03/12/2009 — CV2008092008 HOMEOWNERS ASSOCIATION INC, APACHE WELLS 03/12/2009 THE HONORABLE LOUIS ARANETA View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
03/13/2009 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-092008
03/12/2009
Docket Code 042
Form V042
Page 1
CLERK OF THE COURT
THE HONORABLE LOUIS ARANETA
M. Brady
Deputy
APACHE WELLS HOMEOWNERS
ASSOCIATION INC
SCOTT L POTTER
v.
WALTER A STROMME, et al.
MELANIE C MCKEDDIE
DISMISSAL MINUTE ENTRY
Notice of Dismissal with prejudice has been presented to the Court.
DISPOSITION:
IT IS ORDERED dismissing this cause with prejudice.
IT IS FURTHER ORDERED vacating any pending hearings.
07/30/2008 — CV2008092008 HOMEOWNERS ASSOCIATION INC, APACHE WELLS 07/30/2008 THE HONORABLE LOUIS ARANETA View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/01/2008 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-092008
07/30/2008
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
THE HONORABLE LOUIS ARANETA
M. Brady
Deputy
APACHE WELLS HOMEOWNERS
ASSOCIATION INC
SCOTT L POTTER
v.
WALTER A STROMME, et al.
STEVEN W CHEIFETZ
MINUTE ENTRY
9:30 a.m. This is the time set for Order to Show Cause/15 Minute Return Hearing. Scott
Potter participates on behalf of Plaintiff. Steve Cheifetz participates on behalf of Defendant.
A record of the proceedings is made by CD/videotape in lieu of a court reporter.
The Court’s findings are stated on the record. Discussion indicates that on a temporary
basis equity favors maintenance of the status quo rather than conducting an immediate
evidentiary hearing to enjoin removal of a portion of Defendants’ wall. In addition, issues
addressed in a Motion for Summary Judgment may resolve all or some part of the case.
Defendant shall file their Answer by August 5, 2008. Defendant’s Motion for Summary
Judgment shall be filed by August 15, 2008. Plaintiff’s Response shall be filed by September
15, 2008. Defendants’ Reply is due no later than October 6, 2008.
IT IS ORDERED setting oral argument on Defendants’ Motion for Summary
Judgment for October 17, 2008 at 11:15 a.m. before:
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-092008
07/30/2008
Docket Code 094
Form V000A
Page 2
THE HONORABLE LOUIS ARANETA
SOUTHEAST ADULT FACILITY
222 EAST JAVELINA
COURTROOM 207
MESA AZ 85210
IT IS FURTHER ORDERED as follows:
Oral argument shall not exceed fifteen (15) minutes for each side. If extended oral
argument is necessary, counsel must so advise the Court no later than four (4) court days prior to
the date set for hearing so that oral argument can be rescheduled.
Any motion or stipulation for continuance must be filed with the Court no later than four
(4) court days prior to the date set for hearing. After that date, no continuances will be granted
except for extraordinary circumstances.
Counsel are advised that if the answering memorandum is not timely filed in accordance
with the Arizona Rules of Civil Procedure, oral argument may be vacated and the motion will be
ruled upon in accordance with Rule 7.1(b), A.R.C.P.
9:52 a.m. Hearing concludes.
PLEASE NOTE: IMPORTANT INFORMATION RE: CD/VIDEOTAPE
FEE CURRENTLY IN EFFECT
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 a proceeding are available in the Self-Service Centers and
in the JAVS and FTR courtrooms.
If a party wants a court reporter to record a proceeding in this Court, a written request
must be filed at least 48 hours before the commencement of the proceedings.
A person requesting a daily copy CD or videotape must complete the appropriate request
form and pay the applicable fee at 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.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-092008
07/30/2008
Docket Code 094
Form V000A
Page 3
A person wanting a copy of a hearing from a previous occasion must contact Ken
Crenshaw at 602-506-7100.
10/17/2008 — CV2008092008 HOMEOWNERS ASSOCIATION INC, APACHE WELLS 10/17/2008 THE HONORABLE LOUIS ARANETA View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
10/20/2008 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-092008
10/17/2008
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
THE HONORABLE LOUIS ARANETA
M. Brady
Deputy
APACHE WELLS HOMEOWNERS
ASSOCIATION INC
SCOTT L POTTER
v.
