04/30/2024 — CV2024002225 L C, IQTUNHEIMR L 04/30/2024 HONORABLE JENNIFER RYAN-TOUHILL View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
05/02/2024 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
04/30/2024
Docket Code 028
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JENNIFER RYAN-TOUHILL
A. Meza
Deputy
IQTUNHEIMR L L C
NATHAN BROWN
v.
VAL VISTA LAKES COMMUNITY
ASSOCIATION, THE, et al.
KYLE BANFIELD
JUDGE RYAN-TOUHILL
MINUTE ENTRY
On February 5, 2024, Plaintiff Iqtunheimr, LLC, filed suit against multiple defendants,
including Val Vista Lakes Community Association (Val Vista) and Timothy Hedrick (Hedrick).
Plaintiff Iqtunheimr is a limited liability company that owns property within the community at
issue. Complaint, p. 4, ¶ 7. One defendant is the HOA and the other, Mr. Hedrick, lives in the
community and is an HOA board member. Id. at ¶¶ 8, 9. Plaintiff argued that Defendants have
breached the covenants and restrictions in place to maintain the safety, value, and well-being of
the community. Plaintiff filed for a preliminary injunction on the same date, asking for relief from
the Court to enjoin Defendants from causing further harm to the community. Defendants have not
filed answers but instead filed for dismissal.
On March 8, 2024, the Court conducted an Order to Show Cause Return Hearing to discuss
Plaintiff’s application for injunctive relief. The Court set a full day evidentiary hearing for May
14, 2024. Since that time, the Court has received a number of pleadings.
Currently pending before the Court are:
1. Plaintiff’s February 28, 2024, March 1, 2024, and March 28, 2024, Notice(s), Defendants’
March 29, 2024, Motion to Strike Plaintiff’s Notices, and Plaintiff’s April 2, 2024, Motion
to Strike Defendant’s [sic] Improper Motion to Strike.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
04/30/2024
Docket Code 028
Form V000A
Page 2
2. Defendants’ March 13, 2024, Motion to Dismiss Timothy Hedrick Pursuant to Rule
12(B)(6) (MTD), Plaintiff’s March 29, 2024, First Motion for an Extension of Time to File
a Response to the Timothy Hedrick MTD, and Defendants’ April 15, 2024, Response to
Plaintiff’s Motion for Extension of Time [ ]. Plaintiff did not file a reply.
3. Defendants’ March 13, 2024, Motion to Dismiss Val Vista Lakes Community Association
Pursuant to Rule 12(B)(6) (MTD), Plaintiff’s March 15, 2024, Notice of Material
Misrepresentation in Val Vista Lakes’ Motion to Dismiss, Plaintiff’s March 17, 2024,
Response in Opposition to Only Defendant Val Vista Lakes Community Association’s MTD,
and Defendant Val Vista Lakes Community Association’s March 27, 2024, Reply in
Support of MTD.
4. Plaintiff’s March 17, 2024, Motion to Disqualify Carpenter Hazlewood Attorneys,
Defendants’ April 3, 2024, Response to Plaintiff’s Motion to [Disqualify], and Plaintiff’s
April 13, 2024, Reply in Favor of Disqualification [ ].
5. Defendants’ April 15, 2024, Request for Rule 16 Status Conference.
The Court now rules.
Notices
On three separate occasions Plaintiff has filed “notices” with the Court. The February 28,
2024, notice informs the Court that Val Vista shut down a community pool. The March 1, 2024,
notice informs the Court of the HOA’s board’s refusal to repair the pool. The March 28, 2024,
notice informs the Court of a case arising out of a Los Angeles superior court.
The Court finds no good cause for Plaintiff’s repeated filings of “notices” with the Court.
Pleadings, formal written statements filed by parties, are limited by Rule 7, Ariz. R. Civ. P. Rule
7 does not allow “notices.” Rule 7.1 covers motions; a motion is not a pleading pursuant to Rule
7, but is instead “[a]n application to the court for an order. . . .” Rule 7.1(a), Ariz. R. Civ. P. A
motion must be in writing, accompanied by a memorandum of points and authorities, and a specific
request to the court. Id. Rule 7.1(b) allows the Court to summarily deny a motion if it fails to
comply with our rules.
Here, Plaintiff has not filed a motion and Plaintiff has not filed a complaint (e.g., amended).
Rather, Plaintiff has provided evidence to the Court, which may or may not be admissible, in
advance of an evidentiary hearing. The Court concurs with Defendants that Plaintiff’s notices “are
nothing more than an attempt to supplement the record in advance of” a hearing. Defendant[s’]
Motion to Strike, p. 2, ¶ 2. Plaintiff, in response, contends it can file the notices and Defendants
are without recourse to respond because Rule 7.1(f) only allows a motion to strike another motion,
not these notices. The argument is without merit. Plaintiff’s further contention that Rule 7.1(f)(3)
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
04/30/2024
Docket Code 028
Form V000A
Page 3
controls is, likewise, meritless. If Plaintiff is filing a notice, not a motion, then arguably 7.1(f)(3)
wouldn’t control, either. If Plaintiff has filed evidence, then Rule 7.1(f)(3) would allow an
objection but as stated, a “notice” with allegations and inserts, not tied to any request to the Court,
is an impermissible method by which to get evidence before the Court.
The Court concurs these filings are improper and disregards same. Therefore,
IT IS ORDERED granting Defendants’ motion to strike and striking Plaintiff’s three
“notices” filed with the Court.
