Case Header

Maricopa County Superior Court Case CV2019-094307: public docket details, parties, minute entries, documents, and official source links for Jones Skelton & Hochuli P L C.

Case Number

CV2019-094307

County

Maricopa

Caption

Not captured

Filed

11/27/2018

Case Type

Civil

Judge

Valenzuela, Michael

Location

Southeast

Official Court Record

Official Court Record

Parties

Minute Entries

Clerk of the Superior Court

*** Electronically Filed ***

01/28/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

01/24/2020

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAVID J. PALMER
K. Tiero

Deputy

SYCAMORE HILLS ESTATES
HOMEOWNERS ASSOCIATION INC
MARK E CHADWICK

v.

JONES SKELTON & HOCHULI P L C, et al.
DONALD WILSON JR.

PIMA COUNTY SUPERIOR COURT
NO ADDRESS ON RECORD
JUDGE PALMER

ORAL ARGUMENT SET
MINUTE ENTRY

The Court is in receipt of the following:

 Defendant Jones Skelton & Hochuli’s Application for Attorney’s Fees.

Good cause appearing,

IT IS ORDERED setting Oral Argument on March 3, 2020 at 10:00 a.m. (30 minutes
allotted) in this division.

Oral argument is limited to 30 minutes, with the time divided equally between the parties.
Counsel and the parties, if representing themselves, are to appear in person before:

THE HONORABLE DAVID J. PALMER
Maricopa County Superior Court

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

01/24/2020

Docket Code 094
Form V000A
Page 2

Southeast Judicial District
222 E. Javelina Avenue
Courtroom 206
Mesa, Arizona 85210
(602) 372.3980

The parties/attorneys are advised that failure to appear for the hearing may result in
sanctions, including dismissal of the action per Rule 16(F), Arizona Rules of Civil Procedure.

The proceeding will take place in the Superior Court’s e-courtroom. A record of the
proceedings will be made digitally in lieu of a court reporter. Should you want an unofficial copy
of the proceedings, the parties or counsel may request a videotape or CD of the proceedings for a
$30.00 charge. If a CD or videotape is requested, please obtain a form from the courtroom clerk
or 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. Should an official transcript be required, you may request that the court prepare it. The
party ordering the transcript must pay for it. To request a transcript, call (602) 506.7100 and
provide the date of the proceeding, the case number, the case caption, if the transcript is for an
appeal, and your name, address, and telephone number.

With this technology, a court reporter likely is not required and the parties are
encouraged to experience the court's video recording system before requesting 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.

PLEASE NOTE: This division requires that all motions, responses, replies and other
Court-requested filings in this case must be submitted individually. Counsel shall not combine
any motion with a responsive pleading. All motions are to be filed separately and designated as
such. No pleadings will be accepted if filed in combination with another.

Clerk of the Superior Court

*** Electronically Filed ***

01/31/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

01/30/2020

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAVID J. PALMER
K. Tiero

Deputy

SYCAMORE HILLS ESTATES
HOMEOWNERS ASSOCIATION INC
MARK E CHADWICK

v.

JONES SKELTON & HOCHULI P L C, et al.
DONALD WILSON JR.

PIMA COUNTY SUPERIOR COURT
NO ADDRESS ON RECORD
ALTERNATIVE DISPUTE
RESOLUTION - CCC
JUDGE PALMER

ORDER ENTERED BY THE COURT
MINUTE ENTRY

Pursuant to the parties’ joint Scheduling Order filed by the Court on January 30, 2020,

IT IS ORDERED that the parties shall participate in a mandatory settlement conference.
This case is referred to the Court’s Alternative Dispute Resolution for the appointment of a judge
pro tempore to conduct a settlement conference. Counsel and/or the parties will receive a minute
entry from ADR appointing the judge pro tempore. Counsel and any “pro per” parties shall 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 30, 2020. The Office of Alternative Dispute Resolution will not do the scheduling of the
settlement conference, so please do not contact that office.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

01/30/2020

Docket Code 023
Form V000A
Page 2

All counsel and their clients, or non-lawyer representatives who have full and
complete authority to settle the case, shall personally appear and participate in good faith in
the settlement conference. Sanctions may be imposed for failure to participate.

