05/03/2010 — CV2009024476 L C, DERAILED L 05/03/2010 HONORABLE JOHN A. BUTTRICK View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
05/05/2010 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2009-024476
05/03/2010
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOHN A. BUTTRICK
C. Castro
Deputy
PINNACLE PEAK VISTAS I I I
HOMEOWNERS ASSOCIATION
KELLIE J CALLAHAN
v.
DERAILED L L C
STEVEN R RENSCH
MINUTE ENTRY
IN CHAMBERS:
11:30 a.m. This is the time set for Final Pretrial Conference. Plaintiff is represented by
counsel, Kellie J. Callahan. Defendant is represented by counsel, Steven R. Rensch.
No court reporter is present.
Discussion is held.
IT IS ORDERED that Plaintiff shall respond to Defendant’s pending Motion for
Summary Judgment (filed on April 13, 2010) no later than May 10, 2010. Defendant shall file a
reply no later than May 14, 2010.
IT IS FURTHER ORDERED setting the aforementioned Motion for oral argument on
May 18, 2010 @ 11:00 a.m. (time allotted: one hour) in this division.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2009-024476
05/03/2010
Docket Code 094
Form V000A
Page 2
IT IS FURTHER ORDERED denying as moot Plaintiff’s Motion to Strike, filed on
April 27, 2010.
Pending before the Court is a Motion for Continuance of Trial, filed on April 13, 2010.
IT IS ORDERED granting the Motion for Continuance and vacating the Preliminary
Injunction Hearing and Trial on the Merits scheduled for May 18, 2010, and resetting same to
May 28, 2010 @ 9:30 a.m. (time allotted: one day) in this division.
No court reporter is requested.
ELECTRONIC ("E") COURTROOM
A record of courtroom proceedings are made by audio and/or videotape in lieu of a court
reporter. Should an official transcript be required, you may request that the court prepare it. The
party ordering the transcript must pay for it. With this new technology, a court reporter is not
required and the parties are encouraged to experience the court's audio/videotape recording
system before requesting a court reporter.
A fee of $20.00 will be charged for each copy of courtroom proceedings digitally
recorded and provided on compact Disc (CD). The fee is due when the CD is picked up. Cash
and in-state checks will be accepted for payment. Please make checks payable to: Clerk of the
Superior Court. Blank or unused CDs will not be accepted in lieu of payment.
The pick up location for CD copies of courtroom proceedings recorded in downtown
Phoenix will be the Court’s Self Service Center located in the Law Library on the First Floor of
the East Court Building. Fees will be collected at the Self Service Center.
Questions may be directed to Ken Crenshaw, Administrator, Electronic Records Services,
at [email protected]. For copies of hearings or trial proceedings recorded
previously, please call Electronic Records Services at (602) 506-7100.
Matter concludes.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp
05/18/2010 — CV2009024476 L C, DERAILED L 05/18/2010 HONORABLE JOHN A. BUTTRICK View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
05/20/2010 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2009-024476
05/18/2010
Docket Code 005
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOHN A. BUTTRICK
C. Castro
Deputy
PINNACLE PEAK VISTAS I I I
HOMEOWNERS ASSOCIATION
JOSHUA M BOLEN
v.
DERAILED L L C
STEVEN R RENSCH
MINUTE ENTRY
Courtroom 704 – Central Court Building.
11:13 a.m. This is the time set for oral argument on Defendant’s Motion for Summary
Judgment, filed on April 13, 2010. Plaintiff is represented by counsel, Joshua M. Bolen and
Kellie J. Callahan. Defendant is represented by counsel, Steven R. Rensch.
A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.
Motion is argued to the Court.
IT IS ORDERED taking this matter under advisement.
11:55 a.m. Matter concludes.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2009-024476
05/18/2010
Docket Code 005
Form V000A
Page 2
LATER:
Defendant Derailed, LLC (“Derailed”) has moved for summary judgment against
Plaintiff Pinnacle Peak Vistas III Homeowners Association (“Pinnacle”) in this action brought by
an HOA against a homeowner stemming from the homeowner’s erection of a large sculpture in
the front yard of a residential lot.
Derailed argues that Pinnacle “has no authority under its CC&Rs or otherwise” to seek
injunctive relief mandating the removal of the subject sculpture.1 Pinnacle responds that it has
such authority and, moreover, Derailed has failed to lodge the necessary application for approval
of the sculpture. Derailed concedes it has not sought such approval but maintains, as mentioned,
that it does not need any approval from Pinnacle in this matter.
Pinnacle cites several CC&R provisions to support its position. First, it notes that Article
I, §15 calls for “landscaping plans” to be submitted for approval by homeowners and
affirmatively states that “[o]nly desert landscaping may be installed in the front…yard…unless
otherwise approved.” Pinnacle argues that Derailed has violated this provision by failing to seek
approval for the sculpture. However, it is clear from the full text of this provision that the term
“landscaping” is meant to encompass grading, ground cover, plant materials and edging.2
Pinnacle also makes reference to Article II, §1 which prohibits any “structure or
dwelling” being built until its design, location and kind of materials have been approved. But a
sculpture is not a “structure or dwelling.” That is clear from the context of the CC&Rs references
to “structures” which strongly imply that enclosures are contemplated.
CC&R provision Article II, §4 allows for written standards and procedure to be
promulgated for “proposed improvements.” Those standards, composed of Architectural
Committee Rules (“Rules”), themselves expressly contemplate the promulgation of such
standards and procedures. See §1.0 of Rules. The closest the Rules come to addressing the issue
of sculptures is in Rule 2.28 which bars “unsightly objects” from being “erected…on any of the
lots.” However, Pinnacle has not argued in its brief or at oral argument that Derailed’s sculpture
is an “unsightly object” subject to this restriction.
1 The sculpture consists of a large (between nine and fifteen feet) representation of a saguaro cactus wearing
sunglasses and playing an electric guitar.
2 The text refers to “natural desert landscape” and states its goal as the preservation of “desert growth.” The entity
reviewing landscaping plans is charged with prohibiting activities which are “allergy producing, contribute[ ] to
odors, or otherwise would be inconsistent with clean air and natural desert environment.” None of these concerns
apply to sculpture.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2009-024476
05/18/2010
Docket Code 005
Form V000A
Page 3
Pinnacle states unequivocally that the CC&R or Rule “provisions require Defendant to
submit plans for all…improvements, including the sculpture at issue.” [Response at 12] No
citation is provided for that assertion.
As a matter of law, Pinnacle’s CC&Rs and Rules does not require Derailed to seek
approval for sculpture.3
Accordingly,
Detrailed’s Motion for Summary Judgment is granted and the Preliminary Injunction
Hearing and Trial on the Merits scheduled for May 28, 2010 @ 9:30 a.m. is vacated.
Plaintiff’s Motion to Strike Defendant’s Motion for Summary Judgment, filed
April 27, 2010, is denied.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp
3 Derailed alternatively argues that Pinnacle has, as a matter of undisputed fact, enforced the CC&Rs and Rules
arbitrarily and capriciously. The Court need not and does not reach that issue.
06/01/2010 — CV2009024476 L C, DERAILED L 06/01/2010 HONORABLE JOHN A. BUTTRICK View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
06/03/2010 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2009-024476
06/01/2010
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOHN A. BUTTRICK
D. Glab
Deputy
PINNACLE PEAK VISTAS I I I
HOMEOWNERS ASSOCIATION
JOSHUA M BOLEN
v.
DERAILED L L C
STEVEN R RENSCH
MINUTE ENTRY
The Court has reviewed Plaintiff’s Motion for Reconsideration, dated May 27, 2010.
Defendant may respond to that portion of the Motion concerning Design Guideline
Section 2.28 dealing with “unsightly objects” and its possible applicability in the case (Motion at
pp. 8-9) on or before June 18, 2010.