IT IS FURTHER ORDERED denying Plaintiff’s motion to strike Defendant[s’]
“improper motion” to strike.
IT IS FURTHER ORDERED attorney’s fees will be held in abeyance. Defendants may
re-raise this request at a later date.
Motion to Disqualify
Plaintiff seeks to have Carpenter, Hazlewood, Delgado Bolen, LLP disqualified from
representing Defendants Val Vista and Hedrick. Plaintiff relies upon an “obvious conflict of
interest and for the violation of A.R.S. [§] 33-1811, the HOA Anti-kickback Statute.” Motion, p.
2, ¶ 1. Plaintiff has requested oral argument; the Court does not need oral argument to decide the
issue before it, and Plaintiff’s request is denied.
A.R.S. § 33-1811 is inapplicable. That statute states, “If any contract, decision or other
action for compensation taken by or on behalf of the board of directors would benefit any member
of the board of directors [or relatives of board member], that member of the board of directors
shall declare a conflict of interest for that issue.” (Emphasis added.) The statute applies to the
board member, not the law firm. Pursuant to the statute, a board member is required to declare a
conflict exists in an open meeting before the board votes. Hypothetically, if Val Vista HOA voted
on whether to hire a law firm, Brodie Hurtado would have to disclose a relationship with Carpenter,
Hazlewood, Delgado Bolen, LLP if the board was accepting bids or exploring contracts to enter
into with this firm. Brodie Hurtado would make this disclosure at a meeting. If Brodie Hurtado
failed to make the requisite disclosure, then the board could act consistent with its CC&Rs (e.g.,
seek to remove the board member). The remedy proposed here—removing a law firm—is not
grounded in law and reliance upon A.R.S. § 33-1811 is in error. Therefore,
IT IS ORDERED denying Plaintiff’s request to disqualify Carpenter, Hazlewood,
Delgado Bolen, LLP for a violation of A.R.S. § 33-1811.
The Court now turns to Plaintiff’s assertion of an “obvious” conflict of interest. Plaintiff
speculatively alleges that Carpenter, Hazlewood, Delgado Bolen, LLP partner Jonathan
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
04/30/2024
Docket Code 028
Form V000A
Page 4
Ebertshauser financially benefits from the contractual agreement between Accredited Surety and
Casualty Company and the law firm. Mr. Ebertshauser is not involved in this case and, beyond a
photo of counsel from the firm’s website and speculative argument, Plaintiff has provided no facts
demonstrating how or whether Mr. Ebertshauser financially benefits from the professional
relationship in this case. The Court declines to find that Mr. Ebertshauser either does or does not
financially benefit—the possibility of indirect profit-sharing from payments made by an insurance
company to the law firm is not enough to rise to a level of conflict necessitating removal and sheer
speculation does not rise to the level warranting a hearing on this issue.
Noteworthy is the method by which Carpenter, Hazlewood, Delgado Bolen, LLP became
involved in the case. The parties agree the HOA obtained an insurance policy that covers legal
fees; the insurer, in response to the lawsuit, hired the law firm. Consequently, the professional
relationship is between the insurance carrier and the law firm, and Val Vista did not hire Carpenter,
Hazlewood, Delgado Bolen, LLP. Here, the insurer has the freedom to contract with others to
fulfill its obligations pursuant to the agreement it entered into with the HOA.
Plaintiff improperly inserts rhetoric into pleadings in order to support its request. For
example, Plaintiff states, “It was almost as if Diana Ebertshauser and Brodie Hurtado wanted the
lawsuit so they could enrich/benefit the law firm of their direct family member.” Motion, p. 5, ¶
1. The Court cautions Plaintiff against unnecessary and unhelpful statements that only disparage
a non-party and do nothing to further the case against Defendants. Additionally, the Court is
required to reflect upon these statements when considering the elements of disqualification,
including harassment.
Disqualification interferes with the professional relationship between counsel and client.
Motions to disqualify counsel “should be granted ‘[o]nly in extreme circumstances,’ and the party
seeking disqualification has the burden of proof.” Simms v. Rayes, 234 Ariz. 47, 50, ¶ 8 (App.
2014)(quoting Alexander v. D’Angelo, 141 Ariz. 157, 161 (1984). The Court must consider the
Gomez factors when deciding Plaintiff’s motion. Gomez v. Superior Court, 149 Ariz. 223 (1986).
We believe that the court, when considering a motion for disqualification based
upon the appearance of impropriety, should consider the following: (1) whether the
motion is being made for the purposes of harassing the defendant, (2) whether the
party bringing the motion will be damaged in some way if the motion is not granted,
(3) whether there are any alternative solutions, or is the proposed solution the least
damaging possible under the circumstances, and (4) whether the possibility of
public suspicion will outweigh any benefits that might accrue due to continued
representation.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
04/30/2024
Docket Code 028
Form V000A
Page 5
Id. at 226 (quoting Alexander)(internal citations omitted). This Court, when considering the first
factor, concludes that Plaintiffs are harassing Defendants. Plaintiff does not have a legal basis to
seek removal of Carpenter, Hazlewood, Delgado Bolen, LLP; Plaintiff, in argument, chastises
Defendant Val Vista of improperly spending money on “a $320,000 insurance policy to protect
them from getting personally sued[.]” Motion, p. 2, ¶ 3 (emphasis in original). How or why the
HOA decides to spend funds to protect itself from liability is not indicative of wrongdoing or
underhandedness. All association members are harmed by lawsuits because the HOA is comprised
of association members who, in turn, may have increased dues (expenses) related to litigation.
