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Maricopa County Superior Court Case CV2020-094239: public docket details, parties, minute entries, documents, and official source links for Treviso Community Association.

Case Number

CV2020-094239

County

Maricopa

Caption

Not captured

Filed

7/23/2020

Case Type

Civil

Judge

Driggs, Adam

Location

Downtown

Official Court Record

Official Court Record

Parties

Minute Entries

Clerk of the Superior Court

*** Electronically Filed ***

01/26/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

01/25/2021

Docket Code 019
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE TRACEY WESTERHAUSEN
C. Avena

Deputy

ROBERT GIEDT, et al.
KEVIN R HARPER

v.

TREVISO COMMUNITY ASSOCIATION
NICHOLAS C NOGAMI

ALTERNATIVE DISPUTE
RESOLUTION - CCC
JUDGE WESTERHAUSEN

MINUTE ENTRY

Ruling denying Treviso’s motion to compel alternative dispute resolution.

Plaintiffs Robert and Leslie Giedt applied to Defendant Treviso Community Association
(a homeowners association) for the construction of a pergola on their property. After the Giedts
built the pergola, they and Treviso developed a conflict. This lawsuit resulted:

First Cause of Action – breach of contract/duty of good faith and fair dealing;

Second Cause of Action – declaratory judgment;

Third Cause of Action – Violation of A.R.S. Sections 33-1803/1805 (planned
communities legislation); and,

Fourth Cause of Action – breach of fiduciary duty.

Treviso filed a “Motion to Compel Arbitration.” 9/11/2020 Filing ID 11993591. It asked
the Court to send the case to alternative dispute resolution (“ADR”) under the documents that
govern the association. The Association’s Declaration states at Article 10.4:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

01/25/2021

Docket Code 019
Form V000A
Page 2

Alternative Dispute Resolution. Any dispute or claim between or
among…(ii)_any Owner and another Owner; or (iii) the Association and any Owner
regarding any controversy or claim between the parties, including any claims based on
contract, tort, or statute, arising out of or relating to (i) the rights or duties under this
Declaration…shall be subject first to negotiation, then mediation, and then arbitration as
set forth in this Section 10.4 prior to any party to the Dispute instituting litigation with
regard to the Dispute.
There is an exception to the ADR clause, not applicable here.

The response1 from the Giedts was that identical governing documents at issue in the
instant matter were already the subject of an appellate opinion: Saguaro Highlands Community
Ass’n v. Biltis, 224 Ariz. 294, 298 Para 14 (App. 2010):
¶ 14 In sum, under a plain language reading of the CC & Rs as a whole, section
10.4 applies to disputes over alleged construction defects, as the preamble to article 10
indicates, and 9.12 applies to enforcement actions related to violations of the CC & Rs.
Therefore, the Association or any owner would have the authority to take action to obtain
an injunction, under section 9.1, “to compel removal of any [i]mprovements constructed
in violation of [the CC & Rs][»»».]” As did the superior court, we read sections 9.1 and
10.4 to represent distinct procedures for resolving disputes between the Association and
individual homeowners concerning violations of the CC & Rs—construction of an
improvement made by the homeowner, on the one hand, and construction defects by a

1 “Response to Defendant Treviso Community Association’s Motion to Compel Arbitration,”
9/29/2020 10:05:23 AM
Filing ID 12050417
2 The Section 9.1 at issue in Saguaro is identical to Section 9.1 here. In Saguaro, it read: “The
Association or any Owner shall have the right to enforce the Project Documents in any manner
provided for in the Project Documents or by law or in equity, including, but not limited to, an
action to obtain an injunction to compel removal of any Improvements constructed in violation
of this Declaration or to otherwise compel compliance with the Project Documents. ... If any
lawsuit is filed by the Association or any Owner to enforce the provisions of the Project
Documents or in any other manner arising out of the Project Documents or the operations of the
Association, the prevailing party in such action shall be entitled to recover from the other party
all attorneys' fees, costs and expenses incurred by the prevailing party in addition to any relief or
judgment ordered by the court in the action (including postjudgment attorneys' fees and costs).”

Saguaro, 224 Ariz. at 297.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

01/25/2021

Docket Code 019
Form V000A
Page 3

developer or contractor, on the other. Because the dispute at issue in this case does not
involve a construction defect, Article 10 of the CC & Rs is not applicable and the
superior court did not err in denying the motion to compel arbitration.
While in Saguaro, the association was the plaintiff seeking to obtain an injunction to compel
removal of a swing set, and here, it is the homeowners seeking relief, the Court of Appeals has
already held that Article 10 and the Section 10.4 ADR provision of the governing documents
applies only to construction defects.

This Court is bound by Saguaro. It finds that Section 9.1, not Section 10.4, governs the
enforcement issues in this case, and denies the motion to compel ADR.

Clerk of the Superior Court

*** Electronically Filed ***

02/07/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

02/04/2022

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE STEPHEN M. HOPKINS
V. Felix

Deputy

ROBERT GIEDT, et al.
KEVIN R HARPER

v.