Clerk of the Superior Court

*** Electronically Filed ***

02/12/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

02/07/2020

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAVID J. PALMER
K. Tiero

Deputy

SYCAMORE HILLS ESTATES
HOMEOWNERS ASSOCIATION INC
MARK E CHADWICK

v.

JONES SKELTON & HOCHULI P L C, et al.
DONALD WILSON JR.

PIMA COUNTY SUPERIOR COURT
NO ADDRESS ON RECORD
JUDGE PALMER

STATUS CONFERENCE SET
MINUTE ENTRY

On the Court’s own Motion,

IT IS ORDERED setting Status Conference on February 13, 2020 at 9:30 a.m. (15
minutes allotted) regarding discovery dispute. Counsel and the parties, if representing
themselves, are to appear in person before:

THE HONORABLE DAVID J. PALMER
Maricopa County Superior Court
Southeast Judicial District
222 E. Javelina Avenue
Courtroom 206
Mesa, Arizona 85210
(602) 372.3980

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

02/07/2020

Docket Code 028
Form V000A
Page 2

The proceeding will take place in the Superior Court’s e-courtroom. A record of the
proceedings will be made digitally in lieu of a court reporter. Should you want an unofficial copy
of the proceedings, the parties or counsel may request a videotape or CD of the proceedings for a
$30.00 charge. If a CD or videotape is requested, please obtain a form from the courtroom clerk
or 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. Should an official transcript be required, you may request that the court prepare it. The
party ordering the transcript must pay for it. To request a transcript, call (602) 506.7100 and
provide the date of the proceeding, the case number, the case caption, if the transcript is for an
appeal, and your name, address, and telephone number.

With this technology, a court reporter is likely not required and the parties are
encouraged to experience the court's video recording system before requesting 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.

PLEASE NOTE: This division requires that all motions, responses, replies and other
Court-requested filings in this case must be submitted individually. Counsel shall not combine
any motion with a responsive pleading. All motions are to be filed separately and designated as
such. No pleadings will be accepted if filed in combination with another.

Clerk of the Superior Court

*** Electronically Filed ***

03/04/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

03/03/2020

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAVID J. PALMER
T. Haaser

Deputy

SYCAMORE HILLS ESTATES
HOMEOWNERS ASSOCIATION INC
MARK E CHADWICK

v.

JONES SKELTON & HOCHULI P L C, et al.
DONALD WILSON JR.

PIMA COUNTY SUPERIOR COURT
NO ADDRESS ON RECORD
JUDGE PALMER

MATTER UNDER ADVISEMENT
MINUTE ENTRY

Courtroom – 206 - SEA

9:58 a.m. This is the time set for Oral Argument regarding discovery issues and attorney
fees. Counsel, Mark Chadwick, is present on behalf of the Plaintiff Sycamore Hills Estates
Homeowners Association Inc. Counsel, Jessica Kokal and co-counsel Danielle Chronister for
Donald Wilson are present on behalf of the Defendants, Jones, Skelton & Hochuli P.LC., and
Diana Elston. No one else appears.

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

Arguments are heard and matters are discussed as set forth on the record.

Based upon the matters presented herein,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

03/03/2020

Docket Code 020
Form V000A
Page 2

IT IS ORDERED taking this matter under advisement.

10:21 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

04/10/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

04/09/2020

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAVID J. PALMER
K. Tiero

Deputy

SYCAMORE HILLS ESTATES
HOMEOWNERS ASSOCIATION INC
MARK E CHADWICK

v.

JONES SKELTON & HOCHULI P L C, et al.
DONALD WILSON JR.

PIMA COUNTY SUPERIOR COURT
NO ADDRESS ON RECORD
JUDGE PALMER

UNDER ADVISEMENT RULING
MINUTE ENTRY

This Court convened oral argument in this matter on March 3, 2020 with respect to two
issues; (1) Whether communications between Plaintiff Sycamore Hills Estates Homeowners
Association, Inc. (“Sycamore Hills”) and its newly retained legal counsel were subject to the
attorney-client privilege and are thus non-discoverable; and (2), whether Defendants should be
awarded its attorney’s fees and costs pursuant to A.R.S. 12-341.01, with respect to this Court’s
December 11, 2019 ruling granting Defendant’s Jones Skelton and Hochuli, and Diana J. Elston’s
(“collectively Jones Skelton”) Motion for Summary Judgment with respect to Count 3 of its July
24, 2019 Motion for Summary Judgment Re: Breach of Contract.

Having considered the written pleadings of the parties, the arguments made and authorities
cited therein, and oral arguments of the parties, the Court makes the following findings and orders:

DISCOVERY DISPUTE

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

04/09/2020

Docket Code 926
Form V000A
Page 2

As noted below, Jones Skelton through one of its attorneys Diana Elston, represented
Sycamore Hills, in its negotiation of a settlement of a legal dispute with a disgruntled homeowner,
which was brought in case No. C20154533, Zablotny v. Sycamore Hills Estates Homeowner’s
Association in Pima County Superior Court.

Sycamore Hills filed the complaint in this matter, urging that Jones Skelton (1) acted
negligently, and in breaches of (2) a fiduciary duty, and (3) a contract with Sycamore Hills in its
negotiation of the terms of a settlement agreement in that previous lawsuit.

Before the ultimate settlement of that lawsuit, Sycamore Hills subsequently retained the
Tucson law firm of Goldschmidt Shupe, who took over the final stages of negotiations and
completion of that settlement on or about March 13, 2017.

Sycamore Hills originally filed this lawsuit against Jones Skelton in Pima County Superior
Court as Case No. C20185762 on November 27, 2018. Venue in the matter was changed to
Maricopa County Superior Court on or about July 12, 2019.

Jones Skelton has filed a Notice of Goldschmidt Shupe being a Non-Party at Fault in this
matter.

Defendants seek discovery related to this dispute from Goldschmidt Shupe. Plaintiff
objected, first on the grounds of Attorney-Client Privilege. The parties then purportedly agreed to
limit such discovery to the time period beginning on November 29, 2016 and ending on March 15,
2017, which was approximately a week after signed off on the Settlement Agreement at issue.
Plaintiff further argues that the stipulated time period is binding as to the scope of any discovery
to be provided to Defendant by Plaintiff and Goldschmidt Shupe.

Defendants argue that after that time period expired, they became aware of additional
communications between Plaintiff and Goldschmidt Shupe regarding the Settlement Agreement
as they were in receipt of Minutes from an HOA Board Meeting dated March 18, 2017 that
indicated such. They argue that any such information is relevant, regardless of when it occurred.

Defendants further argue that by filing this lawsuit, Plaintiff has placed all such
communications at issue, and that such information is therefore not shielded by the Attorney-Client
Privilege.

Defendants argue that the court’s ruling in Elia v. Pifer, 194 Ariz. 74, 977 P.2d 796 (App.
1998) is applicable to this situation. In an analogous factual pattern, the Elia court held that a party
waives such a privilege when it:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

04/09/2020

Docket Code 926
Form V000A
Page 3

(1) asserts the privilege by virtue of an affirmative act, such as filing a lawsuit;

(2) that through such an affirmative act, such as the filing of a lawsuit as was done here,
the asserting party puts the protected information at issue making it relevant to the case;
and

(3) application of the privilege would have denied the opposing party access to information
vital to his defense.

See, Id. at 82, 977 P.2d at 985.

