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Maricopa County Superior Court Case CV2004-001341: public docket details, parties, minute entries, documents, and official source links for Ahwatukee Custom Estates Management Association.

Case Number

CV2004-001341

County

Maricopa

Caption

Not captured

Filed

1/22/2004

Case Type

Civil

Judge

Herrod, Michael

Location

Downtown

Official Court Record

Official Court Record

Parties

Minute Entries

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
01/16/2008 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-001341
01/14/2008
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HON. EDWARD O. BURKE
L. Nixon
Deputy
AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD
v.
JAMES M RAST, et al.
ROGER R FOOTE
MINUTE ENTRY
The Court has received and reviewed Defendants’/Counterclaimants’ Objection to
Plaintiff/Counterdefendant’s Form of Judgment and Notice of Lodging Form of Judgment.
All in accordance with the written Final Judgment signed by the Court on January 8,
2008 and filed (entered) by the Clerk on January 14, 2008,
IT IS ORDERED Defendants’/Counterclaimants’ Objection is SUSTAINED.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

01/24/2005

Docket Code 005
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BARRY C. SCHNEIDER
C. Johnston

Deputy

FILED: 01/26/2005

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
SCOTT CARPENTER

v.

JAMES M RAST, et al.
ROGER R FOOTE

ORAL ARGUMENT

8:39 a.m. This is the time set for Oral Argument on pending motions. Counsel, Scott
Carpenter is present on behalf of Plaintiff. Counsel, Roger Foote is present on behalf of
Defendant.

Court Reporter, Cindy Lineburg, is present.

Discussion is held re: Plaintiff’s Motion to Strike Portions of
Defendant/Counterclaimants’ Response to Motion for Partial Summary Judgment on the
Counterclaims and Motion for Sanctions.

IT IS ORDERED denying the Motion.

Argument is heard on Plaintiff’s Motion for Partial Summary Judgment.

IT IS ORDERED Defendant shall complete construction on or before June 8, 2005.

IT IS FURTHER ORDERED any monetary obligations or sanctions shall be
adjudicated at an Evidentiary Hearing to be set upon the filing of a motion to set.

IT IS FURTHER ORDERED continuing this matter on the inactive calendar to June
15, 2005.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

01/24/2005

Docket Code 005
Form V000A
Page 2

8:56 a.m. Hearing concludes.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

02/02/2006

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BARRY C. SCHNEIDER
D. Raybon

Deputy

FILED: 02/03/2006

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD

v.

JAMES M RAST, et al.
ROGER R FOOTE

MINUTE ENTRY

The court has received and considered the memoranda and attachments concerning the
application for attorneys fees, objection to costs and objection to form of judgment.

The court finds as follows:

1)
Plaintiff/Counterdefendant is entitled to attorneys fees both on its complaint
and in defense of counterclaim.

2)
A reasonable attorney fee for prosecution of Plaintiff’s claims is $20,000.00.

3)
A reasonable attorney fee for defense of counterclaim is $12,000.00.

As to the objection to costs,

IT IS ORDERED sustaining the objection. Plaintiff/Counterdefendant is awarded
$325.00 for costs.

As to the objection to form of judgment,

IT IS ORDERED sustaining the objection. Plaintiff/Counterdefendant’s counsel shall
lodge an order in accordance with this court’s minute entry.

The proposed judgment is filed unsigned on this date.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

02/06/2004

Docket Code 056
Form V000A
Page 1

CLERK OF THE COURT
JUDGE PENDLETON GAINES
W. Bobrowski

Deputy

FILED: 02/09/2004

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JEFFREY B CORBEN

v.

JAMES M RAST, et al.
JAMES M RAST
12635 S 34TH PLACE
PHOENIX AZ 85044-3527

HEARING SET

9:04 a.m. This is the time set for Return Hearing Re: Order to Show Cause. Plaintiff is
represented by counsel, Jeff Corben. Defendant James Rast is present on his own behalf.

Court Reporter, Michael Vacca, is present.

Discussion is held regarding status of the case.

IT IS ORDERED setting a 15 minute Continued Return Hearing Re: Order to Show
Cause on February 27, 2004 at 9:15 a.m. in this division. All parties are to appear in person at
the next hearing unless the parties have reached an agreement that would affect this lawsuit.

