09/09/2013 — CV2013095464 CONDOMINIUM ASSOCIATION, FIESTA VILLAS 09/09/2013 HON. DAVID K. UDALL View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
09/12/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2013-095464
09/09/2013
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HON. DAVID K. UDALL
K. Gilmet
Deputy
LISA MARX
CHRISTINA N MORGAN
v.
FIESTA VILLAS CONDOMINIUM
ASSOCIATION, et al.
PAUL R NEIL
H U B REALTY L L C
NO ADDRESS ON RECORD
DWIGHT SCHRUTE HOLDINGS L L C
NO ADDRESS ON RECORD
SPENCER J LINDAHL
NO ADDRESS ON RECORD
MELINDA C LINDAHL
NO ADDRESS ON RECORD
ORDER TO SHOW CAUSE RETURN HEARING
MATTER TAKEN UNDER ADVISEMENT
Courtroom 205 – Southeast Adult Facility
3:09 p.m. This is the time set for an Order to Show Cause Return Hearing. Counsel,
Christina N. Morgan and Scott L. Potter, are present on behalf of Plaintiff, Lisa Marx, who is
also present. Counsel, Paul R. Neil, is present on behalf of Defendant, Fiesta Villas
Condominium Association, who is not present but client representative/Defendant, Spencer J.
Lindahl, is present. No other parties appear.
A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2013-095464
09/09/2013
Docket Code 020
Form V000A
Page 2
Defendant, Fiesta Villas Condominium Association’s, exhibits 1 and 2 are marked for
identification.
Argument is presented to the Court.
Plaintiff’s exhibits 3 and 4 are marked for identification.
Defendant’s exhibits 1 and 2 are received in evidence by stipulation of the parties.
Plaintiff’s exhibits 3 and 4 are received in evidence by stipulation of the parties.
IT IS ORDERED taking this matter under advisement.
3:34 p.m. Matter concludes.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.
09/10/2013 — CV2013095464 CONDOMINIUM ASSOCIATION, FIESTA VILLAS 09/10/2013 HON. DAVID K. UDALL View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
09/11/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2013-095464
09/10/2013
Docket Code 926
Form V000A
Page 1
CLERK OF THE COURT
HON. DAVID K. UDALL
K. Gilmet
Deputy
LISA MARX
CHRISTINA N MORGAN
v.
FIESTA VILLAS CONDOMINIUM
ASSOCIATION, et al.
PAUL R NEIL
H U B REALTY L L C
NO ADDRESS ON RECORD
DWIGHT SCHRUTE HOLDINGS L L C
NO ADDRESS ON RECORD
SPENCER J LINDAHL
NO ADDRESS ON RECORD
MELINDA C LINDAHL
NO ADDRESS ON RECORD
UNDER ADVISEMENT RULING
The Court took this matter under advisement after an Order to Show Cause Return
Hearing on Plaintiff’s Temporary Restraining Order held on September 9, 2013. The Court
having considered the evidence presented, the arguments of the parties, as well as the pleadings,
makes the following findings and enters the following orders:
Plaintiff received a Temporary Restraining Order from Judge Talamante on August 30,
2013 in which he enjoined Defendant DSH from casting their 26 votes at the September 10, 2013
elections for Fiesta Villas Condominium Association. The basis for his injunction was that DSH
had purchased 26 units from HUB Realty, an Arizona Limited Liability Company, and that under
the CC&Rs neither HUB Realty or DSH had paid the required Working Capital Fund assessment
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2013-095464
09/10/2013
Docket Code 926
Form V000A
Page 2
or Transfer Fee assessment. It is Plaintiff’s contention that both HUB and DSH owe $14,950.00
for the 26 units for the Transfer and Capital Working Fund fees.
Under the CC&Rs, 7.9 (Working Capital Fund), and 7.11 (Transfer Fee Fund) indicate
that each purchaser of a unit be required to pay those separate fees. The Court looks at the
definition of “Purchaser” under the CC&Rs at 1.2.30 (“Purchaser” means any Person other than
the Declarant, who by means of voluntary transfer becomes a Unit Owner, except for a Person
who purchases a Unit and then leases it to the Declarant for use as a model in connection with
the sale of other Units, or a Person who, in addition to purchasing a Unit, is assigned any Special
Declarant Right).
THE COURT FINDS that under the definition of Purchaser, anyone that has a Declarant
right is not required to pay the Transfer Fee or Working Capital Fund fee.
THE COURT FURTHER FINDS that HUB Realty and DSH are managed by Spencer J.
Lindahl. Mr. Lindahl states that HUB is a holding company for DSH.
