Case Header

Maricopa County Superior Court Case CV2014-011845: public docket details, parties, minute entries, documents, and official source links for Sunrise Desert Vistas Property Owners Association.

Case Number

CV2014-011845

County

Maricopa

Caption

Not captured

Filed

9/25/2014

Case Type

Civil

Judge

Minder, Scott

Location

Downtown

Official Court Record

Official Court Record

Parties

Minute Entries

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

01/30/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

01/24/2017

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

MATTER UNDER ADVISEMENT

East Court Building – Courtroom 711

9:28 a.m. This is the time set for an Oral Argument. Counsel, John Harris is present on
behalf of the Plaintiff, Dona Lisa Johnson. Counsel, Lyn Anne Bailey is present on behalf of the
Defendants, Bernard Potof and Elizabeth Potof. Counsel, Robert Spurlock is present on behalf of
the Defendants, Echo Farrell, Karen Warren, Farrell Fine Homes LLC and Robert Farrell.
Counsel, Evan Schube is present on behalf of the Defendants, Ashlie Van Winkle, James
Dunning, and Go Big LLC. Counsel, Thomas Stoops is present on behalf of the Defendant,
Cynthia Bruce.

A record of the proceedings is made digitally in lieu of a court reporter.

Argument is presented to the Court regarding the following:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

01/24/2017

Docket Code 020
Form V000A
Page 2

 Defendants’ Motion for Partial Summary Judgment (Statute of Limitations) on
Counts I, II, and III of Plaintiffs’ Claims Against Defendants filed on October 4,
2016.

 Defendants’ Motion to Strike Portions of Unsigned Declaration of Plaintiff filed
on December 6, 2016.

 Defendants’ Motion for Summary Judgment on Duty to Investigate filed on
September 30, 2016.

 Defendants’ Motion for Summary Judgment on (I) Opinion of Value, (II) Breach
of Contract, and (III) Attorneys’ Fees filed on September 30, 2016.

11:29 p.m. Court stands at recess.

11:34 a.m. Court reconvenes with respective parties and counsel present.

A record of the proceedings is made digitally in lieu of a court reporter.

Argument continues.

Based upon the matters presented,

IT IS ORDERED taking these matters under advisement.

11:51 a.m. Matter concludes.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

01/30/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

01/25/2017

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

MATTER UNDER ADVISEMENT

East Court Building – Courtroom 711

9:07 a.m. This is the time set for an Oral Argument. Counsel, John Harris is present on
behalf of the Plaintiff, Dona Lisa Johnson. Counsel, Lyn Anne Bailey is present on behalf of the
Defendants, Bernard Potof and Elizabeth Potof. Counsel, Robert Spurlock is present on behalf of
the Defendants, Echo Farrell, Karen Warren, Farrell Fine Homes LLC and Robert Farrell.
Counsel, Evan Schube is present on behalf of the Defendants, Ashlie Van Winkle, James
Dunning, and Go Big LLC. Counsel, Thomas Stoops is present on behalf of the Defendant,
Cynthia Bruce.

A record of the proceedings is made digitally in lieu of a court reporter.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

01/25/2017

Docket Code 020
Form V000A
Page 2

Argument is presented to the Court regarding the following:

 Defendants Motion for Summary Judgment on (I) Consumer Fraud; (II) Constructive
Fraud; (III) Common Law Fraud; and (IV) Punitive Damages filed on September 30,
2016.

 Plaintiff’s Motion for Partial Summary Judgment on the Issue of Paragraph 6(H) in the
Standard Form Purchase Contract, I.E., Motion to Strike Paragraph 6(H) From Standard
Form Contract filed on October 4, 2016.

 Defendants’ Motion for Summary Judgment- Release filed on October 4, 2016.

 Plaintiff Buyer’s Motion for Partial Summary Judgment Against Defendant Seller for
Liability Purposes for Breach of Contract filed on October 4, 2016.

 Plaintiff’s Motion for Partial Summary Judgment on the Issue of Duty of a Real Estate
Licensee filed on October 4, 2016.

 Defendants’ Motion for Partial Summary Judgment on Counts I through IV of Plaintiffs’
Verified Second Amended Complaint (Negligence, Negligent Misrepresentation,
Consumer Fraud, Common Law Fraud) filed on October 4, 2016.

10:48 a.m. Court stands at recess.

11:34 a.m. Court reconvenes with respective parties and counsel present.

A record of the proceedings is made digitally in lieu of a court reporter.

Argument continues.

Based upon the matters presented,

IT IS ORDERED taking these matters under advisement.

11:18 a.m. Matter concludes.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

01/30/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

01/26/2017

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

MATTER UNDER ADVISEMENT

East Court Building – Courtroom 711

9:07 a.m. This is the time set for an Oral Argument. Counsel, John Harris is present on
behalf of the Plaintiff, Dona Lisa Johnson. Counsel, Lyn Anne Bailey is present on behalf of the
Defendants, Bernard Potof and Elizabeth Potof. Counsel, Robert Spurlock is present on behalf of
the Defendants, Echo Farrell, Karen Warren, Farrell Fine Homes LLC and Robert Farrell.
Counsel, Evan Schube is present on behalf of the Defendants, Ashlie Van Winkle, James
Dunning, and Go Big LLC. Counsel, Thomas Stoops is present on behalf of the Defendant,
Cynthia Bruce.

A record of the proceedings is made digitally in lieu of a court reporter.

Argument is presented to the Court regarding the following:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

01/26/2017

Docket Code 020
Form V000A
Page 2

 Defendants’ Motion for Partial Summary Judgment Acting in Concert filed on October 4,
2016.

 Defendants’ Motion for Partial Summary Judgment on Plaintiffs’ Claim for Prejudgment
Interest filed on October 4, 2016.

 Defendants’ Motion for Partial Summary Judgment on Punitive Damages filed on
October 4, 2016.

 Defendants’ Motion for Partial Summary Judgment on Counts III and IV of Plaintiffs’
Verified Second Amended Complaint filed on October 4, 2016.

10:00 a.m. Court stands at recess.

10:14 a.m. Court reconvenes with respective parties and counsel present.

Argument continues.

Based upon the matters presented,

IT IS ORDERED taking these matters under advisement.

10:31 a.m. Matter concludes.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

02/17/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

02/05/2016

Docket Code 003
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

PETER AKMAJIAN
CYNTHIA BRUCE
651 AVENIDA DEL NORTE
SARASOTA FL 34242
MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
JEANNA M W NASH
EVAN P SCHUBE
JOHN DUKE HARRIS

HEARING RESET

East Court Building – Courtroom 711

9:38 a.m. This is the time set for a Trial Setting Conference. All parties appear
telephonically. Counsel, John Harris is present on behalf of the Plaintiff, Dona Lisa Johnson.
Counsel, Lyn Anne Bailey is present on behalf of the Defendants, Bernard Potof and Elizabeth
Potof. Counsel, Maria Kupillas is present on behalf of Defendant, Sunrise Desert Vistas Property
Owners Association. Counsel, Robert Spurlock is present on behalf of the Defendants, Echo
Farrell, Karen Warren, Farell Fine Homes LLC, and Robert Farell. Counsel, Evan Schube is
present on behalf of Go Big LLC, Ashlie Van Winkle and James Dunning. Counsel, Jeanna Nash
is present on behalf of Scottsdale Desert Inspections LLC, Belinda Lee Raymond and Tray

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

02/05/2016

Docket Code 003
Form V000A
Page 2

Raymond. Peak One Builders and Restoration LLC, is neither present nor represented by
counsel. Cynthia Bruce is neither present nor represented by counsel. Grand Mesa Remodling
Inc., is neither present nor represented by counsel.

A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.

Discussion is held regarding scheduling matters.

IT IS ORDERED resetting the Telephonic Trial Setting Conference for March 8, 2016 at
9:00 a.m.

THE HONORABLE KERSTIN LEMAIRE
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W JEFFERSON
7TH FLOOR, COURTROOM 711
PHOENIX, AZ 85003
602-506-8245 TEL

Plaintiff shall initiate the conference call.

NOTE: Counsel shall be available for the conference call on a telephone land line and
not on cellular phones, in order to maximize all participants’ ability to hear and be heard.

Note: Counsel shall have their calendars available for this proceeding.

NOTE: All court proceedings are recorded by audio and video method and not by a
court reporter. Pursuant to Local Rule 2.22, if a party desires a court reporter for any proceeding
in which a court reporter is not mandated by Arizona Supreme Court Rule 30, the party must
submit a written request to the assigned judicial officer at least ten (10) judicial days in advance
of the hearing, and must pay the authorized fee to the Clerk of the Court at least two (2) judicial
days before the proceeding. The fee is $140 for a half-day and $280 for a full day.

Discussion is held.

IT IS FURTHER ORDERED granting the Joint Motion to Enter Second Amended
Scheduling Order.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

02/05/2016

Docket Code 003
Form V000A
Page 3

LET THE RECORD REFLECT that the Joint Motion to Enter Second Amended
Scheduling Order, is actually the Joint Motion to Enter Third Amended Scheduling Order.
Counsel shall file a formal order for signature.

