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Maricopa County Superior Court Case CV2016-011505: public docket details, parties, minute entries, documents, and official source links for Ballantrae Ridge Homeowners Association.

Case Number

CV2016-011505

County

Maricopa

Caption

Not captured

Filed

10/5/2016

Case Type

Civil

Judge

Pineda, Susanna

Location

Downtown

Official Court Record

Official Court Record

Parties

Minute Entries

Chris DeRose, Clerk of Court

*** Electronically Filed ***

08/13/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-011505

08/09/2018

Docket Code 352
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE CONNIE CONTES
D Arrieta

Deputy

DARRYL J ROBERTS, et al.
MARK BAINBRIDGE

v.

WINDY WALK HOMEOWNERS
ASSOCIATION, et al.
MICHAEL H ORCUTT

ALFRED W RICCIARDI
COURT ADMIN-CIVIL-ARB DESK
JUDGE CONTES

MINUTE ENTRY

Pursuant to the Orders signed by the court regarding the Motion to Compel and Motion
to Amend Complaint,

IT IS ORDERED excusing the assigned arbitrator in this matter.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

09/01/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-011505

08/30/2017

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE CONNIE CONTES
D Arrieta

Deputy

DARRYL J ROBERTS, et al.
MARK BAINBRIDGE

v.

WINDY WALK HOMEOWNERS
ASSOCIATION, et al.
MICHAEL H ORCUTT

ORAL ARGUMENT SET

The Court reviewed and considered the following filings:

 Defendants
Windy
Walk
Homeowners’
Association,
Ballantre
Ridge
Homeowners’ Association, Troon Mountain Community Association, Skye Top
at Troon Homeowners’ Association, Michael Kieffer, George Howison, Richard
Shenkus and Richard Gretland’s Rule 12(b)(6) Motion to Dismiss, filed June 27,
2017;

o Plaintiff’s Response to Defendants’ Rule 12(b)(6) Motion to Dismiss, filed
July 14, 2017; and

o Defendants Windy Walk Homeowners’ Association, Ballantre Ridge
Homeowners’ Association, Troon Mountain Community Association,
Skye Top at Troon Homeowners’ Association, Michael Kieffer, George
Howison, Richard Shenkus and Richard Gretland’s Reply in Support of
Their Rule 12 (b)(6) Motion to Dismiss, filed July 26, 2017.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-011505

08/30/2017

Docket Code 094
Form V000A
Page 2

IT IS ORDERED setting Oral Argument on the above filings for September 14, 2017
at 8:45 a.m. (45 minutes allotted). Counsel and the parties, if representing themselves, are to
appear in person before:

THE HONORABLE CONNIE CONTES
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W. JEFFERSON
9TH FLOOR, COURTROOM 913
PHOENIX, AZ 85003
PHONE: (602) 506-7768

NOTE: All Court proceedings are recorded digitally 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.

If the parties are not familiar with the courtroom’s technology, they are encouraged to set
up an appointment with the court’s technology liaison at 602.506.3269.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

09/18/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-011505

09/14/2017

Docket Code 095
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE CONNIE CONTES
D Arrieta

Deputy

DARRYL J ROBERTS, et al.
MARK BAINBRIDGE

v.

WINDY WALK HOMEOWNERS
ASSOCIATION, et al.
MICHAEL H ORCUTT

ORAL ARGUMENT RESET

On the Court's own motion due to a calendar conflict,

IT IS ORDERED vacating Oral Argument scheduled for September 14, 2017 at 8:45
a.m., and resetting same to September 18, 2017 at 10:30 a.m. (30 minutes allotted) on the
following filings:

 Defendants
Windy
Walk
Homeowners’
Association,
Ballantre
Ridge
Homeowners’ Association, Troon Mountain Community Association, Skye Top
at Troon Homeowners’ Association, Michael Kieffer, George Howison, Richard
Shenkus and Richard Gretland’s Rule 12(b)(6) Motion to Dismiss, filed June 27,
2017;

o Plaintiff’s Response to Defendants’ Rule 12(b)(6) Motion to Dismiss, filed
July 14, 2017; and

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-011505

09/14/2017

Docket Code 095
Form V000A
Page 2

o Defendants Windy Walk Homeowners’ Association, Ballantre Ridge
Homeowners’ Association, Troon Mountain Community Association,
Skye Top at Troon Homeowners’ Association, Michael Kieffer, George
Howison, Richard Shenkus and Richard Gretland’s Reply in Support of
Their Rule 12 (b)(6) Motion to Dismiss, filed July 26, 2017.

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

THE HONORABLE CONNIE CONTES
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W. JEFFERSON
9TH FLOOR, COURTROOM 913
PHOENIX, AZ 85003
PHONE: (602) 506-7768

NOTE: All Court proceedings are recorded digitally 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.

If the parties are not familiar with the courtroom’s technology, they are encouraged to set
up an appointment with the court’s technology liaison at 602.506.3269.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

09/25/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-011505

09/18/2017

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE CONNIE CONTES
D Arrieta

Deputy

DARRYL J ROBERTS, et al.
MARK BAINBRIDGE

v.

WINDY WALK HOMEOWNERS
ASSOCIATION, et al.
MICHAEL H ORCUTT

MINUTE ENTRY

East Court Building – Courtroom 913

10:30 a.m. This is the time set for Oral Argument on the following filings:

 Defendants
Windy
Walk
Homeowners’
Association,
Ballantrae
Ridge
Homeowners’ Association, Troon Mountain Community Association, Skye Top
at Troon Homeowners’ Association, Michael Kieffer, George Howison, Richard
Shenkus and Richard Fretland’s Rule 12(b)(6) Motion to Dismiss, filed June 27,
2017;

o Plaintiff’s Response to Defendants’ Rule 12(b)(6) Motion to Dismiss, filed
July 14, 2017; and

o Defendants Windy Walk Homeowners’ Association, Ballantrae Ridge
Homeowners’ Association, Troon Mountain Community Association,
Skye Top at Troon Homeowners’ Association, Michael Kieffer, George
Howison, Richard Shenkus and Richard Fretland’s Reply in Support of
Their Rule 12 (b)(6) Motion to Dismiss, filed July 26, 2017.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-011505

09/18/2017

Docket Code 020
Form V000A
Page 2

Plaintiffs Darryl J. Roberts, Ann K. Roberts and Darryl J. Robert / Ann K. Roberts
Qualified Trust are represented by counsel, Mark Bainbridge. Defendants Windy Walk
Homeowners Association, et al., are represented by counsel, Daxton R. Watson and Thomas
Brent Demmitt on behalf of Michael H. Orcutt.

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

Argument is heard and considered.

For the reasons stated on the record,

IT IS ORDERED taking Defendants Windy Walk Homeowners’ Association, Ballantrae
Ridge Homeowners’ Association, Troon Mountain Community Association, Skye Top at Troon
Homeowners’ Association, Michael Kieffer, George Howison, Richard Shenkus and Richard
Fretland’s Rule 12(b)(6) Motion to Dismiss, filed June 27, 2017; Plaintiff’s Response; and
Defendants Reply, under advisement.

10:59 a.m. Matter concludes.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

11/28/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-011505

11/16/2017

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE CONNIE CONTES
D Arrieta

Deputy

DARRYL J ROBERTS, et al.
MARK BAINBRIDGE

v.

WINDY WALK HOMEOWNERS
ASSOCIATION, et al.
MICHAEL H ORCUTT

UNDER ADVISEMENT RULING

The Court took under advisement the ruling on the motion to dismiss filed on behalf of
the four (4) Association defendants and the four (4) Individual Committee Member defendants.
The Court has considered the motion, response and reply, matters of record including the First
Amended Verified Complaint and Exhibits A (CC&Rs for Windy Walk) and B (Cost-Sharing
Agreement) thereto, arguments of counsel, and the applicable law.

First, as a general policy matter, Rule 12(b)(6) motions to dismiss are not favored under
Arizona law. State ex. rel. Corbin v. Pickrell, 136 Ariz. 589, 594, 667 P.2d 1304,1309 (1983).
The narrow question presented by a motion to dismiss for failure to state a claim is whether facts
alleged in a complaint are sufficient “to warrant allowing the [plaintiff] to attempt to prove [its]
case.” Coleman v. City of Mesa, 230 Ariz. 352, 363, 284 P.3d 863, 874 (2012). Dismissal is
permitted only when a plaintiff would not be entitled to relief under any interpretation of the
facts susceptible of proof. Moreover, a motion to dismiss requires a court to accept all material
facts alleged by the nonmoving party as true, to view those facts in the light most favorable to
the nonmoving party, and to indulge the nonmoving party all reasonable inferences that the
pleaded facts permit. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, 189 P.2d 344, 346
(2008).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-011505

11/16/2017

Docket Code 926
Form V000A
Page 2

Defendants’ motion to dismiss is predicated substantially on asserted pleading
deficiencies, highlighting the plaintiff’s conclusory statements and general accusations as
reflected in ¶¶ 23, 29, 35, 36 and 42 of the First Amended Complaint. But, unless a complaint is
so lacking that a defendant cannot understand “the basis for the claim and its general nature,” a
motion to dismiss is unwarranted. Guerrero v. Copper Queen Hosp., 112 Ariz. 104, 106-07, 537
P.2d 1329, 1331-32 (1975)(reversing trial court’s decision to grant motion to dismiss). The
purpose of a complaint is to give the opponent fair notice of the nature and basis of the claim and
indicate generally the type of litigation involved. Paragraphs 30-32, 39, and 44-50 comply with
the notice pleading standards followed by Arizona law.

Finally, even if a complaint is afflicted with pleading deficiencies, before it can be
dismissed, the nonmoving party “should be given an opportunity to amend the complaint if such
an amendment cures its defects.” Wigglesworth v. Mauldin, 195 Ariz. 432, 439, 990 P.2d 26, 33
(App. 1999).

To the extent that defendants do not fully understand what plaintiff is claiming, thus
inhibiting or preventing the preparation of a defense, the more effective and efficient way to deal
with the issue is through the mandatory disclosure process. If disclosure and discovery fail to
establish proof sufficient to meet plaintiff’s prima facie burden, then a motion for summary
judgment would be warranted under the principle stated in Celotex Corp. v. Catrett [477 U.S.
317, 324 (1986)] and adopted in Orme School v. Reeves [166 Ariz. 301, 310, 802 P.2d 1000,
1009 (1990)].

Defendants’ reliance on Section 10-3304(B)(2) of the Nonprofit Corporation Act and the
Rohde case is misplaced and inapposite. The more applicable statutory sections include A.R.S.
§§ 10-3825 and -3830, referencing the general standards and rebuttable presumption for the acts,
omissions and/or other discharge of duties of committee members, as well as A.R.S. § 10-11602
and -11620. The rights and obligations of the plaintiff and the defendants are governed by the
terms set forth in Exhibits A and B to the First Amended Complaint.

IT IS THEREFORE ORDERED denying defendants’ motion to dismiss without prejudice,
subject to the following conditions.

1. Should defendants later choose to file a new or renewed motion to dismiss for failure to
state a claim based upon an asserted pleading deficiency, defendants must first comply
with the following requirements:

a. Before such a motion to dismiss may be filed, the affected parties must meet and
confer for the purpose of determining whether that motion can be avoided by curing

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-011505

11/16/2017

Docket Code 926
Form V000A
Page 3

any purported pleading deficiencies with an amended complaint or a disclosure
statement.

b. Consequently, if defendants wish to file a new or renewed motion to dismiss, it must
include a certification stating that the parties have conferred and have been unable to
agree that the pleading is curable by a permissible amendment or disclosure
statement. For these purposes, “confer” requires personal and not written
communication. Failure to comply with this procedure may be grounds for rejecting
a new or renewed motion to dismiss.

2. If plaintiff has not already done so, within 30 days of the date of entry of this order
plaintiff must provide defendants with a detailed, fact-specific disclosure statement,
understanding that notice pleading in such statements is insufficient.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

11/30/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-011505

11/19/2018

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE CONNIE CONTES
K. Cabral/D Arrieta

Deputy

DARRYL J ROBERTS, et al.
MARK BAINBRIDGE

v.

WINDY WALK HOMEOWNERS
ASSOCIATION, et al.
MICHAEL H ORCUTT

LYNN M KRUPNIK
JUDGE CONTES

MINUTE ENTRY

The court has considered the Motion for Rule 37(b) Sanctions for Failure to Comply with
Court Order, filed September 7, 2018 on behalf of plaintiff; defendants’ response thereto, filed
September 26, 2018; and plaintiff’s reply thereto, filed October 8, 2018. After considering what
the parties have submitted, the court has concluded that the issue presented has been fully briefed
and oral argument will not assist a decision. Rule 3.2(d), Superior Court Local Rules-Maricopa
County.

First, discovery disputes are strongly discouraged. In the future, the parties are instructed
to abide by the Expedited Procedure for Resolving Discovery and Disclosure Disputes set forth in
Rule 26(d), Ariz. R. Civ. P., before filing any written motion to compel, motion for protective
order, or any other motion related to discovery including a motion for sanctions. This procedure
requires attachment of a good faith consultation certificate that complies with Rule 7.1(h), Ariz.
R. Civ. P.

Second, the parties are urged to consider the risk that comes from not providing timely
discovery responses as required by applicable rules and court orders, even if court intervention is

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2016-011505

11/19/2018

Docket Code 019
Form V000A
Page 2

not requested. Should this matter proceed to trial, the trier of fact may be permitted to consider
that the failure to provide timely discovery impacts a party’s credibility in other ways.

Finally, the court notes that these filings involve the second time that the court has had to
review the defendants’ failure to provide the same discovery. Defendants’ contention that they
have not failed to obey a court order to provide or permit discovery beyond a default deadline of
thirty (30) days, and not until fifty (50) days following the court order, without communication or
conferring or some form of professional courtesy, lacks merit. For the second time, the court
grants plaintiff an entitlement to recovery of its reasonable attorneys’ fees and costs incurred for
having to pursue this Motion for Rule 37(b) Sanctions, but the court is not willing to take more
time at this juncture of this civil action to resolve the amount of the award until submission of
concluding documents, if necessary.

IT IS THEREFORE ORDERED granting in part plaintiff’s Motion for Rule 37(b)
Sanctions as provided herein but denying at this time the relief requested.

Documents