In the instant case, Plaintiff retained the Goldschmidt Shupe firm, to discuss the formation
and ramifications of the proposed settlement agreement that had largely resulted from Plaintiff
working with the Defendants. Goldschmidt Shupe was retained to finish the negotiations of the
settlement agreement. Plaintiff argues that Jones Skelton performed in sub-standard fashion with
the settlement agreement not containing the terms and result they desired. Thus Plaintiff’s
discussions regarding that settlement with Goldschmidt are clearly relevant and vital to its mal-
practice claims against Defendant Jones Skelton. Therefore,

THE COURT FINDS, pursuant to the holding in Elia, that any right to invoke the Attorney-
Client Privilege has been waived by Plaintiff as to any communications with Goldschmidt Shupe
related to the underlying litigation, settlement negotiations or Settlement Agreement between
Plaintiff Sycamore Hills and Goldschmidt regarding the Settlement Agreement.

THE COURT FURTHER FINDS that as such communications are not covered by the
attorney-client privilege, and are thus discoverable by Defendants.

IT IS THEREFORE ORDERED that Goldschmidt Shupe and Plaintiff Sycamore Hills are
to comply with the second subpoena issued by Defendants, dated on or about December 10, 2019,
and disclose such information to Defendants as soon as is reasonably possible.

ATTORNEY’S FEES PURSUANT TO DECEMBER 11, 2019 RULING

In the Complaint in this matter, Sycamore Hills claimed that Defendant Jones Skelton was
(1) negligent and committed malpractice; (2) breached its fiduciary duty to Sycamore Hills, and
(3) breached a contract it had with Sycamore Hills regarding legal representation it undertook on
behalf of Sycamore Hills. It specifically argues that Jones Skelton entered into a settlement
agreement without appropriate approval from Sycamore’s Board of Directors. It specifically
alleged that Jones Skelton failed to abide by the terms of certain “oral directions” given by Board

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

04/09/2020

Docket Code 926
Form V000A
Page 4

Members and therefore a claim sounding in contract was appropriately before the Court in this
matter, opening the door to an award of attorney’s fees.

This Court disagreed in its December 11, 2019 order, finding primarily based on the
Court’s holding in Keonjian v. Olcott, 216 Ariz. 563, 169 P.3d 927 (App. 2007), that Plaintiff’s
claim against Jones Skelton was not the result of a “failure to perform,” but rather a failure to
allegedly perform according to the client’s instructions. This Court’s ruling was that under
Keonjian, such a scenario does not constitute a non-performance of a specific promise necessary
to a breach of contract claim, but rather sounds in tort.

Both parties agree that given the nature of the Court’s resolution of the contract question,
that under 12-341.01, this court has discretion to award attorney’s fees and costs to Defendants
based on the resolution of that contract question.

This is an action that was premised in part out of a purported contract, which entitles
Defendant Jones Skelton, under these facts, to apply for an award of attorney’s fees. Lacer v.
Navajo County, 141 Ariz. 392, 394, 687 P.2d 400, 402 (App. 1984) (“A party is entitled to an
award of its attorney's fees under A.R.S. §12–341.01 if judgment in its favor is based upon the
absence of the contract sued upon by the adverse party”).

Given the procedural and substantive facts as presented in this matter, and within the
Court’s discretion,

THE COURT FINDS that an award of Attorney’s fees to be paid by Sycamore Hills to
Jones Skelton is appropriate.

IT IS ORDERED that not later than 20 calendar days after the entry of this order, Jones
Skelton may submit an application for an award of attorney’s fees and statement of costs. If an
application or statement is submitted that Sycamore Hills wishes to oppose, a response must be
filed not later than 20 calendar days after service. Jones Skelton is not permitted to file a reply
unless requested to do so by the court.

Clerk of the Superior Court

*** Electronically Filed ***

04/28/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

04/27/2020

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAVID J. PALMER
K. Tiero

Deputy

SYCAMORE HILLS ESTATES
HOMEOWNERS ASSOCIATION INC
MARK E CHADWICK

v.

JONES SKELTON & HOCHULI P L C, et al.
DONALD WILSON JR.

