and not
included in the award of costs. Those costs total $5,706.68, reducing the costs awarded to
$20,589.06.

RENCO ROOFING and DESERT VISTA’S JOINT APPLICATION

RR and DV also seek fees from Gallery -- $115,209 for RR; $86,715.50 for DV. Like
KHov, RR and DV are entitled to recover their fees under Section §§ 12-341.01.

In determining whether RR/DV are the successful parties under § 12-341.01, the Court
finds that RR/DV are the successful parties in the contested action arising from the Declaration
and the Master Subcontract Agreement between KHov and RR and DV. KHov filed a Third-
Party Complaint against RR/DV seeking indemnity for Gallery’s claims against KHov caused by
RR/DV’s alleged negligence. KHov’s derivative claims for indemnity would not have existed
but for Gallery’s lawsuit against KHov. As a result, both KHov and RR/DV were adverse to
Gallery. See Nationwide Res. Corp. v. Ngai, 129 Ariz. 226, 232 (App. 1981) (third-party
defendants were in an adverse position to the counterclaim plaintiff asserting a claim for which
the third-party defendants may be ultimately responsible). For the reasons stated above, Gallery’s
claims against KHov lacked merit. The dismissal of those claims made RR/DV prevailing
parties as well as RR/DV. A subcontractor (third-party defendant) is the prevailing party for the
purposes of attorneys’ fees when the initial complaint against the defendant/third-party plaintiff
is dismissed. Fulton Homes Corp. v. BBP Concrete, 214 Ariz. 566 (App. 2007).

As to factors 2, 3, 4, 5, 6, and 7 discussed above the same findings apply to RR/DV.

Reasonableness of Fees

The Court has reviewed the billing statements for RR/ DV’s representation. Gallery does
not object to any individual time entries or billing rates. Its sole objection is to the fees related to
RR/DV’s Joint Objection and Motion to Preclude Defendant/Third-Party Plaintiff’s [KHov]
Untimely and New Expert Reports and Opinions filed March 29, 2022. This motion concerned
the disclosure of KHov’s supplemental expert reports regarding RR/DV’s stucco work.

Gallery has the burden of showing that any fees challenged are unreasonable or improper.
Assyia v. State Farm Mutual Auto. Ins. Co., 229 Ariz. 216, 223, ¶ 29 (App. 2012). Objections
must be specific. A party opposing a fee application cannot merely complain that the lawyers
spent “too much time,” or that “the work was not necessary.” Rudinsky v. Harris, 231 Ariz. 95,
102 (App. 2012). However, RR/DV fail to show specifically the amount of the fees related to
this motion and, therefore, the objection is overruled.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

04/25/2023

Docket Code 023
Form V000A
Page 6

Statement of Costs

RR/DV submit a joint Statement of Costs totaling $9,051.83. There is no breakdown of
the costs related specifically to RR and DV individually. Therefore, the Court divides the award
of costs to RR and DV as equally as possible.

A.R.S. § 12-1364 Claims

Fees are not awarded to KHov or RR/DV under § 12-1364. To award fees under this
statute, the Court must consider specific statutory factors. A.R.S. § 12-1364(B) requires that, in
determining the reasonableness of attorney fees, the Court “shall consider all of the following”
factors, including “the repairs, replacements or offers made by the seller, if any, before the
purchaser filed the dwelling action pursuant to section 12-1363” and “the purchaser’s response
to the seller’s repairs, replacements or offers made or proposed, if any, before the purchaser filed
the dwelling action.” Neither application provides sufficient facts for the Court to conduct this
analysis.

CONCLUSION

For the reasons stated, IT IS ORDERED:

Awarding KHov and RR/DV their respective attorneys’ fees pursuant to § 12-341.01 as
follows:

KHov: $156,311.22 less $8,667.75 for a total of $147,643.47

RR: $115,209

DV: $86,715.50

IT IS FURTHER ORDERED awarding KHov and RR/DV their taxable costs pursuant
to A.R.S. § 12-332 as follows:

KHov: $23,536.06 less $2,947 for a total of $20,589.06.

RR: $4,525.91

DV: $4,525.92

A Final Judgment will be entered separately.

Clerk of the Superior Court

*** Filed ***

04/27/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

04/26/2023

Docket Code 901
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KATHERINE COOPER
C. Ladden

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
LOUIS W HOROWITZ

JASON J BOBLICK
LEONARD T FINK
SHANNON G HUFF
MICHAEL A LUDWIG
RINA K RAI
AMY WILKENS
DENNIS I WILENCHIK
DOCKET CV TX
JUDGE COOPER

FINAL JUDGMENT

On February 8, 2023, the Court granted Defendants K. Hovnanian at Gallery, LLC, and
K. Hovnanian Arizona Operations, LLC summary judgment and dismissed the Complaint
against them. Accordingly, IT IS ORDERED entering Judgment in favor of Defendants K.
Hovnanian at Gallery, LLC, and K. Hovnanian Arizona Operations, LLC, and against Plaintiff
Gallery Community Association.

The February 8, 2023 Ruling in favor of Defendants Hovnanian also resolved the Third-
Party Complaint against Third-Party Defendants Renco, LLC dba Renco Roofing and Desert
Vista, Inc. as moot.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

04/26/2023

Docket Code 901
Form V000A
Page 2

IT IS FURTHER ORDERED entering Judgment against Plaintiff Gallery Community
Association as follows:

1. Defendants K. Hovnanian at Gallery, LLC, and K. Hovnanian Arizona Operations,
LLC, are awarded attorneys’ fees of $147,643.47 and taxable costs of $20,589.06, for
a total of $168,232.53, plus interest at the legal rate of 9.0% accruing from the date
that this Judgment is entered until paid pursuant to A.R.S. § 44-1201(B).

2. Third-Party Defendant Renco LLC dba Renco Roofing is awarded attorneys’ fees of
$115,209 and taxable costs of $4,525.91, for a total of $119,734.91, plus interest at
the legal rate of 9.0% accruing from the date that this Judgment is entered until paid
pursuant to A.R.S. § 44-1201(B).

3. Third-Party Defendant Desert Vista, Inc. is awarded attorneys’ fees of $86,715.50
and taxable costs of $4,525.92, for a total of $91,241.42, plus interest at the legal rate
of 9.0% accruing from the date that this Judgment is entered until paid pursuant to
A.R.S. § 44-1201(B).

