01/08/2016 — CV2015091102 MURTLAND, RICHARD J 01/08/2016 HON. DAVID K. UDALL View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
01/13/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2015-091102
01/08/2016
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HON. DAVID K. UDALL
K. Tiero
Deputy
RICHARD J MURTLAND, et al.
ERIN SELENE IUNGERICH
v.
ASTRAGAL CONDOMINIUM UNIT OWNERS
ASSOCIATION
J GARY LINDER
J ROGER WOOD
MATTER UNDER ADVISEMENT
Courtroom – SEF 205
1:30 p.m. This is the time set for Oral Argument on Plaintiffs’ Motion for Summary
Judgment and Defendant’s Cross-Motion for Summary Judgment. Counsel, Erin Iungerich and
J. Roger Wood, are present on behalf of the Plaintiffs. Counsel, J. Gary Linder, is present on
behalf of the Defendant.
A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.
Argument is held.
IT IS ORDERED taking this matter under advisement.
1:46 p.m. Matter concludes.
01/12/2016 — CV2015091102 MURTLAND, RICHARD J 01/12/2016 HON. DAVID K. UDALL View Minute Entry ↑ top
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Michael K. Jeanes, Clerk of Court
*** Filed ***
01/19/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2015-091102
01/12/2016
Docket Code 926
Form V000A
Page 1
CLERK OF THE COURT
HON. DAVID K. UDALL
K. Tiero
Deputy
RICHARD J MURTLAND, et al.
ERIN SELENE IUNGERICH
v.
ASTRAGAL CONDOMINIUM UNIT OWNERS
ASSOCIATION
J GARY LINDER
J ROGER WOOD
UNDER ADVISEMENT RULING
The Court took this matter under advisement after Oral Argument was held on January 8,
2016 on Plaintiffs’ Motion for Summary Judgment and Defendant’s Cross-Motion for Summary
Judgment. The Court has considered the arguments of the parties and the pleadings. The Court
makes the following findings and enters the following orders.
THE COURT FINDS that neither party disputes the significant facts in this case. The
Court further finds that both Plaintiffs are owners of condominiums in the Scottsdale Astragal
Condominium Unit Owners Association. The Court further finds the Declaration under which
the Association operates includes a provision that says 67% of the Association Owners can vote
to change the governing Declaration. The Court further finds that Astragal Condominium Unit
Owners Association did in fact change its Declaration to impose a six-month minimum rental on
all of its residences when they lease or rent out their units to third parties. It is the Plaintiffs’
position that they have been damaged because they cannot generate income through short-term
rentals.
The Court will now consider ARS 33-1227(D) which states as follows: “Except to the
extent expressly permitted or required by other provisions of this chapter, an amendment shall
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2015-091102
01/12/2016
Docket Code 926
Form V000A
Page 2
not create or increase special declarant rights, increase the numbers of units, or change the
boundaries of any unit, the allocated interest of the unit or the use to which any unit is restricted,
in the absence of unanimous consent of the unit owners.”
The Court notes that ARS 33-1260.01(A) states: “A unit owner may use the unit owner’s
unit as a rental property unless prohibited in the Declaration and shall use it in accordance with
the Declaration’s rental time period restrictions.”
THE COURT FINDS the rental restriction stated above is not subject to the unanimous
consent requirement of ARS 33-1227(D). The Court further finds it is subject to the 67% rule in
ARS 33-1227(A) as adopted by the Astragal Condominium Unit Owners Association
Declaration.
It is also Plaintiffs’ contention that Dreamland Villa Community Club Inc. vs. Raimey
224 AZ 42, 226 P.3rd 411, (App. 2010) applies in this case.
THE COURT FINDS a distinction between the Dreamland case and this case at bar. In
the Dreamland case, the Community required, by using a majority vote, non-members of the
homeowners’ association to become members of the association and to be subject to their
CCR’s, fees and assessments. The Court further finds in this case the Plaintiffs were previous
members of the Astragal Condominium Unit Owners Association and knew full well their
Declaration potentially could be amended by a 67% majority vote at some point in the future. As
a result, the Court further finds the Dreamland holding does not apply in this case.
THE COURT FURTHER FINDS the six-month leasing restriction on the short term
leases is not unreasonable, and it has potential benefits for the community at large. The Court
further finds the Plaintiffs’ due process rights have not been violated and that they had ample
notice of a potential change in the short-term lease restrictions at the time they purchased their
properties.
IT IS THEREFORE ORDERED denying Plaintiffs’ Motion for Summary Judgment.
IT IS FURTHER ORDERED granting Judgment in favor of the Defendant, Astragal
Condominium Unit Owners Association, on their Cross-Motion for Summary Judgment.
IT IS FURTHER ORDERED dismissing this case with prejudice.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2015-091102
01/12/2016
Docket Code 926
Form V000A
Page 3
Dated this 12th day of January, 2016
/ s / HONORABLE DAVID K. UDALL
HONORABLE DAVID K. UDALL
JUDICIAL OFFICER OF THE SUPERIOR COURT
02/24/2016 — CV2015091102 MURTLAND, RICHARD J 02/24/2016 HON. DAVID K. UDALL View Minute Entry ↑ top
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Michael K. Jeanes, Clerk of Court
*** Filed ***
02/26/2016 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2015-091102
02/24/2016
Docket Code 049
Form V000A
Page 1
CLERK OF THE COURT
HON. DAVID K. UDALL
K. Tiero
Deputy
RICHARD J MURTLAND, et al.
ERIN SELENE IUNGERICH
v.
ASTRAGAL CONDOMINIUM UNIT OWNERS
ASSOCIATION
J GARY LINDER
J ROGER WOOD
JUDGMENT SIGNED
The Court has received and reviewed the Defendant’s Application for Attorneys’ Fees
and the Plaintiff’s Response thereto.
IT IS ORDERED granting Defendant’s Application for Attorneys’ Fees by awarding
judgment in favor of Defendant and against Plaintiff, all in accordance with the formal written
Judgment signed by the Court on February 22, 2016, and filed (entered) by the Clerk on
February 24, 2016.
Please note: The Court has signed a hard-copy version of the judgment provided with an
electronically filed pleading. Therefore, copies of the judgment and self-addressed, stamped
envelopes were not available for mailing to the parties. After the judgment has been scanned and
docketed by the Clerk of Court, copies of this judgment may be available through ECR Online at
clerkofcourt.maricopa.gov or through AZTurboCourt.gov and from the Public Access Terminals
at the Clerk of Court’s offices located throughout Maricopa County.
No further matters remain in this case, therefore, this is a final Judgment entered pursuant
to Rule 54(c), Ariz.R.Civ.P.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2015-091102
02/24/2016
Docket Code 049
Form V000A
Page 2
Dated this 24th day of February, 2016
/ s / HONORABLE DAVID K. UDALL
HONORABLE DAVID K. UDALL
JUDICIAL OFFICER OF THE SUPERIOR COURT
07/06/2015 — CV2015091102 MURTLAND, RICHARD J 07/06/2015 HON. DAVID K. UDALL View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
07/09/2015 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2015-091102
07/06/2015
Docket Code 098
Form V000A
Page 1
CLERK OF THE COURT
HON. DAVID K. UDALL
K. Tiero
Deputy
RICHARD J MURTLAND, et al.
ERIN SELENE IUNGERICH
v.
ASTRAGAL CONDOMINIUM UNIT OWNERS
ASSOCIATION
ASTRAGAL CONDOMINIUM UNIT
OWNERS ASSOCIATION
NO ADDRESS ON RECORD
J ROGER WOOD
DOCKET-CIVIL-SE
SUBSTITUTION OF COUNSEL
The Court is in receipt of Plaintiff’s Notice of Substitution of Counsel of Record (Within
Firm), filed June 30, 2015, and good cause appearing,
IT IS ORDERED granting Plaintiff’s Notice of Substitution of Counsel, and allowing
Attorney Erin S. Iungerich to substitute for J. Roger Wood as attorney of record for Plaintiff.
10/23/2015 — CV2015091102 MURTLAND, RICHARD J 10/23/2015 HON. DAVID K. UDALL View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
10/27/2015 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2015-091102
10/23/2015
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HON. DAVID K. UDALL
K. Tiero
Deputy
RICHARD J MURTLAND, et al.
ERIN SELENE IUNGERICH
v.
ASTRAGAL CONDOMINIUM UNIT OWNERS
ASSOCIATION
J GARY LINDER
J ROGER WOOD
ORAL ARGUMENT SET
The Court has received and reviewed Plaintiffs’ Motion for Summary Judgment,
Defendant’s Response, and Plaintiffs’ Reply; Defendant’s Cross-Motion for Summary Judgment,
Plaintiffs’ Response and Defendant’s Reply thereto.
IT IS ORDERED setting an Oral Argument re: Plaintiffs’ Motion for Summary Judgment
and Defendant’s Cross-Motion for Summary Judgment on January 8, 2016 at 1:30 p.m. (allotted
time: 1 hour) before:
HONORABLE DAVID K. UDALL
SOUTHEAST COURTHOUSE
222 EAST JAVELINA
COURTROOM 205
MESA AZ 85210
IT IS FURTHER ORDERED:
If extended oral argument is necessary, counsel must so advise the Court no later than
four (4) court days prior to the date set for hearing so that oral argument can be rescheduled.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2015-091102
10/23/2015
Docket Code 094
Form V000A
Page 2
Any motion or stipulation for continuance must be filed with the Court no later than four
(4) court days prior to the date set for hearing. After that date, no continuances will be granted
except for extraordinary circumstances.
Counsel are advised that if the answering memorandum is not timely filed in accordance
with the Arizona Rules of Civil Procedure, oral argument may be vacated and the motion will be
ruled upon in accordance with Rule 7.1(b), A.R.C.P.
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.