Simply because the HOA took action to protect itself (i.e., the members) in a litigation context
does not show a conflict of interest.
Plaintiff has also harassed Defendants by irrelevant rhetoric contained in the motion. In
addition to the example provided above, Plaintiff unnecessarily references Diana Ebertshauser’s
marital status in a footnote. See Motion, p. 3, FN1. Plaintiff repeatedly accuses Defendants of
“kickbacks” and “self-dealing,” utilizing A.R.S. § 33-1811 as justification for these terms.
Plaintiff complains that the HOA did not vote on hiring Carpenter, Hazlewood, Delgado Bolen,
LLP, accusing the board members of entering into this contractual relationship to benefit family
members (a kickback), without acknowledging that the HOA obtained insurance and it is the
insurance provider who selected the law firm, not Ms. Eberthauser or Brodie Hurtado. Instead,
Plaintiff conclusively asserts that the association members have “not been notified that [their]
monies are being used to benefit the family of HOA board members.” Motion, p. 7, ¶ 2. This is
inflammatory, as is the bald assertion that multiple lawsuits “have been fought to prevent Board
Members from using Val Vista Lakes Community funds to enrich their friends and families.” Id.
at p. 10, ¶ 2. In the reply, Plaintiff states, “Defendants should be advised to spend less time on
social media, and more time trying to fix the community.” Reply, p. 7, ¶ 5. The rebuttal statement
is irrelevant to conflict of interests, is improper, and the unsupported allegations constitute
harassment.
Turning to the second factor, Plaintiff fails to illustrate how Plaintiff may be harmed if the
firm is not disqualified. Plaintiff simply states, “If motion is not granted, it will be business as
usual for” Defendant Val Vista. Motion, p. 11, ¶ 3. This is insufficient to allow Plaintiff to prevail;
Plaintiff has not met its burden under the second Gomez factor.
The third factor, alternative solutions, is briefly addressed by Plaintiff insofar as Plaintiff
suggests Carpenter, Hazlewood, Delgado Bolen, LLP simply step down. Plaintiff’s cursory
argument deficiently addresses the Gomez factor; more is needed. See, e.g., State ex. Rel. Mitchell
v. Palmer in and for County of Maricopa, ---P.3d---, 2024 WL 1561618 (2024). Here, the Court
can hypothesize multiple, less restrictive alternatives beside disqualifying an entire law firm,
similar to what is considered in a criminal context. Nevertheless, it is not the Court’s burden to
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
04/30/2024
Docket Code 028
Form V000A
Page 6
justify disqualification under factor three—it is Plaintiff’s burden; Plaintiff has not met its burden
and the Court does not find any need for an alternative solution.
The fourth factor, public suspicion, is not apparent or sustainable on behalf of Plaintiff.
However, if the Court were to grant Plaintiff’s request to disqualify Carpenter, Hazlewood,
Delgado Bolen, LLP, Defendants could reasonably believe that Plaintiff used disqualification as a
tactical tool and, consequently, promote distrust in the legal process. By granting Plaintiff’s
request, the Court would show that it is not persuaded by law, facts, or sound legal reasoning but
instead decides disputed issues on speculation, conclusory arguments, and inserted social media
posts. The fourth Gomez factors weighs in Defendants’ favor, not Plaintiff’s.
The Court would be remiss in failing to mention that Plaintiff presents no argument
whatsoever to disqualify Carpenter, Hazlewood, Delgado Bolen, LLP from representing
Defendant Hedrick. Therefore, the motion is denied as to that co-defendant.
No good cause appearing,
IT IS ORDERED denying Plaintiff’s motion to disqualify Carpenter, Hazlewood,
Delgado Bolen, LLP for conflict of interest.
IT IS FURTHER ORDERED attorney’s fees will be held in abeyance. Defendants may
re-raise this request at a later date.
Motion for Extension of Time
Plaintiff requests a delay in responding to Defendant Hedrick’s MTD; Defendant opposes.
Plaintiff, in the request for additional time to respond, provides the Court with no authority
for the request. Instead, at the outset of the motion, Plaintiff provides an “introduction” to the case
which, essentially, bad-mouths Defendant Hedrick and the HOA board. See First Motion, pp. 2-
4. The information presented is irrelevant to Plaintiff's request for additional time in which to file
a response to Defendant Hedrick’s MTD.
Plaintiff argues it has a motion pending that seeks to block HOA fees paying for Hedrick's
attorney’s fees; Plaintiff then contends the outcome of that motion (not currently before the Court)
will allow the HOA to fix up the community instead of paying Carpenter, Hazlewood, Delgado
Bolen, LLP. Similarly to the “introduction,” this is irrelevant to the pending motion.
Plaintiff provides the Court with argument extraneous to the pending motion. Plaintiff
states, “Right now, Carpenter Hazlewood attorneys such as Kyle Banfield are telling the HOA
Board that they do not have to fix up the community. . . . Until, [sic] the Court declares Mr.
Banfield’s legal advice unsound, people like Defendant Hedrick will believe their actions can go
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
04/30/2024
Docket Code 028
Form V000A
Page 7
unchecked.” Motion, p. 5, ¶ 2. One, unclear to the Court is why Plaintiff believes addressing Mr.
Banfield’s role in this case helps Plaintiff’s request for additional time to respond to the MTD.
Two, the Court does not grant an extension of time for pleadings so that a party may wait for the
Court to admonish another party. This is not sound legal reasoning and is not the Court’s role.
Plaintiff asked Defendants for an extension and Defendants refused; regardless of
professional courtesy, Defendants’ refusal is not, by itself, a legal basis by which this Court will
extend time. Finally, the Court does not understand the purpose of the pleadings attached to
Plaintiff’s motion and will disregard same.
The Court finds that Plaintiff seeks additional time in which to respond to the MTD because
Plaintiff believes a response, if any, should be filed after the Court’s evidentiary hearing. The
Court appreciates Plaintiff's request for judicial economy and concurs this should be a priority.
Defendants point out, however, that the evidentiary hearing is for Val Vista only and,
consequently, waiting to file a response to Defendant Hedrick’s MTD is unwarranted.
The Court further finds Plaintiff failed to make any relevant argument for good cause for
an extension of time. Additionally, Plaintiff has had between March 13, 2024, and the date of this
Ruling to file a response and has not done so. Because there is no good cause for an extension of
time in which to file a response,
IT IS ORDERED denying Plaintiff’s request.
Motion to Dismiss
Defendants filed two motions to dismiss, both for Val Vista and Hedrick. The Court will
consider both MTD here. No party requested oral argument and the Court does not need oral
argument to decide the issues before it.
The Court has considered the filings and arguments presented by the parties, the relevant
authority and law, and the record of the case. Regarding the MSJ, the Court specifically considered
all facts and reasonable inferences in the light most favorable to the non-moving party. The Court’s
rulings are below.
Arizona law disfavors 12(b)(6) motions to dismiss. Ariz. R. Civ. P.; Acker v. CSO Chevira,
188 Ariz. 252 (Ct. App. Div. 1 1997); State ex rel. Corbin v. Pickrell, 136 Ariz. 589, 594 (1983).
The narrow question before this Court is whether Plaintiffs’ alleged facts are sufficient to allowing
Plaintiffs to prevail. Coleman v. City of Mesa, 230 Ariz. 352, 363. ¶ 46 (2012). After consideration
of Plaintiffs’ allegations and assuming the truth therein, this Court finds that Defendants are and
are not entitled to dismissal “as a matter of law, on any interpretation of the facts.” Id.
Val Vista
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
04/30/2024
Docket Code 028
Form V000A
Page 8
Val Vista Lakes Community Association (Val Vista) is an HOA. Plaintiff is one member
of the HOA. Val Vista “is a master planned community that has 14 neighborhoods, with 2243
total members who are part of the Association.” MTD, p. 2, ¶ 2. In the lawsuit against Defendant
Val Vista, Plaintiff alleges breaches of contract and the duty of good faith and fair dealing.
Plaintiff has no independent, direct cause of action against Val Vista for a general breach of
contract under the facts alleged and, instead, alleges facts that impact all members of the HOA.
Count Two, the breach of contract for the duty of good faith and fair dealing applies to Defendant
Hedrick, not Val Vista, and will not be addressed here.
The HOA members (all 2243 of them) have use and enjoyment of their common areas but
have no undivided interests in those common areas. Ownership of common area rests with a
homeowner’s association in total, not member by individual member. Here, Plaintiff has no legal
authority demonstrating that an individual member of an HOA has legal standing to sue for defects
in a common area, even if that individual member has an unfettered right of access to the area.
Plaintiff also provides no notice in the complaint that reflects any assignment of rights to sue (from
the HOA to Plaintiff). The Court will set out the explanation differently:
1. Plaintiff, on its own, brought an action individually against Val Vista.
2. The nature of the action is the alleged wrongs done to the entire community (e.g., failure
to maintain or repair common areas).
3. Plaintiff does not own the common areas.
4. Plaintiff’s argument of wrongdoing includes allegations that Val Vista’s inaction has
devalued the community. This devaluation impacts not only Plaintiff but also all other
HOA members.
5. The wrongdoing—the injury—is to the community areas and to the value of the community
as a whole.
6. The remedy sought is not for Plaintiff’s own benefit but rather the benefit of the community
as a whole (i.e., repair and maintain the common areas).
Albers v. Edelson Technology Partners L.P., 201 Ariz. 47, ¶ 17 (App. 2001). An individual
may have a direct claim under certain circumstances, including times when the dispute between
the claimant and wrongdoer is separate from the claimant’s status as a member of the HOA, the
wrongdoer owes a duty to the claimant for a reason other than membership in an HOA, or the
claimant’s injuries are individual. Id., p. 52, ¶¶ 17, 18. None of those potential scenarios exist
here and Plaintiff has no direct claim against Val Vista for breach of contract. Pursuant to
Plaintiff’s facts alleged for breach of contract claim filed against Val Vista, the Court finds it is,
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
04/30/2024
Docket Code 028
Form V000A
Page 9
instead, a derivative claim. Because Plaintiff has not complied with the mandatory statutory
requirements for a derivative claim, Count One is dismissed.
Plaintiff may have a valid claim for Count Three, “Breach of Contract by Selective
Enforcement and Failure to Maintain.” Complaint, p. 51. Plaintiff provides minimal notice of its
claim when it alleges that Val Vista “is selectively enforcing their governing documents to the
detriment of Plaintiff. . . .” Id. at ¶ 115. The remainder of the allegations, if legally cognizable,
are derivative. However, because Plaintiff has made a claim that Val Vista has directly harmed
Plaintiff (and not others), this count survives a motion to dismiss. The Court, understanding
Defendants’ position on dismissal of this claim, nevertheless finds that on its face Plaintiff has
made a survivable claim against Val Vista. If, at a later date, Defendant Val Vista proves that
Plaintiff itself has not received any selective treatment, Defendant may wish to file for summary
judgment.