Three days prior to the next Continued Return Hearing, counsel for the Plaintiff is to
supply the Court and Mr. Rast with a brief memorandum supporting the specific relief requested,
i.e., mandatory injunction to require defendant to build two garages and a porch.

9:12 a.m. Hearing concludes.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-001341
02/10/2006
Docket Code 085
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE BARRY C. SCHNEIDER
D. Raybon
Deputy
FILED: 02/14/2006
AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD
v.
JAMES M RAST, et al.
ROGER R FOOTE
MINUTE ENTRY
This is the time set for Telephonic Conference. Plaintiff is represented by counsel,
Traylor E. Richardson. Defendants are represented by counsel, Roger R. Foote.
Court reporter is not present.
Discussion is held between court and counsel.
Counsel shall report back to the court regarding the status of the matter in 10 days from
today’s date.
Matter concludes.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-001341
04/10/2006
Docket Code 078
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE BARRY C. SCHNEIDER
K. Ballard
Deputy
FILED: 04/12/2006
AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
TRAYLOR E RICHARDSON
v.
JAMES M RAST, et al.
ROGER R FOOTE
INACTIVE CALENDAR
8:47 a.m. In chambers. This is the time set for Status Conference.
Appearing
telephonically are Traylor E. Richardson, counsel for Plaintiff, and Roger R. Foote, counsel for
Defendants.
Court reporter is not present.
Discussion is held regarding the status of the case.
Counsel anticipate presenting an approved-as-to-form proposed final judgment disposing
the matter to the court within the next 30 days.
Based upon the foregoing,
IT IS ORDERED placing this matter on the Inactive Calendar for dismissal without
further notice on May 8, 2006 unless prior to that date Judgment is entered or filed, or a
Stipulation for Dismissal is presented, or a Motion to Set and Certificate of Readiness is
submitted.
8:56 a.m. Matter concludes.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

07/20/2004

Docket Code 066
Form V066A
Page 1

CLERK OF THE COURT
HON. MARGARET H. DOWNIE
L. Rasmussen

Deputy

FILED: 07/22/2004

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD

v.

JAMES M RAST, et al.
JAMES M RAST
CHIEN JUI-HSIANG
12635 S 34TH PL
PHOENIX AZ 85044

CASE REASSIGNMENT - CIVIL PRESIDING JUDGE

This case was previously assigned to the Honorable Pendleton Gaines. A Notice of
Change of Judge has been filed by plaintiff. The case was transferred to the Presiding Civil
Judge for reassignment.

IT IS ORDERED that this case be assigned to Civil Calendar CVJ13, the Honorable
Michael A. Yarnell, for all further proceedings. If any objections to the Notice of Change of
Judge are filed, the noticed judge retains jurisdiction to hear and decide the objections. Any
objections must be filed and a copy delivered to the noticed judge within twenty days of the date
of this order.

cc: Judge Yarnell

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

07/21/2005

Docket Code 026
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BARRY C. SCHNEIDER
C. Johnston

Deputy

FILED: 07/25/2005

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD

v.

JAMES M RAST, et al.
ROGER R FOOTE

COMPREHENSIVE PRETRIAL
CONFERENCE SETTING

The Court is in receipt of Plaintiff’s Motion for Sanctions and for Order to Show Cause
re: Contempt.

IT IS ORDERED setting a Comprehensive Pretrial Conference for July 29, 2005 at
8:45 a.m. for 15 minutes before:

HON. BARRY C. SCHNEIDER
Judge of Superior Court of Arizona
201 W. Jefferson - CCB
Courtroom 1301 – 13th Floor
Phoenix, Arizona 85003
(602) 506-3351

LET THE RECORD REFLECT an Evidentiary Hearing date will be set at the
Pretrial Conference on Plaintiff’s Motion for Sanctions and for Order to Show Cause re:
Contempt.

*Counsel for the Plaintiff(s) and Defendant(s) are to meet personally before the Pretrial
Conference to discuss those subjects listed under A.R.C.P., Rule 16(b). Counsel for Plaintiff(s)
and Defendant(s) shall prepare and file a Joint Pretrial Conference Memorandum five judicial

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

07/21/2005

Docket Code 026
Form V000A
Page 2

days before the conference addressing all applicable subjects listed under Rule 16(b) and, in
addition, a brief description of the nature of the case, the issues, and each party’s position
with respect to the issues and the estimated length of the trial.

