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Maricopa County Superior Court Case CV2018-014261: public docket details, parties, minute entries, documents, and official source links for Whisper Mountain Homeowners Association.

Case Number

CV2018-014261

County

Maricopa

Caption

Not captured

Filed

11/19/2018

Case Type

Civil

Judge

Pineda, Susanna

Location

Downtown

Official Court Record

Official Court Record

Parties

No parties captured.

Minute Entries

Clerk of the Superior Court

*** Electronically Filed ***

01/06/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

01/05/2021

Docket Code 016
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

EXTENSION FOR TIME

The Court has received and considered the parties’ Stipulation to Request Extension of
Time for Parties to File Their Proposed Findings of Fact and Conclusions of Law, filed December
18, 2020. Good cause appearing,

IT IS ORDERED approving the Stipulation, all in accordance with the formal written
Order signed by the Court December 18, 2020, and filed (entered) by the clerk January 5, 2021.

Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. After the order has been scanned and docketed by the Clerk of Court,
additional
copies
of
the
order
will
be
available
through
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.

Clerk of the Superior Court

*** Electronically Filed ***

01/08/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

01/07/2021

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
K. Cabral

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

MINUTE ENTRY

The Court has received and reviewed Plaintiffs’ Motion to Strike Portions of Defendant
WMHOA’s Rule 52 Proposed Statement of Facts and Conclusions of Law filed December 23,
2020.

IT IS ORDERED denying Plaintiffs’ Motion to Strike Portions of Defendant WMHOA’s
Rule 52 Proposed Statement of Facts and Conclusions of Law filed December 23, 2020

Clerk of the Superior Court

*** Electronically Filed ***

01/25/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

01/22/2021

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
T. McMillian

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

MINUTE ENTRY

Due to a clerical error,

IT IS ORDERED correcting page 4 of the minute entry dated November 5, 2020, to
reflect that Defendant’s exhibit 45 is received in evidence.

The remainder of the minute entry remains unchanged.

Clerk of the Superior Court

*** Electronically Filed ***

02/12/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

02/11/2019

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE CONNIE CONTES
D Arrieta

Deputy

JASON KOMOROWSKI, et al.
JACOB A KUBERT

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
MARIA R KUPILLAS

JUDGE CONTES

MINUTE ENTRY

The following pertains to the pretrial matters identified below. To the extent that it is
inconsistent with any order that has been entered in this matter, including any scheduling order,
this minute entry controls and the inconsistent language in any such previous order is vacated.

Discovery Disputes – Discovery disputes are strongly discouraged. Before filing a written
motion to compel, motion for protective order, or any other motion related to discovery, please
observe the following procedure.

If you believe that discovery to which you are entitled has not been provided to you as
required by the applicable rules, or that you have received discovery requests that are not warranted
in this case, and you want the court to intervene, you must contact the other party’s attorney (or
the other party if he/she is self-represented), and then together, telephone the court to ask for a
telephonic conference. No such request will be considered, however, if made 30 or fewer calendar
days before the scheduled trial or evidentiary hearing.

To encourage the resolution of discovery disputes without court intervention, you are urged
to consider the risk that comes from not providing discovery responses as required by the
applicable rules. Even if court intervention is not requested, should a party fail to provide

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

02/11/2019

Docket Code 023
Form V000A
Page 2

discovery that the court later decides is relevant, the jury may be told, or the court may assume,
that the failure to provide discovery warrants an adverse inference against the party who refused
to provide it.1 Further, when a party fails to respond completely to discovery requests that the
court concludes are reasonable, the trier of fact is permitted to assume that party is not credible in
other ways.2 In addition, should a party fail to provide discovery on a matter essential to another
party’s claim or defense, the party failing to provide the discovery may be precluded from
presenting evidence, or that failure may result in the striking of that party’s pleadings. (For
purposes of this order, “discovery” includes both responses to formal discovery requests and all
disclosure required by Ariz. R. Civ. P. 26.1.)

Dispositive Motions – Absent leave of court, and for good cause shown, no party may,
from this date forward, file more than one summary judgment motion. If a motion for summary
judgment is filed, all issues must be raised in a single motion (e.g., the single motion may consist
of what would otherwise be two or more motions for partial summary judgment). All issues in
response to a motion must be raised in a single filing, even if that filing includes a cross-motion (a
cross-motion is almost always a response to the original motion). All summary judgment motions
and submissions that follow the filing of those motions are expected to comply with the letter and
spirit of Ariz. R. Civ. P. 56 and Maricopa Cty. Rs. 2.16, 3.2(f).3

1 E .g., Sing v. Gonzales, 491 F.3d 1019, 1024 (9th Cir. 2007) (“When a party has relevant evidence in his control
which he fails to produce, that failure gives rise to an inference that the evidence is unfavorable to him” (citation
omitted)); see also Pendleton v. Brown, 25 Ariz. 604, 622, 221 P. 213, 219 (1923) (similar).

2 See generally Callender v. Transpacific Hotel Corp., 179 Ariz. 557, 562, 880 P.2d 1103, 1108 (App. 1993); see also
Nardella v. Campbell Mach., Inc., 525 F.2d 46, 49 (9th Cir. 1975) (quoting Banks v. Chicago Grain Trimmers, 390
U.S. 459, 467 (1968)).

3 Among other things, this means refraining from efforts designed to maneuver around the page limit rules by, for
example, placing substantive arguments (including string citations with parenthetical quotations or explanations) in
footnotes, an appendix, or accompanying statement of facts – if something needs to be understood before an informed
decision can be made, that material should be placed in the main text, and anything not necessary to a reasoned
decision does not warrant even footnote or appendix treatment), incorporating by reference substantive arguments that
appear in other briefs, or altering the pagination (e.g., placing the number 1 at the bottom of page 2). Effective written
advocacy is not a function of quantity. Those who think that lengthy briefs are indispensable to success may be well-
served to remember that “the long brief says the question could go either way and begs that you be rewarded for doing
your homework. The short brief says there is an answer to the problem and you have found it.” James W. McElhaney,
McElhaney’s Litigation 284 (1995); see also Fleming v. County of Kane, 855 F.2d 496, 497 (7th Cir. 1988) (page-limit
rules “encourage [the parties] to hone their arguments and to eliminate excessive verbiage. [They] induce[] the
advocate to write tight prose, which helps his client's cause. . . . Overly long briefs . . . may actually hurt a party's case,
making it far more likely that meritorious arguments will be lost amid the mass of detail” (citations and internal
quotation marks omitted)).

Further, statements of fact should be presented in “concise, numbered paragraphs” [Ariz. R. Civ. P. 56],
preferably with one fact per paragraph (which, among other things, makes it much easier to identify those facts that

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

02/11/2019

Docket Code 023
Form V000A
Page 3

The one-motion limit deprives no litigant of any privilege or right because it applies only
when good cause cannot be shown. The limit is intended to accomplish several objectives. First,
limiting the number of summary judgment motions promises to reduce the expense of litigation
for the parties who must otherwise bear the cost of multiple motions. Second, the more motions
that are filed, the more court time is required to deal with them which, when viewed cumulatively,
serves to slow down not only the case at hand, but other cases as well. Thus, the limit can assist
in moving cases to a just conclusion more quickly. Third, limiting the number of motions promises
to enhance the quality and efficacy of motion practice. It is likely that the limit will promote
greater thought and more careful attention to crafting that one motion, with the result being a
product that is superior to what otherwise would be filed. Fourth, the limit discourages the frequent
practice of filing a dispositive motion in the early stages of the case before all claims, defenses,
and material facts are understood. Filing a dispositive motion early in the case, accompanied by
what is far more often than not an unrealistic hope of achieving an early victory while comforted
in the belief that the motion’s denial will not prevent filing another (often much the same) motion
later in the case on the pretense that the first motion was submitted without benefit of discovery,
is a practice that serves no one well, especially the clients who must finance the failed efforts.
Moreover, because the limit should, in most cases, cause attorneys to wait before filing a summary
judgment motion, they may realize with the benefit of discovery that summary judgment has no
chance of being granted, thus eliminating the need for filing what would be a pointless motion.

Unless another order in this case establishes an earlier deadline, the deadline for filing a
summary judgment motion is 145 days before trial. No modification, including a stipulated
modification, of this deadline will be honored absent a motion explaining why the 145-day
deadline is impractical in the circumstances.

are disputed or objectionable). Statements of fact should not contain any assertions that amount to argument. See
Breeser v. Menta Group, Inc., 934 F.Supp.2d 1150, 1153-54 (D. Ariz. 2013). (Although Breeser is a federal court
decision applying a local federal rule, in this court’s view, that local rule and its application in Breeser are consistent
with the spirit, if not the letter, of Ariz. R. Civ. P. 56(c)(3). “[F]act statements are designed to assist the court by
organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side proposes to prove a
disputed fact with admissible evidence. Opinion, suggested inferences, legal arguments and conclusions are not the
proper subject matter of a [fact] statement.” Breeser, 934 F.Supp.2d at 1155.)

Finally, the parties are encouraged to refrain from engaging in what is the all-too-frequent practice of filing
“controverting” or “supplemental” statements of facts with their reply memoranda. Rule 56 does not provide for such
filings and, moreover, it is “improper to introduce new evidence with the reply.” Wells Fargo Bank v. Allen, 231 Ariz.
209, 214 n.3, ¶20, 292 P.3d 195, 200 n.3 (App. 2012) (reversing summary judgment). Objections to the nonmoving
party’s evidence should be treated in the reply memorandum: employing a separate filing that urges objections
accompanied by argument is not permitted.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

02/11/2019

Docket Code 023
Form V000A
Page 4

Motions in Limine and Daubert Motions – The granting or denial of a motion in limine
turns on whether the admission of evidence reaches the level of reversible error or a mistrial.4
Motions in limine are not granted “except upon a clear showing of non-admissibility.”5 And,
motions in limine should not be used as substitutes for dispositive motions.6

1. Page Limit and Format: Other than Daubert motions and responses to those
motions, neither the motion in limine nor the response may exceed two pages, including the
caption. Showing that the motion has merit should not require more than that.7

Any motion in limine or response to such a motion should begin with a simple declarative
sentence that identifies the evidence that is the subject of the motion, with the understanding that
the broader the scope of the evidence to be excluded, the less likely it is that a motion in limine
will be granted.8 The remainder of the motion or response should then explain why a mistrial or
reversible error would or would not result if the motion is denied, with citations to authority that
have reached the same conclusion in the same or similar circumstances (this also applies to motions
in limine based on any failure to disclose, keeping in mind that nondisclosure implicates Ariz. R.

4 See e.g., State v. Ferrari, 112 Ariz. 324, 327, 541 P.2d 921, 924 (1975) (affirming denials of motions in limine:
framing the issue in terms of reversible error); State v. Pearce, 22 Ariz. App. 338, 339, 527 P.2d 297, 298 (1975)
(affirming grant of motion in limine: same); State ex rel. Berger v. Superior court, 108 Ariz. 396, 397, 499 P.2d 152,
153 (1972) (framing the issue in terms of a mistrial).

5 State ex rel. Berger, 108 Ariz. at 397, 499 P.2d at 153 (emphasis added); accord e.g., Indiana Ins. Co. v. General
Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004) (“The court has the power to exclude evidence in limine only
when evidence is clearly inadmissible on all potential grounds” (emphasis added)).

6 E.g., Dunn v. State Farm Mut. Auto. Ins. Co., 264 F.R.D. 266, 274 (E.D. Mich. 2009) (“[M]otions in limine are
meant to deal with discrete evidentiary issues related to trial, and are not another excuse to file dispositive motions
disguised as motions in limine” (citation and internal quotation marks omitted)); Goldman v. Healthcare Mgt. Sys.,
Inc., 559 F. Supp. 2d 853, 871-72 (W. D. Mich. 2008) (same: collecting cases)); Johnson v. Chiu, 199 Cal. App. 4th
775, 780-81, 131 Cal Rptr. 3d 614, 618 (2011) (“What in limine motions are not designed to do is to replace . . .
dispositive motions”; “To have the sufficiency of the pleading or the existence of triable issues of material fact decided
in the guise of a motion in limine is a perversion of the process” (citations and internal quotation marks omitted)).

