01/16/2018 — CV2017056168 CONDOMINIUMS HOMEOWNERS ASSOCIATION INC, ANASAZI VILLAGE 01/16/2018 HON. RANDALL H. WARNER View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
01/18/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
01/16/2018
Docket Code 351
Form V351
Page 1
CLERK OF THE COURT
HON. RANDALL H. WARNER
K. Ballard
Deputy
ROBERT PESHEK
JUSTIN R COOLEY
v.
ANASAZI VILLAGE CONDOMINIUMS
HOMEOWNERS ASSOCIATION INC, et al.
TROY B STRATMAN
JON D EHLINGER
COURT ADMIN-CIVIL-ARB DESK
JUDGE AIMEE ANDERSON
EXCUSE ARBITRATOR FROM LIST – CIVIL PRESIDING JUDGE
Before the court is Jon D. Ehlinger’s request to be removed from the list of arbitrators
now maintained by the Civil Court Administration/Arbitration Desk. The request to be excused
from this particular case will be ruled on by the assigned judge (Judge Aimee Anderson).
Requests to be excused from the list of potential arbitrators are referred to the Civil Presiding
Judge for consideration.
THE COURT FINDS that there is good cause to remove Jon D. Ehlinger’s name from the
list of potential arbitrators maintained by the Civil Court Administration/Arbitration Desk.
Therefore,
IT IS ORDERED that the Civil Court Administration/Arbitration Desk shall remove the
name of Jon D. Ehlinger as a potential arbitrator. However,
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
01/16/2018
Docket Code 351
Form V351
Page 2
IT IS ORDERED that should Jon D. Ehlinger return to the active practice of law in
Maricopa County, he shall immediately notify the Civil Court Administration/Arbitration Desk
of his availability to serve as an arbitrator.
FILED: Undated letter from Jon D. Ehlinger
01/16/2018 — CV2017056168 CONDOMINIUMS HOMEOWNERS ASSOCIATION INC, ANASAZI VILLAGE 01/16/2018 HONORABLE AIMEE L. ANDERSON View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
01/17/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
01/16/2018
Docket Code 352
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE AIMEE L. ANDERSON
A. Wood
Deputy
ROBERT PESHEK
JUSTIN R COOLEY
v.
ANASAZI VILLAGE CONDOMINIUMS
HOMEOWNERS ASSOCIATION INC, et al.
TROY B STRATMAN
JON D EHLINGER
COURT ADMIN-CIVIL-ARB DESK
EXCUSE ARBITRATOR FROM CASE
The Court has reviewed the letter from Jon Ehlinger dated January 10, 2018.
THE COURT FINDS that there is good cause to excuse Jon Ehlinger as the appointed
arbitrator in this case.
IT IS ORDERED excusing Jon Ehlinger as arbitrator in this matter and forwarding this
case to the Civil Court Administration /Arbitration Desk for appointment of a new arbitrator.
IT IS FURTHER ORDERED that the Civil Court Administration/Arbitration Desk shall
appoint Jon Ehlinger as arbitrator in the next available case.
02/20/2018 — CV2017056168 CONDOMINIUMS HOMEOWNERS ASSOCIATION INC, ANASAZI VILLAGE 02/20/2018 HONORABLE AIMEE L. ANDERSON View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
02/22/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
02/20/2018
Docket Code 352
Form V352
Page 1
CLERK OF THE COURT
HONORABLE AIMEE L. ANDERSON
A. Wood
Deputy
ROBERT PESHEK
JUSTIN R COOLEY
v.
ANASAZI VILLAGE CONDOMINIUMS
HOMEOWNERS ASSOCIATION INC, et al.
TROY B STRATMAN
MICHAEL M DONAHEY
COURT ADMIN-CIVIL-ARB DESK
EXCUSE ARBITRATOR FROM CASE
The Court has reviewed the Motion to Be Excused From Service as Arbitrator from
Michael M. Donahey dated February 1, 2018.
THE COURT FINDS that there is good cause to excuse Michael M. Donahey as the
appointed arbitrator in this case.
IT IS ORDERED excusing Michael M. Donahey as arbitrator in this matter and
forwarding this case to the Civil Court Administration/Arbitration Desk for appointment of a
new arbitrator.
