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Maricopa County Superior Court Case CV2012-002237: public docket details, parties, minute entries, documents, and official source links for Roseview Homeowners Association.

Case Number

CV2012-002237

County

Maricopa

Caption

Not captured

Filed

8/14/2012

Case Type

Civil

Judge

Coury, Christopher

Location

Downtown

Official Court Record

Official Court Record

Parties

Minute Entries

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/11/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

03/07/2014

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
M. Nielsen

Deputy

ROSEVIEW HOMEOWNERS ASSOCIATION
NIKITA VERMA PATEL

v.

DANIELA C MIHAILA, et al.
JONATHAN A DESSAULES

KEYBANK NATIONAL ASSOCIATION
NO ADDRESS ON RECORD

MINUTE ENTRY

On the Court’s own motion,

IT IS ORDERED vacating Telephonic Status Conference set for March 26, 2014 at 9:00
a.m.

The Court will reset Telephonic Status Conference after ruling on the pending Motion for
Summary Judgment.

Effective April 15, 2014 new civil rules and forms are in effect for managing cases
moving to trial. Be sure to review the new Civil Rules 16, 26, 37, 38, 72 through 74 and 77.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

04/30/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

04/29/2014

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
JUDGE PRO TEM COLLEEN L. FRENCH
M. Nielsen

Deputy

ROSEVIEW HOMEOWNERS ASSOCIATION
NIKITA VERMA PATEL

v.

DANIELA C MIHAILA, et al.
JONATHAN A DESSAULES

MINUTE ENTRY

The Court is in receipt of Plaintiff’s Motion for Summary Judgment, filed on February
28, 2014.

IT IS ORDERED denying Plaintiff’s Motion for Summary Judgment, filed on February
28, 2014 as the Court finds that genuine material facts remain at issue.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
06/05/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
05/29/2013
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Bee
Deputy
ROSEVIEW HOMEOWNERS ASSOCIATION
NIKITA VERMA PATEL
v.
DANIELA C MIHAILA, et al.
ERICA J SHOAF
KEYBANK NATIONAL ASSOCIATION
NO ADDRESS ON RECORD
ORDER TO FILE JOINT PROPOSED SCHEDULING ORDER
The Court has received and reviewed Plaintiff’s Rule 16(a) Request for Rule 16
Scheduling Conference, filed on April 1, 2013. Accordingly,
IT IS ORDERED that the parties shall submit a Joint Pretrial Memorandum as set forth
below.
The Court will review the Joint Pretrial Memorandum and proposed Scheduling Order
prescribed herein. The Court may adopt or modify the discovery and disclosure schedule order
and set a scheduling conference for purposes of setting a trial date. If counsel still believe that a
pretrial conference is necessary at this stage of the litigation, they should address the reasons for
the need for a pretrial conference in the first paragraph of the Joint Pretrial Memorandum.
If the parties fail to file a timely memorandum, sanctions may issue pursuant to Rule
16(f).
IT IS FURTHER ORDERED:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
05/29/2013
Docket Code 023
Form V000A
Page 2
All counsel are directed to meet personally to discuss all of the matters set forth in Rule
16(b). Counsel shall prepare and file with the Court by 5:00 p.m. on June 28, 2013, a Joint
Pretrial Memorandum, and prepare a proposed order for Discovery and Disclosure deadlines.
The proposed order shall include dates for the following items and conform substantially with
the attached sample order.
1.
A date or dates for initial disclosures and/or to supplement disclosures
made to date.
2.
An initial and final date to propound written discovery requests that
shall include, as far as can reasonably be anticipated, any and all medical
examinations which may be require of any of the parties; the person or
persons to conduct such examinations; and all tangible evidence to be
disclosed or exchanged.
3.
A date for the initial and final disclosure of all non-expert witnesses
and/or to supplement disclosures made to date.
4.
A date for the initial and final disclosure of the identities, subject
matter, and reports of expert witnesses, and/or to supplement
disclosures made to date.
5.
A date for the completion of all depositions.
6.
A date by which any motions to amend the pleadings will be filed.
7.
A date by which all discovery motions will be filed.
8.
A date by which all dispositive or partially dispositive motions shall be
filed.
9.
A proposed date for a Mandatory Settlement Conference pursuant to
Rule 16.1. Alternatively, the parties may propose a deadline by which
they will participate in private mediation.
10.
The anticipated length of trial.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
05/29/2013
Docket Code 023
Form V000A
Page 3
If counsel are unable to agree on any of the items set forth in the attached form of order,
the reasons for their inability to agree shall be set forth in the Pretrial Memorandum and
each shall prepare a separate proposed order. All proposed deadlines shall be set forth
as calendar dates, and not in the form “XX days before trial.”
IT IS FURTHER ORDERED that counsel shall notify the Court of any agreed-upon
extension of any time period provided by the Rules of Civil Procedure. The purpose of
this order is not to discourage extensions as a matter of professionalism, but to ensure that
no party suffers summary disposition of any issue by virtue of an extension of which the
Court is not aware.
NOTE: COUNSEL SHALL UPLOAD AND E-FILE ALL PROPOSED ORDERS
IN WORD FORMAT ONLY TO ALLOW FOR POSSIBLE MODIFICATIONS BY THE
COURT.
PLEASE NOTE: If/when a party files a pleading within 48 hours of a scheduled event,
the party should also e-mail same to the Court's Judicial Assistant at the following:
[email protected]

