01/07/2005 — CV2004020533 COMMUNITY CLUB, DREAMLAND VILLA 01/07/2005 HONORABLE JANET E. BARTON View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-020533
01/07/2005
Docket Code 005
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JANET E. BARTON
D. Caggiano
Deputy
FILED: 01/11/2005
RON EHNINGER, et al.
ASA WILLIAM MARKEL
v.
DREAMLAND VILLA COMMUNITY CLUB
JILL TSIAKILOS
HEARING
9:24 a.m. In the courtroom. Plaintiffs are represented by counsel, Asa Markel and Scott
Zerlaut. Defendants are represented by counsel, Jill Tsiakilos and Scott Carpenter. Scott
Zimmerman, President Dreamland Villa Community Club is present.
Court reporter Cindy Benner is present.
On January 4, 2005, this Court received notice that Plaintiffs were withdrawing their
Application for a Preliminary Injunction. Pursuant to that notice, this Court vacated the
Preliminary Injunction Hearing scheduled for this date.
Due to a miscommunication, counsel and several interested parties appeared for a hearing
at 9:30 a.m. Counsel informed the Court there had been several pleadings filed in this matter.
Upon investigation, it was found that the pleadings in question were time stamped 4:27 p.m. on
January 6, 2005, which did not give the Court notice or time to review the documents.
The Court informs counsel and parties that hearings will be set in the regular course when
issues ripe for adjudication are properly before the Court.
9:32 a.m. Matter concludes.
03/04/2005 — CV2004020533 COMMUNITY CLUB, DREAMLAND VILLA 03/04/2005 HONORABLE JANET E. BARTON View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-020533
03/04/2005
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JANET E. BARTON
D. Caggiano
Deputy
FILED: 03/07/2005
RON EHNINGER, et al.
ASA WILLIAM MARKEL
v.
DREAMLAND VILLA COMMUNITY CLUB
JILL TSIAKILOS
ORAL ARGUMENT SET
IT IS ORDERED setting Oral Argument on March 28, 2005 at 2:30 p.m. re:
Defendant’s Reurged and Amended Motion to Dismiss.
The parties are to appear before Honorable Janet E. Barton, Courtroom 301, Old
Courthouse, 125 West Washington St., Phoenix, AZ 85003, 602.506.5340.
03/28/2005 — CV2004020533 COMMUNITY CLUB, DREAMLAND VILLA 03/28/2005 HONORABLE JANET E. BARTON View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-020533
03/28/2005
Docket Code 005
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JANET E. BARTON
M. L. Smith
Deputy
FILED: 03/31/2005
RON EHNINGER, et al.
ASA WILLIAM MARKEL
v.
DREAMLAND VILLA COMMUNITY CLUB
JILL TSIAKILOS
MINUTE ENTRY
2:30 p.m. This is the time set for hearing oral argument on Defendant’s Reurged and
Amended Motion to Dismiss. Plaintiffs Cathy Ehninger and Dorothy Jones are present and
represented by counsel, Asa William Markel. Defendant Dreamland Villa Community Club is
represented by counsel, Jill Tsiakilos. Howard Zimmerman, a representative of Defendant is
present.
Court Reporter, Margie Riley, is present.
Discussion is held.
IT IS ORDERED taking this matter under advisement.
Plaintiff’s Motion for Rule 56(f) Relief is discussed.
3:18 p.m. Hearing concludes.
05/27/2005 — CV2004020533 COMMUNITY CLUB, DREAMLAND VILLA 05/27/2005 HONORABLE JANET E. BARTON View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-020533
05/27/2005
Docket Code 042
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JANET E. BARTON
D. Caggiano-Sapp
Deputy
FILED: 05/30/2005
RON EHNINGER, et al.
ASA WILLIAM MARKEL
v.