Timothy Hedrick
Upon reviewing Plaintiff’s complaint, the Court found that allegations for Count One,
breach of contract, against Defendant Hedrick did not appear until page 47. Plaintiff alleged
Defendant Hedrick (1) refuses to maintain facilities, (2) refused to replace air conditioners, (3)
tells others he (Hedrick) will not repair the community, and (4) releases private HOA business to
community members to cause outrage. Complaint, p. 47, ¶¶ 89-92. None of these allegations rise
to the level of breach of contract between Plaintiff and Defendant Hedrick; the Complaint is legally
deficient and dismissal of Count One against Defendant Hedrick is warranted.
Count Two alleges that Defendant Hedrick failed to act in good faith by depriving Plaintiff
of Plaintiff's reasonable expectations from the HOA. Id. p. 48, ¶ 96. This is a direct claim.
Likewise, Plaintiff’s claim that Defendant Hedrick has failed to meet a contractual bargain with
Plaintiff survives only because Arizona is a notice pleading state and Plaintiff has put Defendant
Hedrick on notice that he, Hedrick, is not complying with a contract with Plaintiff (the CC&Rs).
Id. p. 51, ¶ 112. However, Plaintiff’s remaining claims are derivative and for the reasons provided
above in the Val Vista discussion, are dismissed.
Count Three only makes passing reference to Defendant Hedrick, accusing that party of
making side deals. Id. p. 52, ¶ 119. This is not a valid claim, even in context of reviewing the
entire pleading, because it fails to state a basis for relief. Here, Plaintiff’s accusations against
Defendant Hedrick are insufficient to survive the MTD.
Therefore,
IT IS ORDERED dismissing Count One as to both parties.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
04/30/2024
Docket Code 028
Form V000A
Page 10
IT IS FURTHER ORDERED denying Defendants’ motions to dismiss for Count Two
for the reasons stated herein.
IT IS FURTHER ORDERED denying Defendant’s motion to dismiss Count Three
against Defendant Val Vista but granting the MTD Count Three against Defendant Hedrick.
IT IS FURTHER ORDERED attorney’s fees will be held in abeyance. Defendants may
re-raise this request at a later date.
Request for Status Conference
Defendants ask for a status conference to address many of the issues dealt with in this
Ruling. However, Defendants seek court intervention for other, related issues, including
allegations that Plaintiff is or intends to contact represented parties, and the timing of the upcoming
evidentiary hearing.
The Court reviewed Plaintiff's Application for Preliminary and Permanent Injunction.
Plaintiff properly sets out the criteria by which the Court must assess a request for injunction,
including whether there exists a strong likelihood of success on the merits. Plaintiff restates the
law and refers back to the complaint filed; in consideration of this Application, the Court, likewise,
considers the Complaint.
Here, the Court does not find a strong likelihood of success on the merits at this juncture.
Simply because Plaintiff has survived a motion to dismiss for some of the claims does not translate
to “a strong likelihood of success.” The Court has addressed the deficiencies of the pleadings but
finds those deficiencies, in some respects, do not warrant dismissal. However, the pleadings
likewise do not demonstrate a preliminary injunction is warranted.
Plaintiff does not have standing to seek retribution for the entire HOA. If Plaintiff speaks
for others beyond itself, Plaintiff must comply with statutory requirements for derivative claims.
However, for those Counts that may impact Plaintiff directly, the Court sees no urgency in
immediately addressing Plaintiff's assertions that Val Vista and Hedrick fail to act in good faith
and fair dealing or by Val Vista selectively enforcing the CC&Rs. Therefore, on the Court’s own
motion,
IT IS ORDERED vacating the evidentiary hearing set for May 14, 2024, at 9:00 a.m.
IT IS FURTHER ORDERED setting the matter for a Status Conference on May 14,
2024, at 9:00 a.m. (time allotted: 15 minutes).
This matter will be heard by video/audio conference using Court Connect. Court Connect
is the Superior Court in Maricopa County’s video court hearing platform. For more information
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
04/30/2024
Docket Code 028
Form V000A
Page 11
about Court Connect, please visit: https://superiorcourt.maricopa.gov/court-connect. Counsel shall
have their calendars available for this proceeding.
A Court Connect video link will be emailed to counsel of record (or self-represented
parties) the day before the hearing. All parties must appear by video and ensure their
environment is free from distractions.
Join on your computer or mobile app by copying the link below and pasting it into an internet
browser
tinyurl.com/jbazmc-cvj14
Or call in (audio only)
+1 917-781-4590,
Phone Conference ID: 869 390 901#
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.
IT IS FURTHER ORDERED confirming the only parties to this case are Plaintiff, Val
Vista HOA, and Timothy Hedrick. The hearings are open to the public but this does not mean the
Court must allow unfettered access to multiple HOA members, especially when the members do
not appear on time or refuse to remain muted during the hearing. These actions are disruptive and
will not be tolerated by the Court. If necessary, the Court will require all future hearings in person
in an effort to minimize distractions.
10/18/2024 — CV2024002225 L C, IQTUNHEIMR L 10/18/2024 HONORABLE JENNIFER RYAN-TOUHILL View Minute Entry ↑ top
- Source
- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
10/23/2024 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
10/18/2024
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JENNIFER RYAN-TOUHILL
A. Meza
Deputy
IQTUNHEIMR L L C
NATHAN BROWN
v.
