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Maricopa County Superior Court Case CV2020-003577: public docket details, parties, minute entries, documents, and official source links for Foothills Club West Community Association.

Case Number

CV2020-003577

County

Maricopa

Caption

Not captured

Filed

3/16/2020

Case Type

Civil

Judge

Herrod, Michael

Location

Downtown

Official Court Record

Official Court Record

Parties

Minute Entries

Clerk of the Superior Court

*** Electronically Filed ***

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

CV 2020-003577

01/22/2021

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE ANDREW J. RUSSELL
S. Motzer

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
CARLOTTA L TURMAN

COMM. RUSSELL

MINUTE ENTRY

East Court Building – Courtroom 911

9:10 a.m. This is the time set for virtual Oral Argument regarding Defendants’ August 19,
2020 Motion for Partial Summary Judgment and Plaintiff’s November 5, 2020 Cross-Motion for
Summary Judgment. Plaintiff is represented by counsel, Daniel Slavin and Francis J. Slavin.
Defendants are represented by counsel, Carlotta L. Turman, Jeff Soloway, and Tim Barnes.
Defendant Martha Neese is also present.

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

Argument is presented to the Court.

Counsel for Defendants presents argument to the Court.

Counsel for Plaintiff presents argument to the Court.

Based on the foregoing,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

01/22/2021

Docket Code 020
Form V000A
Page 2

IT IS ORDERED taking these matters under advisement.

9:58 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

03/24/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

03/23/2021

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE ANDREW J. RUSSELL
S. Motzer

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
CARLOTTA L TURMAN

COMM. RUSSELL

UNDER ADVISEMENT RULING

Pending before the Court are the following items:

 Defendant’s Motion for Partial Summary Judgment, filed August 19, 2020
o Plaintiff’s Response, filed November 5, 2020
o Defendant’s Reply, filed December 11, 2020
 Plaintiff’s Cross-Motion for Summary Judgment, filed November 5, 2020
o Defendant’s Response, filed December 11, 2020
o Plaintiff’s Reply, filed January 11, 2021.

The Court has reviewed and considered these filings, as well as the parties’
respective statements of fact, the arguments made by counsel at the January 22, 2021 Oral
Argument, and the record in this matter.

In his October 30, 2020 Ruling, this Court’s predecessor delineated the facts that
gave rise to this litigation:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

03/23/2021

Docket Code 926
Form V000A
Page 2

In 1989, UDC-Foothills Limited Partnership (“UDC FLP”) caused to be
recorded a Declaration of Covenants, Conditions and Restrictions (the
“Master Declaration”) for a master planned community located south of
South Mountain Park in Phoenix. Joint Pre-Hearing Statement (“JPS”) at p.
2 ¶¶ 1-2. See also Exhibit 1. In the Master Declaration, UDC FLP identifies
itself as “the owner … and the master developer of” real property to be
developed “as a planned area development” known as “Foothills Club West.”
Exhibit 1 at p. MCR 7 of 85. The name of the association formed pursuant
to the Master Declaration is the “Foothills Club West Community
Association.” JPS at p. 2 ¶¶ 3-4. See also Exhibit 1 at pp. MCR 7 of 85,
MCR 9 of 85, MCR 10 of 85.

Paragraph 11.2 of the Master Declaration provides that, with limited
exceptions, it cannot be amended without the approval of 75% of Foothills
Club West lot owners. Exhibit 1 at p. MCR 59 of 85, § 11.2 (“Except as
otherwise provided herein…this Declaration may be amended only by the
affirmative vote…or written consent of Members owning at least seventy-
five percent (75%) of all Lots.”).

In 1993, UDC Homes, Inc., (“UDC Homes”) and its wholly-owned
subsidiary, REA Acquisition Corporation (“REA”), caused to be recorded a
Declaration of Covenants, Conditions and Restrictions (the “Golf Course
Declaration”) for the Foothills Club West Golf Course (the “Golf Course”).
JPS at p. 2 ¶¶ 5, 8. See also Exhibit 2. At the time of the recordation of the
Golf Course Declaration, REA owned the property described therein as the
“Golf Course Property.” JPS at p. 2 ¶ 6. UDC Homes was the Declarant
under the Golf Course Declaration. Exhibit 2 at p. MCR 2 of 57.

The recitals to the Golf Course Declaration provide in part that the owner,
REA, and the Declarant, UDC Homes, believe

that the development of Foothills Club West for residential
purposes will be enhanced by the development, operation, and
maintenance of the Golf Course Property as a golf course and
intend that the Golf Course Property be known as developed as
Foothills Club West Golf Course.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

03/23/2021

Docket Code 926
Form V000A
Page 3

Exhibit 2 at p. MCR 2 of 57. The Golf Course Declaration contains the
following “use restriction” provision:

1.1 Golf Course Usage. At all times on or prior to December
31, 2008, the Golf Course Property and all portions thereof
shall be used exclusively for the operation of a public golf
course and driving range, recreational facilities related thereto,
a golf pro shop, and a clubhouse facility; the use of the Golf
Course Property other than for said purposes during such time
shall be prohibited. At all times after December 31, 2008, the
Golf Course Property and all portions thereof shall be used
exclusively for the operation of a golf course and driving range,
recreational facilities related thereto, a golf pro shop, and a
clubhouse facility; the use of the Golf Course Property other
than for said purposes during such time shall be prohibited.

Exhibit 2 at p. MCR 3 of 57. The Golf Course Declaration goes on to
provide,

4.1 Maintenance of Improvements. The Golf Course Property
and the improvements thereto shall be maintained in a first
class manner and at a level equal to or exceeding the
maintenance level of other upscale, high-end, daily fee, public
golf courses in Maricopa County, Arizona.

Exhibit 2 at p. MCR 5 of 57.

Section 6.2 of the Golf Course Declaration provides in part that the Declarant
“shall be entitled to release or cancel all or any portion of the Declaration
with respect to all or any portion of the Golf Course Property at any time
without the consent or approval of any other party.” Exhibit 2 at p. MCR 8
of 57, § 6.2.

In September 2010, Defendant Foothills Club West Community Association
(the “Association”), through its then-President, Paul Moroz, signed a
document entitled “Assignment of Declarant Rights,” which was
subsequently recorded. See Exhibit 8. This document identifies Shea Homes

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

03/23/2021

Docket Code 926
Form V000A
Page 4

Limited Partnership (“Shea Homes”) as the successor-in-interest to the
original Declarant, UDC Homes, and states that Shea Homes “desires to
assign to the Association, and the Association desires to accept, all of the
rights and obligations of the Declarant” under the Golf Course Declaration.
Id. at p. FCWREV000315. The document concludes that, “[b]y its execution
hereof, the Association accepts all [such] rights and obligations.” Id.

In October 2018, the Association, through its then (and current) President,
Michael Hinz, signed a document entitled “First Amendment to Declaration
of Covenants, Conditions and Restrictions for Foothills Club West Golf
Course” (the “First Amendment”), which was subsequently recorded. See
Exhibit 9. The First Amendment purports to amend the Golf Course
Declaration by adding a new paragraph (“New Paragraph 6.2”) which
establishes a mechanism for a vote of the Association’s members to amend
Paragraph 1.1 of the Golf Course Declaration to authorize a change, to a non-
golf use, of the Golf Course Property. Specifically, the First Amendment
reads in pertinent part:

Now, therefore, [the] Association amends the [Golf Course
Declaration] as follows:

1.
Article 6, paragraph 6.2 shall be amended to add the
following new second paragraph therein:

In the event of any proposed amendment to this
Declaration to change, modify or amend Article 1, paragraph
1.1 to allow the use of the Golf Course Property to be other
than used exclusively for the operation of a public golf course
and driving range, recreational facilities related thereto, a golf
pro shop and a clubhouse facility (including a restaurant), no
such proposed change, modification or amendment of article 1,
paragraph 1.1 shall be effective unless each of the following
two conditions are met. First, a majority of the Association’s
Board of Directors who are physically present at a meeting of
the Board of Directors for such purpose vote to approve the
amendment of Article 1, paragraph 1.1 to allow the use of the
Golf Course Property to be other than used exclusively for the

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

03/23/2021

Docket Code 926
Form V000A
Page 5

operation of a public golf course and driving range,
recreational facilities related thereto, a golf pro shop and a
clubhouse facility (including a restaurant). In the event the first
condition is met, second, at an annual meeting or duly noticed
special meeting of the Association’s Owners (as defined in
Article 1, paragraph 1.37 of the [Master Declaration]) in which
thirty-one percent (31%) of the total Association Owners shall
constitute a quorum, fifty percent (50%) of the Owners, plus
one additional Owner, vote, in accordance with the provisions
of Article 3 of the [Master Declaration], to allow the use of the
Golf Course Property to be other than used exclusively for the
operation of a public golf course and driving range,
recreational facilities related thereto, a golf pro shop and a
clubhouse facility (including a restaurant).

Exhibit 9 at p. MCR 1 of 27.

Both sides now seek summary judgment. Specifically, Defendant seeks summary
judgment as to whether Defendant had the right to become the “Declarant” under the Golf
Course Declaration. Defendant claims the Golf Course Declaration itself provides that the
Declarant can transfer its rights, and “further provides that the declarant and its successors
and assigns under the Golf Course Declaration have standing and power to enforce the
provisions of the Golf Course Declaration.” See Motion for Partial Summary Judgment,
page 4, lines 5-7. Defendant then argues that it validly accepted transfer of the Declarant
rights, and thus now acts as the Declarant. See id., § C.

Plaintiff responds that, even if the Golf Course Declaration allows transfer of the
Declarant’s rights, the CC&Rs governing Defendant (the “Master CC&Rs”) do not allow
Defendant to accept those rights. Becoming Declarant of the Golf Course property equates
with annexing additional property, which according to Plaintiff requires a member vote,
not just a Board vote. Plaintiff further argues that even if Defendant had the right to become
Declarant of the Golf Course property, the steps toward attaining that role all occurred
during executive session, which violates Arizona law. This Court’s predecessor focused
on this argument in the October 30, 2020 Minute Entry.

Summary judgment is appropriate where no genuine issues of material fact exist and
the movant is entitled to judgment as a matter of law. See Ariz. R. Civ. P. 56(a). When

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

03/23/2021

Docket Code 926
Form V000A
Page 6

ruling on a request for summary judgment, the Court must view the evidence, and all
reasonable inferences that such evidence will permit, in the way most favorable to the party
opposing summary judgment, and that Court must assume the truth of that party’s
allegations. See Esplendido Apartments v. Olsson, 144 Ariz. 355, 361, 697 P.2d 1105, 1111
(App. 1985); Airfreight Express Ltd v. Evergreen Air Center, Inc., 215 Ariz. 103, 106, ¶ 2,
158 P.3d 232, 235 (App. 2008).

Defendant Improperly Annexed the Golf Course Property
Whether Defendant can validly accept the transfer of the Declarant’s rights under
the Golf Course Declaration and become the Declarant thereunder involves a two-part
analysis. First, does the Golf Course Declaration allow the original Declarant to transfer
its rights? Second, assuming that answer is “yes,” can Defendant legally accept that
transfer? Put another way – do the Master CC&Rs authorize Defendant to take on this new
role over this new property?

The Golf Course Declaration clearly answers the first question in the affirmative.
Section 6.8 of that Declaration provides

Any or all of the rights of the Declarant may be transferred to other persons
or entities, provided that that transfer shall not reduce an obligation nor
enlarge a right beyond that contained herein, and provided, further, that no
such transfer shall be effective unless it is in a written instrument signed by
the Declarant and duly recorded.

See Golf Course Declaration, § 6.8. Several other provisions of the Golf Course
Declaration make reference to the Declarant and “its successors and assigns.” See Golf
Course Declaration, §§ 2.1, 6.6. Thus, the drafters of the Golf Course Declaration
anticipated that the original Declarant could assign its interest to another person/entity.

