01/18/2022 — LC2021000286 COMMUNITY ASSOCIATION, LAS BRISAS 01/18/2022 HONORABLE JULIE A. LAFAVE View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Filed ***
01/19/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2021-000286-001 DT
01/18/2022
Docket Code 506
Form L512
Page 1
CLERK OF THE COURT
HONORABLE JULIE A. LAFAVE
S. Motzer
Deputy
LAS BRISAS COMMUNITY ASSOCIATION
PHILIP N BROWN
v.
MICHAEL LAWRENCE FRANKLIN (001)
JONATHAN A DESSAULES
COMM. LAFAVE
REMAND DESK-LCA-CCC
WHITE TANK JUSTICE COURT
RECORD APPEAL RULING – REVERSED & REMANDED
Defendant/Appellant, MICHAEL LAWRENCE FRANKLIN appeals from a civil
judgment entered against him in the White Tank Justice Court. The trial court granted summary
judgment in favor of Plaintiff/Appellee, LAS BRISAS COMMUNITY ASSOCIATION. This
Court has jurisdiction pursuant to Ariz. Const. art. VI, § 16 and A.R.S. §§ 12-124, 22-261. For
the following reasons, this Court reverses.
I.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
Appellant is the homeowner of a property located within Appellee’s Community
Association. See Complaint at ¶4. On September 29, 2020, Appellee filed a breach of contract
action alleging Appellant had failed to pay “dues assessments, late fees, late charges and
interest”.1 Id. at ¶10. Appellee alleged it was owed $1,125 plus additional fees and costs as they
accrued. Id. at ¶11. Attached to the Complaint was Appellant’s transaction history with the
Appellee, beginning on May 25, 2019 and ending on September 1, 2020. Id. at Exhibit “A”
(hereinafter “ledger”). The ledger tracked payments and assessments for the time period stated.
Id. It indicated payments from Appellant via check as follows:
1 Appellee did not seek items as “rebill fees”, “demand fees” and “collection account maintenance fees”.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2021-000286-001 DT
01/18/2022
Docket Code 506
Form L512
Page 2
Check No.
Amount
Date
1423
$104.00
July 3, 2019
1435
$208.00
July 26, 2019
1460
$312.00
October 1, 2019
1460
$312.00
December 24, 2019
Reverse
$312.00
December 24, 2019
1510
$312.00
December 30, 2019
1599
$312.00
June 24, 2020
Id. Each entry has the code: Payment-Mutual of Omaha.
On February 25, 2021, Appellee filed its Motion for Summary Judgment (“MSJ”).
Appellee argued Appellant was obligated to pay assessments under the contract in the amount of
$112 monthly. See MSJ at 4:12. It stated Appellant owed “monthly assessments, fines and
collection fees and costs”. Id. at 2:20-22. Appellee’s Statement of Facts indicated Appellant
was provided “previous past due notices”. See Statement of Facts ¶7. However, it attached only
the ledger as support for its claim. Id. No notices were attached.
In response, Appellant stated “Upon request, I emailed not only checks sent but also bank
statements showing checks cashed” to Appellee’s counsel. See Response to Motion
(“Response”), dated March 17, 2021. The Response referenced check no. 1673 which was not
part of the ledger and which had been “returned”. Id. It also contained a letter dated December
26, 2019 regarding check number 1460. Id. It provided documentation that check number 1510
had been processed. Id. The Response also attached a letter dated January 17, 2021 referencing
check number 1659 in the amount of $312.00 and check number 1673 in the amount of $24.00.
Id. Finally, it contained a copy of returned check number 1673 with the memo line indicating it
was the “remaining dues for March 2021” as well as the letter from Appellee’s counsel returning
check 1673 which it categorized as a partial payment rather than a supplemental one to check
1659.