PIMA COUNTY SUPERIOR COURT
NO ADDRESS ON RECORD
ALTERNATIVE DISPUTE
RESOLUTION - CCC
JUDGE PALMER

ORDER ENTERED BY THE COURT
MINUTE ENTRY

Pursuant to the Order Extending Deadlines filed by the Court on April 27, 2020,

IT IS ORDERED extending the date for completion of the ADR settlement conference
from August 31, 2020, to October 30, 2020.

All counsel and their clients, or non-lawyer representatives who have full and
complete authority to settle the case, shall personally appear and participate in good faith in
the settlement conference. Sanctions may be imposed for failure to participate.

Clerk of the Superior Court

*** Electronically Filed ***

06/12/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

06/11/2020

Docket Code 375
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAVID J. PALMER
V. Felix

Deputy

SYCAMORE HILLS ESTATES
HOMEOWNERS ASSOCIATION INC
MARK E CHADWICK

v.

JONES SKELTON & HOCHULI P L C, et al.
DONALD WILSON JR.

PIMA COUNTY SUPERIOR COURT
NO ADDRESS ON RECORD
COURT ADMIN-CIVIL-ARB DESK
JUDGE PALMER

MINUTE ENTRY

The Court has received Defendant’s Notice of Settlement filed on June 10, 2020.

IT IS ORDERED vacating the Pre-Trial Trial Setting Conference scheduled for January
11, 2021, at 10:45 a.m. before Judge David J. Palmer.

IT IS FURTHER ORDERED placing this matter on the Dismissal Calendar, for dismissal
without further notice on August 11, 2020, unless prior thereto a proper judgment is entered or
filed or a stipulation for dismissal is presented. Motions to continue on the dismissal calendar
must demonstrate good cause and be granted prior to the dismissal date.

Clerk of the Superior Court

*** Filed ***

07/06/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

06/30/2020

Docket Code 042
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAVID J. PALMER
K. Tiero

Deputy

SYCAMORE HILLS ESTATES
HOMEOWNERS ASSOCIATION INC
MARK E CHADWICK

v.

JONES SKELTON & HOCHULI P L C, et al.
DONALD WILSON JR.

PIMA COUNTY SUPERIOR COURT
NO ADDRESS ON RECORD
COURT ADMIN-CIVIL-ARB DESK
JUDGE PALMER

CASE DISMISSED
MINUTE ENTRY

The Court has received the Stipulation to Dismiss filed June 28, 2020.

IT IS ORDERED dismissing this matter with prejudice, as to all parties and claims.

DATED this 30th day of June 2020.

/S/ HONORABLE DAVID J. PALMER
______________________________________________________________
HONORABLE DAVID J. PALMER
JUDICIAL OFFICER OF THE SUPERIOR COURT

Clerk of the Superior Court

*** Electronically Filed ***

11/22/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

11/21/2019

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAVID J. PALMER
K. Tiero

Deputy

SYCAMORE HILLS ESTATES
HOMEOWNERS ASSOCIATION INC
MARK E CHADWICK

v.

JONES SKELTON & HOCHULI P L C, et al.
DONALD WILSON JR.

PIMA COUNTY SUPERIOR COURT
NO ADDRESS ON RECORD
JUDGE PALMER

ORAL ARGUMENT SET
MINUTE ENTRY

The Court is in receipt of the following:

 Defendants’ Motion for Summary Judgment Re: Breach of Contract.

Good cause appearing,

IT IS ORDERED setting Oral Argument on December 10, 2019 at 9:00 a.m. (30
minutes allotted) in this division.

Oral argument is limited to 30 minutes, with the time divided equally between the parties.
Counsel and the parties, if representing themselves, are to appear in person before:

THE HONORABLE DAVID J. PALMER
Maricopa County Superior Court

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

11/21/2019

Docket Code 094
Form V000A
Page 2

Southeast Judicial District
222 E. Javelina Avenue
Courtroom 206
Mesa, Arizona 85210
(602) 372.3980

The parties/attorneys are advised that failure to appear for the hearing may result in
sanctions, including dismissal of the action per Rule 16(F), Arizona Rules of Civil Procedure.