TREVISO COMMUNITY ASSOCIATION
NICHOLAS C NOGAMI

ALTERNATIVE DISPUTE
RESOLUTION - CCC
JUDGE HOPKINS

MINUTE ENTRY

Pursuant to the parties’ joint 1st Amended Scheduling Order signed by the Court on
February 4, 2022,

IT IS ORDERED that the parties shall participate in a mandatory settlement conference.
This case is referred to the Court’s Alternative Dispute Resolution (ADR) Department for the
appointment of a judge pro tempore to conduct a settlement conference. The judge pro tempore
is requested to conduct the settlement conference no later than May 13, 2022.

Clerk of the Superior Court

*** Electronically Filed ***

02/09/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

02/08/2023

Docket Code 028
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE ROGER E. BRODMAN
I. Ostrander

Deputy

ROBERT GIEDT, et al.
KEVIN R HARPER

v.

TREVISO COMMUNITY ASSOCIATION
NICHOLAS C NOGAMI

COMM BRODMAN

STATUS CONFERENCE SET

Courtroom 207 SEF

8:52 a.m. This is the time set for telephonic Status Conference to set a trial date. Plaintiffs
Robert Giedt and Leslie Giedt are not present but are represented by counsel Kevin R. Harper.
Defendant Treviso Community Association is represented by counsel Nicholas C. Nogami. All
parties are present virtually via the Court Connect platform.

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

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

Based on the discussion held, the Court directs counsel to review Rule 38 as to whether a
jury trial is appropriate and/or necessary.

The Court advises it has availability for a bench trial March 28 – March 30, 2023.

IT IS ORDERED setting a Status Conference in this division on February 15, 2023, at
9:00 a.m. (15 minutes allotted) for the purpose of setting a trial date.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

02/08/2023

Docket Code 028
Form V000A
Page 2

Your hearing will be conducted through the new Teams program offered by the Superior
Court of Arizona in Maricopa County. Hearings are conducted preferably by videoconference but
also can be conducted by phone. Lawyers (and self-represented litigants) are responsible for
distributing this notice to anyone who will be appearing on their behalf.

Virtual Proceedings are held via the Court Connect platform. Please review the brief Court
Connect training prior to the hearing: https://superiorcourt.maricopa.gov/virtual-justice/.

When you are ready to connect to the proceedings via Court Connect, please follow the
steps below.

1. CLICK THE JOIN MICROSOFT TEAMS MEETING BUTTON BELOW.
2. ENTER YOUR FULL NAME AND YOUR ROLE IN THE NAME FIELD.
3. WAIT IN THE LOBBY UNTIL GRANTED ADMISSION BY THE FACILITATOR.

You can also join by phone, if necessary, by using the number below with the Conference
ID #.

If you have called into your hearing and are still waiting in the lobby after the scheduled
start time, please call the division telephone number at (602) 372-5561.

Virtual Courtroom
Please join my Teams meeting from your computer, tablet, or smartphone.
https://tinyurl.com/jbazmc-cvj22

You can also dial in using your phone.
United States: +1 917-781-4590
Access Code: 969-248-722#

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.

9:16 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

02/23/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

02/15/2023

Docket Code 089
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE ROGER E. BRODMAN
C. Avena

Deputy

ROBERT GIEDT, et al.
KEVIN R HARPER

v.

TREVISO COMMUNITY ASSOCIATION
NICHOLAS C NOGAMI

COMM BRODMAN

BENCH TRIAL SET

Courtroom 207 (SEA)

9:02 a.m. This is the time set for Status Conference for the purpose of setting a trial date.
Plaintiffs Robert Giedt and Leslie Giedt are represented by counsel Kevin R. Harper. Defendant
Treviso Community Association is represented by counsel Nicholas C. Nogami.

Today’s proceeding is being held virtually through Court Connect. A record of the
proceedings is made digitally in lieu of a court reporter.

The Court and counsel discuss the setting of a trial date. Counsel are in agreement with
setting this matter for a bench trial.

IT IS ORDERED setting a remote Trial Management Conference on August 8, 2023 at
9:00 a.m. (time allotted: 30 minutes) before this Division.

Your hearing will be conducted through the new TEAMS program offered by the Superior
Court of Arizona in Maricopa County. Hearings are preferably conducted by video-conference but
can also be conducted by phone. Lawyers (and self-represented litigants) are responsible for
distributing this notice to anyone who will be appearing on their behalf.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

02/15/2023

Docket Code 089
Form V000A
Page 2

CRJ23. Virtual Proceedings are held via the Court Connect platform. Please review the
brief Court Connect training prior to the hearing:
https://superiorcourt.maricopa.gov/virtual-justice/.

When you are ready to connect to the proceedings via Court Connect, please follow the
steps below.

1. CLICK THE JOIN MICROSOFT TEAMS MEETING BUTTON BELOW
2. ENTER YOUR FULL NAME AND ROLE IN NAME FIELD.
3. WAIT IN THE LOBBY UNTIL GRANTED ADMISSION BY FACILITATOR.