Plaintiff focuses its argument on the second question. Per Plaintiff, when Defendant
accepted transfer of the Declarant’s rights under the Golf Course Declaration, Defendant
effectively annexed additional property. The Master CC&Rs include provisions for such
annexations, but, according to Plaintiff, Defendant failed to abide by those provisions in
accepting the Declarant’s rights under the Golf Course Declaration.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

03/23/2021

Docket Code 926
Form V000A
Page 7

Defendant counters that accepting the Declarant’s rights under the Golf Course
Declaration does not equate with annexing the actual Golf Course property into the
Association. See Defendant’s Reply in Support of Motion for Partial Summary Judgment
and Response to Plaintiff’s Cross-Motion for Summary Judgment, page 4, lines 4-6 (noting
“the Master Declaration does not contain language requiring annexation of the Golf Course
in order for the Association to accept declarant rights under the Golf Course Declaration”).
Even if one viewed such annexation as having occurred, the Master CC&Rs do not require
a member vote in order for Defendant to annex so-called “Annexable Property.”

The Court disagrees. While Defendant is correct in noting that nothing in Arizona
law or the Master CC&Rs expressly prohibits Defendant from becoming Declarant under
the Golf Course Declaration, doing so necessarily results in additional property coming
under Defendant’s control. The Golf Course, previously separate land controlled by a
separate entity, became part of the Association, under Defendant’s control. Indeed, that
was the whole point of the transfer – so Defendant could control and improve the Golf
Course property, rather than leaving it “as a barren piece of land.” See Defendant’s Reply,
page 3, liens 3-9. By accepting the Declarant’s rights under the Golf Course Declaration,
Defendant effectively brought additional property (the Golf Course) into the Association,
thereby annexing that property.

Several provisions of the Master CC&Rs provide avenues for Defendant to annex
property, but each has specific requirements to effectuate such annexation. Section 6.1 of
the Master CC&Rs allows Defendant to annex all or part of certain “Annexable Property”
(generally, property within five-miles of the community) without a member vote. There is
no dispute that the Golf Course falls within the boundaries of the defined “Annexable
Property.” However, by its express terms, § 6.1 only applies during the 20-year period
following recordation of the Master CC&Rs. That period expired before the events at issue
in this case, and as a result, the Court views the annex provisions of § 6.1 as inapplicable.

Section 6.2 also discusses annexation of property, but is limited to “additional
property not included with the Annexable Property.” Annexation under § 6.2 requires a
2/3 vote of the members. As noted, the Golf Course falls within the boundaries of the
“Annexable Property,” meaning § 6.2 would not apply to its annexation.

So how can Defendant annex the Golf Course (or other property within the
definition of “Annexable Property”) now that the aforementioned 20-year period has
ended? It appears that the only method would require amendment of the Master CC&Rs

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

03/23/2021

Docket Code 926
Form V000A
Page 8

themselves. Section 11.2 provides a method for such amendment, and expressly notes that
its procedures would be required for “addition or annexation of property to, or withdrawal
of property from, the Property, or addition or annexation of any property to, or withdrawal,
removal or deletion of any property from, the Common Area.” See Master CC&Rs, §
11.2.7. That provision includes a “carve out” for annexations permitted without member
approval under § 6.1, but as the Court found earlier, § 6.1 no longer applies.

Defendant notes that interpreting § 6.1 as only allowing annexation of the
Annexable Property during that 20-year period, while allowing annexation of other, more
distant properties at any time, makes no sense. Similarly, because amending the Master
CC&Rs requires a 75% member vote but annexing property under § 6.2 only requires a 2/3
member vote, requiring amendment of the Master CC&Rs to annex the Annexable Property
at this time is more difficult than annexing non-annexable property. The Court agrees that
this makes little sense, but the Court did not draft the Master CC&Rs. The most logical
interpretation is that the original Declarant under the CC&Rs intended to encourage
annexation of Annexable Property during the following 20 years. After that, any
annexation would require a member vote.

IT IS ORDERED denying Defendant’s Motion for Partial Summary Judgment.

Defendant’s Actions in Accepting Transfer of the Declarant’s Rights Violated
Arizona Law
Homeowners’ associations, like Defendant, are governed by their CC&Rs and by
various provisions of Arizona law. One of those provisions requires that “all meetings of
the members’ association and the board of directors, and any regularly scheduled
committee meetings, are open to all members of the association….” See A.R.S. § 33-
1804(A). A review of the statutes applicable to such associations (and, for that matter, to
governmental entities as well) makes clear that Arizona intends governmental and quasi-
governmental business to occur in public, not behind closed doors.

That said, the board may choose to hear certain types of matters in an “executive
session” closed to the public. Such closed sessions are limited, however, to issues
involving (a) legal advice from the association’s attorney, (b) litigation, (c) personal
information of an association member, (d) certain employment-related topics, and (e)
appeals of violations or fines (although an association member may request such discussion
occur in public). See A.R.S. § 33-1804(A)(1-5).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

03/23/2021

Docket Code 926
Form V000A
Page 9

There is no dispute that the actions taken by Defendant in becoming Declarant under
the Golf Course Declaration and in subsequently enacting amendments to that Declaration
occurred in executive session. Defendant argues that such actions could occur behind
closed doors because they involved obtaining legal advice from an attorney. “On final
resolution of any matter for which the board received legal advice . . . the board may
disclose information about that matter in an open meeting….” See A.R.S. § 33-1804(A)
(1). According to Defendant, the “‘final resolution’ involved taking action, including the
Board’s acceptance of the 2010 Assignment, and the Board’s execution of the First and
Fifth Amendments to the Golf Course Declaration.” See Defendant’s Reply, page 12, lines
14-16.

Under Defendant’s analysis, a board could vote on all issues in executive session,
provided the board had their lawyer present. This is obviously contrary to § 33-1804,
which limits those issues a board can consider in executive session. None of the authorized
subjects for executive sessions include voting or otherwise taking action. Rather, executive
sessions are only authorized for receiving legal advice, or discussing certain topics.
Arizona law seeks to maximize public involvement, and allowing votes or final action in
an executive session is directly contrary to that goal.

There are no genuine issues of material fact in dispute regarding Defendant’s actions
in accepting transfer of the Declarant’s rights under the Golf Course Declaration, or in
purportedly enacting amendments to that Declaration. Plaintiff is entitled to judgment as
a matter of law.

IT IS ORDERED granting Plaintiff’s Cross-Motion for Summary Judgment filed
November 5, 2020.

Clerk of the Superior Court

*** Filed ***

05/06/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

05/05/2021

Docket Code 049
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOAN M. SINCLAIR
S. Motzer

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
CARLOTTA L TURMAN

JUDGE SINCLAIR

MINUTE ENTRY

By minute entry filed on March 24, 2021, the Court granted the Plaintiff’s Cross-Motion
for Summary Judgment filed on November 5, 2020. Based on that determination, the Plaintiff
filed its Statement of Costs on April 13, 2021. The Plaintiff claims $7,446.47 in costs. The
Defendants filed their Objection to Plaintiff’s Statement of Costs on April 22, 2021 and the
Plaintiff then filed their Reply in Support of its Statement of Costs on April 29, 2021 (“Plaintiff’s
Reply”). By granting the Plaintiff’s Cross-Motion for Summary Judgment the case is entirely
resolved.

The Plaintiff requests costs for Westlaw charges; court filing charges; photocopy charges;
court reporter fees; transcript fees; certified copies; mailing costs; service of process fees; and
delivery fees. Plaintiff’s Statement of Costs, p.2. The Defendants ask the Court to limit its order
to taxable costs noted in A.R.S. Section 12-332 (officer and witness fees; depositions; referees;
certified copies; surety bond; other payments made due to an order or agreement of the parties).
The Defendants specifically object to photocopy charges, mailing costs and delivery fees and
argue that there is insufficient documentation of all the listed charges.

The Court agrees with the Plaintiff that the requested costs have been verified by counsel.
Rule 54(f) only requires that the request for costs be verified. There is nothing in the rule

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

05/05/2021

Docket Code 049
Form V000A
Page 2

requiring specific documentation. Ariz.R.Civ.P. Rule 54(f). The Plaintiff further argues that the
contract between the parties allows for costs and argues that this term includes all costs, not just
those allowed by statute. Exhibit A to Plaintiff’s Reply, CC&Rs Section 11.8.

While the Court has discretion to award costs, the Court is mindful that “[b]y enacting
that statute [A.R.S. Section 12-332], the legislature clearly defined which categories of litigation
expenses a prevailing party can recover from the opposing party.” Ahwatukee Custom Estates
Management Ass’n, Inc. v. Bach, 193 Ariz. 401, 402, 973 P.2d 106, 107 ⁋ 7(1999). “A party to a
civil action cannot recover its litigation expenses as costs without statutory authorization.” Reyes
v. Frank’s Service and Trucking, LLC, 235 Ariz. 605, 608, 334 P.3d 1264, 1267 ⁋ 6 (App.
2014)(quotation and citation omitted). The Plaintiff has not cited any authority to this Court that
would allow “costs” noted in the contract between the parties to take precedence over statutory
authority. The contract itself does not define costs. Furthermore, Section 11.5 of the contract
states that the “provisions hereof shall be construed and interpreted with reference to the laws of
the State of Arizona.” Exhibit A to Plaintiff’s Reply, CC&Rs Section 11.5. Therefore, the Court
will not allow photocopy charges, mailing costs or delivery fees.

IT IS ORDERED granting the Plaintiff’s request for all costs listed in their Statement of
Costs with the exception of photocopy charges, mailing costs and delivery fees.

IT IS ORDERED entering judgment in favor of the Plaintiff and against the Defendants
in the amount of $5,108.83 for costs incurred in this case.

IT IS FURTHER ORDERED that this judgment is due immediately and shall incur
interest at the statutory rate of 10% from the date of this judgment.

/s/ JOAN SINCLAIR

JUDGE JOAN SINCLAIR
JUDICIAL OFFICER OF THE SUPERIOR COURT

Clerk of the Superior Court

*** Electronically Filed ***

06/02/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

05/29/2020

Docket Code 094
Form V094
Page 1

CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
J. Celian/C. Mai

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
JEFFREY G SOLLOWAY

JUDGE KILEY

ORAL ARGUMENT SET

The Court has reviewed and considered the Motion for Summary Disposition Re: Motion
to Dismiss (“Motion for Summary Disposition”) filed by Defendants Foothills Club West
Community Association et al. The Court has also reviewed and considered the filing entitled
“Motion to Withdraw Motion for Summary Disposition Re: Motion to Dismiss” that the
Defendants subsequently filed, in which the Defendants state that they “hereby withdraw[]” their
Motion for Summary Disposition. Motion to Withdraw Motion for Summary Disposition Re:
Motion to Dismiss at p. 2.

The so-called “Motion to Withdraw Motion for Summary Disposition Re: Motion to
Dismiss” is, in essence, a Notice of Withdrawal that requires no ruling by the Court. The Court
will therefore take no action on the so-called “Motion to Withdraw Motion for Summary
Disposition Re: Motion to Dismiss,” nor will the Court take any action on the now-withdrawn
Motion for Summary Disposition.

The Court is in receipt of the Defendants’ Motion to Dismiss, the Response to Motion to
Dismiss filed by Plaintiff Club West Conservancy, and the Defendants’ Reply in Support of
Motion to Dismiss. Oral Argument has been requested. Accordingly,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

05/29/2020

Docket Code 094
Form V094
Page 2

IT IS ORDERED setting telephonic Oral Argument on the Motion to Dismiss, the
Response thereto, and the Reply in support thereof on June 22, 2020 at 2:00 p.m. (1 hour
allotted) before this Division.

NOTE: Due to issues with COVID-19, counsel and self-represented parties are directed to
participate for said hearing by calling this Division’s bridge line promptly at the scheduled time.

Bridge Line:
602-506-9695 or 1-855-506-9695

Access Code:
953806

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 ***

06/16/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

06/15/2020

Docket Code 056
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
S. Motzer

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
JEFFREY G SOLLOWAY

SCOTT CARPENTER
JUDGE KILEY

MINUTE ENTRY

East Court Building – Courtroom 911

10:00 a.m. This is the time set for a telephonic Order to Show Cause Return Hearing on
the Application for Temporary Restraining Order and Preliminary Injunction. Plaintiff is
represented by counsel, Francis J. Slavin. Plaintiff representative, Matthew Tyler is also present.
Defendants are represented by counsel, Jeffrey G. Solloway and Scott Carpenter. Defendants,
Michael P. Hinz and Martha Neese are also present.

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

Argument is presented to the Court.

Counsel for Plaintiff presents argument to the Court.

Counsel for Defendants presents argument to the Court.

Discussion is held.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

06/15/2020

Docket Code 056
Form V000A
Page 2

Based on the foregoing,

IT IS ORDERED setting a video conference Hearing on the Application for Preliminary
Injunction on October 5, 2020 at 9:00 a.m. (time allotted 5 hours: 2.5 hours for each side).