Appellee’s Reply in support of Motion for Summary Judgment (“Reply”) indicated check
numbers 1460 and 1510 were reflected in the ledger and confirmed that check 1673 was
returned. See Reply at 2:7-12. The Reply was silent as to check 1659. It was silent as to
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2021-000286-001 DT
01/18/2022
Docket Code 506
Form L512
Page 3
whether Appellant had in fact provided those additional materials to counsel.2 Appellee
concluded “[T]here is no dispute as to any material facts”. Id. at 2:14-15.
On April 8, 2021, the trial court granted Summary Judgment in favor of Appellee. On
May 6, 2021, Appellant filed his Motion for a New Trial (“Motion”). In it, he argued
deficiencies in Appellant’s argument regarding any delinquency in assessments (as argued in the
MSJ) and also that the ledger charges, which included such items as “rebill fees”, “demand fees”
and “collection account maintenance fees” among others, had not been properly authenticated
nor had Appellee proven why those items were imposed or collectible. See Motion at 6:21-8:24.
Appellant also included Check number 1561 in the amount of $312.00 and check number 1635
in the amount of $312.00, both of which he indicated had been provided to Appellee through its
counsel, but not indicated on the ledger.
In response, Appellee argued these materials had not been provided upon request of
counsel, in disclosure, or in the MSJ briefing and thus should not be considered. See Response
to Defendant’s Motion for a New Trial at 2:18-21.3
The Motion for a New Trial was denied on June 8, 2021. This timely appeal followed.
II.
STANDARD OF REVIEW
This Court reviews a grant of summary judgment de novo to determine “whether there
are any genuine issues of material fact and whether the trial court erred in applying the law.”
Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 213 ¶ 14 (App. 2012). In so doing, this Court
views “the facts in the light most favorable to the non-moving party.” Id.
Where the facts are undisputed, this Court is free to draw its own legal conclusions and
substitute its judgment for that of the trial court. Gries v. Plaza Del Rio Mgmt. Corp., 236 Ariz.
8, 12 ¶ 15 (App. 2014); SAL Leasing, Inc. v. State ex rel. Napolitano, 198 Ariz. 434, 438 ¶ 13
(App. 2000). This Court reviews de novo the trial court’s interpretation of court rules. Cuellar
v. Vettorel, 235 Ariz. 399, 401 ¶ 4 (App. 2014).
III.
ISSUES ON APPEAL
Appellant argues the trial court erred in granting the MSJ, erred in denying the Motion
for a New Trial, and erred in relying on incomplete evidence. Because this court remands on the
first issue, it need not reach the others. When an appellate court is faced with multiple issues on
2 Appellee argues on appeal the ledger did not contain those checks because it did not extend through that time
period. Whether the ledger was the most complete and accurate evidence would have been another factual
determination for the trier of fact.
3 Appellant had indicated in his MSJ Response that those had been provided, another issue of fact to be resolved.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2021-000286-001 DT
01/18/2022
Docket Code 506
Form L512
Page 4
appeal, it must resolve those issues on the narrowest grounds possible. See, e.g., R.L. Augustine
Const. Co., Inc., v. Peoria Unified School Dist. No. 11, 188 Ariz. 368, 370 (1997).
IV.
DISCUSSION
A plaintiff seeking summary judgment always bears the “heavy” burden of proof and
persuasion that no genuine issues of material fact exist and that the plaintiff is entitled to
judgment as a matter of law. Wells Fargo Bank, 231 Ariz. at 213 ¶¶ 16–17. A defendant bears
no burden of production or persuasion. “To carry its burden of persuasion, a plaintiff who seeks
summary judgment must submit undisputed admissible evidence that would compel any
reasonable juror to find in its favor on every element of its claim.” Id. at 213 ¶ 18 (internal
quotation omitted)(emphasis added).
Arizona Justice Court Rules of Civil Procedure (“JCRCP”) permit the trial court to “grant
a summary judgment motion if the record before the court shows that there is no genuine issue as
to the material fact, and that the moving party is entitled to judgment as a matter of law”.