You can also join by phone if necessary by using the number below with the Conference
ID #

Virtual Courtroom
Please join my Teams meeting from your computer, tablet or smartphone.
https://tinyurl.com/jbazmc-cvj22

You can also dial in using your phone.
United States: +1 917-781-4590
Access Code: 969-248-722#

IT IS FURTHER ORDERED setting this matter for an in-person Trial to the Court on
September 5, 2023 at 9:30 a.m. (time allotted: 2 days) before this Division.

MARICOPA COUNTY SUPERIOR COURT
SOUTHEAST JUDICIAL FACILITY
COURTROOM 207
222 E. JAVELINA
MESA, AZ 85210

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.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

02/15/2023

Docket Code 089
Form V000A
Page 3

IT IS FURTHER ORDERED that, by August 22, 2023, the parties are to submit a Joint
Pre-Trial Statement, that identifies:
1. What issues are to be resolved by the Court.
2. What witnesses will be called to testify, and a brief summary as to what each of
those witnesses are going to testify to.
3. Any exhibits that they intend to present at the Evidentiary Hearing. The parties
shall also list any objections to any exhibits.

IT IS FURTHER ORDERED that no later than August 29, 2023, either side may
submit, not to exceed twelve pages, a Pre-Hearing Statement setting forth their respective
positions.

IT IS FURTHER ORDERED that, by August 22, 2023, the parties shall exchange a list
of witnesses and exhibits they intend to present at the Bench Trial.

IT IS FURTHER ORDERED that either side may submit, not to exceed eight pages, a
Pre-Hearing Statement indicating their position.

The parties are to promptly notify the Court if they resolve their issues and the Bench Trial
can be vacated. In the event the parties do not resolve their issues, each party shall deliver to the
judge at the Bench Trial a tabbed notebook containing that party’s exhibits.

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 August 22, 2023.

The dates set forth in this Order are FIRM dates and will not be extended or modified by
this Court absent good cause. Lack of preparation will not ordinarily be considered good cause.

PLEASE NOTE: If/when a party files a pleading within 48 hours of a scheduled event,
the party should also e-mail same to the Court’s Judicial Assistant at
[email protected].

NOTE: THE PARTIES SHALL UPLOAD AND E-FILE ALL PROPOSED
ORDERS IN WORD FORMAT ONLY TO ALLOW FOR POSSIBLE MODIFICATIONS
BY THE COURT.

Discussion is held regarding Rule 38.

9:19 a.m. Matter concludes.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

02/15/2023

Docket Code 089
Form V000A
Page 4

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.

 Exhibits should include a colored and numbered divider sheet between each
exhibit. Exhibits should be delivered no later than August 22, 2023.

 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 ***

03/09/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

03/08/2021

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE TRACEY WESTERHAUSEN
C. Avena

Deputy

ROBERT GIEDT, et al.
KEVIN R HARPER

v.

TREVISO COMMUNITY ASSOCIATION
NICHOLAS C NOGAMI

COMM. KAISER
JUDGE WESTERHAUSEN

MINUTE ENTRY

This division has received Plaintiff’s e-filed Application/Affidavit for Entry of Default
against Defendant(s), Treviso Community Association in the above-captioned case.

IT IS ORDERED that no action will be taken by this division on the above referenced
document(s).

The parties are advised that commissioners handle Rule 55(b) Default Judgment
proceedings and that the default proceedings in this matter are to be heard by Commissioner Brian
Kaiser.

IT IS FURTHER ORDERED that all documents necessary to support the entry of a
default judgment must be e-filed.

Pursuant to the Maricopa County eFiling Guidelines, section 2.09, attorneys shall
electronically file all the documents required to request a default judgment, such as the Application
for Entry of Default, Motion for Entry of Default Judgment, Sum Certain Affidavit, and
Application for Attorneys’ Fees when appropriate and Statement of Costs, but shall submit a

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

03/08/2021

Docket Code 023
Form V000A
Page 2

default judgment packet required by the Court, including the documents identified on the default
judgment packet coversheet in paper to the assigned commissioner’s division. A commissioner
will not act upon a Motion for Entry of Default Judgment until the default judgment packet with
all the required documents has been received by the division in paper form.

The parties/counsel can find additional information in the form of frequently asked
questions
at:
http://www.superiorcourt.maricopa.gov/SuperiorCourt/CivilDepartment/howDoI.asp

The parties/counsel can find additional information regarding the default judgment process
at:
https://superiorcourt.maricopa.gov/llrc/cv_cvc6/

Clerk of the Superior Court

*** Electronically Filed ***

05/12/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

05/11/2023

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE PATRICIA TREBESCH
C. Avena

Deputy

ROBERT GIEDT, et al.
KEVIN R HARPER

v.

TREVISO COMMUNITY ASSOCIATION
NICHOLAS C NOGAMI

COMM. TREBESCH

MINUTE ENTRY

Addendum To Minute Entry of 02/15/2023.