NOTE: Due to the uncertainty of issues related to COVID-19, counsel is directed to
contact the Division at (602) 372-3839 no later than September 30, 2020 to confirm the
method by which the virtual hearing will be held.

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.

IT IS FURTHER ORDERED that, no later than 5:00 p.m. on September 25, 2020,
the parties shall file a Joint Pre-Hearing Statement listing their witnesses and exhibits, and
setting forth their respective positions.

IT IS FURTHER ORDERED that each party shall deliver all exhibits such party
intends to offer at the trial to this Division to be marked no later than September 25, 2020. The
parties shall deliver a bench copy of all exhibits marked for trial for the Court’s use during the
hearing. Please arrange for the bench copy to be submitted in binders with numbered tabs.
The clerk’s copy should be sent in PDF format with a cover sheet and divider pages in a
single email to [email protected].

IT IS FURTHER ORDERED the parties shall submit their Joint Proposed Scheduling
Order for accelerated discovery in preparation for the Preliminary Injunction Hearing no later
than June 25, 2020.

Discussion is held.

At the June 22, 2020, Oral Argument on the Defendants’ Motion to Dismiss, the parties
shall be prepared to discuss whether they will stipulate to the entry of a Temporary Restraining
Order, to be in effect until a ruling on the Application for Preliminary Injunction and with a bond
of $0.00, that provides that the Defendant Association and its Board of Directors, as purported
Declarant under the Golf Course Declaration, shall not vote on an amendment to the Golf Course

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

06/15/2020

Docket Code 056
Form V000A
Page 3

Declaration and shall not submit a proposed amendment or request for ratification of an
amendment to the Golf Course Declaration to the members.

Further discussion is held.

11:02 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

06/23/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

06/22/2020

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
K. Cabral

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
JEFFREY G SOLLOWAY

JUDGE KILEY

MINUTE ENTRY

East Court Building – Courtroom 911

2:01 p.m. This is the time set for a telephonic Oral Argument on the Motion to Dismiss,
the Response thereto, and the Reply in support thereof. Plaintiff is represented by counsel,
Francis J. Slavin. Plaintiff representative, Matthew Tyler is also present. Defendants are
represented by counsel, Jeffrey G. Solloway and Scott Carpenter. Defendants, Michael P. Hinz
and Martha Neese are also present.

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

Discussion is held regarding the issue of the temporary restraining order.

Counsel for Plaintiff requests an evidentiary hearing regarding the issuance of a
temporary restraining order. Discussion is held thereon.

For the reasons stated on the record,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

06/22/2020

Docket Code 020
Form V000A
Page 2

IT IS ORDERED setting an Evidentiary Hearing on July 6, 2020 at 2:00 p .m. (2 hours
allotted, i.e., 1 hour allotted to each party) before this Division.

HON. DANIEL J. KILEY
Maricopa County Superior Court
East Court Building
101 West Jefferson Street
9th Floor, Courtroom 911
Phoenix, AZ 85003

NOTE: Due to issues with COVID-19, counsel and self-represented parties are directed to
participate for said hearing by using GoToMeeting for video purposes, along with the established
Conference Bridge for the purposes of audio recording through the Court’s system. You must
download the GoToMeeting application to your device (i.e. computer, tablet, or SMART phone) to
access the hearing. This can be done by clicking the link at the bottom of the invitation below,
which will also be sent in a subsequent email.

Invitation

CV2020-003577 Club West Conservancy v. Foothills Club West Community Association
Monday, July 6, 2020 2:00 PM to 4:00 PM (MST)
Please join the meeting from your computer, tablet or smartphone.
https://global.gotomeeting.com/join/470088373
Please mute your device during the hearing to prevent feedback.
New to GoToMeeting? Get the app now and be ready when your first meeting starts:
https://global.gotomeeting.com/install/470088373

Bridge Line:
602-506-9695 or 1-855-506-9695

Access Code:
953806

IT IS FURTHER ORDERED that counsel and self-represented parties shall submit
their exhibits to this Division via email to [email protected] no later
than 5:00 p.m. on June 29, 2020. A copy of the exhibits shall be emailed to the opposing party
at the same time the exhibits are submitted to this Division.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

06/22/2020

Docket Code 020
Form V000A
Page 3

NOTE: All court proceedings are recorded digitally and not by a court reporter. Pursuant
to Local Rule 2.22, if a party desires a court reporter for any proceeding in which a court reporter
is not mandated by Arizona Supreme Court Rule 30, the party must submit a written request to the
assigned judicial officer at least ten (10) judicial days in advance of the hearing, and must pay the
authorized fee to the Clerk of the Court at least two (2) judicial days before the proceeding. The
fee is $140 for a half-day and $280 for a full day.

IT IS FURTHER ORDERED that, no later than July 1, 2020, each party shall file a
List of Witnesses and Exhibits identifying all witnesses and exhibits such party intends to present
at the Evidentiary Hearing.

IT IS FURTHER ORDERED that each party shall deliver all exhibits such party
intends to offer at the hearing to this Division to be marked no later than June 29, 2020. Exhibits
guidelines are attached herein

Argument is presented to the Court regarding Defendant’s Motion to Dismiss filed April
6, 2020.

Counsel for Plaintiff presents argument to the Court.

Counsel for Defendant presents argument to the Court.

Based on the matters presented,

IT IS ORDERED taking this matter under advisement.

2:40 p.m. Matter concludes.

Procedures for Submitting Exhibits

 Please provide an exhibit list with a brief description for each exhibit. The list should
contain the case number, the caption, scheduled trial date, and the party submitting the
exhibits.

 Descriptions of the exhibits should be concise and can be as simple as “letter,” “email,”
or “photo.” Do not use a description that cannot be verified by looking at the first page of
the document or item. Do not use Bates numbers in your description of the exhibits.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

06/22/2020

Docket Code 020
Form V000A
Page 4

 The parties shall meet and confer to insure that there are NO duplicates submitted.

 The parties shall provide a list of any exhibits that have been stipulated into evidence.

 The parties shall deliver a bench copy of all exhibits marked for trial for the Court’s use
during trial. Please arrange for the bench copy to be submitted in binders with
numbered tabs. The clerk’s copy should be sent in PDF format with a cover sheet
and divider pages in a single email to [email protected]. Each
divider page shall reflect the number of the exhibit.

 Exhibits will be marked numerically and consecutively.

 Plaintiff(s) exhibits will be marked first followed by Defendant(s).
 Numbers will NOT be skipped or “saved” in anticipation of additional exhibits to
be submitted. If there is a blank, the next exhibit shall be marked consecutively to
the previously numbered exhibit and the numbering of your exhibit list will not
match the numbering of the Court’s exhibit list.
 Subsections of exhibits will be marked as the next available number. Do NOT
use subsections of exhibits (ex: 4a or 4.1). If subsection are used, each subsection
will be marked as the next consecutive number and the numbering of your exhibit
list will not match the numbering of the Court’s exhibit list. Please use the next
consecutive number for each exhibit.

Clerk of the Superior Court

*** Electronically Filed ***

06/29/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

06/26/2020

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
S. Motzer

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
JEFFREY G SOLLOWAY

JUDGE KILEY

MINUTE ENTRY

A clerical error having been made,

IT IS ORDERED correcting the GoToMeeting information in the minute entry dated
June 22, 2020 and filed June 23, 2020 to include the GoToMeeting information below in place of
the GoToMeeting information included in the June 22, 2020 minute entry. The minute entry
dated June 22, 2020 is available for viewing at: http://www.courtminutes.maricopa.gov.

Please use the following GoToMeeting information:

Judge Kiley's Meeting Room

CV2020-003577 Club West Conservancy v. Foothills Club West Community Association

Monday, July 6, 2020 2:00 PM to 4:00 PM (MST)

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

https://www.gotomeet.me/Rolena

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

06/26/2020

Docket Code 023
Form V000A
Page 2

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

United States: +1 (786) 535-3211
- One-touch: tel:+17865353211,,346956893#

Access Code: 346-956-893

Join from a video-conferencing room or system.
Dial in or type: 67.217.95.2 or inroomlink.goto.com
Meeting ID: 346 956 893
Or dial directly: [email protected] or 67.217.95.2##346956893

New to GoToMeeting? Get the app now and be ready when your first meeting starts:
https://global.gotomeeting.com/install/346956893

Procedures for Submitting Exhibits

 Depositions will NOT be marked as exhibits. If you plan to read from a deposition or use
the deposition for impeachment purposes, you will need to supply an ORIGINAL to the
Clerk for filing at same time they provide their exhibits.

 Please provide an exhibit list with a brief description for each exhibit. The list should
contain the case number, the caption, scheduled trial date, and the party submitting the
exhibits. Do not use Bates numbers in your description of the exhibits.

 The parties shall meet and confer to insure that there are NO duplicates submitted.

 The parties shall provide a list of any exhibits that have been stipulated into evidence.

 The parties shall deliver a bench copy of all exhibits marked for trial for the Court’s use
during trial. Please arrange for the bench copy to be submitted in binders with
numbered tabs. The clerk’s copy should be sent in PDF format with a cover sheet
and divider pages in a single email to [email protected]. Each
divider page shall reflect the number of the exhibit.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

06/26/2020

Docket Code 023
Form V000A
Page 3

 Exhibits will be marked numerically and consecutively.

 Plaintiff(s) exhibits will be marked first followed by Defendant(s).
 Numbers will NOT be skipped or “saved” in anticipation of additional exhibits to
be submitted. If there is a blank, the next exhibit shall be marked consecutively to
the previously numbered exhibit and the numbering of your exhibit list will not
match the numbering of the Court’s exhibit list.
 Subsections of exhibits will be marked as the next available number. Do NOT
use subsections of exhibits (ex: 4a or 4.1). If subsection are used, each subsection
will be marked as the next consecutive number and the numbering of your exhibit
list will not match the numbering of the Court’s exhibit list. Please use the next
consecutive number for each exhibit.

 Blow-ups and large items may only be used for demonstrative purposes. You may bring
them to court to use during trial; however, if you would like them to be marked as an
exhibit, please submit an 8 ½ x 11 photo of the item.

Clerk of the Superior Court

*** Electronically Filed ***

07/02/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

07/01/2020

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
S. Motzer

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
JEFFREY G SOLLOWAY

JUDGE KILEY

UNDER ADVISEMENT RULING

Plaintiff Club West Conservancy (the “Plaintiff”) seeks declaratory and injunctive relief
against Defendant Foothills Club West Community Association and various officers thereof
(collectively, the “Association”) arising out of the Association’s “accept[ance]” of “an
assignment” of the declarant’s rights under a “Golf Course Declaration” relating to the Foothills
Club West Golf Course. First Amended Complaint (“FAC”) at ¶¶ 16, 37. The Plaintiff alleges
that the Association’s act in “signing a document stating that [it] was accepting [the] assignment”
was not “valid or legal,” but was, instead, “an ultra vires act” because the Association “is not
permitted to operate or manage property” that is not owned by the Association or its members,
“which is not able to be assessed for the purpose of managing, maintaining and operating,
or…which is not considered to fall within the Planned Communities Act.” Id. at ¶¶ 37-39. The
Plaintiff further asserts that the Association has engaged in other acts that were not “valid or
legal” and were, instead, “[i]n violation and in breach of the Master Declaration,” including
signing documents purporting to “amend[] the Golf Course Declaration” and “expend[ing]
monies collected from assessments imposed on [its] members for the purpose of operating or
managing property not owned by the [Association] or its members.” Id. at ¶¶ 41, 43, 45, 47-48,
50, 54. The Plaintiff seeks declarations that the Association’s acts in accepting and subsequent
amending the Declaration are “void and unenforceable,” a declaration that the Association has no
“legal right or authority to expend [Association] funds…for the purpose of operating and

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

07/01/2020

Docket Code 926
Form V000A
Page 2

maintaining property not owned by the [Association] or its members,” and an injunction against
the “expenditure of [Association] monies for unauthorized expenses.” Id. at pp. 11-12.

The Association has moved to dismiss this case, asserting, inter alia, that the Plaintiff has
“fail[ed] to allege sufficient facts to support a claim under the legal theories put forth by [the]
Plaintiff or other reasonably inferred legal theories that might be applicable.” Motion to Dismiss
at p. 2.