No reply or oral argument shall be permitted absent Court order.
06/09/2010 — CV2009024476 L C, DERAILED L 06/09/2010 HONORABLE JOHN A. BUTTRICK View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
06/10/2010 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2009-024476
06/09/2010
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOHN A. BUTTRICK
C. Castro
Deputy
PINNACLE PEAK VISTAS I I I
HOMEOWNERS ASSOCIATION
JOSHUA M BOLEN
v.
DERAILED L L C
STEVEN R RENSCH
RULING
The Court has reviewed Plaintiff’s Motion for Reconsideration, filed on May 27, 2010,
and Derailed’s Response to Motion to Reconsider, filed on June 7, 2010.
Upon review of the foregoing;
The Motion for Reconsideration is denied.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp
10/02/2009 — CV2009024476 L C, DERAILED L 10/02/2009 HONORABLE JOHN A. BUTTRICK View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
10/05/2009 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2009-024476
10/02/2009
Docket Code 056
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOHN A. BUTTRICK
M. Hovorka
Deputy
PINNACLE PEAK VISTAS I I I
HOMEOWNERS ASSOCIATION
JOSHUA M BOLEN
v.
DERAILED L L C
DERAILED L L C
C/O ARVIN L BERSTEIN
9117 E VIA MONTOYA
SCOTTSDALE AZ 85255
MINUTE ENTRY
Courtroom 704 – Central Court Building
9:06 a.m. This is the time set for Order to Show Cause Return Hearing. Plaintiff is
represented by counsel, Joshua M. Bolen. Defendant Derailed, LLC is not represented by
counsel. Arvin L. Berstein is present on his own behalf.
A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.
Discussion is held.
The Court having considered the information presented,
IT IS ORDERED setting a Final Pretrial Conference on May 3, 2010 at 11:00 a.m. (time
allotted: one hour) in this division.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2009-024476
10/02/2009
Docket Code 056
Form V000A
Page 2
Before the Final Pretrial Conference, counsel shall deliver to the trial judge by 5:00 p.m.,
May 1, 2010, a copy of the Joint Pretrial Statement signed by all counsel.
Deposition Summary: In addition to the information required by Rule 16(d), counsel
shall at the Final Pretrial Conference provide to the court copies of any deposition transcripts to
be read at trial. The offering party will highlight the portions to be read, the other side will
highlight Rule 106 additions, and any objections for the court to rule on will be clearly marked in
the margin. The parties are encouraged to agree on narrative summaries of deposition testimony,
using brief question and answer excerpts only to emphasize very important testimony or to cover
areas of testimony that cannot be summarized to the satisfaction of all counsel. No stipulation
should be unreasonably refused.
Final Trial Witnesses: In addition to the information required by Rule 16(d), the Joint
Pretrial Statement shall include an exhibit titled: Final Trial Witness List. This list shall
contain the name of each witness a party actually intends to call at trial, the day on which they
intend to call each witness and the estimated time needed for direct, cross and re-direct
examination.
IT IS FURTHER ORDERED setting a Preliminary Injunction Hearing and Trial on
Merits pursuant to Rule 65 (a) (2) for May 18, 2010 at 9:30 a.m. (time allotted: 1 day) in this
division.
IT IS FURTHER ORDERED counsel shall deliver their exhibits along with a
description of each exhibit to the division’s clerk for marking no later than May 11, 2010.
Exhibits should be separated by a colored sheet of paper with the exhibit number written on
front. Each exhibit shall be clipped or bound if too large to be stapled. Counsel may also submit
exhibits in a three-ring binder, each separated by a tabbed numbered divider. Please provide a
separate copy of exhibits to the court to be referenced by the Judge during the hearing.
NOTE: All Court proceedings are recorded by audio method and not by a court
reporter. Any party may request the presence of a court reporter by contacting the division
three (3) court business days before the scheduled hearing.
9:26 a.m. Matter concludes.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp
