02/15/2022 — CV2020008665 ASSOCIATION, REGENCY HOUSE 02/15/2022 HONORABLE JOAN M. SINCLAIR View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
02/16/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
02/15/2022
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOAN M. SINCLAIR
S. Motzer
Deputy
MICHAEL LYON
DAMIEN R MEYER
v.
REGENCY HOUSE ASSOCIATION, et al.
AUGUSTUS H SHAW IV
JUDGE SINCLAIR
MINUTE ENTRY
The Court has received and reviewed Plaintiff’s Motion for Partial Summary Judgment
filed October 5, 2021.
IT IS ORDERED setting virtual Oral Argument on March 25, 2022 at 10:00 a.m. (1
hour 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. 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 5 minutes prior to the scheduled time.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
02/15/2022
Docket Code 094
Form V000A
Page 2
Participants: Please follow the steps below to participate in the proceeding which will be
conducted remotely.
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).
Self-represented litigants may call in if access to internet is not available.
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/
PLEASE NOTE: All correspondence to this Division should be sent to
[email protected].
03/03/2022 — CV2020008665 ASSOCIATION, REGENCY HOUSE 03/03/2022 HONORABLE JOAN M. SINCLAIR View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
03/07/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
03/03/2022
Docket Code 002
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOAN M. SINCLAIR
S. Motzer
Deputy
MICHAEL LYON
DAMIEN R MEYER
v.
REGENCY HOUSE ASSOCIATION, et al.
AUGUSTUS H SHAW IV
JUDGE SINCLAIR
MINUTE ENTRY
On the Court’s own motion,
IT IS ORDERED vacating the Trial Setting Conference on June 3, 2022 at 9:00 a.m.
03/25/2022 — CV2020008665 ASSOCIATION, REGENCY HOUSE 03/25/2022 HONORABLE JOAN M. SINCLAIR View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
03/28/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
03/25/2022
Docket Code 020
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOAN M. SINCLAIR
S. Motzer
Deputy
MICHAEL LYON
DAMIEN R MEYER
v.
REGENCY HOUSE ASSOCIATION, et al.
AUGUSTUS H SHAW IV
JUDGE SINCLAIR
MINUTE ENTRY
East Court Building – Courtroom 911
9:58 a.m. This is the time set for virtual Oral Argument on Plaintiff’s Motion for Partial
Summary Judgment filed October 5, 2021. Plaintiff is represented by counsel, Damien R. Myer.
Defendant is represented by counsel, Augustus H. Shaw IV. All parties appear via Court Connect.
A record of the proceedings is made digitally in lieu of a court reporter.
Argument is presented to the Court.
Based on the foregoing,
IT IS ORDERED taking this matter under advisement.
10:43 a.m. Matter concludes.
04/15/2022 — CV2020008665 ASSOCIATION, REGENCY HOUSE 04/15/2022 HONORABLE JOAN M. SINCLAIR View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
04/19/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
04/15/2022
Docket Code 926
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOAN M. SINCLAIR
S. Motzer
Deputy
MICHAEL LYON
DAMIEN R MEYER
v.
REGENCY HOUSE ASSOCIATION, et al.
AUGUSTUS H SHAW IV
JUDGE SINCLAIR
UNDER ADVISEMENT RULING
Plaintiff Michael Lyon filed his Motion for Partial Summary Judgment along with a
Statement of Facts on October 15, 2021. The matter was fully briefed. An oral argument was held
on March 25, 2022, and the Court took the matter under advisement. Plaintiff is seeking relief on
count 1 (breach of contract) and count 6 (injunctive relief and/or specific performance). The Court
notes that normally whether a breach of contract occurred is a factual determination. Fehribach
v. Smith, 200 Ariz. 69, 73, ⁋ 16 (App. 2001) (citation omitted).
The Plaintiff requests summary judgment under Rule 56 of the Arizona Rules of Civil
Procedure. Motion, page 1. The moving party bears the burden of demonstrating both absence of
any factual conflict and right to judgment. Nat’l Bank of Ariz. v. Thurston, 218 Ariz. 112, 115, ¶
13-14 (App. 2008). If the movant meets the burden, the nonmovant “must respond with specific
facts showing a genuine issue for trial.” MacConnell v. Motten, 131 Ariz. 22, 25 (1981). The
evidence is to be viewed in the light most favorable to the non-moving party, Espinoza v.
Schulenburg, 212 Ariz. 215, 216, ¶ 6 (2006), but the nonmoving party must produce more than a
“scintilla of evidence” or a “slight doubt” to survive the motion. Orme Sch. v. Reeves, 166 Ariz.
301, 304 (1990).