9:50 a.m. Matter concludes.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/10/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/08/2016

Docket Code 089
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

PETER AKMAJIAN
CYNTHIA BRUCE
651 AVENIDA DEL NORTE
SARASOTA FL 34242
MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
JEANNA M W NASH
EVAN P SCHUBE
JOHN DUKE HARRIS

JURY TRIAL SET

East Court Building – Courtroom 711

9:33 a.m. This is the time set for a Trial Setting Conference. All parties appear
telephonically. Counsel, John Harris is present on behalf of the Plaintiff, Dona Lisa Johnson.
Counsel, Lyn Anne Bailey is present on behalf of the Defendants, Bernard Potof and Elizabeth
Potof. Counsel, Maria Kupillas is present on behalf of Defendant, Sunrise Desert Vistas Property
Owners Association. Counsel, Robert Spurlock is present on behalf of the Defendants, Echo
Farrell, Karen Warren, Farell Fine Homes LLC, and Robert Farell. Counsel, Evan Schube is
present on behalf of Go Big LLC, Ashlie Van Winkle and James Dunning. Counsel, Jeanna Nash

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/08/2016

Docket Code 089
Form V000A
Page 2

is present on behalf of Scottsdale Desert Inspections LLC, Belinda Lee Raymond and Tray
Raymond. Peak One Builders and Restoration LLC, is neither present nor represented by
counsel. Defendant, Cynthia Bruce is present on her own behalf. Grand Mesa Remodling Inc., is
neither present nor represented by counsel.

A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.

Discussion is held regarding the scheduling order in this case.

IT IS ORDERED that counsel for Plaintiff shall submit to this division a proposed 4th
amended scheduling order.

Discussion is held regarding the status of the case and the parties advise the Court they
are prepared to set a trial date. Accordingly,

IT IS FURTHER ORDERED as follows:

1. Setting a Trial Management Conference on January 6, 2017 at 10:00 a.m. 1 (hour)
(time allotted: 30 minutes). Lead counsel for all parties must appear in person and
cannot appear telephonically.

2. Setting Trial to a Jury on January 23, 2017, at 9:00 a.m. for jury selection. The
remaining days of trial, January 24-26th, 2017, and January 30, 2017 - February
2, 2017 will begin at 9:30 a.m. (time allotted: 8 days). PLEASE NOTE: Trial will
not proceed on Fridays as Friday is Law and Motion day for this division.

Duties Prior to Trial

3. Motions in Limine: All Motions in Limine shall be filed no later than December 16,
2016, and such motions must meet the test of State v. Superior Court, 108 Ariz. 396,
397; 499 P.2d 153 (1972): The primary purpose of a Motion in Limine is to avoid
disclosing to the jury prejudicial matters which may compel a mistrial. See also, Ariz.
R. Evid. 103(d). A written response to a Motion in Limine may be filed no later than
January 2, 2017. The Court may rule on Motions in Limine without oral argument. No
replies shall be filed. The parties must comply with Rule 7.2(a) Ariz.R.Civ.P., prior to
filing any Motion in Limine.

PLEASE NOTE: This division requires that all motions, responses, replies and
other Court requested filings in this case must be submitted individually. Counsel

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/08/2016

Docket Code 089
Form V000A
Page 3

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.

4. Joint Pretrial Statement: Counsel shall file, no later than December 27, 2016, a Joint
Pretrial Statement signed by all counsel. In addition to the information required by Rule
16, the Joint Pretrial Statement shall include a 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.

5. Jury Instructions and Voir Dire Questions: Counsel shall meet and agree on as many
proposed jury instructions as possible. Counsel shall file with their Joint Pretrial
Statement (the Judge would appreciate counsel providing a copy of the jury
instruction requests on a USB drive, in Microsoft Word):

a) Proposed voir dire questions.

b) A joint set of agreed-upon preliminary and final jury instructions and
proposed forms of verdicts.

c) Separate sets of requested instructions that have not been agreed upon.
Please read Rosen v. Knaub, 175 Ariz. 329; 85 P.2d 381 (1993) and the
RAJI Civil 3d Statement of Purpose and Approach before preparing
requests for non-RAJI instructions.

Recommended Arizona Jury Instructions (RAJI) need not be typed and may be requested in
the following manner: RAJI 3d Standard 1 - Duty of Jurors. Non-RAJI instructions should
be typed in Microsoft Word format. Each instruction should cover only one subject.

Duties at Trial Management Conference

6. Counsel shall be prepared to argue Motions in Limine if the Court deems necessary.

7. Counsel shall be prepared to discuss:

a) Time limits in voir dire, opening statements, examination of witnesses
and closing arguments.

b) Preliminary jury instructions, mini opening statements and voir dire.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/08/2016

Docket Code 089
Form V000A
Page 4

c) Agreed-upon deposition summaries and excerpts from deposition
transcripts and the editing of any videotaped depositions.

d) Any special scheduling or equipment issues.

EXHIBITS

8. At least two weeks prior to trial, counsel or their assistants shall contact the Clerk of
this division at 602-506-1470 or [email protected], regarding the proper
procedures for submitting exhibits to be marked for trial in this division.

No later than January 9, 2017, all parties shall deliver their exhibits to the clerk (any
deviation from this date must be approved by the clerk). The parties are directed
to meet in person to exchange the exhibits before coming to court and, to the extent
possible, remove any duplicate exhibits. The clerk will not hold or reserve exhibit
numbers for any party. If an exhibit has not been submitted by the time of marking,
the clerk will assign the next exhibit with that number.

Exhibits are marked in numerical order per party, making it necessary to mark all of
one party’s exhibits before marking the other party’s. Accordingly, the Defendant’s
exhibits numbering shall start at the next number following the last of Plaintiff’s
exhibits. (For example, Plaintiff submits 82 exhibits, which are marked Exhibit 1
through 82. Defendant submits 63 exhibits, which are marked 83 through 145). Please
do not combine the parties’ exhibits. Each side’s exhibits must be submitted
separately and in numerical order.

If counsel stipulate to any exhibits being received in evidence, counsel shall provide a
signed stipulation as to said exhibits (lack of objection to an exhibit in the Joint
Pretrial Statement is not taken to signify that the exhibit is automatically
received in evidence). If large demonstrative exhibits are submitted for marking, a
smaller version, such as a photograph, must also be provided in case the exhibit is
received in evidence. If photographs are submitted for marking, each photograph
must be marked as an individual exhibit unless counsel have stipulated to a set of
photographs being admitted into evidence.

With regard to trial exhibits, the parties are strongly discouraged from marking
exhibits they do not anticipate offering during trial. Each exhibit must be

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/08/2016

Docket Code 089
Form V000A
Page 5

separately and securely bound by a staple, prong, or in a binder of some sort.
Exhibits not securely bound or are bound with only a binder clip or rubber
bands will not be accepted and will be returned. Exhibits must be separated
using numbered tabs or a single sheet of colored paper.

9. The court would appreciate a bench copy of any exhibits or depositions in a binder.

10. One day's jury fees will be assessed unless the Court is notified of settlement before 2:00
p.m. on the judicial day before the Trial. Counsel are reminded to promptly notify the
Court of any settlement pursuant to Rule 5.1(c), Ariz.R.Civ.P.

11. The dates set forth in this Order are FIRM dates and will not be extended or modified
by this Court absent good cause. Lack of preparation will not ordinarily be
considered good cause.

The trial will take place in the Superior Court’s “e-courtroom.” A record of the
proceedings will be made by audio and CD in lieu of a court reporter. Should you want an
unofficial copy of the proceedings, the parties or counsel may request a CD of the proceedings
for a $30.00 charge. If a CD 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 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.

NOTE: All court proceedings are recorded by audio and video method and not by a
court reporter. Pursuant to Local Rule 2.22, if a party desires a court reporter for any proceeding
in which a court reporter is not mandated by Arizona Supreme Court Rule 30, the party must
submit a written request to the assigned judicial officer at least ten (10) judicial days in advance
of the hearing, and must pay the authorized fee to the Clerk of the Court at least two (2) judicial
days before the proceeding. The fee is $140 for a half-day and $280 for a full day.

9:14 a.m. Matter concludes.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/27/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/17/2017

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

UNDER ADVISEMENT RULING

The Court has considered the fully briefed “Plaintiffs’ Motion for Partial Summary
Judgment on the Issue of Duty of a Real Estate Licensee”. The Court has benefited from the oral
arguments of counsel and has reviewed all the attachments to the pleadings. In reaching its
decision, the Court also considered the legal file in this matter, and the applicable rules of court,
statutes, and case law.

In deciding this motion, the Court is applying the well-established standard established
by Orme School v. Reeves, 166 Ariz. 301 (1990). This court will grant summary judgment “if the
facts produced in support of the claim or defense have so little probative value, given the
quantum of the evidence required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.”

Candidly, the Court has reviewed this Motion and the responses a number of
times. Clearly the Defendants owe Plaintiff duties as outlined under the statutes and
administrative code. How those duties are to be observed will be question for the experts to
discuss as part of their standard of care testimony. Thus the Court is reticent to define the

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/17/2017

Docket Code 019
Form V000A
Page 2

Defendants’ duties toward the Plaintiff other than to affirm that the duties are as spelled out
under the Arizona statutes and administrative codes. The Court and counsel will then work
together to determine the appropriate wording of jury instructions that will be presented to the
jurors before they deliberate to determine if these duties have been violated and if any harm has
been caused to the Plaintiff by the alleged violations.

