05/20/2020 — CV2019005775 BRUBAKER, MICHAEL 05/20/2020 HONORABLE CHRISTOPHER COURY View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
05/22/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-005775
05/20/2020
Docket Code 314
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE CHRISTOPHER COURY
L. Stogsdill
Deputy
DEBBIE WESTERMAN
DEBBIE WESTERMAN
930 S DOBSON RD UNIT 31
MESA AZ 85202
v.
MICHAEL BRUBAKER, et al.
MARK E LINES
JOHN N SKIBA
BANKRUPTCY FILED
The Court has received notification that a petition under the Bankruptcy Code has been
reinstated by Debbie Westerman (debtor(s)) in case number 2:20-bk-04050 on May 5, 2020.
IT IS ORDERED placing this case/claim(s) on the Dismissal Calendar until November 16,
2020 as to Debbie Westerman (debtor(s)).
This case/claim(s) will be dismissed on or after November 16, 2020 as to said debtor(s),
unless prior to the scheduled dismissal date the parties demonstrate they have moved to lift the
stay but the request has not been ruled upon or has been denied; or they have sought to reduce the
claim(s) against the debtor to judgment in the Bankruptcy Court in an adversary proceeding and
the adversary proceeding has not yet been resolved despite diligence in seeking such a resolution;
or they have obtained severance of the claim(s) against the debtor from the claim(s) against the
other parties to the action, if any; or they have demonstrated a reasonable basis for continuance of
the case on the Dismissal Calendar.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-005775
05/20/2020
Docket Code 314
Form V000A
Page 2
Any party may ask the Court to schedule an informal status conference before the 180-day
period expires to inform the Court what action, if any, is undertaken in the Bankruptcy Court that
would permit this case to proceed.
IT IS FURTHER ORDERED vacating the Telephonic Trial Setting Conference on July
23, 2020 at 9:00 a.m. in this division.
05/21/2020 — CV2019005775 BRUBAKER, MICHAEL 05/21/2020 HONORABLE CHRISTOPHER COURY View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
05/22/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-005775
05/21/2020
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE CHRISTOPHER COURY
L. Stogsdill
Deputy
DEBBIE WESTERMAN
DEBBIE WESTERMAN
930 S DOBSON RD UNIT 31
MESA AZ 85202
v.
MICHAEL BRUBAKER, et al.
MARK E LINES
EDM-QC-CCC
JUDGE COURY
MEEDS ADMINISTRATOR
MINUTE ENTRY
Plaintiff’s bankruptcy having been dismissed on May 4, 2020,
IT IS ORDERED deleting the minute entry with case number CV2019-005775, docket
code 314, dated April 22, 2020 and filed on April 24, 2020, in its entirety and said minute entry
is considered null and void.
IT IS FURTHER ORDERED that EDM-QC shall remove the minute entry from the
Clerk’s Office Docket and OnBase system.
IT IS FURTHER ORDERED that the MEEDS Administrator remove the minute entry
form the Clerk’s Office minute entry website.
07/01/2019 — CV2019005775 BRUBAKER, MICHAEL 07/01/2019 HONORABLE CHRISTOPHER COURY View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
07/02/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-005775
07/01/2019
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE CHRISTOPHER COURY
L. Stogsdill
Deputy
DEBBIE WESTERMAN
PATRICK R MACQUEEN
v.
MICHAEL BRUBAKER, et al.
MARK E LINES
RULING
The Court has reviewed and considered the following:
A. Defendant Brubaker’s Motion to Dismiss, filed May 8, 2019;
B. Plaintiffs’ Response In Opposition to Defendant Michael Brubaker’s Motion to
Dismiss, filed June 6, 2019; and
C. Defendant Brubaker’s Reply Supporting Motion to Dismiss, filed June 10, 2019.
Although Defendant Brubaker has requested oral argument, he also agreed to withdraw
this request if the Court does not believe that it would be helpful. Because the Court does not
believe that oral argument would be helpful, the Court declines Defendant Brubaker’s request for
oral argument.