VAL VISTA LAKES COMMUNITY
ASSOCIATION, THE, et al.
KYLE BANFIELD
JUDGE RYAN-TOUHILL
STATE BAR OF ARIZONA
RULING
Before the Court are a number of pleadings. The Court will briefly revisit the procedural
history of the case.
February 5, 2024, Plaintiff filed suit.
March 8, 2024, the Court held an OSC on Plaintiff’s request for a preliminary and
permanent injunction.
March 13, 2024, Defendants filed motions to dismiss. Plaintiff responded, in part, on
March 17, 2024, and Defendants replied on March 27, 2024.
April 30, 2024, the Court issued an extensive Ruling. The Court dismissed multiple claims
but allowed Plaintiff to proceed on Counts Two (against both Defendants) and Three
(against the HOA only). The Court vacated the evidentiary hearing set on Plaintiff’s
request for a preliminary injunction.
Plaintiff requested permission to file a derivative lawsuit; the Court denied that request.
Plaintiff requested the Court issue a stay; the Court denied that request.
May 23, 2024, the appellate court declined jurisdiction over Plaintiff’s special action.
May 24, 2024, Plaintiff filed his notice of “voluntary dismissal” of the remaining claims.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
10/18/2024
Docket Code 019
Form V000A
Page 2
May 29, 2024, Defendants sought leave of the court to apply for attorney’s fees and costs.
Additional pleadings were filed.
June 4, 2024, Plaintiff filed “notice” that he appealed the Court’s decision to deny allowing
a derivative lawsuit.
July 2, 2024, the Court allowed Defendants to apply for attorney’s fees and costs.
July 17, 2024, Defendants filed a motion for sanctions and application for attorney’s fees
and costs.
July 31, 2024, parties notified the Court they stipulated to an extension of time for
Plaintiff’s responses.
August 8, 2024, the Court gave Plaintiff until August 26, 2024, to respond.
August 20, 2024, Plaintiff asked the appellate court to reconsider its ruling denying
jurisdiction.
August 21, 2024, the Court of Appeals denied Plaintiff's motion.
August 26, 2024, Plaintiff asked the Court for more time to respond. Defendants opposed.
September 2, 2024, Plaintiff filed his responses.
September 16, 2024, Defendants replied.
September 24, 2024, Defendants filed a Notice of Errata, stating they filed one reply twice
instead of two separate replies (for two separate motions).
October 8, 2024, Plaintiff filed an “objection” to the Notice of Errata.
THE COURT FINDS no cognizable legal argument in Plaintiff’s objection to the Notice
of Errata and therefore declines to consider this filing.
THE COURT FURTHER FINDS Plaintiff filed his responses untimely. However, over
Defendants’ objections to the late filings, the Court will consider Plaintiff's responses. Therefore,
to the extent necessary,
IT IS ORDERED granting Plaintiff’s request for his second motion to more time to
respond to the pleadings.
Application for Fees and Costs
Before the Court is Defendants’ July 17, 2024, Application for Attorneys’ Fees and Costs,
Plaintiff’s September 2, 2024, Response in Opposition to Application for Attorney Fees, and
Defendants’ September 24, 2024, Reply in Support of Application for Attorneys’ Fees and Costs.
The Court has carefully considered the pleadings and reviewed the fee summary. Good cause
appearing,
IT IS ORDERED granting Defendants’ application for fees and costs.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
10/18/2024
Docket Code 019
Form V000A
Page 3
IT IS FURTHER ORDERED Plaintiff shall pay $59,970.00 in attorneys’ fees incurred
and costs totaling $390.28. Contemporaneously with this Order, the Court has signed the Form of
Final Judgment (excluding Rule 54(c) language).
Motion for Sanctions
Before the Court is Defendants’ July 17, 2024, Motion for A.R.S. § 12-349 Sanctions,
Plaintiff’s September 2, 2024, Response to Defendants’ Motion for Sanctions, Defendants’
September 24, 2024, Notice of Errata, and Defendants’ September 16, 2024, Reply in Support of
Application for [Sanctions].
Our law states:
A. Except as otherwise provide by and not inconsistent with another statute, in any
civil action commenced . . . the court shall assess reasonable attorney fees, expenses
and, at the Court’s discretion, double damages of not to exceed five thousand
dollars against an attorney or party. . . if the attorney or party does any of the
following:
1. Brings or defends a claim without substantial justification.
2. Brings or defends a claim solely or primarily for delay or harassment.
3. Unreasonably expands or delays the proceeding.
. . . .
F. For the purposes of this section, “without substantial justification” means that
the claim or defense is groundless and is not made in good faith.
A.R.S. § 12-349.
Our Supreme Court has found “[i]n the context of § 12-349, the term ‘groundless’ is
synonymous with ‘frivolous.’” Arizona Republican Party v. Richer, 257 Ariz. 210 ¶ 15
(2024)(internal citations omitted). The Court further stated, “Whether a claim is groundless is
viewed through an objective lens, without regard to the attorney’s or party’s subjective beliefs.”
Id. (citation omitted). Additionally, a claim will be considered groundless if the proponent is
unable to “present any rational argument, based on the law or the evidence, supporting that claim.”
Evergreen West, Inc. v. Boyd, 167 Ariz. 614, 619 (App. 1991).