1. MOTIONS IN LIMINE. All Motions in Limine shall be filed no later than 5:00 p.m. on
July 18, 2023 and such motions must meet the test of State v. Superior Court, 108 Ariz.
396, 397; 499 P.2d 152 (1972): The primary purpose of a Motion in Limine is to avoid
disclosing to the jury prejudicial matters which may compel a mistrial. See also, Ariz. R.
Evid. 103(d). Any written Response to a Motion in Limine shall be filed no later than 5:00
p.m. on July 28, 2023. The Court may rule on Motions in Limine without oral argument.
No Replies shall be filed. Prior to filing a Motion in Limine, the parties are to confer and
attempt to resolve those issues. The parties shall further certify to the Court the efforts
made to resolve those issues before filing a Motion in Limine. The parties must comply
with Rule 7.2(a) Ariz.R.Civ.P., prior to filing any Motion in Limine. Any Motion in
Limine filed without the movant having first complied with Rule 7.2(a), will be stricken
by the Court. The parties are limited to only filing three Motions in limine.
2. Joint Pre-Trial Statement. The due date for the Joint Pre-Trial Statement is accelerated
to August 1, 2023 by 5:00 p.m.

Clerk of the Superior Court

*** Electronically Filed ***

08/15/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

08/08/2023

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE ADAM D. DRIGGS
C. Avena

Deputy

ROBERT GIEDT, et al.
KEVIN R HARPER

v.

TREVISO COMMUNITY ASSOCIATION
NICHOLAS C NOGAMI

JUDGE DRIGGS

FINAL PRETRIAL MANAGEMENT CONFERENCE

Courtroom 207 (SEF)

9:04 a.m. This is the time set for a Final Pre-Trial Management Conference. Plaintiffs
Robert Giedt and Leslie Giedt are present and represented by counsel, Kevin R. Harper.
Defendant Treviso Community Association is represented by counsel, Nicholas C. Nogami.

Today’s proceeding is being held virtually through Court Connect. A record of the
proceedings is made digitally in lieu of a court reporter.

Discussion is held regarding who will all be present in the Courtroom during trial.

The length of trial and the trial schedule are discussed. The Court affirms the 2-day Bench
Trial set to commence on September 5, 2023 at 9:30 a.m.

The Court’s electronic equipment is discussed. If parties would like to check their trial
equipment, they shall schedule a time with Court’s staff.

Discussion is held regarding the use of a court reporter. Neither party is requesting a court
reporter.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

08/08/2023

Docket Code 020
Form V000A
Page 2

Exhibits are discussed. The Court advises counsel to meet and confer regarding stipulations
to exhibits. Counsel are advised that objections to exhibits will be resolved during the course of
trial. Additionally, admission of exhibits, whether through stipulation or for lack of preserving an
objection in the Joint Pretrial Statement, will also be addressed during the trial.

The Court is in receipt of Treviso Community Association’s Motion in Limine No. 1 filed
July 18, 2023.

Counsel are in agreement that Oral Argument is not needed for the pending Motion in
Limine No. 1. The Court shall rule on the motion based on the pleadings filed.

IT IS ORDERED taking Treviso Community Association’s Motion in Limine No. 1.
under advisement.

The Court’s “Bench Trial Set” Minute Entry dated February 15, 2023 is addressed.

To further clarify the “Bench Trial Set” Minute Entry dated February 15, 2023,

IT IS ORDERED that no later than August 29, 2023, either side may submit, not to exceed
twelve pages, a Pre-Hearing Statement setting forth their respective positions.

9:20 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

08/30/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

08/29/2023

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE ADAM D. DRIGGS
C. Avena

Deputy

ROBERT GIEDT, et al.
KEVIN R HARPER

v.

TREVISO COMMUNITY ASSOCIATION
NICHOLAS C NOGAMI

JUDGE DRIGGS

MINUTE ENTRY

On August 8, 2023, the Court held a Final Pretrial Management Conference in this matter
and conducted a brief discussion with the parties regarding Defendant Treviso Community
Association’s Motion in Limine No. 1 filed July 18, 2023.
The motion seeks to preclude the introduction of any evidence, argument, and/or
testimony regarding the sixty-day automatic approval provision, as this has been resolved in the
Court’s prior ruling in the minute entry dated November 8, 2022, when it denied each parties’
separate Motion for Summary Judgment and is therefore “law of the case.” In that minute entry,
the Court wrote, “[t]he Court finds that under the clear language of the CCRs, the 60-day waiver
period championed by P’s does not apply.” Defendant argues that his language is dicta, and
notes that the Court denied both parties’ motions in the ruling.
The Court has considered the positions of each party as set forth in their respective
pleadings and comments to the Court.
THE COURT FINDS that while the prior judge in this matter provided significant
analysis on the issue, as well as the Court’s position on the issue based on the information before
it, that such finding is not “law of the case.”