IT IS FURTHER ORDERED that the Civil Court Administration/Arbitration Desk shall
appoint Michael M. Donahey as arbitrator in the next available case.
04/05/2018 — CV2017056168 CONDOMINIUMS HOMEOWNERS ASSOCIATION INC, ANASAZI VILLAGE 04/05/2018 HON. RANDALL H. WARNER View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
04/09/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
04/05/2018
Docket Code 066
Form V000A
Page 1
CLERK OF THE COURT
HON. RANDALL H. WARNER
K. Ballard
Deputy
ROBERT PESHEK
JUSTIN R COOLEY
v.
ANASAZI VILLAGE CONDOMINIUMS
HOMEOWNERS ASSOCIATION INC, et al.
TROY B STRATMAN
ALISA C LACEY
COURT ADMIN-CIVIL-ARB DESK
JUDGE AIMEE ANDERSON
JUDGE HANNAH
CASE REASSIGNMENT - CIVIL PRESIDING JUDGE
This case was previously assigned to the Honorable Aimee Anderson. 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-16, the Honorable
John Hannah, 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
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
04/05/2018
Docket Code 066
Form V000A
Page 2
(including the file dates), whether they are ripe for resolution, and any hearings that need to be
reset.
04/11/2018 — CV2017056168 CONDOMINIUMS HOMEOWNERS ASSOCIATION INC, ANASAZI VILLAGE 04/11/2018 HON. RANDALL H. WARNER View Minute Entry ↑ top
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- Minute Source
Chris DeRose, Clerk of Court
*** Electronically Filed ***
04/13/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
04/11/2018
Docket Code 066
Form V000A
Page 1
CLERK OF THE COURT
HON. RANDALL H. WARNER
K. Ballard
Deputy
ROBERT PESHEK
JUSTIN R COOLEY
v.
ANASAZI VILLAGE CONDOMINIUMS
HOMEOWNERS ASSOCIATION INC, et al.
TROY B STRATMAN
ALISA C LACEY
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 Defendants. 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.
04/13/2018 — CV2017056168 CONDOMINIUMS HOMEOWNERS ASSOCIATION INC, ANASAZI VILLAGE 04/13/2018 HONORABLE SUSAN M. BRNOVICH View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
04/16/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
04/13/2018
Docket Code 028
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE SUSAN M. BRNOVICH
K. Hartley
Deputy
ROBERT PESHEK
JUSTIN R COOLEY
v.
ANASAZI VILLAGE CONDOMINIUMS
HOMEOWNERS ASSOCIATION INC, et al.
TROY B STRATMAN
ALISA C LACEY
MINUTE ENTRY
The Court having received Plaintiff’s Request for Rule 56(d) Relief and for Expedited
Telephonic Hearing filed April 10, 2018,
IT IS ORDERED setting a Telephonic Pretrial Status/Scheduling Conference on April
13, 2018 at 11:00 a.m. (30 minutes allotted) for the purpose of addressing the above motion.
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.
04/13/2018 — CV2017056168 CONDOMINIUMS HOMEOWNERS ASSOCIATION INC, ANASAZI VILLAGE 04/13/2018 HONORABLE SUSAN M. BRNOVICH View Minute Entry ↑ top
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Chris DeRose, Clerk of Court
*** Electronically Filed ***
04/24/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
04/13/2018
Docket Code 005
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE SUSAN M. BRNOVICH
A. Wood
Deputy
ROBERT PESHEK
JUSTIN R COOLEY
v.
ANASAZI VILLAGE CONDOMINIUMS
HOMEOWNERS ASSOCIATION INC, et al.
EMILY H MANN
ALISA C LACEY
MINUTE ENTRY
Courtroom 112-NE
11:03 a.m. This is the time set for Telephonic Status Conference re: Plaintiff’s Request
for 56(d) Relief. Counsel Justin Cooley is present on behalf of Plaintiff Robert Peshek. Counsel
Emily Mann is present on behalf of Defendants Anasazi Village Condominiums Homeowners
Association Inc., Paul Jensen, and AAM, LLC.
A record of the proceedings is made digitally in lieu of a court reporter.