The proceeding will take place in the Superior Court’s e-courtroom. A record of the
proceedings will be made digitally in lieu of a court reporter. Should you want an unofficial copy
of the proceedings, the parties or counsel may request a videotape or CD of the proceedings for a
$30.00 charge. If a CD or videotape is requested, please obtain a form from the courtroom clerk
or 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. Should an official transcript be required, you may request that the court prepare it. The
party ordering the transcript must pay for it. To request a transcript, call (602) 506.7100 and
provide the date of the proceeding, the case number, the case caption, if the transcript is for an
appeal, and your name, address, and telephone number.

With this technology, a court reporter likely is not required and the parties are
encouraged to experience the court's video recording system before requesting 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.

PLEASE NOTE: This division requires that all motions, responses, replies and other
Court-requested filings in this case must be submitted individually. Counsel shall not combine
any motion with a responsive pleading. All motions are to be filed separately and designated as
such. No pleadings will be accepted if filed in combination with another.

Clerk of the Superior Court

*** Electronically Filed ***

12/10/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

12/09/2019

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAVID J. PALMER
K. Tiero

Deputy

SYCAMORE HILLS ESTATES
HOMEOWNERS ASSOCIATION INC
MARK E CHADWICK

v.

JONES SKELTON & HOCHULI P L C, et al.
DONALD WILSON JR.

PIMA COUNTY SUPERIOR COURT
NO ADDRESS ON RECORD
JUDGE PALMER

MINUTE ENTRY

Due to clerical error,

IT IS ORDERED, nunc pro tunc, correcting the minute entry dated November 21, 2019, to
correct the fourth paragraph on page 1 to reflect:

“IT IS ORDERED setting Oral Argument on December 10, 2019 at 10:00 a.m.
(30 minutes allotted) in this division.”

The balance of the Court’s November 21, 2019 minute entry remains unchanged.

Clerk of the Superior Court

*** Electronically Filed ***

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

CV 2019-094307

12/10/2019

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAVID J. PALMER
K. Tiero

Deputy

SYCAMORE HILLS ESTATES
HOMEOWNERS ASSOCIATION INC
MARK E CHADWICK

v.

JONES SKELTON & HOCHULI P L C, et al.
DONALD WILSON JR.

PIMA COUNTY SUPERIOR COURT
NO ADDRESS ON RECORD
JESSICA J KOKAL
JUDGE PALMER

MATTER UNDER ADVISEMENT
MINUTE ENTRY

Courtroom – 206 - SEA

9:59 a.m. This is the time set for Oral Argument on Defendants’ Motion for Partial
Summary Judgment. Counsel, Mark Chadwick, is present on behalf of the Plaintiff. Counsel,
Jessica Kokal, is present on behalf of the Defendants.

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

Argument is held.

IT IS ORDERED taking this matter under advisement.

10:17 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

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

CV 2019-094307

12/11/2019

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DAVID J. PALMER
K. Tiero

Deputy

SYCAMORE HILLS ESTATES
HOMEOWNERS ASSOCIATION INC
MARK E CHADWICK

v.

JONES SKELTON & HOCHULI P L C, et al.
DONALD WILSON JR.

PIMA COUNTY SUPERIOR COURT
NO ADDRESS ON RECORD
JUDGE PALMER

UNDER ADVISEMENT RULING
MINUTE ENTRY

The Court convened oral argument on December 10, 2019 on Defendant Jones Skelton and
Hochuli’s (“Jones Skelton”) Motion for Summary Judgment Re: Breach of Contract, which was
filed on July 24, 2019. Plaintiff Sycamore Hills Estates Homeowners Association, Inc.,
(“Sycamore Hills”), filed its Response on September 13, 2019, to which Jones Skelton filed its
Reply on October 3, 2019.