This case involves the language of the governing covenants, conditions and restrictions
(“CC&Rs”). The “common elements” of the property include the parking garage and parking
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
04/15/2022
Docket Code 926
Form V000A
Page 2
areas. Section 1.7 of the CC&Rs, p.3, Exhibit B to the complaint (hereinafter referred to simply
by the section number). The plat recorded with the CC&Rs was incorporated by reference into the
CC&Rs. Section 1.20. The recorded plat specifically identified the individual parking spaces in
the first basement plan and the second basement plan as they existed in April, 1979. Exhibit F to
the complaint. The Plaintiff was assigned parking space P-238 when he purchased his apartment
in 2009. Plaintiff’s SOF, ⁋ 28.
To amend the CC&Rs and the plat, section 24 states that “[t]he provisions of this
Declaration may be changed, modified or rescinded by an instrument in writing setting forth such
change, modification or rescission and signed and acknowledged by Owners owning not less than
seventy-five percent (75%) of the total ownership of the Common Elements and by all institutional
first Mortgagees. . .” and shall be effective once recorded. Section 24. In September 2019, the
parking garage was altered with new parking spaces and loading zones. Complaint, ⁋⁋ 50-54. The
Defendant argues that it was not required to follow the requirements of Section 24 in altering the
parking areas; Plaintiff argues that it was.
At first blush, it appears that the parking spaces cannot be altered without following the
Section 24 requirements. However, ownership of the common elements is not absolute. Section
6 of the CC&Rs states that each owner has the right to use the common elements but that “such
right…shall be subject to and governed by the provisions of the Act, Declaration, Bylaws and rules
and regulations of the Association.” Section 6. Furthermore, all parking spaces “may be assigned,
rented or otherwise used in such a manner as the Board may prescribe… .” Section 7. In addition,
“[p]arking of vehicles in driveways and parking areas shall be subject to the rules and regulations
of the Board applicable thereto.” Section 21.9. Moreover, the Bylaws of the Regency House
Association (“Bylaws”) specifically provide the Board with the power to “adopt rules and
regulations…governing the administration, management, operation and use of the Property and
the Common Elements… .” Bylaws, Section 11, Exhibit C to the complaint.
The Bylaws specifically allow the Board to “adopt rules and regulations…governing the
administration, management, operation and use of the Property and the Common Elements, and to
amend such rules and regulations from time to time.” Section 11(e), Bylaws. Similarly, the Board
has the authority to “provide for the maintenance, repair and replacement of the Common
Elements… .” Section 11 (f), Bylaws. The Defendant did not identify any particular rule or
regulation that allowed for the changes to the parking areas. The crux of the issue here is whether
the changes to the parking areas constitute either a “use” prescribed by the Board under Section 6
of the CC&Rs or part of the “maintenance, repair and replacement” of the common elements under
the Board’s authority as listed in the Bylaws at Section 11(f).
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
04/15/2022
Docket Code 926
Form V000A
Page 3
A reasonable juror could find based on the language of the CC&Rs, the Bylaws, and the
rules and regulations, that the Defendants have not breached the contract given the language noted
above. Therefore, the Court determines that this is not a matter for summary judgment.
IT IS ORDERED denying the motion for partial summary judgment.
06/08/2022 — CV2020008665 ASSOCIATION, REGENCY HOUSE 06/08/2022 HONORABLE JOAN M. SINCLAIR View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
06/09/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
06/08/2022
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOAN M. SINCLAIR
S. Motzer
Deputy
MICHAEL LYON
DAMIEN R MEYER
v.
REGENCY HOUSE ASSOCIATION, et al.
AUGUSTUS H SHAW IV
JUDGE SINCLAIR
MINUTE ENTRY
Plaintiff filed a Motion for Reconsideration on June 7, 2022.
IT IS ORDERED that Defendants file a response to this motion by June 29,
2022. Plaintiff shall file his reply by July 13, 2022.
06/16/2021 — CV2020008665 ASSOCIATION, REGENCY HOUSE 06/16/2021 HONORABLE JOAN M. SINCLAIR View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
06/17/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
06/16/2021
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOAN M. SINCLAIR
S. Motzer
Deputy
MICHAEL LYON
RACHEL ELLEN PHILLIPS
v.
REGENCY HOUSE ASSOCIATION, et al.
AUGUSTUS H SHAW IV
JUDGE SINCLAIR
MINUTE ENTRY
The Court received the Defendant’s [Expedited] Motion for Reconsideration filed on
June 9, 2021. Given the confusion relative to the order in the minute entry filed on December 7,
2020 and the change in judicial officers,
IT IS ORDERED that the Plaintiff shall file a response to this motion by July 6,
2021.
IT IS FURTHER ORDERED that the Defendants shall then file a reply by July 16,
2021.
The Court will then rule on the motion for reconsideration.
07/23/2021 — CV2020008665 ASSOCIATION, REGENCY HOUSE 07/23/2021 HONORABLE ANDREW J. RUSSELL View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
07/28/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
07/23/2021
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE ANDREW J. RUSSELL
S. Motzer
Deputy
MICHAEL LYON
RACHEL ELLEN PHILLIPS
v.