DREAMLAND VILLA COMMUNITY CLUB
JILL TSIAKILOS
RULING
On March 28, 2005, the Court heard oral argument on Defendant Dreamland Villa
Community Club’s (“Dreamland’s”) Reurged and Amended Motion to Dismiss Pursuant to
Ariz.R.Civ.Pro. 12(b)(6) (“Motion to Dismiss”). The Court also requested certain additional
information from the parties. As of April 6, 2005 that additional information, and all pleadings
in connection therewith, had been filed with the Court and the Court deemed the matter to be
under advisement. With respect to Dreamland’s Motion to Dismiss the Court now rules as
follows.1
In Count I of their Complaint, Plaintiffs challenge the corporate acts taken by Dreamland
at the January 2004 meeting. Dreamland contends that pursuant to A.R.S. §10-3304(B)(1),
Plaintiffs lack standing to pursue such a challenge.
A.R.S. §10-3304 provides that the validity of a non-profit corporation’s corporate action
shall not be challenged except as provided in subsection B.2 A.R.S. §10-3304(B)(1) provides
that if the non-profit corporation is not a condominium association or a planned community
association then the challenge must be in a proceeding against the corporation that is brought by
members of the corporation “having at least ten per cent or more of the voting power or by at
1Dreamland’s Motion to Dismiss clearly relies upon and presents matters outside the pleadings. Therefore, pursuant
to Rule 12(b), Ariz.R.Civ.P., the Court has treated Dreamland’s Motion to Dismiss as a Motion for Summary
Judgment.
2 It is undisputed that Dreamland is a non-profit corporation.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-020533
05/27/2005
Docket Code 042
Form V000A
Page 2
least fifty members, unless a lesser percentage or number is provided in the articles of
incorporation. . . .”
The six named Plaintiffs in this matter admittedly do not represent ten per cent or more of
Dreamland’s voting power. Indeed, several of the named Plaintiffs were not even members of
Dreamland at the time the corporate actions at issue herein occurred.
Plaintiffs argue that A.R.S. §10-3304(B)(1) is inapplicable for either of two reasons.
First, they argue that Dreamland is a planned community association and, therefore, A.R.S. §10-
3304(B)(2) applies. A.R.S. §10-3304(B)(2) allows any member of a planned community
association to bring a proceeding to enjoin or challenge the validity of an association’s act.
Because certain of the Plaintiffs were members of Dreamland at the time of the January 2004
meeting, Plaintiffs contend that they do, indeed, have standing to challenge the corporate acts at
issue herein.
The Court disagrees with Plaintiffs’ position that A.R.S. §10-3304(B)(2) is applicable
herein. At the January 2004 meeting when Dreamland took the corporate acts at issue,
Dreamland was not a planned community association, as defined in A.R.S. §33-1802. In other
words, Plaintiffs are not challenging acts taken by a planned community association. Rather,
they are challenging acts taken by a non-profit corporation which resulted in that corporation
becoming a planned community association. Thus, in this Court’s opinion, A.R.S. §10-
3304(B)(1) is applicable herein.
The second argument raised by Plaintiffs is that A.R.S. §10-3601(B) has priority over
A.R.S. §10-3304(B)(1).3 Plaintiffs base their contention in this regard on the holding in
Shamrock v. Wagon Wheel Park Homeowners Ass., 206 Ariz. 42, 75 P.3d 132 (App. 2003).
Once again, the Court disagrees.
Shamrock did not, nor was it required to, address whether A.R.S. §10-3601(B) has
priority over A.R.S. §10-3304(B)(1). According to the holding in Shamrock, the acceptance of a
deed containing deed restrictions is binding upon the property owner. In addition, deed
restrictions that allow for amendments thereto by a majority of the membership are expansive
enough to allow for the passage of an amendment requiring membership in a non-profit
homeowners’ association. 206 Ariz. at 45-46, 75 P.3d 135-136. Thus, there has been no
violation of A.R.S. §10-3601(B) herein because by consenting to be bound by deed restrictions
that can be amended by a majority of the membership, Plaintiffs have impliedly consented to be
bound by a properly passed and recorded amendment requiring membership in a non-profit
homeowners’ association.
3 A.R.S. §10-3601(B) provides that “[n]o person shall be admitted as a member [to a non-profit corporation] without
that person’s consent. Consent may be express or implied.”
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-020533
05/27/2005
Docket Code 042
Form V000A
Page 3
For the reasons set forth above, the Court agrees with Dreamland that the named
Plaintiffs lack standing to challenge the corporate acts taken by Dreamland at the January 2004
meeting.