7 Evidence is not to be excluded even when it is inadmissible for one purpose or against one party if it remains
admissible for another purpose or against another party. E.g., Steele v. Vanderslice, 90 Ariz. 277, 287, 367 P.2d 636,
643 (1961) (“Evidence admissible for one purpose is not to be excluded because inadmissible for another purpose”);
Cavanagh v. Ohio Farmers Ins. Co., 20 Ariz. App. 38, 44, 509 P.2d 1075, 1081 (1973) (“[E]vidence properly offered
against one of multiple parties must ordinarily be admitted, although it would be inadmissible and prejudicial against
another party”).

8 Sperberg v. Good year Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975) (“Orders in limine which exclude broad
categories of evidence should rarely be employed”).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

02/11/2019

Docket Code 023
Form V000A
Page 5

Civ. P. 37(c)).9 If the motion is unable to explain why its denial would result in a mistrial or
reversible error, the remainder should then demonstrate persuasively what efficiency, economy, or
other benefit is to be gained by granting the motion.

Other than Daubert motions, which should be filed separately, if two or more motions in
limine are filed, they should be combined as a single omnibus motion. The caption should appear
on the first page, and each motion should begin on a new page, following the format and page limit
standards above. The same applies to any response opposing such an omnibus motion.

2. Rule 7.2: Before any motion or omnibus motion may be filed, the moving party
must comply with Ariz. Rule Civ. P. 7.2(a) (i.e., establishing a meet and confer requirement, which
may be satisfied by meeting in person or by way of telephone conversations, but not by written
means (e.g., e-mail, letter)).

3. Deadlines: Unless another order in this case, including any subsequent order,
establishes an earlier deadline, the deadline for filing Daubert motions is 120 days before the
scheduled first day of trial and the deadline for motions in limine is 30 days before the pretrial
management conference. In both instances, responses must be filed 15 days after service, and no
replies should be filed unless requested.

4. Under Advisement: Although motions in limine will be considered as quickly
as the court’s schedule permits, they will not be taken under advisement any sooner than 15 days
before the start of the trial, irrespective of when they are filed. That said, if the parties believe that
a ruling on such a motion early in the case will facilitate settlement, they should notify this Division
(by telephone or e-mail is sufficient), and every effort will be made to decide the issue as soon as
time allows.

9 “When a motion in limine is used to enforce the provisions of Rule 26.1, it is effectively a request for sanctions under
Rule 37(c), Ariz. R. Civ. P. As such, it must be considered and reviewed using the standards of Rules 26.1 and 37(c) and
the cases that have applied them.” Zimmerman v. Shakman, 204 Ariz. 231, 235, ¶12, 62 P.3d 976, 980 (App. 2003).
Among other things, that requires the court to consider whether a postponement of the trial is warranted. Thus, a motion
that urges the exclusion of evidence based on a failure to comply with Rule 26.1 should explain why any unfair prejudice
that may result from allowing the evidence cannot be remedied by a trial continuance.

Clerk of the Superior Court

*** Electronically Filed ***

03/11/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

03/08/2021

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
E. Wolf

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

MINUTE ENTRY

The Court heard evidence on November 5, 9, and 10, 2020 in this Trial to the Court. The
Court also heard closing arguments on December 9, 2020. The parties requested an opportunity to
submit proposed findings of fact and conclusions of law, which they did on January 9, 2021. Based
on all of the foregoing, the Court issues the following rulings, verdict, findings of fact, and
conclusions of law. As described more fully below, the Court rules in favor of the Plaintiffs Jason
and Melissa Komorowski (the Komorowskis), denies the request to construct a new drainage
channel, issues a permanent injunction for maintenance of the drainage ditch, and awards damages
to the Komoroskis in the amount of $17,800.01. The Komoroskis are to submit a form of order for
entry of judgment in the case in accordance with the Rules.

WMHOA’s Rule 50 Motion for Partial Judgment

At the close of the Komorowskis’ case, the Defendant, Whisper Mountain Homeowners
Association (the “WMHOA”), moved for partial judgment under Rule 50. WMHOA argues that
in a nonjury trial, a Rule 50 motion is typically treated as a Rule 52 motion in which the Court
may make findings in accordance with its own view of the evidence. See Johnson v. Pankratz, 196
Ariz. 621, ¶ 15 (App. 2000); Ritchie v. U.S., 451 F.3d 1019, 1023 (9th Cir. 2006). In its proposed
Findings of Fact and Conclusions of Law, WMHOA “requests the Court to grant WMHOA’s

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

03/08/2021

Docket Code 926
Form V000A
Page 2

converted ACRP 52(c) motion and enter partial judgment finding that nothing in the CC&Rs,
particularly Section 10.1, limited WMHOA’s discretion to repair and improve the ditch only by
building a new ditch in conformity with the original development plans.” WMHOA’s Rule 52
Proposed Statement of Facts and Conclusions of Law, at 2.

At trial, the Court held ruling on the motion in abeyance. It now finds the issues raised in
the case are best addressed by considering all the evidence presented. Therefore,

IT IS ORDERED denying WMHOA’s Rule 50 motion.

WMHOA’s Motion for Sanctions

WMHOA moved for sanctions pursuant to Rule 37 based on the Komoroskis’ purported
concealment and failure to disclose certain records related to certain documents for their rental of
the property. WMHOA argues that these documents were contrary to the Komoroskis’ interests
and that the Komoroskis intentionally failed to produce them. The Court finds that the documents
are not adverse to the Komoroskis’ positions in the case. Therefore,

IT IS ORDERED denying the Motion for Sanctions.

Findings of Fact

A. Contractual Rights and Obligations Created by the CC&Rs

1. The Komoroskis purchased Lot 52 in the Whisper Mountain subdivision in
Mesa, Arizona (the “Subdivision”) in August 2013 and have owned it since
then.

2. Lot 52 lies at the base of the north slope of Whisper Mountain. The top of the
mountain is 300 feet above the elevation of the drainage easement that is the
subject of this lawsuit.

3. WMHOA is a duly constituted homeowner’s association, originally formed by
the developer of the Subdivision, VIP Construction, Inc. (“VIP”) for the benefit
of owners of property in the Subdivision.

4. WMHOA has since February 2015 been operated by the homeowners of the
Subdivision.

5. WMHOA is governed by the Amended and Restated Declaration of Covenants,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

03/08/2021

Docket Code 926
Form V000A
Page 3

Conditions and Restrictions For Whisper Mountain, trial exhibit 1 (the
“CC&Rs”).

6. The CC&Rs form a binding contract between WMHOA and each of the
homeowners of the Subdivision.

7. The CC&Rs, at section 10.1, obligate WMHOA to maintain, repair and replace
all drainage facilities in drainage easements in the Subdivision in accordance
with the approved Final Plat. The approved Final Plat was recorded in 2004,
trial exhibit 2.

8. The Dedication on the first page of the Final Plat dedicates, among other things,
a drainage easement to WMHOA over lots 42-60 “as shown hereon.” Sheet 2
of 5 of the Final Plat locates that drainage easement in a twelve-foot strip of
land running across the Southern portion of Lots 52, 51, 50 and 49 which is
labeled “DRAINAGE ESM’T”.

9. Note 3 on the first page of the Final Plat provides that WMHOA “will have the
responsibility for maintaining the common areas to be noted as tracts or
easements including landscaping and drainage facilities in accordance with
Approved Plans.”

10. The Approved Plans referred to in the Final Plat are those engineering plans,
consisting of drawings and specifications, prepared by Hoskin-Ryan
Consultants, Inc., an engineering firm, in 2004, trial exhibit 3.

11. Hoskin-Ryan
Consultants
prepared
the
Approved
Plans
for
the
Owner/Developer VIP. Section B on Sheet 34 of the Approved Plans (“Section
B”) provides an engineering drawing detail, with the specific dimensions,
slopes, materials and features of a channel that VIP was to construct in the
drainage easement located on Lots 52, 51, 50 and 49 (the “Channel”).

12. The purpose of the Channel is to intercept rain water flowing down Whisper
Mountain and safely convey that water away from Lots 52, 51, 50 and 49.

B. WMHOA Has Failed to Protect The Komoroskis’ Property from Flooding

1. VIP did not construct the Channel in the drainage easement on Lots 52, 51, 50
and 49 to the requirements set forth in Section B.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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Docket Code 926
Form V000A
Page 4

2. In 2014, prior to the establishment of the WMHOA, flood waters from a rain
storm inundated the Subdivision, including the Komoroskis’ property. Water
flooded down the north slope of Whisper Mountain, across the drainage
easement, and onto the Komoroskis’ property.

3. In 2015, the homeowners in the Subdivision gained control of the homeowner’s
association from VIP by operation of law. WMHOA then made demand upon
and commenced litigation against VIP in 2015, in part, over its failure to
construct the Channel across Lots 52, 51, 50 and 49 in accordance with Section
B. It is clear from this litigation that WMHOA was aware of the limitations of
the existing ditch and its potential for flooding.

4. WMHOA and VIP settled the 2015 litigation in October 2016. The settlement
provided that VIP would perform some work to improve the drainage easement
but did not require VIP to construct the Channel in the drainage easement as
required by Section B.

5. Thereafter, consistent with the settlement, VIP cleared the existing unlined
ditch in the drainage easement, as shown in photos in trial exhibits 55 and 58.
VIP did not construct the channel in the manner set forth in Section B.

6. VIP ceased work under the settlement agreement in the first half of 2017. Under
the settlement agreement, WMHOA assumed sole responsibility for the
improvements in the drainage easement thereafter.

7. Rain water and sediment continued to flow down Whisper Mountain and onto
the Komoroskis’ property.

8. Water flowing off Whisper Mountain flooded the side yard of the Komoroskis’
property on July 24, 2017 and again on August 9, 2018. That flooding occurred
because rain water washed sediment down the mountainside and into the
existing shallow ditch in the drainage easement. That sediment formed a dam,
causing water to pond in and then overflow the bank of the ditch, and flow into
the Komoroskis’ back yard. That water then flowed into the Komoroskis’ side
yard where, impeded by a wall that separates the side from the front yard, it
created another pond. Water ponding in the Komoroskis’ yard came to within a
foot or two of the Komoroskis’ house.

9. The Komoroskis introduced as trial exhibits 34 and 39 short videos showing
water pouring through their dry stack wall and into their back yard.

SUPERIOR COURT OF ARIZONA
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Form V000A
Page 5

10. According to the Komoroskis’ Arizona-licensed civil engineering expert, Curt
Peterson, there is an arroyo about ten to twenty feet west of the Lot 52/51
property line where a large amount of water from the mountainside behind Lot
51 enters the ditch, and deposits sediment. That sediment deposits in the ditch
because the water slows down as it arrives at the ditch and turns so it can flow
west in the ditch. The deposited sediment in the ditch is shown in photos in
Exhibits 55, 58 and 60. Peterson testified that there are rocks and a narrowing
of the ditch that create a chokepoint where the arroyo joins the ditch. That
chokepoint is also evident in the photographs.

11. Peterson confirmed the Komoroskis’ testimony that when a dam has formed in
the ditch where the arroyo joins it, water has ponded behind the dam, causing
that water to back up in the ditch or Lot 52, and to spill over the side of the ditch
and flood the side yard of the Komoroskis’ property. Photos 5, 9 and 10 in trial
exhibit 58 show the pond in the ditch.

12. WMHOA’s engineering expert, David Deatherage, admitted that water and
sediment from a portion of the uppermost portion of mountain drains onto a fire
road that crosses from east to west near the top of Whisper Mountain. The
water from that fire road flows through drain pipes that empty above Lot 51.
Water and sediment flows from a large area down the mountainside above Lot
51, and enters the ditch just west of the Lot 52/51 property line, where the dam
forms.

13. Water flowing off the mountain during a rainstorm in February 2019 threatened
again to flood their property, but the Komoroskis were able by their own efforts
during that rainstorm to dig through the sediment dam that had formed at the
chokepoint in the ditch.

14. In the first half of 2019, the Komoroskis installed sandbags between the
wrought iron fence on their property and the drainage easement to provide
temporary protection against further flooding of their property.

15. The flooding of water from the mountain onto the Komoroskis’ property
deposited sediment on the property and eroded the soil behind a dry stack wall
that lies between the improved portion of the Komoroskis’ back yard and the
drainage easement.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

03/08/2021

Docket Code 926
Form V000A
Page 6

C. WMHOA’s Improvements

1. Commencing in September 2017, following the flooding in July of that year,
the Komoroskis made repeated requests that WMHOA improve the drainage
easement to provide for an effective drainage system to protect their property
from flooding.

2. Jason Komorowski and Greg Wingert, president of WMHOA, consulted about
ways to prevent flooding of the Komoroskis’ property with Gary Stocker, a civil
engineer introduced by WMHOA in 2018.

3. WMHOA failed thereafter, however, to construct the Channel, or even to make
any improvements to the existing ditch.

4. The Komoroskis filed this lawsuit for equitable relief and damages in
November 2018.

5. After the Komoroskis filed this lawsuit, WMHOA retained Mr. Deatherage, a
geotechnical engineer, to assist it in responding to the Komoroskis’ claims.

6. Mr. Deatherage does not dispute the cause of the flooding to which Mr. Peterson
testified. He proposed a design for an improved ditch in the drainage easement.

7. The Deatherage Plan exceeds engineering standards for handling a 1 in 100 year
rain event. The Deatherage plan did not include construction of the Channel as
depicted in Section B of trial exhibit 3.

8. In early September 2020, WMHOA engaged a contractor, Tennyson
Construction, Inc. (“Tennyson”) to make improvements to the ditch in the
drainage easement in accordance with the Deatherage Plan.

9. According to Mr. Deatherage, Tennyson graded the ditch and installed a 6 inch-
9 inch masonry wall on top of the north bank. That curb is depicted in trial
exhibit 86.

10. Tennyson completed its work in the drainage easement on or about October 26,
2020, and Mr. Deatherage then inspected it.

11. The Tennyson improvements were not those provided in the plans and

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

03/08/2021

Docket Code 926
Form V000A
Page 7

specifications set forth in Section B.

12. According to Mr. Deatherage, his design will protect the Komoroskis’ property
from flooding if WMHOA properly maintains the ditch, which he explained
would require WMHOA to clear sediment from the ditch whenever it fills at
any point to 25% of volume.

D.
The Komoroskis’ Harm Cannot Be Remedied By Money Damages

1. From 2015 through 2020, WMHOA failed to maintain the Channel to prevent
flooding of the Komoroskis’ property.

2. The repair work done by Tennyson is expected adequately to protect the
Komoroskis’ property from further flooding and further damage, but only so
long as adequate maintenance is performed.

3. Mr. Wingert admitted that WMHOA has had difficulty getting a contractor to
remove sediment from the existing ditch on a timely basis.

4. Therefore, the Court finds that injunctive relief is appropriate and necessary to
protect the Komoroskis’ property on an ongoing basis.

E.
Compensable Damages

(1) Diminished Property Value

1. The Komoroskis argue that the flooding has caused a diminution in their
property value.

2. The Komoroskis’ real estate expert, Matthew Potter, an Arizona-
licensed real estate agent with experience in residential property sales
in the East Valley market, testified that the Komoroskis’ property would
be considered distressed because it has suffered flooding events three
times in the last 10 years. Mr. Potter expressed an opinion that the
Komoroskis’ property value would be 15-25% lower because of the
flooding.

3. Mr. Potter testified that any mitigation work done to reduce or eliminate
the potential for flooding would reduce the diminution in value, but that
the diminution would never completely go away.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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03/08/2021

Docket Code 926
Form V000A
Page 8

4. Mr. Potter was not aware that the Komoroskis were currently renting
the property. He did not do an assessment as to whether rental values
decreased because of flooding.

5. Mr. Komorowski testified that he accurately disclosed to his current
renter that there is no damage to the property from water or leaks.

6. Mr. Komorowski testified that he accurately disclosed to his current
renter that problems exist with drainage in close proximity to the
property.

7. Mr. Komorowski did not testify or offer evidence that he suffered any
decrease in rental value.

8. Mr. Potter did not know whether the remedial work done by WMHOA
would affect the property value. He testified that time is needed to
determine if the work is successful in eliminating flooding to the
property.

9. Given the remedial work done to the ditch, Mr. Potter’s
acknowledgment that remedial work can reduce any diminution in value
from prior flooding, Mr. Komorowski’s failure to note any decrease in
rental value, and the Court orders for ongoing maintenance provided in
this ruling, the Court finds that any diminution in the Komoroskis’
property value is too speculative to be compensable.

(2) Cost for Repairs

1. Curt Peterson testified that it will cost the Komorowskis $16,000 to
regrade their yard and repair their dry-stack wall. WMHOA did not
rebut that estimate, and the Court finds it credible.

2. Mr. Komorowski testified that he had spent $1,800.01 out of pocket to
install sandbags behind the property, and he submitted documentary
evidence of those expenditures. The sandbags are evident in photo 5 of
trial exhibit 58. WMHOA did not controvert that testimony, and the
Court finds it to be credible.

3. The Court finds that the Komoroskis have suffered damages to their

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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03/08/2021

Docket Code 926
Form V000A
Page 9

property totaling $17,800.01 that were proximately caused by
WMHOA’s breach of contract from failure to maintain the Ditch to
prevent flooding to the Komoroskis’ property.

4. The Court finds by a preponderance of the evidence that the Komoroskis
have proven these damages were proximately caused by WMHOA’s
breach of the CC&Rs.

I.
Conclusions of Law

1. The CC&Rs are a valid and enforceable contract between the Komoroskis and
WMHOA. Johnson v. Pointe Cmty. Ass'n, Inc., 205 Ariz. 485, 489 (Ct. App. 2003)
(“In Arizona, a recorded declaration that contains restrictive covenants common to all
properties in a development forms a contract between ‘the [development's] property
owners as a whole and the individual lot owners.’”) (quoting Ariz. Biltmore Estates
Ass'n v. Tezak, 177 Ariz. 447, 448 (App.1993)).

2. The interpretation of a contract presents an issue of law for the Court. Dunn v. FastMed
Urgent Care PC, 245 Ariz. 35, 424 P.3d 436 (Ct. App. 2018).

3. When interpreting a contract, the Court seeks to discover and effectuate the parties’
expressed intent. To do so, the Court must construe the provisions according to their
plain and ordinary meaning. Terrell v. Torres, 248 Ariz. 47, 456 P.3d. 13 (2020).

4. The Court finds the CC&Rs to be clear with respect to the obligations imposed on
WMHOA for the drainage facility at issue in this case.

5. The plain and ordinary meaning of those provisions is that WMHOA has an obligation
under Section 10.1 of the CC&Rs to replace, repair and maintain the drainage facilities
in the Subdivision.

6. Section 13.1 of the CC&Rs gives the Komoroskis, as homeowners, a right to pursue
claims in law or equity to enforce those and other rights. The Komoroskis seek relief
in law and equity in this proceeding.

7. The Komoroskis have proven that WMHOA has breached the CC&Rs by failing to
maintain the ditch in order to prevent flooding the Komoroskis’ property.

8. WMHOA has not shown that enforcement of the CC&Rs as provided for herein will
impose an undue hardship on it. Ahwatukee Custom Estates Mgmt. Ass'n, Inc. v.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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03/08/2021

Docket Code 926
Form V000A
Page 10

Turner, 196 Ariz. 631, 635 (Ct. App. 2000) (“Equitable considerations include the
relative hardships and injustice; the public interest; misconduct of the parties, if any;
delay on the part of the plaintiff; and the adequacy of other remedies.”).

9. It would impose an undue hardship on the Komoroskis to continue to have their
property flood, which would deprive them of full use and enjoyment of it, and impair
their ability to sell it when they so desire. Instead, it is equitable to require WMHOA
to perform its contractual obligations as agreed.

10. The Komoroskis are suffering and will continue to suffer substantial, repeated physical
damage to their property that cannot be remedied by an award of damages.

11. The balance of the equities strongly favors granting the Komoroskis the injunctive
relief they seek.

12. The Komoroskis are entitled to permanent injunctive relief ordering WMHOA to
properly maintain the ditch so that flooding is averted.

13. Proper maintenance of the ditch shall include a documented inspection of the ditch by
professional engineer or engineering firm (1) within one week after each rain event
measuring .5 inches or greater during any one week period, (2) at least once annually,
or (3) any time flooding is documented on a property owned by a homeowner within
WMHOA. The documented inspection must include an analysis of the amount of
sediment in the ditch.

14. Proper maintenance of the ditch shall include removal of sediment to return the ditch
to the condition depicted in the photographs taken immediately after the Tennyson
work, and included as trial exhibits 84 and 86. Such removal of sediment shall be
undertaken by professional landscaping company within one week of any of the
following events: (1) when the sediment in the ditch reaches 25% of capacity; (2) when
sediment causes a chokepoint that causes or has the potential to cause flooding onto a
property owned by a homeowner within WMHOA; or (3) no less than once every five
years.

15. WMHOA’s failure to improve and maintain the drainage easement also proximately
caused foreseeable physical damage to the Komoroskis’ property, and forced the
Komoroskis to incur out of pocket costs.

16. The Komoroskis are entitled to recover the damages caused by WMHOA’s failure to
fulfill the foregoing obligations pursuant to the CC&Rs.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

03/08/2021

Docket Code 926
Form V000A
Page 11

17. The Komoroskis are awarded damages of $17,800.01, with interest on the foregoing as
provided for by law until paid in full.

Clerk of the Superior Court

*** Electronically Filed ***

04/01/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

03/27/2020

Docket Code 089
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE CONNIE CONTES
P. McKinley

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

MICHAEL WARZYNSKI
JUDGE CONTES

TRIAL SET

East Court Building – Courtroom 913

9:03 a.m. This is the time set for telephonic Trial Setting Conference for the purpose of
setting a trial date and a final trial management conference date. Plaintiffs are represented by
counsel E. Jeffrey Walsh. Defendant is represented by counsel Bradley Jardine and Michael
Warzynski.

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

Discussion is held regarding the status of the case and trial scheduling matters. The court
inquires of all counsel whether or not the parties have considered waiver of a jury trial in
accordance with Rule 38(b) in favor of a trial to the court.

Based upon the matters presented and for the reasons stated on the record,

IT IS ORDERED setting a 4-Day Jury Trial for September 28, 29, 30 and October 1,
2020 at 9:00 a.m. before:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

03/27/2020

Docket Code 089
Form V000A
Page 2

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

THIS IS A FIRM TRIAL SETTING.

Note: This case has been double booked with another trial. If the first case does not settle,
this case may be placed into civil case transfer to be tried by another judicial officer.

Please note that normal trial days in this division are Monday through Thursday from 9:00
a.m. to 4:30 p.m. The lunch break will be taken at Noon, 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.

One day’s jury fees will be assessed against the parties (evenly divided) unless the court is
notified of settlement by 2:00 p.m. on the judicial day before trial or 11:00 a.m. on Friday for trials
beginning on a Monday. The parties are reminded to promptly notify the court of any settlement
pursuant to Rule 5.3(d), Ariz. R. Civ. P.

IT IS ORDERED setting Final Trial Management Conference on August 21, 2020 at
11:00 a.m. (1 hour allotted). The Final Trial Management Conference shall be governed by the
Pretrial Management Orders issued this date. Trial counsel/parties who are not represented by
counsel shall attend this conference in person.

IT IS FURTHER ORDERED that the Joint Pretrial Statement (JPTS) in accordance
with Rule 16(f), Arizona Rules of Civil Procedure (ARCP), is due in this division by 5:00 p.m.,
August 11, 2020.

IT IS FURTHER ORDERED setting telephonic Status Conference on July 24, 2020 at
11:00 a.m. (15 minutes allotted) regarding status of jury trial.

Counsel for plaintiffs 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) 506-7768
promptly at the scheduled time.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

03/27/2020

Docket Code 089
Form V000A
Page 3

IT IS FURTHER ORDERED all trial exhibits shall be submitted for marking not later
than August 21, 2020. Two sets of exhibits shall be submitted, one for marking and one for the
bench, following the procedures for preparing the exhibits for marking attached hereto. The bench
copy shall be submitted in a binder(s).

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.

9:30 a.m. Matter concludes.

ATTACHED: PRETRIAL MANAGEMENT ORDERS

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

03/27/2020

Docket Code 089
Form V000A
Page 4

PRETRIAL MANAGEMENT ORDERS

1. IT IS ORDERED the JPTS shall contain the following:

(A) Stipulations of material fact and law;

(B) Such contested issues of fact and law as the parties can agree are material or applicable;

(C) A separate statement by each party of other issues of fact and law believed by that
party to be material;

[NOTE: Failure to identify a fact or legal issue that is material and either stipulated or disputed
may result in a determination that a claim or defense has been abandoned or waived.]

(D) A list of witnesses intended to be used by each party during trial. Each party shall list
any objections to a witness and the basis for that objection. No witness shall be used at the trial
other than those listed, except for good cause shown. Witnesses whose testimony will be received
by deposition testimony only will be so indicated;

(E) Each party’s final list of exhibits to be used at trial for any purpose, including
impeachment. Plaintiffs shall deliver copies of all of their exhibits to all parties twenty days before
the final trial conference. All other parties shall deliver copies of all their exhibits to all parties
fifteen days before the final trial conference. Any exhibit that cannot be reproduced must be made
available for inspection to all parties on or before the deadlines stated above. Each party shall list
any objections to an exhibit and the basis for that objection. Any objection not listed is waived.
No exhibit shall be used at the trial other than those listed, except for good cause shown. The
parties shall indicate any exhibits which the parties stipulate can be admitted into evidence, such
stipulations being subject to court approval;

(F) A statement by each party identifying any proposed deposition summaries or, otherwise,
designating portions of any deposition testimony to be offered by that party at trial, other than for
impeachment purposes. Deposition testimony shall be designated by transcript page and line
numbers. A copy of any proposed deposition summary and written transcript of designated
deposition testimony should be filed with the JPST. No deposition summary or testimony (other
than testimony used for impeachment) may be offered unless it is designated in the JPST. Each party
shall list any objections to the proposed deposition summaries and designated deposition testimony,
and any objection not listed is waived;

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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03/27/2020

Docket Code 089
Form V000A
Page 5

(G) A brief statement of the case to be read to the jury during voir dire. If the parties
cannot agree on this statement, then each party shall submit a separate statement to the judge who
will decide the contents of the statement to be read to the jury;

(H) Technical equipment needed or interpreters requested;

(I) The number of jurors and alternates agreed upon, whether the alternates may deliberate,
and the number of jurors required to reach a verdict;

(J) Whether any party will invoke Rule 615 of the Arizona Rules of Evidence regarding
exclusion of witnesses from the courtroom; and

(K) A brief description of settlement efforts.

2. IT IS FURTHER ORDERED at the time of the filing of the JPST, the parties shall file
(A) an agreed-upon set of jury instructions, proposed verdict forms, and voir dire questions, (B)
any additional jury instructions, verdict forms, and voir dire questions requested, but not agreed
upon, and (C) a statement by each party on how a verbatim record of the trial will be made (i.e.,
cd/videotape or court reporter).

3. IT IS FURTHER ORDERED Regarding Motions in Limine and Daubert Motions –
The granting or denial of a motion in limine turns on whether the admission of evidence reaches
the level of reversible error or a mistrial.1 Motions in limine are not granted “except upon a clear
showing of non-admissibility.”2 And, motions in limine should not be used as substitutes for
dispositive motions.3

1 See e.g., State v. Ferrari, 112 Ariz. 324, 327, 541 P.2d 921, 924 (1975) (affirming denials of motions in limine:
framing the issue in terms of reversible error); State v. Pearce, 22 Ariz. App. 338, 339, 527 P.2d 297, 298 (1975)
(affirming grant of motion in limine: same); State ex rel. Berger v. Superior Court, 108 Ariz. 396, 397, 499 P.2d 152,
153 (1972) (framing the issue in terms of a mistrial).

2 State ex rel. Berger, 108 Ariz. at 397, 499 P.2d at 153 (emphasis added); accord e.g., Indiana Ins. Co. v. General
Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004) (“The court has the power to exclude evidence in limine only
when evidence is clearly inadmissible on all potential grounds” (emphasis added)).

3 E.g., Dunn v. State Farm Mut. Auto. Ins. Co., 264 F.R.D. 266, 274 (E.D. Mich. 2009) (“[M]otions in limine are
meant to deal with discrete evidentiary issues related to trial, and are not another excuse to file dispositive motions
disguised as motions in limine” (citation and internal quotation marks omitted)); Goldman v. Healthcare Mgt. Sys.,
Inc., 559 F. Supp. 2d 853, 871-72 (W. D. Mich. 2008) (same: collecting cases)); Johnson v. Chiu, 199 Cal. App. 4th
775, 780-81, 131 Cal Rptr. 3d 614, 618 (2011) (“What in limine motions are not designed to do is to replace . . .
dispositive motions”; “To have the sufficiency of the pleading or the existence of triable issues of material fact decided
in the guise of a motion in limine is a perversion of the process” (citations and internal quotation marks omitted)).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

03/27/2020

Docket Code 089
Form V000A
Page 6

1. Page Limit and Format: Other than Daubert motions and responses to those
motions, neither the motion in limine nor the response may exceed two pages, including the
caption. Showing that the motion has merit should not require more than that.4

Any motion in limine or response to such a motion should begin with a simple declarative
sentence that identifies the evidence that is the subject of the motion, with the understanding that
the broader the scope of the evidence to be excluded, the less likely it is that a motion in limine
will be granted.5 The remainder of the motion or response should then explain why a mistrial or
reversible error would or would not result if the motion is denied, with citations to authority that
have reached the same conclusion in the same or similar circumstances (this also applies to motions
in limine based on any failure to disclose, keeping in mind that nondisclosure implicates Ariz. R.
Civ. P. 37(c)).6 If the motion is unable to explain why its denial would result in a mistrial or
reversible error, the remainder should then demonstrate persuasively what efficiency, economy, or
other benefit is to be gained by granting the motion.

Other than Daubert motions, which should be filed separately, if two or more motions in
limine are filed, they should be combined as a single omnibus motion. The caption should appear
on the first page, and each motion should begin on a new page, following the format and page limit
standards above. The same applies to any response opposing such an omnibus motion.

2. Rule 7.2: Before any motion or omnibus motion may be filed, the moving party
must comply with Ariz. Rule Civ. P. 7.2(a) (i.e., establishing a meet and confer requirement, which
may be satisfied by meeting in person or by way of telephone conversations, but not by written
means (e.g., e-mail, letter)).

4 Evidence is not to be excluded even when it is inadmissible for one purpose or against one party if it remains
admissible for another purpose or against another party. E.g., Steele v. Vanderslice, 90 Ariz. 277, 287, 367 P.2d 636,
643 (1961) (“Evidence admissible for one purpose is not to be excluded because inadmissible for another purpose”);
Cavanagh v. Ohio Farmers Ins. Co., 20 Ariz. App. 38, 44, 509 P.2d 1075, 1081 (1973) (“[E]vidence properly offered
against one of multiple parties must ordinarily be admitted, although it would be inadmissible and prejudicial against
another party”).

5 Sperberg v. Good year Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975) (“Orders in limine which exclude broad
categories of evidence should rarely be employed”).

6 “When a motion in limine is used to enforce the provisions of Rule 26.1, it is effectively a request for sanctions under
Rule 37(c), Ariz. R. Civ. P. As such, it must be considered and reviewed using the standards of Rules 26.1 and 37(c) and
the cases that have applied them.” Zimmerman v. Shakman, 204 Ariz. 231, 235, ¶12, 62 P.3d 976, 980 (App. 2003).
Among other things, that requires the Court to consider whether a postponement of the trial is warranted. Thus, a motion
that urges the exclusion of evidence based on a failure to comply with Rule 26.1 should explain why any unfair prejudice
that may result from allowing the evidence cannot be remedied by a trial continuance.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

03/27/2020

Docket Code 089
Form V000A
Page 7

3. Deadlines: Unless another order in this case, including any subsequent order,
establishes an earlier deadline, the deadline for filing Daubert motions is 120 days before the
scheduled first day of trial and the deadline for motions in limine is 30 days before the trial
management conference. In both instances, timely responses must be filed after service, and no
replies should be filed unless requested.

4. Under Advisement: Although motions in limine will be considered as quickly
as the court’s schedule permits, they will not be taken under advisement any sooner than 15 days
before the start of the trial, irrespective of when they are filed. That said, if the parties believe that
a ruling on such a motion early in the case will facilitate settlement, they should notify this Division
(by telephone or e-mail is sufficient), and every effort will be made to decide the issue as soon as
time allows.

NOTE: Any previous order regarding preparation of jury notebooks should be disregarded.
Given the resources that are available in this Division’s Courtroom, jury notebooks are unnecessary.

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.

IT IS FURTHER ORDERED that the Time Estimates for Trial attached hereto shall be
submitted on the same date as the parties’ JPTS as ordered herein.

ATTACHED: SAMPLE FORMAT FOR TIME ESTIMATE FORM AND EXHIBIT
PROCEDURES

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

03/27/2020

Docket Code 089
Form V000A
Page 8

CAUSE NUMBER

CASE CAPTION

PLAINTIFF'S COUNSEL/PRO PER
DEFENDANT'S COUNSEL/PRO PER
(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 the parties of the time reasonably needed to
complete the necessary examination of the witnesses listed.

____________________________________
Plaintiff’s counsel/Pro Per
___________________________________
Defendant’s counsel/Pro Per

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

03/27/2020

Docket Code 089
Form V000A
Page 9

GUIDELINES WHEN PREPARING EXHIBITS FOR USE IN COURT

PLEASE READ

1. Exhibits will be marked consecutively. The clerk cannot reserve numbers for exhibits that will
be provided at a later date. Any missing exhibits will not be considered and the numbers of
all following exhibits will be moved up. If Defendant’s exhibits are received prior to Plaintiff’s
exhibits, the clerk may mark them first with Plaintiff’s exhibits following.

2. Original 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 to be hand-filed.

3. Do not submit duplicate exhibits, it is essential that the parties confer to avoid submitting
duplicate exhibits.

4. If large charts or blow-ups are anticipated to be used, please include a small version (or photo)
which can be marked as the exhibit. The charts and blow-ups are used for demonstrative
purpose only, are not marked as the exhibits, and are returned.

5. Each multiple page exhibit MUST be securely fastened together by staple or pronged fasteners.
DO NOT use paper clips, rubber bands, binder clips or submit loose sheets of paper.

6. Do not put numbers on the exhibits themselves; instead, use a COLORED sheet with the
exhibit number on it. Place the colored sheet in front of each exhibit, however, DO NOT
staple or paper-clip it to the exhibit itself (this should be the only loose sheet).

7. The parties are to provide a workable list of exhibits. The list should include a title or
description of each exhibit. (See blank sample of the following table as a reference).

Exhibit
No.
Identified
By
Description
Should be verifiable when viewing the first page of the exhibit
Stipulated in
Evidence/Objection

PLEASE NOTE: Each party shall provide a binder of exhibits for the court’s use. Each
exhibit shall be separated by numbered divider tabs.

For additional assistance in preparation of exhibits contact the courtroom clerk at:
(602) 506-3451

Clerk of the Superior Court

*** Electronically Filed ***

04/22/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

04/21/2021

Docket Code 016
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
E. Wolf

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

MINUTE ENTRY

The Court has received and reviewed WMHOA’s (Whisper Mountain Homeowners
Association) Request to Extend the Time to File Its Objection to Plaintiffs’ Application for
Attorneys’ Fees, filed April 14, 2021. Good cause appearing,

IT IS ORDERED approving WMHOA’s (Whisper Mountain Homeowners Association)
Request to Extend the Time to File Its Objection to Plaintiffs’ Application for Attorneys’ Fees and
granting an extension until April 16, 2021, all in accordance with the formal written Order signed
by the Court April 21, 2021, and filed (entered) by the clerk April 21, 2021.

Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. After the order has been scanned and docketed by the Clerk of Court,
additional
copies
of
the
order
will
be
available
through
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.

Clerk of the Superior Court

*** Electronically Filed ***

04/22/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

04/21/2021

Docket Code 022
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
E. Wolf

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

MINUTE ENTRY

The Court has received and reviewed Defendant, WMHOA’s, Second Request to Extend
the Time to File its Objection to Plaintiffs’ Application for Attorneys’ Fees from April 17, 2021
to April 18, 2021. Good cause appearing,

IT IS ORDERED approving and settling Defendant, WMHOA’s, Second Request to
Extend the Time to File its Objection to Plaintiffs’ Application for Attorneys’ Fees from April 17,
2021 to April 18, 2021, all in accordance with the formal written Order Granting WMHOA’s
Second Request to Extend Time signed by the Court April 21, 2021, and filed (entered) by the
clerk April 21, 2021.

Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. After the order has been scanned and docketed by the Clerk of Court,
additional
copies
of
the
order
will
be
available
through
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.

