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Maricopa County Superior Court Case CV2019-010791: public docket details, parties, minute entries, documents, and official source links for Pioneer Condominium Association Of Sun City West.

Case Number

CV2019-010791

County

Maricopa

Caption

Not captured

Filed

7/17/2019

Case Type

Civil

Judge

Mata, Julie

Location

Downtown

Official Court Record

Official Court Record

Parties

Minute Entries

Clerk of the Superior Court

*** Electronically Filed ***

02/10/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

02/08/2021

Docket Code 077
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE RANDALL H. WARNER
C. Ladden

Deputy

MARDY C TOEPKE, et al.
MITCHELL W FLEISCHMANN

v.

PIONEER CONDOMINIUM ASSOCIATION OF
SUN CITY WEST
DAVID G SCHMIDT

JUDGE WARNER

MINUTE ENTRY

On the Court’s own motion, to correct an error,

IT IS ORDERED modifying the Judgment entered on November 30, 2020 to delete the
last paragraph with Rule 54(b) language and replace it with the following: “Because no further
matters remain pending, this is a final judgment pursuant to Ariz. R. Civ. P. 54(c).”

For appeal purposes, the Judgment as modified is final and appealable as of the date of
this order.

/ s / RANDALL H. WARNER

JUDGE OF THE SUPERIOR COURT

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

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

02/08/2021

Docket Code 077
Form V000A
Page 2

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 ***

03/12/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

03/11/2020

Docket Code 041
Form V000A
Page 1

CLERK OF THE COURT
HON. ROSA MROZ
S. Motzer

Deputy

MARDY C TOEPKE, et al.
MITCHELL W FLEISCHMANN

v.

PIONEER CONDOMINIUM ASSOCIATION OF
SUN CITY WEST
DAVID G SCHMIDT

ALTERNATIVE DISPUTE
RESOLUTION - CCC
JUDGE MROZ

MINUTE ENTRY

Pursuant to the parties’ Scheduling Order granted by the Court,

IT IS ORDERED this case is referred to the Court’s Alternative Dispute Resolution Office
for the appointment of a Judge Pro Tempore to conduct a settlement conference. Counsel and/or
the parties will receive a minute entry from ADR appointing the Judge Pro Tempore. Counsel and
any “pro per” parties will contact the appointed Judge Pro Tempore to arrange the date, time and
location for the settlement conference. The Judge Pro Tempore is requested to conduct a
settlement conference not later than June 9, 2020. The Office of Alternative Dispute Resolution
will not do the scheduling of the settlement conference so please do not contact that office.

All counsel and their clients, or non-lawyer representatives who have full and
complete authority to settle this case, shall personally appear and participate in good faith
in this settlement conference even if no settlement is expected.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

03/11/2020

Docket Code 041
Form V000A
Page 2

IT IS ORDERED setting a Telephonic Trial Setting Conference for the purpose of
assigning a trial date on August 18, 2020, at 9:00 a.m. (15 minutes allotted) in this division,
before:

HONORABLE JUDGE ROSA MROZ
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W. JEFFERSON
4TH FLOOR, COURTROOM 414
PHOENIX, AZ 85003
602-372-0384

Counsel/parties shall have their trial calendars available for the conference.

Counsel shall consider the following in advising the Court how many days are
necessary for trial. Trial is held from 9:30 a.m. to 4:30 p.m., Mondays through Thursdays.
Each trial day is budgeted to be 4.5 hours of actual in court time, exclusive of breaks and
bench conferences. The Court reserves for itself 4.5 hours for the Court to do its portion of
voir dire, read preliminary and final jury instructions, and for jury deliberations. The
parties will then be splitting the remaining time for each party's portion of voir dire, opening
statements, witness examinations, and closing arguments. The Court uses a timer to keep
track of your time. When you are out of time, you are out of words.

NOTE: Counsel for the Plaintiff is to initiate the telephonic conference by first arranging
the presence of all other counsel or self-represented parties on the conference call and by calling
this division’s courtroom directly at (602) 506-5518 at the scheduled time.

PRETRIAL ORDERS

The Court having been assigned to this case, the parties shall make note of the pretrial
orders identified below. To the extent that the orders are 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:

The Court follows the procedure set forth in Rule 26(d) in resolving discovery disputes.

Motion Practice:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

03/11/2020

Docket Code 041
Form V000A
Page 3

Do not combine pleadings. (Responses, replies, cross motions, etc., should each be filed
as a separate pleading).

A proposed order/judgment must be attached as a Word doc. using the proper turbo court
code. All stipulations, joint scheduling reports, unopposed motions, etc., MUST contain a
proposed order. If your system is not allowing you to attach a Word order, you must email this
division a copy to Stephanie Pham at [email protected] and she can attach
it on our end.

ALL motions are held for a briefing period. If you need a determination sooner than a
normal briefing period would allow, please do the following: 1. Speak with opposing counsel to
make certain if they have an objection. If there is no objection, file a stipulation. 2. E-file the
motion and email the filed document in Word format to the judicial assistant and opposing counsel.
3. Indicate that you are asking for a shortened briefing schedule and when you need a ruling. 4.
The Court will review your request and email all parties with a briefing schedule if necessary.

If the parties have agreed to an extension of time for filing responses/replies, email my
judicial assistant regarding the agreement. Otherwise, the Court may assume that no
responses/replies will be filed and rule without the benefit of the response/reply.

Motions in Limine:

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. Motions in limine are not granted “except upon
a clear showing of non-admissibility.” The parties shall not file motions denominated as “in
limine” that are, in substance, late-filed motions for summary judgment.

1. Page Limit and Format: Neither the motion in limine nor the response may exceed
three pages, including the caption. Showing that the motion has merit should not require more
than that. Motions in limine shall be consecutively numbered in the caption identifying the party
filing it and the subject of the motion; e.g. “Defendant’s Motion in Limine No. 1 Re: Insurance
Agreement,” and shall deal with one discrete subject per motion. Do not respond to more than one
motion in limine in each response.

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. 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

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

03/11/2020

Docket Code 041
Form V000A
Page 4

in limine based on any failure to disclose, keeping in mind that nondisclosure implicates Ariz. R.
Civ. P. 37(c)). 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.