THE COURT FURTHER FINDS that HUB Realty and DSH received their interest in the
property through a Trustee’s Deed Upon Sale and a Deed of Trust.
The Court has considered A.R.S. § 33-1244, Transfer of special declarant rights. Under
subsection C, it states, “Unless otherwise provided in a mortgage or deed of trust, in case of
foreclosure of a mortgage, tax sale, judicial sale, sale by a trustee under a deed of trust,…of any
units owned by a declarant or real estate in a condominium subject to development rights, a
person acquiring title to all the real estate being foreclosed or sold succeeds to all special
declarant rights related to that real estate held by that declarant whether or not the judgment or
instrument conveying title provides for transfer of the special declarant rights.”
The Court believes that Defendants have a good position to argue that under the terms of
the CC&Rs, they are not required to pay the Transfer Fee or Working Capital Fees. Therefore,
their voting rights under the CC&Rs would not be restricted or prohibited. The Defendants, as a
result, would have a likelihood of success on the merits of this case.
THE COURT FINDS that Plaintiff’s basis for the injunction, with respect to irreparable
harm, is that the Board intends to assess a special $2,000.00 levy on each unit for improvements.
Whether or not DSH is able to cast its votes in the Homeowners’ Association election, the Court
believes it would still be speculative as to the outcome of the election based on the evidence that
it heard in Court.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2013-095464
09/10/2013
Docket Code 926
Form V000A
Page 3
IT IS ORDERED quashing the Temporary Restraining Order issued by Judge
Talamante in this matter on August 30, 2013.
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.
09/10/2013 — CV2013095464 CONDOMINIUM ASSOCIATION, FIESTA VILLAS 09/10/2013 HON. JOHN REA View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
09/11/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2013-095464
09/10/2013
Docket Code 066
Form V000A
Page 1
CLERK OF THE COURT
HON. JOHN REA
L. Gilbert
Deputy
LISA MARX
CHRISTINA N MORGAN
v.
FIESTA VILLAS CONDOMINIUM
ASSOCIATION, et al.
PAUL R NEIL
COURT ADMIN-CIVIL-CCC
JUDGE TALAMANTE
JUDGE UDALL
CASE REASSIGNMENT - CIVIL PRESIDING JUDGE
This case was previously assigned to the Honorable David M. Talamante. A Notice of
Change of Judge has been filed by Defendant Fiesta Villas Condominium Association. The case
was transferred to the Presiding Civil Judge for reassignment.
IT IS ORDERED that this case be assigned to Civil Calendar CVJ05, the Honorable
David Udall, for all further proceedings. If any objections to the Notice of Change of Judge are
filed, the noticed judge retains jurisdiction to hear and decide the objections. Any objections
must be filed and a copy delivered to the noticed judge within twenty days of the date of this
order.
Pending:
N/A
ATTENTION: If there are any matters pending and/or previously scheduled events
(oral argument, hearings, conferences, trial, etc.), counsel are directed to immediately
contact the newly assigned division to determine whether the new division is able to
maintain the current schedule in this matter.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2013-095464
09/10/2013
Docket Code 066
Form V000A
Page 2
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.
10/31/2013 — CV2013095464 CONDOMINIUM ASSOCIATION, FIESTA VILLAS 10/31/2013 HON. DAVID K. UDALL View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Filed ***
11/04/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2013-095464
10/31/2013
Docket Code 042
Form V000A
Page 1
CLERK OF THE COURT
HON. DAVID K. UDALL
K. Gilmet
Deputy
LISA MARX
CHRISTINA N MORGAN
v.
FIESTA VILLAS CONDOMINIUM
ASSOCIATION, et al.
PAUL R NEIL
H U B REALTY L L C
NO ADDRESS ON RECORD
DWIGHT SCHRUTE HOLDINGS L L C
NO ADDRESS ON RECORD
SPENCER J LINDAHL
NO ADDRESS ON RECORD
MELINDA C LINDAHL
NO ADDRESS ON RECORD
CASE DISMISSED
Pursuant to Plaintiff’s Notice of Dismissal with Prejudice, electronically filed on October
31, 2013,
IT IS ORDERED dismissing this matter with prejudice.
Dated this 31st day of October, 2013
/ s / HONORABLE DAVID K. UDALL
JUDICIAL OFFICER OF THE SUPERIOR COURT
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2013-095464
10/31/2013
Docket Code 042
Form V000A
Page 2
ALERT: The Arizona Supreme Court Administrative Order 2011-140 directs the Clerk's
Office not to accept paper filings from attorneys in civil cases. Civil cases must still be initiated
on paper; however, subsequent documents must be eFiled through AZTurboCourt unless an
exception defined in the Administrative Order applies.