JCRCP 129(d). Facts must be viewed most favorably to Appellant, the party against whom
summary judgment was entered. See United Bank of Arizona v. Allyn, 167 Ariz. 191, 193, (App.
1990); State ex rel. Corbin v. Challenge, Inc., 151 Ariz. 20 (App.1986).
In the present case, there were numerous genuine and material issues of fact in dispute
between the parties. Appellant argued he had paid all assessments, Appellee credited some
payments but argued there was still an outstanding balance. The documentation was not clear on
its own. Appellant argued he had documented other payments to Appellee, Appellee’s records
did not include them. Appellant argued he had provided checks to Appellee’s counsel. Appellee
ignored that statement in the MSJ Response but noted in the Motion for a new trial that it had not
received any additional checks.4
Appellee argues that somehow Appellant’s refusal to provide check copies to it until the
Motion for New Trial briefing alters its burden. See Appellee’s Response Memorandum at 3:9-
19. The Court of Appeals has considered and rejected the argument that “…the party adverse to
summary judgment therefore must either produce controverting evidence or at least point to
evidentiary items otherwise in the record which reveal a genuine dispute of fact”. Allyn at 194.
The burden was on the moving party. Appellant did point to evidentiary items that revealed a
genuine dispute of fact, even though under no obligation to do so.
4 The decision as to whether the material was or should have been included in a disclosure statement and if that
evidence should not have been excluded as a sanction for any failure to disclose would have been influenced by the
determination of that disputed fact.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2021-000286-001 DT
01/18/2022
Docket Code 506
Form L512
Page 5
Further, the moving papers themselves contained inferences regarding a genuine issue of
fact. See Allyn at 196.
Defendant generally denied his failure to make assessment payments. The Defendant does
not present any prior payments, checks or other evidence supporting his claim that each
and every prior payment was made. Defendant’s allegations have only risen as an excuse
not to pay the debt. As discussed below, Defendant’s allegations do not provide a legal
pretext for refusing to pay assessments, thus summary judgment should be granted for Las
Brisas.
MSJ at 3:3-7.
Appellant argued he made payments. Appellee not only said he didn’t but further argued
Appellant had “refused” to do so. Appellee, and then the trial court, improperly shifted the
burden to Appellant to prove “every prior payment was made”. There was a question of fact to
be determined as was clear from the MSJ itself. It was error to grant Summary Judgment with the
disputed facts raised by both parties.
It may well be that despite all payments made, Appellant still owes Appellee money
under contract or after proper notice. It may also be that the checks not contained in the ledger
were never received. But it is also possible that those checks were received and negotiated, and
the record keeping of Appellee failed to note same. There are also questions with respect to
which fees and assessments are collectible under contract and which need to be proven. There
are many possibilities regarding the underlying facts of this case.
This court takes no position on the veracity of any facts alleged by the parties. But they
are clearly in genuine dispute. And material. “Mere speculation or insubstantial doubt as to the
facts will not suffice, but where the evidence or inferences would permit a jury to resolve a
material issue in favor of either party, summary judgment is improper.” Allyn at 195; See also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574(1986).
V.
DISPOSITION & ORDERS
Based on the foregoing, this Court must conclude that the trial court erred in its
application of the law when it granted summary judgment in favor of Appellee. Accordingly,
IT IS THEREFORE ORDERED vacating the judgment of the White Tank Justice Court.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2021-000286-001 DT
01/18/2022
Docket Code 506
Form L512
Page 6
IT IS FURTHER ORDERED remanding this matter to the White Tank Justice Court for
any further proceedings.
IT IS ALSO ORDERED that no further matters remain pending between the parties and
this ruling constitutes this Court’s final decision for purposes of Rule 54(c), Arizona Rules of
Civil Procedure.
IT IS FURTHER ORDERED signing this ruling as a formal order of the Court.