“Courts look only to the pleading itself when adjudicating a Rule 12(b)(6) motion,”
Coleman v. City of Mesa, 230 Ariz. 352, 356, 284 P.3d 863, 867 (2012) (citation, internal
quotations, and internal punctuation omitted), and must assume the truth of the well-pled factual
allegations in the complaint and indulge all reasonable inferences therefrom. See, e.g., Cullen v.
Auto-Owners Ins. Co., 218 Ariz. 417, 419, 189 P.3d 344, 346 (2008). Moreover, because
“[d]ismissals for failure to state a claim are disfavored,” Ariz. Soc’y of Pathologists v. AHCCCS,
201 Ariz. 553, 557, 38 P.3d 1218, 1222 (App. 2002), a court will not grant a Rule 12(b)(6)
motion to dismiss unless “it appears beyond doubt that the plaintiff can prove no set of facts in
support of [its] claim which would entitle [it] to relief.” Cullen. 218 Ariz. at 419-20, 189 P.3d at
346-47 (citation and internal quotations omitted).

In support of its Motion to Dismiss, the Association asserts, first, that the Plaintiff lacks
standing to sue because it “is not a Member of the Association and does not own property in the
Association, and otherwise “fails to assert a legal relationship, status or right in which it has a
definite interest.” Motion to Dismiss at p. 5. The FAC alleges, however, that the Plaintiff “is an
Arizona nonprofit corporation” whose “purpose” is to “protect the interests of its Members as
each are affected by the Association’s wrongful acts” and whose “members…are owners of real
property in Foothills Club West master planned community” as well as members of the
Association. FAC at ¶ 1. Taking these allegations as true, as the Court must, the Court agrees
with the Plaintiff that it meets the requirements of case law “to permit representational
appearance.” Response to Motion to Dismiss (“Response”) at p. 4, citing Armory Park
Neighborhood Ass’n v. Episcopal Cmty. Services in Ariz., 148 Ariz. 1, 712 P.2d 914 (1985). See
also Armory Park, 148 Ariz. at 6, 712 P.2d at 919 (holding that neighborhood association had
standing to seek to enjoin alleged nuisance created by free food distribution program that
attracted transients to neighborhood, where individual members of association “would have had
standing to bring an action in their own name,” “[p]rinciples of judicial economy [would be]
advanced by allowing the issues to be settled in a single action,” and the purpose of the
association, i.e., “to promote and preserve the use and enjoyment of the neighborhood by its
residents, “is sufficiently relevant to the issues presented in this action so that [association] will
adequately and fairly represent the interests of those of its members who would have had
standing in their individual capacities.”).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

07/01/2020

Docket Code 926
Form V000A
Page 3

The Association attempts to distinguish Armory Park by asserting that, unlike the
individual members of the neighborhood association in Armory Park, the Plaintiff’s members
would not have standing to sue the Association because the FAC does not allege “any type of
individual, or particularized injury” sustained by those members individually. Reply in Support
of Motion to Dismiss (“Reply”) at p. 5. Elsewhere in these proceedings, however, the Plaintiff
has alleged that its members “own and occupy residences which are adjacent to” the golf course
(the “Golf Course”) that is at issue in this case. Application for Temporary Restraining Order
With Notice and Application for Preliminary Injunction at p. 2. The Plaintiff has supported its
allegations on this point with evidence that includes the declaration of one of its members, who
states under oath that he owns property that is “contiguous to” the Golf Course and the
development of the Golf Course for non-golf uses “would irreparably damage” his “lifestyle and
living environment and significantly damage the value of [his] home.” Declaration of Matthew
A. Tyler in Support of Application for Temporary Restraining Order With Notice and
Application for Preliminary Injunction at ¶¶ 3, 12. In determining the Plaintiff’s standing, the
Court may properly consider this evidence even though it was not pled in the FAC. See, e.g.,
Aegis of Ariz., L.L.C. v. Town of Marana, 206 Ariz. 557, 563-64, 81 P.3d 1016, 1022-23 (App.
2003) (affirming trial court’s determination that plaintiff had standing to challenge Town’s
denial of conditional use permit application, the Court cited evidence in the record, including
“notices for and minutes of” meetings of the Town Council and its Planning and Zoning
Commission “acknowledg[ing] that [plaintiff] was the real-party-in-interest as to
the…application,” without indicating that the evidence that established the plaintiff’s standing
was set forth in the complaint). Cf. Verduzco v. American Valet, 240 Ariz. 221, 225, 377 P.3d
1016, 1020 (App. 2016) (“Under Arizona's notice pleading rules, it is not necessary to allege the
evidentiary details of [the] plaintiff's claim for relief.”) (citation and internal quotations omitted).

In support of its Motion to Dismiss, the Association argues, next, that the Plaintiff “has
failed to join” a necessary party, i.e., “the current owner of the Foothills Club West Golf Course”
(the “Golf Course”) Motion to Dismiss at p. 6. In support of its position, the Association cites
Ariz.R.Civ.P. 19(a)(1)(B)(i), which provides,

A person who is subject to service of process and whose joinder will not
deprive the court of subject-matter jurisdiction must be joined as a party
if…that person claims an interest relating to the subject of the action and
is so situated that disposing of the action in the person's absence may…as
a practical matter impair or impede the person's ability to protect the
interest[.]

Ariz.R.Civ.P. 19(a)(1)(B)(i) (“Rule 19(a)(1)(B)(i)”).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

07/01/2020

Docket Code 926
Form V000A
Page 4

In its Response, the Plaintiff denies that the owner of the Golf Course is a necessary
party, arguing that the Association has “fail[ed] to demonstrate [that] the Rule 19(a)(1)(B)(i)
requirements have been met.” Response at pp. 8-9.

The Association bears the burden of establishing that the owner of the Golf Course is a
necessary party. See Acacia Corporate Mgmt., LLC v. United States, 2013 WL 2660319 at *7
(E.D.Cal., June 12, 2013) (“The burden is firmly on the party making the motion to show that a
party is necessary.”). The Court agrees with the Plaintiff that the Association has failed to
establish how the resolution of the Plaintiff’s claims against the Association would “impair or
impede” any interest of the Golf Course owner’s. See Response at p. 8. In any event, even if the
owner of the Golf Course could be deemed a necessary party, the proper remedy would be the
joinder of the owner as a party, rather than dismissal of this case. See Democratic Nat’l Cttee. v.
Ariz. Sec’y of State, 2017 WL 840693 at *2 (D.Ariz., Mar. 3, 2017) (“Dismissal for failure to
join a necessary party is appropriate only if,” inter alia, “joinder is not feasible[.]”); In re Home
America T.V.-Appliance-Audio, Inc., 193 B.R. 929, 934 (D.Ariz.Bankr. 1995) (“[T]he proper
course for the court to take in the face of a motion to dismiss pursuant to Rule 19 is to attempt to
join the necessary party rather than dismiss the lawsuit.”). The Court finds that the Association is
entitled to no relief on its request for dismissal of this case pursuant to Rule 19(a)(1)(B)(i).

In support of its Motion to Dismiss, the Association argues, next, that the Plaintiff is
barred by A.R.S. § 10-3304 “from challenging the Association’s power to act except through a
proceeding to enjoin the act of which it complaints.” Motion to Dismiss at p. 8. After the
Association filed its Motion to Dismiss, the Plaintiff amended its original Complaint by filing its
FAC, which seeks injunctive, as well as declaratory, relief. See generally FAC. In any event, the
Plaintiff here seeks a determination of the parties’ rights under a contract pursuant to the
Declaratory Judgments Act, A.R.S. §§ 12-1831 et seq. A determination of the parties’ rights
under a contract is expressly authorized by the Declaratory Judgments Act. See A.R.S. §§ 12-
1832. The Court sees no reason why A.R.S. § 10-3304 should preempt the Declaratory Judgment
Act in this case, or why the declaratory relief authorized by that act should otherwise be
unavailable to the Plaintiff. After all, it is well-established that the Declaratory Judgment Act “is
interpreted liberally,” Keggi v. Northbrook Property and Cas. Ins. Co., 199 Ariz. 43, 45, 13 P.3d
785, 787 (App. 2000), and “[b]egrudging availability of the declaratory vehicle is inconsistent
with [the act’s] expressed remedial tenor.” Planned Parenthood Ctr. of Tucson, Inc. v. Marks, 17
Ariz.App. 308, 312, 497 P.2d 534, 538 (1972).

The Association argues that the Plaintiff’s claims are derivative in nature, and must be
dismissed because the Plaintiff has not complied with the procedural steps set forth in A.R.S. §§
10-3630 et seq. Motion to Dismiss at pp. 9-15. As the Plaintiff correctly points out, however, the
applicable Declaration of Covenants, Conditions and Restrictions for Foothills Club West

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

07/01/2020

Docket Code 926
Form V000A
Page 5

(“CC&Rs”) expressly authorize suits against the Association by individual members to enforce
the CC&Rs. Paragraph 11.8 of the CC&Rs provides in part that

any Owner shall have the standing and the right to bring an action against
the Association for any violation or breach by the Association of any
provision hereof or of the Articles or the Bylaws. In addition, any Owner
or Owners shall have the standing and power to enforce the provisions of
this Declaration, the Articles and the Bylaws…

CC&Rs at ¶ 11.8, attached as Exhibit C to Defendants’ Objection to Plaintiff’s Application for
Temporary Restraining Order With Notice and Application for Preliminary Injunction. Although
the Association asserts that this provision of the CC&Rs was not meant to authorize suits that are
derivative in substance, no such limiting language appears in this provision of the CC&Rs, and
the Court cannot read such language into it. See IB Prop. Holdings, LLC v. Rancho Del Mar
Apartments Ltd. P’ship, 228 Ariz. 61, 66-67, 263 P.3d 69, 74-75 (App. 2011) (“When the
provisions of the contract are plain and unambiguous upon their face, they must be applied as
written, and the court will not…expand it beyond its plain and ordinary meaning or add
something to the contract which the parties have not put there.”) (citation and internal quotations
omitted). The Court finds the language of the Paragraph 11.8 of the CC&Rs to be broad enough
to encompass the claims the Plaintiff asserts here.1

After reviewing the claims in the FAC and the arguments asserted by the parties, the
Court cannot say that “it appears beyond doubt that the plaintiff can prove no set of facts in
support of [its] claim which would entitle [it] to relief.” Cullen, 218 Ariz. at 419-20, 189 P.3d at
346-47 (citation and internal quotations omitted). Accordingly,

IT IS ORDERED denying the Motion to Dismiss.

1 The broad language of Paragraph 11.8 of the CC&Rs distinguishes this case from Albers v. Edelson
Tech. Partners, LLC, 201 Ariz. 47, 31 P.3d 821 (App. 2001), on which the Association relies; no
comparable contractual provision authorized the shareholders in Albers to assert the claims the Albers
court dismissed.

Clerk of the Superior Court

*** Electronically Filed ***

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

CV 2020-003577

07/06/2020

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
S. Motzer

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
JEFFREY G SOLLOWAY

SCOTT CARPENTER
JUDGE KILEY

MINUTE ENTRY

By agreement of the parties,

IT IS ORDERED vacating the Evidentiary Hearing on July 6, 2020 at 2:00 p.m. and
setting a telephonic Status Conference on July 10, 2020 at 10:00 a.m. (15 minutes allotted).

NOTE: Due to issues with COVID-19, counsel and self-represented parties are directed to
participate for said hearing by calling this Division’s bridge line promptly at the scheduled time.

Bridge Line:
602-506-9695 or 1-855-506-9695

Access Code:
953806

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

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

07/06/2020

Docket Code 028
Form V000A
Page 2

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 ***

07/13/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

07/10/2020

Docket Code 003
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
S. Motzer

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
JEFFREY G SOLLOWAY

DANIEL J SLAVIN
SCOTT CARPENTER
CARLOTTA L TURMAN
JUDGE KILEY

MINUTE ENTRY

East Court Building – Courtroom 911

10:01 a.m. This is the time set for a telephonic Status Conference. Plaintiff is represented
by counsel, Francis J. Slavin and Daniel J. Slavin. Defendants are represented by counsel,
Carlotta L. Turman, Scott Carpenter, and Jeffrey G. Solloway.

Discussion is held regarding the status of the case.

LET THE RECORD REFLECT that counsel have indicated their agreement, as stated on
the record, to resolve the issue of the temporary restraining order, and they will file a written
stipulation reflecting said agreement.