Thus rather than applying the facts as set forth thus far in the record to the applicable
statutes and case law, the Court will refrain from granting this motion and rather wait until trial
to craft jury instructions that address the parties’ duties and responsibilities to one another.

IT IS ORDERED denying “Plaintiffs’ Motion for Partial Summary Judgment on the
Issue of Duty of a Real Estate Licensee”.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/27/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/17/2017

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

UNDER ADVISEMENT RULING

The Court has considered the fully briefed “Plaintiff Buyer’s Motion for Summary
Judgment against Defendant Seller for Liability Purposes for Breach of Contract”. The Court has
benefited from the oral arguments of counsel and has reviewed all the attachments to the
pleadings. In reaching its decision, the Court also considered the legal file in this matter, and the
applicable rules of court, statutes, and case law.

In deciding this motion, the Court is applying the well-established standard established
by Orme School v. Reeves, 166 Ariz. 301 (1990). This court will grant summary judgment “if the
facts produced in support of the claim or defense have so little probative value, given the
quantum of the evidence required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.”

As for Plaintiff’s Motion to Strike Such Defendant’s Responses regarding the non-seller
defendants responding to the Plaintiff’s Motion for Summary Judgment, IT IS ORDERED
denying the motion. Said Defendants limited their responses to the extent that they were

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/17/2017

Docket Code 926
Form V000A
Page 2

mentioned as part of the motion for summary judgment and were justified in their attempts to
clarify the record.

Given the volume of facts in this matter, it is simply not clear to what extent Seller knew
of the defects to which she answered that there was no issue on her seller’s disclosure
documentation. It is more appropriate that the trier of fact determine if the Seller was aware of
the deficiencies of the property and if she breached the contract by providing information that
she knew to be untrue.

IT IS FURTHER ORDERED denying the “Plaintiff Buyer’s Motion for Summary
Judgment against Defendant Seller for Liability Purposes for Breach of Contract”

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/27/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/20/2017

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

UNDER ADVISEMENT RULING

The Court has carefully considered “Defendants Echo Farrell and Farrell Fine Homes’
Motion for Partial Summary Judgment on Counts I through IV of Plaintiffs’ Verified Second
Amended Complaint (Negligence, Negligent Misrepresentation, Consumer Fraud, Common Law
Fraud). The Court has benefited from the oral arguments of counsel and has reviewed all the
attachments to the pleadings. In reaching its decision, the Court also considered the legal file in
this matter, and the applicable rules of court, statutes, and case law.

In deciding this motion, the Court is applying the well-established standard established
by Orme School v. Reeves, 166 Ariz. 301 (1990). This court will grant summary judgment “if the
facts produced in support of the claim or defense have so little probative value, given the
quantum of the evidence required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.”

The Court has read and reread Plaintiff’s Response to this Motion numerous times in an
effort to establish how she relied on information that was purportedly inaccurately published in

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/20/2017

Docket Code 926
Form V000A
Page 2

the MLS listing. Without reliance, even if the listing was inaccurate and contain information was
fraudulently misrepresented, to prevail on Counts II – IV, Plaintiff must demonstrate her reliance
on the statements and that she was harmed by said reliance. Plaintiff’s deposition testimony is
that she did not rely on the MLS listing in deciding whether to purchase the home. Thus a critical
element to her claims is lacking.

For this reason, IT IS ORDERED granting the Motion for Summary Judgment re:
Negligent Misrepresentation, Consumer Fraud and Common Law Fraud as to the Farrell
Defendants only.

As to the Motion for Summary Judgment re: Negligence, IT IS FURTHER ORDERED
granting the Motion solely regarding claims of Farrell Defendants engaging in acts of negligence
by making misrepresentations in the MLS listing. However, with regard to the acts of their
employee/independent contractor, there are sufficient facts within the record for a jury to
consider whether the Farrell Defendants failed to supervise Defendant Kelly and if said failures
led to harm to the Plaintiff.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/21/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/20/2017

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

RULING

As for “Defendant’s Motion to Strike Portions of Unsigned Declarations of Plaintiff”
filed December 6, 2016. The Court has reviewed the Motion and Response and the supporting
documents filed along with said briefs. The Court has also benefited from the arguments of
counsel and has carefully considered the applicable case law, statutes and rules of court.

The Court will accept Plaintiff’s Counsel’s avowal that he erred in failing to renumber
the briefs pages when he edited the declaration before filing it. The Court will also accept
Plaintiff’s avowal that he inadvertently attached the declaration to wrong pleadings. Given the
number of pleadings filed in this matter at about the same time, this is plausible.

IT IS ORDERED denying the “Motion to Strike Portions of Unsigned Declarations of
Plaintiff.”

With regard to Counsel exceeding page limits in his Response especially by filing the
Supplemental Response despite the Court’s order to the contrary, the Court will disregard the
excess pages as a sanction.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/27/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/21/2017

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

UNDER ADVISEMENT RULING

The Court has considered the fully briefed “Motion for Summary Judgment on Duty to
Investigate.” The Court has benefited from the oral arguments of counsel and has reviewed all
the attachments to the pleadings. In reaching its decision, the Court also considered the legal file
in this matter, and the applicable rules of court, statutes, and case law.

In deciding this motion, the Court is applying the well-established standard established
by Orme School v. Reeves, 166 Ariz. 301 (1990). This court will grant summary judgment “if the
facts produced in support of the claim or defense has so little probative value, given the quantum
of the evidence required, that reasonable people could not agree with the conclusion advanced by
the proponent of the claim or defense.”

A real estate broker has a confidential and fiduciary relationship with their client that
requires the broker and/or agent to be held to the highest ethical standards and to deal fairly and
honestly with their clients. Marmis v. Solot Co., 117 Ariz. 499, 501-02; 573 P.2d 899, 901-02
(App. 1997). Thus a broker must disclose all material facts known to them to their clients. They

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/21/2017

Docket Code 019
Form V000A
Page 2

are required to be truthful and accurate when responding to their client’s inquiries. They must
relay any information that is in their possession accurately and completely. However, they do not
have a duty to independently investigate the conditions of a property. They do not have a duty to
have expertise in areas other than those required to receive their broker’s/salesperson’s license
nor should they advise on matters outside of their expertise or field of competence. They do,
however, have a duty to take reasonable steps in assisting their client in confirming that
information relevant to the transaction is reliable and accurate. A.R.S. §§ 32-2101, 2122.
A.A.C.R4-28-11-1 (H) and (I).

Plaintiff cites to no facts indicating that the KW Defendants failed disclose all material
facts known to them or that they were untruthful in their responses to Plaintiff’s inquiries. No
facts were raised to indicate that KW Defendants failed in their duty to Plaintiff via acts of
omission.

The Court finds that the KW Defendants and Farrell Defendants were under no duty to
independently investigate the condition of the property.

IT IS ORDERED granting the “Motion for Summary Judgment on Duty to Investigate.”

The Court will not assess attorney fees and costs at this time. At the end of the litigation
or, at a minimum, when all the various dispositive motions have been ruled upon, the Court will
reconsider the appropriateness of whether to award attorney fees and costs and how much to
award.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/22/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/21/2017

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

UNDER ADVISEMENT RULING

As for the “Motion for Summary Judgment on (I) Statute of Limitations; (II) Estoppel;
and (III) Reliance” filed on September 30 2016, the Court has carefully considered the Motion,
the Responses and Replies, the applicable case law, statutes and rules of court. The Court also
benefited from the thoughtful arguments of counsel.

In deciding this motion, the Court will grant the Motion for Summary Judgment if there
is no genuine dispute as to any of the material facts that form the basis for the claim being
challenged by the motion. The Court will also make every inference in favor of the party
opposing the motion.

With regard to the motion regarding whether the statute of limitations bars claims relating
to the wash and inspection report, the key issue is when Plaintiff reasonably knew of the wash
and how water would flow down it. Despite holding herself out as an experienced real estate
licensee and general engineering contractor, Plaintiff claims that as she was from Northern

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/21/2017

Docket Code 926
Form V000A
Page 2

California, she didn’t understand how a desert wash functioned. Therefore she did not appreciate
that it would flood if there were a significant rain.

The Court finds that the statute of limitations began to run when Plaintiff knew or should
have known enough to investigate her alleged injury. Plaintiff was told that the wash was a
“natural functioning wash”. She also inquired of the Maricopa County Flood Control District
regarding concerns about the wash as she had seen “not so nice and costly issues” as a result of
flood and water flow issues. She also received a 2011 Grading and Drainage Report, which
mentioned the wash. There was also substantial rain that would have flowed into the wash in
August and September of 2012. Before signing the purchase contract, Plaintiff indicated that she
would conduct all environmental inspections. Thus Plaintiff was on notice that there could be
issues with the wash when she contacted the flood control district in September 2011. She
certainly would have been on notice that a natural wash in Arizona can cause water flow during
the rains in August and September of 2012. The Court finds that Plaintiff possessed the requisite
knowledge sufficient to know a wrong may have occurred absolutely no later than September 7,
2012. Candidly, the Court believes that given Plaintiff’s experience in buying and selling
properties and in her communications with the Flood Control District, she truly was on notice by
November 21, 2011 when she received the Inspection Report. However in drawing inferences in
favor of the Plaintiff, the Court is using the letter date.