2. Rule 7.2: Motions in limine shall be filed in accordance with Ariz.R.Civ.P. 7.2. Prior
to filing any motion in limine, the parties through counsel must meet and confer to attempt to
resolve issues to be raised by such motions, and any motions in limine must include a certification
that counsel have so conferred.

3. Deadlines: The deadline for motions in limine is 30 days before the final 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, regardless of when they are filed. 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 at
(602) 372-0384 or e-mail to the judicial assistant) and every effort will be made to decide the issue
as soon as time allows.

Daubert Motions:

The deadline for any motion brought for a Daubert hearing or brought under Ariz.R.Evid.
702, is the same as the dispositive motion deadline. Failure to file such a motion by this date shall
constitute a waiver of (1) any objection that the expert is not qualified to render expert testimony,
and/or (2) any objection that any opinion of the expert should be excluded under Ariz.R.Evid. 702.

Miscellaneous Issues:

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 up to three hours and $280 for any hearing in excess of three hours. This fee does
not include preparation of transcripts.

Should you want an unofficial copy of the proceedings, the parties or counsel may request
a CD of the proceedings for a $30.00 charge. If a CD is requested, please obtain a form from the

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

03/11/2020

Docket Code 041
Form V000A
Page 5

Self Service Center to request a daily copy of a court hearing or trial proceeding being conducted.
Pay the applicable fee at the Self Service Center. Attach the receipt showing payment of the fee
and present both the receipt and the form to the bailiff. For copies of hearings or trial
proceedings recorded previously, please call Electronic Records Services at 602-506-7100.

Requests for interpreters, court reporters or video conference must be made at least two
weeks prior to your hearing date.

Oral Argument/Trial time will be divided between Plaintiff and Defendant. “When you
are out of time, you are out of words.”

If you are not familiar with this division’s electronic equipment, please make an
appointment
with
the
courtroom
assistant,
Markus
Taylor,
via
email
at
[email protected] to test the equipment at least one week prior to your
hearing. This court is an e-courtroom.

Preferred communication with this division is via email to the judicial assistant, Stephanie
Pham, at [email protected]. We are able to respond much quicker to an
email. Please make sure you endorse all parties involved in the case.

All inquiries regarding exhibit procedures should be directed to this division’s courtroom
clerk, Diana Charbagi, at [email protected] or at (602) 506-8806.

Please take the time to review the full protocol for Judge Mroz on the Maricopa County
Superior Court website.

Clerk of the Superior Court

*** Electronically Filed ***

05/14/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

05/12/2021

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE RANDALL H. WARNER
C. Ladden

Deputy

MARDY C TOEPKE, et al.
MITCHELL W FLEISCHMANN

v.

PIONEER CONDOMINIUM ASSOCIATION OF
SUN CITY WEST
LAUREN A VIE

THOMAS P BURKE II
JUDGE WARNER

MINUTE ENTRY

Before the Court and fully briefed is Plaintiff’s Motion for Enforcement of Judgment.
This lawsuit arose after Defendant condominium association recorded an amended and restated
Declaration. Plaintiff challenged two provisions of the new Declaration: Section 2 and Section
15. The Court granted summary judgment for Plaintiff, finding that those two sections were not
approved by the requisite number of property owners. The judgment subsequently entered
directed Defendant to “record with the Maricopa County Recorder’s Office a version of the
Amended Declaration that removes Sections 2 and 15 in their entirety.”

The March 19, 2021 version of the Declaration that Defendant recorded does that—
Section 2 and Section 15 are no longer in the Declaration. Defendant therefore complied with the
Judgment.

The basis for Plaintiff’s Motion is that, while removing Section 15, Defendant added
back language from the original declaration, which states: “No occupant of the premises shall be
less than eighteen (18) years of age, and at least one occupant of the premises must be fifty (50)

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

05/12/2021

Docket Code 019
Form V000A
Page 2

years of age or older.” Plaintiff objects to this language as not authorized by the Court’s
judgment.

The Judgment entered in this matter neither prohibited nor authorized adding back
language from the original declaration. That issue was not before the Court, so the judgment did
not address it.

Whether Defendant had the authority to add back language from the original declaration
is an issue the Court cannot decide on this record. It is not an issue in the case and, even if it
were, has not been sufficiently briefed to permit a meaningful decision. If the parties, in the
interest of judicial economy, wish to adjudicate this new issue, they should file a stipulation to
reopen the case. But on the present record, the only issue is whether Defendant has complied
with the judgment, and it has.

IT IS ORDERED denying the Motion.

Clerk of the Superior Court

*** Electronically Filed ***

07/29/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

07/27/2020

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE RANDALL H. WARNER
D. Charbagi

Deputy

MARDY C TOEPKE, et al.
MITCHELL W FLEISCHMANN

v.

PIONEER CONDOMINIUM ASSOCIATION OF
SUN CITY WEST
DAVID G SCHMIDT

JUDGE WARNER

MINUTE ENTRY

Oral argument having been requested,

IT IS ORDERED setting oral argument on August 27, 2020 at 9:00 a.m. regarding
Plaintiff’s April 24, 2020 Motion for Summary Judgement on Complaint. Oral argument shall be
limited to thirty (30) minutes with the time divided equally between the sides. This matter will
be heard by video/audio conference using GoToMeeting. Counsel are strongly urged to appear by
video instead of audio alone so that counsel and the court can see each other.

Following is the GoToMeeting link for Judge Randall Warner, East Court Building. To
appear by video: https://global.gotomeeting.com/join/793701421

To appear by phone: +1 (646) 749-3122, access code: 793-701-421

To download the GoToMeeting app: https://global.gotomeeting.com/install/793701421

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

07/27/2020

Docket Code 094
Form V000A
Page 2

For questions, please contact Judge Warner’s Judicial Assistant, Michelle McBride, at
602.372.2966. To have the GoToMeeting link emailed to you, please email Judge Warner’s
Courtroom Assistant, Sydne Smith, at [email protected].

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 ***

08/07/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

08/03/2020

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE RANDALL H. WARNER
D. Charbagi

Deputy

MARDY C TOEPKE, et al.
MITCHELL W FLEISCHMANN

v.

PIONEER CONDOMINIUM ASSOCIATION OF
SUN CITY WEST
DAVID G SCHMIDT

JUDGE WARNER

MINUTE ENTRY

The trial-setting conference scheduled for August 18, 2020 at 9:00 a.m. in this matter will
be heard by video/audio conference using GoToMeeting. Counsel are strongly urged to appear by
video instead of audio alone so that counsel and the court can better see and hear each other.