Discussion held.
THE COURT FINDS that Plaintiff’s request does not comply with rule 56(d) relief.
IT IS THEREFORE ORDERED denying Plaintiff’s Motion for 56(d) Relief.
Discussion further held regarding mediation.
11:25 a.m. Matter concludes.
05/17/2018 — CV2017056168 CONDOMINIUMS HOMEOWNERS ASSOCIATION INC, ANASAZI VILLAGE 05/17/2018 HONORABLE SUSAN M. BRNOVICH View Minute Entry ↑ top
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- Minute Source
Chris DeRose, Clerk of Court
*** Electronically Filed ***
05/18/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
05/17/2018
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE SUSAN M. BRNOVICH
K. Hartley
Deputy
ROBERT PESHEK
JUSTIN R COOLEY
v.
ANASAZI VILLAGE CONDOMINIUMS
HOMEOWNERS ASSOCIATION INC, et al.
TROY B STRATMAN
ALISA C LACEY
ORAL ARGUMENT SET
The Court has reviewed the materials filed in support of and in opposition to Defendants’
Motion for Summary Judgment filed on January 31, 2018.
IT IS ORDERED setting Oral Argument on the above-noted Motion for July 20, 2018
at 10:00 a.m. (45 minutes allotted). Counsel and any unrepresented parties shall appear in
person for this hearing before:
THE HONORABLE JUDGE BRUCE COHEN
SUPERIOR COURT OF ARIZONA
NORTHEAST REGIONAL COURT CENTER
18380 NORTH 40TH STREET
COURTROOM 112
PHOENIX, ARIZONA 85032
(602) 372-0686
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
05/17/2018
Docket Code 094
Form V000A
Page 2
NOTE: Effective June 25, 2018, all cases assigned to the Honorable Susan Brnovich will
be reassigned to the Honorable Bruce Cohen due to judicial calendar rotations. The Honorable
Bruce Cohen will be located at the Northeast Regional Court, 18380 N. 40th St., Suite L, Phoenix,
Arizona 85032.
06/26/2018 — CV2017056168 CONDOMINIUMS HOMEOWNERS ASSOCIATION INC, ANASAZI VILLAGE 06/26/2018 HONORABLE BRUCE R. COHEN View Minute Entry ↑ top
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Chris DeRose, Clerk of Court
*** Electronically Filed ***
06/28/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
06/26/2018
Docket Code 354
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE BRUCE R. COHEN
W. Tenoever
Deputy
ROBERT PESHEK
JUSTIN R COOLEY
v.
ANASAZI VILLAGE CONDOMINIUMS
HOMEOWNERS ASSOCIATION INC, et al.
TROY B STRATMAN
ALISA C LACEY
ALTERNATIVE DISPUTE
RESOLUTION - CCC
COURT ADMIN-CIVIL-ARB DESK
ORDER WAIVING COMPULSORY ARBITRATION AND
REFERRING MATTER FOR SETTLEMENT CONFERENCE
The court has reviewed the Stipulated Motion filed by the parties on June 18, 2018. In
accordance with Rule 72(d) and in the furtherance of the agreement of the parties,
IT IS ORDERED waiving the requirement for compulsory arbitration in this matter.
IT IS FURTHER ORDERED that the parties shall participate in a mandatory Settlement
Conference. This case is referred to the Court's Alternative Dispute Resolution Office 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 requested to conduct a
settlement conference not later than October 26, 2018. The Office of Alternative Dispute
Resolution will not do the scheduling of the settlement conference so please do not contact that
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
06/26/2018
Docket Code 354
Form V000A
Page 2
office. If counsel prefer to use a private mediator to conduct the Settlement Conference, a
Stipulation and Order Re: Alternative to ADR must be presented to the Court.
08/16/2018 — CV2017056168 CONDOMINIUMS HOMEOWNERS ASSOCIATION INC, ANASAZI VILLAGE 08/16/2018 HONORABLE BRUCE R. COHEN View Minute Entry ↑ top
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- Minute Source
Chris DeRose, Clerk of Court
*** Electronically Filed ***
08/17/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
08/16/2018
Docket Code 022
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE BRUCE R. COHEN
W. Tenoever
Deputy
ROBERT PESHEK
JUSTIN R COOLEY
v.