Thus with regards to claims under the Consumer Fraud Act, which has a one year statute
of limitations, and under a claims for negligent misrepresentation or negligence, which has a two
year statute of limitations, Plaintiff would have been required to file her complaint not later than
September 7, 2013 and September 7, 2014 respectively.

As to the stucco cracking, Plaintiff testified that she noticed the cracking about one week
after she closed escrow on the property. Thus, her claims regarding stucco damage would also be
barred by the two-year statute of limitations.

IT IS ORDERED granting the Motion for Summary Judgment re: Statute of Limitations
on the Consumer Fraud Act and Negligent Misrepresentation or Negligence claims.

With regard to the motion’s request that Plaintiff is estopped from bringing claims
against the KW Defendants, the Court finds that there are genuine issues of fact as to the extent
to which Plaintiff initially may have justifiably relied on the statements made by KW
Defendants. Although Plaintiff clearly relied on her own significant experience and her own due
diligence efforts in deciding whether or not to purchase the property, there are questions of
material fact with regard to what extent she relied on the KW Defendants statements regarding
whether she should purchase this property and the value of the property.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/21/2017

Docket Code 926
Form V000A
Page 3

IT IS FURTHER ORDERED denying the Motion for Summary Judgment re: Estoppel
and Reliance.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/27/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/22/2017

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

UNDER ADVISEMENT RULING

Order Granting Defendant’s Motion for Partial Summary Judgment
on Plaintiff’s Claim for Prejudgment Interest

This matter came before the Court on Defendant’s Motion for Partial Summary Judgment
filed on October 4, 2016. The Court has benefited from the oral arguments of counsel and has
reviewed all the attachments to the pleadings. In reaching its decision, the Court also considered
the legal file in this matter, and the applicable rules of court, statutes, and case law.

In deciding this motion, the Court is applying the well-established standard established
by Orme School v. Reeves, 166 Ariz. 301 (1990). This court will grant summary judgment “if the
facts produced in support of the claim or defense have so little probative value, given the
quantum of the evidence required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.”

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/22/2017

Docket Code 926
Form V000A
Page 2

When alleged damages are unliquidated, prejudgment interest may not be granted to the
claimants as a matter of law. The controlling statute states that the Court should not award
“[p]rejudgment interest for any unliquidated, future, punitive or exemplary damages that are
found by the trier of fact.” A.R.S. § 44-1201(D)(1). Defendant argues that Plaintiff is precluded
from prejudgment interest because the alleged damages are unliquidated. Defendant insists that
evidence regarding costs of construction repairs is inexact and based entirely on opinion and
discretion. This position is supported by holdings of both state and federal courts. Defendant
correctly cites the United States District Court’s belief that “ascertaining construction repairs
necessarily involves opinion and discretion.” Vigilant Ins. v. Sunbeam Corp., 231 F.R.D. 582,
596 (D. Ariz. 2005). The Arizona Court of Appeals determined that mere estimates “do not reach
the level of exactitude required for an award of prejudgment interest.” Custom Roofing Co., v.
Alling, 146 Ariz. 388, 391 (Ct. App. 1985).

With regard to this issue, Plaintiff responds by arguing that some of the damages are
capable of exact computation without opinion or discretion and deserve to be treated at
liquidated damages. Plaintiff argues that items like the home’s purchase price, services already
paid for, expert costs, and construction materials qualify as liquidated damages, affording an
appropriate prejudgment interest request. In the reply, Defendant demonstrates that Plaintiff’s
falls short. The Court has considered Plaintiff’s response to this portion of the Defendants’
motion and has taken all inferences in the light most favorable to Plaintiff. Nonetheless,
Plaintiff’s grievances were not persuasive.

The Court will remain consistent with the position that estimates of repair costs, largely
derived from opinion and discretion, do not constitute liquidated damages. Even reading the facts
in the light most favorable to Plaintiff, the record does not indicate that reasonable minds could
differ upon the inexact nature of appraisals and estimates offered by Plaintiff.

IT IS ORDERED granting Defendant’s Motion for Partial Summary Judgment on
Plaintiff’s Claim for Prejudgment Interest.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/27/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/22/2017

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

UNDER ADVISEMENT RULING

The Court has carefully considered “Defendants’ Echo E. Farrell, Robert Farrell, Farrell
Fine Homes, LLC and Karen Kelly’s Motion for Partial Summary Judgment (Statute of
Limitations) on Counts I, II and III of Plaintiff’s Claims Against Defendants”. The Court has
benefited from the oral arguments of counsel and has reviewed all the attachments to the
pleadings. In reaching its decision, the Court also considered the legal file in this matter, and the
applicable rules of court, statutes, and case law.

In deciding this motion, the Court is applying the well-established standard established
by Orme School v. Reeves, 166 Ariz. 301 (1990). This court will grant summary judgment “if the
facts produced in support of the claim or defense have so little probative value, given the
quantum of the evidence required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.”

For the reasons as set forth in this Court’s ruling on the KW Defendants Motion for
Summary Judgment on (I) Statute of Limitations; (II) Estoppel; and (III) Reliance, the Court

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/22/2017

Docket Code 019
Form V000A
Page 2

finds that with regard to issues relating to the wash between the house and the barn, Plaintiff had
sufficient knowledge to know that a wrong may have occurred and caused injury by September
7, 2012.

With regard to the following issues, Plaintiff had the requisite knowledge to know that a
wrong may have occurred and caused injury more than two years before the initiation of this
case. She was aware no later than November of 2011 that there was a wash north of the
barn. As for roofing issues, Plaintiff knew by December 23, 2011 that the roof was in need of
repair as she sought out recommendations for a good roofer. The November 21, 2011 Scottsdale
Desert home inspection, which was given to Plaintiff, indicated that the roof was in need of
repair. Likewise she was aware of stucco issues on the house by January 13, 2012, when she
approached the home inspector about the work that needed to be done as the stucco was cracking
and coming off in places. Plaintiff was on notice via the same Scottsdale Desert home inspection
that the chimney cap need flashing below the chimney. In December 23, 2011, Plaintiff emailed
Ms. Van Winkle seeking referrals for a repair person to repair a door frame and repair/replace
windows. The home inspection also indicated issues with condensation between window panes,
floor tiles and grout.

For ease of keeping track of the dates when the statute of limitations would run, the Court
will use the latest date of January 12, 2012 when she contacted the home inspector.

The Court finds that Plaintiff knew or should have known of the injuries as alleged in
Counts I, II and III of Plaintiff’s Verified Second Amended Complaint in excess of two years
prior to filing suit in this matter.

IT IS ORDERED granting “Defendants’ Echo E. Farrell, Robert Farrell, Farrell Fine
Homes, LLC and Karen Kelly’s Motion for Partial Summary Judgment (Statute of Limitations)
on Counts I, II and III of Plaintiff’s Claims Against Defendants”.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/27/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/23/2017

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

UNDER ADVISEMENT RULING

The Court has carefully considered the fully briefed ”Motion for Summary Judgment on
(I) Consumer Fraud; (II) Constructive Fraud; (III) Common Law Fraud; and (IV) Punitive
Damages” filed by Defendants Ashley Van Winkle and John Does Van Winkle, James Dunning
and Jane Dow Dunning, and Go Big, LLC dba as Keller Williams Arizona Realty. The Court has
benefited from the oral arguments of counsel and has reviewed all the attachments to the
pleadings. In reaching its decision, the Court also considered the legal file in this matter, and the
applicable rules of court, statutes, and case law.

In deciding this motion, the Court is applying the well-established standard established
by Orme School v. Reeves, 166 Ariz. 301 (1990). This court will grant summary judgment “if the
facts produced in support of the claim or defense have so little probative value, given the
quantum of the evidence required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.”

As for the Motion for Summary Judgment regarding consumer fraud, given that the
standard of proof for the trier of fact is by a preponderance of the evidence, there are sufficient

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/23/2017

Docket Code 019
Form V000A
Page 2

facts present in the record, given that inferences are being made in the light most favorable to
Plaintiff for purposes of this motion, to present to a jury as to whether an act of consumer fraud
occurred. Describing the property as being “free of negatives” and worth $750,000.00 may have
induced Plaintiff into going forward with the purchase of the home. The trier of facts will need to
determine Defendants knew the statements were false and intended for Plaintiff to rely upon
them. The home’s value and whether it had “negatives” were certainly material to deciding
whether to purchase the property.

Likewise, with regard to the claim for constructive fraud, the trier of fact will need to
determine whether or not Plaintiff justifiably relied on Ms. Van Winkle’s statements and
representations and whether said reliance was to her detriment.

However with regard to the claim for common law fraud, which must be proven by clear
and convincing evidence, Plaintiff has failed to meet the burden of proving the requisite nine
elements of common law fraud as set forth in Echols v. Beauty Built Homes, Inc., 132 Ariz. 498,
500, 647 P.2d 629, 631 (1982). Plaintiff has not clearly set forth in her pleadings, Response to
this motion, or within her statement of fact how she can overcome the higher burden of proving
that the representations regarding the wash, home value, and desirability of the home were false,
that defendants knew they were false, and that they intended for Plaintiff to rely on said
representations and that she was injured as a result of said reliance.