Defendant Brubaker argues that Plaintiff has failed to state claims for relief against him in
his Complaint. When reviewing a motion to dismiss for failure to state a claim, allegations in the
complaint that are well-pled are taken as admitted. Aldabbagh v. Arizona Department of Liquor
Licenses & Control, 162 Ariz. 415, 417 (App. 1989). In addition to well-pled facts, the Court is
entitled to consider all reasonable interpretations of such facts. Cullen v. Auto-Owners Ins. Co.,
218 Ariz. 417, 420 (2008).
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-005775
07/01/2019
Docket Code 019
Form V000A
Page 2
THE COURT FINDS as follows:
1. Claims 1, 2, and 3 are predicated upon a contract, specifically the Declaration and
Bylaws of the neighborhood association, as well as contracts between Defendant
Brubaker and the association. No contract is alleged to exist between Plaintiff and
Defendant Brubaker. And, to the extent that that Plaintiff seeks relief individually for
a contract between Defendant Brubaker and the association, the contract and warranty
claims asserted are derivative claims that must be asserted on behalf of the association,
after the prerequisite to filing suit have been met. No allegations have been made that
Plaintiff has completed the prerequisites to filing a derivative claim against Mr.
Brubaker. Therefore, Claims 1, 2 and 3 fail to state a claim for relief.
2. Claim 4 is a fraud claim that must be pled with particularity pursuant to Rule 9(b),
Arizona Rules of Civil Procedure. It is not. Dismissal of this claim is warranted.
3. Claim 7 asserts a claim for breach of fiduciary duty. Fiduciary duties are owed to the
association, not to Plaintiff. No authority has been cited to the contrary. Dismissal of
Claim 7 is warranted.
4. Claim 8 seeks a permanent injunction for failure to enforce the Declaration and Bylaws
of the association. These claims are properly asserted against other Defendants, and
not Defendant Brubaker. Dismissal of this claim is warranted.
5. Claims 5 and 6 state claims for relief against Defendant Brubaker.
6. Given the early stage of the proceedings, it is appropriate to grant Plaintiff leave to
amend her Complaint to assert claims against Defendant Brubaker pursuant to Rule
15(a), Arizona Rules of Civil Procedure.
Good cause appearing,
IT IS ORDERED granting in part Defendant Brubaker’s Motion to Dismiss, filed May 8,
2019. Claims 1, 2, 3, 4, 7 and 8 of Plaintiff’s Complaint against Defendant Brubaker are hereby
dismissed without prejudice.
IT IS FURTHER ORDERED denying Defendant Brubaker’s Motion to Dismiss, filed
May 8, 2019 as to Claims 5 and 6.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-005775
07/01/2019
Docket Code 019
Form V000A
Page 3
IT IS FURTHER ORDERED granting Plaintiff leave until July 17, 2019, to file a First
Amended Complaint.
IMPORTANT NOTICE REGARDING ONLINE PROFILE
Judge Coury maintains an online profile that answers many questions about courtroom
and division procedures. Litigants and their attorneys should familiarize themselves with the
online profile. You can find the online profile at the following link:
http://www.superiorcourt.maricopa.gov/JudicialBiographies/judges/profile.asp?jdgID=27
2&jdgUSID=9683.
07/11/2022 — CV2019005775 BRUBAKER, MICHAEL 07/11/2022 HONORABLE FRANK W. MOSKOWITZ View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
07/12/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-005775
07/11/2022
Docket Code 375
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE FRANK W. MOSKOWITZ
L. Gilbert
Deputy
DEBBIE WESTERMAN
DEBBIE WESTERMAN
930 S DOBSON RD UNIT 31
MESA AZ 85202
v.
MICHAEL BRUBAKER, et al.