ANASAZI VILLAGE CONDOMINIUMS
HOMEOWNERS ASSOCIATION INC, et al.
TROY B STRATMAN
JUDGE BRUCE COHEN
ORDER SIGNED
IT IS ORDERED granting the Stipulation and Joint Emergency Motion to Allow for
Telephonic Appearance at Oral Argument Scheduled for August 17, 2018 electronically filed on
August 15, 2018, all in accordance with the formal written Order signed by the Court on August
16, 2018 and entered (filed) by the clerk on August 16, 2018.
Please note: The court has signed a paper copy of the order which was originally provided
electronically. After the order has been scanned and docketed by the Clerk of Court, copies of this
order will be available through the ECR online at www.clerkofcourt.maricopa.gov or through
www.AZTurboCourt.gov and from the Public Access Terminals at the Clerk of Court’s offices
located throughout Maricopa County.
08/17/2018 — CV2017056168 CONDOMINIUMS HOMEOWNERS ASSOCIATION INC, ANASAZI VILLAGE 08/17/2018 HONORABLE BRUCE R. COHEN View Minute Entry ↑ top
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Chris DeRose, Clerk of Court
*** Electronically Filed ***
08/21/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
08/17/2018
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE BRUCE R. COHEN
W. Tenoever
Deputy
ROBERT PESHEK
JUSTIN R COOLEY
v.
ANASAZI VILLAGE CONDOMINIUMS
HOMEOWNERS ASSOCIATION INC, et al.
EMILY H MANN
JUDGE BRUCE COHEN
MATTER UNDER ADVISEMENT
Northeast Regional Court - Courtroom 112
2:59 p.m. This is the time set for Oral Argument on Defendants’ Motion for Summary
Judgment. Plaintiff Robert Peshek is represented by counsel, Justin R. Cooley, who appears
telephonically. Defendants Anasazi Village Condominiums Homeowners Association, Paul
Jensen, Marlene Jensen and AAM, LLC are represented by counsel, Emily H. Mann, who appears
personally.
A record of the proceedings is made digitally in lieu of a court reporter.
Arguments are heard.
IT IS ORDERED taking Defendants’ Motion for Summary Judgment under advisement.
4:16 p.m. Matter concludes.
08/20/2018 — CV2017056168 CONDOMINIUMS HOMEOWNERS ASSOCIATION INC, ANASAZI VILLAGE 08/20/2018 HONORABLE BRUCE R. COHEN View Minute Entry ↑ top
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- Minute Source
Chris DeRose, Clerk of Court
*** Electronically Filed ***
08/21/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
08/20/2018
Docket Code 926
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE BRUCE R. COHEN
W. Tenoever
Deputy
ROBERT PESHEK
JUSTIN R COOLEY
v.
ANASAZI VILLAGE CONDOMINIUMS
HOMEOWNERS ASSOCIATION INC, et al.
EMILY H MANN
JUDGE BRUCE COHEN
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Before the court is Defendants’ Anasazi Village Condominiums Homeowners’
Association, Paul Jensen,1 and AAM, LLC (hereinafter referred to as “Anasazi,” “Jensen” and
“AAM” and all collectively referred to as “Defendants”) Motion For Summary Judgment filed on
January 21, 2018. The court has considered the Motion, along with the Response from Plaintiff
filed on March 30, 2018, the Notice of Errata filed on April 10, 2018, Defendants’ Reply filed on
May 7, 2018, prior rulings from Judge Brnovich, the court record, and the oral argument presented
on August 17, 2018.
Statement of the Case
For a period from 2014 leading up to May, 2016, Plaintiff was a Board Member of the
Homeowner’s Association at Anasazi.2 By action taken by the homeowners, he was removed from
the Board on or about May 25, 2016. He has claimed that such removal was improper, filed suit,
and alleged a number of causes of action against Anasazi, Jensen and AAM.
1 The court is informed that Marlene Jensen is deceased and while she remains a named party, she is no longer part
of these proceedings.
2 The Board is regulated not only by state law, but by contract of the homeowner’s association with its members
(referred to as “Declaration”).