No later than two days before the conference, the parties shall file a joint status report
containing (1) a one-paragraph description of the case; (2) a statement that discovery is or is not
complete; (3) a list of pending motions and whether they are at issue; (4) when the parties anticipate
the case will be ready for trial; and (5) how many trial days the parties estimate are needed.

Following is the GoToMeeting link for Judge Randall Warner, East Court Building. To
appear by video: https://global.gotomeeting.com/join/793701421

To appear by phone: +1 (646) 749-3122, access code 793-701-421

To download the GoToMeeting app: https://global.gotomeeting.com/install/793701421

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

08/03/2020

Docket Code 023
Form V000A
Page 2

For questions, please contact Judge Warner’s Judicial Assistant, Michelle McBride, at
602.372.2966. To have the GoToMeeting link emailed to you, please email Judge Warner’s
Courtroom Assistant, Sydne Smith, at [email protected].

Clerk of the Superior Court

*** Electronically Filed ***

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

CV 2019-010791

08/18/2020

Docket Code 083
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE RANDALL H. WARNER
D. Charbagi

Deputy

MARDY C TOEPKE, et al.
MITCHELL W FLEISCHMANN

v.

PIONEER CONDOMINIUM ASSOCIATION OF
SUN CITY WEST
DAVID G SCHMIDT

THOMAS P BURKE II
JUDGE WARNER

MINUTE ENTRY

Courtroom: ECB - 414

9:00 a.m. This is the time set for a trial-setting conference. Plaintiffs, Mardy C. Toepke
and Kate E. Toepke are represented by counsel, Mitchell W. Fleischmann. Defendant, Pioneer
Condominium Association of Sun City West is represented by counsel, David G. Schmidt and
Thomas P. Burke II. All appearances are telephonic. Today’s proceeding is being conducted
electronically using the GoToMeeting audio-video platform. All participants are appearing
electronically. The official record is being maintained using the FTR system.

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

Discussion is held regarding the status of the case and the setting of a trial date.
Accordingly,

IT IS ORDERED that before the trial-setting conference, the parties’ shall talk with their
clients and make a decision regarding a bench or jury trial.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

08/18/2020

Docket Code 083
Form V000A
Page 2

IT IS FURTHER ORDERED resetting today’s trial-setting conference to October 22,
2020 at 8:45 a.m. (time allotted: 15 minutes) in this division. This matter will be heard by
video/audio conference using GoToMeeting. Counsel are strongly urged to appear by video
instead of audio alone so that counsel and the court can see each other.

Following is the GoToMeeting link for Judge Randall Warner, East Court Building. To
appear by video: https://global.gotomeeting.com/join/793701421

To appear by phone: +1 (646) 749-3122, access code: 793-701-421

To download the GoToMeeting app: https://global.gotomeeting.com/install/793701421

For questions, please contact Judge Warner’s Judicial Assistant, Michelle McBride, at
602.372.2966. To have the GoToMeeting link emailed to you, please email Judge Warner’s
Courtroom Assistant, Sydne Smith, at [email protected].

IT IS FURTHER ORDERED that before the trial-setting conference, the parties’ shall
talk with their clients and make a decision regarding a bench or jury trial.

9:10 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

08/28/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

08/26/2019

Docket Code 056
Form V000A
Page 1

CLERK OF THE COURT
HON. ROSA MROZ
D. Charbagi

Deputy

MARDY C TOEPKE, et al.
MITCHELL W FLEISCHMANN

v.

PIONEER CONDOMINIUM ASSOCIATION OF
SUN CITY WEST
DAVID G SCHMIDT

JUDGE MROZ

MINUTE ENTRY

East Court Building– Courtroom 414

9:17 a.m. This is the time set for Oral Argument on Plaintiffs Application for Preliminary
Injunction, and Petition for Order to Show Cause filed on July 17, 2019, and Order to Show Cause
filed on July 23, 2019. Plaintiffs, Mardy C. Toepke and Kate E. Toepke are represented by
counsel, Mitchell W. Fleischmann. Defendant, Pioneer Condominium Association of Sun City
Wes is represented by counsel, David G. Schmidt.

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

Discussion held regarding Plaintiffs’ Application for Preliminary Injunction and Petition
for Order to Show Cause filed on July 17, 2019, and Defendant’s Response.

The Court inquires about the need for an evidentiary hearing. Plaintiffs’ position is that
there are two issues, only one of which requires an evidentiary hearing. Issue one is the
applicability of A.R.S. § 33-1227(D), which requires unanimous consent of the unit owners before
any amendments to Declarations that restrict the use of any unit can be imposed. Plaintiffs assert

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

08/26/2019

Docket Code 056
Form V000A
Page 2

that this is a purely legal issue. Issue two is the legitimacy of the HOA’s incorporation. Plaintiffs
assert that this issue will require an evidentiary hearing regarding the timing of the
incorporation. Plaintiffs further assert that if the Court decides issue one in Plaintiffs’ favor, issue
two is moot and no evidentiary hearing will be needed. Defendants assert that an evidentiary
hearing is still necessary because issue one is intertwined with issue two.

IT IS ORDERED that Plaintiffs shall file a Reply by no later than September 3, 2019.

IT IS ORDERED setting an Evidentiary Hearing on September 24, 2019 at 9:00 a.m.
(time allotted: 3 hours) before:

HONORABLE JUDGE ROSA MROZ
MARICOPA COUNTY SUPERIOR COURT
EAST COURT BUILDING
101 W. JEFFERSON
4TH FLOOR, COURTROOM 414
PHOENIX, AZ 85003
602-372-0384

NOTE: The presumptive time limit for each side is 85 minutes to present its case. “When
you are out of time, you are out of words.”

The Court will review the briefs before making a decision as to whether an evidentiary
hearing is truly necessary. If the Court decides that issue one is purely legal, and decides that
issue in Plaintiffs’ favor, the Court will vacate the evidentiary hearing.