Lastly, no evidence has been presented that the KW Defendants acted with an evil mind
or were guided by evil motives. Thus, at this juncture, Plaintiff simply cannot meet the standard
of proof to show the defendant’s behavior was outrageous or malicious. That being said, should
the evidence at trial show that an instruction regarding punitive damages is warranted, the Court
will give the jury the requisite instruction regarding punitive damages.

IT IS ORDERED denying the Motion for Summary Judgment on (I) Consumer Fraud;
(II) Constructive Fraud and GRANTING the Motion for Summary Judgment on (III) Common
Law Fraud and (IV) Punitive Damages.

The Court declines to award attorney fees at this juncture and will make a decision
regarding the appropriate and reasonable amounts to be awarded as attorney’s fees at the end of
the litigation in this matter.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/27/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/23/2017

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

UNDER ADVISEMENT RULING

The Court has reviewed the fully briefed Defendants Ashlie Van Winkle, James Dunning
and Go Big, LLC’s Motion for Summary Judgment (I) Opinion of Value, (II) Breach of
Contract, (III) Attorney Fees. The Court has benefited from the oral arguments of counsel and
has reviewed all the attachments to the pleadings. In reaching its decision, the Court also
considered the legal file in this matter, and the applicable rules of court, statutes, and case law.

In deciding this motion, the Court is applying the well-established standard established
by Orme School v. Reeves, 166 Ariz. 301 (1990). This court will grant summary judgment “if the
facts produced in support of the claim or defense have so little probative value, given the
quantum of the evidence required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.

With regard to the issues relating to the opinion of value, there are sufficient questions of
fact, including the trier of facts ability to question the credibility of witnesses, as to whether
Plaintiff truly relied on the property value as estimated by her real estate agent in determining
whether or not to purchase the property and whether or not to have an independent appraisal

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/23/2017

Docket Code 926
Form V000A
Page 2

conducted. Although the estimation of value may not in and of itself actionable, it does provide
context for the discussions between the parties and the decisions made in purchasing the property
thus testimony with regard to the opinion of value will be allowed.

As for the breach of contract claims, although there is no clear contract with all relevant
terms spelled out in one document, there is a question of fact as to whether there are sufficient
facts to prove that the parties did enter into a contract for KW Defendants to act as real estate
agents for Plaintiff and what their responsibilities were as her agents and hers were as their
client. The Agency Disclosure Form is not in and of itself a contract but it is part of the
documents that evidence the contractual relationship between the parties with regard to the
purchase and potential “flip” sale of the property that is the subject of this action.

IT IS ORDERED denying Defendants Ashlie Van Winkle, James Dunning and Go Big,
LLC’s Motion for Summary Judgment (I) Opinion of Value, (II) Breach of Contract, (III)
Attorney Fees.

At this juncture in the litigation, the Court declines to award attorney fees and will take
up that issue at the conclusion of litigation, if appropriate.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/27/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/24/2017

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

UNDER ADVISEMENT RULING

The Court has fully reviewed Plaintiff’s “Motion for Partial Summary Judgment on the
Issue of Paragraph 6(H) in the Standard Form Purchase Contract, i.e., Motion to Strike Paragraph
6(h) from Standard Form Contract.” The Court has benefited from the oral arguments of counsel
and has reviewed all the attachments to the pleadings. In reaching its decision, the Court also
considered the legal file in this matter, and the applicable rules of court, statutes, and case law.

In deciding this motion, the Court is applying the well-established standard established
by Orme School v. Reeves, 166 Ariz. 301 (1990). This court will grant summary judgment “if the
facts produced in support of the claim or defense have so little probative value, given the
quantum of the evidence required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.”

The Court does not find that paragraph 6(h) in the contract is contrary to Arizona law.
Although the paragraph does in part read like a disclaimer, it does put buyers on notice of their
need to fully investigate any issues that are of concern to them before entering into such a

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/24/2017

Docket Code 926
Form V000A
Page 2

significant contract. Additionally, the provision only relates to those conditions that “could have
been discovered by inspection or investigation.” It does not prevent a buyer from pursuing action
against those conditions that were not readily discoverable by her investigation or inspection.

Lastly, Plaintiff admitted during her deposition that she read, reviewed and understood
documents before she signed them and that she understood that she could strike terms if she did
not agree with them. Instead of striking paragraph 6(h), she initialed it to indicate her agreement
with and understanding of it.

IT IS ORDERED denying both the Motion for Summary Judgment and the Motion to
Strike Paragraph (6) (h).

The Court declines to award attorney fees in this this matter until the end of litigation.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/27/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/24/2017

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

UNDER ADVISEMENT RULING

The Court has carefully reviewed Defendants Echo E. Farrell, Robert Farrell, Farrell Fine
Homes, LLC and Karen Warren’s Motion for Summary Judgment – Release. The Court has
benefited from the oral arguments of counsel and has reviewed all the attachments to the
pleadings. In reaching its decision, the Court also considered the legal file in this matter, and the
applicable rules of court, statutes, and case law.

In deciding this motion, the Court is applying the well-established standard established
by Orme School v. Reeves, 166 Ariz. 301 (1990). This court will grant summary judgment “if the
facts produced in support of the claim or defense have so little probative value, given the
quantum of the evidence required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.”

The Court in a previous ruling has determined that the Buyer Acknowledgment section of
the Purchase Contract was not illegal nor was it to be struck from the contract. The Court does
find that said provision applies to this contract. However, the Court declines to relieve all the

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/24/2017

Docket Code 019
Form V000A
Page 2

brokers involved in this matter of liability. It is a question of fact for the jurors to determine
which defects or condition that could have been discovered by inspection or
investigation. Although well after Plaintiff purchased the property, her expert opined that there
were many defects and red flags that should have been discovered, the jury must determine to
what extent these defects could have been discovered at the time Plaintiff executed the contract.
Plaintiff has set forth alleged material facts, when interpreted in the light most favorable to her,
such as whether Defendant Kelly knew of and failed to disclose a previous inspection report that
would have exposed known defects to Plaintiff and whether she was given poor advice regarding
making an all cash offer, that a jury may question the extent to which this paragraph applies to
this transaction.

IT IS ORDERED denying Defendants Echo E. Farrell, Robert Farrell, Farrell Fine
homes, LLC and Karen Warren’s Motion for Summary Judgment – Release.

The Court declines to make an award of attorney’s fees at this point in the litigation and
will wait until the matter is resolves to address these fee requests in context of the totality of the
litigation.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/28/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/27/2017

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

UNDER ADVISEMENT RULING

The Court has considered the fully briefed “Defendants Echo E. Farrell, Robert Farrell,
Farrell Fine Homes, LLC and Karen Kelly’s Motion for Partial Summary Judgment – “Acting in
Concert” which was also joined by the other defendants. The Court has carefully considered the
Motion, the Reponses and Replies, the applicable case law, statutes and rules of court. The
Court also benefited from thoughtful arguments of counsel.

In deciding this motion, the Court will grant the motion for summary judgment if there is
no genuine dispute as to any of the material facts that form the basis for the claim being
challenged by the motion. The Court will also make every inference in favor of the party
opposing the motion.

At the oral argument, Plaintiff conceded the Motion with regard to the Farrell
Defendant’s only. Thus, for purposes of keeping the Court’s records in order, IT IS ORDERED
granting the Motion for Summary Judgment regarding the Farrell Defendants only.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/27/2017

Docket Code 926
Form V000A
Page 2

With regard to the other Defendants, there are significant questions of fact as to who
knew about various reports and alleged defects, what their obligations were with regard to who
should disclose these items to Plaintiff and when they should have been disclosed, and what their
respective motives might have been with regard to these actions or lack of action.

IT IS FURTHER ORDERED denying the Motion for Summary Judgment re: Acting in
Concert regarding the remainder of the Defendants.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/28/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/27/2017

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

ORDER ENTERED BY COURT

Based upon the Court’s Minute Entry dated December 12, 2017,

IT IS ORDERED deeming struck Defendant Bruce’s Cross Motion for Summary
Judgment filed on November 30, 2016.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/28/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/27/2017

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

UNDER ADVISEMENT RULING

The Court has carefully considered the “Defendants Echo E. Farrell, Robert Farrell,
Farrell Fine Homes, LLC and Karen (Warren) Kelly’s Motion for Partial Summary Judgment on
Punitive Damages”. The Court has benefited from the oral arguments of counsel and has
reviewed all the attachments to the pleadings. In reaching its decision, the Court also considered
the legal file in this matter, and the applicable rules of court, statutes, and case law.

In deciding this motion, the Court is applying the well-established standard established
by Orme School v. Reeves, 166 Ariz. 301 (1990). This court will grant summary judgment “if the
facts produced in support of the claim or defense have so little probative value, given the
quantum of the evidence required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.”

In considering the case law regarding punitive damages, the Court simply cannot find
based on the evidence before it that Plaintiff has showed the heighten standard has been shown to
prove by clear and convincing evidence that defendants behavior was aggravated or malicious or

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/27/2017

Docket Code 019
Form V000A
Page 2

an “evil hand was guided by an evil mind.” Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d
565, 578 (1986).