MARK E LINES
JUDGE MOSKOWITZ
MINUTE ENTRY
There having been no activity on this case since May 21, 2020,
IT IS ORDERED placing this matter on the dismissal calendar for dismissal of all
remaining claims and parties on or after September 14, 2022, without further notice unless, prior
to that date, a Joint Report and Proposed Scheduling Order is filed, Judgment is entered, a
Stipulation for Dismissal is filed, or the dismissal deadline is otherwise extended by the Court for
good cause shown.
09/16/2019 — CV2019005775 BRUBAKER, MICHAEL 09/16/2019 HONORABLE CHRISTOPHER COURY View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
09/18/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-005775
09/16/2019
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE CHRISTOPHER COURY
L. Stogsdill
Deputy
DEBBIE WESTERMAN
PATRICK R MACQUEEN
v.
MICHAEL BRUBAKER, et al.
MARK E LINES
RULING
The Court has reviewed and considered the following:
A. Plaintiff’s First Amended Verified Complaint, filed July 17, 2019;
B. Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint, filed July 30, 2019;
C. Plaintiff’s Response In Opposition to Defendants’ Motion to Dismiss Plaintiff’s
Amended Complaint, filed August 26, 2019; and
D. Defendants’ Reply Supporting Motion to Dismiss Plaintiff’s Amended Complaint,
filed August 28, 2019.
Although Defendants have requested oral argument, they have also agreed to withdraw this
request if the Court does not believe that it would be helpful. Because the Court does not believe
that oral argument would be helpful, the Court declines Defendants’ request for oral argument.
Plaintiff Debbie Westerman (“Plaintiff”) filed her First Amended Verified Complaint
against Defendants Michael Brubaker (“Brubaker”) and Bridgewood Nine 30 Property Owners
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-005775
09/16/2019
Docket Code 019
Form V000A
Page 2
Association, Inc. (“Bridgewood POA”) (collectively, “Defendants”) on July 17, 2019. Defendants
filed their Answer to Plaintiff’s First Amended Verified Complaint on July 23, 2019 before filing
their Motion to Dismiss Plaintiff’s First Amended Complaint on July 30, 2019.
Claims 1, 4, and 5 are not at issue. Defendants move to dismiss only Claims 2, 3, 6, and 7
of Plaintiff’s First Amended Verified Complaint. When reviewing a motion to dismiss for failure
to state a claim, allegations in the complaint that are well-pled are taken as admitted. Aldabbagh
v. Arizona Department of Liquor Licenses & Control, 162 Ariz. 415, 417 (App. 1989). In addition
to well-pled facts, the Court is entitled to consider all reasonable interpretations of such facts.
Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 420 (2008).
THE COURT FINDS as follows:
1. Plaintiff is correct that Defendants’ motion should have been filed under Ariz.R.Civ.P.
12(c). However, the Court in its discretion can test the sufficiency of the pleadings and,
in the interest of justice and judicial economy, has determined that Defendants need
not re-file their motion. The Court will evaluate the motion pursuant to Rule 12(c),
Arizona Rules of Civil Procedure.
2. Claim 2 is a claim for tortious breach of the implied covenant of good faith and fair
dealing asserted against Defendant Bridgewood POA. Citing Rawlings v. Apodaca,
151 Ariz. 151, 158 (1986), and McAlister v. Citibank, 171 Ariz. 209, 213 (App. 1992),
Defendant Bridgewood POA argues that a special relationship must be found to pursue
tort relief and that no special relationship exists between Plaintiff and Defendant
Bridgewood POA. In Rawlings, the Supreme Court of Arizona found that “a tort action
for breach of the implied covenant is more often recognized where the contract creates
a relationship in which the law implies special duties not imposed on other contractual
relationships. These relationships are characterized by elements of public interest,
adhesion, and fiduciary responsibility.” Rawlings, 151 Ariz. at 158.