There are no further claims or issues pending in this matter. This Judgment fully resolves
the Complaint and Third-Party Complaint and is entered pursuant to Rule 54(c).

Dated this 26th day of April, 2023.

/ s / KATHERINE COOPER

KATHERINE COOPER
JUDGE OF THE SUPERIOR COURT

Clerk of the Superior Court

*** Electronically Filed ***

05/04/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

04/27/2021

Docket Code 029
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE MICHAEL W. KEMP
K. Ballard

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
DENNIS I WILENCHIK

STEPHEN BEST
JASON J BOBLICK
SAMANTHA EGAN
LEONARD T FINK
AMANDA R HOUGH
TERESA HAYASHI WALES
JUDGE KEMP

MINUTE ENTRY

Courtroom: ECB-711

10:25 a.m. This is the time set for a status conference to address Plaintiff’s Request for
Rule 56(d) Relief, filed March 22, 2021.

Appearances are all telephonic and are as follows:

 Plaintiff Gallery Community Association is represented by Counsel Penny J.
Manship.

 Defendants/Third-Party Plaintiffs K. Hovnanian at Gallery, LLC; K. Hovnanian
Arizona Operations, LLC; K. Hovnanian Developments of Arizona, Inc.; and K.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

04/27/2021

Docket Code 029
Form V000A
Page 2

Hovnanian Companies of Arizona, LLC (“Defendants/Third-Party Plaintiffs”) are
represented by Counsel Dennis I. Wilenchik.

 Third-Party Defendant Chas Roberts Air Conditioning, Inc. is represented by Counsel
Teresa Hayashi Wales.

 Third-Party Defendant Sargon Masonry Construction, LLC is represented by Counsel
David S. Schopick (appearing in place of Leonard T. Fink).

 Third-Party Defendant Gothic Landscaping, Inc. is represented by Counsel Amanda
R. Hough.

 Third-Party Defendant Liberty Constructors is represented by Counsel Thomas
Shorall, Jr. (appearing in place of Jason J. Boblick).

 Third-Party Defendants Renco Roofing is represented by Counsel Shannon Huff
(appearing in place of Samantha Egan).

 No other party is present or represented.

A record of the proceedings is made digitally in lieu of a court reporter.

The Court notes that Plaintiff has already filed a response to the pending summary
judgment motion but is seeking additional time to file a more substantive response after
discovery.

The Rule 56(d) request is discussed.

For the reasons set forth on the record,

IT IS ORDERED granting, out of abundance of caution, Plaintiff an extension of time to
file an amended response. THE COURT FINDS no prejudice to Defendants/Third-Party
Plaintiffs in granting the extension.

IT IS FURTHER ORDERED Plaintiff shall file an amended response to Defendants/
Third-Party Plaintiffs’ Motion for Summary Judgment (filed February 19, 2021) no later than
September 24, 2021. Defendants/Third-Party Plaintiffs shall file an amended reply within the
normal time limits.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

04/27/2021

Docket Code 029
Form V000A
Page 3

Counsel for Defendants/Third-Party Plaintiffs requests that the Court parse out a portion
of the pending summary judgment motion for early resolution. Court and counsel discuss same.

IT IS ORDERED denying the request to parse out the legal issue discussed on the
record.

IT IS FURTHER ORDERED affirming the briefing schedule set forth above.

10:55 a.m. Matter concludes.

ALERT: Due to the spread of COVID-19, the Arizona Supreme Court Administrative
Order 2020-79 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 ***

05/18/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

05/16/2022

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KATHERINE COOPER
C. Ladden

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
AMY WILKENS

STEPHEN BEST
JASON J BOBLICK
LEONARD T FINK
AMANDA R HOUGH
MOHAMAD TOKKO
M. RYAN WILLIAMS
DENNIS I WILENCHIK
TERESA HAYASHI WALES
JUDGE COOPER

ORAL ARGUMENT SET

The Court has received Third Party Defendants’ Joint Objection and Motion to Preclude
Defendants/Third Party Plaintiffs’ Untimely and New Expert Reports and Opinions filed March
29, 2022.

IT IS ORDERED setting Oral Argument on the above Motion for June 10, 2022 at 9:30
a.m. (time allotted: 30 minutes) in this division. All counsel and self-represented parties shall
appear in-person or via Court Connect before:

The Honorable Katherine Cooper
Maricopa County Superior Court

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

05/16/2022

Docket Code 094
Form V000A
Page 2

East Court Building
101 W. Jefferson
7th Floor, Courtroom 711
Phoenix, AZ 85003
Phone: 602-506-8311

Court Connect is the Superior Court in Maricopa County’s new video court hearing
platform. For more information about Court Connect, please visit:
https://superiorcourt.maricopa.gov/court-connect.

Join on your computer or mobile app
Click here to join the meeting

Or call in (audio only)
+1 917-781-4590,,860084431# United States, New York City
Phone Conference ID: 860 084 431#

All persons are strongly urged to appear by video instead of audio alone. For questions,
please call Judge Cooper’s division at 602.506.8311, or email Judicial Assistant Jennifer Madrid
at [email protected].

Oral argument shall be limited to 30 minutes with the time divided equally between the
sides.

NOTE: If/when a party files a pleading within 5 days or less of a scheduled event, the
party should also e-mail same to this division’s Judicial Assistant Jennifer Madrid at
[email protected].

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 ***

06/13/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

06/10/2022

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KATHERINE COOPER
E. Wolf

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
AMY WILKENS

R/S SERVICE & SUPPLY INC
NO ADDRESS ON RECORD
STEPHEN BEST
JASON J BOBLICK
LEONARD T FINK
AMANDA R HOUGH
HOME BUILDERS SITE SERVICES OF
ARIZONA L L C
NO ADDRESS ON RECORD
MOHAMAD TOKKO
M. RYAN WILLIAMS
DENNIS I WILENCHIK
TERESA HAYASHI WALES
BARBARA JEAN STANSIL
C COLE CRABTREE
MICHAEL A LUDWIG
THOMAS J SHORALL JR.
SHANNON G HUFF
DAVID S SCHOPICK
JUDGE COOPER

ORAL ARGUMENT HELD/MATTER UNDER ADVISEMENT

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

06/10/2022

Docket Code 020
Form V000A
Page 2

East Court Building – Courtroom 711

9:30 a.m. This is the time set for an Oral Argument regarding Third-Party Defendants
Desert Vista, Inc. and Renco, LLC’s Joint Objection and Motion to Preclude Defendants/Third-
Party Plaintiffs’ Untimely and New Expert Reports and Opinions, filed March 29, 2022. The
following appear:

 On behalf of Plaintiff Gallery Community Association counsel of record, Penny
Jane Manship, appearing virtually via Court Connect.