Discussion is held regarding Defendants’ Motion to Continue Hearing on Application for
Preliminary Injunction on October 5, 2020, at 9:00 a.m. filed July 1, 2020.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

07/10/2020

Docket Code 003
Form V000A
Page 2

Counsel will be in contact with the Division’s staff to reset the Hearing.

Discussion is held regarding the Joint Stipulation Regarding Proposed Accelerated
Scheduling Order for Preliminary Injunction Hearing filed June 26, 2020.

Once the Hearing is set, counsel will submit an Amended Proposed Scheduling Order if
necessary.

10:10 a.m. Matter concludes.

LATER:

The parties having confirmed their availability,

IT IS ORDERED vacating the video conference Hearing on the Application for
Preliminary Injunction on October 5, 2020 at 9:00 a.m. and resetting same on October 1, 2020
at 9:00 a.m. (time allotted 5 hours: 2.5 hours for each side).

NOTE: Due to issues with COVID-19, counsel and self-represented parties are directed to
participate for said hearing by using GoToMeeting for video purposes, along with the established
Conference Bridge for the purposes of audio recording through the Court’s system. You must
download the GoToMeeting application to your device (i.e. computer, tablet, or SMART phone) to
access the hearing. This can be done by clicking the link at the bottom of the invitation below,
which will also be sent in a subsequent email.

Judge Kiley's Meeting Room

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

https://www.gotomeet.me/Rolena

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

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Access Code: 346-956-893

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

07/10/2020

Docket Code 003
Form V000A
Page 3

Join from a video-conferencing room or system.
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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 ***

07/23/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

07/22/2021

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOAN M. SINCLAIR
S. Motzer

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
CARLOTTA L TURMAN

JUDGE SINCLAIR

MINUTE ENTRY

The Court has received and reviewed the Notice of Lodging Proposed Form of Rule 54(c)
Judgment. Accordingly,

IT IS ORDERED setting a virtual Status Conference on August 17, 2021 at 9:15 a.m.
(15 minutes allotted).

This hearing will be conducted through the new Court Connect program offered by the
Superior Court of Arizona in Maricopa County. This new and innovative program allows Court
participants to appear in an online, rather than a physical, courtroom. All counsel shall appear
via videoconference. Self-represented litigants may call in if access to internet is not
available. Lawyers (and self-represented litigants) are responsible for distributing this notice to
anyone who will be appearing on their behalf. All participants must use the web link or the dial in
information below to participate. Counsel and self-represented parties shall appear promptly
at the scheduled time.

Participants: Please follow the steps below to participate in the proceeding which will be
conducted remotely.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

07/22/2021

Docket Code 028
Form V000A
Page 2

1. Click www.Tinyurl.com/jbazmc-cvj13 or enter it in the browser of your device
2. Enter your full name and role in name field.
3. Wait for the facilitator to admit you to the proceeding (note that you may wait to be
admitted and the Court may not be able to communicate with you while you wait).

Or call in (audio only)
Phone: +1 917-781-4590
Conference ID: 776 371 089#

To ensure an optimal experience, please review the brief Court Connect training prior to
the hearing: https://superiorcourt.maricopa.gov/virtual-justice/

Clerk of the Superior Court

*** Electronically Filed ***

08/19/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

08/17/2021

Docket Code 005
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOAN M. SINCLAIR
G. Grantham/C. Mai

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
CARLOTTA L TURMAN

TIMOTHY H BARNES
JUDGE SINCLAIR

MINUTE ENTRY

East Court Building - Courtroom 911

9:18 a.m. This is the time set for a Status Conference to address the Plaintiff’s Notice of
Lodging Proposed Form of Rule 54(c) Judgment filed May 13, 2021. Plaintiff, Club West
Conservancy, is represented by counsel, Francis J. Slavin and Daniel J. Slavin. Defendants are
represented by counsel, Carlotta L. Turman, Jeffrey G. Solloway, and Tim Barnes. All
parties/counsel are present virtually through Court Connect.

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

LET THE RECORD REFLECT the Court has received a Motion to Intervene from The
Edge at Club West, LLC.

Discussion is held regarding the Rule 54(c) language in the judgment based on Judge
Russell’s March 23, 2021 ruling.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

08/17/2021

Docket Code 005
Form V000A
Page 2

Parties stipulate that the interest rate should be four and twenty-five hundredths percent
(4.25%) instead of ten percent (10%) and that the language on page three (3), paragraph five (5)
will be omitted.

IT IS ORDERED Counsel for Plaintiff shall submit a proposed form of judgment
reflecting the agreed upon changes, as mentioned above, to the Court.

The Court will wait until the pending Motion to Intervene is resolved before entering a
judgment.

9:26 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

09/18/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

09/17/2020

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
S. Motzer

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
CARLOTTA L TURMAN

JUDGE KILEY

MINUTE ENTRY

The Court having reviewed and considered the Motion for Enlargement of Time filed by
the Plaintiff and the Objection to Plaintiff’s Motion for Enlargement of Time filed by the
Defendants, and good cause appearing,

IT IS ORDERED granting the Motion for Enlargement of Time. The Plaintiff’s
response to the Defendants’ Motion for Partial Summary Judgment shall be filed no later than
October 23, 2020.

Clerk of the Superior Court

*** Electronically Filed ***

09/29/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

09/28/2020

Docket Code 003
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
S. Motzer

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
CARLOTTA L TURMAN

DANIEL J SLAVIN
SCOTT CARPENTER
JUDGE KILEY

MINUTE ENTRY

At the request of counsel,

IT IS ORDERED vacating the video conference Hearing on the Application for
Preliminary Injunction on October 1, 2020 at 9:00 a.m. and resetting same on October 21, 2020
at 9:00 a.m. (time allotted 5 hours: 2.5 hours for each side).

NOTE: Due to issues with COVID-19, counsel and self-represented parties are directed
to participate for said hearing by using GoToMeeting for video purposes, along with the
established Conference Bridge for the purposes of audio recording through the Court’s system.
You must download the GoToMeeting application to your device (i.e. computer, tablet, or
SMART phone) to access the hearing. This can be done by clicking the link at the bottom of the
invitation below, which will also be sent in a subsequent email.

Judge Kiley's Meeting Room

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

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

09/28/2020

Docket Code 003
Form V000A
Page 2

https://www.gotomeet.me/Rolena

You can also dial in using your phone.

(For supported devices, tap a one-touch number below to join instantly.)

United States: +1 (786) 535-3211
- One-touch: tel:+17865353211,,346956893#
Access Code: 346-956-893

Join from a video-conferencing room or system.

Dial in or type: 67.217.95.2 or inroomlink.goto.com

Meeting ID: 346 956 893

Or dial directly: [email protected] or 67.217.95.2##346956893

New to GoToMeeting? Get the app now and be ready when your first meeting starts:
https://global.gotomeeting.com/install/346956893

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 ***

10/30/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

10/21/2020

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
R. Sheppard/S. Brown

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
CARLOTTA L TURMAN

JUDGE KILEY

MINUTE ENTRY

East Court Building – Courtroom 911

Prior to the commencement of the hearing, Plaintiff’s exhibits 1 through 32 are marked
for identification.

9:07 a.m. This is the time set for virtual evidentiary hearing regarding preliminary
injunction. Plaintiff is represented by counsel, Francis Slavin. Defendants are represented by
counsel, Carlotta Turman.

Court Reporter, Teri Veres, is present. A record of the proceeding is also made digitally.

Discussion is held regarding the status of the case.

Counsel for the Defendants invokes the Rule of Exclusion of Witnesses.

Ellen Davis, Matt Tyler and Paul Moros are sworn in.

Opening Statements

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

10/21/2020

Docket Code 020
Form V000A
Page 2

Plaintiff’s case:

Ellen Davis testifies.

Exhibits 1, 2, 8-10, 12, 13, 17, 20, 21, 25 and 29 are received in evidence.

10:29 a.m. Court stands in recess.

10:49 a.m. Court reconvenes with the parties and respective counsel present.

The Court informs the parties of the remaining time.

Court reporter, Teri Veres, is present. A record of the proceeding is also made digitally.

Ellen Davis’ virtual testimony continues.

Ellen Davis’ virtual testimony concludes.

Matt Tyler testifies.

Matt Tyler’s virtual testimony concludes.

Plaintiff rests.

Defendant makes an oral motion for the Court to deny Plaintiff’s request for a
preliminary injunction and argument is presented.

IT IS ORDERED denying Defendant’s oral motion.

Defendants’ Case:

Paul Moros testifies.

Plaintiff’s exhibit 31 is in evidence.

The Court informs the parties of the remaining time.

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

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

10/21/2020

Docket Code 020
Form V000A
Page 3

1:31 p.m. Court reconvenes with the parties and respective counsel present.

Court reporter, Teri Veres, is present. A record of the proceeding is also made digitally.

The Court informs the parties of the remaining time.

Paul Moros’ virtual testimony continues.

Plaintiff’s exhibits 27 and 30 are in evidence.

Paul Moros’ virtual testimony concludes.

Michael Hinz is sworn and testifies.

3:00 p.m. Court stands in recess.

3:19 p.m. Court reconvenes with the parties and respective counsel present.

Court reporter, Teri Veres, is present. A record of the proceeding is also made digitally.

Michael Hinz’s virtual testimony continues.

Michael Hinz’s virtual testimony concludes.

The Court informs the parties of the remaining time.

Defendants rests.

Closing arguments presented.

IT IS ORDERED taking this matter under advisement.

Pursuant to the orders entered, and there being no further need to retain the exhibits not
offered in evidence in the custody of the Clerk of Court,

IT IS FURTHER ORDERED that counsel shall have no later than November 25, 2020
to request any exhibits not entered into evidence or they will disposed of.

4:17 p.m. Matter concludes.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

10/21/2020

Docket Code 020
Form V000A
Page 4

Clerk of the Superior Court

*** Electronically Filed ***

11/02/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

10/30/2020

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
S. Motzer

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
CARLOTTA L TURMAN

JUDGE KILEY

UNDER ADVISEMENT RULING

A.
Factual Background

In 1989, UDC-Foothills Limited Partnership (“UDC FLP”) caused to be recorded a
Declaration of Covenants, Conditions and Restrictions (the “Master Declaration”) for a master
planned community located south of South Mountain Park in Phoenix. Joint Pre-Hearing
Statement (“JPS”) at p. 2 ¶¶ 1-2. See also Exhibit 1. In the Master Declaration, UDC FLP
identifies itself as “the owner…and the master developer of” real property to be developed “as a
planned area development” known as “Foothills Club West.” Exhibit 1 at p. MCR 7 of 85. The
name of the association formed pursuant to the Master Declaration is the “Foothills Club West
Community Association.” JPS at p. 2 ¶¶ 3-4. See also Exhibit 1 at pp. MCR 7 of 85, MCR 9 of
85, MCR 10 of 85.

Paragraph 11.2 of the Master Declaration provides that, with limited exceptions, it cannot
be amended without the approval of 75% of Foothills Club West lot owners. Exhibit 1 at p. MCR
59 of 85, § 11.2 (“Except as otherwise provided herein…this Declaration may be amended only
by the affirmative vote…or written consent of Members owning at least seventy-five percent
(75%) of all Lots.”).

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

10/30/2020

Docket Code 926
Form V000A
Page 2

In 1993, UDC Homes, Inc., (“UDC Homes”) and its wholly-owned subsidiary, REA
Acquisition Corporation (“REA”), caused to be recorded a Declaration of Covenants, Conditions
and Restrictions (the “Golf Course Declaration”) for the Foothills Club West Golf Course (the
“Golf Course”). JPS at p. 2 ¶¶ 5, 8. See also Exhibit 2. At the time of the recordation of the Golf
Course Declaration, REA owned the property described therein as the “Golf Course Property.”
JPS at p. 2 ¶ 6. UDC Homes was the Declarant under the Golf Course Declaration. Exhibit 2 at
p. MCR 2 of 57.

The recitals to the Golf Course Declaration provide in part that the owner, REA, and the
Declarant, UDC Homes, believe

that the development of Foothills Club West for residential purposes will be
enhanced by the development, operation, and maintenance of the Golf Course
Property as a golf course and intend that the Golf Course Property be known as
developed as Foothills Club West Golf Course.