IT IS FURTHER ORDERED that all parties shall hand-deliver to the Clerk of this
Division all exhibits to be used at the hearing at least five (5) business days prior to the hearing.
All hearing exhibits shall have been exchanged prior to that time. Exhibits shall be accompanied
with a numbered list of each exhibit and shall be separated with a blank sheet of colored paper.
No duplicate exhibits shall be presented for marking. Exhibits are marked in numerical order per
party, making it necessary to mark all of one party’s exhibits before marking the other party’s.
Accordingly, the Defendant’s exhibits numbering shall start at the next number following the last
of Plaintiff’s exhibits. (For example, Plaintiff submits 10 exhibits, which are marked Exhibit 1
through 10. Defendant submits 10 exhibits, which are marked 11 through 20). Exhibits must be
stapled or bound together prior to delivery to the clerk. Upon submission of the exhibits to the
clerk, please provide one additional set in a binder for the Judge’s reference during the hearing.
Please contact the Clerk at (602) 506-8806 with any questions regarding procedures for marking
and submitting exhibits.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

08/26/2019

Docket Code 056
Form V000A
Page 3

NOTE: All typewritten exhibits being received in evidence should be legible and in
at least an 8 point font.

IT IS FURTHER ORDERED Counsel shall file, at least three (3) business days prior to
the hearing, a Joint Hearing Statement signed by all counsel/parties.

a) Deposition Summary: Counsel shall provide to the Court copies of any
deposition transcripts to be read in place of live testimony. The offering
party will highlight the portions to be read, the other side will highlight
Rule 106 additions, and any objections for the Court to rule on will be
clearly marked in the margin. The parties are encouraged to agree on
narrative summaries of deposition testimony, using brief question and
answer excerpts only to emphasize very important testimony or to cover
areas of testimony that cannot be summarized to the satisfaction of all
counsel. No stipulation should be unreasonably refused.

b) Final Trial Witnesses: The Joint Hearing Statement shall include an exhibit
titled: Final Hearing Witness List. This list shall contain the name of each
witness a party actually intends to call at the hearing, the day on which they
intend to call each witness and the estimated time needed for direct, cross and
re-direct examination.

NOTE: All court proceedings are recorded by audio and video method and not by a court
reporter. Pursuant to Local Rule 2.22, if a party desires a court reporter for any proceeding in
which a court reporter is not mandated by Arizona Supreme Court Rule 30, the party must submit
a written request to the assigned judicial officer at least ten (10) judicial days in advance of the
hearing, and must pay the authorized fee to the Clerk of the Court at least two (2) judicial days
before the proceeding. The fee is $140 for up to three hours and $280 for any hearing in excess of
three hours. This fee does not include preparation of transcripts.

Requests for interpreters, court reporters or video conference must be made at least two
weeks prior to your hearing date.

Should you want an unofficial copy of the proceedings, the parties or counsel may request
a CD of the proceedings for a $30.00 charge. If a CD is requested, please obtain a form from the
Self Service Center to request a daily copy of a court hearing or trial proceeding being conducted.
Pay the applicable fee at the Self Service Center. Attach the receipt showing payment of the fee
and present both the receipt and the form to the bailiff. For copies of hearings or trial
proceedings recorded previously, please call Electronic Records Services at 602-506-7100.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

08/26/2019

Docket Code 056
Form V000A
Page 4

NOTE: If you are not familiar with this division’s electronic equipment, please make an
appointment with this division’s Judicial Assistant, Sandra Nageotte, via email at
[email protected]. , to test the equipment at least one week prior to your
hearing.

NOTE: Preferred communication with this Division is via email to my Judicial Assistant,
Sandra Nageotte, at [email protected]. We are able to respond much quicker
to an email. Please make sure you endorse all parties involved in the case.

9:27 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

08/28/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

08/27/2020

Docket Code 005
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE RANDALL H. WARNER
D. Charbagi

Deputy

MARDY C TOEPKE, et al.
MITCHELL W FLEISCHMANN

v.

PIONEER CONDOMINIUM ASSOCIATION OF
SUN CITY WEST
DAVID G SCHMIDT

JUDGE WARNER

MINUTE ENTRY

Courtroom: ECB -414

9:00 a.m. This is the time set for Oral Argument regarding Plaintiff’s April 24, 2020 Motion
for Summary Judgement on Complaint. Plaintiff, Mary C. Toepke is represented by counsel,
Mitchell W. Fleischmann. Defendant, Pioneer Condominium Association of Sun City West is
represented by counsel, Thomas Burke. Today’s proceeding is being conducted electronically
using the GoToMeeting audio-video platform. All participants are appearing electronically. The
official record is being maintained using the FTR system.

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

Argument is heard.

Based on the matters presented,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

08/27/2020

Docket Code 005
Form V000A
Page 2

IT IS ORDERED taking Plaintiff’s April 24, 2020 Motion for Summary Judgement on
Complaint under advisement.

9:39 a.m. Matter concludes.

Later

This case has been pending for over a year. For the first time at oral argument, Defendant
argued that A.R.S. § 33-1227(D)—which is at the core of this lawsuit—does not apply to the
declaration here because the statute was enacted after the declaration was in place. The court needs
additional briefing on that issue, both on the merits and regarding the issue of waiver. The court
will order supplemental briefing, and will rule after that without further oral argument.

IT IS ORDERED that Defendant file a supplement to the Response and Cross-Motion no
later than September 4, 2020, and Plaintiff file a supplement to their Reply no later than September
18, 2020. If counsel agree to adjust those dates, they should notify court staff.

Clerk of the Superior Court

*** Electronically Filed ***

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

CV 2019-010791

09/14/2020

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE RANDALL H. WARNER
D. Charbagi

Deputy

MARDY C TOEPKE, et al.
MITCHELL W FLEISCHMANN

v.

PIONEER CONDOMINIUM ASSOCIATION OF
SUN CITY WEST
DAVID G SCHMIDT

JUDGE WARNER

MINUTE ENTRY

Cross-motions for summary judgment are under advisement following argument. The
court finds no material fact dispute and grants each party’s motion in part. The challenged
Amendments to the Declaration cannot be enforced because they were not adopted in the manner
required by A.R.S. § 33-1227(D).

Defendant Pioneer Condominium Association of Sun City West is a condominium
association. Plaintiffs Toepke own a unit in the condominium and are members of the Association.
In late 2018, the Association’s board proposed an Amendment to the Declaration to address,
among other things, short-term rentals. It submitted the Amendment to the member-owners for a
vote, and the Amendment passed by a 25-8 vote. A preliminary injunction later issued enjoining
enforcement of the Amendment.