 On behalf of Defendants/Third-Party Plaintiffs K. Hovnanian At Gallery, LLC, K.
Hovnanian Arizona Operations, LLC, and K. Hovnanian Companies of Arizona,
LLC; and Third-Party Plaintiff K. Hovnanian Developments of Arizona, Inc.
(collectively, “Khov”) counsel of record, Amy Wilkens, and co-counsel, Louis
Horowitz.

 On behalf of Third-Party Defendants Desert Vista, Inc. and Renco, LLC (“Desert
Vista/Renco”) counsel, Shannon G. Huff, appearing telephonically for counsel of
record, Mohamad Tokko.

 On behalf of Third-Party Defendant Liberty Constructors, LLC counsel of record,
Jason J. Boblick, appearing telephonically.

No other parties appear and/or represented by counsel.

A record of the proceeding is made digitally in lieu of a court reporter.

Argument regarding Desert Vista/Renco’s Joint Objection and Motion to Preclude
Defendants/Third-Party Plaintiffs’ Untimely and New Expert Reports and Opinions, filed March
29, 2022, is presented.

Based upon argument presented, and for reasons stated on the record,

IT IS ORDERED that the Khov and Desert Vista/Renco shall jointly prepare a
spreadsheet that provides a side-by-side summary of a) Plaintiff’s initial and supplemental expert
opinions/reports, 2) Khov’s initial expert disclosure, 3) Khov’s supplemental expert disclosure,
and 4) Desert Vista/Renco’s expert disclosure. For each disclosure/set of reports, the Court
summaries should be limited to the top 8 most material opinions. If the parties do not agree on
the material points to be included, they shall designate their respective position in the document.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

06/10/2022

Docket Code 020
Form V000A
Page 3

IT IS FURTHER ORDERED that Desert Vista/Renco shall prepare a list of anticipated
discovery that it believes would be necessary to address Khov’s February 2002 expert disclosure
and reports.

IT IS FURTHER ORDERED that Khov and Desert Vista/Renco shall prepare a
Timeline (using the timeline provided in Khov’s Response as a starting point) of the expert
disclosures and communications between the parties, including emails, phone calls, and meetings
regarding the disclosure of expert opinions.

IT IS FURTHER ORDERED that the above-described supplemental documents
ordered by the Court shall be filed no later than June 24, 2022. Counsel shall also email a copy
IN WORD FORMAT to the Court’s Judicial Assistant Avery Vaughn at
[email protected].

IT FURTHER ORDERED that upon receiving all requested statements and/or
documents the Court shall take Desert Vista/Renco’s Joint Objection and Motion to Preclude
Defendants/Third-Party Plaintiffs’ Untimely and New Expert Reports and Opinions, filed March
29, 2022, under advisement.

IT IS FURTHER ORDERED affirming the virtual Trial Setting Conference set on
August 12, 2022 at 8:45 a.m. (time allotted: 15 minutes) in this division.

10:14 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

07/07/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

07/01/2022

Docket Code 083
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KATHERINE COOPER
C. Ladden

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
LOUIS W HOROWITZ

STEPHEN BEST
JASON J BOBLICK
LEONARD T FINK
MOHAMAD TOKKO
AMY WILKENS
M. RYAN WILLIAMS
JUDGE COOPER

TRIAL SETTING CONFERENCE RESET

Pursuant to the Order Granting Stipulation to Amend Scheduling Order electronically
signed by the Court on July 1, 2022 and filed (entered) by the Clerk on July 5, 2022,

IT IS ORDERED vacating the Trial Setting Conference set for August 12, 2022 at 8:45
a.m. and resetting same to October 11, 2022 at 9:00 a.m. (time allotted: 15 minutes) in this
division for the purpose of setting trial, if the case is ready to set trial. This matter will be heard
by video/audio conference using Court Connect. Court Connect is the Superior Court in
Maricopa County’s new video court hearing platform. For more information about Court
Connect, please visit: https://superiorcourt.maricopa.gov/court-connect.

Join on your computer or mobile app
Click here to join the meeting

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

07/01/2022

Docket Code 083
Form V000A
Page 2

Or call in (audio only)
+1 917-781-4590,,860084431# United States, New York City
Phone Conference ID: 860 084 431#

All persons are strongly urged to appear by video instead of audio alone. For questions,
please call Judge Cooper’s division at 602.506.8311, or email this division’s Courtroom
Assistant Brandon Powell at [email protected] or Judicial Assistant Avery
Vaughn at [email protected].

IT IS FURTHER ORDERED that, no less than five (5) days before the conference set
above, the parties shall file a joint status report containing (1) a very brief description of the case;
(2) a statement of the status of discovery and other pertinent matters; (3) a list of pending
motions or other matters, whether at issue or not; (4) the status of alternative dispute resolution;
(5) when the parties anticipate the case will be ready for trial; and (6) how many trial days the
parties estimate will be needed.

NOTE: If/when a party files a pleading within 5 days or less of a scheduled event, the
party should also e-mail same to this division’s Courtroom Assistant Brandon Powell at
[email protected] or Judicial Assistant Avery Vaughn at
[email protected].

Clerk of the Superior Court

*** Electronically Filed ***

08/02/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

07/29/2022

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KATHERINE COOPER
C. Ladden

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
LOUIS W HOROWITZ

STEPHEN BEST
JASON J BOBLICK
LEONARD T FINK
SHANNON G HUFF
AMY WILKENS
M. RYAN WILLIAMS
JUDGE COOPER

RULING RE MOTION TO PRECLUDE

Pending before the Court is Third-Party Defendants’ Desert Vista, Inc. (“DV”) and
Renco, LLC’s (“Renco”) fully-briefed Joint Objection and Motion to Preclude Defendant/Third-
Party Plaintiffs’ [K. Hovnanian at Gallery, LLC (“KHov”)] Untimely and New Expert Reports
and Opinions filed March 29, 2022. On June 10, 2022, the Court heard oral argument and
ordered supplemental briefing filed July 1, 2022. The Court has considered the briefs and
counsels’ argument.