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

08/29/2023

Docket Code 926
Form V000A
Page 2

THE COURT FURTHER FINDS that while the Courts indicated it’s finding on the
record, that such finding was no executed into a Court order. As such, the Court finds that the
statement at issue made by the prior judge in his previous ruling is not binding on the Court at
trial, but it may still be cited by as persuasive authority at trial.
The Court also notes that Judge Hopkins’ minute entry of November 8, 2022, provided
favorable dicta to each party, as it set forth significant judicial commentary on the positions of
each party, including the unambiguous and ambiguous factual matters to be argued by the
parties. It is clear that Judge Hopkins provided his own “take” on the evidence and which party
he believed would likely prevail at trial, but the Court will allow each party to present their
complete case on the merits and determine independently the persuasive weigh it will give the
previous judge’s findings and inclinations.
Based on the above,
IT IS ORDERED Treviso Community Association’s Motion in Limine No. 1 is denied.

Clerk of the Superior Court

*** Electronically Filed ***

09/12/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/05/2023

Docket Code 012
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE ADAM D. DRIGGS
C. Avena

Deputy

ROBERT GIEDT, et al.
KEVIN R HARPER

v.

TREVISO COMMUNITY ASSOCIATION
NICHOLAS C NOGAMI

JUDGE DRIGGS

BENCH TRIAL
DAY ONE

Prior to commencement of trial, Plaintiffs’ exhibits 1 through 31 and Defendants’ exhibits
32 through 49 are marked for identification.
9:33 a.m. This is the time set for trial to the Court. Plaintiffs Robert Giedt and Leslie
Giedt are present with counsel, Kevin R Harper. Defendant Treviso Community Association is
present with counsel, Nicholas C Nogami. Director of Treviso Community Association, is also
present.

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

Opening statements are presented to the Court.

Plaintiffs’ Case:

Robert Giedt is sworn and testifies.

Plaintiffs’ exhibits 1, 2, and 3 are received in evidence.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/05/2023

Docket Code 012
Form V000A
Page 2

Defendant’s exhibits 43 and 49 are received in evidence.

Plaintiffs’ exhibits 30, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 16 are received in evidence.

11:59 a.m. Court stands at recess.

2:43 p.m. Court reconvenes with respective counsel and parties present.

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

Robert Giedt resumes the stand and testifies further

Plaintiffs’ exhibits 17, 18, 19, 20, 21, 22, 23, 24, 26, and 27 are received in evidence.

4:24 p.m. Court stands at recess until 9:30 a.m. on September 6, 2023.

Clerk of the Superior Court

*** Electronically Filed ***

09/12/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/06/2023

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE ADAM D. DRIGGS
C. Avena

Deputy

ROBERT GIEDT, et al.
KEVIN R HARPER

v.

TREVISO COMMUNITY ASSOCIATION
NICHOLAS C NOGAMI

JUDGE DRIGGS

BENCH TRIAL
DAY TWO

9:36 a.m. Trial to the Court continues from September 5, 2023. Plaintiffs Robert Giedt and
Leslie Giedt are present with counsel, Kevin R Harper. Defendant Treviso Community Association
is present with counsel, Nicholas C. Nogami. Director of Treviso Community Association Russell
Falconer is present.

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

Plaintiffs’ Case Continues:

Robert Giedt, having been previously sworn on September 5, 2023, resumes the stand and
testifies further.

The witness steps down.

Leslie Giedt is sworn and testifies.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/06/2023

Docket Code 020
Form V000A
Page 2

The witness steps down.

Plaintiffs rest.

10:24 a.m. Court stands at recess.

10:37 a.m. Court reconvenes with respective counsel and parties present.

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

Defendant’s case:

Russell Falconer is sworn and testifies.

12:08 p.m. Court stands at recess.

1:34 p.m. Court reconvenes with respective counsel and parties present.

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

Russell Falconer resumes the stand and testifies further

Plaintiffs’ exhibit 29 is received in evidence.

Defendant’s exhibit 48 is received in evidence.

Plaintiffs’ exhibit 31 is received in evidence.

The witness steps down.

Defendant rests.

Closing arguments are presented to the Court.

IT IS ORDERED taking this matter under advisement.

4:14 p.m. Trial concludes.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/06/2023

Docket Code 020
Form V000A
Page 3

EXHIBITS RELEASED

IT IS FURTHER ORDERED that the clerk permanently release all exhibits not offered
in evidence to the counsel/party causing them to be marked, or to their written designee.
Counsel/party shall have the right to refile relevant exhibits as needed in support of any appeal.
Refiled exhibits must be accompanied by a Notice of Refiling Exhibits and presented to the
Exhibits Room of the Clerk’s Office. The Court’s exhibit tag must remain intact on all refiled
exhibits.

IT IS FURTHER ORDERED that counsel/party or written designee take immediate
possession of all exhibits referenced above.

Clerk of the Superior Court

*** Electronically Filed ***

09/29/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/28/2023

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE ADAM D. DRIGGS
C. Avena

Deputy

ROBERT GIEDT, et al.
KEVIN R HARPER

v.