If Counsel are unable to agree on any of the items in the Joint Pretrial Conference
Memorandum, the reasons for their inability to agree shall be set forth in the memorandum.

Counsel are reminded that the Court may impose sanctions against Counsel and/or their
clients for failure to participate in good faith in the Joint Pretrial Conference Memorandum or the
Pretrial Conference.

COUNSEL ARE TO APPEAR IN PERSON UNLESS OTHERWISE ORDERED
BY THE COURT.

*If a party is unrepresented, references to counsel are to the party.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

07/28/2005

Docket Code 003
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BARRY C. SCHNEIDER
C. Johnston

Deputy

FILED: 08/01/2005

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD

v.

JAMES M RAST, et al.
ROGER R FOOTE

MINUTE ENTRY

The Court is in receipt of Defendant’s Motion to Continue Hearing. No objection by
counsel, and good cause appearing,

IT IS ORDERED continuing Rule 16 Comprehensive Pretrial Conference from July 29,
2005 at 8:45 a.m. to July 29, 2005 at 9:00 a.m. before this division, all in accordance with
formal written Order signed by the Court on July 28, 2005 and entered (filed) by the Clerk on
July 28, 2005.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

07/29/2005

Docket Code 005
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BARRY C. SCHNEIDER
C. Johnston

Deputy

FILED: 08/01/2005

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD

v.

JAMES M RAST, et al.
ROGER R FOOTE

MINUTE ENTRY

9:02 a.m. This is the time set for Rule 16 Comprehensive Pretrial Conference. Plaintiff
is represented by counsel, James Hazlewood. Defendant is represented by counsel, Roger Foote.

Court reporter is not present.

Discussion is held.

IT IS ORDERED setting Contempt Hearing/Trial on Complaint and Counterclaim for
September 16, 2005 at 9:30 a.m. for 1 day before this division.

IT IS FURTHER ORDERED setting Final Pretrial Management Conference for
September 6, 2005 at 8:30 a.m. for 15 minutes.

IT IS FURTHER ORDERED directing counsel to file a Joint Pretrial Statement, Trial
Memorandum addressing legal and factual issues, and proposed findings of fact and conclusions
of law by August 30, 2005.

9:22 a.m. Hearing concludes.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

08/19/2004

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
THE HONORABLE MICHAEL A. YARNELL
M. L. Smith

Deputy

FILED: 08/24/2004

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD

v.

JAMES M RAST, et al.
ROGER R FOOTE

SCOTT CARPENTER

MINUTE ENTRY

The court has received and reviewed Plaintiff’s Request For Hearing Re: Order To Show
Cause.

IT IS ORDERED setting oral argument and return date on the renewed Request For
Order To Show Cause on September 16, 2004 at 4:30 p.m.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

09/06/2005

Docket Code 027
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BARRY C. SCHNEIDER
L. Slaughter

Deputy

FILED: 09/08/2005

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD

v.

JAMES M RAST, et al.
ROGER R FOOTE

MINUTE ENTRY

8:36 a.m. This is the time set for Final Pretrial Management Conference. Plaintiff is
represented by Scott Carpenter for James H. Hazlewood. Defendant is represented by Roger R.
Foote.

Court reporter is not present.

Court and counsel discuss scheduling matters.

IT IS ORDERED vacating the 1 day Contempt Hearing/Trial on Complaint and
Counterclaim set for September 16, 2005 and resetting same to October 21, 2005 at 9:30 a.m.

IT IS FURTHER ORDERED setting a Pretrial Management Conference on October 3,
2005 at 9:00 for 15 minutes in this division,

**NOTE: On September 9, 2005, Judge Schneider’s division will be moving to the
following location:

Courtroom 103, Old Court House,
125 West Washington,
Phoenix, AZ 85003
(602) 506-3351

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

09/06/2005

Docket Code 027
Form V000A
Page 2

*Counsel for the Plaintiff(s) and Defendant(s) are to meet personally before the Pretrial
Conference to discuss those subjects listed under A.R.C.P., Rule 16(b). Counsel for Plaintiff(s)
and Defendant(s) shall prepare and file a Joint Pretrial Conference Memorandum five judicial
days before the conference addressing all applicable subjects listed under Rule 16(b) and, in
addition, a brief description of the nature of the case, the issues, and each party’s position
with respect to the issues and the estimated length of the trial.