On February 22, 2022, KHov disclosed new expert opinions and reports. The disclosure
came six months after KHov’s expert disclosure deadline and one month after DV and Renco
disclosed their expert opinions and reports.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

07/29/2022

Docket Code 926
Form V000A
Page 2

DV and Renco move to preclude KHov’s February 2022 opinions as untimely and
prejudicial. Their experts relied on KHov’s original disclosures in their investigation and
defense of KHov’s claims. KHov’s new opinions, particularly as to the damages attributable to
DV and Renco, are substantially different from the original estimates. If allowed, the new
opinions will require DV and Renco to incur significant cost preparing a response.

KHov argues that the February 2022 opinions are not new, they are timely rebuttal
opinions, good cause exists to allow them, and DV and Renco are not prejudiced.

In this construction defect case, Plaintiff Gallery Community Association (“Gallery”) is
the owners’ association for The Gallery, a residential complex in Scottsdale. On July 27, 2020,
The Gallery sued KHov, the project’s developer, for negligence, breach of warranty, and breach
of contract. On October 6, 2020, KHov filed an Answer and Third-Party Complaint naming nine
sub-contractors, including DV and Renco.

On May 27, 2021, the Court entered a stipulated Scheduling Order. It adopted the
structure for the disclosure of expert opinions and reports common in construction defect
litigation with Plaintiff Gallery’s disclosures first, then Defendant/Third-Party Plaintiff KHov,
followed by the Third-Party Defendants “to allow each party time to investigate those claims
being made against it and respond.” Response, p. 4.

The Scheduling Order provides in relevant part:

Defendants’ liability expert witnesses and reports: July 23, 2021
Defendants’ cost of repair expert witnesses and reports: August 23, 2021
***
No party shall use any lay witness, expert witness, expert opinion, or exhibit at trial not
disclosed in a timely manner, except upon order of the court for good cause shown or
upon a written or an on-the-record agreement of the parties.
***
Dates set forth in this order that govern court filings or hearings are firm dates, and may
be modified only with this court’s consent and for good cause. This court ordinarily will
not consider a lack of preparation as good cause.

None of the subsequent amendments to the Scheduling Order altered KHov’s expert
disclosure deadlines above.1

1 Gallery and KHov informally extended KHov’s July 23, 2021 deadline to August 23, 2021. That extension is not
relevant to the present disclosure dispute.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

07/29/2022

Docket Code 926
Form V000A
Page 3

In August 2021, KHov disclosed three expert reports (referred to collectively as “Original
Reports”): Peterson Geotechnical Group’s Civil and Geotechnical Engineering Evaluation dated
August 10, 2021; Bert L. Howe & Associates, Inc.’s Defense Response Report dated August 11,
2021; and Bert L. Howe & Associates, Inc.’s Preliminary Defense Cost of Defense Scope
Estimate (“Original COR”).

On November 24, 2021, the Court entered an amended Scheduling Order, extending
certain dates, including the deadline for all parties to disclose rebuttal expert opinions to
February 28, 2022.

On January 31, 2022, DV and Renco timely disclosed their expert witnesses, reports, and
opinions.

On February 25, 2022, KHov disclosed the new expert reports at issue (referred to as
“New Reports”): a revised Bert L. Howe & Associates’ Defense Response Report dated
February 25, 2022; revised Bert L. Howe & Associates’ Preliminary Defense Cost of Repair
dated February 25, 2022 (“New COR”); and the Subcontractor Allocation Summary dated
February 25, 2022.

Law

Having been sued for alleged faulty workmanship on The Gallery structures, KHov
named nine subcontractors as Third-Party Defendants. The Third-Party Complaint alleges that
the subcontractors, including DV and Renco, breached contracts, were negligent in their work,
and fell below the standard of care for their trade. KHov must prove these allegations with expert
testimony. Under A.R.S. § 12–2602(A), “[i]f a claim against a licensed professional is asserted
in a civil action, the claimant or the claimant's attorney shall certify in a written statement that is
filed and served with the claim whether or not expert opinion testimony is necessary to prove the
licensed professional's standard of care or liability for the claim.”

KHov had a duty to timely disclose to the Third-Party Defendants the basis for its claims
against them. KHov was on notice of the deadlines set forth in the Scheduling Order for the
disclosure of their expert witnesses, opinions, and reports.

Rule 26.1(f) provides that a party seeking to use information that it first disclosed later
than the deadline set in a Scheduling Order or Case Management Order…must obtain leave of
court to extend the time for disclosure as provided in Rule 37(c)(4) or (5).

Rule 37(c)(1) states that “[u] nless the court specifically finds that such failure caused not
prejudice or orders otherwise for good cause, a party who fails to timely disclose information, a

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

07/29/2022

Docket Code 926
Form V000A
Page 4

witness, or a document as required by Rule 26.1 may not use the information, witness or
document as evidence at trial.”

Rebuttal Argument

KHov argues that the New Reports contain rebuttal opinions timely disclosed before the
rebuttal deadline of February 28, 2022. They purportedly rebut a) Plaintiff’s Supplemental expert
disclosures2, and b) KHov’s “additional investigation” conducted after KHov’s Original Reports.
The New Reports do not support that position.

The New Reports do not rebut Gallery’s Supplemental disclosure because Gallery did not
add anything material as to DV or Renco in its Supplemental disclosure. As to the stucco work
by DV, Gallery’s Supplemental does not state new findings, recommend additional repairs, or
change Gallery’s original cost of repair. As to Renco, Gallery’s Supplemental adds a new
category for roof leaks but does not include an additional cost estimate for this category or
change the total cost originally projected for roof work.3

By contrast, KHov’s New Reports contain multiple new opinions regarding DV. For
example, the Original COR estimated the cost of stucco-related building envelope repairs to be
$49,905. The New COR states $496,198 for the same category of repair. For the Façade, the
New COR increases the direct cost from $43,975 to $449,355. The New COR also attributes
$2,392,931 in construction defect damages to DV and includes new opinions regarding repairs
not mentioned in the Original Expert Report such as “apply elastomeric stucco paint to entire
stucco plane to match adjacent surfaces, install backer rod and sealant at all joints” (at a cost of
$173,088.00) and the installation of a new soffit drip screed, new stucco foam insulation and
stucco lath, and new stucco cladding system (total $102,508.40). None of these opinions are
rebuttal to Plaintiff’s Supplemental expert reports.