Exhibit 2 at p. MCR 2 of 57. The Golf Course Declaration contains the following “use
restriction” provision:

1.1 Golf Course Usage. At all times on or prior to December 31, 2008, the Golf
Course Property and all portions thereof shall be used exclusively for the
operation of a public golf course and driving range, recreational facilities related
thereto, a golf pro shop, and a clubhouse facility; the use of the Golf Course
Property other than for said purposes during such time shall be prohibited. At all
times after December 31, 2008, the Golf Course Property and all portions thereof
shall be used exclusively for the operation of a golf course and driving range,
recreational facilities related thereto, a golf pro shop, and a clubhouse facility;
the use of the Golf Course Property other than for said purposes during such
time shall be prohibited.

Exhibit 2 at p. MCR 3 of 57. The Golf Course Declaration goes on to provide,

4.1 Maintenance of Improvements. The Golf Course Property and the
improvements thereto shall be maintained in a first class manner and at a level
equal to or exceeding the maintenance level of other upscale, high-end, daily
fee, public golf courses in Maricopa County, Arizona.

Exhibit 2 at p. MCR 5 of 57.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

10/30/2020

Docket Code 926
Form V000A
Page 3

Section 6.2 of the Golf Course Declaration provides in part that the Declarant “shall be
entitled to release or cancel all or any portion of the Declaration with respect to all or any portion
of the Golf Course Property at any time without the consent or approval of any other party.”
Exhibit 2 at p. MCR 8 of 57, § 6.2.

In September 2010, Defendant Foothills Club West Community Association (the
“Association”), through its then-President, Paul Moroz, signed a document entitled “Assignment
of Declarant Rights,” which was subsequently recorded. See Exhibit 8. This document identifies
Shea Homes Limited Partnership (“Shea Homes”) as the successor-in-interest to the original
Declarant, UDC Homes, and states that Shea Homes “desires to assign to the Association, and
the Association desires to accept, all of the rights and obligations of the Declarant” under the
Golf Course Declaration. Id. at p. FCWREV000315. The document concludes that, “[b]y its
execution hereof, the Association accepts all [such] rights and obligations.” Id.

In October 2018, the Association, through its then (and current) President, Michael Hinz,
signed a document entitled “First Amendment to Declaration of Covenants, Conditions and
Restrictions for Foothills Club West Golf Course” (the “First Amendment”), which was
subsequently recorded. See Exhibit 9. The First Amendment purports to amend the Golf Course
Declaration by adding a new paragraph (“New Paragraph 6.2”) which establishes a mechanism
for a vote of the Association’s members to amend Paragraph 1.1 of the Golf Course Declaration
to authorize a change, to a non-golf use, of the Golf Course Property. Specifically, the First
Amendment reads in pertinent part:

Now, therefore, [the] Association amends the [Golf Course Declaration] as
follows:

1.
Article 6, paragraph 6.2 shall be amended to add the following new second
paragraph therein:

In the event of any proposed amendment to this Declaration to change,
modify or amend Article 1, paragraph 1.1 to allow the use of the Golf Course
Property to be other than used exclusively for the operation of a public golf
course and driving range, recreational facilities related thereto, a golf pro shop
and a clubhouse facility (including a restaurant), no such proposed change,
modification or amendment of article 1, paragraph 1.1 shall be effective unless
each of the following two conditions are met. First, a majority of the
Association’s Board of Directors who are physically present at a meeting of the
Board of Directors for such purpose vote to approve the amendment of Article
1, paragraph 1.1 to allow the use of the Golf Course Property to be other than
used exclusively for the operation of a public golf course and driving range,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

10/30/2020

Docket Code 926
Form V000A
Page 4

recreational facilities related thereto, a golf pro shop and a clubhouse facility
(including a restaurant). In the event the first condition is met, second, at an
annual meeting or duly noticed special meeting of the Association’s Owners (as
defined in Article 1, paragraph 1.37 of the [Master Declaration]) in which thirty-
one percent (31%) of the total Association Owners shall constitute a quorum,
fifty percent (50%) of the Owners, plus one additional Owner, vote, in
accordance with the provisions of Article 3 of the [Master Declaration], to allow
the use of the Golf Course Property to be other than used exclusively for the
operation of a public golf course and driving range, recreational facilities related
thereto, a golf pro shop and a clubhouse facility (including a restaurant).

Exhibit 9 at p. MCR 1 of 27.

Plaintiff Club West Conservancy (the “Plaintiff”) alleges that the Association and the
other Defendants, all of whom are members of the Association’s Board of Directors (the
“Board”), “have taken unauthorized actions to maneuver themselves into a position of apparent
authority to amend the Golf Course Declaration to allow non-golf uses to occur on the [Golf
Course].” Application for Temporary Restraining Order and Application for Preliminary
Injunction (“Application”) at p. 4. The Plaintiff seeks a preliminary injunction to bar the
Association and the members of the Board (collectively, the “Defendants”) from amending any
of the applicable documents, or scheduling or holding a vote pursuant to the First Amendment, to
authorize the use of the Golf Course Property for non-golf purposes.1

B.
Applicable Legal Principles

The purpose of a preliminary injunction is generally to preserve the status quo pending a
trial on the merits. See, e.g., Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1023 (9th Cir. 2009).
See also Cracchiolo v. State, 135 Ariz. 243, 247, 660 P.2d 494, 498 (App. 1983) (vacating
temporary injunction after finding that it “does not preserve the status quo”). A preliminary
injunction is properly issued, in other words, to prevent the case from becoming moot before it

1 In its initial filings in this matter, the Plaintiff appeared to seek relief of broader scope, asking the
Court to enjoin the Defendants “from engaging in any conduct…directly or indirectly regarding,
pertaining to or affecting the Foothills Club West Golf Course.” Application for Temporary
Restraining Order With Notice and Application for Preliminary Injunction at pp. 1-2 (emphasis added).
This proposed injunction, as phrased, was so all-encompassing that it would, if adopted, have infringed
on the constitutionally-protected free speech rights of the Defendants by barring them from even
engaging in conversations with the Golf Course owner or others about the Golf Course and its future.
At the hearing on October 21, 2020, however, the Plaintiff made clear that the relief it seeks is of far
more limited scope, and is not intended to encompass such constitutionally-protected activities.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

10/30/2020

Docket Code 926
Form V000A
Page 5

can be heard and resolved on its merits. See Planned Parenthood Ariz., Inc. v. Betlach, 899
F.Supp.2d 868, 876 (D.Ariz. 2012) (“A preliminary injunction…seeks to preserve the relative
positions of the parties until a trial on the merits can be held.”) (citation and internal quotations
omitted).

When considering whether to issue a preliminary injunction, “a court must consider
whether the moving party has shown: (1) a strong likelihood of success at trial on the merits, (2)
the possibility of irreparable injury not remediable by damages, (3) a balance of hardships in its
favor, and (4) public policy favoring the injunction.” Apache Produce Imports, L.L.C. v. Malena
Produce, Inc., 247 Ariz. 160, 164, 447 P.3d 341, 345 (App. 2019), citing Shoen v. Shoen, 167
Ariz. 58, 63, 804 P.2d 787, 792 (App. 1990). “The critical element in this analysis is the relative
hardship to the parties.” Shoen, 167 Ariz. at 63, 804 P.2d at 792.

A court considering a request for a preliminary injunction may apply a “sliding scale”
requiring the moving party to establish either “the presence of serious questions and that the
balance of hardships tips sharply in favor of the moving party” or “probable success on the
merits and the possibility of irreparable injury.” Ariz. Ass’n of Providers for Persons with
Disabilities v. State, 223 Ariz. 6, 12, 219 P.3d 216, 222 (App. 2009) (citations, internal
quotations, and internal punctuation omitted). The term “serious questions” refers to questions
that “are substantial, difficult and doubtful, as to make them a fair ground for litigation and thus
for more deliberative investigation.” Nat’l Ass’n of Manufacturers v. U.S. Dep’t of Homeland
Security, __ F.Supp.3d __, 2020 WL 5847503 at *4 (N.D.Cal., Oct. 1, 2020) (citation and
internal quotations omitted). As the Ninth Circuit has observed,

[f]or the purposes of injunctive relief, “serious questions” refers to questions which
cannot be resolved one way or the other at the hearing on the injunction and as to
which the court perceives a need to preserve the status quo lest one side prevent
resolution of the questions…by altering the status quo.

Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988).

The moving party need not, in other words, prove that its claims will ultimately carry the
day in order to establish the presence of “serious questions.” See Valenzuela v. Gan, 2015 WL
13333372 at *1 (D.Ariz., Jan. 21, 2015) (“serious questions going to the merits” requires “a
lesser showing than likelihood of success on the merits”). On the contrary, the moving party may
establish “serious questions” without showing “a certainty of success, nor even…a probability of
success,” as long as the party establishes “a fair chance of success on the merits” Marcos, 862
F.2d at 1362 (citation and internal quotations omitted). “The ‘serious questions’ standard permits
[a court] to grant a preliminary injunction in situations where it cannot determine with certainty
that the moving party is more likely than not to prevail on the merits of the underlying claims,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

10/30/2020

Docket Code 926
Form V000A
Page 6

but where the costs outweigh the benefits of not granting the injunction.” Alliance for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1133 (9th Cir. 2011) (citation and internal quotations
omitted).

C.
The “Serious Questions/Balance of Hardships” Test

Turning to the first prong of the “serious questions/balance of hardships” test, the Court
finds that, in two respects, the Plaintiff has established the requisite presence of serious questions
going to the merits of its claims against the Defendants.

First, the evidence presented at the preliminary injunction hearing on October 21, 2020
(the “Hearing”) calls into question whether the Association validly accepted the assignment of
the Declarant’s rights under the Golf Course Declaration, and whether the First Amendment to
the Golf Course Declaration is effective.

There is no dispute that public policy favors conducting the affairs of a planned
community openly and transparently, and that a planned community’s governing board can
properly meet outside the presence of the community’s members only in limited circumstances.
See A.R.S. § 33-1804(A), (F). Specifically, a planned community’s board may properly meet in
executive session only to obtain legal advice, to discuss pending or contemplated litigation, to
discuss personal information relating to an individual member, employee or contractor of the
community, or to discuss a member’s appeal of a violation citation or a penalty imposed by the
community. A.R.S. § 33-1804(A)(1)-(5). Nothing in A.R.S. § 33-1804 authorizes the board of a
planned community to meet, or take action in, executive session under any other circumstances.

The evidence presented at the Hearing establishes that the Board’s acceptance of the
assignment of the Declarant’s rights under the Golf Course Declaration was done in executive
session. Likewise, the evidence establishes that, when the Board purported to adopt the First
Amendment in 2018, it did so, again, in executive session. No evidence has been presented that
either the acceptance of the assignment of the Declarant’s rights, or the subsequent amendment
of the Golf Course Declaration, was described in any notice to members as required by A.R.S. §
33-1804(B). See A.R.S. § 33-1804(B) (“A notice of any annual, regular or special meeting of the
members shall also state the purpose for which the meeting is called, including the general nature
of any proposed amendment to the declaration or bylaws…”). Even if the notice required by
A.R.S. § 33-1804(B) were given, accepting an assignment of the Declarant’s rights under the
Golf Course Declaration and amending that declaration are not the types of actions that are
identified in A.R.S. § 33-1804 as actions that may properly be taken in executive session. See
A.R.S. § 33-1804(A)(1)-(5). The Court therefore finds serious questions about the validity of the
Association’s acceptance of the Declarant’s rights under the Golf Course Declaration, and about
the validity of the subsequent adoption of the Third Amendment.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

10/30/2020

Docket Code 926
Form V000A
Page 7

Second, the Court finds serious questions about the validity of the Third Amendment’s
purported addition of New Paragraph 6.2 to the Golf Course Declaration because New Paragraph
6.2’s “amendment” provision is inconsistent with the analogous provision of the Master
Declaration.

Paragraph 1.1 of the Golf Course Declaration provides for the continued use of the Golf
Course Property as a golf course. See, e.g., Exhibit 2 at p. MCR 3 of 57, ¶ 1.1. The First
Amendment purports to amend the Golf Course Declaration by adding New Paragraph 6.2,
which purports to authorize an amendment of Paragraph 1.1 of the Golf Course Declaration by
the vote of a simple majority of the votes cast provided that at least 31% of the Association’s
members vote. Under New Paragraph 6.2, therefore, an amendment to the Golf Course
Declaration to authorize the development of the Golf Course Property for non-golf purposes
could be passed with the support of less than 16% of the Association’s members.