Two parts of the Amendment are challenged here. Section 2 of the Amendment prohibits
owners from leasing their unit to a single family for less than 30 days. Before the Amendment,
owners could rent their units for shorter terms, provided they gave notice to the Association and
the rental was not disapproved.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

09/14/2020

Docket Code 019
Form V000A
Page 2

Section 15 of the Amendment modifies the Declaration’s age-restriction provisions.
Before the Amendment, the Declaration prohibited any occupant younger than 18 years old, and
required at least one occupant to be 50 years old or older. Section 15 raises the age requirement
to 55 years old. It also clarifies that one 55+ resident has to occupy the unit when there is someone
under 55 residing there, and if the occupancy period is less than 10 months, the unit has to be
vacant when there is no 55+ resident there.

These two provisions, the Toepkes argue, were not lawfully adopted by unanimous vote of
the member-owners as required A.R.S. § 33-1227(D). That statute says:

Except to the extent expressly permitted or required by other
provisions of this chapter, an amendment shall not create or
increase special declarant rights, increase the number of units or
change the boundaries of any unit, the allocated interests of a unit
or the uses to which any unit is restricted, in the absence of
unanimous consent of the unit owners.

A.R.S. § 33-1227(D) (emphasis added). Although the placement of commas makes this provision
a little hard to decipher, its meaning is clear. If an amendment changes “the uses to which any
unit is restricted,” unanimous consent of all unit owners is required.

So the question is whether Section 2 and Section 15 change the uses to which condominium
units are restricted. They do. Section 2 prohibits owners from renting their units for terms less
than 30 days. Before the Amendment, they could do that. Section 15 requires that at least one
occupant be 55 years old or older. Before the Amendment, they only had to be 50 years old. Both
the ability to rent one’s unit and age requirements for occupants are use restrictions, and the
Amendment changes them.

For this reason, the Toepkes are entitled to summary judgment on their claim for
declaratory and injunctive relief. Sections 2 and 15 of the Amendment are not valid because they
were not unanimously approved as required by A.R.S. § 33-1227(D). The Toepkes are entitled to
an injunction against their enforcement.

But the Association’s cross-motion for summary judgment must be granted on the
remainder of the Toepkes’ claims. Although Sections 2 and 15 of the Amendment were not
lawfully adopted, the remedy for that is declaratory and injunctive relief. The Association board’s
application of the wrong voting standard is not a breach any express provision in the Declaration,
nor is it a breach of the implied duty of good faith and fair dealing. It also is not a breach of the
Association’s duty of care. And there is no statutory claim for damages for breach of the
Condominiums Act.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

09/14/2020

Docket Code 019
Form V000A
Page 3

Nor do the Toepkes have a claim under A.R.S. § 33-420 for recording a false document.
That statute does not apply to the recording of an amendment to declarations, even if the
amendment is later determined to have been improperly approved.

IT IS ORDERED granting the Toepkes’ Motion for Summary Judgment in part.
Summary judgment is granted in their favor on the claims for declaratory and injunctive relief. It
is denied in all other respects.

IT IS FURTHER ORDERED granting the Association’s Cross-Motion for Summary
Judgment in part. Summary judgment is granted in favor of the Association on the Toepkes’
claims for breach of contract, breach of the duty of good faith and fair dealing, breach of
association duty of care, breach of statutory condominiums act, and breach of statutory recording
act. It is denied in all other respects.

IT IS FURTHER ORDERED that, within 30 days of this order, the Toepkes must, and
the Association may, lodge a form of judgment that includes declaratory and injunctive relief, and
that contains Rule 54(c) language.

IT IS FURTHER ORDERED that, within 30 days of this order, any party seeking an
award of attorneys’ fees or costs must file a motion for attorneys’ fees or statement of costs.

The parties should notify the court if they reach agreement on the form of judgment,
attorneys’ fees, and/or costs.

Clerk of the Superior Court

*** Electronically Filed ***

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

CV 2019-010791

09/16/2020

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE RANDALL H. WARNER
D. Charbagi

Deputy

MARDY C TOEPKE, et al.
MITCHELL W FLEISCHMANN

v.

PIONEER CONDOMINIUM ASSOCIATION OF
SUN CITY WEST
DAVID G SCHMIDT

JUDGE WARNER

MINUTE ENTRY

Before the court is Plaintiffs' September 11, 2020 Response to Defendant's Motion to
Withdraw and Plaintiff's Request for Attorneys' Fees. The court has ruled on the cross-motions
for summary judgment, so the response is moot. Good cause does not exist for an attorneys' fees
award.

IT IS ORDERED denying the request for attorneys' fees.

Clerk of the Superior Court

*** Electronically Filed ***

09/19/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

09/18/2019

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HON. ROSA MROZ
D. Charbagi

Deputy

MARDY C TOEPKE, et al.
MARK BAINBRIDGE

v.

PIONEER CONDOMINIUM ASSOCIATION OF
SUN CITY WEST
DAVID G SCHMIDT

JUDGE MROZ

MINUTE ENTRY

The Court has reviewed Plaintiffs’ Application for Preliminary Injunction, Defendant’s
Response, Plaintiffs’ Reply, Defendant’s Sur-Reply, and Plaintiffs’ Response to Defendant’s Sur-
Reply.

At the hearing on August 26, 2019, the Court inquired about the need for an evidentiary
hearing. Plaintiffs’ position was that there are two issues, only one of which requires an evidentiary
hearing. Issue one is the applicability of A.R.S. § 33-1227(D), which requires unanimous consent
of the unit owners before any amendments to Declarations that restrict the use of any unit can be
imposed. Plaintiffs asserted that this is a purely legal issue. Issue two is the legitimacy of the
HOA’s incorporation. Plaintiffs asserted that this issue will require an evidentiary hearing
regarding the timing of the incorporation. Plaintiffs further asserted that if the Court decides issue
one in Plaintiffs’ favor, issue two is moot and no evidentiary hearing will be needed. Defendants
asserted that an evidentiary hearing is still necessary because issue one is intertwined with issue
two.

