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Maricopa County Superior Court Case CV2017-051923: public docket details, parties, minute entries, documents, and official source links for Sunrise Condominium Association.

Case Number

CV2017-051923

County

Maricopa

Caption

Not captured

Filed

2/1/2017

Case Type

Civil

Judge

Ponce, Adele

Location

Downtown

Official Court Record

Official Court Record

Parties

Minute Entries

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/05/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

03/01/2018

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE SUSAN M. BRNOVICH
K. Hartley

Deputy

SUNRISE CONDOMINIUM ASSOCIATION
TROY B STRATMAN

v.

ROBERT K WELCH
MATTHEW ALLEN KLOPP

ALTERNATIVE DISPUTE
RESOLUTION - CCC

MINUTE ENTRY

On the Court’s own motion,

IT IS ORDERED extending the deadline for the parties to complete ADR no later than
June 9, 2018.

IT IS ORDERED the parties shall participate in a mandatory Settlement Conference.
This case is referred to the court's Alternative Dispute Resolution for the appointment of a judge
pro tempore to conduct a settlement conference. Counsel and/or the parties will receive a
minute entry from ADR appointing the judge pro tempore. Counsel and any "pro per"
parties will contact the appointed judge pro tempore to arrange the date, time and location for the
settlement conference. The judge pro tempore is directed to complete a settlement
conference not later than June 9, 2018. The Office of Alternative Dispute Resolution will not do
the scheduling of the settlement conference so please do not contact that office.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/24/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

03/23/2017

Docket Code 066
Form V000A
Page 1

CLERK OF THE COURT
HON. RANDALL H. WARNER
K. Ballard

Deputy

SUNRISE CONDOMINIUM ASSOCIATION
TROY B STRATMAN

v.

ROBERT K WELCH

COURT ADMIN-CIVIL-CCC
JUDGE BRNOVICH
JUDGE HANNAH

CASE REASSIGNMENT - CIVIL PRESIDING JUDGE

This case was previously assigned to the Honorable John Hannah. A Notice of Change
of Judge has been filed by Plaintiff. The case was transferred to the Civil Presiding Judge for
reassignment.

IT IS ORDERED that this case be assigned to Civil Calendar CVJ-06, the Honorable
Susan Brnovich, for all further proceedings. If any objections to the Notice of Change of Judge
are filed, the noticed judge retains jurisdiction to hear and decide the objections. Any objections
must be filed and a copy delivered to the noticed judge within 20 days of the date of this order.

IT IS FURTHER ORDERED that any and all hearings set by the noticed judge are
vacated, to be reset by the new division.

IT IS FURTHER ORDERED that the parties shall jointly file within 10 days of the
date of this minute entry, a notice with the new division listing any outstanding motions
(including the file dates), whether they are ripe for resolution, and any hearings that need to be
reset.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/30/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

03/27/2018

Docket Code 089
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE SUSAN M. BRNOVICH
K. Hartley

Deputy

SUNRISE CONDOMINIUM ASSOCIATION
TROY B STRATMAN

v.

ROBERT K WELCH
MATTHEW ALLEN KLOPP

ORAL ARGUMENT SET
BENCH TRIAL SET
ORAL ARGUMENT VACATED

Courtroom 112-NER

8:45 a.m. This is the time set for a telephonic Status Conference. Appearing on behalf of
Plaintiff is Emily Mann for Troy B Stratman. Appearing on behalf of Defendant is counsel,
Matthew Allen Klopp.

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

Matters are discussed.

The Court notes that Defendant filed a Motion for Partial Summary Judgment and
Plaintiff filed a Cross-Motion for Partial Summary Judgment as to Liability.

The Court has reviewed the materials filed in support of and in opposition to the above
stated motions.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

03/27/2018

Docket Code 089
Form V000A
Page 2

IT IS ORDERED setting Oral Argument on the above-noted Motion for March 30,
2018 at 10:00 a.m. (1 hour allotted). Counsel and any unrepresented parties shall appear in
person for this hearing before:

THE HONORABLE JUDGE SUSAN BRNOVICH
SUPERIOR COURT OF ARIZONA
NORTHEAST REGIONAL COURT CENTER
18380 NORTH 40TH STREET
COURTROOM 112
PHOENIX, ARIZONA 85032
(602) 372-2020

TRIAL SETTING MINUTE ENTRY

Court and counsel discuss the status of the case and scheduling matters.

IT IS FURTHER ORDERED setting a 1-Day Trial to the Court on September 6, 2018
at 10:00 a.m. before:

THE HONORABLE JUDGE BRUCE COHEN
SUPERIOR COURT OF ARIZONA
NORTHEAST REGIONAL COURT CENTER
18380 NORTH 40TH STREET
COURTROOM 112
PHOENIX, ARIZONA 85032

THIS IS A FIRM TRIAL SETTING.

Please note that normal trial days in this division are Monday through Thursday. Each
day shall commence at 10:00 a.m. The lunch break will be taken at 12:00 p.m., with the
afternoon session to begin promptly at 1:30 p.m. A fifteen (15) minute break will be taken both
mid-morning and mid-afternoon, with the trial day to end at 4:30 p.m.

IT IS FURTHER ORDERED all trial exhibits shall be submitted for marking not later
than August 30, 2018.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

03/27/2018

Docket Code 089
Form V000A
Page 3

No information disclosed after the dates contained in the order may be used at the trial
absent court order on motion and affidavit.

IT IS ORDERED that should any discovery disputes arise, prior to filing discovery
motions, counsel shall MEET AND CONFER FACE TO FACE. If counsel are not able to
resolve the dispute,

IT IS FURTHER ORDERED that any discovery motion must be accompanied by a
Rule 37(2)(C) certification, to include that counsel have met face to face.

The proceedings will take place in the Superior Court’s new “e-courtroom.” A record of
the proceedings will be made by FTR in lieu of a court reporter. With this new technology, a
court reporter is not required and the parties are encouraged to experience the court's video
recording system before requesting a court reporter. If a court reporter is required, the Court
must receive a written request three (3) days prior to trial. Failure to timely request a court
reporter will be deemed consent to proceed without 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 Self Center to request a
daily copy of a court hearing or trial proceeding being conducted and pay the applicable fee.
Should an official transcript be required, you may request that the court prepare it. The party
ordering the transcript must pay for it.

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 602.372.7876.

8:51 a.m. Matter concludes.

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.

PRETRIAL MANAGEMENT ORDERS

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

03/27/2018

Docket Code 089
Form V000A
Page 4

IT IS ORDERED that the Joint Pretrial Statement (JPTS) in accordance with Rule 16(d),
A.R.Civ.P., is due in this division by 5:00 p.m., August 30, 2018.

IT IS FURTHER ORDERED with the JPTS, counsel shall deliver to this division,
copies of the following:

A.
A jointly completed time and witness estimate list.

B
Proposed Findings of Fact and Conclusions of Law, if a request has been or will
be filed. If no proposed Findings of Fact and Conclusions of Law is received, the request shall
be deemed waived.

C.
Whether or not the Rule of Exclusion of Witnesses has been invoked.

DISPOSITIVE MOTIONS

All motions, other than motions in limine, shall be filed not later than ninety (90) days
prior to the date set for trial.

Notices of Settlement

In accordance with the provisions of ARCP 41(a), to be effective, any Notice of
Settlement or Dismissal providing for resolution of one or more pending claims that is filed
after service by the opposing party’s answer or dispositive motion, must be signed by each
affected party (or appropriate counsel) prosecuting or defending against the claim(s)
covered by the Notice. Each filed Notice shall state whether it resolves all pending issues in
the case and constitutes a representation to the Court that the claims subject to the Notice
have been fully resolved with respect to Notice signatories, and that the only further relief
to be sought with respect to such claims is entry of an order that each signatory confirms is
consistent with the agreement that gave rise to filing of the Notice.

Please note: If either party fail to appear for the trial scheduled above, a default could be
entered.

ATTACHED: SAMPLE FORMAT FOR TIME ESTIMATE FORM AND EXHIBIT
PROCEDURES

CAUSE NUMBER

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

03/27/2018

Docket Code 089
Form V000A
Page 5

CASE CAPTION

PLAINTIFF'S COUNSEL

DEFENDANT'S COUNSEL
(NOTE: Add additional lines as needed for additional parties and or witnesses.)

TIME ESTIMATES FOR TRIAL

Opening Statement and Closing Argument

PLAINTIFF'S OPENING STATEMENT

DEFENDANT'S OPENING

PLAINTIFF'S CLOSING

DEFENDANT'S CLOSING

PLAINTIFF'S REBUTTAL

Estimate of Time for Witness Examination

PLAINITIFF'S
WITNESSES
DIRECT
EXAMINATION
CROSS
EXAMINATION
REDIRECT
EXAMINATION

Estimate of Time for Witness Examination

DEFENDANT'S
WITNESSES
DIRECT
EXAMINATION
CROSS
EXAMINATION
REDIRECT
EXAMINATION

The foregoing are based on the best estimates of counsel of the time reasonably needed to
complete the necessary examination of the witnesses listed.

____________________________________
Counsel for Plaintiff

____________________________________
Counsel for Defendant

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

03/27/2018

Docket Code 089
Form V000A
Page 6

GUIDELINES FOR COUNSEL WHEN PREPARING EXHIBITS FOR USE IN COURT

COUNSEL PLEASE READ

Exhibits are due to the Court not later than August 30, 2018

If Defendant’s exhibits are received prior to Plaintiff’s exhibits, the Clerk may mark them
first with Plaintiff’s exhibits following.

Exhibits will be marked consecutively, Plaintiff’s exhibits are marked first and then
Defendant’s exhibits. The clerk cannot reserve numbers for exhibits that will be provided at a
later date. To avoid confusion during trial, it is essential that counsel avoid submitting duplicate
exhibits. The clerk cannot reserve numbers for exhibits that will be provided at a later date. Do
not list “Any and all exhibits listed by ….” Depositions will not be marked as an exhibit.
Original depositions to be used for impeachment purposes shall be provided to the clerk on the
first day of trial/hearing to be hand-filed by the clerk.

*******If a party is submitting more than 100 exhibits, that party shall submit
those exhibits in three-ring, tabbed binders.********

****Each multiple page exhibit must be securely fastened together by staple or
other means. NO PAPER CLIPS, OR RUBBER BANDS may be used. If Acco fasteners
are used they must be long enough to fasten securely.****

Counsel are to provide a workable list of exhibits. The list should include a description
of each exhibit. (See blank sample of an exhibit table below as a reference.) Do not put numbers
on the exhibits; however, a colored sheet of paper with the exhibit number on it should be
placed in front of each exhibit.

Exhibit Description Information:

The descriptions should be verifiable when viewing the first page of the exhibit.

Letter designations such as 5A, 5B, etc. shall not be used.

The Court will require a bench copy of exhibits. The exhibit numbers must match
the numbers assigned by the clerk. Please submit the Court’s copy of the exhibits
numerically tabbed and in a three-ringed binder.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

03/27/2018

Docket Code 089
Form V000A
Page 7

If counsel are submitting large charts, blow-ups or maps, please include a small version
which can be marked as the exhibit and can go into the jury if in evidence. The blow-ups, charts
and/or maps can be used as demonstrative but will not be marked as exhibits and will be returned
to counsel.

For additional assistance in preparation of exhibits contact the courtroom clerk at 602-
372-7736.

Sample of List of Exhibits to be provided to the courtroom clerk:

EXHIBIT LIST

Exhibit
No.
Ideniti-
fied By

Description

Legal Ground
for Objection

LATER:

Plaintiff’s counsel having advised the Court that he is unavailable for the March 30, 2018
Oral Argument previously set, the Court will rule on Defendant’s Motion for Partial Summary
Judgment and Plaintiff filed a Cross-Motion for Partial Summary Judgment as to Liability
without oral argument.

IT IS ORDERED vacating the Oral Argument set for March 30, 2018.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

03/30/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

03/29/2018

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE SUSAN M. BRNOVICH
A. Wood

Deputy

SUNRISE CONDOMINIUM ASSOCIATION
TROY B STRATMAN

v.

ROBERT K WELCH
MATTHEW ALLEN KLOPP

MINUTE ENTRY

The Court has read and considered Defendant’s Motion for Partial Summary Judgment,
Plaintiff Sunrise Condominium Association’s Response and Cross-Motion for Partial Summary
Judgment as to Liability, Defendant’s Combined Reply in Support of His Motion for Partial
Summary Judgment, Response to Plaintiff’s Cross-Motion, and Plaintiff Sunrise Condominium
Association’s Reply, and the associated pleadings and exhibits. In the Court’s discretion, the
request for oral argument is denied and the Court’s ruling follows.

Plaintiff filed a Complaint for foreclosure and breach of contract based on the claim that
Defendant is delinquent in the payment of assessments to Plaintiff. Defendant has moved for
partial summary judgment and a finding that Plaintiff is precluded from seeking assessments
outside of 4 years prior to the filing of the Complaint on the breach of contract claim and outside
of 3 years prior on the foreclosure. Plaintiff concedes that A.R.S. §33-1256(F) only entitles it to
a lien for unpaid assessments after February 1, 2014. The 3 year limit on enforcing the lien
applies to count 1, the foreclosure. Plaintiff disputes that there is a 4 year limit on damages for
the breach of contract claim and instead asserts they have a 6 year limit.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

03/29/2018

Docket Code 019
Form V000A
Page 2

Defendant argues that A.R.S. §12-544(3) imposes a 4 year statute of limitations on
damages for the breach of contract claim because the contract was executed outside Arizona.
A.R.S. §12-544(3) reads as follows:
“There shall be commenced and prosecuted within four years after the cause of action accrues,
and not afterward, the following actions:
…………
3. Upon a judgment or decree of a court rendered without the state, or upon an instrument in
writing executed without the state. This paragraph does not apply to a judgment for support, as
defined in § 25-500, and to associated costs and attorney fees.”

The contract in this case is the Amended and Restated Condominium Declaration for
Sunrise Condominium (the “Declaration”). The Declaration was signed and recorded by the
developer. The Declaration was recorded in Maricopa County but was signed before a Notary
Public in Cook County, Illinois. Therefore, Defendant argues that the contract is executed
without the state and the 4 year limitation period applies.

Plaintiff argues that the 6 year limitation period from A.R.S. §12-548 applies because the
contract in this case was executed in Arizona. Plaintiff bases there argument on the fact that the
contract was not finalized until Defendant bought his property, in Arizona, in 2006. However,
just because the final party to the contract accepted in Arizona does not change the fact that the
original party executed the contract in Illinois. Neither side provided any case law on the issue
but in Acacia Mut. Life Ass’n v. Berry, 54 Ariz. 208 (1939), the Arizona Supreme Court found
that the 4 year limitation period applied to an insurance contract that was negotiated in Arizona,
the application was provided to an agent of the company in Arizona, but the final issuance of the
contract came out of Washington D.C.. The same logic would apply here. Therefore,

IT IS ORDERED granting Defendant’s Motion for Partial Summary Judgment and
limiting damages on Count 1 to those accruing after February 1, 2014 and limiting damages on
Count 2 to those accruing after February 1, 2013. (Defendant asked for a dollar amount to be set
but as damages are in dispute, the Court’s ruling is restricted to setting the limitation period).

Plaintiff’s Cross-Motion for Partial Summary Judgment asks for judgment as to liability
only. From the pleadings, it is undisputed that Defendant was delinquent in his payment of
assessments to the Association. The Court also finds that there are no material issues of genuine
fact that would put into question that Defendant was delinquent by at least $1200 at the time of
the filing of the complaint. The only facts in dispute are the amount secured by the assessment
lien on Count 1 and the amount of damages that Defendant must pay to the Association on the
breach of contract claim. Therefore,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

03/29/2018

Docket Code 019
Form V000A
Page 3

IT IS ORDERED granting Plaintiff’s Cross-Motion for Partial Summary Judgment as to
liability.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

06/07/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

06/06/2018

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE SUSAN M. BRNOVICH
K. Hartley

Deputy

SUNRISE CONDOMINIUM ASSOCIATION
TROY B STRATMAN

v.

ROBERT K WELCH
MATTHEW ALLEN KLOPP

MINUTE ENTRY

The Court has read and considered Plaintiff Sunrise Condominium Association's Motion
to Strike Defendant's Motion for Partial Summary Judgment Filed on May 14, 2018 and
Defendant's Response. Defendant's do not dispute that the Motion for Partial Summary
Judgment was filed after the dispositive motion deadline and is untimely. Defendant's argue that
the motion should be heard anyway, for judicial economy. This matter is set for a bench trial so
the arguments made in Defendant's response is less persuasive. Therefore,

IT IS ORDERED granting Plaintiff's Motion to Strike and Striking the Motion for Partial
Summary Judgment, filed on May 14, 2018.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

08/15/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

08/14/2018

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BRUCE R. COHEN
W. Tenoever

Deputy

SUNRISE CONDOMINIUM ASSOCIATION
TROY B STRATMAN

v.

ROBERT K WELCH
MATTHEW ALLEN KLOPP

JUDGE BRUCE COHEN

STATUS CONFERENCE SET

On the Court's own motion,

IT IS ORDERED setting a Telephonic Status Conference on August 14, 2018 at 9:30
a.m. (15 minutes allotted) in this division. Counsel for the Plaintiff shall initiate the conference
call by arranging for the presence of all other counsel and self-represented parties, and by calling
this division at (602) 372-0686 at the scheduled time.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

08/16/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

08/14/2018

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BRUCE R. COHEN
W. Tenoever

Deputy

SUNRISE CONDOMINIUM ASSOCIATION
TROY B STRATMAN

v.

ROBERT K WELCH
MATTHEW ALLEN KLOPP

JUDGE BRUCE COHEN

ORDER RE: TRIAL PROCEDURE

Northeast Regional Court - Courtroom 112

9:33 a.m. This is the time set for Telephonic Status Conference. Plaintiff Sunrise
Condominium Association is represented by counsel, Troy B. Stratman. Defendant Robert K.
Welch is represented by counsel, Matthew Allen Klopp.

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

Discussion is held.

Counsel inform the Court that they are requesting that the bench trial set on September 6,
2018 be converted to an oral argument.

At the time of the proceeding on September 6th, the Court will have counsel state on the
record that their clients have opted for this procedure. The Court will still treat this proceeding as
a trial (rather than oral argument) but the manner of presentation would be either through offers of
proof or stipulated facts and argument.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

08/14/2018

Docket Code 023
Form V000A
Page 2

IT IS ORDERED that each party’s respective position statement, limited to 7 pages in
length, and the proposed exhibits are due no later than September 4, 2018 at 10:00 a.m.

The Court will set aside 90 minutes for this proceeding.

9:41 a.m. Matter concludes.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

09/10/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

09/07/2018

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BRUCE R. COHEN
W. Tenoever

Deputy

SUNRISE CONDOMINIUM ASSOCIATION
TROY B STRATMAN

v.

ROBERT K WELCH
MATTHEW ALLEN KLOPP

JUDGE BRUCE COHEN

TRIAL RULING
DEADLINE SET FOR FILING ATTORNEY FEE APPLICATION

This matter was tried before the court on September 6, 2018. By agreement of the parties,
the presentation was made in the form of offers of proof, stipulated exhibits, and argument.

History of Case

The Complaint in this matter was filed by Plaintiff, Sunrise Condominium Association
(hereinafter referred to as “Association”) on February 1, 2017. It alleged that Defendant, Robert
K. Welch (hereinafter referred to as “Welch”) owned the real property located at 3600 North
Hayden, #3629 in Scottsdale (hereinafter referred to as “Property”) and the property was subject
to a Condominium Declaration for Sunrise Condominium (hereinafter referred to as
“Declaration”).

The Association alleged that there exists a financial obligation on the part of Welch under
the terms of the Declaration to pay assessments and other fees/charges levied by the Association.
It is further alleged that Welch was delinquent in the payment of those obligations. The
Association sought foreclosure and brought a claim for breach of contract.

Welch filed his Answer on March 31, 2017. Beyond general denials, he put forth certain
affirmative defenses. He followed this with the filing of a Motion For Partial Summary Judgment

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

09/07/2018

Docket Code 019
Form V000A
Page 2

on July 27, 2017. He based the motion primarily on statute of limitations issues. The Association
responded and filed its own Cross-Motion For Partial Summary Judgment on August 31, 2017.

On March 30, 2018, Judge Brnovich ruled on the dueling motions. She found that a statute
of limitation defenses applied and limited the damage award that may be sought by the Association
to obligations accruing: (1) on or after February 1, 2014 as to Count 1 of the Complaint; and (2)
on or after February 1, 2013 as to Count 2 of the Complaint. She further ruled in favor of the
Association on the issue of liability on the part of Welch. The remaining issues were the damage
amounts for Counts 1 and 2.

Welch filed a subsequent Motion For Summary Judgment on May 14, 2018. Plaintiff
moved to strike the Motion. Judge Brnovich granted the Motion To Strike (minute entry of June
6, 2018). She found that the Motion For Partial Summary Judgment was filed beyond the deadline
for dispositive motions and that the judicial economy argument for proceeding despite the
untimeliness was not persuasive.

Trial Issue

For trial, the primary issue relates to how certain payments made by Welch to the
Association are to be credited. Based upon that determination, the specific amount for the damage
award can be determined.

Applicable Law, Relevant Findings of Fact and Analysis

There are two operative statutes that impact the ruling herein. ARS Section 33-1256(J)
designates how payments received shall be credited. It provides, in pertinent part, as follows:

…unless the member directs otherwise, all payments received on a member's
account shall be applied first to any unpaid assessments, for unpaid charges
for late payment of those assessments, for reasonable collection fees and for
unpaid attorney fees and costs incurred with respect to those assessments, in
that order, with any remaining amounts applied next to other unpaid fees,
charges and monetary penalties or interest and late charges on any of those
amounts.

ARS Section 33-1256(A) sets the minimum threshold for when foreclosure is permissible.
It provides, in pertinent part, as follows:

The association's lien for assessments, for charges for late payment of those
assessments, for reasonable collection fees and for reasonable attorney fees

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

09/07/2018

Docket Code 019
Form V000A
Page 3

and costs incurred with respect to those assessments may be foreclosed in the
same manner as a mortgage on real estate but may be foreclosed only if the
owner has been delinquent in the payment of monies secured by the lien,
excluding reasonable collection fees, reasonable attorney fees and charges for
late payment of and costs incurred with respect to those assessments, for a
period of one year or in the amount of one thousand two hundred dollars or
more, whichever occurs first. (emphasis added).

The law of the case has been set by Judge Brnovich. The Association may only seek
recovery for obligations accruing on or after February 1, 2014 for Count 1 and on or after February
1, 2013 for Count 2. This does not, however, affect how interim payments were to be credited.

There was a zero balance owed to the Association as of August 1, 2010 (Exhibit 3, page
3). By January 16, 2013, the balance owed for the past assessments was $5,810, which is derived
by subtracting the accumulated late fees from the balance owed of $6,525 (Exhibit 3, page 6).

It is undisputed that Welch made the payments during the period of July, 2014 through the
time immediately before the filing of this action totaling $9,537. The Association has conceded
that of these payments, $651 is to be credited against on-going obligations. It is the position of the
Association that with the crediting against all unpaid assessments, Welch now owes $7,366. This
accounts for the statute of limitations ruling.

Welch maintains that the Association’s theory for the computation of damages was not
disclosed, and objected to the entire trial presentation as to the damage calculation (reflected
through Exhibit 9, which was made part of the record for demonstrative purposes only). This
argument fails on two grounds: First, page 8 of the Disclosure Statement from the Association
provides the theory and basic details upon which the damage calculation can be determined. It
also disclosed extremely close approximations of the damages that they were seeking. Therefore,
there has been no violation of Rule 26.1.

Second, a party is entitled to make reasonable inferences from the evidence presented.
Here, the evidence of payments and credits is detailed in exhibits 3 and 4. The presentation of the
Association at trial (including its use of demonstrative exhibit 9) did little more than explain the
evidence and make reasonable inferences. The presentation was not an entirely undisclosed theory
of damage calculation, as asserted by Welch.

For the court, the pivotal question relates to the crediting of payments that were made by
Welch to the Association between July 2, 2014 and February 23, 2017. Welch argues that the
$6,525 balance owed as of February 1, 2013 is eliminated based upon Judge Brnovich’s statute of
limitations ruling. Using that as a baseline, the interim payments made by Welch after February

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

09/07/2018

Docket Code 019
Form V000A
Page 4

1, 2013 serve to satisfy a significant portion of the liability that accrued from February 1, 2013
through August, 2018. Alternatively, Welch argues that the Association failed to specify which
part of the total balance owed was being credited when payments were made and, as such, the
Association cannot now argue that the undesignated payments are first applied to the oldest unpaid
assessments.

The Association maintains that the undesignated portions of payments made by Welch
during the period from July 2, 2014 through February 23, 2017 (referenced above) must be credited
against the unpaid assessments, which began to accrue after August 1, 2010. They argue that the
unpaid assessments include those amounts that accrued before February 1, 2014 (for Count 1) and
before February 1, 2013 (for Count 2).

On this argument, the Association prevails. The operative language from ARS Section 33-
1256(J) directs that absent specification by the paying party, “…all payments received on a
member's account shall be applied first to any unpaid assessments…” (emphasis added). It
matters not how the Association may have accounted for the payments in Exhibits 2 and 3. Rather,
since there was no designation made by Welch as to how his payments were to be credited, the
law mandates that it be credited against the unpaid assessments.

Further, the statute of limitations determination made by Judge Brnovich applies only to
the remaining balance from before February 1, 2013 for the personal judgment (Count 2 of the
Complaint) and the remaining balance that accrued before February 1, 2014 for the foreclosure
judgment (Count 1 of the Complaint). Her ruling did not impact how payments made on or after
February 1, 2013 were to be credited. When, for example, Welch made a payment of $5,217 on
July 25, 2016, the undesignated portion of $5,000 was properly credited against the accumulated
unpaid assessments from August 1, 2010 through the date of payment, not solely to the unpaid
assessments that accrued since February 1, 2013.

Lastly, since the amounts owed exceed the statutory threshold under ARS Section 33-
1256(A), foreclosure is an available remedy.

Conclusions

Based upon the foregoing as well as the overall evidence presented, the court finds that the
Association is entitled to the following:

(1) Judgment on Count 1 of the Complaint totaling $6,596, which includes late fees and
collection fees but does not include attorney fees.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

09/07/2018

Docket Code 019
Form V000A
Page 5

(2) Judgment on Count 2 of the Complaint totaling $770, which is comprised of
assessments totaling $590 and late fees totaling $180, but does not include attorney
fees.
(3) An award of attorney fees and costs to be determined.1
The Association shall file its attorney fee and cost application by no later than October 5,
2018. Welch shall then have the applicable period to object. Once the attorney fee issue has been
decided, the Association may lodge with this court a form of Judgment consistent with the rulings
made by the court.

This matter having been taken under advisement, and there being no further need to retain
the exhibits not offered in evidence in the custody of the Clerk of Court,

IT IS ORDERED that the clerk permanently release all exhibits not offered in evidence to
the counsel/party causing them to be marked or their written designee. Counsel/party or written
designee shall have the right to refile relevant exhibits as needed in support of any appeal. Refiled
exhibits must be accompanied by a Notice of Refiling Exhibits and presented to the Exhibit
Department of the Clerk's Office. The Court's exhibit tag must remain intact on all refiled exhibits.

IT IS FURTHER ORDERED that counsel/party or written designee take immediate
possession of all exhibits referenced above.

1 The court has not yet been presented with the specific attorney fee claim. Anticipating that a claim is forthcoming,
the court notes that while the Association prevailed on each issue presented at this trial, such is not the functional
equivalent of finding that Welch proceeded in bad faith or without substantial justification. Parties have a right to
their day in court and a party should not be penalized for exercising that right in good faith, even if it is later shown
that the claim or defense could not prevail. Of course, the eventual award of attorney fees shall be dictated by statute,
but as to discretionary amounts, this court shall take into account that no sanctionable defenses have been advanced
by Welch.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

09/10/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

09/06/2018

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BRUCE R. COHEN
W. Tenoever

Deputy

SUNRISE CONDOMINIUM ASSOCIATION
TROY B STRATMAN

v.

ROBERT K WELCH
MATTHEW ALLEN KLOPP

JUDGE BRUCE COHEN

MATTER UNDER ADVISEMENT

Northeast Regional Court - Courtroom 112

Prior to commencement of trial, Plaintiff’s exhibits 1-6 and Defendant’s exhibits 7-8 are
marked for identification.

9:31 a.m. This is the time set for Bench Trial. Plaintiff Sunrise Condominium Association
is represented by counsel, Troy B. Stratman and Emily Mann. Defendant Robert K. Welch is
represented by counsel, Matthew A. Klopp.

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

Preliminary matters are addressed.

The Court confirms that the parties wish to proceed with arguments to the court in lieu of
a trial.

Plaintiff’s exhibits 1-4, 6 and Defendant’s exhibit 7 are received in evidence.

Arguments are heard.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

09/06/2018

Docket Code 020
Form V000A
Page 2

Plaintiff’s exhibit 9 is marked for identification and received in evidence for demonstrative
purposes only.

IT IS ORDERED taking this matter under advisement.

11:23 a.m. Matter concludes.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

09/12/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

09/11/2018

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BRUCE R. COHEN
W. Tenoever

Deputy

SUNRISE CONDOMINIUM ASSOCIATION
TROY B STRATMAN

v.

ROBERT K WELCH
MATTHEW ALLEN KLOPP

JUDGE BRUCE COHEN

ORDER RE: SUPPLEMENTATION OF RECORD

This matter was tried before the court on September 6, 2018. Included in the presentation
was the alleged $15 monthly increase in HOA Assessments due from the homeowners,
commencing January 1, 2018. The trial adjourned in the morning and hours later, Defendant’s
counsel filed his “Motion To Supplement Record.” He asserts that there was inadequate notice to
Defendant from the HOA as to the increase in the monthly assessments and it should therefore not
be part of the amount owed by Defendant.

This court drafted its ruling on September 7, 2018, but had not received a copy of the
motion from Defendant’s counsel as of that time. Therefore, the issue was not addressed in the
ruling.

By all appearances, this issue has a negligible impact on the amount of judgment entered.
That said, since it was not considered by this court, it is perhaps appropriate for it to be addressed.

IT IS THEREFORE ORDERED that the parties, through counsel, shall confer to determine
whether an agreement can be reached. If not, the attorneys should be prepared to address this
issues when the attorney fee issue is before the court. Defendant has leave to re-urge the requested
adjustment at the time of oral argument on the attorney fee issue. Until then, this court shall not
take any further action.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

10/16/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

10/13/2017

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE SUSAN M. BRNOVICH
K. Hartley

Deputy

SUNRISE CONDOMINIUM ASSOCIATION
TROY B STRATMAN

v.

ROBERT K WELCH
MATTHEW ALLEN KLOPP

ORDER SIGNED
TELEPHONIC STATUS CONFERENCE SET

IT IS ORDERED approving and settling formal written Scheduling Order electronically
signed by the Court on October 12, 2017, and filed (entered) by the Clerk on October 16, 2017.

IT IS FURTHER ORDERED setting a Telephonic Pretrial Status/Scheduling
Conference on March 16, 2018 at 8:45 a.m. (15 minutes allotted) for the purpose of assigning
a trial date and a final pretrial management conference date if the case has not settled. Counsel
shall have their trial calendars available. Counsel for Plaintiff shall initiate the telephonic
conference by first arranging the presence of all other counsel on the conference call and by
calling this division at: (602) 372-2020 promptly at the scheduled time. The parties and
counsel shall not be permitted to participate in conferences via cell phones or
speakerphone.

Please note: If either party fail to appear for the hearing scheduled above, this matter
could be dismissed.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

11/08/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

11/06/2018

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BRUCE R. COHEN
W. Tenoever

Deputy

SUNRISE CONDOMINIUM ASSOCIATION
TROY B STRATMAN

v.

ROBERT K WELCH
MATTHEW ALLEN KLOPP

JUDGE BRUCE COHEN

ORAL ARGUMENT SET

On the Court’s own motion,

IT IS ORDERED setting telephonic oral argument on Plaintiff Sunrise Condominium
Association’s Application for Award of Attorneys’ Fees on December 6, 2018 at 9:15 a.m. (15
minutes allotted) in this division. Counsel for the Plaintiff shall initiate the conference call by
arranging for the presence of all other counsel and self-represented parties, and by calling this
division at (602) 372-0686 at the scheduled time.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

11/21/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

11/20/2017

Docket Code 083
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE SUSAN M. BRNOVICH
K. Hartley

Deputy

SUNRISE CONDOMINIUM ASSOCIATION
TROY B STRATMAN

v.

ROBERT K WELCH
MATTHEW ALLEN KLOPP

MINUTE ENTRY

On the Court’s own motion,

IT IS ORDERED vacating the March 16, 2018 Telephonic Pretrial Status/Scheduling
Conference and resetting same to March 21, 2018 at 8:45 a.m. (15 minutes allotted) for the
purpose of assigning a trial date and a final pretrial management conference date if the case has
not settled. Counsel shall have their trial calendars available. Counsel for Plaintiff shall initiate
the telephonic conference by first arranging the presence of all other counsel on the conference
call and by calling this division at: (602) 372-2020 promptly at the scheduled time. The parties
and counsel shall not be permitted to participate in conferences via cell phones or
speakerphone.

Please note: If either party fail to appear for the hearing scheduled above, this matter
could be dismissed.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

12/10/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

12/06/2018

Docket Code 049
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE BRUCE R. COHEN
W. Tenoever

Deputy

SUNRISE CONDOMINIUM ASSOCIATION
TROY B STRATMAN

v.

ROBERT K WELCH
MATTHEW ALLEN KLOPP

JUDGE BRUCE COHEN

ATTORNEY FEE AWARD
ENTRY OF JUDGMENT

Northeast Regional Court - Courtroom 112

10:06 a.m. This is the time set for Telephonic Oral Argument on Plaintiff Sunrise
Condominium Association’s Application for Award of Attorneys’ Fees. Plaintiff Sunrise
Condominium Association is represented by counsel, Troy B. Stratman. Defendant Robert K.
Welch is represented by counsel, Matthew A. Klopp.

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

Arguments are heard.

IT IS ORDERED taking Plaintiff Sunrise Condominium Association’s Application for
Award of Attorneys’ Fees under advisement.

10:19 a.m. Matter concludes.

LATER:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

12/06/2018

Docket Code 049
Form V000A
Page 2

Plaintiff is entitled to attorney fees and costs, whether pursuant to ARS Section 33-1256(H)
or 12-341.01. While there may be an inconsistency in the statutes as to whether all fees or only
reasonable fees are to be awarded, there is little distinction when applied to this matter.

Defendant’s counsel presented valid arguments against the fee award sought by Plaintiff.
But the total fees sought by Plaintiff is reasonable, the actions taken were appropriate, and the
hourly fee charged by Plaintiff’s counsel is perhaps even on the lower side of what is customarily
charged in the legal community. Further, fees charged in order to pursue an attorney fee claim are
also reasonable, as contemplated by the statute.

That said, there is a relatively small sum that was incurred to address a meritorious claim
of Defendant. Such does not change who the prevailing party is in this matter but reason and
fairness would dictate that there be an adjustment to account for those fees, as argued by
Defendant.

IT IS THEREFORE ORDERED that Plaintiff is entitled to an award of $12,380 in
attorney fees and $473.50 in taxable costs.

The court further notes that by separate order filed concurrently herewith, final Judgment
is entered by the court.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

12/29/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2017-051923

12/28/2017

Docket Code 083
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE SUSAN M. BRNOVICH
K. Hartley

Deputy

SUNRISE CONDOMINIUM ASSOCIATION
TROY B STRATMAN

v.

ROBERT K WELCH
MATTHEW ALLEN KLOPP

MINUTE ENTRY

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

IT IS ORDERED vacating the March 21, 2018 Pre-trial Conference and resetting same to
March 27, 2018 at 8:45 a.m.

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