In Count II of their Complaint, Plaintiffs allege that Dreamland, through its agents and
employees, intentionally, recklessly or negligently misrepresented or concealed the true purpose
for and effect of the Second Amended Declaration of Restrictions when soliciting signatures for
its passage.4 See Count II of Plaintiffs’ Amended Complaint. According to Plaintiffs, because of
this alleged misconduct, the Second Amended Restrictions should be declared null and void and
Plaintiffs should be awarded monetary damages. See Plaintiffs’ Amended Complaint.
Dreamland argues that Plaintiffs also lack standing to pursue this claim.
Necessary elements for any claim of intentional, reckless or negligent misrepresentation
or concealment are reasonable reliance to the plaintiff’s detriment. See St. Joseph’s Hosp. and
Medical Center v. Reserve Life Ins. Co., 154 Ariz. 303, 742 P.2d 804 (App. 1986) (elements for
a negligent misrepresentation claim include false information that is justifiably relied upon
causing damage); and Echols v. Beauty Built Homes, Inc., 132 Ariz. 498, 647 P.2d 629 (1982)
(Showing of fraud requires hearer’s reliance on truth of false representation, hearer’s right to
rely, and a consequent and proximate injury). Here, even if the alleged misrepresentations were
made to the Plaintiffs intentionally, recklessly and/or negligently, with the express purpose of
inducing Plaintiffs to vote for and/or sign the Second Amended Declaration for their section,
they simply cannot prove that they relied on the alleged misrepresentations to their detriment.
That is because it is undisputed that none of the Plaintiffs herein voted for and/or signed the
Declaration. Thus, the Court agrees with Dreamland that these Plaintiffs lack standing and/or
cannot prevail as a matter of law on their claims of intentional, reckless or negligent
misrepresentation.
Plaintiffs’ final claim is for monetary damages pursuant to A.R.S. §33-420. See Count
IV of Plaintiffs’ Amended Complaint. This Court is of the opinion that Plaintiffs lack standing
to pursue that claim for the same reason they lack standing to pursue the claims asserted in Count
I of their Complaint.
For the reasons set forth above,
IT IS ORDERED granting Dreamland’s Motion to Dismiss and dismissing, without
prejudice, Plaintiff’s Amended Complaint.5
4 The Second Amended Declaration of Restrictions at issue, which are presumably the Second Amended
Declarations for sections 3, 5, 14, and 16 (the sections in which the named Plaintiffs reside) were admittedly passed
by a majority of the then owners of the lots in those sections.
5 The Court makes no findings herein as to the validity of the allegations Plaintiffs have made against Dreamland.
The Court is simply of the opinion that these Plaintiffs do not have standing to pursue those allegations.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-020533
05/27/2005
Docket Code 042
Form V000A
Page 4
In addition, because the Court is of the opinion that Plaintiffs cannot cure the standing
defects discussed above by conducting discovery,
IT IS FURTHER ORDERED denying Plaintiffs’ request for relief pursuant to Rule
56(f), Ariz.R.Civ.P. See Plaintiffs’ Request for Denial or Continuance of Defendant’s Putative
Motion for Summary Judgment.
/s/ Janet E. Barton
____________________________________
HONORABLE JANET E. BARTON
JUDGE OF THE SUPERIOR COURT
08/11/2005 — CV2004020533 COMMUNITY CLUB, DREAMLAND VILLA 08/11/2005 HONORABLE JANET E. BARTON View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-020533
08/11/2005
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JANET E. BARTON
M. L. Smith
Deputy
FILED: 08/15/2005
RON EHNINGER, et al.
ASA WILLIAM MARKEL
v.
DREAMLAND VILLA COMMUNITY CLUB
JILL TSIAKILOS
RULING
The Court has received and reviewed Defendant Dreamland Villa Community Club’s
(“Dreamland’s”) Application in Support of Attorneys’ Fees and Costs, filed on June 8, 2005,
Dreamland’s Affidavits Regarding Attorneys’ Fees, filed on June 8, 2005, Plaintiffs’ Opposition
to Defendant’s Application for Attorneys’ Fees, filed on June 30, 2005, Dreamland’s Reply to
Plaintiffs’ Opposition to Application for Attorneys’ Fees, filed on July 13, 2005, and
Dreamland’s Supplemental Affidavit Regarding Attorneys’ Fees, filed on July 13, 2005. With
respect to those pleadings, the Court now rules as follows: 1
The Court in its discretion declines to award attorneys’ fees in this matter. Therefore,
IT IS ORDERED denying Dreamland’s Application for Attorneys’ fees.