It appears to the Court that Plaintiffs have now narrowed its request for the preliminary
injunction to just issue one: the applicability of A.R.S. § 33-1227(D). While the Court agrees with

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

09/18/2019

Docket Code 023
Form V000A
Page 2

Plaintiffs that this is a purely legal issue, the Court also agrees with Defendant that there are four
factors that the Court must consider in deciding whether to grant the preliminary injunction, only
one of which is whether the Plaintiffs have a strong likelihood of success on the merits. The Court
does not know what evidence Defendant intends to present in support of the other three prongs but
the Court needs to provide Defendant with an opportunity to do so.

IT IS ORDERED affirming the evidentiary hearing set for September 24, 2019, at 9:00
a.m. The evidentiary hearing is solely about issue one as it appears that Plaintiffs are only seeking
relief based on issue one. If the Court is wrong about Plaintiffs’ intention, Plaintiffs shall inform
Defendant immediately so that both sides are prepared to present evidence about issue two as well.

The Court has also considered Defendant’s argument that Plaintiffs failed to comply with
rule 65(d), and that Plaintiffs’ Revised Proposed Order “create[d] confusion regarding why an
injunction should be issued, what the specific terms would be, and what acts would be
restrained.” The Court is not at all confused about what Plaintiffs are seeking, and based on
Defendant’s Sur-Reply, the Court believes that Defendant is not confused either.

To the extent that Defendant wants the Court to deny Plaintiffs’ Application for
Preliminary Injunction for any alleged violation of Rule 65(d), Defendant’s request is denied.

Clerk of the Superior Court

*** Electronically Filed ***

09/26/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

09/24/2019

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HON. ROSA MROZ
D. Charbagi

Deputy

MARDY C TOEPKE, et al.
MARK BAINBRIDGE

v.

PIONEER CONDOMINIUM ASSOCIATION OF
SUN CITY WEST
DAVID G SCHMIDT

JUDGE MROZ

MINUTE ENTRY

The Court has considered Plaintiffs’ Application for Preliminary Injunction, Defendant’s
Response, Plaintiffs’ Reply, Defendant’s Sur-Reply, Plaintiffs’ Response to Defendant’s Sur-
Reply, the evidence presented, and oral arguments of counsel.

Plaintiffs own a condominium unit located at 13471 W. Copperstone Drive, Sun City West,
Arizona (the Property), which they acquired in November 2015. At the time Plaintiffs bought the
Property, the Property was governed by a Declaration of Restrictions, Establishment of Board
Management, and Lien Rights (“Declaration”) that was recorded on May 10, 1978.

Defendant is the Pioneer Condominium Association of Sun City West (the “Association”).
The Association appointed the Board of Management (the “Board”).1 According to the
Association, in November 2018, the Association notified the owners that there would be a meeting
on December 6, 2018, to discuss the Amended Declaration. On December 6, 2018, the Association

1 The Court notes that in the Application for Preliminary Injunction, Plaintiffs challenged the legitimacy of
the Association. This argument has been abandoned for the purposes of the Application for Preliminary
Injunction only. The Court’s ruling assumes for the purposes of Application for Preliminary Injunction only
that the Association is legitimate.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

09/24/2019

Docket Code 926
Form V000A
Page 2

held the meeting attended by 19 of the owners, including Plaintiffs. The Board made the owners
aware of the provisions of the Declaration that were to be amended. On December 27, 2018, the
Board voted to approve the Amended Declaration and present it to the owners for their review.
The Association sent the Amended Declaration and a mail-in/absentee ballot (“Ballot”) to all of
the owners to vote on whether to approve the Amended Declaration. On January 24, 2019, the
Board tallied the votes cast. The final total was twenty-five “yes” and eight “no,” which resulted
in 75.76% of the votes approving the Amended Declaration. On January 28, 2019, the Association
recorded the Amended Declaration with the Maricopa County Recorder’s Office.

Plaintiffs request that the Court issue a preliminary injunction to enjoin the Association
from enforcing Section 2 of the Amended Declaration because the Association did not receive
unanimous approval from the owners in violation of A.R.S. § 33-1227(D). Section 2 of the
Amended Declaration prohibits any owner within the Pioneer Condominium Association from
leasing their property for periods of less than thirty days.

A party seeking a preliminary injunction must establish: (1) a strong likelihood of success
on the merits; (2) the possibility of irreparable injury not remediable by damages; (3) a balance of
hardships in that party’s favor; and (4) public policy favoring the requested relief. Shoen v. Shoen,
167 Ariz. 58, 63, 804 P.2d 787, 792 (App. 1990).

Likelihood of Success on the Merits

Plaintiffs argue that Section 2 of the Amended Declaration cannot be enforced because the
Association did not receive unanimous approval from the owners in violation of A.R.S. § 33-
1227(D).

Defendant essentially argues that A.R.S. § 33-1227(D) is not applicable. A.R.S § 33-
1227(D) states: “Except to the extent expressly permitted or required by other provisions of this
chapter, an amendment shall not create or increase special declarant rights, increase the number
of units or change the boundaries of any unit, the allocated interests of a unit or the uses to which
any unit is restricted, in the absence of unanimous consent of the unit owners.” (Emphasis added).
The Court finds that limiting the rental time period to not less than 30 days is a change to the
restricted uses to Plaintiff’s Property. While it is true that the original Declaration required the
owners to seek the approval from the Board for any sale, lease, or sublease and give the Board 15
days to act, see Section 19 of the Declaration, the original Declaration had no restrictions as to
how long the rental period had to be. Even Keith Resnick, the President of the Association, agrees
that there is a change in use restriction from the original Declaration to the Amended Declaration,
and that short-term rentals of less than 30 days were not previously prohibited in the original
Declaration.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

09/24/2019

Docket Code 926
Form V000A
Page 3

Defendant also argues that even if “a rental time period restriction could be considered
under A.R.S § 33-1227(D), that restriction is expressly permitted by A.R.S. § 33-1260.01(A) and,
therefore, exempted from the unanimous requirement of A.R.S § 33-1227(D).”

A.R.S. § 33-1260.01(A) states: “A unit owner may use the unit owner's unit as a rental
property unless prohibited in the declaration and shall use it in accordance with the declaration's
rental time period restrictions.” This statutory provision says nothing about how many votes it
takes to amend a declaration to add a rental time period restriction.