The Court must consider whether Plaintiff acted in accordance with what other
professional, competent attorneys would do in similar circumstances. Here, the Court finds
Plaintiff did not act in good faith regarding those dismissed claims because Plaintiff, an attorney
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
10/18/2024
Docket Code 019
Form V000A
Page 4
representing himself and/or his own company,1 knew or should have known the asserted claims
were groundless. Further, the Court finds that even after the Court advised Plaintiff certain claims
were groundless and other claims exceedingly tenuous, Plaintiff pursued his case, anyway. Only
after Plaintiff realized he needed specific, final judgment language in order to appeal, did Plaintiff
seek to dismiss the case in its entirety. In other words, Plaintiff did not dismiss his case because
he now understood the law but, rather, to pursue additional litigation in our appellate courts. Thus,
Plaintiff sought to maintain his sanctionable claims. Richer, 257 Ariz. 210 ¶ 41. See also Minute
Entry filed 05/02/2024.
THE COURT FINDS Plaintiff’s Counts One (to both Defendants) and Three (to
Defendant Hedrick) were groundless and not made in good faith.
The Court declines to find Plaintiff brought the case (generally) primarily for delay or
harassment. However, Plaintiff harassed Defendants through the course of litigation, which not
only harmed Defendants but also unnecessarily expanded these proceedings. Specifically, the
Court previously found that Plaintiff filed “notices” with the Court absent any legal authority,
fought against Defendants’ requests to strike the “notices,” and the pleadings themselves were
procedurally incorrect (including the “motion to strike” Defendants’ “improper motion” to strike).
Plaintiff also used the judicial process to insult or demean others, including discussing
irrelevant personal information pertaining to other members of the HOA. Minute Entry filed
05/02/2024. To quote from itself, the Court found “Plaintiff improperly inserts rhetoric into
pleadings in order to support its request.” Id., p. 4 ¶ 3. The Court further stated, “The Court
cautions Plaintiff against unnecessary and unhelpful statements that only disparage a non-party
and do nothing to further the case against Defendants.” Id. Plaintiff chose to accuse Defendants
of “kickbacks” and “self-dealing” and, in response to an application for attorney’s fees and costs,
and accused counsel for Defendants of “jack[ing] up their hourly rates.” Id.; see also Response in
Opposition to Application for Attorneys’ Fees, p. 9 ¶ 3. The Court previously concluded and
concludes again that Plaintiff harassed Defendants.
Plaintiff sought to interfere with the attorney-client relationship between Defendants and
their law firm by asking for removal of the firm, which the Court denied. Considering the Gomez
factors, the Court concluded that no basis existed to disqualify the firm. Plaintiff’s request was
meritless and contributed to expanding these proceedings unnecessarily.
1 The Court is unclear about the nexus of the relationship between Nathan Brown, counsel, and Plaintiff, Iqtunheimr
LLC. Mr. Brown, in his response, says Plaintiff is a property management company. However, other pleadings seem
to indicate Plaintiff is a company owned, directed, or facilitated by Mr. Brown.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
10/18/2024
Docket Code 019
Form V000A
Page 5
Plaintiff failed to properly respond to a motion to dismiss filed on behalf of Defendant
Hedrick, a private citizen who volunteered for the HOA board. Plaintiff sought additional time in
which to respond, which this Court ultimately denied.
Plaintiff threatened opposing counsel with sanctions and/or bar complaints, for which this
Court finds no evidence exists supporting ethical violations. Plaintiff accused Defendants of
material misrepresentations, failed to provide legal support for his arguments, and demanded
recission of a motion to dismiss. Defendants’ Motion for Sanctions, pp. 4-5, generally.
Plaintiff made multiple inflammatory statements throughout the course of the case,
including claims that the HOA and attorneys were using the legal process to enrich friends and
families who are members of the HOA. Minute Entry filed 05/02/2024. Rather than utilizing
sound legal theory to defend his position, Plaintiff asserted Defendants “should spend less time on
social media[.]” Id. Plaintiff has demonstrated a lack of adherence to acceptable, professional
norms and has further shown disregard for our local and state procedural rules. Moreover, Plaintiff
has failed to follow black-letter law regarding the subject matter of this suit, and instead accused
others of rewriting our statutes and case history.
The Court now turns to Plaintiff’s response: Plaintiff’s lack of professionalism continues.
Specifically, Plaintiff:
Accused Defendants of labeling Plaintiff a “terrorist” and a “legal bully.”
o The Court has re-read the motion for sanctions three times and does not find these
words. Of course, the Court may have failed to notice the terminology.
Stated, “Defendants’ attorneys are making these announcements so that the hate and ire in
the community, directed by them and the HOA Board[,] can be directed toward an
individual with a family instead of a small business.” (Emphasis added.)
Stated, “[T]he only thing the [HOA board] will spend money on is their relative’s law firm,
Carpenter Hazlewood. There appears to be no limit to that expense.”
Stated, “All the Defendants need to do is open their eyes and see the damage. . . .”
Stated, “Defendants have turned this simple desire for non-ghetto facilities into a hate
campaign directed at Plaintiff’s attorney.”
Stated, “The sole purpose of the hate campaign is to intimidate Plaintiff’s attorney. . . .”
Accused “family members of a partner of the law firm of Carpenter Hazlewood” of bad
faith.
o The Court previously addressed this claim, along with the claim of familial
enrichment, in a prior Ruling.
Advised counsel for Defendant Hedrick to “talk with their client BEFORE stating anything
of substance about HOA Board Member Timothy Hedrick. Better yet, Timothy Hedrick
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
10/18/2024
Docket Code 019
Form V000A
Page 6
should sign a sworn affidavit, under the penalty of perjury[,] that these allegations are
groundless.”
o All claims against all Defendants are dismissed.