REGENCY HOUSE ASSOCIATION, et al.
AUGUSTUS H SHAW IV
COMM. RUSSELL
MINUTE ENTRY
The Court has reviewed Defendants’ [Expedited] Motion for Reconsideration filed June 9,
2021.
IT IS ORDERED denying Defendants’ [Expedited] Motion for Reconsideration.
09/06/2022 — CV2020008665 ASSOCIATION, REGENCY HOUSE 09/06/2022 HONORABLE JOAN M. SINCLAIR View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
09/07/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
09/06/2022
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOAN M. SINCLAIR
S. Motzer
Deputy
MICHAEL LYON
DAMIEN R MEYER
v.
REGENCY HOUSE ASSOCIATION, et al.
AUGUSTUS H SHAW IV
JUDGE SINCLAIR
MINUTE ENTRY
Plaintiff filed a Motion for Reconsideration, supporting exhibits, and the supporting
Declaration of Paul Bakalis on June 7, 2022. Defendant filed their Response June 29, 2022.
Plaintiff filed his Reply on July 14, 2022. The Court declined oral argument. With the matter being
fully briefed, the Court now rules.
Ariz. R. Civ. P. 7.1(e) gives parties the right to motion for reconsideration.
The Court was unfortunately unaware of Kalway v. Calabria Ranch HOA, LLC, 252 Ariz. 523
(2022) (“Kalway”), when considering the underlying motion for summary judgment. The Court
will do so now.
The fact of that the Arizona Supreme Court took this case strongly suggests it is new
precedent: “We granted review because the petition raises issues of statewide importance
regarding the scope of an HOA's authority to amend CC&Rs.” Kalway, id. at *23, ⁋ 7. The Arizona
Supreme Court considered whether an HOA’s general amendment power can place restrictions on
a homeowner’s use of their land through the lens of “the reasonable expectations of the affected
homeowners.” Kalway, id. at *22, ⁋ 1.
In Kalway, the homeowners amended the CC&Rs by a majority vote. While procedurally
proper, the Arizona Supreme Court held that the general amendment provision or general-purpose
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
09/06/2022
Docket Code 023
Form V000A
Page 2
statement of the CC&Rs did not provide sufficient notice of the proposed changes which infringed
on the reasonable expectations of the property owners. The Court notes that this is an objective
inquiry.
“The notice requirement relies on a homeowner's reasonable expectations based on the
declaration in effect at the time of purchase—in this case, the original declaration. Under general
contract law principles, a majority could impose any new restrictions on the minority because the
original declaration provided for amendments by majority vote. But allowing substantial,
unforeseen, and unlimited amendments would alter the nature of the covenants to which the
homeowners originally agreed.” Kalway, id. at 24 ¶ 15.
In this case, there was no vote by 75% of the owners to change, modify or rescind the
CC&Rs and the Plat under Section 24 of the CC&Rs. The recorded plat was incorporated into the
Declaration and specifically identified the parking spaces as they originally existed.
Adding parking spots within the already cramped parking structure was not contemplated
within the CC&Rs. The Plaintiff’s parking spot and the other owners’ spots between P-237 to P-
246 were disproportionally affected by the decision to alter the parking spaces. While the Board
has the authority to “maintain, repair, replace, administer and operate the Property” under Section
4.2 of the CC&Rs, this general authority does not extend to the completed alteration of the parking
areas because those changes were substantial and unforeseen under the CC&Rs especially when
no homeowners’ vote was taken.
Furthermore, Plaintiff alleges that the new parking spaces are illegal. Motion, pp. 7-8;
Exhibit 1 Bakalis Declaration. Defendants do not dispute the measurements taken by the Plaintiff
to prove the point that the three parking spaces behind P-237 to P-246 were illegal. Illegal parking
spaces are not something that a homeowner could reasonably expect. City of Phoenix Zoning
Ordinance 702(B)(2)(a).
Therefore, the Court determines that its prior ruling was inconsistent with the Kalway
decision.
IT IS ORDERED granting the Motion for Reconsideration and vacating the under
advisement ruling filed on April 19, 2022.
IT IS FURTHER ORDERED granting the Plaintiff’s Motion for Summary Judgment.
The Plaintiff shall file a proposed order with the trial court by September 30, 2022.
10/19/2020 — CV2020008665 ASSOCIATION, REGENCY HOUSE 10/19/2020 HONORABLE DANIEL J. KILEY View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
10/20/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
10/19/2020
Docket Code 094
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE DANIEL J. KILEY
S. Motzer
Deputy
MICHAEL LYON
RACHEL ELLEN PHILIPS
v.
REGENCY HOUSE ASSOCIATION, et al.