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
05/29/2013
Docket Code 023
Form V000A
Page 4
[Proposed] Scheduling Order
The Court having received the parties’ Joint Comprehensive Pretrial Conference
Memorandum,
IT IS ORDERED entering the following schedule for disclosure as set forth unless the
parties obtain written modifications by the Court:
(1)
Initial disclosures shall be exchanged by: (MM/DD/YYYY)
(2)
Written discovery shall be propounded by: (MM/DD/YYYY)
(3)
Written discovery shall be completed by: (MM/DD/YYYY)
(4)
Final non-expert disclosures shall be exchanged by: (MM/DD/YYYY)
(5)
The identities and subject areas of expert testimony shall be disclosed by:
(MM/DD/YYYY)
(6)
Plaintiff’s final expert disclosures shall be exchanged by: (MM/DD/YYYY)
Defendant’s final expert disclosures shall be exchanged by: (MM/DD/YYYY)
Rebuttal expert disclosures shall be exchanged by: (MM/DD/YYYY)
(7)
Depositions shall be completed by: (MM/DD/YYYY)
(8)
All discovery motions shall be filed by: (MM/DD/YYYY)
(9)
Any motions to amend pleadings shall be filed by: (MM/DD/YYYY)
(10)
Dispositive Motions shall be filed by: (MM/DD/YYYY)
(11)
The parties remaining in this action shall participate in private mediation by
(MM/DD/YYYY) OR The parties remaining in this action shall participate in a
Mandatory Settlement Conference (ADR) by (MM/DD/YYYY) (Note: only one
of the proceeding two options shall be included in the proposed order)

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
05/29/2013
Docket Code 023
Form V000A
Page 5
(12)
The following number of days will be required to pick a jury and try this matter:
IT IS ORDERED setting a telephonic Status Conference to be initiated by the Plaintiff
in this matter on [counsel to leave this date blank], (time allotted: 15 minutes), in this
Division.
THE HONERABLE MARIA DEL MAR VERDIN
MARICOPA COUNTY SUPERIOR COURT
OLD COURTHOUSE
125 WEST WASHINGTON
3RD FLOOR, COURTROOM 303
PHOENIX, AZ 85003
602-506-2603 TEL
IT IS FURTHER ORDERED that in no less than five days prior to the Status
Conference set herein, the parties shall submit a Joint Statement pursuant to ARCP 16(d)
and report to the Court the history and status of the efforts at Alternative Dispute
Resolution pursuant to ARCP Rule 16(g).
DISCOVERY DISPUTES: In the event of any dispute concerning discovery, counsel
are directed to confer pursuant to ARCP 26(g). Any discovery motion that doesn’t
indicate what recent efforts have been made to resolve the dispute will be rejected.
Dated:
HONERABLE MARIA DEL MAR VERDIN
JUDICIAL OFFICER OF THE SUPERIOR COURT

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

06/10/2015 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

06/09/2015

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HON. DAWN M. BERGIN
C. Fitch

Deputy

ROSEVIEW HOMEOWNERS ASSOCIATION
NIKITA VERMA PATEL

v.

DANIELA C MIHAILA, et al.
JONATHAN A DESSAULES

ELIZABETH SAVOINI FITCH

ORDER ENTERED BY COURT

The Court has reviewed Plaintiff’s Notice of Filing Proposed Form of Judgment, filed on
May 5, 2015, requesting that the Court enter judgment on the Arbitrator’s Notice of Decision,
which was filed on April 1, 2015. The Court can only enter judgment on an arbitration award,
and can only do so after the time for appeal has expired. While Under Rule 76(b) a notice of
decision becomes an award if no award is filed within 50 days from the date of the filing of the
Notice of Decision, it is not clear to the Court whether the 50 days runs from the date of the
Arbitrator’s Notice of Decision in this case or the date of her Ruling on Plaintiff’s Application in
Support of Attorneys’ Fees. Further, Plaintiff has not provided the Court with a representation
that the time for appeal has run and that no appeal has been filed.

IT IS THEREFORE ORDERED that Plaintiff shall submit a Motion for Entry of
Judgment Upon Award as required by Rule 76(c) and shall provide the Court with the necessary
factual and legal support to enter judgment.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

06/24/2015 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

06/22/2015

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HON. DAWN M. BERGIN
C. Fitch

Deputy

ROSEVIEW HOMEOWNERS ASSOCIATION
NIKITA VERMA PATEL

v.

DANIELA C MIHAILA, et al.
JONATHAN A DESSAULES

STATUS CONFERENCE SET

The Court having received Defendants’ Notice of Appeal from Arbitration and Motion to
Set for Trial, filed on June 18, 2015,

IT IS ORDERED setting a Telephonic Status Conference on July 8, 2015 at 9:30 a.m.
(15 minutes)

THE HONORABLE DAWN BERGIN
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W JEFFERSON
7TH FLOOR, COURTROOM 713
PHOENIX, AZ 85003
602-372-2961 TEL

Plaintiff shall initiate the conference call.

NOTE: Counsel shall be available for the conference call on a telephone land line and
not on cellular phones, in order to maximize all participants’ ability to hear and be heard.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

06/22/2015

Docket Code 028
Form V000A
Page 2

Note: Counsel shall have their calendars available for this proceeding.

If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
06/28/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
06/25/2013
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Bee
Deputy
ROSEVIEW HOMEOWNERS ASSOCIATION
NIKITA VERMA PATEL
v.
DANIELA C MIHAILA, et al.
ERICA J SHOAF
KEYBANK NATIONAL ASSOCIATION
NO ADDRESS ON RECORD
ORAL ARGUMENT SET
The Court has received Defendants’ Motion for Partial Summary Judgment, filed May 8,
2013, Defendants Daniela and Valentin Mihaila’s Statement of Facts in Support of Motion for
Summary Judgment, filed May 8, 2013, Plaintiff’s Response to Defendants’ Motion for Partial
Summary Judgment and Plaintiff’s Cross-Motion for Summary Judgment, filed June 5, 2013,
Plaintiff’s Controverting Statement of Facts, filed June 5, 2013, Affidavit of Manager in Support
of Plaintiff’s Separate Statement of Facts in Support of Cross-Motion for Summary Judgment,
filed June 5, 2013, Plaintiff’s Separate Statement of Facts in Support of Cross-Motion for
Judgment, filed June 5, 2013 and Defendants’ Reply in Support of Motion for Partial Summary
Judgment, filed June 21, 2013.
IT IS ORDERED setting Oral Argument on August 13, 2013 at 9:30 a.m. in this
division.
Oral argument shall be limited to thirty (30) minutes with the time divided equally
between the parties. Counsel and the parties, if representing themselves, are to appear in person
before:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
06/25/2013
Docket Code 094
Form V000A
Page 2
THE HONORABLE MARIA DEL MAR VERDIN
MARICOPA COUNTY SUPERIOR COURT
OLD COURTHOUSE
125 WEST WASHINGTON
3RD FLOOR, COURTROOM 303
PHOENIX, AZ 85003
602-506-2603 TEL
Court Reporter
The proceeding will take place in the Superior Court’s “e-courtroom.” A record of the
proceedings will be made by videotape and CD in lieu of a court reporter. Should you want an
unofficial copy of the proceedings, the parties or counsel may request a videotape or CD of the
proceedings for a $20.00 charge. If a CD or videotape is requested, please obtain a form from
the Self Center to request a daily copy of a court hearing or trial proceeding being conducted.
Pay the applicable fee at the Self Service Center. Attach the receipt showing payment of the
fee and present both the receipt and the form to the courtroom clerk or bailiff. For copies of
hearings or trial proceedings recorded previously, please call Electronic Records Services
at 602-506-7100. Should an official transcript be required, you may request that the court
prepare it. The party ordering the transcript must pay for it. To request a transcript, call 602-
506-7100 and provide the date of the proceeding, the case number, the case caption, if the
transcript is for an appeal, and your name, address, and telephone number.
If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