TREVISO COMMUNITY ASSOCIATION
NICHOLAS C NOGAMI

JUDGE DRIGGS

MINUTE ENTRY

The Court held a bench trial in this matter on September 5 and 6, 2023. Plaintiffs
brought four claims in their complaint - (Count 1) Breach of Contract, (Count 2) Declaratory
Judgment, (Count 3) Violation of A.R.S. §§ 33-1803/1805, (Count 4) Breach of Fiduciary Duty,
asking for an award of monetary damages and their attorneys’ fees and costs incurred in
connection with this lawsuit. Defendant brought counterclaims – (Count 1) Breach of Contract,
and (Count 2) Injunctive Relief.
At the conclusion of the trial, the Court took the matter under advisement. The Court has
since considered the evidence, including the demeanor of the witnesses, reviewed the exhibits as
well as the case history, and considered the parties’ arguments. After significant deliberation,
the Court makes the following findings and enters the following orders:
FINDINGS OF FACT
1. The Court has jurisdiction over this matter, and venue is proper before this Court.

2. Treviso Community Association (the “Association”) is a planned community subject to the
provisions of A.R.S. §§ 33-1801 to 33-1819.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/28/2023

Docket Code 926
Form V000A
Page 2

3. The Association is a nonprofit corporation subject to the provisions of A.R.S. §10-3101,
et. seq.

4. The Association is governed by the Treviso Declaration of Covenants, Conditions and
Restrictions recorded at Sequence Number 2003-1581405 in the office of the Maricopa
County Recorder ( (“CC&Rs”) and the Treviso Design Guidelines (“Design Guidelines”).

5. The Plaintiffs, Robert Giedt and Leslie Giedt, own the real property located at 36255 N.
Livorno way, Scottsdale, Arizona 85262, which is located in the Treviso Community
Association.

6. The Plaintiffs submitted an Architectural Approval Request dated March 1, 2019, to the
Association’s management company seeking approval for construction of a pergola
structure in the backyard of their property.

7. The request stated: “We intend to add a shade structure to the southeast portion of our
building envelope. It will be constructed of wood beams with metal braces and stone
accents to match the existing materials in our yard. The dimensions are to be 10 x 10 x10
and will be in compliance with necessary setbacks from property lines and NAOS. Drawing
already submitted to Steve Patricola.” The request stated they intended to begin
construction of the Structure on March 4, 2019, and complete the same by April 25, 2019.

8. On March 2, 2019, the Plaintiffs received an email confirmation of submission for their
Architectural Request. The email stated that the request would “be reviewed by HOA
personnel to verify that it is complete (all required information is included). Once verified,
your request will be sent to the Architectural Committee for review.”

9. On or about March 5, 2019, the Plaintiffs received notification that the Architectural
Approval Request was received and was reviewed by HOA personnel and had been
forwarded to the Committee for review. This letter specifically stated: “Please do not start
any work on your request until it has been approved and you have received an official
approval letter from the Association.”

10. Several weeks after Plaintiffs submitted an architectural application seeking approval of a
pergola structure, Plaintiffs called Leann Morlan, the Association’s then Property Manager
employed by City Properties, inquiring about the status of the submittal.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/28/2023

Docket Code 926
Form V000A
Page 3

11. Ms. Morlan informed Plaintiffs that the Board had been notified of the request and that she
had reserved a conference room for the Board to meet and address the request and other
business.

12. Ms. Morlan also stated that there was a time limit for the Board to approve/disapprove the
application and that the exact time could be found in the community documents.

13. Plaintiffs then reviewed the Association’s Design Guidelines, and read in Section M, which
states, which covers “Landscape Plan Submittal and Requirements” that the review process
indicates that “[t]he Association will issue a written response within fourteen (14) days
upon receipt of your submission.”

14. Section M of the Association’s Design Guidelines were not applicable to the Architectural
Approval Request.

15. Plaintiffs erroneously believed that Section M applied to their request, believing that the
fourteen-day time period was what Ms. Morlan was referring to during their conversation
and that the submission was therefore deemed approved after that time had passed.

16. Section M does not contain any provision which indicates that a request is deemed
approved if a written response is not issued within 14 days.

17. Plaintiffs began construction on the pergola without approval on or about March 22, 2019,
while their application was pending.

18. Plaintiff’s actions to begin construction prior to obtaining approval were in violation of the
Association bylaws.

19. On or about April 1, 2019, Plaintiffs received a notice from Mark Rounsaville indicating
that they were in violation of Article 3, Section 3.1.1. The letter asked Plaintiff’s to
“complete and return the enclosed architectural submittal form for the following:” (No
further request or instruction was given after the colon.)

20. The April 1, 2019, letter asked the Plaintiffs to stop construction until the committee has
approved their request.

21. The Plaintiffs complied by discontinuing construction on the project, although the pergola
was essentially completed at that time.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/28/2023

Docket Code 926
Form V000A
Page 4

22. Plaintiffs received no communication from the Association until April 22, 2019, when they
received a letter from Treviso’s newly hired management company, Kachina Management,
written by Mark Rounsaville.