AUGUSTUS H SHAW IV
JUDGE KILEY
MINUTE ENTRY
The Court is in receipt of the Partial [sic] Motion to Dismiss Plaintiff’s Complaint filed
by Defendants Regency House Association et al., the Response to Defendants’ Partial [sic]
Motion to Dismiss Plaintiff’s Complaint filed by Plaintiff Michael Lyon, and the Defendants’
Reply in Support of Its [sic] Partial [sic] Motion to Dismiss Plaintiff’s Complaint. Oral
Argument has been requested. Accordingly,
IT IS ORDERED setting a telephonic Oral Argument on the above filings on December
4, 2020 at 10:00 a.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
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
10/19/2020
Docket Code 094
Form V000A
Page 2
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.
10/25/2022 — CV2020008665 ASSOCIATION, REGENCY HOUSE 10/25/2022 HONORABLE JOAN M. SINCLAIR View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
10/27/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
10/25/2022
Docket Code 375
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JOAN M. SINCLAIR
S. Motzer
Deputy
MICHAEL LYON
DAMIEN R MEYER
v.
REGENCY HOUSE ASSOCIATION, et al.
AUGUSTUS H SHAW IV
JUDGE SINCLAIR
CASE PLACED ON DISMISSAL CALENDAR
The Court has received the Notice of Settlement filed October 21, 2022.
IT IS ORDERED placing this matter on the Dismissal Calendar for dismissal of all
remaining claims and parties on or after January 25, 2023 without further notice unless, prior to
that date, Judgment is entered, a Stipulation for Dismissal is filed, or the dismissal deadline is
otherwise extended by the Court for good cause shown.
IT IS FURTHER ORDERED deeming any pending motions moot.
12/04/2020 — CV2020008665 ASSOCIATION, REGENCY HOUSE 12/04/2020 HONORABLE ANDREW J. RUSSELL View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
12/07/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
12/04/2020
Docket Code 005
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE ANDREW J. RUSSELL
S. Motzer
Deputy
MICHAEL LYON
RACHEL ELLEN PHILIPS
v.
REGENCY HOUSE ASSOCIATION, et al.
AUGUSTUS H SHAW IV
COMM. RUSSELL
MINUTE ENTRY
East Court Building – Courtroom 911
10:01 a.m. This is the time set for a virtual Oral Argument on the Partial [sic] Motion to
Dismiss Plaintiff’s Complaint filed by Defendants Regency House Association et al., the
Response to Defendants’ Partial [sic] Motion to Dismiss Plaintiff’s Complaint filed by Plaintiff
Michael Lyon, and the Defendants’ Reply in Support of Its [sic] Partial [sic] Motion to Dismiss
Plaintiff’s Complaint.. Plaintiff is represented by counsel, Rachel Ellen Philips. Plaintiff is also
present. Defendants are represented by counsel, Augustus H Shaw IV.
A record of the proceedings is made digitally in lieu of a court reporter.
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 2020-008665
12/04/2020
Docket Code 005
Form V000A
Page 2
IT IS ORDERED granting the Motion to Dismiss Plaintiff’s Complaint as it relates to
Count IV Gross Negligence – All Defendants, and denying said Motion as to all remaining
counts.
Further discussion is held.
10:52 a.m. Matter concludes.
12/18/2020 — CV2020008665 ASSOCIATION, REGENCY HOUSE 12/18/2020 HONORABLE ANDREW J. RUSSELL View Minute Entry ↑ top
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Clerk of the Superior Court
*** Electronically Filed ***
12/21/2020 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2020-008665
12/18/2020
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE ANDREW J. RUSSELL
S. Motzer
Deputy
MICHAEL LYON
RACHEL ELLEN PHILLIPS
v.
REGENCY HOUSE ASSOCIATION, et al.
AUGUSTUS H SHAW IV
ALTERNATIVE DISPUTE
RESOLUTION - CCC
COMM. RUSSELL
MINUTE ENTRY
Pursuant to the Scheduling Order signed by the Court on December 17, 2020 and filed
(entered) by the clerk on December 21, 2020,
IT IS ORDERED that the parties shall participate in a mandatory Settlement Conference.
This case is referred to the Court's Alternative Dispute Resolution Office for the appointment of a
judge pro tempore to conduct a settlement conference. Counsel and/or the parties will receive a
minute entry from ADR appointing the judge pro tempore. Counsel and any "pro per" parties will
contact the appointed judge pro tempore to arrange the date, time and location for the settlement
conference. The judge pro tempore is requested to conduct a settlement conference not later than
April 16, 2021. The Office of Alternative Dispute Resolution will not do the scheduling of the
settlement conference so please do not contact that office. If counsel prefer to use a private
mediator to conduct the Settlement Conference, a Stipulation and Order Re: Alternative to ADR
must be presented to the Court.