Thus, the Court will grant the Motion for Summary Judgment with this caveat. Should
the evidence developed at trial indicate that Defendants did possess the requisite state of mind to
sustain a jury instruction regarding punitive damages, the Court will consider given that
instruction if appropriate.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/29/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/28/2017

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

UNDER ADVISEMENT RULING

The Court has carefully considered “Defendant Karen (Wren) Kelly’s Motion for Partial
Summary Judgment on Counts II and IV of Plaintiff’s Verified Second Amended Complaint
(Consumer Fraud, Common Law Fraud). The Court has benefited from the oral arguments of
counsel and has reviewed all the attachments to the pleadings. In reaching its decision, the Court
also considered the legal file in this matter, and the applicable rules of court, statutes, and case
law.

In deciding this motion, the Court is applying the well-established standard established
by Orme School v. Reeves, 166 Ariz. 301 (1990). This court will grant summary judgment “if the
facts produced in support of the claim or defense have so little probative value, given the
quantum of the evidence required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim or defense.”

As with the VanWinkle and Keller William Motion for Summary Judgment re: Consumer
Fraud, there are sufficient facts present in the record, given that inferences are being taking in the

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/28/2017

Docket Code 926
Form V000A
Page 2

light most favorable to the plaintiff for purposes of this motion, to present to a jury as to whether
an act of consumer fraud occurred. Defendant Kelly prepared the marketing materials and MLS
listing for the property. Said materials may well have been what drew Plaintiff’s interest to the
property when she was looking for land to purchase. Likewise Defendant Kelly was to ensure
that the materials provided to Plaintiff comported with an agents’ requirements to provide open
and honest disclosure. There is also a question as to whether Defendant Kelly provided the
appropriate attachments to Plaintiff’s agent regarding building plans, a flood plain report, and a
grading and drainage report.

With regard to the claim of common law fraud, as those claims must be supported by
clear and convincing evidence, the Court applies that heightened standard of care to this claim.
Plaintiff simply fails to meet the burden of provident the nine elements of common law fraud as
set forth in Echol v. Beauty Built Homes, Inc. 132 Ariz. 498, 500, 647 P.2d 629, 631 (1982).

IT IS ORDERED granting the motion for summary judgment regarding common law
fraud and denying the motion for summary judgment regarding consumer fraud.

The Court declines to award attorneys’ fees and costs at this juncture in the litigation and
will reserve ruling on that request at the end of litigation.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/29/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/28/2017

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

RULING

It was brought to the Court’s attention at the end of the oral arguments during the myriad
motions for summary judgment that the Court had not ruled on Counsel Spurlock’s October 25,
2016 “Application for Attorneys’ Fees and Costs Incurred in Motion to Strike Estimators’
Opinions.”

Although the Court has declined to award attorneys' fees during the dispositive motion
practice process are there are simply too many motions to determine how to appropriate and
fairly apportion the potential award of attorney fees and costs. Thus the Court will defer ruling
on those issues until the matter is resolved.

However, in reviewing the Court’s orders in the fall of 2016 and with a desire to remain
consistent with those rulings, the Court will grant the Application for Attorneys’ Fees and Costs
in the amount of $1907.50. Counsel for the Farrell defendants shall lodge a propose form of
judgment for the court’s signature within 10 days of the date of this minute entry.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/29/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

03/28/2017

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

ORDER ENTERED BY COURT

During the oral arguments held in the end of January 2017, the Potof Defendants inquired
as to whether they were still parties in this matter as they are not included in the causes of action
as alleged in the Second Amended Complaint filed September 8, 2016.

After reviewing the Verified Second Amended Complaint, the Court agrees that none of
the allegations appears to relates to Defendants Potof. As an amended complaint does not set
forth any allegations or claims against the Potofs, the Court must assume that they are no longer
a party to this action.

Thus the Court will no longer treat the Potofs as Defendants in this matter and relieve
them of any obligations as such.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

04/25/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

04/21/2017

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
J. Escarcega

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

MINUTE ENTRY

The Court has reviewed the Motion for Reconsideration filed on April 10, 2017 by
counsel for Defendants Ashlie Van Winkle, James Dunning and Go Big, LLC dba Keller
Williams Arizona Realty.

IT IS ORDERED that Plaintiff may have until May 12, 2017 to respond to the issues
raised by the Motion. Defendants may reply by May 26, 2017.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

04/26/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

04/22/2016

Docket Code 079
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

PETER AKMAJIAN
CYNTHIA BRUCE
651 AVENIDA DEL NORTE
SARASOTA FL 34242
MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
DOCKET-CIVIL-CCC

DISMISSAL CALENDAR

The Court having received the Defendant’s Notice of Settlement of Claims Against
Defendant Sunrise Desert Vista POA Only, filed on April 22, 2016,

IT IS ORDERED accepting the Notice of Settlement as to Defendant Sunrise Desert
Vista POA Only and placing this matter on the Dismissal Calendar for dismissal on or after June
27, 2016, without further notice unless a Judgment is entered or filed or a Stipulation for
Dismissal is presented.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

04/26/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

04/25/2016

Docket Code 079
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

PETER AKMAJIAN
CYNTHIA BRUCE
651 AVENIDA DEL NORTE
SARASOTA FL 34242
MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
DOCKET-CIVIL-CCC

DISMISSAL CALENDAR

The Court having received the Defendants’ Notice of Settlement between Plaintiff and
Scottsdale Desert Inspections, L.L.C.; Tray Raymond and Belinda Raymond filed on April 22,
2016,

IT IS ORDERED accepting the Notice of Settlement and placing this matter on the
Dismissal Calendar as to Scottsdale Desert Inspections, L.L.C., Tray Raymond, and Belinda
Raymond only for dismissal on or after June 27, 2016, without further notice unless a Judgment
is entered or filed or a Stipulation for Dismissal is presented.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

04/27/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

04/25/2017

Docket Code 375
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
D. Charbagi

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

DISMISSAL CALENDAR

The Court having received the Defendants’ Notice of Settlement, filed on April 25, 2017
regarding Defendants’ Ashlie Van Winkle, James Dunning, and Go Big, LLC, Karen Kelly,
Echo E. Farrell, Farrell Fine Homes, LLC, Cynthia Bruce and Plaintiffs’ Dona Lisa Johnson and
the Dona Lisa Johnson Living Trust dated October 29, 1991.

IT IS ORDERED accepting the Notice of Settlement and placing this matter on the
Dismissal Calendar for dismissal on or after June 27, 2017, without further notice unless a
Judgment is entered or filed or a Stipulation for Dismissal is presented.

IT IS FURTHER ORDERED vacating the Trial set for November 13, 2017 at 9:00 a.m.

Based on this notice,

IT IS FURTHER ORDERED Defendants’ Ashlie Van Winkle and John Doe Van
Winkle, James Dunning and Jane Doe Dunning, and Go Big, LLC dba Keller Williams Arizona

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

04/25/2017

Docket Code 375
Form V000A
Page 2

Realty’s Motion for Reconsideration (request reconsideration of Plaintiffs breach of contract and
acting in concert claims) is now moot.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

05/04/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

04/28/2017

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
D. Charbagi

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

MINUTE ENTRY

The Court has read the Plaintiff's Motion for Reconsideration and will allow the Potof
Defendants to respond by May 15, 2017.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

05/09/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

05/03/2016

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

PETER AKMAJIAN
CYNTHIA BRUCE
651 AVENIDA DEL NORTE
SARASOTA FL 34242
MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK

ORAL ARGUMENT SET

The Court has received Plaintiff’s Motion for Leave to File Second Amended Complaint
filed on April 13, 2016, therefore,

IT IS ORDERED setting an Oral Argument on July 6, 2016 at 9:00 a.m. (30 min) in
this division.

Counsel and the parties, if representing themselves, are to appear in person before:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

05/03/2016

Docket Code 094
Form V000A
Page 2

THE HONORABLE KERSTIN LEMAIRE
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W JEFFERSON
7TH FLOOR, COURTROOM 711
PHOENIX, AZ 85003
602-506-8245 TEL

NOTE: All court proceedings are recorded by audio and video method and not by a
court reporter. Pursuant to Local Rule 2.22, if a party desires a court reporter for any proceeding
in which a court reporter is not mandated by Arizona Supreme Court Rule 30, the party must
submit a written request to the assigned judicial officer at least ten (10) judicial days in advance
of the hearing, and must pay the authorized fee to the Clerk of the Court at least two (2) judicial
days before the proceeding. The fee is $140 for a half-day and $280 for a full day.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

07/13/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

07/03/2017

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
D. Charbagi

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
ROBERT J SPURLOCK

MINUTE ENTRY

The Court having reviewed Plaintiff's Motion for Reconsideration of Dismissal of Potof
Plaintiffs and the response thereto,

IT IS ORDERED DENYING Plaintiff's Motion for Reconsideration of Dismissal of
Potof Plaintiffs.