A.R.S. § 33-1260.01(A) must be read in conjunction with A.R.S § 33-1227(D). While a
declaration may include a rental time period restriction, if the declaration does not have such a
restriction, and a condominium association wants to amend the declaration to add such a
restriction, that association must obtain the unanimous consent of the owners.

The Court finds that Plaintiffs have a strong likelihood of success on the merits.

The possibility of irreparable injury not remediable by damages

Defendant’s main argument for why Plaintiffs’ Application fails is that Plaintiffs’ alleged
injury can be easily remediated by money damages that may be calculated if Plaintiffs win their
lawsuit.

Monetary damages may provide an adequate remedy at law. See Cracchiolo v.
State, 135 Ariz. 243, 247, 660 P.2d 494, 498 (App.1983). However, where a loss
is uncertain, monetary damages may be inadequate.3 See Phoenix Orthopaedic
Surgeons, Ltd. v. Peairs, 164 Ariz. 54, 59, 790 P.2d 752, 757 (App.1989),
overruled on other grounds by Farber, 194 Ariz. 363, 982 P.2d 1277. To
determine whether damages would be an adequate remedy at law, the court
should consider “the difficulty of proving damages with reasonable certainty.”
Restatement (Second) of Contracts § 360 (1981); see also Restatement § 352
(damages not recoverable for loss beyond amount established with reasonable
certainty); Restatement § 360 cmt. b (damages inadequate remedy if injured
party can prove some but not all loss); Haralson v. Fisher Surveying, Inc., 201
Ariz. 1, ¶ 35, 31 P.3d 114, 121 (2001) (McGregor, J., concurring in part and
dissenting in part) (Arizona courts generally apply law of the Restatement absent
Arizona law to contrary).

IB Prop. Hldgs., LLC v. Rancho Del Mar Apts. Ltd. P’ship, 228 Ariz. 61, 65, ¶10, 263 P.3d 69,
73 (App. 2011).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

09/24/2019

Docket Code 926
Form V000A
Page 4

Mardy Toepke testified that as a result of the short-term rental period restriction in Section
2 of the Amended Declaration, he adjusted his setting on his AirBnB rental page to reflect that the
Property can only be rented for 30 days or more. If someone wants to rent the Property for less
than 30 days, his Property would not even appear on the AirBnB website as an eligible property.

The Court finds that calculating Plaintiffs’ monetary damages at the end of the case would
be extremely difficult and speculative because there is no reasonably certain way of knowing how
often the Property would have been rented and for how long.

The Court also agrees with Plaintiffs’ argument that “[i]njunctive relief is normally
available to redress violations of easements and restrictive covenants without proof of irreparable
injury or a showing that a judgment for damages would be inadequate”, citing Restatement (Third)
of Property; Servitudes § 8.3 (2000)(“The value of a restrictive covenant or easement is often
difficult to quantify and may be impossible to replace. When it is enjoyed as an appurtenance to
ownership of land, its value to the land owner may not be adequately reflected by market values.
An award of damages instead of injunctive relief that would allow the other party to buy out of the
servitude obligation will seldom be appropriate….”).

The Court finds that the injury to Plaintiffs from the enforcement of the rental time period
restriction pending final resolution of the case is not remediable by money damages with any
reasonable certainty.

Balance of hardships in that party’s favor

Plaintiffs’ request to the Court is narrowly tailored to only enjoining the enforcement of
Section 2 of the Amended Declaration. Plaintiffs’ hardship is that it will not be able to receive
rental income from short-term rentals of less than 30 days during the pendency of this case.

In its Response, Defendant claims the following hardships: (1) it would be forced to rely
on the outdated Declaration for an uncertain period; (2) it would be forced to prepare an entirely
new amended and restated declaration and go through the process again for all of the provisions
in the Amended Declaration that Plaintiffs do not raise an issue with; (3) it would not be able to
protect its status as an age-restricted community status, and allow all owners to rent for less than
30 days; and (4) Plaintiffs included access to the Sun City Recreation Center when the Sun City
Recreation Center prohibit transferring membership benefits from owners to guests, and does not
allow guests to purchase access for periods less than thirty days.

The first two reasons cited by Defendant does not exist since only Section 2 of the
Amended Declaration would be enjoined. As to the third and fourth reason, allowing Plaintiffs to
rent their Property for periods of less than 30 days does not impact any valid restrictions Defendant

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

09/24/2019

Docket Code 926
Form V000A
Page 5

may have about renting to age-appropriate renters, or Sun City Recreation Center’s guest policies.
Plaintiffs have only requested to enjoin Section 2 of the Amended Declaration. Section 15 of the
Amended Declaration, which is about age restrictions, is not affected. Defendant also argues that
the all of the provisions of the Amended Declaration must be read together for cohesive meaning.
However, Section 45 of the Amended Declaration specifically states: “Should any of these
restrictive covenants be invalidated by law, regulation or court decree, such invalidity of any such
restrictive covenant shall in no way affect the validity of the remainder of the restrictive
covenants.”

At the hearing, Defendant also argues that the Association would face the hardship of
having unknown persons within their community, and noise complaints that come with short-term
rentals. Noise complaints can occur whether it is caused by an owner, a long-term rental, or a
short-term rental. The Court has no evidence to support that Plaintiffs’ short-term rental tenants or
any owner’s short-term rental tenants caused more noise than an owner or a long-term rental tenant.
The Court does find that there is hardship associated with having unknown persons within the
Association’s community with short-term rentals.

Overall, the Court finds that the balance of hardships favor Plaintiffs.

Public policy favoring the requested relief

The Court further finds that public policy favors the enforcement of contract. When
Plaintiffs bought the Property, it was done so with the understanding that there were no rental time
period restrictions. The Court further finds that public policy favors the requested relief because
Defendant needs to follow the law as directed by the legislature. Arizona’s legislature intended
any changes to use restrictions to be approved unanimously; otherwise, the legislature would have
only required 67% of the votes to amend a declaration as it did for almost all other types of
amendments. Compare A.R.S. § 33-1227(D) with § 33-1227(A).

Based on the foregoing,

IT IS ORDERED granting Plaintiffs’ Application for Preliminary Injunction, as amended
by Plaintiffs’ Reply.