KHov’s New Reports also change KHov’s claim against Renco. KHov’s Original Reports
deny the existence of roof leaks and estimate Renco-related repairs of $5,930. KHov’s New
Reports add a new line item, “roof tune-ups,” at $27,180 and impute $378, 334 in total damages
to Renco.

In addition, KHov’s Allocation Summary is an entirely new report, produced for the first
time in February 2022. This Summary attributes specific percentages of fault to DV and Renco -

2 Gallery’s Supplemental Disclosures produced October 15 and November 11, 2021.
3 The Court relies on the summary of Plaintiff’s expert disclosures, Exh. 1 to Supplemental Documentation filed
July 1, 2022.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

07/29/2022

Docket Code 926
Form V000A
Page 5

73% to DV ($2,392,931) and 11% to Renco ($378,334). None of Gallery’s expert disclosures or
KHov’s Original Reports allocate percentages of fault to the subcontractors.

KHov’s second argument – that the New Reports “respond to….the additional
investigation which had occurred” (Response, p. 4) – is also untenable. “Rebuttal evidence is to
counter a new fact or allegation made by an opponent’s case.” Jansen v. Lichwa, 13 Ariz. App.
168, 171 (App. 1970). It is evidence given “to explain, repel, counteract, or disprove facts given
in evidence by opposing party, or that which tends to explain or contradict or disprove evidence
offered by adverse party.” U.S. v. Byers, 649 F. 3d 197, 213 (4th Cir. 2011) (citing Allen v.
Prince George’s County, Md., 737 F.2d 1299, 1304 (4th Cir. 1984) (“Evidence offered in
‘rebuttal ‘may be introduced only to counter new facts presented in the defendant’s case in
chief.”) (Emphasis added) Reporting information obtained through further investigation is not
rebuttal evidence.

The New Reports are not rebuttal to Plaintiff’s disclosures. They are new opinions that
significantly increase KHov’s damages claims against DV and Renco.

Good Cause

KHov fails to show good cause for the delay in disclosing the New Reports and opinions.
It offers no explanation as to why the “additional investigation” was not done before KHov’s
expert disclosure deadline. It fails to establish the connection between any new opinion or cost to
information developed through “additional investigation.” It does not address the reason for
disclosure (in February 2022) after DV and Renco’s expert disclosure (in January 2022) when
KHov had the information as early as December 2021.4

KHov argues that the prejudice of preclusion to KHov is good cause to allow the New
Reports. Good cause is the justification for late disclosure; it is not the consequence. The
Scheduling Order states expressly that “[t]his court ordinarily will not consider a lack of
preparation as good cause.” KHov offers no other explanation for the delay.

Prejudice

KHov asserts DV and Renco are not prejudiced because the deadline for their rebuttal
opinions has been and can be extended to allow DV and Renco time to investigate and to
supplement their experts’ opinions.

4 KHov’s Response states that KHov’s new opinions were discussed at a December 2021 pre-mediation meeting.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

07/29/2022

Docket Code 926
Form V000A
Page 6

The prejudice is cost, not opportunity. DV and Renco performed their investigation.
Their experts relied on KHov’s Original Reports to determine the scope of their investigation and
in formulating their opinions based on that investigation. In fact, DV adopted KHov’s original
cost of repair estimate. As shown, the New Reports differ drastically from KHov’s Original
Reports as to DV and Renco’s alleged exposure in this case. Responding to those new opinions
will mean re-opening their investigation at significant unwarranted litigation expense.

Conclusion

KHov was obligated to disclose expert opinions and reports in August 2021 pursuant to
the Scheduling Order. KHov failed to timely disclose the expert opinions and reports it now
seeks to use. KHov’s New Reports will unfairly prejudice DV and Renco. Therefore,

IT IS ORDERED granting the Motion to Exclude and precluding KHov’s February 22,
2022 expert disclosures.

Clerk of the Superior Court

*** Electronically Filed ***

08/24/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

08/21/2020

Docket Code 001
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE TIMOTHY J. THOMASON
N. Johnson

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
DENNIS I WILENCHIK

JUDGE GATES
JUDGE THOMASON

MINUTE ENTRY

The Court recuses itself from this case. Therefore,

IT IS ORDERED referring this matter to the Civil Presiding Judge for reassignment.

Clerk of the Superior Court

*** Electronically Filed ***

09/02/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

09/01/2020

Docket Code 066
Form V000A
Page 1

CLERK OF THE COURT
HON. PAMELA GATES
S. Ortega

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
DENNIS I WILENCHIK

JUDGE GATES
JUDGE KEMP
JUDGE THOMASON

CASE REASSIGNMENT - CIVIL PRESIDING JUDGE

This case was previously assigned to the Honorable Timothy J. Thomason, who has
disqualified himself. The case was transferred to the Presiding Civil Judge for reassignment.

IT IS ORDERED reassigning this case to Civil Calendar CVJ-20, the Honorable Michael
Kemp, for all further proceedings.

IT IS FURTHER ORDERED that any and all hearings set by the disqualified judge are
vacated, to be reset by the new division.

IT IS FURTHER ORDERED that the parties shall jointly file within 10 days of the date
of this minute entry, a notice with the new division listing any outstanding motions (including
the file dates), whether they are ripe for resolution, and any hearings that need to be reset.

Clerk of the Superior Court

*** Electronically Filed ***

10/18/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

10/11/2022

Docket Code 089
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KATHERINE COOPER
C. Ladden

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
LOUIS W HOROWITZ

STEPHEN BEST
JASON J BOBLICK
LEONARD T FINK
SHANNON G HUFF
RINA K RAI
AMY WILKENS
DENNIS I WILENCHIK
JUDGE COOPER

JURY TRIAL SET

East Court Building – Courtroom 711

9:01 a.m. This is the time set for a Trial Setting Conference.

The following parties/counsel are present and appear virtually via the Court Connect
platform:

 Plaintiff is represented by counsel, Craig S. Nuss and Penny Jane Manship.

 Defendants/Third Party Plaintiffs K Hovnanian at Gallery, LLC and K Hovnanian
Arizona Operations, LLC are represented by counsel, Louis W. Horowitz.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

10/11/2022

Docket Code 089
Form V000A
Page 2

 Third Party Defendants Desert Vista, Inc. and Renco, LLC are represented by
counsel, Marcus McGillivray, appearing on behalf of Rina K. Rai.