07/10/2015 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

07/08/2015

Docket Code 089
Form V000A
Page 1

CLERK OF THE COURT
HON. DAWN M. BERGIN
C. Fitch

Deputy

ROSEVIEW HOMEOWNERS ASSOCIATION
NIKITA VERMA PATEL

v.

DANIELA C MIHAILA, et al.
JONATHAN A DESSAULES

JURY TRIAL SET

East Court Building – Courtroom 713

9:32 a.m. This is the time set for a status conference for the purpose of setting this matter
for trial. All parties appear telephonically. Appearing on behalf of the Plaintiff is counsel, Mark
A. Holmgren. Appearing on behalf of the Defendants is counsel, Jonathan A. Dessaules.

A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.

Discussion is held on Defendants’ Notice of Appeal from Arbitration and Motion to Set
for Trial, filed on June 18, 2015.

Counsel inform the Court that a settlement conference may be beneficial in this case.

The Court advises counsel that she will solicit another civil Judge to conduct a settlement
conference.

For the reasons set forth on the record,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

07/08/2015

Docket Code 089
Form V000A
Page 2

IT IS ORDERED as follows:

1. Setting a Trial Management Conference for October 2, 2015 at 11:00 a.m. in this
division. Oral argument on motions in limine (if any) will be heard at this time. All
counsel must appear in person and cannot appear telephonically.

2. Setting a 3-day Jury Trial for October 27-29, 2015, beginning at 9:30 a.m.
October 27, 2015 is reserved for jury selection and October 29, 2015 is reserved for
jury deliberation.

Before:

THE HONORABLE DAWN BERGIN
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W JEFFERSON
7TH FLOOR, COURTROOM 713
PHOENIX, AZ 85003
602-372-2961 TEL

9:50 a.m. Matter concludes

DUTIES PRIOR TO THE TRIAL MANAGEMENT CONFERENCE

3. MOTIONS IN LIMINE. All motions in limine shall be filed no later than 5:00 p.m.
on September 2, 2015, and such motions must meet the test of State v. Superior Court,
108 Ariz. 396, 397; 499 P.2d 152 (1972). The primary purpose of a motion in limine is
to avoid disclosing to the jury prejudicial matters which may compel a mistrial. See also
Ariz. R. Evid. 103(c).

The movant shall file a separate motion for each request and not combine more than one
motion in a single filing. A written response to a motion in limine may be filed no later
than ten (10) calendar days thereafter. Motions in limine shall not exceed three pages in
length and responses to motions in limine shall not exceed two pages. No replies shall
be filed. The Court may rule on motions in limine without oral argument.

The parties must comply with Rule 7.2(a) Ariz.R.Civ.P., prior to filing any motion in
limine. Any motion in limine filed without the movant having first complied with Rule
7.2(a) will be stricken by the Court.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

07/08/2015

Docket Code 089
Form V000A
Page 3

If the parties have a discovery dispute that needs to be addressed, counsel for the
movant shall contact the Court’s Judicial Assistant and all other counsel to advise
them of his/her request for a telephonic hearing. Each party shall thereafter fax or
email to the Court’s Judicial Assistant a one-page summary of the dispute. Once the
Court receives a summary from each party, the Court’s Judicial Assistant will contact
the parties to schedule a telephonic conference.

4. JOINT PRETRIAL STATEMENT. Counsel shall file with the Court no later than
5:00 p.m. on September 18, 2015, a Joint Pretrial Statement signed by all counsel.

a) Deposition Designations: In addition to the information required by
Rule 16(d), counsel shall at the Trial Management Conference provide to
the Court copies of any deposition transcripts to be read to the jury or
played by videotape. The offering party will highlight the portions to be
read, the other side will highlight Rule 106 additions, and any objections
for the court to rule on will be clearly marked in the margin. The parties
are encouraged to agree on narrative summaries of deposition testimony,
using brief question and answer excerpts only to emphasize very
important testimony or to cover areas of testimony that cannot be
summarized to the satisfaction of all counsel. No stipulation should be
unreasonably refused.

b) Final Trial Witnesses: In addition to the information required by Rule
16(d), the Joint Pretrial Statement shall include an exhibit titled: Final
Trial Witness List. This list shall contain the name of each witness a
party actually intends to call at trial, the day on which they intend to call
each witness and the estimated time needed for direct, cross and re-direct
examination.

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

a) Proposed voir dire questions.

b) A joint set of agreed-upon preliminary and final jury instructions and
proposed forms of verdicts.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

07/08/2015

Docket Code 089
Form V000A
Page 4

c) Separate sets of requested instructions that have not been agreed upon.
Please read Rosen v. Knaub, 175 Ariz. 329; 85 P.2d 381 (1993) and the
RAJI Civil 3d Statement of Purpose and Approach before preparing
requests for non-RAJI instructions.