IT IS FURTHER ORDERED that Section 2 of the Amended and Restated Declaration
of Covenants, Conditions, and Restrictions, as recorded by Pioneer Condominium Association of
Sun City West with the Maricopa County Recorder’s Office on or about January 28, 2019 (at
Recording Number 20190059398) shall not be enforced, until further orders from this Court.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

09/24/2019

Docket Code 926
Form V000A
Page 6

IT IS FURTHER ORDERED that Pioneer Condominium Association of Sun City West
shall not prohibit any condominium owners within the Pioneer Condominium residential
community from leasing their property for periods of less than thirty (30) days, until further orders
from this Court.

The Court signs the Preliminary Injunction Order this date.

Clerk of the Superior Court

*** Electronically Filed ***

09/26/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

09/24/2019

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HON. ROSA MROZ
D. Charbagi

Deputy

MARDY C TOEPKE, et al.
MARK BAINBRIDGE

v.

PIONEER CONDOMINIUM ASSOCIATION OF
SUN CITY WEST
DAVID G SCHMIDT

JUDGE MROZ

MINUTE ENTRY

East Court Building– Courtroom 414

9:00 a.m. This is the time set an Evidentiary Hearing regarding Plaintiffs’ Application for
Preliminary Injunction and Petition for Order to Show Cause filed on July 16, 2019, Defendants
response filed on August 20, 2019, Plaintiffs’ reply filed on September 3, 2019, and Defendant’s
sur-reply filed on September 17, 2019. Plaintiffs, Mardy C. Toepke and Kate E. Toepke are
represented by counsel, Mark Bainbridge. Defendant, Pioneer Condominium Association of Sun
City West is represented by counsel, David G. Schmidt. Keith Resnick, President of Pioneer
Condominium Association of Sun City West, is also present.

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

Discussion is held regarding hearing matters.

Plaintiffs’ case:

Mardy C. Toepke is sworn and testifies.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

09/24/2019

Docket Code 020
Form V000A
Page 2

Plaintiffs’ exhibit 3 is received in evidence.

Defendant’s exhibit 21 is received in evidence.

Plaintiffs’ exhibit 4 is received in evidence.

Mardy C. Toepke is excused.

Plaintiffs rest.

Defendant’s case:

Keith Resnick is sworn and testifies.

Keith Resnick is excused.

Defendants rest.

Oral arguments are presented.

Based on the matters presented,

IT IS ORDERED taking this matter under advisement.

10:34 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

10/23/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

10/21/2020

Docket Code 002
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE RANDALL H. WARNER
C. Ladden

Deputy

MARDY C TOEPKE, et al.
MITCHELL W FLEISCHMANN

v.

PIONEER CONDOMINIUM ASSOCIATION OF
SUN CITY WEST
DAVID G SCHMIDT

JUDGE WARNER

MINUTE ENTRY

On the court’s own motion,

IT IS ORDERED vacating the Trial Setting Conference set on October 22, 2020 at 8:45
a.m. in this division.

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 ***

12/01/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

11/25/2020

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE RANDALL H. WARNER
C. Ladden

Deputy

MARDY C TOEPKE, et al.
MITCHELL W FLEISCHMANN

v.

PIONEER CONDOMINIUM ASSOCIATION OF
SUN CITY WEST
DAVID G SCHMIDT

JUDGE WARNER

MINUTE ENTRY

Before the court are the parties’ competing forms of judgment, requests for attorneys’
fees, and statements of costs.

The main in this case was whether certain Amendments to the Declaration are
unenforceable because they were not adopted in the manner required by A.R.S. § 33-1227(D).
The court granted a preliminary injunction on that issue, and subsequently granted summary
judgment on that issue. As a consequence, Plaintiff prevailed on her claim for declaratory and
injunctive relief. Summary judgment was granted for Defendant on her claim for damages, and
on contract, tort, and statutory claims.

The court finds that, on balance, Plaintiff is the successful party. Although she lost on
various claims, she prevailed on the main issue in the case. For that reason, she is entitled to
costs.

Plaintiff argues for attorneys’ fees under A.R.S. § 12-341.01(A) on the ground that this
matter arises out of contract. Defendant agrees that this matter arises out of contract, but argues
that either it should be awarded fees, or that no party should be awarded fees.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

11/25/2020

Docket Code 023
Form V000A
Page 2

The court has considered all relevant factors and finds that a partial award of attorneys’
fees to Plaintiff as the prevailing party is appropriate. As to the factors listed in Associated
Indemnity Corp. v. Warner, 143 Ariz. 567, 694 P.2d 1181 (1985), the court finds as follows.

1.
Whether the unsuccessful party’s claim or defense was meritorious. Although
Plaintiff prevailed on the main issue in this case, Defendant prevailed on a number of defenses to
Plaintiff’s claims.

2.
Whether the litigation could have been avoided or settled and the successful
party’s efforts were completely superfluous in achieving the result. Litigation could have been
avoided. Defendant should have known the Amendments were not lawfully passed. And even if
they did not know before the litigation, they did know once Judge Mroz granted a preliminary
injunction based on A.R.S. § 33-1227(D). At the very least, the main issue in this case should
have been resolved then instead of having to relitigate it on summary judgment.

3.
Whether a fee award would be an extreme hardship. A fee award would not be
an extreme hardship.

4.
Whether the successful party prevailed with respect to all of the relief sought.
Plaintiff did not prevail with respect to all of the relief sought.

5.
Whether the matter presented a novel legal question. The matter presented was
not novel. It involved a straightforward application of a statute.

6.
Whether the award would discourage other parties with tenable claims or
defenses from litigating them. A fee award would not discourage other parties with tenable
claims from litigating them.

Based on these factors, the court finds that an award of attorneys’ fees to Plaintiff in the
amount of $25,000 is appropriate. This accounts for the fact that part of Plaintiff’s efforts were
spent pursing ultimately unsuccessful claims, and $25,000 is a reasonable amount of attorneys’
fees for the claims Plaintiff did prevail on.

IT IS ORDERED awarding Plaintiff attorneys’ fees in the amount of $25,000.00.

IT IS FURTHER ORDERED awarding Plaintiff costs in the amount of $386.30.

With respect to the form of judgment, there is slight disagreement between the parties.
The court agrees with Defendant that the judgment should include dismissal of the claims on

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-010791

11/25/2020

Docket Code 023
Form V000A
Page 3

which Plaintiff did not prevail. The court has entered judgment in Plaintiff’s lodged form as
modified consistent with this ruling.

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.

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