Their parties also each filed Supporting Statements of Facts in conjunction with the above-
listed pleadings.

In its Complaint, Sycamore Hills alleged three counts: Count 1: Negligence/Legal
Malpractice; Count 2: Breach of Fiduciary Duty; Count 3: Breach of Contract.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

12/11/2019

Docket Code 926
Form V000A
Page 2

The Breach of Contract claim in Count 3 names Defendant Jones Skelton, only.
Defendant’s Motion for Summary Judgment pertains only to Count 3, and only to Defendant Jones
Skelton, which is a Phoenix law firm.

The underlying issue which gives rise to this litigation involves Sycamore Hills retaining
Jones Skelton to represent it in a previous lawsuit involving a homeowner within the Sycamore
Hills HOA, who alleged the wrongful and/or unauthorized expenditure of Association funds on a
certain property improvement project.

The claim made in Count 3 alleges that Jones Skelton breached an “oral” contract or
contracts outside the written retainer agreement between Sycamore Hills and Jones Skelton. Those
alleged contracts pertained to their legal representation of that HOA within that dispute, and more
particularly in regard to its negotiation of the settlement of the dispute on behalf of Sycamore Hills.

Plaintiff argues that oral directions that were given to the Jones Skelton attorney handling
the negotiation of the settlement that resulted in the settlement. Plaintiff argues that since these
oral directions were not followed by Jones Skelton, that a series of “mini-contracts” were breached,
thus forming the basis for its “breach of contract” claim in Count 3. Plaintiff argues that the
settlement was unsatisfactory as it was not done according to the terms of the alleged oral contracts.

Jones Skelton argues that pursuant to binding case law that is clearly on point with the
issues here, that “claims for professional malpractice are generally tort claims.” Keonjian v. Olcott,
216 Ariz.563, 566, 169 P. 3d 927, 930 (App. 2007).

Arizona case law addressing this issue, including but not limited to Keonjian, essentially
states that for a case of alleged professional malpractice to sound in anything other than tort, there
must be an established failure to perform.

The key word is ‘nonperformance,’ and the distinction to be drawn is that between
nonfeasance and malfeasance. The fact that an attorney may have carried out a task
in a negligent manner, in violation of the duty imposed on him by law to represent
his client in accordance with the applicable standard of care, does not change the
gravamen of the action from tort to contract.

Id., quoting Collins v. Miller & Miller, Ltd., 189 Ariz. 387, 395, 943 P. 2d 747, 755 (App.
1996).

Moreover, as was noted in the Keonjian court’s footnote 1, the court in Collins
declined to hold that “a failure to follow a client’s instructions, issued subsequent to and

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2019-094307

12/11/2019

Docket Code 926
Form V000A
Page 3

separate from a creation of the retainer contract, constitutes a breach of contract.” Collins
at 395-96, 943 P.2d at 755-56.

Therefore, as was stated by the Keonjian court, “regardless of how Keonjian attempts to
frame it, the essence of her claim is that [the lawyer] performed negligently, not that he failed to
perform at all. Thus, the underlying facts do not entail the nonperformance of a specific promise
necessary to a breach of a contract claim.” Keonjian at 931.

This Court finds the facts and holding in Keonjian to be squarely on point with the instant
facts. The Court is unpersuaded by the argument that oral directions of communications given
from the Settlement Committee of the Sycamore Hills HOA Board of Directors results in a new
contract between the parties here, separate and apart from the retainer agreement signed by the
parties.

The Court thus finds that with respect to issues raised in Jones Skelton’s Motion that there
are no genuine issues of material fact with respect to Count 3 of the Complaint.

The Court further finds that pursuant to Rule 56, Ariz. R. Civ. P., Defendant Jones Skelton
is entitled to Summary Judgment as a matter of law relative to Count 3 of the Complaint.

IT IS ORDERED that not later than 20 calendar days after the entry of this order, Defendant
is to submit a proposed form of judgment, which may incorporate by reference what is said here
along with Rule 54(b) language.

Documents