/s/ Julie A. LaFave
THE HON. JULIE A. LAFAVE
Judicial Officer of the Superior Court
NOTICE: LC cases are not under the e-file system. As a result, when a party files a
document, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any filings.
11/22/2021 — LC2021000286 COMMUNITY ASSOCIATION, LAS BRISAS 11/22/2021 HONORABLE DANIEL J. KILEY View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
11/23/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2021-000286-001 DT
11/22/2021
Docket Code 504
Form L000
Page 1
CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
D. Tapia
Deputy
LAS BRISAS COMMUNITY ASSOCIATION
PHILIP N BROWN
v.
MICHAEL LAWRENCE FRANKLIN (001)
JONATHAN A DESSAULES
COMM. LAFAVE
REMAND DESK-LCA-CCC
WHITE TANK JUSTICE COURT
CIVIL
RECORD APPEAL ASSIGNMENT
White Tank Justice Court Case No. CC2020140828RC
The parties’ memoranda having been filed in the above-mentioned appeal,
IT IS ORDERED assigning this appeal on November 22, 2021, to Commissioner Julie
LaFave for determination of the appeal within sixty (60) days from this date based upon the record
of the proceedings and the parties’ memoranda, pursuant to Rule 9.9, Maricopa County Superior
Court Local Rules of Practice.
504.CIVIL.NOA
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2021-000286-001 DT
11/22/2021
Docket Code 504
Form L000
Page 2
NOTICE: LC cases are not under the e-file system. As a result, when a party files a
document, the system does not generate a courtesy copy for the Judge. Therefore, you will have
to deliver to the Judge a conformed courtesy copy of any filings.
12/09/2021 — LC2021000286 COMMUNITY ASSOCIATION, LAS BRISAS 12/09/2021 HONORABLE JULIE A. LAFAVE View Minute Entry ↑ top
- Source
- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
12/10/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2021-000286-001 DT
12/09/2021
Docket Code 023
Form L000
Page 1
CLERK OF THE COURT
HONORABLE JULIE A. LAFAVE
J. Eaton
Deputy
LAS BRISAS COMMUNITY ASSOCIATION
PHILIP N BROWN
v.
MICHAEL LAWRENCE FRANKLIN (001)
JONATHAN A DESSAULES
COMM. LAFAVE
REMAND DESK-LCA-CCC
WHITE TANK JUSTICE COURT
MINUTE ENTRY
White Tank Justice Court Case No. CC2020140828RC
Pending before this Court is the appeal in this matter. Appellant’s Notice of Appeal
indicates he is appealing from the trial courts “Ruling on Motion for Summary Judgment entered
on April 8, 2021, the Judgment entered in this matter on May 7, 2021 and the Ruling on Motion
for New Trial entered on June 8, 2021”1. See Notice of Appeal dated June 22, 2021.
The record on appeal does not contain the trial court’s Order regarding the Motion for
New Trial. This court cannot determine its jurisdiction to hear this appeal without it. The trial
court docket indicates the Motion for New Trial was denied on June 8, 2021. This Court finds
that item is material to its consideration of this appeal. Accordingly,
IT IS ORDERED that the clerk of the trial court transmit to the clerk of this Court a true
and accurate copy of the Order denying the Motion for New Trial.
IT IS FURTHER ORDERED that the trial court clerk transmit these items no later than
21 calendar days from the filing date of this minute entry.
1 This Court will address substantively the issue of jurisdiction over those three matters in its Ruling on Appeal.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2021-000286-001 DT
12/09/2021
Docket Code 023
Form L000
Page 2
IT IS FURTHER ORDERED that the matter will be deemed submitted to this Court for
ruling within 60 days of receipt of the requested Order.
NOTICE: LC cases are not under the e-file system. As a result, when a party files a
document, the system does not generate a courtesy copy for the Judge. Therefore, you will have
to deliver to the Judge a conformed courtesy copy of any filings.