 Third Party Defendant Leblanc Building, Co., Inc is represented by counsel, Michael
Ludwig, appearing on behalf of Stephen Best.

 Third Party Defendant Liberty Constructors, LLC is represented by counsel, Jason J.
Boblick.

 Third Party Defendant Sargon Masonry Construction, LLC is not represented.

A record of the proceedings is made digitally in lieu of a court reporter.

Discussion is held regarding the case status of Defendant Sargon Masonry Construction,
LLC. Mr. Horowitz informs the Court that a settlement was reached with the aforementioned
Defendant in December 2021 and the parties need to finalize and pay the agreed upon settlement.
Counsel intends to file a Notice of Settlement.

Discussion is held regarding setting trial in this matter.

IT IS ORDERED setting this matter for a 15–day Jury Trial on March 13–16; 20–23;
27–30; and April 3–5, 2023 at 9:30 a.m. in this division before:

The Honorable Katherine Cooper
Maricopa County Superior Court
East Court Building
101 W. Jefferson
7th Floor, Courtroom 711
Phoenix, AZ 85003
Phone: 602-506-8311

Trial hours and days are normally 9:30 a.m. to 4:30 p.m. (with a lunch recess from noon
to 1:30 p.m. and two 15-minute recesses, daily), Monday through Thursday.

IT IS FURTHER ORDERED setting a Final Trial Management Conference for
February 10, 2023 at 1:30 p.m. (time allotted: 1 hour) in this division. All counsel and self-
represented parties shall appear in-person or via Court Connect.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

10/11/2022

Docket Code 089
Form V000A
Page 3

Court Connect is the Superior Court in Maricopa County’s new video court hearing
platform. For more information about Court Connect, please visit:
https://superiorcourt.maricopa.gov/court-connect.

Join on your computer or mobile app
Click here to join the meeting

Or call in (audio only)
+1 917-781-4590, 860084431# United States, New York City
Phone Conference ID: 860 084 431#

All persons are strongly urged to appear by video instead of audio alone. For questions,
please call Judge Cooper’s division at 602.506.8311, or email this division’s Courtroom
Assistant Brandon Powell at [email protected] or Judicial Assistant Avery
Vaughn at [email protected].

Discussion is held regarding pending Motions for Summary Judgment. A Joint Motion
for Summary Judgement was filed by Third Party Defendants Renco, LLC and Desert Vista, Inc.
on September 30, 2022. The Response is due November 4, 2022 and Reply will be due in the
normal course. The Court will review the Motion and Response and determine if Oral Argument
will be needed.

Discussion is held regarding settlement efforts.

Discussion is held regarding time allocation for Jury Selection, Opening Statements,
witness examinations, and Closing Argument. You should assume 5 hours of trial time per day,
starting at 9:30am to 4:30 pm with 1.5 hours for lunch and two 15-minunte breaks. Closing
arguments shall be completed and the case submitted to the jury no later than 2pm on the last
day of trial.

9:15 a.m. Matter concludes.

NOTE: If/when a party files a pleading within 5 days or less of a scheduled event, the
party should also e-mail same this division’s Courtroom Assistant Brandon Powell at
[email protected] or Judicial Assistant Avery Vaughn at
[email protected].

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

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

10/11/2022

Docket Code 089
Form V000A
Page 4

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.

Should you want an unofficial copy (CD) of the proceedings, please email Electronic
Records Services at [email protected] or call (602) 506-7100. Please note that
there is a $30.00 fee. To obtain a copy of a hearing on the day it is conducted, you must first fill
out a “Request for Daily Copy” form and pay the fee at the Court’s Law Library Resource
Center. Forms are available at the Law Library Resource Center. To order transcripts of digitally
recorded court proceedings, call Electronic Records Services for instructions.

Based on the trial setting, the Court sets the following deadlines and makes the following
orders. The dates set forth in this order are firm dates and will not be extended or modified by
this Court absent good cause. Lack of preparation will not ordinarily be considered good cause.

DUTIES BEFORE THE FINAL TRIAL MANAGEMENT CONFERENCE

MOTIONS IN LIMINE. All motions in limine shall be filed no later than 5:00 p.m. on
January 20, 2023. Written responses to motions in limine may be filed no later than 10 calendar
days after service of the motion. No replies shall be filed. The Court may hear argument at the final
trial management conference or may rule without oral argument. The parties must comply with
Ariz. R. Civ. P. Rule 7.2(a) before filing any motion in limine. Each side will be limited to filing
no more than 5 motions in limine. However, either side may file a brief of unlimited length
addressing evidentiary issues anticipated to arise at trial.

JOINT PRETRIAL STATEMENT. The parties shall file with the Court no later than
5:00 p.m. on February 3, 2023, a Joint Pretrial Statement, signed by all counsel (and any self-
represented party) and containing the following. This order modifies the requirements of Ariz. R.
Civ. P. 16(f).

1. List of Claims. The Joint Pretrial Statement must contain a list of all claims or causes of
action on which a verdict is sought by any party. Such list shall specify (1) the cause of
action (e.g., breach of contract, negligence, etc.), (2) each party asserting that cause of
action, and (3) each party against whom that cause of action is asserted.

2. No List of Issues. The requirements of Ariz. R. Civ. P. 16(f)(2)(A), (B) and (C) are
waived. The parties need not prepare a list of stipulations, agreed contested issues or
other issues considered material. Disputes over what issues are properly in the case will
be decided under Rule 26.1. The parties may, if they wish, submit one or more separate
stipulations regarding facts, evidence or other matters.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

10/11/2022

Docket Code 089
Form V000A
Page 5

3. Summary of the Case for Jury Selection. The Joint Pretrial Statement must include an
agreed-upon brief (generally less than 200 words) summary of the case for jury selection
purposes. If the parties cannot agree, they must submit separate proposed summaries.

4. Final Trial Witnesses. The Joint Pretrial Statement must include an exhibit entitled
Final Trial Witness List (see attached), which must list each witness a party expects to
call at trial (in person or by deposition), the estimated time needed for direct, cross, and
redirect, and the day on which they expect to call that witness. If the court finds that a
party unreasonably included witnesses not likely to be called at trial, it may consider
appropriate sanctions.

