04/15/2005 — CV2005091004 ASSOCIATION, SPRINGFIELD COMMUNITY 04/15/2005 HON. MARK F. ACETO View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2005-091004
04/15/2005
Docket Code 089
Form J000
Page 1
CLERK OF THE COURT
HON. MARK F. ACETO
K. Stone
Deputy
FILED: 04/19/2005
SPRINGFIELD COMMUNITY ASSOCIATION
J ROGER WOOD
v.
JOHN WILSON
TIFFANY D BROOKS
ALTERNATIVE DISPUTE
RESOLUTION - CCC
MINUTE ENTRY
NON-JURY TRIAL SETTING
TRIAL MANAGEMENT CONFERENCE SETTING
11:30 a.m. This is the time set for return hearing on the Petition for Order to Show
Cause. Counsel, Traylor E. Richardson, is present on behalf of Plaintiff. Counsel, Tiffany D.
Brooks, is present on behalf of Defendant.
A record of the proceeding is made by CD and videotape in lieu of a court reporter.
Discussion is held.
11:41 a.m. The Court stands at recess.
11:58 a.m. Court reconvenes with counsel present.
A record of the proceeding is made by CD and videotape in lieu of a court reporter.
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
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2005-091004
04/15/2005
Docket Code 089
Form J000
Page 2
Tempore and at that time should contact the appointed Judge Pro Tempore to arrange the
time and location for the settlement conference.
A representative of each side with settlement authority must be present at the settlement
conference. It is not the expectation of the Court that the board of Directors of the homeowners’
association must be physically present at the settlement conference.
Alternative Dispute Resolution completion date: August 1, 2005.
IT IS ORDERED AS FOLLOWS:
TRIAL.
This matter is set for a consolidated hearing regarding the request for preliminary
injunction and for non-jury trial on September 8, 2005 at 9:00 a.m. before:
THE HONORABLE MARK F. ACETO
SUPERIOR COURT OF ARIZONA
SOUTHEAST COURTHOUSE
COURTROOM 206
222 E. JAVELINA
MESA, AZ 85210
Time allotted: 2 hours
(PTMC) PRETRIAL MANAGEMENT CONFERENCE
This matter is set for Pretrial Management Conference on August 19, 2005 at 10:00 a.m.
COUNSEL WHO WILL BE THE LEAD TRIAL LAWYERS ON THE CASE ARE
REQUIRED TO BE IN COURT FOR THE PRETRIAL MANAGEMENT CONFERENCE.
FAILURE OF TRIAL COUNSEL TO ATTEND THE PRETRIAL MANAGEMENT
CONFERENCE MAY RESULT IN PERSONAL SANCTIONS.
Motions in Limine. Any Motions in Limine shall be filed no later than thirty (30) days
before the Trial Management Conference. Failure to file a timely response will be
deemed to be consent to granting of the motion. The moving party shall not file a reply in
support of a Motion in Limine.
Witness Information Form. The parties must submit the Witness Information Form in
the form specified below by the deadline set forth below. In addition to the names of
witnesses, the parties must provide estimates of the length of each witness’s testimony.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2005-091004
04/15/2005
Docket Code 089
Form J000
Page 3
Expert Summary. By the deadline noted below, each party must submit a pleading
listing each expert who will be called by that party to testify at trial along with each
opinion of the expert and the basis for each opinion. (The Court will use this document
in ruling on objections for lack of disclosure.)
Depositions to be used at trial. (1) Before a deposition may be used for any purpose at
trial, an additional copy must be provided to the judge. (2) As to any deposition
testimony which will be presented at trial in lieu of live testimony, (a) no less than four
(4) judicial days before the deposition testimony is presented at trial, counsel must
specify in writing to opposing counsel the deposition testimony to be presented and (b)
no less than forty-eight (48) hours before such testimony is presented, opposing counsel
must submit to the Court a written list of any objections to the deposition testimony.
Marking exhibits. Counsel shall present all exhibits with a list of exhibit descriptions to
the Clerk of this Court no less than five (5) judicial days before trial. The exhibits will
be marked serially as they are listed in the pretrial statement - plaintiff's first, defendant's
second. Counsel shall make sure that the clerk does not receive duplicate exhibits form
plaintiff and defendant. Counsel shall also present original depositions for filing at that
time. Please advise the Clerk, referring specifically to the pretrial statement, which
exhibits may be marked directly in evidence.
Elements of Claims or Defenses. (A) By the deadline noted below, any party asserting
a claim or affirmative defense must submit a Memorandum setting forth the following
regarding each claim or affirmative defense: (1) the elements (i.e. proof requirements),
(2) whether some burden of proof other than preponderance applies, and (3) the legal
authority supporting the foregoing. (B) In the event an opposing party takes the position
that anything stated in the above referred-to Memorandum is incorrect, that party must
submit by the deadline listed below an Opposing Memorandum which sets out (1) what
portion of the Memorandum the party disagrees with, and (2) the legal authority which
supports this position. Because the Court will be relying on these Memoranda, failure to
timely submit an Opposing Memorandum will be deemed to be a waiver of the right to
contest the elements of a claim or defense.
IT IS ORDERED establishing the following deadlines:
August 10
Memorandum regarding elements
August 10
Joint Pretrial Statement
August 10
Witness Information Form
August 30
Expert Summary
August 30
Opposing Memorandum regarding elements
A party not represented by counsel has all of the obligations of counsel listed above.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2005-091004
04/15/2005
Docket Code 089
Form J000
Page 4
12:00 p.m. Hearing concludes.