23. The April 22, 2019, letter indicates that the new property management company mistakenly
believed that the Plaintiffs had two newly installed pergolas in the backyard. The letter
asked the Plaintiffs to resubmit for the 2 newly installed pergolas in the backyard by April
30, 2019. The request asked that they return the architectural request along with any other
blueprints, diagrams or drawings.

24. On April 22, 2019, Plaintiffs resubmitted a virtually identical Architectural Approval
Request with the exact schematics of the pergola structure.

25. On May 13, 2019, Treviso Community Association property manager Mark Rounsaville
sent a letter to Plaintiffs regarding the three erected pergolas in their rear yard.

26. On May 13, 2019, Plaintiffs sent a letter to the board explaining their prior compliance
regarding all pergolas on their property, a copy of which was provided to Mr. Rounsaville.

27. On May 20, 2019, Treviso Community Association sent an additional letter to Plaintiffs
regarding the three pergolas and the Plaintiff’s prior correspondence with Defendants.

28. On or about June 5, 2019, Plaintiffs received a letter confirming that the Architectural
Committee had “reviewed [their] request and it is APPROVED as submitted with the
following stipulations: all pergolas need to be the same material, color, height and design
to existing pergolas and construction must be completed within 30 days of receipt of this
approval letter.”

29. On June 5, 2019, construction of the new pergola was already completed.

30. The June 5, 2019, approval letter is factually incorrect. It states that the Plaintiffs had
submitted a request to “construct 2 pergolas in the backyard.” However, the submission
was to construct a single pergola.

31. The June 5, 2019, letter was an approval notice and not a violation notice, as the
Association later claimed. The word “approved” was emphasized in ALL CAPS, while
nothing in the text of the letter suggests that the Plaintiffs were in violation of any of the
listed stipulations.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/28/2023

Docket Code 926
Form V000A
Page 5

32. The approval letter’s plain text does not suggest that the approval was merely conditional,
and that the Plaintiffs were still required to make modifications to the completed pergola
within 30 days or they would be subjection to a violation. The letter did not indicate any
specific modifications for Plaintiffs to make within the 30-day period.

33. The portion of the text of the approval letter which states that “construction must be
completed within 30 days of receipt of this approval letter” has no contextual significance
because the “two” pergolas had already been completed and because the letter did not
clearly indicate that the approval was a “conditional” subject to future action to be
completed within those 30 days. A reasonable person would not believe that future action
was required within the 30-day period.

34. The stipulations in the June 5, 2019, letter indicates that “all pergolas need to be the same
material, color, height and design to existing pergolas.” This provision is difficult to
understand because none of the pergolas fit the description. Each of the Plaintiffs’ pergolas
have some similar features and distinct differences, but none have the same material, color,
heigh and design. The new pergola could not have matched the “existing pergolas” as
indicated, because the existing pergolas were different from each other.

35. The Association testified that the letter indicated that only the new pergola was meant to
match the original pergola, but that contradicts the plain text of the approval letter, which
uses the term “all” and uses the plural form of pergola, when discussing the existing
pergolas.

36. The height of the new pergola was known and observable to the drafters of the approval
letter.

37. The new pergola was constructed “as submitted” and it materially complies with the other
stipulations regarding material, color, height, and design. The new and the original pergola
are different heights because the original pergola was raised from the originally planned
10-foot height so that it would not interfere with the existing window in the home.

38. A Violation Notice, according to the Association bylaws, must clearly indicate what the
violation is, and provide the information as stated in 5.2. None of the provisions of 5.2
were addressed in the approval letter.

39. The Plaintiff’s filed a complaint with the ADRE in August 2019, which raised concerns
about the Associations failure to comply with open meeting laws and failure to produce

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/28/2023

Docket Code 926
Form V000A
Page 6

documents to homeowners in response to requests. The Association’s Board of Directors
received the ADRE Petition on August 22, 2019.

40. On August 22, 2019, the Association sent two violation letters addressed to Plaintiffs.

41. The first violation letter demanded that Plaintiffs “discontinue building the wall until the
architectural committee has approved your request,” and imposed a fine in the amount of
$50.00.

42. Plaintiffs were not building any wall, and months-later representations from the
Association’s counsel suggested this notice was a mistake and the fine was removed from
Plaintiffs’ account.

43. The second violation letter, also dated August 22, 2019, demanded that Plaintiffs “return
the submittal form to have the Ramada/Gazebo approved.”

44. The vague reference to a Ramada/Gazebo approval left Plaintiffs confused because they
were not in the process of any current construction and their new pergola (which was
neither a “ramada” or “gazebo”) had already been submitted to the Architectural
Committee and approved months earlier.

45. No reasonable person would expect the Plaintiffs to interpret their August 22, 2019, letter
to indicate they were in violation of 3.1 and needed to resubmit an Architectural
Approval Request to build a pergola that had already been approved. There is nothing in
the text of the August 22 letter to suggest that their pergola was in violation.