“These
types
of
contracts
create
special,
partly
noncommercial relationships, and when the provider of the
service fails to provide the very item which was the implicit
objective of the making of the contract, then contract
damages are seldom adequate, and the cases have generally
permitted the plaintiff to maintain an action in tort as well as
in contract.” Id. at 159, citing W. PROSSER & W.
KEETON, § 92 at 660–61.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-005775
09/16/2019
Docket Code 019
Form V000A
Page 3
In Plaintiff’s Response In Opposition to Defendants’ Motion to Dismiss Plaintiff’s
Amended Complaint, filed August 26, 2019, Plaintiff asserts a special relationship
exists based on an adhesion theory. Plaintiff, however, argues that the breach of the
implied covenant of good faith and fair dealing claim is based on contract, not tort.
Because no fiduciary relationship or special relationship exists, and because the
contract is not one of adhesion, tort remedies are not recoverable. Claim 2 will be is
dismissed to the extent that tort remedies are sought. To the extent that Plaintiff seeks
remedies in contract, the motion is denied.
3. Claim 3 is a claim for breach of express/implied warranty predicated upon a contract,
specifically the Declaration and Bylaws of the neighborhood association, as well as
contracts between Plaintiff and the association. Bridgewood POA is not a homebuilder
or developer capable of assuring Plaintiff against structural defects to her unit. The
pleadings are devoid of any allegations that Defendant Bridgewood POA made
warranties or assumed such warranty liability. Claim 3 fails to state a claim for relief.
4. Claim 6 asserts a claim for breach of fiduciary duty against Defendant Bridgewood
POA. Although Defendant Bridgewood POA and Plaintiff are parties to a contract, no
fiduciary duty is owed to Plaintiff simply from the existence of a contractual
relationship between a homeowner and the homeowners’ association. See Rohde v.
Beztak of Arizona, Inc., 164 Ariz. 384, 388 (App. 1990). No controlling authority has
been cited to the contrary. Dismissal of this claim is warranted.
5. Claim 7 seeks a permanent injunction for failure to enforce the Declaration and Bylaws
of the association. This claim is properly asserted against Defendant Bridgewood POA
and dismissal is unwarranted at this juncture, although the Court believes this is more
likely a remedy than a stand-alone claim.
Good cause appearing,
IT IS ORDERED granting in part Defendants’ Motion to Dismiss Plaintiff’s First
Amended Complaint, filed July 30, 2019. Claims 3 and 6 of Plaintiff’s First Amended Complaint
against Defendant Bridgewood POA are hereby dismissed. Additionally, Claim 2 is dismissed to
the extent that it arises in tort and seeks tort damages.
IT IS FURTHER ORDERED denying Defendants’ Motion to Dismiss Plaintiff’s First
Amended Complaint, filed July 30, 2019 as to Claim 7.
10/04/2022 — CV2019005775 BRUBAKER, MICHAEL 10/04/2022 HONORABLE FRANK W. MOSKOWITZ View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Filed ***
10/05/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2019-005775
10/04/2022
Docket Code 047
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE FRANK W. MOSKOWITZ
L. Gilbert
Deputy
DEBBIE WESTERMAN
DEBBIE WESTERMAN
930 S DOBSON RD UNIT 31
MESA AZ 85202
v.
MICHAEL BRUBAKER, et al.
MARK E LINES
JUDGE MOSKOWITZ
MINUTE ENTRY
Pursuant to the Court’s July 11, 2022 Minute Entry, this case was on the Dismissal
Calendar for dismissal on September 14, 2022, unless specified action was taken before a certain
date. The date has passed, and the action has not been taken. Good cause appearing,
IT IS ORDERED dismissing this case without prejudice for lack of prosecution as to any
unadjudicated claims/parties.
Dated: October 4, 2022
/s/ Frank Moskowitz
HONORABLE FRANK MOSKOWITZ
JUDICIAL OFFICER OF THE SUPERIOR COURT