If Counsel are unable to agree on any of the items in the Joint Pretrial Conference
Memorandum, the reasons for their inability to agree shall be set forth in the memorandum.

Counsel are reminded that the Court may impose sanctions against Counsel and/or their
clients for failure to participate in good faith in the Joint Pretrial Conference Memorandum or the
Pretrial Conference.

COUNSEL ARE TO APPEAR IN PERSON UNLESS OTHERWISE ORDERED
BY THE COURT.

*If a party is unrepresented, references to counsel are to the party.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

09/16/2004

Docket Code 005
Form V000A
Page 1

CLERK OF THE COURT
THE HONORABLE MICHAEL A. YARNELL
M. L. Smith

Deputy

FILED: 09/21/2004

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD

v.

JAMES M RAST, et al.
ROGER R FOOTE

JAMES ROGER WOOD

MINUTE ENTRY

4:30 p.m. In Chambers.

Time set for return on re-noticed order to show cause. Counsel, James Roger Wood, is
present for James H. Hazlewood who represents Plaintiff. Counsel, Roger R. Foote, is present
for Defendants.

Court Reporter is not present.

The status of this case and the disputes that have arisen related to the parties’ Settlement
Agreement dated February 10, 2004, are discussed.

IT IS ORDERED confirming the filing of Plaintiff’s Amended Verified Complaint on
August 4, 2004. Defendants shall and must answer this Amended Verified Complaint on or
before October 18, 2004.

On the court’s own motion,

IT IS ORDERED the parties shall and must, on or before 5:00 p.m., October 29, 2004,
exchange Rule 26.1 Disclosure Statements as to the Amended Verified Complaint. These
Disclosure Statements shall and must be verified by the clients, not the lawyers.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

09/16/2004

Docket Code 005
Form V000A
Page 2

FURTHER ORDERED all initial motions as to the Amended Verified Complaint shall
and must be filed by 5:00 p.m., December 15, 2004.

FURTHER ORDERED all Responses thereto shall be filed by 5:00 p.m., January 7,
2005.

FURTHER ORDERED all Replies shall be filed by 5:00 p.m., January 18, 2005.

FURTHER ORDERED setting oral argument on all then pending motions at 8:30 a.m.,
January 24, 2005.

LATER:

IT IS ORDERED continuing this matter on the inactive calendar to March 15, 2005.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
09/28/2007 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-001341
09/27/2007
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HON. EDWARD O. BURKE
E. Parrish
Deputy
AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD
v.
JAMES M RAST, et al.
ROGER R FOOTE
ORDER OF THE COURT
The Court has received and reviewed Defendants/Counterclaimants’ Motion to Exceed
Page Limit on Application for Attorney’s Fees and Costs.
Defendants/Counterclaimants’ motion is DENIED.
Counsel and any self-represented parties are advised that the Clerk of the Maricopa
County Superior Court has converted its case files to an electronic format and case files are
no longer made available to the divisions. Therefore it is imperative that counsel follow
Maricopa County Local Rule 3.2 which requires counsel to deliver copies of motions and
responses to the division.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

10/03/2005

Docket Code 064
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BARRY C. SCHNEIDER
D. Raybon

Deputy

FILED: 10/05/2005

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD

v.

JAMES M RAST, et al.
ROGER R FOOTE

BENCH TRIAL AND STATUS CONFERENCE SETTING

9:16 a.m. This is the time set for Rule 16 Comprehensive Pretrial Conference. Plaintiff
is represented by counsel, Traylor Richardson. Defendants are represented by counsel, Roger
Foote.

Court reporter is not present.

Discussion is held between court and counsel.

IT IS ORDERED setting this matter for Status Conference on October 21, 2005 at 9:15
a.m. in this division.

IT IS FURTHER ORDERED vacating the 1-day Bench Trial set on October 21, 2005
and resetting same on November 18, 2004 at 9:30 a.m. in this division.

Counsel shall confer regarding exhibits so duplicates are avoided. At least one week
before trial, counsel or their knowledgeable assistants shall call the division clerk at (602)
506-3351 to discuss procedures for marking exhibits. Original depositions are provided to the
clerk for the record and not marked as exhibits.