IT IS FURTHER ORDERED affirming this Court's order of May 10, 2017, granting
Judgment in Favor of Defendants Bernard Potof and Elizabeth Potof.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

07/19/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

07/05/2016

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

CYNTHIA BRUCE
651 AVENIDA DEL NORTE
SARASOTA FL 34242
MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK

MATTER UNDER ADVISEMENT

East Court Building – Courtroom 711

9:05 a.m. This is the time set for an Oral Argument Re: Plaintiff’s Motion for Leave to
File Second Amended Complaint. Counsel, John Harris is present on behalf of the Plaintiff,
Dona Lisa Johnson. Counsel, Lyn Anne Bailey is present on behalf of the Defendants, Bernard
Potof and Elizabeth Potof. Counsel, Richard Mack is present on behalf of the Defendants, Go
Big LLC, Ashlie Van Winkle and James Dunning. Appearing telephonically is counsel, Robert
Spurlock on behalf of the Defendants, Echo Farrell, Karen Warren, Farrell Fine Homes LLC, and
Robert Farrell.

A record of the proceedings is made digitally in lieu of a court reporter.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

07/05/2016

Docket Code 020
Form V000A
Page 2

Argument is presented to the Court.

IT IS ORDERED taking this matter under advisement.

Discussion is held.

IT IS ORDERED that Robert Spurlock shall submit any additional information to the
Court by the close of business today. Plaintiff’s counsel will have until the close of business July
13, 2016 for a reply.

9:40 a.m. Matter concludes.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

08/16/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

08/15/2016

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

CYNTHIA BRUCE
651 AVENIDA DEL NORTE
SARASOTA FL 34242
MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK

ORAL ARGUMENT SET

The Court has received the Motion to Strike Additional Declaration of Tony Hecht Dated
June 15, 2016 filed on June 24, 2016 and the Motion to Strike Estimators’ opinion filed on
August 4, 2016, therefore,

IT IS ORDERED setting an Oral Argument on September 15, 2016 at 1:30 p.m. (1
hour) in this division.

Counsel and the parties, if representing themselves, are to appear in person before:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

08/15/2016

Docket Code 094
Form V000A
Page 2

THE HONORABLE KERSTIN LEMAIRE
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W JEFFERSON
7TH FLOOR, COURTROOM 711
PHOENIX, AZ 85003
602-506-8245 TEL

NOTE: All court proceedings are recorded by audio and video method and not by a
court reporter. Pursuant to Local Rule 2.22, if a party desires a court reporter for any proceeding
in which a court reporter is not mandated by Arizona Supreme Court Rule 30, the party must
submit a written request to the assigned judicial officer at least ten (10) judicial days in advance
of the hearing, and must pay the authorized fee to the Clerk of the Court at least two (2) judicial
days before the proceeding. The fee is $140 for a half-day and $280 for a full day.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

09/02/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

09/01/2016

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

CYNTHIA BRUCE
651 AVENIDA DEL NORTE
SARASOTA FL 34242
MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK

UNDER ADVISEMENT RULING

This Court has carefully considered Plaintiffs’ “Motion for Leave to File Second
Amended Complaint” filed April 13, 2016. The Motion was fully briefed and the Court
benefited from the arguments of counsel. The Court has considered the legal file, the applicable
case law, statutes and rules of Court.

On Aug 13, 2011 the “Property” was contracted to purchase by Dona Lisa Johnson
(“Plaintiff”). The closing date was December 15, 2011. First complaint was filed September 23,
2014. First amended complaint was filed April 17, 2015. Allegations for the second amended
complaint include additional claims of Common Law Fraud, and Breach of Contract. Consumer
Fraud and Constructive Fraud are part of the first amended claim claims. The allegations are that
the Keller Williams agents for Plaintiff (buyer in 2011) were the same agents that helped Mrs.
Bruce purchase the property in 2004. Information came to light during discovery that the Keller
Williams agents were aware of issues from the original purchase and they failed to disclose these
issues to Plaintiff during the sale of the property in 2011. Those issues were material and the

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

09/01/2016

Docket Code 926
Form V000A
Page 2

reason a claim has been filed. Plaintiff’s claim on page 9 section C appears to suggest that
Plaintiff was unaware of flooding to the property that may affect the barn. Defendants’ reply
shows evidence that the Plaintiff knew of the potential defect in September 17, 2011.

Facts

When is it proper to deny a motion for leave for amended complaint? Plaintiff has a right
to amend their Complaint “as a matter of course” within 21 days of their having been served with
a motion covered by Ariz. R. Civ. P. 15(a)(1)(B). If the amended complaint is not filed within
the 21 days, the statute gives two alternatives: by leave of Court or by written consent of the
adverse party. Ariz. R. Civ. P. 15(a)(1)(B). Rule 15 directs Courts that leave shall be freely
given “when justice so requires.” Id. The Ninth Circuit has held that this provision should “be
applied with extreme liberality” (internal quotations omitted). Owens v. Kaiser Found. Health
Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission Indians v. Rose,
893 F.2d 1074, 1079 (9th Cir. 1990)); see also Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1051 (9th Cir. 2003). A motion to amend pleadings should be granted unless the court
finds undue delay in the request, bad faith, undue prejudice, or futility in the amendment.
Tumacacori Mission Land Development, Ltd. v. Union Pacific R. Co. (App. Div.2 2013) 231
Ariz. 517, 297 P.3d 923
The Motion for Leave to file Second Amended Complaint was filed 4/13/2016. To stay
in compliance with the 21 day limit under Ariz. R. Civ. P. 15(a)(1)(B), the new relevant
information would have to have been discovered no earlier than 3/23/2016.
Each new complaint should be analyzed to determine if the amendment would be futile.
The Court may deny amendment, if the amendment would be futile. Bishop v. State Dep't of
Corr., 172 Ariz. 472, 474–75, 837 P.2d 1207, 1209–10 (App.1992). First, has there been a
breach of contract with the Buyer’s Agent (Ashlie VanWinkle and Keller Williams)? The
Purchase contract was signed on 8/13/2011 with Dona Johnson as the buyer and
VanWinkle/Keller Williams as the Buyers’ Broker. Defendant Keller Williams points to an
agency disclosure and election dated 12/15/2011 as not being a contract.
Secondly the matter of common law fraud, information that was material to the buyer’s
decision to purchase the property was based on misrepresentations or omissions by defendant
Scottsdale Desert. Defendant Keller Williams mentions that the Plaintiff’s claims are found in
tort law, not contract citing Haldiman v. Gosnell Dev. Corp., 155 Ariz. 585, 586-87, 748 P.2d
1209, 1210-11 (Ct. App. 1987), which was an appellate decision regarding whether a real estate
agent who is an employee of the seller owes a duty of full and frank disclosure to the buyer in a
real estate transaction. A broker has none of fiduciary obligations generally owed to principal
absent broker-principal relationship. Plaintiff should have evidence of a broker/principle

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

09/01/2016

Docket Code 926
Form V000A
Page 3

agreement, but it has not yet disclosed. This Court agrees that a real estate salesmen and brokers
must disclose to their clients information they possess pertaining to transaction involved if there
is a broker-principal relationship.

Conclusion

This Court finds that both new claims, breach of contract and common law fraud are
areas of dispute and so are not necessarily futile. Based on information provided to the Court, a
second amended complaint was not filed within the 21 day requirement under Ariz. R. Civ. P.
15(a)(1)(B). However, this Court finds no undue delay in request, bad faith, undue prejudice.

IT IS ORDERED granting Plaintiff’s Motion for Leave to File Second Amended
Complaint.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

09/20/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

09/15/2016

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

CYNTHIA BRUCE
651 AVENIDA DEL NORTE
SARASOTA FL 34242
MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK

MATTER UNDER ADVISEMENT

East Court Building – Courtroom 711

1:30 p.m. This is the time set for an Oral Argument Re: the Defendants’ Motion to Strike
Estimators’ opinion filed on August 4, 2016. Counsel, John Harris is present on behalf of the
Plaintiff, Dona Lisa Johnson. Counsel, Ryan Lamb is present on behalf of the Defendants,
Bernard Potof and Elizabeth Potof. Counsel, Robert Spurlock is present on behalf of the
Defendants, Echo Farrell, Karen Warren, Farrell Fine Homes LLC and Robert Farrell. Counsel,
Evan Schube is present on behalf of the Defendants, Ashlie Van Winkle, James Dunning, and Go
Big LLC

A record of the proceedings is made digitally in lieu of a court reporter.

Argument is presented to the Court.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

09/15/2016

Docket Code 020
Form V000A
Page 2

IT IS ORDERED taking this matter under advisement.

2:04 p.m. Matter concludes.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

10/18/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

10/17/2016

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

CYNTHIA BRUCE
651 AVENIDA DEL NORTE
SARASOTA FL 34242
MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK

RULING

The Court has read and reviewed Defendants’ Motion to Strike. The Motion was fully
briefed and the Court has reviewed all the of pleadings and their attachments. The Court has also
considered the legal file in this matter, the applicable case law, statutes and rules of the Court.
On September 15, 2016, the Court heard counsels’ oral arguments on the Motion and took the
matter under submission.

The crux of this motion arises out of Plaintiffs’ disclosure of two expert opinions in
Plaintiffs’ Fourth Supplemental Disclosure Statement entered on July 26, 2016. Pursuant to the
Scheduling Order entered by the Court on October 20, 2015, the deadline to disclose the
identities and opinions of Plaintiffs’ experts was November 20, 2015. Plaintiffs have already
submitted expert opinions on the November 20, 2015.