Recommended Arizona Jury Instructions (RAJI) need not be typed and may be requested in
the following manner: RAJI 3d Standard 1 - Duty of Jurors. Non-RAJI instructions should be
typed. Each instruction should cover only one subject.

Counsel shall send all proposed jury instructions and verdict forms to this Division’s
Judicial Assistant in Word format prior to the Trial Management Conference.

Any jury instructions not filed with the Court together with the Joint Pretrial Statement will
be deemed waived by the Court, unless the Court concludes that good cause exists for the untimely
submission.

DUTIES AT TRIAL MANAGEMENT CONFERENCE

6. At the Trial Management Conference, counsel shall be prepared to discuss:

a) Time limits in voir dire, opening statements, examination of witnesses
and closing arguments.

b) Stipulations for the foundation and authenticity of exhibits.

c) Preliminary jury instructions, juror notebooks (counsel shall bring any
proposed juror notebooks to the conference), mini opening statements
and voir dire.

d) Agreed-upon deposition summaries and excerpts from deposition
transcripts and the editing of any videotaped depositions.

e) Use of short-trial or summary jury trial.

f) Any special scheduling or equipment issues.

7. 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. Counsel are reminded to promptly notify the
court of any settlement pursuant to Rule 5.1(c), Ariz.R.Civ.P.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

07/08/2015

Docket Code 089
Form V000A
Page 5

8. 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.

If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.

PROCEDURES FOR SUBMITTING EXHIBITS TO BE MARKED

Exhibits are due to the clerk no later than 5:00 p.m. on October 2, 2015. The parties
shall contact the division clerk at 602-506-1485 at least two weeks prior to trial to make
arrangements for delivering exhibits.

Counsel shall submit two sets of their exhibits, one for marking and one for the
bench. The bench copy shall be submitted in a binder(s) with number tab dividers.

Depositions will NOT be marked as exhibits. If you plan to read from a deposition
or use the deposition for impeachment purposes, you will need to supply an ORIGINAL to
the courtroom clerk for filing. Copies will not be filed with the clerk.

 A list with a generic description of each exhibit should be provided. The list should
contain the case number, the caption, scheduled trial date and the party submitting the
exhibits.

 Exhibits will be marked numerically and consecutively. If your list refers to an exhibit
and it is not provided at the time of marking, the numbers of all following exhibits will be
moved up. In addition, if duplicate exhibits are submitted, the clerk will remove the
duplicate and the numbering will be adjusted accordingly. To avoid confusion during
trial, it is essential that counsel avoid submitting duplicate exhibits. The clerk cannot
reserve numbers for exhibits that will be provided at a later date. Exhibits will be
marked as they are received. If Defendant’s exhibits are received prior to Plaintiff’s
exhibits, the Clerk may mark them first with Plaintiff’s exhibits following.

 Each exhibit shall be stapled. If an exhibit is too large to be stapled, that exhibit shall be
securely fastened in order to prevent page separation during witness/jury review.
(Note: Black binder clips are NOT considered securely fastened. I suggest you use
the silver two-prong fasteners).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

07/08/2015

Docket Code 089
Form V000A
Page 6

 Exhibits should be separated by a colored sheet of paper or a tabbed divider sheet. The
colored sheet or tabbed divider shall reflect the number of the exhibit and should be
placed on top of the exhibit.

 Counsel are strongly discouraged from marking exhibits they do not anticipate using
during trial. Counsel shall only submit those exhibits to the Clerk they know will
actually be used during trial. If counsel wish a document to be used during the course of
trial, that document can be marked as an exhibit at that time.

 Blow-ups and large items may only be used for demonstrative purposes. You may bring
them to court to use during trial; however, if you would like them to be marked as an
exhibit, please submit an 8 ½ x 11 photo of the item.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/09/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
08/01/2013
Docket Code 095
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
M. Nielsen
Deputy
ROSEVIEW HOMEOWNERS ASSOCIATION
NIKITA VERMA PATEL
v.
DANIELA C MIHAILA, et al.
ERICA J SHOAF
KEYBANK NATIONAL ASSOCIATION
NO ADDRESS ON RECORD
MINUTE ENTRY
The court having received Defendants’ Response to Plaintiff’s Cross-Motion for
Summary Judgment, filed July 10, 2013; Defendants’ Controverting Statement of Facts, filed
July 10, 2013; Defendants’ Response to Plaintiff’s Separate Statement of Facts in Support of
Cross-Motion for Summary Judgment, filed July 10, 2013; Plaintiff’s Reply in Support of its
Cross-Motion for Summary Judgment, filed July 29, 2013
IT IS ORDERED vacating Oral Argument regarding Defendants’ Motion for Partial
Summary Judgment, filed May 8, 2013 on August 13, 2013 at 9:30 a.m. and setting Plaintiff’s
Cross Motion Summary Judgment and Defendant’s Motion for Partial Summary Judgment to
August 13, 2013 at 9:00 a.m.
Oral argument shall be limited to thirty (60) minutes with the time divided equally
between the parties. Counsel and the parties, if representing themselves, are to appear in person
before:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
08/01/2013
Docket Code 095
Form V000A
Page 2
THE HONORABLE MARIA DEL MAR VERDIN
MARICOPA COUNTY SUPERIOR COURT
OLD COURTHOUSE
125 WEST WASHINGTON
3RD FLOOR, COURTROOM 303
PHOENIX, AZ 85003
602-506-2603 TEL
If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

08/04/2015 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

08/03/2015

Docket Code 070
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
S. Brown

Deputy

ROSEVIEW HOMEOWNERS ASSOCIATION
MARK A HOLMGREN

v.

DANIELA C MIHAILA, et al.
JONATHAN A DESSAULES

SETTLEMENT CONFERENCE SET

This matter has been referred to this division by Judge Bergin to conduct a Settlement
Conference.