9:08 a.m. Matter concludes.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

10/11/2005

Docket Code 021
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BARRY C. SCHNEIDER
D. Raybon

Deputy

FILED: 10/13/2005

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD

v.

JAMES M RAST, et al.
ROGER R FOOTE

MINUTE ENTRY

IT IS ORDERED, nunc pro tunc, amending this Court’s minute entry to reflect that the 1-
day Bench Trial is set for November 18, 2005 at 9:30 a.m., instead of November 18, 2004.

The balance of the minute entry of that date remains unchanged.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

10/21/2005

Docket Code 064
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BARRY C. SCHNEIDER
D. Raybon

Deputy

FILED: 10/24/2005

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD

v.

JAMES M RAST, et al.
ROGER R FOOTE

BENCH TRIAL SETTING – (NON-PRETRIAL MANAGEMENT)

9:19 a.m. This is the time set for Status Conference. Plaintiff is represented by counsel,
Traylor Richardson. Defendants are represented by counsel, Roger Foote.

Court reporter is not present.

Discussion is held regarding the status of the case.

IT IS ORDERED vacating the 1-day Bench Trial set on November 18, 2005 and resetting
this matter for a 4-hour Bench Trial on December 19, 2005 at 1:30 p.m. in this division.

All exhibits shall be exchanged prior to trial. Counsel shall confer regarding exhibits so
duplicates are avoided. At least one week before trial, counsel or their knowledgeable
assistants shall call the division clerk at (602) 506-3351 to discuss procedures for marking
exhibits. Exhibits shall be delivered to the clerk for marking no later than December 14, 2005.
Original depositions are provided to the clerk for the record and not marked as exhibits.

Counsel for Plaintiff has filed a Motion for Summary Judgment and counsel for
Defendants has filed a Cross-Motion for Summary Judgment.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

10/21/2005

Docket Code 064
Form V000A
Page 2

IT IS ORDERED Plaintiff’s shall file a reply to their Motion for Summary Judgment and
a response to Defendants’ Cross-Motion no later than October 28, 2005. Defendants shall file
a reply to their Cross-Motion no later than November 9, 2005.

IT IS FURTHER ORDERED setting this matter for Oral Argument on Pending
Motions for Summary Judgment for November 14, 2005 at 10:30 a.m. in this division.

The court will not honor agreements by the parties to modify the briefing schedule set
forth in the Rules of Civil Procedure unless it is notified in writing of the terms of the agreement
before the rule-imposed deadline expires and the motion is fully briefed at least 5 judicial days
prior to the hearing.

9:29 a.m. Matter concludes.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

11/14/2005

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BARRY C. SCHNEIDER
R. Tomlinson

Deputy

FILED: 11/17/2005

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD

v.

JAMES M RAST, et al.
ROGER R FOOTE

ORDER ENTERED BY COURT

10:50 a.m. This is the time set for Oral Argument on Pending Motions for Summary
Judgment. Present on behalf of the Plaintiff is Traylor Richardson for James Hazlewood and on
behalf of the Defendants is Roger Foote.

Court reporter, Cindy Lineburg, is present

Argument is presented to the court.

For the reasons stated on the record,

IT IS ORDERED GRANTING in part the Plaintiff’s Renewed Motion for Partial
Summary Judgment on Count II. The court finds that the Plaintiff has the authority to impose
deadlines and monetary penalties.

IT IS FURTHER ORDERED DENYING in part the Plaintiff’s Renewed Motion for
Partial Summary Judgment on Count II. The court finds that it is a fact question for trial as to
the reasonable amounts of the monetary penalties.

IT IS FURTHER ORDERED GRANTING Plaintiff’s Motion for Summary Judgment
dismissing counterclaims.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

11/14/2005

Docket Code 023
Form V000A
Page 2

IT IS FURTHER ORDERED DENYING Defendants’ Cross Motion for Summary
Judgment on Liability on the Counterclaims.

LET THE RECORD REFLECT the trial will go forward to determine what, if any, is a
reasonable amount for monetary penalties. The July 27, 2004 settlement date will be adopted as
the date from which the fines will be determined.

11:28 a.m. Matter concludes.

Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
11/21/2007 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-001341
11/14/2007
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HON. EDWARD O. BURKE
T. Melius
Deputy
AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD
v.
JAMES M RAST, et al.
ROGER R FOOTE
MINUTE ENTRY
The following pleadings in this case have been brought to the Court’s attention.
Plaintiff/Counterdefendant, Ahwatukee Custom Estates Management Association, L.L.C.,
(“ACEMA”) filed an Application For Attorneys' Fees and Costs on Remand on August 8, 2007.
Defendants, James M. Rast and Chien Jui-Hsiang filed a Motion to Exceed the Page Limits and a
pleading entitled “Defendants’ / Counterclaimants’ Application For Attorneys Fees and
Response to ACEMA’s Application” on August 23, 2007. On August 23, 2007, Defendants also
filed a pleading entitled “Objection of Fee Application of ACEMA on its Claim and Defense of
Counterclaim” along with two affidavits seeking attorneys’ fees at trial and on appeal. These
pleadings were brought to the Court’s attention on September 12, 2007, and the Motion to
Exceed Page Limits was DENIED on September 12, 2007. The minute entry reflecting the
Court’s denial of the motion was filed September 28, 2007.
To explain the delay in issuing this ruling, the Court points out that after Defendants’
Motion to Exceed Page Limitations was denied, the Court awaited a revised memorandum from
Defendants. When no further pleading was received from Defendants, to assure the Court that
Defendants’ counsel had not overlooked the Court’s ruling denying Defendants’ Motion to
Exceed Page Limitations, the Court asked its judicial assistant to contact Defendants’ counsel re

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-001341
11/14/2007
Docket Code 019
Form V000A
Page 2
the same. On November 8, 2008, Defendants’ counsel advised the Court’s Judicial Assistant
that: “because he had combined two motions in one he was well within the bounds of the page
limits.” The Court disagrees but rather than spend any further time trying to convince
Defendants’ counsel to comply with Maricopa County Local Rule 3.2(b) it has taken the time to
review all of the pleadings filed by Defendants and Plaintiff, along with the Court of Appeals’
Memorandum decision and makes the following rulings.
Three issues are presented to the Court by the parties; i.e. who was the prevailing party
in the trial court; who was the prevailing party in the Court of Appeals; and whether the Court of
Appeals Memorandum Decision bars the Court from considering any application by Plaintiff for
Attorneys Fees.
ACEMA, claiming that it was the prevailing party in both the trial court and the Court of
Appeals, requests attorneys fees of $19,871.40 for successfully defeating Defendants’
counterclaim in the trial court; $38,415.78 for pursing its complaint in the trial court plus
$325.00 in costs, and $8002.50 for attorneys fees incurred in the Court of Appeals. Its request is
made under its Article IX Section 7 of its Declaration of Covenants, Conditions, and Restrictions
(“CC&Rs”) and A.R.S. § 12-341.01. The attorneys' fee provision in the CC&Rs allows ACEMA
to sue to enforce the provisions of the CC&Rs and provides that the non-prevailing party in any
such action shall pay the prevailing party’s reasonable attorneys fees.
Defendants, claiming that that they are the prevailing party in both the trial court and the
Court of Appeals, object to any award of fees or costs to ACEMA and seek attorneys fees of
$38,800.00, computerized legal research costs of $902.40, and taxable costs of $1,411.80 under
A.R.S. §12-341.01.
ACEMA filed this action on January 22, 2004, seeking an injunction to compel
Defendants to complete construction work on their home within 30 days as required by the
CC&Rs. On August 4, 2004, ACEMA filed an amended complaint seeking both injunctive relief
and an award of monetary penalties and contractual damages. Defendants filed a counterclaim
against ACEMA claiming breach of contract and requesting monetary and injunctive relief. After
a hearing, the trial court, the Hon. Barry Schneider, ordered Defendants to complete construction
on or before June 8, 2005. Defendants failed to complete construction by that date and did not
complete construction until just before the entry of judgment on May 3, 2006. ACEMA claims
that Defendants ignored twelve separate deadlines to complete construction. Judge Schneider
dismissed Defendants’ counterclaim and awarded ACEMA $15,000.00 in monetary penalties
against Defendants and $32,325.00 in attorneys' fees.
Defendants appealed from the judgment against them and ACEMA cross-appealed. The
Court of Appeals reversed holding that ACEMA did not have the authority to levy fines against

