04/18/2005 — CV2004005254 KRAFT, TROY 04/18/2005 HONORABLE PETER C. REINSTEIN View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-005254
04/18/2005
Docket Code 089
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE PETER C. REINSTEIN
M. Sahli
Deputy
FILED: 04/19/2005
TROY KRAFT
JAMES L TANNER
v.
GRACE A PALAIA, et al.
JONATHAN D SCHNEIDER
SCOTT CARPENTER
MINUTE ENTRY
9:35 a.m. In chambers. This is the time set for Telephonic Comprehensive Pretrial
Conference. Plaintiff is represented by counsel, James Tanner who is present in chambers.
Defendant is represented by counsel, Jonathan Schneider who appears telephonically.
No court reporter is present.
Discussion is held.
IT IS ORDERED Adopting by reference, as an Order of the Court, the Joint Pretrial
Statement. The terms of the memorandum shall govern, unless inconsistent with any provisions
of this minute entry. References to “counsel” shall be read to include unrepresented parties.
IT IS FURTHER ORDERED setting this matter for a 3-day jury trial for Wednesday,
October 5, 2005.
The Honorable PETER C. REINSTEIN
Maricopa County Superior Court
Old Courthouse
125 W. Washington, Courtroom 303
Phoenix, Arizona 85003
(602) 506-6368
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-005254
04/18/2005
Docket Code 089
Form V000A
Page 2
THIS IS A FIRM TRIAL SETTING
Trial days are normally 9:30 a.m. to 4:30 p.m., Tuesday through Friday.
PRETRIAL MOTIONS:
1.
All dispositive motions shall be filed at least 90 days before trial.
2.
Any Motions in Limine shall be filed thirty (30) days before the PTMC.
Motions in Limine may and shall be filed only in accordance with Rule 7.2, Rules
of Civil Procedure (effective December 1, 2004). Prior to filing any Motion in
Limine, the parties must meet and confer. Unless prior written leave of court is
obtained for good cause shown, no party may file more than three (3) Motions in
Limine, including all subparts.
3.
All other pretrial motions shall be filed at least 60 days before trial. Motions not
filed in accordance with these deadlines will not be considered.
A Pretrial Management Conference (PTMC) is set for September 26, 2005 at 9:30 a.m.
in this division. Time allotted: 30 minutes.
At the PTMC, counsel who will try the case shall appear and be prepared to discuss and
resolve:
A.
Time limits for voir dire, opening statements, witness examinations and
closing arguments.
B.
Stipulations and objections regarding witnesses and exhibits. If time
permits, the court will rule on objections.
C.
Jury instructions, juror notebooks and verdict forms.
D.
Deposition summaries and excerpts from depositions including objections
thereto.
E.
Scheduling, equipment or interpreter issues.
F.
Status of settlement efforts.
G.
Motions in limine and other pending motions.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-005254
04/18/2005
Docket Code 089
Form V000A
Page 3
H.
Other matters addressed in the updated joint pretrial statement.
A joint pretrial statement (JPTS) is due three judicial days before the PTMC. The
following shall be filed with the JPTS:
A.
Proposed voir dire questions.
B.
A list to be read to the jury with names of all witnesses who may testify.
C.
A set of agreed-upon jury instructions.
D.
Separate sets of requested instructions that have not been agreed upon.
(Review Rosen v. Knaub, 175 Ariz. 329, 857 P.2d 381 (1993) and the
RAJI Civil 3d Statement of Purpose before requesting non-RAJI
instructions.)
E.
Proposed findings of fact and conclusions of law (if a request for same has
been or will be filed).
F.
A stipulated brief summary of the case, which the court can read at the
outset of voir dire.
*** ATTORNEYS AND ASSISTANTS---PLEASE READ NUMBER G CAREFULLY***
G.
All exhibits shall be exchanged 30 days before trial. Counsel shall confer
regarding exhibits so that duplicates are avoided. Counsel or their designated representative
shall call the division clerk at (602) 506-3813 no later than 10:00 a.m. ten days before trial
to make arrangements for marking exhibits and to inform the clerk the number of exhibits
counsel intend to mark for identification prior to trial. The exhibits will be marked serially
with Plaintiff's first, Defendant's second. Counsel shall advise the clerk, by signed stipulation or
on the record, which exhibits may be marked directly into evidence. Original depositions are
provided to the clerk for the record and are not marked as exhibits.
One day’s jury fees will be assessed unless the court is notified of settlement by 2:00 p.m.
on the judicial day before trial.
9:38 a.m. Matter concludes.
05/13/2004 — CV2004005254 KRAFT, TROY 05/13/2004 HONORABLE PETER C. REINSTEIN View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-005254
05/13/2004
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE PETER C. REINSTEIN
M. Sahli
Deputy
FILED: 05/14/2004
TROY KRAFT
JAMES L TANNER
v.
GRACE A PALAIA, et al.