5. Trial Exhibits. As required by Rule 16(f)(E), all trial exhibits must be listed in the Joint
Pretrial Statement along with objections. The Court typically resolves objections to
exhibits at trial, but objections must be listed in the Joint Pretrial Statement to be
preserved. If the Court finds that a party unreasonably included exhibits not likely to be
used at trial, it may consider appropriate sanctions.

6. Deposition Designations. Deposition designations and objections should not be
included in the Joint Pretrial Statement, but must be submitted to the Court three judicial
days before the start of trial. The Court will resolve deposition designations as follows:
By 4:00 p.m. the day before a party plans to read deposition testimony, that party must
provide the Court a hard copy of the deposition transcript with (1) the portions to be read
highlighted, (2) any counter-designations highlighted in a different color, and (3) any
objections written in the margin. The Court will rule on any objections by the next day.
If the party plans to play a video deposition, the transcript must be provided by 4:00 p.m.
two days before the deposition will be played.

7. Other Matters. The Joint Pretrial Statement must include the matters in Ariz. R. Civ. P.
16(f)(2)(H), (I), (J) and (K).

JURY INSTRUCTIONS; VOIR DIRE. The parties shall meet and agree on as many
proposed jury instructions as possible. The parties shall file with the Court, with their Joint Pretrial
Statement, copies of:

1. Proposed voir dire questions.

2. Agreed-upon preliminary and final jury instructions and proposed forms of verdicts.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

10/11/2022

Docket Code 089
Form V000A
Page 6

3. Separate sets of requested instructions that have not been agreed upon. Recommended
Arizona Jury Instructions (“RAJI”) may be referred to by name without reprinting, but if
the RAJI contains options for the Court the party should indicate which options it is
requesting.

Jury instructions not requested by the final trial management conference will be deemed
waived unless good cause exists for the untimely request.

SETTLEMENT. The parties are reminded to promptly notify the Court of any settlement
pursuant to Ariz. R. Civ. P. 5.3(d). One day’s jury fees will be assessed unless the Court is notified
of settlement before 2:00 p.m. on the judicial day before the trial.

DUTIES AT TRIAL MANAGEMENT CONFERENCE

At the final trial management conference, the parties shall be prepared to discuss:

1. The claims and parties as to which a verdict is sought.

2. The length of the trial and any time limits to complete the trial in the allotted time.

3. Any scheduling or equipment issues.

4. Voir dire.

5. Any special issues regarding exhibits or deposition designations.

6. Preliminary jury instructions.

7. The case summary for jury selection purposes.

8. Motions in limine.

9. The potential for settlement before trial.

TRIAL EXHIBITS

Counsel (and any self-represented party) shall deliver all trial exhibits to the Clerk of the
Court no later than 3:00 p.m. on February 20, 2023.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

10/11/2022

Docket Code 089
Form V000A
Page 7

**PLEASE NOTE: FOR JURY TRIALS, ONLY PAPER EXHIBITS SHALL BE
SUBMITTED**

For in-person exhibit submission, please visit,
https://www.clerkofcourt.maricopa.gov/services/exhibits-submission. The webpage will provide
instructions and guidance for locations for in-person submission of exhibits.

For filing paper exhibits, please adhere to the following guidelines:

1. Exhibits will be marked consecutively. The clerk cannot reserve numbers for exhibits
that will be provided at a later date. Any missing exhibits will not be considered and
the numbers of all following exhibits will be moved up. If Defendant’s exhibits are
received prior to Plaintiff’s exhibits, the clerk may mark them first with Plaintiff’s
exhibits following.

2. Do not place exhibits in a notebook when submitting them to the clerk for marking
and do not provide the clerk with stacks of loose paper. Individual exhibits
consisting of multiple pages shall be BOUND BY STAPLES OR TWO-PRONG
FASTENERS. DO NOT use paper clips, rubber bands, binder clips or submit
loose sheets of paper.

3. Original Depositions will not be marked as an exhibit. Original depositions to be
used for impeachment purposes shall be provided to the clerk on the first day of trial
to be hand-filed.

4. Do not submit duplicate exhibits, it is essential that the parties confer to avoid
submitting duplicate exhibits.

5. If large charts or blow-ups are anticipated to be used, please include a small version
(or photo) which can be marked as the exhibit. The charts and blow-ups are used for
demonstrative purpose only, are not marked as the exhibits, and are returned.

6. Do not put numbers on the exhibits themselves; instead, use a COLORED sheet
with the exhibit number on it. Place the colored sheet in front of each exhibit,
however, DO NOT staple or paper-clip it to the exhibit itself (this should be the
only loose sheet).

7. The parties are to provide a workable list of exhibits. The list should include a title or
description of each exhibit. (See blank sample of the following table as a reference).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

10/11/2022

Docket Code 089
Form V000A
Page 8

8. If media files or video-recordings are anticipated to be submitted for marking, please
submit them on thumb-drives, not on a CD, and deliver them to the division for
marking.

Exhibit
No.
Identified
By
Description
Should be verifiable when viewing the first page of the exhibit
Stipulated in
Evidence/Objection

PLEASE NOTE: Each party shall provide a binder of exhibits for the Court’s use. Each
exhibit shall be separated by numbered divider tabs.

For additional assistance in preparation of exhibits contact the courtroom clerk at:
[email protected].

NOTICE: Exhibits Marked But Not Offered

Exhibits submitted to the Court for a hearing/trial, whether through hard copy or submitted
electronically, that are marked as exhibits but are not offered into evidence at the hearing/trial will
be destroyed following the hearing/trial, unless a party requests that the evidence be returned at the
conclusion of the hearing/trial. Such requests must be filed with the Court and served on all parties
in advance of the hearing/trial or by no later than the conclusion of the hearing/trial.

WITNESS INFORMATION FORM

Allocation time for Jury Selection, Opening Statements, witness examinations, and Closing
Argument. You should assume 5 hours of trial time per day, starting at 9:30am to 4:30 pm with
1.5 hours for lunch and two 15-minunte breaks. Closing arguments shall be completed and the
case submitted to the jury no later than 2pm on the last day of trial.

TOTAL ESTIMATED TRIAL TIME: 15 days.