Clerk of the Superior Court

*** Electronically Filed ***

05/01/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

04/30/2020

Docket Code 025
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE CONNIE CONTES
E. Tran/C. Mai

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

MINUTE ENTRY

NOTICE: Effective May 22, 2020, due to judicial rotations, all cases assigned to the
Honorable Connie Contes will be reassigned to the Honorable Joseph Mikitish. Judge Mikitish,
telephone number 602-372-1547, will be located in the East Court Building, 101 West Jefferson,
Suite 913, Phoenix, Arizona 85003.

Clerk of the Superior Court

*** Electronically Filed ***

05/05/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

05/04/2021

Docket Code 016
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
E. Wolf

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

MINUTE ENTRY

The Court has received and reviewed Defendant’s Request to Extend the Time to File Its
Objection to Plaintiffs’ Application for Attorneys’ Fees, filed April 20, 2021. Good cause
appearing,

IT IS ORDERED approving Defendant’s Request to Extend the Time to File Its Objection
to Plaintiffs’ Application for Attorneys’ Fees and granting an extension until April 18, 2021, all
in accordance with the formal written Order Granting WMHOA’s Second Request to Extend Time
signed by the Court May 3, 2021, and filed (entered) by the clerk May 4, 2021.

Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. After the order has been scanned and docketed by the Clerk of Court,
additional
copies
of
the
order
will
be
available
through
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.

Clerk of the Superior Court

*** Electronically Filed ***

06/17/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

06/16/2021

Docket Code 049
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
E. Wolf

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

MINUTE ENTRY

The Court has received and reviewed Plaintiffs’ Notice of Lodging Proposed Findings of
Fact and Conclusions of law, filed December 22, 2020; Plaintiffs’ Application for Attorneys’ Fees
and Costs, filed March 26, 2021; and all other pleadings thereto. Good cause appearing,

IT IS ORDERED approving and settling the formal written Judgment against Defendant,
Whisper Mountain Homeowners Association, signed by the Court June 16, 2021, and filed
(entered) by the Clerk June 16, 2021.

Please note: The Court has signed an electronic version of the judgment provided with an
electronically filed pleading. After the judgment has been scanned and docketed by the Clerk of
Court, additional copies of the judgment will be available through ECR Online at
www.clerkofcourt.maricopa.gov and from the Public Access Terminals at the Clerk of Court’s
offices located throughout Maricopa County.

Clerk of the Superior Court

*** Electronically Filed ***

07/21/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

07/14/2020

Docket Code 016
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
R. Sheppard

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

MINUTE ENTRY

The Court has received, reviewed and considered Defendant WMHOA’s, Motion to
Preclude and/or Restrict Plaintiffs’ Expert Opinions, filed June 1, 2020. Good cause appearing,

IT IS ORDERED approving Defendant WMHOA’s Motion to Preclude and/or Restrict
Plaintiffs’ Expert Opinions and granting an extension to respond to said motion until July 6, 2020,
all in accordance with the formal written Order signed by the Court July 1, 2020, and filed (entered)
by the clerk July 14, 2020.

Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. After the order has been scanned and docketed by the Clerk of court,
copies of this order 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.

Due to the spread of COVID-19, the Arizona Supreme Court Administrative Order
2020-79 requires all individuals entering a court facility to wear a mask or face covering at
all times they are in the court facility. With limited exceptions, the court will not provide

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

07/14/2020

Docket Code 016
Form V000A
Page 2

masks or face coverings. Therefore, any individual attempting to enter the court facility
must have an appropriate mask or face covering to be allowed entry to the court
facility. Any person who refuses to wear a mask or face covering as directed will be denied
entrance to the court facility or asked to leave. In addition, all individuals entering a court
facility will be subject to a health screening protocol. Any person who does not pass the
health screening protocol will be denied entrance to the court facility.

Clerk of the Superior Court

*** Electronically Filed ***

07/24/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

07/22/2020

Docket Code 083
Form J000
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
M. Brickman

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

MINUTE ENTRY

On the Court’s own motion,

IT IS ORDERED vacating the Telephonic Trial Management Conference currently set
for August 21, 2020, and resetting same for September 4, 2020 at 11:00 a.m. (allotted time: 1
hour).

Clerk of the Superior Court

*** Electronically Filed ***

07/28/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

07/24/2020

Docket Code 029
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE GATES
JUDGE MIKITISH

MINUTE ENTRY

ECB 913

11:03 a.m. This is the time set for a virtual Status Conference. Plaintiffs Jason
Komorowski and Melissa Komorowski, who are not present, are represented by counsel, E.
Jeffrey Walsh. Defendant Whisper Mountain Homeowners Association is represented by
counsel, Bradley R. Jardine. The parties appear via the GoToMeeting platform.

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

Discussion is held regarding the viability of the current September 28, 2020 trial date as
well as other available alternatives, including a Fair Limits Hearing.

Pursuant to the agreement of counsel,

The Court shall look into arrangements regarding a Fair Limits Hearing and inform the
parties.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

07/24/2020

Docket Code 029
Form V000A
Page 2

11:10 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

07/28/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

07/27/2020

Docket Code 056
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey
FOR HON. PAMELA GATES
Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE GATES
JUDGE MIKITISH

FAIR LIMITS PROCEEDING SET

At the request of the parties,

IT IS ORDERED directing parties to attend the Fair Limits Proceeding on August
6, 2020 at 10:30 a.m. (30 minutes allotted) along with their counsel, or be available to
discuss matters during the Proceeding.
Participants shall join the hearing by using the GoToMeeting videoconference
platform. The access information is as follows:
https://global.gotomeeting.com/join/843127237
A participant can also access the hearing by telephone using the following
information:
United States: +1 (872) 240-3412
One-touch: tel:+18722403412,,843127237#

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

07/27/2020

Docket Code 056
Form V000A
Page 2

Access Code: 843-127-237
The parties’ memorandum should: 1) identify the title and filing date of any
previously filed pleadings the party deems important to evaluating the trial or settlement
posture of the case; 2) attach any key evidence or other memoranda the party deems
essential to understanding how to resolve the case; and 3) set forth a summary of the
parties’ agreement, if any, or the party’s position regarding whether the case should
proceed to trial.
At the Fair Limits Proceeding, if the parties desire trial, the parties should be
prepared to discuss methods to streamline the proofs, claims, and trial procedures,
including but not limited to:
(1)
Elimination of claims or defenses;
(2)
Waiver the right to jury trial and consent to a bench trial before any judicial officer
currently assigned to the civil department;
(3)
Limitation on the number of witnesses and the length of time they will be examined,
including in conjunction with agreements to foreclose lines of questioning or
objections so the trial can run most smoothly with remote or video components;
(4)
Limitation on the length of trial to specified numbers of days or hours;
(5)
Limitation on the number of jurors;
(6)
Feasibility of written opening statements and/or closing arguments;
(7)
Submission of testimonial excerpts by video or text in lieu of live testimony;
(8)
Presentation of expert testimony via report or deposition, either barring live
examination or limiting it to cross and redirect of the expert;
(9)
Waiver of rights to post-trial motions, to appeal, or to recover attorneys’ fees;

(10)
Limitation the range of potentially available recoveries to a high and low number;
(11)
Limitation on the outcome of the dispute to either of two numbers, with the question
to be tried being whether the higher or lower number better approximates the
dispute’s true value as determined by the trier of fact (known as “baseball
arbitration”); or
(12)
Anything else that serves efficiency that the Court, Fair Limits Officer, or parties
believe is appropriate to discuss.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

07/27/2020

Docket Code 056
Form V000A
Page 3

If the parties wish to resolve their dispute on the merits but not through trial, the
parties should be prepared to discuss reasonably available alternatives to trial, including:
(1)
Trial to either one or three neutral arbiters drawn from the list of Late Case Fair
Limits Officers, including the case’s Fair Limits Officer;
(2)
A summary trial of issues of fact to a virtual jury or in-person jury followed by a
settlement conference;
(3)
Trial of the case to the bench, but with an advisory jury to make recommended
findings of fact consisting of one or three neutral arbiters who are not presently
judges drawn from the list of Late Case Fair Limits Officers or a virtual jury;
(4)
Submission of the entire case, or almost all of the case, as a paper trial or with video
excerpts, based on briefing and only such small amounts of live testimony as are
deemed vital to be heard live;
(5)
Participation in a virtual settlement conference under Ariz. R. Civ. P. 16.1, in which
all parties have consented to ex parte communications before and during the
conference pursuant to Ariz. R. Civ. P. 16.1(f), appearance by video is deemed to
satisfy the attendance requirement in Ariz. R. Civ. P. 16.1(c), and the settlement
judge assigns the parties separate virtual meeting rooms and controls the virtual
rooms throughout the conference;
(6)
Binding or non-binding private mediation;

Clerk of the Superior Court

*** Electronically Filed ***

08/21/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

08/06/2020

Docket Code 056
Form V000A
Page 1

CLERK OF THE COURT
HON. PAMELA GATES
J. Eaton/K. Treftz

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE GATES
JUDGE MIKITISH

MINUTE ENTRY

East Court Building – Courtroom 912

10:35 a.m. This is the time set for a virtual Fair Limits Proceeding (“FLP”). Plaintiffs
Jason Komorowski and Melissa Komorowski, are present and represented by counsel, E. Jeffery
Walsh and Robert A. Hill. Defendant is represented by Bradley R. Jardine and Michael Warzynski
This matter proceeds via the GoToMeeting platform.

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

The court is in receipt of the parties FLP memoranda.

Discussion is held regarding the FLP procedure and option for another Civil Court judge
to preside over matter.

IT IS ORDERED the parties shall meet and confer and discuss possible agreement
regarding the use of an alternative process under the FLP administrative order prior to the
telephonic Status Conference.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

08/06/2020

Docket Code 056
Form V000A
Page 2

IT IS FURTHER ORDERED setting a telephonic Status Conference on August 14, 2020
at 8:30 a.m. (time allotted: 15 minutes). At the time of the proceeding, each party or lawyer
wanting to appear at the proceeding must call 602-506-9695. The system will prompt the caller to
enter the conference pass code. Enter the code 287109 followed by the # (pound) sign. If
disconnected for any reason, repeat instructions above. Note: Participants who call in prior to the
Moderator (Court staff) opening the bridge will hear music while waiting.

Absent agreement the court will conduct the FLP hearing.

IT IS ORDERED setting a GoToMeeting Conference on September 8, 2020 at 8:30 a.m.
(time allotted: 2 hours). Please join the meeting from your computer, tablet or smartphone:
https://global.gotomeeting.com/join/853938141
You can also dial in using your phone.
(For supported devices, tap a one-touch number below to join instantly.)
United States: +1 (408) 650-3123
- One-touch: tel:+14086503123,,853938141#
Access Code: 853-938-141
Further discussion is held.

11:30 a.m. Matter concludes.

LATER:

After the Fair Limits Proceeding, the court conferred with Judge Mikitish regarding
rescheduling the final trial management. Judge Mikitish agreed to reschedule the Final Trial
Management Conference to September 11, 2020 at 3:00 p.m.

Therefore,

IT IS ORDERED resetting the Final Management Conference from September 4, 2020 to
September 11, 2020 at 3:00 p.m.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

08/06/2020

Docket Code 056
Form V000A
Page 3

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.

Clerk of the Superior Court

*** Electronically Filed ***

08/18/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

08/14/2020

Docket Code 004
Form V000A
Page 1

CLERK OF THE COURT
HON. PAMELA GATES
K. Cabral

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE GATES

MINUTE ENTRY

Courtroom: ECB - 912

This is the time set for a telephonic Status Conference. Plaintiff is represented by Counsel
Robert Hill and E. Jeffrey Walsh. Defendant is neither present nor represented.

Today’s proceeding is conducted off the record.

LET THE RECORD REFLECT that Defendant failed to appear at today’s proceeding.

Discussion is held off the record regarding Defendant’s failure to appear.

Based on the matters discussed,

IT IS ORDERED continuing today’s matter for August 14, 2020 at 11:30 a.m. (time
allotted: 15 minutes) in this Division.

Clerk of the Superior Court

*** Electronically Filed ***

08/21/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

08/14/2020

Docket Code 003
Form V000A
Page 1

CLERK OF THE COURT
HON. PAMELA GATES
K. Cabral

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE GATES

MINUTE ENTRY

Courtroom: ECB - 912

This is the time set for a telephonic Status Conference. Plaintiff is represented by Counsel
Robert Hill and E. Jeffrey Walsh. Defendant is neither present nor represented.

IT IS ORDERED resetting today’s matter for August 19, 2020 at 1:30 p.m. (time
allotted: 15 minutes) in this Division.

Clerk of the Superior Court

*** Electronically Filed ***

09/08/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

08/19/2020

Docket Code 056
Form V000A
Page 1

CLERK OF THE COURT
HON. PAMELA GATES
S. Ortega

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

ROBERT A HILL
MICHAEL WARZYNSKI
JUDGE GATES
JUDGE MIKITISH

MINUTE ENTRY

East Court Building – Courtroom 912

1:30 p.m. This is the time set for a telephonic Status Conference. Plaintiffs Jason
Komorowski and Melissa Komorowski are present and represented by counsel, Robert A. Hill for
counsel of record, E. Jeffrey Walsh. Defendant is represented by counsel, Bradley R. Jardine and
Michael Warzynski. Counsel and the parties appear telephonically.

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

Counsel updates the court on the status of the case after the parties’ meet and confer.
Counsel may require more time to further discuss additional terms and provisions in this matter.

Discussion is held regarding Defendant’s Motion to Preclude. To the extent that Plaintiffs
believe there needs to be clarification on Judge Mikitish’s July 21, 2020 order, Plaintiffs shall file
a motion for clarification.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

08/19/2020

Docket Code 056
Form V000A
Page 2

Further discussion is held regarding pending matters in the case.

For the reasons stated on the record,

IT IS ORDERED affirming the Fair Limits Proceeding (“FLP”) set on September 8, 2020
at 8:30 a.m. (time allotted: 2 hours) in this division. Participants shall join the hearing by using
the GoToMeeting videoconference platform. The access information is as follows:

https://global.gotomeeting.com/join/853938141

You can also dial in using your phone.
(For supported devices, tap a one-touch number below to join instantly.)

United States: +1 (408) 650-3123
- One-touch: tel:+14086503123,,853938141#

Access Code: 853-938-141

At the FLP, the parties shall also be prepared to discuss any agreements related to the 3-
person panel trial in this case.

Prior to the FLP,

The court will email counsel with a list of pro tems as well as a link to the trial simulation
video;

The parties should meet and confer regarding issues discussed during today’s proceeding
including but not limited to:

• the identification of the pro tems and if agreement cannot be reached, the process for
appointment of the pro tems which may include the submission of a blind list;
• the judicial officer to preside over the trial;
• the appellate rights following the verdict;
• any agreement on attorneys’ fees; and
• the method or presentation of the experts, which may include presentation of the experts
in writing followed by cross-examination and redirect examination.

1:59 p.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

09/14/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

09/08/2020

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HON. PAMELA GATES
S. Ortega

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

ROBERT A HILL
MICHAEL WARZYNSKI
JUDGE GATES

MINUTE ENTRY

East Court Building – Courtroom 912

8:45 a.m. This is the time set for a Fair Limits Proceeding. Plaintiffs are present and
represented by counsel, Robert A. Hill. Defendant is represented by counsel, Michael Warzynski.
All parties and counsel appear telephonically or by video via GoToMeeting.

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

The court notes Plaintiffs’ August 21, 2020 Motion for Clarification of Court Order, and a
case status update is provided to the court.

IT IS ORDERED setting another Status Conference on September 14, 2020 at 9:00 a.m.
(time allotted: 15 minutes) in this division for the purpose of discussing how best to move this
case forward. Participants shall join the hearing by using the GoToMeeting videoconference
platform. The access information is as follows:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

09/08/2020

Docket Code 028
Form V000A
Page 2

https://global.gotomeeting.com/join/853938141

You can also dial in using your phone.
(For supported devices, tap a one-touch number below to join instantly.)

United States: +1 (408) 650-3123
- One-touch: tel:+14086503123,,853938141#

Access Code: 853-938-141

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.

8:57 a.m. Hearing concludes.

Due to the spread of COVID-19, the Arizona Supreme Court Administrative Order
2020-79 requires all individuals entering a court facility to wear a mask or face covering at
all times they are in the court facility. With limited exceptions, the court will not provide
masks or face coverings. Therefore, any individual attempting to enter the court facility
must have an appropriate mask or face covering to be allowed entry to the court facility. Any
person who refuses to wear a mask or face covering as directed will be denied entrance to
the court facility or asked to leave. In addition, all individuals entering a court facility will
be subject to a health screening protocol. Any person who does not pass the health screening
protocol will be denied entrance to the court facility.

Clerk of the Superior Court

*** Electronically Filed ***

09/21/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

09/08/2020

Docket Code 022
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

ORDER SIGNED

The Court has received and considered the parties’ Stipulated Motion to Extend Time to
Respond to Plaintiffs’ Motion in Limine to Preclude Evidence of Settlement Negotiations Pursuant
to Arizona Rule of Evidence 408 (“Rule 408”)_, filed August 21, 2020. Good cause appearing,

IT IS ORDERED granting the Motion, all in accordance with the formal written Order
signed by the Court September 4, 2020, and filed (entered) by the clerk September 8, 2020.

Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. After the order has been scanned and docketed by the Clerk of Court,
additional
copies
of
the
order
will
be
available
through
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.

Clerk of the Superior Court

*** Electronically Filed ***

09/10/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

09/09/2020

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

RULING

The Court has received and reviewed the Defendant’s Motion to Preclude and/or Restrict
Plaintiffs’ Expert Opinions Pursuant to ARE 702 and ARCP 26(d)(1), filed June 1, 2020, and the
Plaintiffs’ Response thereto, filed July 7, 2020. No reply was filed.

Based on the arguments in the pleadings,

IT IS ORDERED denying the Defendant’s Motion.

Clerk of the Superior Court

*** Electronically Filed ***

09/17/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

09/14/2020

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HON. PAMELA GATES
C. Ladden/C. Mai

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE GATES

MINUTE ENTRY

East Court Building – Courtroom 912

9:04 a.m. This is the time set for a Status Conference regarding how best to move
forward with this case. Plaintiffs Jason and Melissa Komorowski are present and are represented
by counsel, E. Jeffrey Walsh. Defendant is represented by counsel, Bradley R. Jardine. All
parties appear via GoToMeeting.

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

Discussion is held regarding case status.

IT IS ORDERED setting another Status Conference on September 18, 2020 at 9:00
a.m. (30 minutes) in this division. Participants shall join the hearing by using GoToMeeting
videoconference platform. The access information is as follows:

Please join my meeting from your computer, tablet or smartphone.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

09/14/2020

Docket Code 028
Form V000A
Page 2

https://global.gotomeeting.com/join/236412493

You can also dial in using your phone.
(For supported devices, tap a one-touch number below to join instantly.).

United States: +1 (571) 317-3112
- One-touch: tel:+15713173112,,236412493#

Access Code: 236-412-493

9:25 a.m. Matter concludes.

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.

Due to the spread of COVID-19, the Arizona Supreme Court Administrative Order
2020-79 requires all individuals entering a court facility to wear a mask or face covering at
all times they are in the court facility. With limited exceptions, the court will not provide
masks or face coverings. Therefore, any individual attempting to enter the court facility
must have an appropriate mask or face covering to be allowed entry to the court facility. Any
person who refuses to wear a mask or face covering as directed will be denied entrance to
the court facility or asked to leave. In addition, all individuals entering a court facility will
be subject to a health screening protocol. Any person who does not pass the health screening
protocol will be denied entrance to the court facility.

Clerk of the Superior Court

*** Electronically Filed ***

09/16/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

09/15/2020

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
P. McKinley

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

MARIA R KUPILLAS
JUDGE MIKITISH

ORAL ARGUMENT SET

At the request of Defendant Whisper Mountain Homeowners Association, filed September
8, 2020,

IT IS ORDERED setting virtual Oral Argument for September 25, 2020 at 3:00 p.m. (30
minutes allotted) on Plaintiff’s Motion in Limine.

The hearing(s) will be held by phone/videoconference via the GoToMeeting platform. The
invitation codes will be forwarded to the parties by Court staff the day before the hearing.

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.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

09/15/2020

Docket Code 094
Form V000A
Page 2

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.

Due to the spread of COVID-19, the Arizona Supreme Court Administrative Order 2020-
79 requires all individuals entering a court facility to wear a mask or face covering at all times they
are in the court facility. With limited exceptions, the court will not provide masks or face
coverings. Therefore, any individual attempting to enter the court facility must have an appropriate
mask or face covering to be allowed entry to the court facility. Any person who refuses to wear a
mask or face covering as directed will be denied entrance to the court facility or asked to leave. In
addition, all individuals entering a court facility will be subject to a health screening protocol. Any
person who does not pass the health screening protocol will be denied entrance to the court facility.

Clerk of the Superior Court

*** Electronically Filed ***

09/23/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

09/18/2020

Docket Code 029
Form V000A
Page 1

CLERK OF THE COURT
HON. PAMELA GATES
C. Ladden/C. Mai

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

ROBERT A HILL
MICHAEL WARZYNSKI
JUDGE GATES
JUDGE MIKITISH

MINUTE ENTRY

East Court Building – Courtroom 912

9:07 a.m. This is the time set for a Status Conference. Plaintiffs are represented by
counsel, E. Jeffrey Walsh and Robert Hill. Defendant is represented by counsel, Michael
Warzynski and Bradley R. Jardine. All parties appear via GoToMeeting.

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

Discussion is held regarding case status and the conditions the parties came to regarding
continuing with a blue ribbon panel.

Based on the foregoing, the court proposes the following:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

09/18/2020

Docket Code 029
Form V000A
Page 2

 The court will submit a list of 20 judge pro tems to the parties by September 23,
2020.
 Each side has 3 strikes which shall be exercised on or before September 25,
2020. Plaintiff shall execute the first strike, with alternating strikes until the
exhaustion of strikes is complete.
 The court will attempt to contact the pro tems on or before September 29, 2020
with the hope that a blue ribbon panel will conclude on or before October 16,
2020.
 All testimony, with the exception of the Plaintiff and the HOA President, will be
submitted by declaration and any expert report, with the exception of any
compelled witness. The declarations and reports shall be submitted by October 5,
2020 with any objection filed by October 7, 2020, with the intent of a ruling by
October 9, 2020.
 The issue of injunctive relief will be submitted to the judge presiding over the
proceeding.
 Prior to October 5, 2020, the parties shall meet and confer regarding the
language of a maintenance agreement to determine whether an agreement can be
reached on the language of the HOA maintaining the channel moving forward.
 The issue of damages will be presented to the three person blue ribbon panel. A
verdict will be reached if two of the three agree.
 Both parties reserve their right to appeal.
 Any motions for new trial will be submitted to the presiding judge over the
proceeding and that judge retains the right to involve the other blue ribbon panel
members if the judge deems it appropriate.
 The issue of attorney’s fees will be decided by the presiding judge, including
whether the party is entitled to an award and the amount.
 The blue ribbon panelists will serve as special masters, but their verdicts will be
subject to the same review as a jury verdict.

IT IS ORDERED that by 12:00 p.m. on September 21, 2020, the parties shall email
this division at [email protected] with the same to the judge at
[email protected] on whether they agree to the court’s proposal, whether
they have collectively reached an agreement on a modification of the court’s proposal or whether
they cannot agree. If the parties cannot agree, the court will request that Judge Mikitish expedite
a trial setting conference/status conference to discuss the trial date.

10:08 a.m. Matter concludes.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

09/18/2020

Docket Code 029
Form V000A
Page 3

NOTE: Due to the spread of COVID-19, the Arizona Supreme Court Administrative
Order 2020-79 requires all individuals entering a court facility to wear a mask or face covering at
all times they are in the court facility. With limited exceptions, the court will not provide masks
or face coverings. Therefore, any individual attempting to enter the court facility must have an
appropriate mask or face covering to be allowed entry to the court facility. Any person who refuses
to wear a mask or face covering as directed will be denied entrance to the court facility or asked
to leave. In addition, all individuals entering a court facility will be subject to a health screening
protocol. Any person who does not pass the health screening protocol will be denied entrance to
the court facility.

Clerk of the Superior Court

*** Electronically Filed ***

10/02/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

09/25/2020

Docket Code 089
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
D. Charbagi

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

ROBERT A HILL
MICHAEL WARZYNSKI
JUDGE MIKITISH

MINUTE ENTRY

East Court Building – Courtroom 913

3:30 p.m. This is the time set for Oral Argument on Plaintiffs’ Motion in Limine, filed
July 22, 2020. Plaintiffs, Jason Komorowski and Melissa Komorowski are present and represented
by counsel, E. Jeffrey Walsh and Robert Hill. Defendant, Whisper Mountain Homeowners
Association is represented by counsel, Bradley R. Jardine and Michael Warzynski. The parties are
present through virtually through GoToMeeting and/or telephonically.