Stated, “. . . Defendants have spent the community money on their family’s law firm.”
Because of this, Plaintiff contends sanctions against Defendant Hedrick are unwarranted.
Accused Defendants of “fabricating” CC&Rs and claimed Plaintiff was “forced to begin
Rule 11 Sanctions[.]” Further stated, “For the Defendants to ‘rewrite history’ and now to
demand sanctions because of their Rule 11 Sanctions, again shows a pattern.”
o Defendants corrected the record in their reply in support of their request for
dismissal of the case.
o The Court has no record of Plaintiff formally requesting Rule 11 sanctions against
Defendants or their attorneys.
Accused Defendants of destroying Plaintiff’s business.
Argued, “One does not determine the validity of claims if one actually believes their
opposition has no claims under Rule 12(b)(6). Especially if Defendants actually believed
the claims were groundless and not made in good faith.”
Claimed Defendants have taken legal positions to further “act[s] of intimidation to
discourage judicial review.”
Stated, “Defendants should have requested sanctions from the Appeals Court [sic] if they
believed that the Special Action was filed frivolously.”
o Plaintiff did not serve Defendants with a copy of Plaintiff’s appellate action(s).
o Division One of the Court of Appeals declined jurisdiction in this case.
Stated, “Defendants’ President Melvin McDonald has a horrific history of attempting to
destroy his legal opponents [ ] through any means necessary.”
Asserted, “Any award to Defendants will send a clear message to the Defendant and their
attorney [ ] that the way to win homeowner litigation is through intimidation.” (Emphasis
added.)
Claimed Plaintiff “has remained silent throughout this litigation.”
o The pleadings, along with notices, belie this assertion.
Accused Defendants of mocking Plaintiff.
o What Defendants actually stated is, “First, the Plaintiff requests a ‘Judicial
Assessment’ but undersigned counsel is unaware of any Arizona case law or statute
that provides the avenue for the Plaintiff to request anything of the sort in a breach
of contract lawsuit.” Motion to Dismiss, p. 13 ¶ 4.
Confuses the need for a check for professional conflicts with disqualification of counsel.
See Response to Defendants’ Motion for Sanctions, generally.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
10/18/2024
Docket Code 019
Form V000A
Page 7
The Court took time to include statements made by Plaintiff because the statements, above,
are indicative of the tone of Plaintiff's filings throughout the course of the case. Rather than
providing comprehensive, sustainable legal argument to the Court, Plaintiff instead attacks and
besmirches others, which only weakens Plaintiff’s case.
The Court understands, from the history of the case and multiple attachments to filings,
that many members of the Val Vista Lakes Homeowner’s Association have real, valid, and pressing
concerns about the state of their community. Problematically, Plaintiff’s case did not properly set
out case law or provide cognizable legal authority for the claims made and relief requested. Rather,
Plaintiff’s ill-advised and spurious attacks upon others confused the issues, necessitated judicial
involvement, and did nothing to serve the needs of the community as a whole. The Court advised
Plaintiff of this in a prior ruling, but it appears the Court’s gentle admonishment failed to curb
Plaintiff’s behavior.
Troubling to the Court is additional information in Defendants’ Reply. One, Plaintiff’s
counsel, Nathan Brown, has allegedly threatened opposing counsel. Two, Plaintiff unnecessarily
and unprofessionally attacked Ret. Judge Melvin McDonald. Mr. McDonald is the president of
the HOA, which is his only relationship to the potential (yet dismissed) issues in this case.
Plaintiff’s improper actions in attaching old, irrelevant documents to his Response serves no other
purpose than to attack the HOA President’s credibility. Moreover, while this matter is pending,
Adult Protective Services visited Mr. McDonald’s home due to a referral of abuse and/or neglect.2
If Defendants’ suspicions are true, the Court cannot condone using taxpayer services to harass
another.
Defendants request relief for these two additional (alleged) actions by Plaintiff and/or
Plaintiff’s attorney. The Court finds this is not the appropriate forum in which to review potentially
unethical behavior committed by Mr. Brown. Rather, this matter properly belongs before the
Arizona State Bar Association. Therefore,
IT IS ORDERED the State Bar shall investigate the allegations referenced in this Ruling,
specifically addressing Mr. Brown’s threatening behavior toward an attorney of record and Mr.
Brown’s harassment of Ret. Judge Melvin McDonald.
IT IS FURTHER ORDERED deferring the State Bar whether it will investigate the
remaining potential ethical violations outlined in this Ruling and the Court’s Minute Entry filed
05/02/2024. At the very least, it may behoove Mr. Brown to obtain a mentor.
2 The Court makes no findings on who called APS; the Court understands Defendants and Mr. McDonald suspect it
was Plaintiff’s counsel who did so.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2024-002225
10/18/2024
Docket Code 019
Form V000A
Page 8
IT IS FURTHER ORDERED granting Defendants’ request for sanctions.
THE COURT FINDS it has already granted attorney’s fees and costs (see above).
Therefore,
IT IS ORDERED sanctioning Nathan Brown, State Bar # 033482, $5,000.00 personally.
IT IS FURTHER ORDERED granting Defendants leave to file an application for fees
and costs incurred in connection with their motion for sanctions. Defendants shall file their
application within five business days of the filing date of this Ruling or the request is waived.
Further, Defendants shall provide the Court with a form of judgment that includes Rule 54(c)
language.