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-001341
11/14/2007
Docket Code 019
Form V000A
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its members and it vacated the entire judgment including the award of attorneys' fees to
ACEMA. The dismissal of Defendants’ counterclaim was affirmed. The Court of Appeals
remanded the case to this court to determine which, if any, party was the prevailing party. Both
parties requested attorneys’ fees on appeal. Both requests for attorneys fees on appeal were
denied but the Court of Appeals said that this court may consider the fees incurred by the
prevailing party on appeal in determining whether and how much to award as reasonable
attorneys’ fees. Defendants were awarded their costs on appeal.
The prevailing party for the purpose of awarding attorneys fees is determined as follows.
In Huey v. Honeywell, 82 F.3d 329, 33 (Ct. App. 9th Cir. 1996) the court said:
“A.R.S. § 12-341.01 provides that in “any contested action arising out of a contract,
express or implied, the court may award the successful party reasonable attorney's fees.”
The Arizona Supreme Court in Wagenseller held that a party who appeals and succeeds
in reversing the trial court's entry of summary judgment is a “successful party” within in
the meaning of A.R.S. § 12-341.01, and is thus eligible to recover attorney's fees.
Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 710 P.2d 1025, 1048 (1985).
However, because success on appeal was equally shared by both parties, both parties'
requests for attorney's fees and costs are denied.”
In Fisher v. National General Insurance Company, 192 Ariz. 366, 369-370, 965 P.2d 100
(1998) the court said:
“NGIC argues that the trial court should have awarded attorneys' fees under A.R.S.
sections 12-341.01(C) and 12-349 . To award sanctions under these statutes the court
must determine that the party's claim: (1) constitutes harassment; (2) is groundless; and
(3) is not made in good faith. All three elements must be shown and the trial court must
make appropriate findings of fact and conclusions of law. State v. Richey, 160 Ariz. 564,
565, 774 P.2d 1354, 1355 (1989); Gilbert v. Board of Med. Exam'rs, 155 Ariz. 169, 180,
745 P.2d 617, 628 (App.1987). See also A.R.S. § 12-349(F). Under A.R.S. section 12-
341.01(C), the court must find these elements by clear and convincing evidence, Richey,
160 Ariz. at 565, 774 P.2d at 1355; under A.R.S. section 12-349, the standard is
preponderance of the evidence. Phoenix Newspapers, Inc. v. Department of Corrections,
188 Ariz. 237, 244, 934 P.2d 801, 808 (App.1997).”
In Sanborn v. Brooker and Wake Property Management, Inc. 179 Ariz 425, 430, 894 P.2d
982 (App. 1994) the Court said:
“The decision as to who is the successful party for purposes of awarding attorneys'
fees is within the sole discretion of the trial court, and will not be disturbed on appeal if

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-001341
11/14/2007
Docket Code 019
Form V000A
Page 4
any reasonable basis exists for it. Schwartz v. Farmers Ins. Co., 166 Ariz. 33, 800 P.2d 20
(App.1990). While the award of money is an important item to consider when deciding
who is the prevailing party, the fact that a party does not recover the full measure of relief
it requests does not mean that it is not the successful party.”
And,
In Altfillisch Const. Co. v. Torgerson Const. Corp., 140 Ariz. 438, 440, 586 P.2d 994
(App. 1978) the court said:
“Seller argues that Trollope v. Koerner, 21 Ariz.App. 43, 515 P.2d 340 (1973),
requires the successful party to win a net monetary judgment. A successful party does not
necessarily win a monetary judgment. National Mutual Insurance Co. v. Granillo, 117
Ariz. 389, 573 P.2d 80 (App.1977). Neither party in Trollope sought possession of
property. The party prevailing on a claim for possession of property is a “successful
party” within the meaning of A.R.S. Sec. 12-341.01.”
Applying these principles to this case, the Court finds that, notwithstanding that the
dismissal of Defendants counterclaim was upheld by the Court of Appeals, Defendants were the
prevailing party in the Court of Appeals, but ACEMA was the prevailing party in the trial curt.
Considering these findings, and for the reasons set forth in ACEMA’s memoranda, in the
exercise of its discretion, the Court awards ACEMA the sum of $35,000.00 for its attorneys' fees
and $325.00 for its costs incurred in the trial court.
Defendants’ Application for Attorneys’ Fees is DENIED.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

12/19/2005

Docket Code 012
Form V000A
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CLERK OF THE COURT
HONORABLE BARRY C. SCHNEIDER
D. Raybon

Deputy

FILED: 12/20/2005

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD

v.