As noted above, however, Paragraph 11.2 of the Master Declaration provides that, with
limited exceptions, amendments cannot be made to the Master Declaration without the approval
of 75% of the Association’s members. Exhibit 1 at p. MCR 59 of 85, § 11.2. New Paragraph 6.2
thus purports to authorize the amendment of the Golf Course Declaration with the support of far
fewer members of the Association than would be required under the Master Declaration. The
Plaintiff disputes the Association’s authority, “as the purported [D]eclarant under the Golf
Course Declaration,” to “reduc[e] the percentage of approval by the Association members from
75% of all owners to a majority of 31% of the owners” to approve an amendment to the Golf
Course Declaration “to allow non golf uses to replace the Golf Course use.” Application at p. 4.

As the Association has acknowledged, the Golf Course Declaration is a “tract
declaration” as that term is used in the Master Declaration. See Exhibit 10, Fifth Amendment to
[Golf Course Declaration], at p. MCR 2 of 5 (“[T]he Golf Course Declaration was and is a ‘Tract
Declaration’ as that term is defined in Section 1.49 of the [Master Declaration].”). Pursuant to
Section 1.49 of the Master Declaration, a “tract declaration” must “in all cases be consistent with
and subordinate to this Declaration.” Exhibit 1 at p. MCR 15 of 85, § 1.49. To permit the
amendment of a tract declaration by a simple majority is, at least arguably, inconsistent with
Paragraph 11.2 of the Master Declaration. The Court finds that the Plaintiff has established the
requisite “serious questions” as to whether the First Amendment’s provision for amendment by
less than a supermajority of the Association’s members violates the mandate of Section 1.49 of
the Master Declaration that tract declarations like the Golf Course Declaration must be consistent
with the Master Declaration.

The Defendants argue that the Board adopted the First Amendment “to give the
Association’s membership a say in the future of the Golf Course Property” as well as “to protect

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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10/30/2020

Docket Code 926
Form V000A
Page 8

against attempts by future declarants to unilaterally change the use of the property.” JPS at p. 15.
While the Court does not doubt that the Board acted with good intentions in seeking to add New
Paragraph 6.2 to the Golf Course Declaration, the Board’s good intentions cannot supersede the
dictates of the Master Declaration. Cf. Pyeatte v. Pyeatte, 135 Ariz. 346, 351, 661 P.2d 196, 201
(App. 1983) (role of court in interpreting contract is not “that of contract maker,” and court
cannot rewrite contract terms “simply to accomplish a purportedly good purpose”).

The Defendants assert that the Board properly adopted the First Amendment because, as
Declarant under the Golf Course Declaration, the Association enjoys the unfettered right to
unilaterally amend the Golf Course Declaration in any way it sees fit. The Defendants’ assertion
on this point is not, however, accurate. Even assuming that the Association validly accepted the
Declarant’s rights, it is not accurate to say that the Golf Course Declaration gives the Declarant
unfettered amendment rights. Paragraph 6.2 of the Golf Course Declaration empowers the
Declarant to “release or cancel all or any portion of this Declaration with respect to all or any
portion of the Golf Course Property at any time without the consent or approval of any other
party.” Exhibit 2 at p. MCR 8 of 57, ¶ 6.2 (emphasis added). Paragraph 6.2 of the Golf Course
Declaration thus gives the Declarant the right to unilaterally eliminate existing provisions of the
Golf Course Declaration. Paragraph 6.2 of the Golf Course Declaration says nothing, however,
about amending the Golf Course Declaration to add new provisions, nor does any other provision
of the Golf Course Declaration provides for its amendment by the addition of new provisions.
Nothing in the terms of the Golf Course Declaration itself, therefore, authorized the Board to add
a new “amendment” provision to the Golf Course Declaration that differs from the “amendment”
provision of the Master Declaration.

Because (1) the Association acknowledges that the Golf Course Declaration is a tract
declaration, (2) the Master Declaration provides that tract declarations must be consistent with,
and subordinate to, the provisions of the Master Declaration, and (3) the Master Declaration
permits amendment only by a “supermajority” vote, the Court finds serious questions as to the
validity of the First Amendment, which purports to add a new “amendment” provision to the
Golf Course Declaration that is not consistent with that of the Master Declaration.

Turning to the second prong of the “serious questions/balance of hardships” test, the
Court finds that the balance of hardships overwhelmingly favors the Plaintiff. On this point, the
Court finds persuasive the testimony of witnesses Ellen Davis and Matthew Tyler that an
amendment to the Golf Course Declaration authorizing the development of the land for non-golf
uses would have an immediate negative impact on the value of the lots adjacent to the Golf
Course, including lots owned by the Plaintiffs’ members.

Although the Association asserts that no negative impact will be felt unless and until
construction of homes on the golf course actually commences, the Court sees no basis for this

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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Docket Code 926
Form V000A
Page 9

assertion. Any reasonable prospective home buyer would take into consideration not only the
present state of the neighborhood, but future development that may occur there. An amendment
to the governing documents to authorize residential development of the current Golf Course
Property would certainly factor into a prospective home buyer’s decision as to whether to buy a
lot on the Golf Course, and how much to offer for that lot.

The Defendants argue that an amendment to the Golf Course Declaration would have no
adverse effects on the home value of the Plaintiff’s members because, they assert, the governing
documents already put prospective buyers on notice that the Golf Course Property may be
developed for non-golf uses. In support of its assertion on this point, the Association cites Article
12, § 12.1 of the Master Declaration, the “disclaimer” provision of the Master Declaration.

In pertinent part, Paragraph 12.1 of the Master Declaration gives notice that “no
representations or warranties have been or are made by Declarant or any other Person with
regard to the continuing ownership, operation or configuration of, or right to use, any golf course
within, near or adjacent to the Property.” Exhibit 1 at p. MCR 70 of 85, ¶ 12.1.2 According to the

2 Paragraph 12.1 of the Master Declaration provides as follows:

Disclaimers Regarding Golf Courses: All Persons, including all Owners, are hereby
advised that no representations or warranties have been or are made by Declarant or any
other Person with regard to the continuing ownership, operation or configuration of, or
right to use, any golf course within, near or adjacent to the Property, whether or not
depicted on the Master Development Plan or any other land use plan, sales brochure or
other marketing display or plat. No purported representation or warranty, written or oral,
in such regard shall ever be effective without an amendment hereto executed by Declarant.
Further, the ownership, operation or configuration of, or rights to use, any such golf course
may change at any time and from time to time for reasons including, but not limited to:
(a) the purchase or assumption of operation of any such golf course by an independent
Person; (b) the conversion of any such golf course’s membership structure to an equity
club or similar arrangement whereby the members of such golf course or an entity owned
or controlled thereby become the owner(s) and/or operator(s) of such golf course; (c) the
conveyance, pursuant to contract, option or otherwise, of such golf course to one or more
affiliates, shareholders, employees or independent contractors of the Declarant; or (d) the
conveyance of any such golf course to the Association or to one or more Subsidiary
Associations. As to any of the foregoing or any other alternative, no consent of the
Association, any Subsidiary Association or any Owner shall be required to effectuate such
transfer (except for the consent of the Association in the event of a transfer to the
Association or of the applicable Subsidiary Association in the event of a transfer to such
Subsidiary Association). No Owner or Occupant shall have any ownership interest in any
such golf course solely by virture of: (i) his, her or its membership in the Association or

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Page 10

Association, the language of Paragraph 12.1 of the Master Declaration disclaiming any
representations about the continued “operation” of, “configuration” of, or “right to use” the Golf
Course Property gives notice that the Golf Course Property may be developed for non-golf
purposes.

While it is true that Paragraph 12.1 of the Master Declaration gives notice that the Golf
Course may cease operating on the Golf Course Property, that is not the same as giving notice
that the Golf Course Property may be redeveloped for other, non-golf uses. Closing a golf course
is not the same as building houses on it. Likewise, Paragraph 12.1 of the Master Declaration
gives notice that members may lose their “right to use” the Golf Course, but does not state that
the use of the Golf Course Property may change to non-golf purposes. The language of
Paragraph 12.1 of the Master Declaration thus does not give notice that residential development
may occur on the Golf Course Property.

While the Plaintiff’s members would suffer an immediate hardship if the governing
documents were amended to authorize non-golf uses of the Golf Course Property, the
Association has identified no hardship at all that it would suffer if the requested injunction were
granted. On the contrary, the Association’s President, Mr. Hinz, made clear that there are
currently no proposals pending for any change to the permissible use of the Golf Course
Property. What hardship could the Association suffer as a result of being enjoined from doing
something that the Association states it has no plans to do anyway?

The Court thus finds that the hardship to the Plaintiff and its members greatly outweighs
any possible hardship to the Association, and so finds that the second prong of the “serious
questions/balance of hardships” test tips heavily in the Plaintiff’s favor. See Marcos, 862 F.2d at
1362 (holding that the balance of hardships “tipped decidedly” in plaintiff’s favor where
defendants presented “zero evidence of hardship”).

The Court concludes that the Plaintiff has established its entitlement to its requested
preliminary injunction under the “serious questions/balance of hardships” test. Because the
Plaintiff has established its entitlement to its requested relief under the “serious
questions/balance of hardships” test, the Court finds it unnecessary to address the alternative
“likelihood of success /irreparable injury” test. The Court notes, however, that denying the
requested relief would create a substantial risk of irreparable injury resulting from the diminution
in the value of the property owned by the Plaintiff’s members. Injury is irreparable if it is

any Subsidiary Association; or (ii) his, her or its ownership, use or occupancy of any Lot
or Parcel, or portion thereof.

Exhibit 1 at p. MCR 70 of 85, ¶ 12.1.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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Docket Code 926
Form V000A
Page 11

difficult to quantify in monetary terms, see Rent-A-Center, Inc. v. Canyon Television and
Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991), and calculating the amount of the
diminution in the value of the homes of the Plaintiff’s members would be difficult, to say the
least. The Court further notes that the issuance of the requested injunction pending resolution of
this case on the merits would have no adverse effect on the public interest. On the contrary,
because the public interest favors adherence to statutory “Open Meeting” requirements, see
A.R.S. § 33-1804, the public interest would be served by preventing the Association from taking
action as Declarant under the Golf Course Declaration until the validity of the Association’s
acceptance of the assignment of the Declarant’s rights is established. See, e.g., Sheridan Corp v.
U.S., 94 Fed.Cl. 663 (Fed.Cl. 2020) (granting preliminary injunction in “bid protest” case and
holding, inter alia, that public interest would be served by ensuring compliance with applicable
procurement statutes).

For the foregoing reasons, the Court finds that the Plaintiff has established its entitlement
to a preliminary injunction barring the Association and its Board from scheduling or holding a
vote of the Board or of the Association’s members to amend Paragraph 1.1 of the Golf Course
Declaration, or any other provision of the Golf Course Declaration or the Master Declaration, to
authorize or permit the Golf Course Property to be used or developed for non-golf purposes. The
Court will therefore issue a preliminary injunction to prohibit the Association and the Board
from scheduling or conducting such a vote.

As required by Ariz.R.Civ.P. 65(c)(1), the Court will require the Plaintiff to post security,
in the amount of $10,000.

In accordance with the foregoing, and pending further order of the Court,

IT IS ORDERED enjoining the Defendants and their agents and employees from
scheduling or conducting a vote of the Board, or of the Association’s members, to amend
Paragraph 1.1 of the Golf Course Declaration, or any other provision of the Golf Course
Declaration or the Master Declaration, to authorize or permit the non-golf use or development of
the property that is the subject of Paragraph 1.1 of the Golf Course Declaration.

IT IS FURTHER ORDERED that Plaintiffs shall post security in the amount of
$10,000.00.

IT IS FURTHER ORDERED setting a Status Conference to discuss the scheduling of
further proceedings on December 9, 2020 at 9:30 a.m. (15 minutes allotted) before this
Division.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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10/30/2020

Docket Code 926
Form V000A
Page 12

NOTE: Due to issues with COVID-19, counsel and self-represented parties are directed to
participate for said hearing by calling this Division’s bridge line promptly at the scheduled time.

Bridge Line:
602-506-9695 or 1-855-506-9695

Access Code:
953806

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.