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

Discussion is held regarding the remaining motions.

IT IS ORDERED deeming Plaintiffs Motion for Clarification of Court Order filed on
August 21, 2020, as moot.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

09/25/2020

Docket Code 089
Form V000A
Page 2

Argument is heard/presented regarding Plaintiffs Motion in Limine to Preclude Evidence
of Settlement Negotiations pursuant to Arizona Rule of Evidence 408 filed on July 22, 2020.

For the reasons stated on the record,

IT IS ORDERED granting Plaintiffs Motion in Limine to Preclude Evidence of Settlement
Negotiations pursuant to Arizona Rule of Evidence 408 filed on July 22, 2020.

IT IS FURTHER ORDERED vacating the 4 day jury trial set on September 28, 29, 30
and October 1, 2020 and resetting same to November 4, 5, 9, and 10, 2020 at 9:00 a.m. before:

THE HONORABLE JOSEPH P. MIKITISH
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W. JEFFERSON
9TH FLOOR, COURTROOM 913
PHOENIX, AZ 85003
PHONE: (602) 372-1547

THIS IS A FIRM TRIAL SETTING.

The days of trial are:

Please note that normal trial days in this division are Monday through Thursday from 9:00
a.m. to 4:30 p.m. The lunch break will be taken at Noon, 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.

One day’s jury fees will be assessed against the parties (evenly divided) unless the court is
notified of settlement by 2:00 p.m. on the judicial day before trial or 11:00 a.m. on Friday for trials
beginning on a Monday. The parties are reminded to promptly notify the court of any settlement
pursuant to Rule 5.3(d), Ariz. R. Civ. P.

IT IS FURTHER ORDERED setting Final Trial Management Conference on October
8, 2020 at 1:30 p.m. (1 hour allotted). The Final Trial Management Conference shall be governed
by the Pretrial Management Orders issued this date. Trial counsel/parties who are not
represented by counsel shall attend this conference in person.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

09/25/2020

Docket Code 089
Form V000A
Page 3

IT IS FURTHER ORDERED that the Joint Pretrial Statement (JPTS) in accordance
with Rule 16(f), Arizona Rules of Civil Procedure (ARCP), is due in this division by 5:00 p.m.,
October 7, 2020.

4:25 p.m. Matter concludes.

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.

Clerk of the Superior Court

*** Electronically Filed ***

10/08/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

10/07/2020

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

ORDER ENTERED BY THE COURT

The Court has received and reviewed Defendant Whisper Mountain Homeowners
Association’s Motion to Reconsider the Court’s Ruling of September 20, 2020. Because of the
time restraints prior to trial,

IT IS ORDERED that the Plaintiff shall submit a Response to the Motion to Reconsider
by no later than October 14, 2020, and the Defendant may submit a Reply to the Motion to
Reconsider by no later than October 16, 2020.

Clerk of the Superior Court

*** Electronically Filed ***

10/15/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

10/08/2020

Docket Code 027
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

MINUTE ENTRY

ECB 913

2:19 p.m. This is the time set for a Pretrial Conference/Trial Management Conference.
Plaintiffs Jason Komorowski, who is present virtually, and Melissa Komorowski, who is not
present, are represented by counsel, E. Jeffrey Walsh and Robert Hill. Defendant Whisper
Mountain Homeowners Association is represented by counsel, Michael Warzynski, appearing for
Bradley R. Jardine. Plaintiff Jason Komorowski appears via the GoToMeeting platform.

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

Discussion is held regarding:

 The Defendant’s June 1, 2020 Daubert Motion to Preclude and/or Restrict
Plaintiffs’ Expert Opinions Pursuant to ARE 702 and ARCP 26(d)(1)
 The Plaintiffs’ Response thereto, filed July 6, 2020
 The Defendant’s Motion to Reconsider, filed October 6, 2020
 The current public health crisis and coronavirus safety measures

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

10/08/2020

Docket Code 027
Form V000A
Page 2

 Courtroom and trial logistics, including jury notebooks
 The parties’ objections to one another’s expert reports
 The parties’ Joint Pretrial Statement and the Plaintiffs’ objections to the
Defendant’s witness disclosure

LET THE RECORD REFLECT that the parties stipulated on the record to grant the
October 6, 2020 Motion to Reconsider, to the extent that it allows the Defendant to file a Reply
to the Plaintiffs’ July 6, 2020 Response by no later than Thursday, October 15, 2020.

The Court requests that the parties consider a Stipulation limiting the jury panel to five
jurors. In the event that the parties reach an agreement, the Court shall consider any such
Stipulation submitted on or before October 15, 2020.

The Court notes that it shall consider any Stipulation regarding jury notebooks submitted
on or before October 15, 2020.

LET THE RECORD REFLECT that the parties stipulated on the record to grant the
Plaintiff Melissa Komorowski leave to appear at trial remotely via videoconference. The Court
notes that other witnesses shall be permitted to appear virtually for their testimony in the event
that they are not comfortable appearing in person due to the current public health crisis.

For reasons stated on the record,

IT IS ORDERED that the Defendant shall provide contact information, including
addresses and phone numbers, for each of the five (5) witnesses to whom the Plaintiff objected.

The Court indicated its inclinations towards those objections subject to additional
showing of prejudice to the Plaintiff regarding three of the witnesses, and subject to allowing the
Plaintiff to interview two (2) who may be considered to be members of the party Whisper
Mountain Homeowners Association.

3:26 p.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

10/26/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

10/22/2020

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

RULING

The Court has received and reviewed the Defendant’s Motion to Preclude and/or Restrict
Plaintiffs’ Expert Opinions Pursuant to ARE 702 and ARCP 26(d)(1), filed June 1, 2020, and the
Plaintiffs’ Response thereto, filed July 7, 2020. Initially, no reply was filed. The Court entered a
Ruling on September 9, 2020. Thereafter, the Defendant filed a Motion for Reconsideration
because it had not received a copy of the Response and therefore did not know that a reply was
required. The Court granted the Motion for Reconsideration to allow the Defendant to file a
reply, which it later did on October 15, 2020.

Having now received the Motion, Response, and Reply, the Court finds it appropriate to
deny the Motion. Each of the Plaintiffs’ proffered experts have provided sufficient support that
they possess the applicable knowledge to help the trier of fact to understand the evidence or
determine a fact in issue. Each of the expert’s testimony appears to be based on sufficient facts
or data, given the limited requirements for expert reports in Tier 2. The testimony proffered by
each expert appears to be the product of reliable principles and methods and that each expert has
reliably applied those principles and methods to the facts of this case. See Rule 702, Arizona
Rules of Evidence. If the evidence at trial does not support any of these factors, the Defendant
may re-urge any applicable motion, including a motion to strike if appropriate.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

10/22/2020

Docket Code 019
Form V000A
Page 2

Therefore,

IT IS ORDERED denying the Motion.

Clerk of the Superior Court

*** Electronically Filed ***

10/26/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

10/23/2020

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

STATUS CONFERENCE SET

At the direction of the Court,

IT IS ORDERED setting a virtual Status Conference on October 29, 2020 at 11:00 a.m.
(30 minutes allotted) regarding trial details.

Counsel and parties who are not represented by counsel shall attend the proceedings before:

THE HONORABLE JOSEPH P. MIKITISH
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W. JEFFERSON
9TH FLOOR, COURTROOM 913
PHOENIX, AZ 85003
PHONE: (602) 372-1547

Counsel shall have their calendars available.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

10/23/2020

Docket Code 028
Form V000A
Page 2

The hearing(s) will be held by phone/videoconference. Information regarding the hearing
and platform will be forwarded to the parties by Court staff the day before the hearing.

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.

Due to the spread of COVID-19, the Arizona Supreme Court Administrative Order 2020-
79 requires all individuals entering a court facility to wear a mask or face covering at all times
they are in the court facility. With limited exceptions, the court will not provide masks or face
coverings. Therefore, any individual attempting to enter the court facility must have an
appropriate mask or face covering to be allowed entry to the court facility. Any person who
refuses to wear a mask or face covering as directed will be denied entrance to the court facility or
asked to leave. In addition, all individuals entering a court facility will be subject to a health
screening protocol. Any person who does not pass the health screening protocol will be denied
entrance to the court facility.

Clerk of the Superior Court

*** Electronically Filed ***

11/23/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

10/29/2020

Docket Code 029
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

MINUTE ENTRY

ECB 913

11:40 a.m. This is the time set for a virtual Status Conference regarding trial details.
Plaintiffs Jason Komorowski and Melissa Komorowski, who are present, are represented by
counsel, E. Jeffrey Walsh. Defendant Whisper Mountain Homeowners Association is
represented by counsel, Michael Warzynski and Bradley R. Jardine. The parties appear via the
GoToMeeting platform.

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

Discussion is held regarding the current public health crisis, and the Defendant’s Motion
to Continue the Trial, filed October 29, 2020.

For reasons stated on the record,

IT IS ORDERED denying the Motion to Continue the Trial.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

10/29/2020

Docket Code 029
Form V000A
Page 2

Discussion is held regarding jury notebooks, exhibits, preventative safety measures, and
potentially resetting the matter for a trial to the Court.

Pursuant to the matters discussed,

IT IS ORDERED that the parties shall confer and discuss a stipulated approach with
regards to jury notebooks, and submit their considerations to the Court by 12:00 p.m. on
November 2, 2020.

IT IS FURTHER ORDERED that the parties shall meet and confer, and discuss
whether they would consider resetting the matter for a bench trial. The parties’ considerations
shall be submitted to the Court by 12:00 p.m. on November 2, 2020.

Discussion is held regarding disputes and objections to items presented in the parties’
Joint Pretrial Statement.

Pursuant to the matters discussed,

IT IS ORDERED that the parties shall submit proposed jury instructions and voir dire
stipulations to the Court by no later than 12:00 p.m. on October 30, 2020. The parties shall
submit these to this division’s Judicial Assistant by email in Microsoft Word format.

[email protected]

Discussion is held regarding witnesses making appearances at trial via videoconference.

The Court affirms that due to the public health crisis witnesses or relevant parties may
appear in the proceedings via videoconference.

12:23 p.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

11/04/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

11/03/2020

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

ORDER ENTERED BY THE COURT

The Court held off-the-record discussions with counsel for the parties regarding trial
options due to potential COVID-19 concerns involving some of the key participants in the trial.
The parties stipulated to proceed as a bench trial starting on Thursday, November 5, 2020.

Based on the stipulation, and waiver of the parties' rights to a jury trial,

IT IS ORDERED that the matter shall proceed as a Trial to the Court starting Thursday,
November 5, 2020.

Clerk of the Superior Court

*** Electronically Filed ***

11/20/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

11/05/2020

Docket Code 012
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

TRIAL MINUTE ENTRY
DAY ONE

ECB 913

Prior to the commencement of trial, Plaintiffs’ exhibits 1-40, 84-91, and Defendant’s
exhibits 41-83 are marked for identification.

8:47 a.m. This is the time set for a Trial to the Court. Plaintiffs Jason Komorowski and
Melissa Komorowski, who are present, are represented by counsel, E. Jeffrey Walsh and Robert
A. Hill. Defendant Whisper Mountain Homeowners Association is represented by counsel,
Bradley R. Jardine and Michael Warzynski. Greg Wingert, a representative of the Defendant
Whisper Mountain Homeowners Association, is present. Defendant's counsel Mr. Warzynski and
Melissa Komorowski appear telephonically.

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

LET THE RECORD REFLECT that the parties have affirmed on the record their
stipulation to proceeding with the matter as a bench trial.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

11/05/2020

Docket Code 012
Form V000A
Page 2

Discussion is held regarding the Defendant’s Motion for Sanctions Under Rule 37(d).

Argument is presented by the parties.

The Court notes that a determination regarding the Motion shall be made upon review and
after the parties have presented their case.

Opening statements.

At the Court’s direction,

IT IS ORDERED that the parties shall meet and confer before the Court reconvenes after
lunch regarding witness scheduling.

10:02 a.m. Court stands at recess.

Prior to reconvening, Defendant’s exhibit 92 is marked for identification.

10:34 a.m. Court reconvenes with respective parties and counsel present.