Pursuant to Rule 16.1, Arizona Rules of Civil Procedure,

IT IS ORDERED setting a Settlement Conference on September 11, 2015 at
1:30 p.m. (allotted time: 3 hours), before:

JUDGE PATRICIA A. STARR
EAST COURT BUILDING
COURTROOM 412
101 W. JEFFERSON
PHX, AZ 85003
(602) 506-4164

IT IS FURTHER ORDERED that counsel, the clients, and non-lawyer
representatives, who have full authority to settle this case, shall appear in person.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

08/03/2015

Docket Code 070
Form V000A
Page 2

IT IS FURTHER ORDERED that each party shall prepare a Settlement Memorandum
and e-mail same to this Court’s Judicial Assistant ([email protected].) The
memoranda are due by 10:00 a.m. on September 4, 2015. The memoranda shall comply with
Rule 16.1(c), Arizona Rules of Civil Procedure and Rule 3.11, Local Rules of Maricopa County
Superior Court.

IT IS FURTHER ORDERED that the memoranda are not to be filed with the Clerk of
the Court or exchanged between counsel unless counsel agree to exchange the memoranda.

NOTE: Pursuant to Rule 16.1(h), Arizona Rules of Civil Procedure failure to
comply with this Order may result in the Court imposing sanctions.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/15/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
08/13/2013
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
M. Nielsen
Deputy
ROSEVIEW HOMEOWNERS ASSOCIATION
JAMES H HAZLEWOOD
v.
DANIELA C MIHAILA, et al.
JONATHAN A DESSAULES
KEYBANK NATIONAL ASSOCIATION
NO ADDRESS ON RECORD
MINUTE ENTRY
Courtroom 303 – Old Courthouse
9:05 a.m. This is the time set for Oral Argument on Defendants’ Motion for Partial
Summary Judgment, filed May 8, 2013; Plaintiffs Reply in Support of its Cross-Motion for
Summary Judgment, filed July 29, 2013. Plaintiff is represented by counsel, James H.
Hazlewood. Defendants are represented by counsel, Jonathan A. Dessaules and Maureen
McAuliffe.
Court Reporter, Hilda Lopez, is present.
Oral arguments are presented.
IT IS ORDERED taking this matter under advisement.
The Court has discussed with counsel holding ruling in abeyance until such time as the
parties participate in a settlement conference through the Courts Alternative Dispute Resolution
program. Counsel for Defendant indicates that they are willing to participate in the process and

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
08/13/2013
Docket Code 020
Form V000A
Page 2
counsel for Plaintiff will need to check with his client. The Court requests that counsel for
Plaintiff advise the Court of their position no later than 5:00 p.m on August 16, 2013.
9:36 a.m. Matter concludes.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/28/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
08/27/2013
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
M. Nielsen
Deputy
ROSEVIEW HOMEOWNERS ASSOCIATION
JAMES H HAZLEWOOD
v.
DANIELA C MIHAILA, et al.
JONATHAN A DESSAULES
KEYBANK NATIONAL ASSOCIATION
702 W IDAHO ST
BOISE ID 83702
MINUTE ENTRY
The Court is advised the Plaintiff Roseview Homeowners’ Association will not
voluntarily participate in Alternative Dispute Resolution. The Court will rule on the pending
Motions for Summary Judgment. The parties are advised they may be ordered to participate in
Alternative Dispute Resolution in the future.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
10/10/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
10/08/2013
Docket Code 926
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
M. Nielsen
Deputy
ROSEVIEW HOMEOWNERS ASSOCIATION
JAMES H HAZLEWOOD
v.
DANIELA C MIHAILA, et al.
JONATHAN A DESSAULES
KEYBANK NATIONAL ASSOCIATION
NO ADDRESS ON RECORD
RULING
This matter came before the Court for Oral Argument on August 13, 2013 re Defendants’
Motion for Partial Summary Judgment, filed May 8, 2013; and Plaintiff’s Cross-Motion for
Summary Judgment, filed July 10, 2013. The matter was taken under advisement.
The Court has considered the matters presented including the Motions, Responses and
Replies filed; authorities cited and Counsels’ argument.
Summary Judgment is appropriate if, after reviewing the facts in the light most favorable
to the non-moving party, no genuine issues of material fact remain. Joseph v. Markovitz, 27
Ariz. App. 122, 551 P.2nd 571 (App 1976). “A ‘genuine’ issue of material fact is one that a
reasonable jury, on the record before the court, could resolve in favor of either party”.
Southwest Pet Products, Inc. v. Koch Ind., 273 F.Supp. 2d 1041, 1050 (D.Ariz.2003) (citations
omitted). Even where the facts are undisputed, a genuine dispute as to conflicting inferences to
be drawn from them precludes an award of summary judgment. Executive Towers v. Leonard, 7
Ariz. App. 331,439 P.2d 303 (1968). Evidence creating even the “slightest doubt” about the
facts may be insufficient to withstand a motion for summary judgment. Orme School v Reeves,
166 Ariz. 301, 309 (1990).
The Plaintiff, a homeowners’ association, seeks to foreclose on the property pursuant to
A.R.S. s33-1807 and obtain a money judgment for amounts they claim are owed. The

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
10/08/2013
Docket Code 926
Form V000A
Page 2
Defendants argue they are entitled to summary judgment as a matter of law because the Plaintiff
lacks a legal basis to foreclose or obtain what would be a second money judgment over the same
debt.
The Parties agree that the Plaintiff obtained a judgment against the Defendants in the
amount of $3,426.29 which included monies owed through May 31, 2011. A little over a year
later, the Plaintiff filed this lawsuit, to foreclose on the property and seeking judgment for
monies owed from mid-2010 through July 2012. Subsequent to the filing of the lawsuit, the
Defendants made payments to bring their account current through December 31, 2012 but only
as it pertained to assessments owed.
The Parties disagree that the Defendants have incurred monetary penalties since May 31,
2011 for violations under the Association’s policies.
There is no question that at the time the lawsuit was filed, the Defendants were not in
compliance with their contractual obligation and current with monies owed. In fact, they were
delinquent for more than a year or owed at least $1,200.00 in assessments. However, as of the
filing of this Motion, the Defendants have paid the past due assessments that triggered the right
to foreclose under A.R.S. s 33-1807.
The Plaintiff may still pursue a monetary claim for the remaining amounts owed after
May 31, 2011 (as long as they are properly pled) to include attorney’s fees, as well as remedies
for payment of the existing judgment entered prior to May 31, 2011, but not under the
foreclosure statute.
The Court determines there are genuine issues of material facts as it pertains to the
Defendants’ challenge of the alleged violation of the Association policies and fines incurred.
The Plaintiff has not shown they are entitled to summary judgment on this issue.
IT IS ORDERED granting Defendants’ Motion for Partial Summary Judgment filed
May 8, 2013 with respect to foreclosure of the property.
IT IS ORDERED denying the Plaintiff’s Cross-Motion for Summary Judgment filed
July 10, 2013.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