WALTER A STROMME, et al.
STEWART F GROSS
MINUTE ENTRY
11:14 a.m. This is the time set for oral argument on Defendants’ Motion for Summary
Judgment. Scott Potter participates on behalf of Plaintiff. Stewart Gross participates on behalf of
Defendants.
A record of the proceedings is made by CD/videotape in lieu of a court reporter.
Argument is heard on the Motion for Summary Judgment.
IT IS ORDERED taking this matter under advisement.
11:51 a.m. Hearing concludes.
PLEASE NOTE: IMPORTANT INFORMATION RE: CD/VIDEOTAPE
FEE CURRENTLY IN EFFECT
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
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-092008
10/17/2008
Docket Code 020
Form V000A
Page 2
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 a proceeding are available in the Self-Service Centers and
in the JAVS and FTR courtrooms.
If a party wants a court reporter to record a proceeding in this Court, a written request
must be filed at least 48 hours before the commencement of the proceedings.
A person requesting a daily copy CD or videotape must complete the appropriate request
form and pay the applicable fee at 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.
10/17/2008 — CV2008092008 HOMEOWNERS ASSOCIATION INC, APACHE WELLS 10/17/2008 THE HONORABLE LOUIS ARANETA View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
10/21/2008 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-092008
10/17/2008
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
THE HONORABLE LOUIS ARANETA
M. Brady
Deputy
APACHE WELLS HOMEOWNERS
ASSOCIATION INC
SCOTT L POTTER
v.
WALTER A STROMME, et al.
STEWART F GROSS
MINUTE ENTRY
The Court has considered the Defendants’ Motion for Summary Judgment, and the
Response, Reply and oral argument.
At issue is whether a prior Settlement Agreement and Mutual Release among the same
parties in Doshier v. Apache Wells, CV2007-005085, applies to this action brought by the
Plaintiff which would warrant summary judgment in favor of the Defendants.
Both sides largely agree with the context provided by the prior civil case in CV2007-
005085.
In 2007, Defendant Walter Stromme was president of a group of homeowners called Save
Apache Wells which opposed a special assessment planned by the Board of Directors of the
Apache Wells Homeowners Association, Inc (Association). Strong feelings and harsh remarks
were exchanged between polarized homeowners in this community. Ultimately, on April 23,
2007, Walter Stromme and approximately 100 other homeowners sued the Association in
CV2007-005085 seeking injunctive and declaratory relief. A count of breach of fiduciary duty
against individual directors of the Association was also included. Prior to the filing of the civil
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-092008
10/17/2008
Docket Code 019
Form V000A
Page 2
action, the Strommes had also filed an administrative action alleging that the Association
improperly increased a transfer assessment fee.
During the litigation the two opposing groups of homeowners increased the intensity of
their verbal attacks against each other. At one homeowner meeting, an opposing homeowner
allegedly used some kind of physical force against Mr. Stromme. Criminal charges alleging
assault were later dismissed.
On or about August 23, 2007, the Court, in CV2007-005085, granted partial summary
judgment in favor of Plaintiff homeowners which included Mr. Stromme.
On November 5, 2007, the Association Arbitration Committee delivered notice to the
Strommes that the wall in their backyard violated the Association’s CC&R’s. On November 27,
2007, Melanie McKeddie, counsel for the Strommes sent a letter to Eric M. Jackson, counsel for
the Association, stating that the notice of the wall height violation was in retaliation against the
Strommes for their involvement in the dispute against the Association. See Exhibit D to
Defendants’ Separate Statement of Facts in Support of Motion for Summary Judgment. In
support of the claimed retaliation, counsel for the Strommes stated that the wall had been in
place for three years, that a neighbor had an identical wall in height and location without any
notice of violation and that the claim of a CC&R violation would further escalate the dispute
between the respective clients to the civil litigation. The letter concluded:
Retaliatory action and selective enforcement are not
taken well...however we will not pursue this issue
if the Association acts accordingly. It truly is our
clients’ goal to work towards healing this community,
which can only be accomplished through some degree
of cooperation and mutual respect.
In February, 2008, the parties settled the action in CV2007-005085 by signing the
Settlement Agreement and Mutual Release of Claims.
On July 11, 2008, the Association filed its complaint against the Strommes in this action.