VOIR DIRE EXAMINATION

TIME ESTIMATE FOR:

PLAINTIFF(S) VOIR DIRE

DEFENDANT(S) VOIR DIRE

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

10/11/2022

Docket Code 089
Form V000A
Page 9

WITNESSES FOR PLAINTIFF(S)

WITNESS NAME
DIRECT &
RE-DIRECT
CROSS

1

2

3

4

5

6

DIRECT, RE-DIRECT & CROSS TOTAL: _________________

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

10/11/2022

Docket Code 089
Form V000A
Page 10

WITNESSES FOR DEFENDANT(S)

WITNESS NAME
DIRECT &
RE-DIRECT
CROSS

1

2

3

4

5

6

DIRECT, RE-DIRECT & CROSS TOTAL: _______________

TOTAL WITNESS TIME ESTIMATE: ___________________________

TIME ESTIMATE FOR:
PLAINTIFF
DEFENDANT
OPENING STATEMENT

CLOSING ARGUMENT
1st:
2nd:

Clerk of the Superior Court

*** Electronically Filed ***

11/24/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

11/23/2021

Docket Code 083
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KATHERINE COOPER
J. Eaton

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
HOLLY DAVIES

STEPHEN BEST
JASON J BOBLICK
LEONARD T FINK
AMANDA R HOUGH
MOHAMAD TOKKO
TERESA HAYASHI WALES
AMY WILKENS
M. RYAN WILLIAMS
JUDGE COOPER

TRIAL SETTING CONFERENCE RE- SET

Pursuant to the Order Granting Stipulation to Amend Scheduling Order electronically
signed by the Court on November 22, 2021 and filed (entered) by the Clerk on November 24,
2021,

IT IS ORDERED vacating the Trial Setting Conference set on March 30, 3022, at 9:15
a.m. and resetting to June 10, 2022 at 10:30 a.m. (time allotted: 15 minutes) in this division
for the purpose of setting trial, if the case is ready to set trial. This matter will be heard by
video/audio conference using Court Connect. Court Connect is the Superior Court in Maricopa
County’s new video court hearing platform. For more information about Court Connect, please
visit: https://superiorcourt.maricopa.gov/court-connect.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

11/23/2021

Docket Code 083
Form V000A
Page 2

Join on your computer or mobile app
Click here to join the meeting

Or call in (audio only)
+1 917-781-4590,,860084431# United States, New York City
Phone Conference ID: 860 084 431#

All persons are strongly urged to appear by video instead of audio alone. For questions,
please call Judge Cooper’s division at 602.506.8311, or email Judicial Assistant Avery Vaughn
at [email protected].

IT IS FURTHER ORDERED that, no less than five (5) days before the conference set
above, the parties shall file a joint status report containing (1) a very brief description of the case;
(2) a statement of the status of discovery and other pertinent matters; (3) a list of pending
motions or other matters, whether at issue or not; (4) the status of alternative dispute resolution;
(5) when the parties anticipate the case will be ready for trial; and (6) how many trial days the
parties estimate will be needed.

NOTE: If/when a party files a pleading within 48 hours of a scheduled event, the party
should also e-mail same to this division’s Judicial Assistant Avery Vaughn at
[email protected].

Clerk of the Superior Court

*** Electronically Filed ***

12/14/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

12/13/2022

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KATHERINE COOPER
C. Ladden

Deputy

GALLERY COMMUNITY ASSOCIATION
PENNY JANE MANSHIP

v.

K HOVNANIAN AT GALLERY L L C, et al.
LOUIS W HOROWITZ

STEPHEN BEST
JASON J BOBLICK
LEONARD T FINK
SHANNON G HUFF
RINA K RAI
AMY WILKENS
JUDGE COOPER

ORAL ARGUMENT SET

The Court has received and reviewed the following Motions, along with the Responses
and Replies:

 Defendants/Third-Party Plaintiffs K. Hovnanian at Gallery, LLC and K. Hovnanian
Arizona Operations, LLC’s Motion for Partial Summary Judgment Regarding Claims
of Unsupported Defects filed September 30, 2022;
 Defendants/Third-Party Plaintiffs K. Hovnanian at Gallery, LLC and K. Hovnanian
Arizona Operations, LLC’s Motion for Summary Judgment Regarding Each of
Plaintiff’s Causes of Action filed September 30, 2022;
 Third Party Defendants Desert Vista, Inc. and Renco, LLC’s Joint Motion for
Summary Judgment filed September 30, 2022; and

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

12/13/2022

Docket Code 094
Form V000A
Page 2

 Third Party Defendant Leblanc Building Co., Inc.’s Joinder in Third-Party
Defendants Desert Vista, Inc. and Renco, LLC’s Joint Motion for Summary Judgment
Dated September 30, 2022 filed October 3, 2022.

IT IS ORDERED setting Oral Argument on the above-mentioned Motions for January
13, 2023 at 9:00 a.m. (time allotted: 90 minutes) in this division. All counsel and self-
represented parties shall appear in-person or via Court Connect before:

The Honorable Katherine Cooper
Maricopa County Superior Court
East Court Building
101 W. Jefferson
7th Floor, Courtroom 711
Phoenix, AZ 85003
Phone: 602-506-8311

Court Connect is the Superior Court in Maricopa County’s new video court hearing
platform. For more information about Court Connect, please visit:
https://superiorcourt.maricopa.gov/court-connect.

Join on your computer or mobile app
Click here to join the meeting

Or call in (audio only)
+1 917-781-4590,,860084431# United States, New York City
Phone Conference ID: 860 084 431#

All persons are strongly urged to appear by video instead of audio alone. For questions,
please call Judge Cooper’s division at 602.506.8311, or email this division’s Courtroom
Assistant Brandon Powell at [email protected] or Judicial Assistant Avery
Vaughn at [email protected].

Oral argument shall be limited to 90 minutes with the time divided equally between the
sides.

NOTE: If/when a party files a pleading within 5 days or less of a scheduled event, the
party should also e-mail same to this division’s Courtroom Assistant Brandon Powell at
[email protected] or Judicial Assistant Avery Vaughn at
[email protected].

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-008714

12/13/2022

Docket Code 094
Form V000A
Page 3

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.

Should you want an unofficial copy (CD) of the proceedings, please email Electronic
Records Services at [email protected] or call (602) 506-7100. Please note that
there is a $30.00 fee. To obtain a copy of a hearing on the day it is conducted, you must first fill
out a “Request for Daily Copy” form and pay the fee at the Court’s Law Library Resource
Center. Forms are available at the Law Library Resource Center. To order transcripts of digitally
recorded court proceedings, call Electronic Records Services for instructions.

Documents