10/09/2015 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

10/08/2015

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAWN M. BERGIN
C. Fitch

Deputy

ROSEVIEW HOMEOWNERS ASSOCIATION
MARK A HOLMGREN

v.

DANIELA C MIHAILA, et al.
JONATHAN A DESSAULES

ORDER ENTERED BY COURT

The Court has reviewed the parties’ Stipulation Regarding Dismissal of Action filed on
September 18, 2015. The parties have requested the Court to enter a judgment of dismissal, but
also want the opportunity to seek fees and costs. As any award of fees must be included in the
judgment,

IT IS ORDERED acknowledging the parties’ Stipulation seeking dismissal of the action
with prejudice.

IT IS FURTHER ORDERED that any motion for attorneys’ fees or request for costs
shall be filed within 20 days of the date this minute entry is filed.

If no request for costs or fees is filed, the Court will enter a final judgment of dismissal
pursuant to Rule 54(c) of the Arizona Rules of Civil Procedure.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
10/17/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
10/12/2012
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
L. Firriello
Deputy
ROSEVIEW HOMEOWNERS ASSOCIATION
NIKITA VERMA PATEL
v.
DANIELA C MIHAILA, et al.
ERICA J SHOAF
COMM. MORROW
MINUTE ENTRY
This division has received Plaintiff’s e-filed Application/Motion for Default Judgment against
Defendant(s) KeyBank National Association in the above-captioned case.
IT IS ORDERED that no action will be taken by this division on the above-referenced
document(s). The pleading is forwarded to Commissioner James Morrow.
The parties are advised that commissioners handle Rule 55(b) Default Judgment proceedings and
that the default proceedings in this matter are to be heard by Commissioner James Morrow.
IT IS ORDERED that all documents necessary to support the entry of a default judgment must
be e-filed.
Pursuant to Supreme Court Administrative Order No. 2010-117, default judgment packets are
not permitted to be e-filed. Accordingly, parties are directed to hand-deliver a default coversheet
and copies of the necessary filed documents to the commissioner’s division for the entry of a
default judgment.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
10/12/2012
Docket Code 023
Form V000A
Page 2
IT IS FURTHER ORDERED, no further action will be taken by the assigned commissioner until
the necessary filed documents and coversheet are delivered to the division.
The parties/counsel can find the default judgment coversheet on the Court’s website at:
http://www.superiorcourt.maricopa.gov/SuperiorCourt/CivilDepartment/forms.asp
The parties/counsel can find additional information in the form of frequently asked questions at:
http://www.superiorcourt.maricopa.gov/SuperiorCourt/CivilDepartment/howDoI.asp
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

11/10/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

11/07/2014

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HON. DAWN M. BERGIN
M. Nielsen

Deputy

ROSEVIEW HOMEOWNERS ASSOCIATION
NIKITA VERMA PATEL

v.

DANIELA C MIHAILA, et al.
JONATHAN A DESSAULES

COURT ADMIN-CIVIL-ARB DESK

ORDER ENTERED BY COURT

The Court has reviewed Plaintiff’s Amended Certificate of Compulsory Arbitration filed
on July 15, 2014. The Certificate indicates that because Plaintiff no longer seeks to foreclose on
its assessment lien and seeks monetary damages only, the case is now subject to compulsory
arbitration. The Defendants have filed no response to the Amended Certificate.

THE COURT FINDS that this case is now subject to compulsory arbitration under Rule
72(b) of the Arizona Rules of Civil Procedure.

IT IS ORDERED transferring this matter to the Civil Court Administration Arbitration
Desk for appointment of an arbitrator.

IT IS FURTHER ORDERED that counsel and/or the parties shall direct all future
pleadings to the arbitrator for consideration and ruling, with the exception of the following:
motions to continue on the dismissal calendar, motions to consolidate, motions to dismiss,
motions to withdraw as attorney of record, and case dispositive motions for summary judgment.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
12/06/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
12/04/2013
Docket Code 028
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE MARIA DEL MAR VERDIN
M. Nielsen
Deputy
ROSEVIEW HOMEOWNERS ASSOCIATION
NIKITA VERMA PATEL
v.
DANIELA C MIHAILA, et al.
JONATHAN A DESSAULES
KEYBANK NATIONAL ASSOCIATION
NO ADDRESS ON RECORD
ALTERNATIVE DISPUTE RESOLUTION -
CCC
MINUTE ENTRY
On the Court’s own motion,
IT IS ORDERED extending Alternative Dispute Resolution deadline from February 15,
2014 to March 3, 2014.
IT IS FURTHER ORDERED vacating the Telephonic Status Conference for December
5, 2013 and resetting same to March 26, 2014 at 9:00 a.m.
THE HONORABLE MARIA DEL MAR VERDIN
MARICOPA COUNTY SUPERIOR COURT
OLD COURTHOUSE
125 WEST WASHINGTON
3RD FLOOR, COURTROOM 303
PHOENIX, AZ 85003

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2012-002237
12/04/2013
Docket Code 028
Form V000A
Page 2
602-506-2603 TEL
Plaintiff shall initiate the conference call.
NOTE: Counsel shall be available for the conference call on a telephone land line
and not on cellular phones, in order to maximize all participants’ ability to hear and be
heard.
Note: Counsel shall have their calendars available for this proceeding.
If a court reporter is required, the Court must receive a written request at least 48 hours
before the commencement of the proceeding. Failure to timely request a court reporter will be
deemed consent to proceed without a court reporter.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

01/04/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

12/31/2015

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAWN M. BERGIN
B. Randhawa

Deputy

ROSEVIEW HOMEOWNERS ASSOCIATION
MARK A HOLMGREN

v.