To determine the intent of the parties, the Court has considered the entire settlement
document and particularly the recital paragraph 1.3, the term of settlement paragraph 3.2 and the
integration paragraph 4.14. When the paragraphs are considered together, the Court finds that the
parties in their negotiated and reworded language of the settlement document intended to settle
and discharge the wall height violation claim that the Association had made known to the
Strommes.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-092008
10/17/2008
Docket Code 019
Form V000A
Page 3
Specifically, in Paragraph 3.2, the parties used expansive language intended to put to rest
and bring resolution to the polarized and extremely strained relationships among the homeowner
parties:
Apache Wells Homeowners Association, Inc. [and all
other named homeowner defendants]...hereby fully
and completely release and discharge Plaintiffs in the
broadest manner...from any and all conceivable claims,
demands, obligations, actions, causes of actions, rights,
damages, costs, losses of services, expenses, liabilities,
and compensation of any and every kind and nature
whatsoever, whether based on tort, contract or other
theory or recovery, which the Defendants may now
have, known or unknown on account of, related to,
or that may in any way grow out [of] the subject of
the complaint and all related pleadings, including
without limitation and all known or unknown claims
which were asserted or could have been asserted in
the action. [emphasis added].
Here, Tom Finger, Chairman of the Association’s Arbitration Committee who was a
named Defendant in CV2007-005085 had signed the Association’s wall violation complaint
against named Plaintiff Mr. Stromme dated November 5, 2007. See Exhibit C to Defendants
Separate Statement of Facts in Support of Motion for Summary Judgment.
The Association and the Strommes through the counsel letter of November 27, 2007
knew that the wall height violation complaint was alleged to have arisen as retaliation from the
then pending action in CV2007-005085. While not mandatory, the Association could have filed a
permissive counterclaim against the Strommes in CV2007-005085 for the alleged violation of
the CC&R violation. Under the expansive languages of the settlement documents the Association
released and discharged the Strommes from the alleged wall height CC&R violation.
The Court finds that there is now genuine issue as to material fact and that the Defendants
are entitled to judgment as a matter of law.
IT IS ORDERED granting Defendants Motion for Summary Judgment. Counsel for
Defendants shall prepare and file a form of judgment consistent with this ruling.
11/17/2008 — CV2008092008 HOMEOWNERS ASSOCIATION INC, APACHE WELLS 11/17/2008 THE HONORABLE LOUIS ARANETA View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
11/18/2008 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-092008
11/17/2008
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
THE HONORABLE LOUIS ARANETA
M. Brady
Deputy
APACHE WELLS HOMEOWNERS
ASSOCIATION INC
SCOTT L POTTER
v.
WALTER A STROMME, et al.
MELANIE C MCKEDDIE
MINUTE ENTRY
The Court has considered the Plaintiff’s Motion for Clarification.
IT IS ORDERED, Nunc Pro Tunc, correcting the minute entry of October 17, 2008 at
page three, from “now” to “no” so that the sentence correctly reads: “The Court finds there is no
genuine issue as to material fact and that the Defendants are entitled to judgment as a matter of
law.”
12/05/2008 — CV2008092008 HOMEOWNERS ASSOCIATION INC, APACHE WELLS 12/05/2008 THE HONORABLE LOUIS ARANETA View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
12/08/2008 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2008-092008
12/05/2008
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
THE HONORABLE LOUIS ARANETA
M. Brady
Deputy
APACHE WELLS HOMEOWNERS
ASSOCIATION INC
SCOTT L POTTER
v.
WALTER A STROMME, et al.
MELANIE C MCKEDDIE
MINUTE ENTRY
The Court has considered the Defendants’ Application for Attorney Fees and Costs, and
the Objection and Reply. Plaintiff objects to the requested attorney fees and not the costs. The
Court finds that the requested attorney fees are reasonable under the factors in Schweiger v.
China Doll Restaurant, 138 Ariz. 183, 673, P.2d 927 (App. 1983) and that the Defendants are
entitled to reasonable attorney fees under the Settlement Agreement and A.R.S. §12-341.01.
IT IS ORDERED awarding costs of $152.74 and reasonable attorney fees of $8,607.74
to be paid by Plaintiff with interest thereon at the rate of 10% per year from the date of judgment
until paid.
Counsel for Defendants shall submit a form of judgment consistent with this ruling.