JAMES M RAST, et al.
ROGER R FOOTE

BENCH TRIAL MINUTE ENTRY

Prior to commencement of trial, Plaintiff’s Exhibits 1 through 11 and 34, and
Defendants’ Exhibits 12 through 33 and 35 are marked for identification.

FILED: Deposition of John Opilowsky dated August 22, 2005

1:39 p.m. Trial to the court. Plaintiff is represented by counsel, Scott Carpenter and Tray
Richardson. Defendant, James Rast, is present and represented by counsel, Roger Foote.

Court Reporter, Cindy Lineburg, is present.

Neither counsel invokes the Rule of Exclusion of Witnesses.

Discussion is held.

Plaintiff’s Exhibits 1 through 11 and 34, and Defendants’ Exhibits 12 through 33 and 35
are received in evidence.

Opening statements are presented.

Plaintiff’s case:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

12/19/2005

Docket Code 012
Form V000A
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John Opilowsky is sworn and testifies.

The witness is excused.

Plaintiff rests.

Defendants’ case:

James Rast is sworn and testifies.

The witness is excused.

Defendants rest.

3:03 p.m. Court stands at recess.

3:21 p.m. Court reconvenes with respective parties and counsel present.

Court Reporter, Cindy Lineburg, is present.

Plaintiff’s Exhibit 36 is marked for identification and stipulated/received in evidence.

Closing arguments are presented.

IT IS ORDERED taking this matter under advisement

3:55 p.m. Matter concludes.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2004-001341

12/20/2005

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BARRY C. SCHNEIDER
D. Raybon

Deputy

FILED: 12/21/2005

AHWATUKEE CUSTOM ESTATES
MANAGEMENT ASSOCIATION
JAMES H HAZLEWOOD

v.

JAMES M RAST, et al.
ROGER R FOOTE

MINUTE ENTRY

A bench trial was held on December 19, 2005. This matter has been under advisement.

Defendant Rast’s position regarding his interpretation of the February 2004 settlement
agreement is revealing. The agreement provides that Defendant shall complete construction by a
given date. It does not say that Defendant shall use his best efforts. It is disingenuous to say it
does. That Defendant has such a position, by itself, signifies to the court that a penalty is
appropriate.

It is also significant to the court that from a public policy perspective, it is important for
the Plaintiff that its monetary fine policy be enforceable. If you take the May 2003 date as the
reasonable start date, and if you allow 18 months for completion, the project should have been
completed by December of 2004. It is now approximately one year later. If the Plaintiff is to be
effective in enforcing construction deadlines on other homeowners, it must be able to enforce the
monetary fine policy. The purpose of the monetary fine policy is not only to motivate the
homeowner who is the subject of enforcement, but to set an example so that others will also
comply.

In determining a reasonable amount of the penalty, the court has also considered that, at
least since January 2005, Defendant appears to have made reasonable efforts to complete the
project.

SUPERIOR COURT OF ARIZONA
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Considering all these factors, the court finds that a reasonable monetary penalty is
$15,000.00.

The court recognizes that the issue of entitlement to attorney’s fees has not been litigated.
Nevertheless, in determining that a monetary penalty is to be awarded, the court has essentially
declared Plaintiff to be the prevailing party both on the complaint and the counterclaim. In the
exercise of its discretion, and for reasons similar to those given in support of imposing a penalty,
the court is of the opinion that Plaintiff is entitled to recover its attorney’s fees pursuant to A.R.S.
§12-341.01.

In the hope of shortening the amount of fees yet to be incurred, it is suggested that
Plaintiff file a China Doll affidavit together with a proposed judgment. Defendant can, for the
record, and perhaps to persuade the court, set forth its position as to why Plaintiff should not be
entitled to attorney’s fees, as well as contest the amount. Plaintiff may then file a reply
addressing all issues raised by Defendant in the response.

Lastly, the court declines to enter an order authorizing the imposition of future monetary
penalties. The proposed judgment should provide that the court retains jurisdiction for this
purpose.

FILED: Exhibit Worksheet

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