DANIELA C MIHAILA, et al.
JONATHAN A DESSAULES

MINUTE ENTRY

The Court has considered the briefing on the parties’ respective applications for
attorneys’ fees and costs as set forth below. It declines to hear oral argument and makes the
following findings and orders.

 Plaintiff’s Application in Support of Attorneys’ Fees and Costs and Proposed Form of
Judgment filed on October 5, 2015:
o Defendants’ Response to Plaintiff’s Application;
o Defendants’ Response to Plaintiff’s Statement of Costs; and
o Plaintiff’s Reply in Support of its Application for Attorneys’ Fees and Costs.

 Defendants’ Application for Attorneys’ Fees and Proposed Form of Judgment filed
on October 9, 2015:
o Plaintiff’s Response to the Application;
o Plaintiff’s Objection to Defendants’ Proposed Form of Judgment;
o Plaintiff’s Objection to Defendants’ Statement of Costs; and
o Defendants’ Reply in Support of Attorneys’ Fees and Costs.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

12/31/2015

Docket Code 019
Form V000A
Page 2

BACKGROUND

Plaintiff Roseview Homeowners’ Association (the “Association”) filed a complaint
against Daniela and Valentin Mihaila on August 14, 2012 seeking foreclosure of its statutory
assessment lien on Defendants’ property and recovery of unpaid assessments, monetary penalties
for violations of certain provisions of the Declaration of Covenants, Conditions, Restrictions and
Easements (the “CCR’s”), late fees, collection costs, interest, and attorneys’ fees. Defendants
paid the overdue assessments by September 20, 2012, but denied owing any other fees, penalties,
costs, interest or attorneys’ fees. Plaintiff proceeded to litigate its other claims for monetary
relief and continued with its foreclosure efforts.

In May 2013, Defendants moved for partial summary judgment on Plaintiff’s lien
foreclosure claim and Plaintiff cross-moved for summary judgment on all of its claims. At the
time the motions were filed, the monetary relief sought by Plaintiff (other than attorneys’ fees,
costs and interest) included late fees and penalties for violating the CCR’s (collectively, the
“monetary penalties.”) On October 8, 2013, the Court granted summary judgment in
Defendants’ favor on Plaintiff’s lien foreclosure claim and denied Plaintiff’s Motion for
Summary Judgment on the monetary penalties, finding genuine issues of material fact. Plaintiff
filed another such motion in February 2014, which was denied by minute entry dated April 29,
2014.

After Defendants obtained summary judgment on Plaintiff’s lien foreclosure claim,
Plaintiff amended its certificate of compulsory arbitration to reflect that it was seeking money
damages of less than $50,000. The Court ordered the case to compulsory arbitration, and on
June 12, 2015, the assigned arbitrator issued an award in favor of Plaintiff. Defendants appealed
the award on June 18, 2015.

The Court set the case for trial in October 2015 on Plaintiff’s remaining claims for
monetary penalties. On September 18, 2015, the parties filed a stipulation to dismiss the entire
case with prejudice, without any monetary relief for Plaintiff. The stipulation allowed for each
party to seek attorneys’ fees and costs from the Court.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

12/31/2015

Docket Code 019
Form V000A
Page 3

LEGAL ANALYSIS

Attorneys’ Fees

1. Basis for an Award of Fees

Between them, the parties have presented three possible sources for an award of fees: (1)
the CCR’s; (2) the Assessment Lien Foreclosure Statute (A.R.S. §33-1807); and (3) A.R.S. §12-
341.01(A).

a. The CCR’s

Article VI, paragraph 39 of the CCR’s provides that any judgment entered in the
Association’s favor for collection of fees shall include reasonable attorneys’ fees. Plaintiff relies
on this provision to support its request for fees, stating several times in its briefing that it
obtained a “judgment” against Defendants. For example, at page three of its Application,
Plaintiff states that it “prevailed at arbitration and obtained a judgment against Defendants.
Defendants appealed.” 1 An arbitration award is not a judgment, however. And while a court
can enter judgment on an award, no such judgment was ever entered in this case.

b. Assessment Lien Foreclosure Statute (A.R.S. §33-1807)

Section 33-1807 grants homeowners’ associations a lien on a homeowner’s property for
unpaid assessments. Subsection H provides that “[a] judgment or decree in any action brought
under this section shall include costs and reasonable attorney fees for the prevailing party.”
Plaintiff’s lien foreclosure claim clearly constitutes an “action” under A.R.S. §33-1807. Because
summary judgment was granted in favor of Defendants on this claim, Defendants are the
prevailing party under §33-807(H) and are therefore entitled to an award of attorneys’ fees.

c. A.R.S. §12-341.01(A)

Both sides agree that the dispute over unpaid assessments and monetary penalties arises
out of contract. And, as expected, each side argues that it is the prevailing party under A.R.S.
§12-341.01(A). The Court has already determined that Defendants are the prevailing party on
the lien foreclosure claim. It was unable to locate any authority addressing attorneys’ fees
requests in cases involving multiple claims where only one of those claims is subject to a
mandatory statutory fee award and the other claims arise out of contract. Therefore, to avoid

1 The parties make passing references in their briefing to a monetary judgment obtained by Plaintiff in a separate
action in justice court, which apparently was related to a different time period. Plaintiff does not rely on this
judgment, however, to support its argument that it is entitled to fees under the CCR’s in this case.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

12/31/2015

Docket Code 019
Form V000A
Page 4

any appellate issues as to whether §12-341.01(A) applies to claims not subject to a mandatory
statutory fee award, the Court will assume that it does.