MICHAEL K KENNEDY
SCOTT CARPENTER
MINUTE ENTRY
The Court has reviewed Defendant Grayhawk’s Motion to Dismiss for Failure to State a
Claim and Request for Sanctions, Plaintiff’s Response, and the Reply. The Court finds that
because of the comprehensive briefs filed in conjunction with the Motion, oral argument is not
required.
The Plaintiff’s claims that Grayhawk has failed to enforce certain CC & R provisions
against Defendant Palaia, who, according to Plaintiff, maintains a pool pump motor that is a
nuisance because of the noise that it emits.
Grayhawk maintains that it has no contractual or legal obligation to initiate an
enforcement action against the nuisance which Plaintiff has alleged.
The Court finds that pursuant to Article III § 3.5 of the CC & R’s, Grayhawk is given the
power to decide whether a nuisance exits. In the present case, Grayhawk’s Architectural
Committee made the determination that the pool pump motor did not constitute a nuisance.
Further, there has been no allegation that the procedures used by said Committee to arrive at its
determination were improper. Plaintiff has filed a cause of action against Ms. Palaia, the owner
of the pool pump. Grayhawk is not a proper defendant in this matter.
Accordingly, the Court finds that Plaintiff has failed to state a claim against Grayhawk
and therefore,
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-005254
05/13/2004
Docket Code 019
Form V000A
Page 2
IT IS ORDERED granting the Motion to Dismiss pursuant to Rule 12(b)6 Ariz. R. Civ.
Proc.
Finally,
IT IS ORDERED that each party shall bear its own costs and fees.
05/17/2005 — CV2004005254 KRAFT, TROY 05/17/2005 HONORABLE PETER C. REINSTEIN View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-005254
05/17/2005
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE PETER C. REINSTEIN
M. Sahli
Deputy
FILED: 05/19/2005
TROY KRAFT
JAMES L TANNER
v.
GRACE A PALAIA, et al.
JONATHAN D SCHNEIDER
SCOTT CARPENTER
ORAL ARGUMENT SET
The Court having received Defendant Grace Palaia’s Motion for Partial Summary
Judgment Regarding Punitive Damages,
IT IS ORDERED setting oral argument for May 31, 2005, at 10:00 a.m., before:
The Honorable PETER C. REINSTEIN
Maricopa County Superior Court
Old Courthouse
125 W. Washington, Courtroom 303
Phoenix, Arizona 85003
(602) 506-6368
If counsel cite significant out-of-state case law, the Court will appreciate receiving a copy
of the case law with the Court’s copy of the pleading.
06/02/2005 — CV2004005254 KRAFT, TROY 06/02/2005 HONORABLE PETER C. REINSTEIN View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-005254
06/02/2005
Docket Code 078
Form V078A
Page 1
CLERK OF THE COURT
HONORABLE PETER C. REINSTEIN
M. Sahli
Deputy
FILED: 06/06/2005
TROY KRAFT
JAMES L TANNER
v.
GRACE A PALAIA, et al.
JONATHAN D SCHNEIDER
SCOTT CARPENTER
INACTIVE CALENDAR
The Court is advised this case has been settled.
IT IS ORDERED placing this matter on the Inactive Calendar for dismissal on
August 2, 2005 without further notice unless prior to said date Judgment is entered or filed, a
Stipulation for Dismissal is presented, or a Motion to Set and Certificate of Readiness is filed.
IT IS FURTHER ORDERED vacating Pretrial Management Conference set for
September 26, 2005 and Trial set for October 5, 2005.
08/06/2004 — CV2004005254 KRAFT, TROY 08/06/2004 HONORABLE PETER C. REINSTEIN View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-005254
08/06/2004
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE PETER C. REINSTEIN
M. Sahli
Deputy
FILED: 08/09/2004
TROY KRAFT
JAMES L TANNER
v.
GRACE A PALAIA, et al.
JONATHAN D SCHNEIDER
SCOTT CARPENTER
ORAL ARGUMENT SET
The Court having received Defendant Grace Palaia’s Motion to Dismiss,
IT IS ORDERED setting oral argument for August 19, 2004, at 9:00 a.m., before:
The Honorable PETER C. REINSTEIN
Maricopa County Superior Court
Old Courthouse
125 W. Washington, Courtroom 303
Phoenix, Arizona 85003
(602) 506-6368
If counsel cite significant out-of-state case law, the Court will appreciate receiving a copy
of the case law with the Court’s copy of the pleading.
08/19/2004 — CV2004005254 KRAFT, TROY 08/19/2004 HONORABLE PETER C. REINSTEIN View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-005254
08/19/2004
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE PETER C. REINSTEIN
M. Sahli
Deputy
FILED: 08/20/2004
TROY KRAFT
JAMES L TANNER
v.
GRACE A PALAIA, et al.
JONATHAN D SCHNEIDER
SCOTT CARPENTER
ALTERNATIVE DISPUTE
RESOLUTION - CCC
MINUTE ENTRY
9:00 a.m. This is the time set for Oral Argument re Defendant’s Motion to Dismiss.
