06/18/2010 — CV2009029971 INC, ELLIOTT HOMES 06/18/2010 HON. JOHN REA View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
06/22/2010 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2009-029971
06/18/2010
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HON. JOHN REA
L. Gilbert
Deputy
TRAMONTO COMMUNITY MASTER
ASSOCIATION
CHAD PHILIP MIESEN
v.
ELLIOTT HOMES INC
STEVEN J LIPPMAN
ORAL ARGUMENT SET
IT IS ORDERED setting Oral Argument on Plaintiff’s Motion for Summary Judgment
and Defendant’s Cross-Motion for Summary Judgment on August 3, 2010 at 9:00 a.m. (time
allotted: 30 minutes with the time divided equally between the parties), before:
HONORABLE JOHN C. REA
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W. JEFFERSON
4TH FLOOR, COURTROOM 414
PHOENIX, AZ 85003
602-372-0382
The proceeding will take place in the Superior Court’s “e-courtroom.” A record of the
proceedings will be made by videotape and CD in lieu of a court reporter. Should you want an
unofficial copy of the proceedings, the parties or counsel may request a videotape or CD of the
proceedings for a $20.00 charge. If a CD or videotape is requested, please obtain a form from
the courtroom clerk or from the Self Service Center to request a daily copy of a court hearing or
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2009-029971
06/18/2010
Docket Code 094
Form V000A
Page 2
trial proceeding being conducted. Pay the applicable fee at the Self Service Center. Attach the
receipt showing payment of the fee and present both the receipt and the form to the bailiff. For
copies of hearings or trial proceedings recorded previously, please call Electronic Records
Services at 602-506-7100. Should an official transcript be required, you may request that the
court prepare it. The party ordering the transcript must pay for it. To request a transcript, call
602-506-7100 and provide the date of the proceeding, the case number, the case caption, if the
transcript is for an appeal, and your name, address, and telephone number.
With this new technology, a court reporter is likely not required and the parties are
encouraged to experience the court's video recording system before requesting a court
reporter. If a court reporter is required, the Court must receive a written request at least 3 court
days before the commencement of the proceeding. Failure to timely request a court reporter will
be deemed consent to proceed without a court reporter.
PLEASE NOTE: This division requires that all motions, responses, replies and other
Court requested filings in this case must be submitted individually. Counsel shall not combine
any motion with a responsive pleading. All motions are to be filed separately and designated as
such. No pleadings will be accepted if filed in combination with another.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp
08/03/2010 — CV2009029971 INC, ELLIOTT HOMES 08/03/2010 HON. JOHN REA View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/05/2010 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2009-029971
08/03/2010
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HON. JOHN REA
L. Gilbert
Deputy
TRAMONTO COMMUNITY MASTER
ASSOCIATION
CHAD PHILIP MIESEN
v.
ELLIOTT HOMES INC
STEVEN J LIPPMAN
MINUTE ENTRY
East Court Building – Courtroom 414
9:08 a.m. This is the time set for Oral Argument on Plaintiff’s Cross-Motion for
Summary Judgment. Plaintiff is represented by counsel, Chad Philip Miesen. Defendant is
represented by counsel, Steven J. Lippman.
A record of the proceedings is made by audio/videotape in lieu of a court reporter.
Argument is presented.
IT IS ORDERED taking this matter under advisement.
9:34 a.m. Matter concludes.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2009-029971
08/03/2010
Docket Code 020
Form V000A
Page 2
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp
08/17/2010 — CV2009029971 INC, ELLIOTT HOMES 08/17/2010 HON. JOHN REA View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/19/2010 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2009-029971
08/17/2010
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HON. JOHN REA
L. Gilbert
Deputy
TRAMONTO COMMUNITY MASTER
ASSOCIATION
CHAD PHILIP MIESEN
v.
ELLIOTT HOMES INC
STEVEN J LIPPMAN
MINUTE ENTRY
Following oral argument the Court took under advisement the parties’ Cross-Motions for
Summary Judgment. After consideration of the arguments and authorities in the memoranda and
the oral argument,
IT IS ORDERED Plaintiff’s Motion for Summary Judgment is denied.
IT IS FURTHER ORDERED Defendant’s Motion for Summary Judgment is granted.
Discussion
Plaintiff filed this action to collect assessments it claims are due from Elliott Homes for
Parcel W-13 pursuant to the CC&Rs. Elliott Homes relies on the Amended and Restated Tract
Declaration for Parcel W-13 that states that no assessments shall be due and owing on Parcel W-
13 until the earlier of the issuance of a certificate of occupancy or two years from the recordation
of the Amended and Restated Tract Declaration. It is undisputed that no certificate of occupancy
was issued for the time the Plaintiff seeks to collect assessments from Elliott Homes. The
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2009-029971
08/17/2010
Docket Code 019
Form V000A
Page 2
Plaintiff acknowledges that the Amended Tract Declaration applies to assessments after its
execution but argues that it does not apply to assessments due prior to its execution.
The Court finds the language of the Amended Tract Declaration reasonably susceptible to
both parties’ proposed interpretations. That being true, the Court looks to extrinsic evidence to
determine the intent of the parties. In this case, the extrinsic evidence is clear. The entire course
of dealing between the Plaintiff and Elliott Homes, involving four other parcels, is consistent.
The Plaintiff did not bill Elliott Homes for assessments until after the final plat was recorded.
For this reason, and the other reasons argued by Elliott Homes, the Court denies
Plaintiff’s Motion for Summary Judgment and grants summary judgment to Elliott Homes.
This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp