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
08/20/2018
Docket Code 926
Form V000A
Page 2
Issue Presented and Burden of Proof
Defendants assert that the removal of Plaintiff from Anasazi’s Board was done in
compliance with state law and complied with the Declaration. They also assert that Jensen,
individually, did not breach any contract and did not, in concert with AAM, breach a covenant of
fair dealing and good faith. They also assert that there was no tortious interference with Plaintiff’s
contract claim involving Anasazi. For each of these claims, Defendants must produce evidence
that it believes demonstrates the absence of a genuine issue of material fact and must explain why
summary judgment is warranted. Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, 115 (App. 2008).
Findings of Fact/Summary of Facts
The Recall
A recall action was initiated by Anasazi to have Plaintiff removed from its Board. The
Petition was submitted by another homeowner, Michael McGrane. It was received by AAM’s
representative, Wayne Yurk on or about May 2, 2016. He assessed that there were more than 100
signators to the petition. The Board then called for a special meeting of the members.
A letter was drafted to the members (all homeowners) and was sent on or about May 9,
2016. The letter included notice that the meeting was to be held on May 25, 2016, where it was to
be held, the time it was to be held, and the subject matter of the meeting. Included with the letter
was an absentee ballot, which reiterated the entirety of the notice and allowed each member to vote
whether to retain or remove Plaintiff from the Board.
Defendant actually received the notice and the ballot on or before May 18, 2016, and
mailed in his ballot voting against his own removal from the Board. His ballot was received by
the Board or AAM on May 24, 2016, the day prior to the special meeting.
The Vote
At the special meeting held on May 25, 2016, the Board found that it had a quorum.
Members were then given the opportunity to be heard on the issue. This opportunity existed
equally for all members, including Plaintiff, who did not appear. No action was taken to prevent
him from appearing or being heard.
A vote was cast and more than 50% of those eligible to vote under the quorum voted to
have Plaintiff removed from the Board. Immediately following the special meeting, notice was
provided to Plaintiff from Mr. Yurk that he had been removed from the Board.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
08/20/2018
Docket Code 926
Form V000A
Page 3
Principles of Law
Summary Judgment Generally
The law is well settled that a motion for summary judgment should be granted “if the facts
produced in support of the claim or defense have so little probative value, given the quantum of
evidence required, that reasonable people could not agree with the conclusion advanced by the
proponent of the claim or defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990); Ariz. R. Civ.
P. 56(c)(1). All facts and reasonable inferences flowing from those facts are viewed in the light
most favorable to the party against whom summary judgment is sought. Gipson v Casey, 214 Ariz.
141, 142, 150 P.3d. 228, 229 (2007).
The Arizona Supreme Court has cautioned against the use of Summary Judgment. The
court stated that it should “not be used as a substitute for jury trials, simply because the trial judge
may believe the moving party should win the jury’s verdict. Id. 166 Ariz. at 210, 802 P.2d. at
1009. On the other hand, if there is only “speculation that some slight doubt…some scintilla of
evidence or some dispute over irrelevant or immaterial fights (that) might blossom into a real
controversy in the midst of trial,” Summary Judgment is appropriate. Id.
Given the facts presented herein, it is important to note an additional principle of summary
judgment law. If the moving party meets its burden, the burden shifts to the non-moving party to
present sufficient evidence demonstrating the existence of a disputed material fact. Thruston, 218
Ariz. at 119. The non-moving party cannot then rest on its pleadings, but must call to the court's
attention evidence to explain why the motion should be denied. Id. See also Kelly v. Nations Banc
Mortg. Corp., 199 Ariz. 284, 287 (App. 2000).
Arizona Condominium Law
The law regulating homeowners’ association management is found until ARS Section 33-
1241, et. seq. For the removal of a board member, ARS Section 33-1243(H) requires, in pertinent
part, as follows:
1. The unit owners who are eligible to vote at the time of the meeting may
remove any member of the board of directors…by the declarant, by a majority
vote of those voting on the matter at a meeting of the unit owners.
2. The meeting of the unit owners shall be called pursuant to this section and
action may be taken only if a quorum is present.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
08/20/2018
Docket Code 926
Form V000A
Page 4
3. The unit owners may remove any member of the board of directors with or
without cause…
4. For purposes of calling for removal of a member of the board of directors,
…, the following apply:
(a) In an association with one thousand or fewer members, on receipt of a
petition that calls for removal of a member of the board of directors and that
is signed by the number of persons who are eligible to vote in the association
at the time the person signs the petition equal to at least twenty-five percent
of the votes in the association or by the number of persons who are eligible
to vote in the association at the time the person signs the petition equal to at
least one hundred votes in the association, whichever is less, the board shall
call and provide written notice of a special meeting of the association as
prescribed by section 33-1248, subsection B.
(c) The special meeting shall be called, noticed and held within thirty days
after receipt of the petition.
(d) For purposes of a special meeting called pursuant to this subsection, a
quorum is present if the number of owners who are eligible to vote in the
association at the time the person attends the meeting equal to at least twenty
percent of the votes of the association or the number of persons who are
eligible to vote in the association at the time the person attends the meeting
equal to at least one thousand votes, whichever is less, is present at the
meeting in person or as otherwise permitted by law.
The Declaration
The Declaration specifically allows a board member to be removed with or without cause.
It further includes by reference the provisions of ARS Section 33-1243(H) as the procedure to be
followed for a member of the Board to be removed. Further, the Declaration provides that the only
violations of law that would serve as a violation of the Declaration would be acts that interfered
with the use of the property.
Good Faith and Fair Dealing
Arizona law imposes a covenant of good faith and fair dealing in every contract. This
“implied-in-law covenant …protects the right of the parties to an agreement to receive the benefits
of the agreement that they entered into. The denial of a party’s rights to those benefits, whatever
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
08/20/2018
Docket Code 926
Form V000A
Page 5
they are, will breach the duty of good faith implicit in the contract.” Wagenseller v Scottsdale
Memorial Hospital, 147 Ariz. 370, 385, 710 P.2d. 1025, 1040 (1985).
Tortious Interference With Contract
The elements for a claim or intentional interference with a contract are summarized in Bar
J Bar Cattle Co., Inc. v Pace, 158 Ariz. 481, 483, 763 P.2d. 545, 547, and require: (1) the existence
of a valid contractual relationship; (2) knowledge of the relationship on the part of the interferor;
(3) intentional interference inducing or causing a breach; (4) resultant damage to the party whose
relationship has been disrupted; and (5) improper action on the part of the defendant.3
Analysis
The analysis of the breach of contract and violation of state law claims involve the same
facts since removal from the Board involved the same procedure. From the factual findings above,
Defendants have established that there are no material issues of fact and that all of the requirements
of ARS Section 33-1243(H) and the Declaration were complied with in removing Plaintiff from
the Board. He has claimed otherwise. However, as noted above, once Defendants demonstrated
that they met the burden of proof for summary judgment, which they have, the burden shifts to
Plaintiff to demonstrate the existence of disputed facts, which he has not.
During oral argument, Plaintiff’s counsel cited a number of potential irregularities in the
process utilized to remove Plaintiff from the Board. Defendant has provided facts showing that
the requisite number of valid recall signatures appeared on the recall petition. In response, Plaintiff
asserted that AAM or Mr. Yurk failed to assess the validity of the signatures on the recall petition,
but has provided absolutely no admissible or even reliable evidence to support that claim or to
show any irregularities. He questioned whether notice had truly been given, but provided no
admissible facts to counter Defendants’ showing that notice had been properly given. He claimed
that Defendants’ interfered with Plaintiff’s ability to be heard yet he cannot factually dispute that
he had notice at least one week before the meeting, knew where and when it would be held, and
failed to attend. He cannot dispute that he actually voted against his own removal as part of his
membership rights, an indisputable fact that goes directly to the notice issue.
In addressing Mr. Jensen, it is impossible to find that he breached the contract when there
are no material issues of fact showing that there was any breach of contract at all. Plaintiff has
3 For the purpose of this order, the court will assume that even though Defendant Jensen is a party to the contract (the
Declaration), there is still the potential for him to tortiously interfere with the contract between Plaintiff and the other
parties to the contract.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
08/20/2018
Docket Code 926
Form V000A
Page 6
picked out Mr. Jensen specifically as the catalyst for the recall. This may or may not be true but
the existence of this fact is irrelevant. A member of the Board can be removed with or without
cause. Even if the action taken against Plaintiff was at the initiation of Mr. Jensen (for which there
appears to be no supporting facts) and it was for some ulterior or improper motive (which has not
been shown), the law and the Declaration required only that the proper procedure be followed. It
was.
The claim that the covenant of good faith and fair dealing was breached is equally lacking.
Defendants have adequately demonstrated the lack of disputed material facts as to this issue. The
actions to remove Plaintiff from the Board did not interfere with his contract with Anasazi through
the Declaration. Under that contract, he had the rights to undisturbed use of his property, the
maintaining of common areas, the regulation of behaviors of other homeowners that might have
compromised value, and the like. He had no contractual “right” to be on the Board. He has failed
to provide even one material fact in dispute to show that the actions to remove him from the Board
and his later actual removal denied Plaintiff any of his rights under the Declaration.
The court now turns to the tortious interference claim. It is undisputed that there is a valid
contract (the Declaration) and that the named Defendants for this claim knew of that contractual
relationship. Defendants have made their requisite showing that there are no material facts
supporting intentional interference by them that caused the contract to be breached or that they
acted improperly. More importantly, there is no showing whatsoever of a material fact in dispute
as to Plaintiff’s damage claim. Defendants have established that service on the Board is not a
right, that service on the Board is not a compensated position, and that removal from the Board
did not cause any discernable loss to Plaintiff. He has not since come forward to show that there
are disputed material facts as to damages. He alleges that he was “substantially damaged” but
does not support that with one fact. He alleges that there was a “publication of false statement
contained within the petition” for his recall, but cannot trace one fact to establish that any of these
named defendants perpetrated the dissemination of false information or even that the information
was, in fact, false. Plaintiff has not shown that dissemination of false information caused him to
suffer any damages. He has not provided any admissible evidence to show that the alleged actions
of any of these Defendants to interfere with his contractual relationship caused him to suffer any
loss of his expected benefits under the Declaration.
It bears repeating that the burden of proof to establish no genuine issues of material fact is
placed on the moving party. However, when that moving party meets that burden of proof, as has
been met here, it is incumbent upon the non-moving party to demonstrate “facts” that are material
and in dispute. Plaintiff has provided nothing more than conclusory statements and speculative
facts to counter Defendants’ well-conceived motion.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
08/20/2018
Docket Code 926
Form V000A
Page 7
This court is quite wary of preventing parties from having their day in court. But when the
support for summary judgment is as overwhelming as it is here, it would be a dereliction of duty
to require these Defendants to have to defend this matter, through trial. Summary Judgment is not
only appropriate, it is required.
Conclusions of Law
A party “may only obtain summary judgment if it submits undisputed admissible evidence
that would compel any reasonable juror to find in its favor on every element of its claim.”
Comerica Bank v. Mahmoodi, 224 Ariz. 289, 293, 229 P.3d. 1031, 1035 (2010). Defendant has
met this burden.
Order/Ruling
IT IS ORDERED granting Summary Judgment in its entirety as to all claims made by
Plaintiff. Defendants are instructed to submit a form of judgment consistent with this ruling by no
later than September 25, 2018.
12/20/2017 — CV2017056168 CONDOMINIUMS HOMEOWNERS ASSOCIATION INC, ANASAZI VILLAGE 12/20/2017 HONORABLE AIMEE L. ANDERSON View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
12/21/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2017-056168
12/20/2017
Docket Code 350
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE AIMEE L. ANDERSON
A. Wood
Deputy
ROBERT PESHEK
JUSTIN R COOLEY
v.
ANASAZI VILLAGE CONDOMINIUMS
HOMEOWNERS ASSOCIATION INC, et al.
TROY B STRATMAN
COURT ADMIN-CIVIL-ARB DESK
MINUTE ENTRY
The Court has reviewed the case file and finds that this matter is subject to compulsory
arbitration. Therefore,
IT IS ORDERED transferring this matter to the Civil Court Administration Arbitration
Desk for appointment of an arbitrator.