With respect to Dreamland’s application for costs, as the prevailing party Dreamland
would be entitled to an award of its taxable costs. However, Rule 54(f), Ariz.R.Civ.P., envisions
that a party seeking costs file a statement of costs. No such statement was filed in this case.
Rather, the Court simply received an affidavit stating that Dreamland “expended in advance the
sum of $944.10 which can be taxed as costs under A.R.S. §§ 12-332 AND 12-346.” Without any
1 Plaintiffs have requested oral argument. However, due to the qualify and thoroughness of the parties’ briefs, the
Court is of the opinion that oral argument will not assist it in resolving the issues raised in the parties’ pleadings.
Therefore, pursuant to Rule 7.1(c), Ariz.R.Civ.P., the Court will rule upon Dreamland’s Application without oral
argument.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-020533
08/11/2005
Docket Code 019
Form V000A
Page 2
explanation as to why these costs were incurred or what they were expended for, the Court is
simply unable to determine the amount of taxable costs Dreamland is entitled to herein.
Therefore,
IT IS ORDERED denying Dreamland’s Application for costs.
09/02/2005 — CV2004020533 COMMUNITY CLUB, DREAMLAND VILLA 09/02/2005 HONORABLE JANET E. BARTON View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-020533
09/02/2005
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JANET E. BARTON
M. L. Smith
Deputy
FILED: 09/05/2005
RON EHNINGER, et al.
ASA WILLIAM MARKEL
v.
DREAMLAND VILLA COMMUNITY CLUB
JILL TSIAKILOS
RULING
The Court has received and reviewed Defendant’s Motion for Reconsideration, filed on
August 31, 2005. The Court is of the opinion that Defendant has failed to establish a legal basis
for the reconsideration of this Court’s ruling on Defendant’s Application in Support of
Attorneys’ Fees. In that regard, Defendant has failed to come forward with any new, admissible
evidence, proof of an intervening change in the controlling law, or the existence of a legal or
factual error in this Court’s prior ruling. Therefore,
IT IS ORDERED denying Defendants’ Motion for Reconsideration.
12/15/2004 — CV2004020533 COMMUNITY CLUB, DREAMLAND VILLA 12/15/2004 HONORABLE JANET E. BARTON View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2004-020533
12/15/2004
Docket Code 005
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JANET E. BARTON
D. Caggiano
Deputy
FILED: 12/17/2004
RON EHNINGER, et al.
ASA WILLIAM MARKEL
v.
DREAMLAND VILLA COMMUNITY CLUB
JILL TSIAKILOS
ORDER TO SHOW CAUSE / 15 MINUTE RETURN HEARING
3:00 p.m. This is the time set for an Order to Show Cause Hearing. Plaintiffs Ehninger
and Jones are represented by counsel, Thomas Shorall and Asa Markel. Defendant Dreamland
Villa Community Club is represented by counsel, Charles Maxwell, Jill Tsiakilos and Scott
Carpenter. Howard Zimmerman, President, Dreamland Villa Community Club is present.
Court reporter Margie Riley is present.
Discussion is held with regard to Plaintiffs’ Application for Preliminary Injunction and
Motion for Order to Show Cause.
IT IS ORDERED that Defendants file their response to the aforementioned Application
by no later than 5:00 p.m. on December 29, 2004. Defendants are to hand-deliver a copy of
said response to Plaintiffs and to this Court.
IT IS FURTHER ORDERED that Plaintiffs’ file their reply by no later than 5:00 p.m.
on January 5, 2005. Plaintiffs are to hand-deliver a copy of their reply to Defendants and to this
Court.
IT IS FURTHER ORDERED setting Oral Argument in this matter on January 7, 2005
at 9:30 a.m.
3:21 p.m. Matter concludes.