Plaintiff is represented by counsel, James Tanner. Defendant is represented by counsel, ReNae
Nahman.
Court reporter, Judie Bryant is present.
Argument is heard.
The Court finds that the initial matter heard in municipal court is not barred by reason of
res judicata. Accordingly,
IT IS ORDERED denying the Motion.
Pursuant to Stipulation of the parties,
IT IS ORDERED referring this matter to the Court’s Alternative Dispute Resolution
Office for the appointment of a Judge Pro Tempore to conduct a settlement conference. Counsel
and/or the parties are instructed that ADR will not set the settlement conference and, therefore,
they should not contact the office of ADR. Counsel and/or the parties will be notified by ADR
by minute entry upon the appointment of a Judge Pro Tempore and at that time, should contact
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-005254
08/19/2004
Docket Code 023
Form V000A
Page 2
the appointed Judge Pro Tempore to arrange the time and location for the settlement conference.
The Judge Pro Tempore is requested to conduct a settlement conference not later than
November 19, 2004.
9:05 a.m. Matter concludes.
09/29/2004 — CV2004005254 KRAFT, TROY 09/29/2004 HONORABLE PETER C. REINSTEIN View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-005254
09/29/2004
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE PETER C. REINSTEIN
M. Sahli
Deputy
FILED: 10/01/2004
TROY KRAFT
JAMES L TANNER
v.
GRACE A PALAIA, et al.
JONATHAN D SCHNEIDER
SCOTT CARPENTER
ORAL ARGUMENT SET
The Court having received Defendant Grace Palaia’s Motion to Dismiss Breach of
Contract Claim,
IT IS ORDERED setting oral argument for October 14, 2004, at 10:00 a.m., before:
The Honorable PETER C. REINSTEIN
Maricopa County Superior Court
Old Courthouse
125 W. Washington, Courtroom 303
Phoenix, Arizona 85003
(602) 506-6368
If counsel cite significant out-of-state case law, the Court will appreciate receiving a copy
of the case law with the Court’s copy of the pleading.
10/14/2004 — CV2004005254 KRAFT, TROY 10/14/2004 HONORABLE PETER C. REINSTEIN View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-005254
10/14/2004
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE PETER C. REINSTEIN
M. L. Smith
Deputy
FILED: 10/15/2004
TROY KRAFT
JAMES L TANNER
v.
GRACE A PALAIA, et al.
JONATHAN D SCHNEIDER
SCOTT CARPENTER
MINUTE ENTRY
The court has considered Defendant Grace Palaia’s Motion to Dismiss Breach of
Contract Claim, the Plaintiff’s Response, and the Reply. The court has also heard arguments of
counsel. Based upon the court’s consideration of the above, the court makes the following
findings and ruling.
The court finds that the Arizona Supreme Court’s decision in Barmat v. John and Jane
Doe Partners A-D, 155 Ariz 519 (1987), is dispositive of the issue at bar. In Barmat at 533, the
court made it clear that:
“Where the implied contract does no more than place the parties in a relationship
in which the law then imposes certain duties recognized by public policy, the gravamen
of the subsequent action for breach is tort, not contract.”
Therefore, applying that reasoning to the present case, given the relationship of Mr. Kraft
and Ms. Palaia as members of a community association, any duty breached would sound in tort
rather than contract.
Accordingly,
IT IS ORDERED granting the Defendant’s Motion to Dismiss
10/14/2004 — CV2004005254 KRAFT, TROY 10/14/2004 HONORABLE PETER C. REINSTEIN View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-005254
10/14/2004
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE PETER C. REINSTEIN
M. L. Smith
Deputy
FILED: 10/15/2004
TROY KRAFT
JAMES L TANNER
v.
GRACE A PALAIA, et al.
JONATHAN D SCHNEIDER
SCOTT CARPENTER
MINUTE ENTRY
10:07 a.m. In the courtroom. This is the time set for hearing oral argument on
Defendant’s Motion to Dismiss Breach of Contract Claim. Plaintiff is represented by counsel,
James L. Tanner. Defendant is represented by counsel, Jonathan D. Schneider.
Court Reporter, Judie Bryant, is present.
Oral argument is presented to the court.
IT IS ORDERED taking this matter under advisement.
10:25 a.m. Hearing concludes.
10/25/2005 — CV2004005254 KRAFT, TROY 10/25/2005 HONORABLE PETER C. REINSTEIN View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-005254
10/25/2005
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE PETER C. REINSTEIN
M. Sahli
Deputy
FILED: 10/27/2005
TROY KRAFT
JAMES L TANNER
v.
GRACE A PALAIA, et al.
JONATHAN D SCHNEIDER
SCOTT CARPENTER
MINUTE ENTRY
The Court having received Defendant Grace A. Palaia’s Motion to Vacate Order of
8/14/05 and there being no Response,
IT IS ORDERED granting the Motion.