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

Plaintiffs’ case:

Jason Komorowski is sworn and testifies.

Plaintiffs’ exhibits 88, 90, and 91 are received in evidence.

Plaintiffs’ exhibit 2 is received in evidence.

Plaintiffs’ exhibit 3 is received in evidence.

Defendant’s exhibit 58 is received in evidence.

Plaintiffs’ exhibit 1 is received in evidence.

Plaintiffs’ exhibits 16 and 18 are received in evidence.

Plaintiffs’ exhibit 20 is received in evidence.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

11/05/2020

Docket Code 012
Form V000A
Page 3

12:00 p.m. Court stands at recess.

Prior to reconvening, Plaintiffs’ exhibits 93, 94, and 95 are marked for identification.

1:06 p.m. Court reconvenes with respective parties and counsel present.

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

Discussion is held regarding the Plaintiffs' full disclosure statements and the parties'
witness schedule dialogue.

Jason Komorowski continues testifying.

Plaintiffs’ exhibits 34 and 39 are received in evidence.

Defendant’s exhibit 55 is received in evidence.

Plaintiffs’ exhibit 25 is received in evidence.

Defendant’s exhibit 46 is received in evidence.

Plaintiffs’ exhibits 84 and 86 are received in evidence.

Plaintiffs’ exhibits 27 through 32 are received in evidence.

Defendant’s exhibit 92 is received in evidence.

2:37 p.m. Court stands at recess.

Prior to reconvening, Defendant’s exhibits 96, 97, and 98 are marked for identification.

3:04 p.m. Court reconvenes with respective parties and counsel present.

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

Jason Komorowski continues testifying.

Defendant’s exhibits 96 and 97 are received in evidence.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

11/05/2020

Docket Code 012
Form V000A
Page 4

Plaintiffs’ exhibit 45 is received in evidence.

Curt R. Peterson is sworn and testifies.

Discussion is held regarding a Microsoft PowerPoint presentation created by the witness,
the Defendant’s objections to it, and its marking as an exhibit. The Court notes that the Plaintiffs
have not submitted the PowerPoint presentation as an exhibit.

4:47 p.m. Court stands at recess until 8:30 a.m. on November 9, 2020.

Clerk of the Superior Court

*** Electronically Filed ***

11/20/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

11/09/2020

Docket Code 012
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey/K. Treftz

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

TRIAL MINUTE ENTRY
DAY TWO

ECB 913

Prior to the commencement of trial, Plaintiffs’ exhibit 99 and Defendant’s exhibits 100
through 105 are marked for identification.

8:44 a.m. Trial to the Court continues from November 5, 2020. Plaintiffs Jason
Komorowski and Melissa Komorowski, who are present, are represented by counsel, E. Jeffrey
Walsh and Robert A. Hill. Defendant Whisper Mountain Homeowners Association is represented
by counsel, Bradley R. Jardine and Michael Warzynski. Greg Wingert, a representative of the
Defendant Whisper Mountain Homeowners Association, is present. Plaintiff Melissa Komorowski
appears telephonically.

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

Discussion is held regarding Defendant’s expert witness James Deatherage and late exhibit
submission.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

11/09/2020

Docket Code 012
Form V000A
Page 2

As to the supplemental opinion of Mr. Deatherage,

IT IS ORDERED that Mr. Deatherage’s testimony shall be permitted to what he learned
after his initial assessment given the timing the work was done. If there is something that arises
from Mr. Deatherage’s testimony that the parties think needs to be revisited, the Court will hear it
at that time.

As to the files from Mr. Peterson,

IT IS FURTHER ORDERED that the Court will not exclude the files from Mr. Peterson
that are proposed to come into evidence. If there are other reasons to exclude documents from the
file, the Court will review those at that time.

Plaintiffs’ case continues:

Curt R. Peterson resumes the stand and testifies further.

Defendant’s exhibits 106 and 107 are marked for identification.

Plaintiffs’ exhibit 94 is received in evidence.

10:24 a.m. Court stands at recess.

10:45 p.m. Court resumes with respective parties and counsel present.

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

The witness is excused, subject to recall.

Mario Montoya is sworn and testifies.

The witness is excused.

Curt R. Peterson resumes the stand and testifies further.

Defendant’s exhibit 101 is received in evidence.

Defendant’s exhibit 108 is marked for identification.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

11/09/2020

Docket Code 012
Form V000A
Page 3

Plaintiffs’ exhibits 10 and 11, and Defendant’s exhibits 100 and 108 are received in
evidence.

12:05 p.m. Court stands at recess.

1:14 p.m. Court reconvenes with respective parties and counsel present.

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

Curt R. Peterson continues testifying.

Defendant’s exhibits 103, 104, and 105 are received in evidence.

The witness is excused.

Matthew Potter is sworn and testifies.

Argument is presented by the parties regarding the Plaintiffs’ disclosure in relation to
Matthew Potter's testimony.

The Court notes that the Plaintiffs’ November 2020 property valuation disclosure is not
timely. At the direction of the Court,

IT IS ORDERED that Mr. Potter’s testimony and opinion regarding property value shall
be permitted within the scope of his July 2019 report. Opinions regarding the value of the
Plaintiffs’ property as of November 2020 shall not be heard.

2:44 p.m. Court stands at recess.

3:08 p.m. Court reconvenes with respective parties and counsel present.

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

Matthew Potter continues testifying.

The witness is excused.

Discussion is held regarding the Defendant's oral Rule 50 Motion for directed verdict.

Pursuant to the matters discussed,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

11/09/2020

Docket Code 012
Form V000A
Page 4

IT IS ORDERED denying the Motion.

James Deatherage is sworn and testifies.

Defendant’s exhibit 59 is received in evidence.

Defendant’s exhibit 60 is received in evidence.

The Court notes that due to prior stipulation of the parties, Defendant’s exhibits 61 and 106
shall not be received in evidence, but may be presented for demonstrative purposes.

Defendant’s exhibit 66 is received in evidence.

Defendant’s exhibit 67 is received in evidence.

The witness is excused, subject to recall.

Discussion is held regarding witness scheduling and Defendant’s outstanding Motion for
Sanctions under Rule 37(D), filed November 4, 2020.

4:45 p.m. Court stands at recess until 9:30 a.m. on November 10, 2020.

Clerk of the Superior Court

*** Electronically Filed ***

11/20/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

11/10/2020

Docket Code 012
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey/K. Treftz

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

TRIAL MINUTE ENTRY
DAY THREE

ECB 613

Prior to the commencement of the trial, Defendant's exhibit 109 is marked for
identification.

9:43 a.m. Trial to the Court continues from November 9, 2020. Plaintiffs Jason
Komorowski and Melissa Komorowski, who are present, are represented by counsel, E. Jeffrey
Walsh and Robert A. Hill. Defendant Whisper Mountain Homeowners Association is represented
by counsel, Bradley R. Jardine. Greg Wingert, a representative of the Defendant Whisper
Mountain Homeowners Association, is present. Plaintiff Melissa Komorowski appears
telephonically.

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

Defendant’s case:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

11/10/2020

Docket Code 012
Form V000A
Page 2

Greg Wingert is sworn and testifies.

Defendant’s exhibit 70 is received in evidence.

The Court notes that the truth of the contents and legal opinions contained therein shall not
be regarded while reviewing exhibit 70.

Plaintiffs’ exhibit 17 is received in evidence.

10:17 a.m. Michael Warzynski, additional counsel of record for the Defendant, is present.

Defendant’s exhibit 109 is received in evidence.

Plaintiffs’ exhibit 21 is received in evidence.

Plaintiffs’ exhibit 24 is received in evidence.

Defendant’s exhibits 47, 48, and 49 are received in evidence.

Defendant’s exhibit 50 is received in evidence.

Discussion is held regarding the Defendant’s oral Motion to strike witness testimony
regarding insurance.

Pursuant to the matters discussed,

IT IS ORDERED granting the Defendant’s oral Motion.

Discussion is held regarding the Defendant’s oral Motion for a mistrial.

For reasons stated on the record,

IT IS ORDERED denying the Defendant's oral Motion.

Plaintiffs’ exhibit 9 is received in evidence.

Discussion is held regarding witness scheduling.

12:03 p.m. Court stands at recess.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

11/10/2020

Docket Code 012
Form V000A
Page 3

1:09 p.m. Court resumes with respective parties and counsel present.

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

Greg Wingert continues testifying.

Discussion is held regarding prior settlement conference discussions.

The Court notes that anything specifically related to mediation decisions shall not be heard.

The witness is excused.

James Deatherage resumes the stand and testifies further.

Discussion is held regarding the Defendant’s exhibit 61.

Pursuant to the matters discussed,

IT IS ORDERED that the exhibit remains inadmissible.

2:43 p.m. Court stands at recess.

3:03 p.m. Court resumes with respective parties and counsel present.

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

James Deatherage continues testifying.

The witness is excused.

Defendant rests.

Jason Komorowski resumes the stand and testifies further.

Defendant’s exhibit 68 is received in evidence.

The Court notes that the exhibit shall be considered only in its function of showing notice
to the Defendant.

Discussion is held regarding closing arguments.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

11/10/2020

Docket Code 012
Form V000A
Page 4

Counsel for Defendant makes an oral motion to submit a reply to the outstanding Motion
for Sanctions under Rule 37(D), filed November 4, 2020.

For the reasons stated on the record,

IT IS ORDERED continuing today’s Trial to the Court for the purpose of presenting
closing arguments and to discuss the aforementioned outstanding Motion to December 9, 2020 at
9:00 a.m. (time allotted: 90 minutes) in this Division.

4:37 p.m. Court stands at recess until 9:00 a.m. on December 9, 2020.

Clerk of the Superior Court

*** Electronically Filed ***

12/08/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

12/07/2020

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

RULING

Having received and reviewed the Plaintiff’s Motion for Leave to File Surreply to
Defendant’s Motion for Sanctions Under Rule 37(d), dated December 7, 2020, the Court finds
that good cause is not shown for the Motion. The Plaintiff can make any additional arguments at
time set for oral argument.

Therefore,

IT IS ORDERED denying the Plaintiff’s Motion for Leave to File Surreply.

Clerk of the Superior Court

*** Electronically Filed ***

12/31/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

12/09/2020

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
C. Lacey

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE MIKITISH

TRIAL MINUTE ENTRY
DAY FOUR

ECB 613

9:16 a.m. Trial to the Court continues from November 10, 2020. Plaintiffs Jason
Komorowski and Melissa Komorowski, who are present, are represented by counsel, E. Jeffrey
Walsh and Robert A. Hill. Defendant Whisper Mountain Homeowners Association is
represented by counsel, Bradley R. Jardine. Greg Wingert, a representative of the Defendant
Whisper Mountain Homeowners Association, is present. Plaintiffs Jason Komorowski and
Melissa Komorowski appear via the GoToMeeting platform.

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

Closing arguments.

Discussion resumes from Day One of these trial proceedings regarding the Defendant’s
Motion for Sanctions Under Rule 37(d), filed November 4, 2020.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

12/09/2020

Docket Code 020
Form V000A
Page 2

For reasons stated on the record,

IT IS ORDERED that the parties shall submit Findings of Fact and Conclusions of Law
to the Court by no later than December 18, 2020.

IT IS FURTHER ORDERED taking the matter under advisement upon receipt of the
parties’ Findings of Fact and Conclusions of Law.

11:00 a.m. Matter concludes.

There being no further need to retain the exhibits not offered in evidence in 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 Exhibits 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.

ISSUED: Exhibit Release Forms (2)

Clerk of the Superior Court

*** Electronically Filed ***

12/20/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2018-014261

12/13/2019

Docket Code 085
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE CONNIE CONTES
S. Perez

Deputy

JASON KOMOROWSKI, et al.
E JEFFREY WALSH

v.

WHISPER MOUNTAIN HOMEOWNERS
ASSOCIATION
BRADLEY R JARDINE

JUDGE CONTES

CONFERENCE

East Court Building – Courtroom 913

10:43 a.m. This is the time set for telephonic Trial Setting Conference. Plaintiffs are
represented by counsel Jeffrey Walsh. Defendant is represented by counsel Bradley Jardine and
Michael Warzynski.

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

Discussion is held regarding the procedural posture of the case.

For the reasons stated on the record,

IT IS ORDERED the parties shall file an amended scheduling order for the court’s
consideration by December 20, 2019.

10:57 a.m. Matter concludes.

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