/ s / HONORABLE DANIEL J. KILEY

_____________________________ __

Daniel J. Kiley

Judge of the Superior Court

Clerk of the Superior Court

*** Electronically Filed ***

11/12/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

11/10/2021

Docket Code 049
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOAN M. SINCLAIR
S. Motzer

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
CARLOTTA L TURMAN

TIMOTHY H BARNES
DANIEL G DOWD
JUDGE SINCLAIR

JUDGMENT

This matter came before the Court on the Defendants’ Motion for Summary Judgment
filed on August 19, 2020, and the Plaintiff’s Cross-Motion for Summary Judgment filed on
November 4, 2020. The Court reviewed and considered the memoranda submitted on behalf of
the parties as well as their respective statements of facts, the arguments made by counsel at the
January 22, 2021 oral argument, and the record in this matter.

On March 24, 2021, the Court issued its Under Advisement ruling granting the Plaintiff’s
Cross-Motion for Summary Judgment and denying the Defendants’ Motion for Summary
Judgment as follows:

1. In 1989, UDC-Foothills Limited Partnership caused to be recorded a Declaration of
Covenants, Conditions and Restrictions for a master planned community known as
Foothills Club West in the official records of the Maricopa County Recorder
(“MCR”) at No. 1989-0337438 (“the Master CC&Rs”). The name of the association
formed pursuant to the Master CC&Rs is the “Foothills Club West Community
Association.”

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2. In 1993, UDC Homes, Inc., and its wholly owned subsidiary, REA Acquisition
Corporation (“REA”), caused to be recorded a Declaration of Covenants, Conditions
and Restrictions at MCR No. 1993-0099989 (the “Golf Course Declaration”) for the
Foothills Club West Golf Course (the “Golf Course”).

3. In September, 2010, the Defendant Foothills Club West Community Association (the
“Association”), through its then-President, Paul Moroz, signed a document entitled
“Assignment of Declarant Rights,” which was subsequently recorded at MCR No.
2010-0806003.

4. The Assignment of Declarant Rights identifies Shea Homes Limited Partnership
(“Shea Homes”) as the successor-in-interest to the original Declarant, UDC Homes,
and states that Shea Homes “desires to assign to the Association, and the Association
desires to accept, all of the rights and obligations of the Declarant” under the Golf
Course Declaration.

5. The only method for allowing the Golf Course to be annexed into the Property subject
to the Master CC&Rs is to amend the Master CC&Rs as provided under Section 11.2
which requires a seventy-five percent-member (75%) vote to add or annex property to
the Property.

6. The Association has no legal right or authority to accept the Assignment of
Declarant’s Rights or to act as the Declarant under the Golf Course Declaration
without adhering to Section 11.2 of the Master CC&Rs which requires an
amendment, approved by a seventy-five percent-member (75%) vote, to annex the
Golf Course property into the Property.

7. The Golf Course property has not been annexed to or become part of the Property
subject to the Master CC&Rs.

8. The Association is required to abide by A.R.S. § 33-1804 (A), (F) which require that
“all meetings of the members’ association and the board of directors, and any
regularly scheduled committee meetings, are open to all members of the
association… .” Matters which may be heard in an “executive session,” set forth in
A.R.S. § 33-1804 (A)(1)-(5), are limited to those issues which involve: (a) obtaining
legal advice; (b) discussing pending or contemplated litigation; (c) discussing

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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Docket Code 049
Form V000A
Page 3

personal information relating to an individual member, employee or contractor of the
community; or (d) discussing a member’s appeal of a violation, citation or a penalty
imposed by the community.

9. None of the authorized subjects for executive sessions include voting or otherwise
taking action. The actions taken by the Association in accepting the Declarant Rights
under the Golf Course Declaration and in subsequently enacting amendments to the
Golf Course Declaration occurred in executive sessions which is contrary to A.R.S. §
33-1804.

10. The Defendants failed to comply with the open meeting requirements and violated
Arizona law when they voted and took the following acts in Executive Session:

A. Executing a document entitled “Assignment of Declarant Rights” recorded at
MCR No. 2010-0806003.

B. Executing the First Amendment to Declaration of Covenants, Conditions and
Restrictions for Foothills Club West Golf Course recorded at MCR No. 2018-
0753974.

C. Executing the Fifth Amendment to Declaration of Covenants, Conditions and
Restrictions for Foothills Club West Golf Course recorded at MCR No. 2019-
0534283.
Based on the foregoing,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

1. The Assignment of Declarant Rights recorded at MCR No. 2010-0806003 is null and
void ab initio.
2. The First Amendment to the Declaration of Covenants, Conditions and Restrictions for
Foothills Club West Golf Course recorded at MCR No. 2018-0753974 is null and void ab
initio.
3. The Fifth Amendment to the Declaration of Covenants, Conditions and Restrictions for
Foothills Club West Golf Course recorded at MCR No. 2019-0534283 is null and void ab
initio.
4. Shea Homes did not legally effectuate a valid transfer of the Declarant Rights under the
Golf Course Declaration to the Association by the Assignment of Declarant Rights

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

11/10/2021

Docket Code 049
Form V000A
Page 4

recorded at MCR No. 2010-0806003, and the Association did not become the Declarant
under the Golf Course Declaration.
5. A copy of this Judgment shall be recorded in the Official Records of the Maricopa
County Recorder so that the public record reflects that the foregoing instruments are null
and void ab initio.
6. Plaintiff Club West Conservancy shall have judgment against the Association in the sum
of $5,108.83 together with interest thereon at the rate 4.25% per annum from the date of
entry of this Judgment until paid.
7. The cash bond previously posted in the total amount of $10,000.00 is released, and the
Clerk of the Superior Court is directed to send a check in the full amount of $10,000.00
to:
Club West Conservancy
c/o Francis J. Slavin, P.C.
2198 East Camelback Road, Suite 285
Phoenix, Arizona 85016

8. No further matters remain pending, and this Judgment is entered under Ariz. R. Civ. P.
54(c).

Dated this 10th day of November, 2021.

/s/ JOAN SINCLAIR

JUDGE JOAN SINCLAIR
JUDICIAL OFFICER OF THE SUPERIOR COURT

Clerk of the Superior Court

*** Electronically Filed ***

11/12/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

11/10/2021

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE JOAN M. SINCLAIR
S. Motzer

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
CARLOTTA L TURMAN

TIMOTHY H BARNES
DANIEL G DOWD
JUDGE SINCLAIR

MINUTE ENTRY

The Edge at Club West, LLC (“ECW”) filed a Motion to Intervene in this matter on August
13, 2021 and a Request to Appear at the August 17, 2021 status conference. That status conference
was set to resolve an issue relative to the language in the proposed order. The Court held the
hearing on August 17, 2021, did not allow ECW to appear because they were not a party at that
point, and informed the parties that the Court would rule on the motion to intervene before issuing
any order concerning the language of the judgment.

On September 1, 2021, the Plaintiff filed their Response to the motion to intervene. ECW
filed their Reply on September 14, 2021. The Defendants filed a Sur-Reply to the motion to
intervene and objected to ECW’s proposed form of judgment on September 17, 2021. ECW then
filed its Motion to Strike the sur-reply on September 22, 2021 along with a notice of errata
concerning an exhibit. On October 12, 2021 ECW filed a Motion for Summary Disposition on
their motion to strike and on October 27, 2021 also filed a Motion for Leave to File Supplemental
Brief in Support of Motion to Intervene. The Defendants filed a Response to this Motion for Leave
on November 1, 2021.

SUPERIOR COURT OF ARIZONA
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Docket Code 019
Form V000A
Page 2

As preliminary matters,

IT IS ORDERED formally denying ECW’s request to appear at the August 17, 2021 status
conference.

IT IS FURTHER ORDERED granting ECW’s motion for summary disposition and
granting ECW’s motion to strike the Defendants’ sur-reply to their motion to intervene.

IT IS ALSO ORDERED denying ECW’s motion for leave to file a supplemental brief.

As to ECW’s motion to intervene,

IT IS ORDERED denying the motion to intervene. The Court denied the request for oral
argument on this motion because the Court determined that it was not necessary to resolve the
motion.

The original complaint filed on March 16, 2020 sought declaratory judgment that the
Defendant HOA’s recorded Assignment of Declarant Rights and its amendments were void and
unenforceable and an order that the Defendant HOA may not act as the Declarant under the Golf
Course Declaration. The First Amended Complaint filed on April 27, 2020 added a breach of
contract claim that the Defendant HOA breached the Master Declaration. On July 2, 2020, the
Court denied the Defendant HOA’s motion to dismiss. The Defendant HOA then filed a motion
for partial summary judgment on August 19, 2020 seeking a judgment as a matter of law that the
HOA has the right to be the Declarant under the Golf Course Declaration. The Plaintiff filed a
cross-motion for summary judgment seeking an order that the Defendant HOA breached its duties,
acted in an unauthorized fashion, and had no legal authority to act as the Declarant under the Golf
Course Declaration. The Plaintiff asked for a permanent injunction to stop the Defendant HOA
from acting as the Declarant under the Golf Course Declaration and to extinguish the recorded
assignments and amendments from the public record.

The Court issued its under advisement ruling granting the Plaintiff’s Cross-Motion for
Summary Judgment on March 24, 2021. The only issue pending at that point was the language of
the order of judgment proposed by the Plaintiff, specifically the language of paragraph 5 of the
proposed order and the statutory interest rate. At the August 17, 2021 status conference, the parties
agreed that paragraph 5 will be omitted and the statutory rate should reflect 4.25%. It is at this
juncture in the case that ECW filed its motion to intervene.

ECW states it its motion that if the Court signs the judgment proposed by the Plaintiff, it
will likely withdraw its motion. The Court intends to sign that judgment. The judgment will track
the language of the under advisement ruling only.

Clerk of the Superior Court

*** Electronically Filed ***

12/09/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

12/01/2020

Docket Code 022
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE ANDREW J. RUSSELL
K. Treftz

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
CARLOTTA L TURMAN

COMM. RUSSELL

MINUTE ENTRY

The Court has received Plaintiff’s Application for Temporary Restraining Order (with
notice) and Application for Preliminary Injunction, filed June 5, 2020.

IT IS ORDERED granting said motion, with modifications all in accordance with the
formal written Preliminary Injunction Order, signed by the Court on December 1, 2020 and entered
(filed) by the clerk on December 1, 2020.

Please note: The Court has signed a paper copy of the Order. After the Order has been
scanned and docketed by the Clerk of Court, copies of the Order will be available through the ECR
online at www.clerkofcourt.maricopa.gov or through www.AZTurboCourt.gov and from the
Public Access Terminals at the Clerk of Court’s offices located throughout Maricopa County.

Clerk of the Superior Court

*** Electronically Filed ***

12/11/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

12/09/2020

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE ANDREW J. RUSSELL
J. Eaton

Deputy

CLUB WEST CONSERVANCY
FRANCIS J SLAVIN

v.

FOOTHILLS CLUB WEST COMMUNITY
ASSOCIATION, et al.
CARLOTTA L TURMAN

COMM. RUSSELL

MINUTE ENTRY

East Court Building – Courtroom 911

9:32 a.m. This is the time set for a virtual Status Conference. Plaintiff is represented by
counsel, Francis J. Slavin and Daniel J. Slavin. Defendants are represented by counsel, Carlotta L.
Turman and Jeffrey Solloway. This matter proceeds via the GoToMeeting platform.

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

Case status and scheduling are discussed.

IT IS ORDERED setting virtual Oral Argument regarding Defendants’ August 19, 2020
Motion for Partial Summary Judgment and Plaintiff’s November 5, 2020 Cross-Motion for
Summary Judgment on January 22, 2021, at 9:00 a.m. (time allotted: 1 hour).

Hearings will be held via video conference through Court Connect and Microsoft TEAMS.
An invite to the TEAMS conference will be sent out to the email on file for each party or counsel
of record. It is the party’s responsibility to ensure receipt of the invitation prior to the hearing date.
The information is included below as well:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-003577

12/09/2020

Docket Code 094
Form V000A
Page 2

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

tinyurl.com/jbazmc-cvj13

You can also dial in using your phone.

Teams Phone Number: 1-917-781-4590 then you will be prompted for an access code. The
access code isn’t available at the time this minute entry is created, but the judicial staff will
be able to provide it to the participants prior to the hearing.

More information regarding Court Connect can be found at:
https://superiorcourt.maricopa.gov/court-connect/

8:39 a.m. Matter concludes.

NOTE: All court proceedings are made digitally in lieu of 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.

Documents