(1) Prevailing Party

The Court first addresses which party is the prevailing party. Plaintiff obtained no court-
ordered relief in this case. It lost on summary judgment on its lien foreclosure claim and then
stipulated to dismissal of the entire case with prejudice without any monetary recovery. To
support its claim that it is the prevailing party, Plaintiff relies on the fact that the filing of the
lawsuit resulted in Defendants paying their overdue assessments and that it obtained an
arbitration award on the monetary penalties.2 However, that award never became a judgment
and Plaintiff ultimately agreed to dismiss the entire case. Consequently, the most Plaintiff
obtained from the lawsuit was Defendants’ payment of overdue assessments, which was made
without court order and shortly after the filing of the complaint. Defendants, on the other hand,
obtained court-ordered relief, including summary judgment in their favor on the lien foreclosure
claim and a judgment dismissing the entire case with prejudice.

In a contract case with multiple claims and varied success, a trial court may apply a
“percentage of success” or a “totality of the litigation” test. Schwartz v. Farmers Ins. Co. of Ariz.,
166 Ariz. 33, 38, 800 P.2d 20, 25 (App. 1990). Giving Plaintiff the benefit of the doubt that
recovering the unpaid assessments as a result of the lawsuit constitutes a “success,” application
of either a percentage of success or totality of the litigation test to the facts set forth above
dictates a finding that Defendants are the prevailing party.

(2) Whether Fees Should be Awarded

The award of attorneys’ fees under §12-341.01(A) is discretionary. In determining
whether to award fees, the court considers the following factors:

1. The merits of the claim or defense presented by the unsuccessful party.
2. Whether the litigation could have been avoided or settled and the successful party’s
efforts were completely superfluous in achieving the result.
3. Whether assessing fees against the unsuccessful party would cause an extreme
hardship.
4. Whether the successful party did not prevail with respect to all of the relief sought.
5. The novelty of the legal question presented.
6. Whether such claim or defense had previously been adjudicated in this jurisdiction.

2 As Defendants point out in their Application for Attorneys’ Fees, Plaintiff’s Rule 30(b)(6) witness admitted that
Defendants were current on their assessments as of June 2015, but the arbitration award included unpaid
assessments. Plaintiff’s witness also admitted to multiple errors in Plaintiff’s ledgers.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

12/31/2015

Docket Code 019
Form V000A
Page 5

7. Whether the award in any particular case would discourage other parties with tenable
claims or defenses from litigating or defending legitimate contract issues for fear of
incurring liability for substantial amounts of attorneys’ fees.

Associated Indemnity Co. v. Warner, 143 Ariz. 567, 570, 694 P.2d 1181, 1184 (1985).

Considering all of these factors, the Court exercises its discretion to award fees to
Defendants. It finds the following factors to be particularly relevant here: (1) the merits of the
defense to Plaintiff’s lien foreclosure claim and Defendants’ statutory entitlement to fees as the
prevailing party on that claim; (2) Plaintiff’s continuation of the litigation, including efforts to
foreclose on Defendants’ property, after Defendants paid their overdue assessments; (3)
Plaintiff’s failure to obtain any relief on the remaining claims for monetary penalties; (4) the lack
of sufficient evidence to support a finding that the assessment of fees against the Association will
cause “an extreme hardship;” and (5) the lack of evidence to support a finding that a fee award in
favor of Defendants would discourage other associations with tenable claims from litigating
those claims.

Reasonableness of Defendants’ Fee Request

Defendants have requested an award of fees in the amount of $48,490.00. The following
factors are relevant in determining the reasonableness of a fee request:

1. The qualities of the advocate;

2. The character of the work to be performed;

3. The work actually performed;

4. The result;

5. The billing rate; and

6. The number of hours expended.

Schweiger v. China Doll Restaurant, 138 Ariz. 183, 187-88, 673 P.2d 927, 932 (App. 1983).

Plaintiff argues that defense counsel spent an excessive amount of time on certain tasks
such as summary judgment briefing and legal research. The Court disagrees that the time

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2012-002237

12/31/2015

Docket Code 019
Form V000A
Page 6

expended on these tasks was excessive.3 However, because it is undisputed that Defendants
were in default on their assessments for a considerable period of time and failed to respond to
multiple demands from Plaintiff, the Court finds that Plaintiff’s only recourse for collecting the
unpaid assessments was to file a lawsuit. Consequently, the Court is deducting $3310 from
Defendants’ fee request, which is the total of the amount spent by Plaintiff’s attorneys from the
preparation of the complaint to the initial review of the Answer, and the amount spent by
Defendants’ attorneys in preparing and filing the Answer.

In determining the reasonableness of a fee award, this Court also considers the amount at
issue in relation to the amount of fees incurred. While the Court recognizes that the monetary
amount at issue was small compared to the fees incurred by Defendants, Plaintiff was seeking to
foreclose on their property. Given that foreclosure on one’s residence would likely be a life-
altering event, it was reasonable for Defendants to vigorously defend against the foreclosure.
Had Plaintiff dropped its foreclosure efforts after Defendants paid the assessments and sought
recovery only for the monetary penalties, attorneys’ fees, costs and interest, the outcome of this
ruling would likely have been different.

Costs

Defendants seek costs in the amount of $1,480.07. This amount includes $585.12 in
“Arbitration Expenses (Transcript, Exhibits, Hand-delivery, etc.).” The Court finds that these
expenses do not qualify as taxable costs under A.R.S. §12-332, and will exclude them from the
cost award.

For the reasons set forth above,

THE COURT FINDS that Defendants are the prevailing party in this action pursuant to
A.R.S. §§33-1807(H) and 12-341.01(A) and are entitled to an award of reasonable attorneys’
fees in the amount of $45,180.00.

THE COURT FURTHER FINDS that Defendants are entitled to an award of costs in
the amount of $894.95.

A separate judgment will issue.

3 Plaintiff asks the Court to exclude fees for the time recorded by associate Maureen McAuliffe on January 21 and
22, 2014 because her work was duplicative. However, the spreadsheet submitted by defense counsel reflects a zero
charge for Ms. McAuliffe’s time.

Documents