Plaintiffs contend that opinions of two additional estimators included in their July 26th
supplemental disclosure are admissible. Their claim rests heavily on the procedural status of the

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

10/17/2016

Docket Code 019
Form V000A
Page 2

case in that there is sufficient time for defense to prepare a defense and rebuttal to the
supplementary opinions which place a lower value on damages and repairs. Moreover, they
argue that no violation of the Single Expert Rule has occurred as they intend to use each
estimator as a fact witness.

In light of the information brought before us, the Court finds that the supplementary
opinions submitted on July 26, 2016 are untimely. Plaintiff knew or should reasonably have
known of its expert disclosure deadline.

The Court also finds that the Defendants are unduly prejudiced in the matter.
Consideration of Plaintiffs’ additional opinions would place an unreasonable burden on the
Defendants to prepare a defense in the wake of trial. The Court determines and sets deadlines to
avert this very prejudice.

For these reasons, IT IS ORDERED granting Defendants’ Motion to Strike.

The Court has also reviewed Defendants’ Application for Attorneys’ Fees and Costs re
Motion to Strike Additional Declaration of Tony Hecht Dated June 15, 2016, Plaintiff’s
Response in opposition filed October 6, 2016, and the Reply filed October 10, 2106.

As Defendants were the prevailing party in this matter, IT IS ORDERED awarding
attorneys’ fees in the amount of $2000.00.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

10/18/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

10/17/2016

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

CYNTHIA BRUCE
651 AVENIDA DEL NORTE
SARASOTA FL 34242
MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK

ORDER ENTERED BY COURT

A clerical error having been made,

IT IS ORDERED correcting the Minute Entry dated September 15, 2016 to include that
the Motion to Strike Additional Declaration of Tony Hecht Dated June 15, 2016 filed on June 24,
2016 was withdrawn by counsel on the record, subject to counsel being permitted to file an
Application for Attorneys’ fees relating to the Motion.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

11/01/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

10/31/2016

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

CYNTHIA BRUCE
651 AVENIDA DEL NORTE
SARASOTA FL 34242
MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK

RULING

The Court has received Defendant Cynthia Bruce’s Motion to Extend Response Date to
Plaintiffs’ Motion for Summary Judgment and Request for Expedited Ruling filed on October
28, 2016, therefore,

IT IS ORDERED granting and allowing the Defendant till November 30, 2016 to
respond.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

11/06/2015 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

11/04/2015

Docket Code 053
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE LORI HORN BUSTAMANTE
T. Nosker

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
STEVEN E WEINBERGER

MARIA R KUPILLAS
COURT ADMIN-CIVIL-CCC
DOCKET-CIVIL-CCC
JUDGE CUNANAN

CASE CONSOLIDATION

Upon Motion of counsel for the Defendant Sunrise Desert Vista POA and good cause
appearing,

IT IS ORDERED consolidating cause number CV 2014-012173 under cause number
CV 2014011845 for all further proceedings, all in accordance with the formal written Order to
Consolidate electronically signed by the Court on November 3, 2015and filed (entered) by the
Clerk on November 5, 2015.

IT IS FURTHER ORDERED transferring this cause to the Honorable Judge Cunanan
for all further proceedings.

IT IS FURTHER ORDERED vacating the Telephonic Pretrial Conference set for
February 5, 2016 at 9:30 a.m. to be reset by the newly assigned Judge.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

11/08/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

11/07/2016

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS
COMM. GARBARINO

DEFAULT

This division has received Plaintiff’s e-filed Application/Motion for Default Judgment
against Defendant, Cynthia Bruce in the above-captioned case.

IT IS ORDERED that no action will be taken by this division on the above-referenced
document(s).

The parties are advised that commissioners handle Rule 55(b) Default Judgment
proceedings and that the default proceedings in this matter are to be heard by Commissioner
Garbarino.

IT IS ORDERED that all documents necessary to support the entry of a default
judgment must be e-filed.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

11/07/2016

Docket Code 023
Form V000A
Page 2

Pursuant to Supreme Court Administrative Order No. 2010-117, default judgment
packets are not permitted to be e-filed. Accordingly, parties are directed to hand-deliver a
default coversheet and copies of the necessary filed documents to the commissioner’s division
for the entry of a default judgment.

IT IS FURTHER ORDERED, no further action will be taken by the assigned
commissioner until the necessary filed documents and coversheet are delivered to the division.
The parties/counsel can find the default judgment coversheet on the Court’s website at:

http://www.superiorcourt.maricopa.gov/SuperiorCourt/CivilDepartment/forms.asp

The parties/counsel can find additional information in the form of frequently asked questions at:

http://www.superiorcourt.maricopa.gov/SuperiorCourt/CivilDepartment/howDoI.asp

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

11/10/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

11/08/2016

Docket Code 064
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

JURY TRIAL RESET

East Court Building – Courtroom 711

9:05 a.m. This is the time set for a Status Conference. All parties appear telephonically.
Counsel, John Harris is present on behalf of the Plaintiff, Dona Lisa Johnson. Counsel, Lyn
Anne Bailey is present on behalf of the Defendants, Bernard Potof and Elizabeth Potof. Counsel,
Robert Spurlock is present on behalf of the Defendants, Echo Farrell, Karen Warren, Farrell Fine
Homes LLC and Robert Farrell. Counsel, Evan Schube is present on behalf of the Defendants,
Ashlie Van Winkle, James Dunning, and Go Big LLC.

A record of the proceedings is made digitally in lieu of a court reporter.

Discussion is held regarding scheduling.

Based upon the matters presented,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

11/08/2016

Docket Code 064
Form V000A
Page 2

IT IS ORDERED setting Oral Arguments on January 24, 2017 from 9:30 a.m. –
12:00 p.m., January 25, 2017 from 9:00 a.m. - 12:00 p.m., and January 26, 2017 from
9:00 a.m. - 12:00 p.m. This time will also be allotted to set a date for a Trial Management
Conference.

IT IS FURTHER ORDERED that counsel shall file a list of the motions to be discussed
at the Oral Arguments set above by December 2, 2016.

IT IS FURTHER ORDERED resetting the Jury Trial in this matter to November 13,
2017 at 9:00 a.m. for jury selection. The remaining days of trial, November 14-16, 2017 and
November 20-22, 2017, will begin at 9:30 a.m. (time allotted: 7 days). PLEASE NOTE: Trial
will not proceed on Fridays as Friday is Law and Motion day for this division.

9:20 a.m. Matter concludes.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

12/14/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

12/12/2016

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

RULING

The Court has read and carefully considered Defendant Bruce’s Motion for Leave to
File Cross Motion for Summary Judgment. Defendant Bruce had notice since at least March of
2016 that dispositive motions were initially to be filed by July 2016. The parties mutually agreed
to extend that deadline to October 2016 given the extensive, complicated litigation that has been
ongoing for a period of years in this case. The Court has three days already set for oral
arguments on almost two dozen motions for summary judgment, which is an extraordinary
number for this sort of a case. In order to effectively manage this case, the Court must insist that
the parties timely file their motions.

IT IS ORDERED denying the Motion for Leave to File Cross Motion for Summary
Judgment.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

12/19/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

12/15/2016

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

ORDER ENTERED BY COURT

The Plaintiff’s “Motion to Strike Motion for Summary Judgment” is moot as the Court
has denied “Bruce’s Motion for Leave to File Cross Motion for Summary Judgment”.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

12/19/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

12/15/2016

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

RULING

The Court has received Plaintiff's Motion to Enlarge Time and to Increase Page Limit for
Plaintiff's Response to Defendant's Motion to Strike Portions of Plaintiff's Declaration.

IT IS ORDERED denying the motion.

The Court intends to strictly construe A.R.Civ.P. 7.1(f)(1). Any motions to strike or
responses that exceed the two (2) pages limit that were filed without leave of the Court or as
expressly authorized by statute or other rule will be struck on the Court's own motion. The
volume of pleadings and the inability of counsel to collaborate to streamline the process
regarding oral arguments on said pleadings requires the Court to stringently enforce these rules.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

12/22/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

12/21/2016

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS
EDM-QC-CCC
MEEDS ADMINISTRATOR

MINUTE ENTRY

A clerical error having been made,

IT IS ORDERED deleting the minute entry with case number CV2014-011845, dated
December 19, 2016 and filed on December 20, 2016, with docket code 019, in its entirety and said
minute entry is considered null and void.

IT IS FURTHER ORDERED that EDM-QC shall remove the minute entry from the Clerk’s
Office Docket and OnBase system.

IT IS FURTHER ORDERED that the MEEDS Administrator shall remove the minute entry
from the Clerk’s Office minute entry web site.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

12/22/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2014-011845

12/21/2016

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE KERSTIN LEMAIRE
A. Arnold

Deputy

DONA LISA JOHNSON
JAMES ROBERT ECKLEY

v.

BERNARD POTOF, et al.
LYN ANNE BAILEY

MARIA R KUPILLAS
RICHARD V MACK
ROBERT J SPURLOCK
THOMAS A STOOPS

RULING

The Court has considered the Application for Attorneys' Fees and costs re Motion to
Strike Estimators' Opinion filed October 25, 2016 and the Response and Reply thereto. After
reviewing the legal file in this matter and contemplating the status of the litigation in this matter,

IT IS ORDERED granting the Application for Attorney Fees in the amount of $2,500.

Counsel Spurlock's office shall prepare a formal order for the Court's signature and lodge
the same by January 2, 2016.

Documents