E-COURTROOM POLICIES
This is a JAVS courtroom. In the event a record is made, the Court will provide, upon
request, CDs and videotapes regardless of when the copies are made. A fee of $20.00 will apply
to all copies requested, either on the day of the hearing or for hearings recorded on an earlier
date. Forms to request a recording of the proceeding are available in the Self-Service Center and
in the JAVS courtrooms.
A person requesting a daily copy of CD or videotape must complete the appropriate
request form and pay the applicable fee to the Self-Service Center. Upon payment of the
appropriate fees through the Self-Service Center, a receipt will be issued which shall then be
presented to Court staff for preparation of the CD or videotape in the customary manner.
A person wanting a copy of a hearing from a previous occasion must contact Ken
Crenshaw at 602-506-7100.
Should a party wish to have a court reporter present for trial, a written request must be
received by the Court ten (10) court business days prior to the scheduled hearing.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2005-091004
04/15/2005
Docket Code 089
Form J000
Page 5
WITNESS INFORMATION FORM
WITNESSES FOR PLAINTIFF(S)
WITNESS NAME
DIRECT
CROSS
1
2
3
4
DIRECT & CROSS TOTAL:_________________
WITNESSES FOR DEFENDANT(S)
WITNESS NAME
DIRECT
CROSS
1
2
3
4
DIRECT & CROSS TOTAL:_______________
TOTAL WITNESS TIME ESTIMATE:___________________________
08/04/2005 — CV2005091004 ASSOCIATION, SPRINGFIELD COMMUNITY 08/04/2005 HON. MARK F. ACETO View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2005-091004
08/04/2005
Docket Code 081
Form J000
Page 1
CLERK OF THE COURT
HON. MARK F. ACETO
K. Stone
Deputy
FILED: 08/08/2005
SPRINGFIELD COMMUNITY ASSOCIATION
J ROGER WOOD
v.
JOHN WILSON
CHRISTOPHER A COMBS
PATRICK E ELDRIDGE
MINUTE ENTRY
The Court has received and considered the Expedited Stipulation to Vacate Settlement
Conference (Set for July 29, 2005 at 9:00 a.m.) and Consolidated Evidentiary Hearing and Trial
on the Merits (Set for September 8, 2005 at 9:00 a.m.).
IT IS ORDERED vacating the settlement conference set on July 29, 2005 and the
evidentiary hearing and trial set on September 8, 2005 in accordance with the formal written
Order Granting Expedited Stipulation to Vacate signed by the Court on August 3, 2005 and filed
by the Clerk on August 4, 2005.
IT IS FURTHER ORDERED vacating the Trial Management Conference set on August
19, 2005 in this division.
A conformed copy of the signed order is mailed to judge pro tem Eldridge under separate
cover.
08/31/2005 — CV2005091004 ASSOCIATION, SPRINGFIELD COMMUNITY 08/31/2005 HON. MARK F. ACETO View Minute Entry ↑ top
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SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2005-091004
08/31/2005
Docket Code 023
Form J000
Page 1
CLERK OF THE COURT
HON. MARK F. ACETO
K. Stone
Deputy
FILED: 09/02/2005
SPRINGFIELD COMMUNITY ASSOCIATION
J ROGER WOOD
v.
JOHN WILSON
CHRISTOPHER A COMBS
MINUTE ENTRY
On June 17, 2005, Plaintiff filed a Consent to Dismissal of Injunctive Claim/Motion for
Summary Judgment re: Breach of Contract Claim. On July 7, 2005, Defendant filed a Cross-
Motion for Summary Judgment. The Court has reviewed the pleadings. Pursuant to Rule 7.1,
the Court declines to schedule oral argument.
Pursuant to the consent of Plaintiff,
IT IS ORDERED dismissing Count 1.
Through their summary judgment motions, each side has taken the position that it is
entitled to an attorney fee award as a matter of law.
Through Count 1, Plaintiff sought an order requiring Defendant to take down the “for
sale” sign in question. It is undisputed that Defendant has now taken down the for sale sign.
Plaintiff contends that Defendant took the sign down because of Plaintiff’s lawsuit. Defendant
contends that he did not take down the sign because of the lawsuit. Rather, Defendant contends
that he did so because he ultimately sold the home. In other words, there is a genuine factual
dispute regarding why the sign has been taken down.
CC&Rs are subject to contract analysis. Count 2 is a breach of contract claim. Plaintiff
claims that placement and maintenance of the sign by Defendant constitutes a breach of contract.
Defendant contends that Plaintiff agreed to allow Defendant to leave the sign in place.
Promissory estoppel (see Restatement of Contracts (2nd) §89) and waiver can be viable defenses
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2005-091004
08/31/2005
Docket Code 023
Form J000
Page 2
to enforcement of a contract. These defenses are factually intensive. In this case, genuine
factual disputes are present. Under the circumstances,
IT IS ORDERED denying the summary judgment motions of both Plaintiff and
Defendant.
NOTE
The CC&Rs provide that the prevailing party in litigation such as this is entitled to a fee
award. However, the Court suspects that only “reasonable” fees need be awarded. Query: may a
court determine that fees associated with an unsuccessful Motion for Summary Judgment are not
reasonable? Given all of the circumstances, the parties may wish to attempt to reach an
agreement resolving this litigation.1
DATED the 31st day of August, 2005.
/s/ HON. MARK F. ACETO
___________________________________________________
JUDICIAL OFFICER OF THE SUPERIOR COURT
1 The Court had ordered that the parties participate in a settlement conference with a judge pro tem. The parties
ultimately stipulated to vacate the settlement conference in order to pursue summary judgment. If further court
intervention is required, the first step might be a request for establishment of a new deadline for completion of a
settlement conference.