46. The Court acknowledges that there has been confusion over the use of the terms pergola,
ramada and gazebo during the course of this conflict and litigation. A pergola is opened
and latticed, while gazebo is often rounded and solid. Ramadas are similar to gazebos but
often have a single wall and built in structures. Reasonable people can easily mix up and
misuse the wrong term when describing any of these outdoor shade structures.

47. The Association’s board member testified that both August 22, 2019, letters were mistakes
and did not make sense. The testimony suggested that those two letters may have been
erroneously sent to the Plaintiffs and may have actually pertained to their neighbors.

48. The two August 22, 2019 letters were not sent to the Plaintiffs at the Association Board’s
direction.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/28/2023

Docket Code 926
Form V000A
Page 7

49. On September 25, 2019, Treviso Community Association sent a Notice of Suspension of
Voting Rights letter to the Plaintiffs. This letter provided notice that their voting rights
would be suspended effective 15 days from the date of this letter.

50. The Letter cited to Article 5, Section 5.12, which authorizes the Association to suspend the
voting rights of any owner who fails to pay any assessment within 15 days, or any owner
who violates any other provision of the Project Documents and such violation is not cured
within 15 days.

51. The letter gave notice that Plaintiff’s voting rights were being suspended for the following
specific reasons:

a. Plaintiffs had previously been notified that they were in violation of the Declaration
due to the following issues: “submittal for existing Ramada/Gazebo in rear yard.”

b. Plaintiff’s failure to pay charges to the Association in the amount of $50.

52. The Suspension Notice stems from and is directly related to the two August 22, 2019,
violation letters.

53. The Plaintiffs were never afforded an opportunity to be heard on this issue and the
Association suspended their voting rights on or about October 10, 2019.

54. The Association acknowledges that by October 2019, the fine or assessment was removed,
and that Plaintiff did not have any unpaid fines or fees, nor did it claim that Plaintiffs were
in violation for failure to submit any architectural application for a gazebo or ramada.

55. The Association’s suspension of Plaintiffs’ voting rights was unreasonable and contrary to
the Association’s Bylaws and CC&Rs, in that the Association suspended the Plaintiffs after
giving Plaintiffs notice of alleged violations the Association knew were not valid or
accurate.

56. On or about October 15, 2019, the Association’s counsel confirmed via email to Plaintiff’s
counsel that “the issue with the wall and accompanying $50 fine on your clients’ Lot has
been addressed and cleared up. Specifically, the fine has been removed from [the] account
and no further steps will be taken on that issue.”

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/28/2023

Docket Code 926
Form V000A
Page 8

57. In that same email, the Association’s counsel told Plaintiff’s counsel for the first time that
“your clients’ newest pergola was not built in compliance with this requirement, as it does
not match the other pergolas’ heights, which has been verified by the Board and which was
the basis for the recent correspondence to you clients from the Association.” Again, the
Association uses the plural form of pergolas in their text.

58. The new pergola does match the height of the 2016 pergolas.

59. The Association’s own counterclaim specifically states that at the time of the Plaintiff’s
request, their property contained three other similar pergola structures, all of which were
nearly identical in height and appearance.

60. The 2016 and original pergola are the least similar in height and appearance, as the 2016
pergolas use columns, whereas the new pergola matches the appearance of the original
pergola, with the variation in height because the original pergola was heightened to
accommodate the home’s window.

61. Both Plaintiff and the Association testified that the height difference between the new and
original pergolas appeared different depending on the viewer’s vantage point and
perspective.

62. The Plaintiff testified that the height of each pergola leg is different to accommodate for
the slope in the property, indicating that because the lattice on top of the pergola is level,
even the height of the legs of the same pergola are different from each other.

63. For several months, the Association did not offer an explanation of which of the structure(s)
it claimed was not in compliance or how they were not in compliance.

64. Plaintiffs also repeatedly demanded that the Association withdraw the violation notices and
fine and restore Plaintiffs’ voting rights.

65. The Association never sent any violation letter that informed Plaintiffs they had failed to
meet the stipulations of the June 5, 2019, approval letter by failing to make sure the pergola
was the correct height.

66. The Association never served a “Notice of Violation” under 5.2 of the Associations bylaws
regarding the height of the Plaintiff’s pergola. The bylaws clearly state that a Notice of
Violation shall contain (i) a description of the violation, (ii) the appropriate time and place

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/28/2023

Docket Code 926
Form V000A
Page 9

at which the violation was observed, (iii) the maximum amount of fine that can be imposed
for such violation, (iv) the name of the person issuing the Notice of Violation, (v) a
statement advising the Owner of the Owner’s right to request a hearing pursuant to Section
5.2.4 of the Bylaws, and (vi) a statement pertaining to the manner in which any fine will
be enforced.

67. Although Plaintiffs’ voting rights were wrongly suspended, Plaintiff still enjoyed the
benefits of the monthly homeowner’s association fees paid while his voting rights were
suspended.

68. The Plaintiffs failed to establish that the Association had an obligation to timely produce
the requested documents and failed to timely produce them.

69. The Plaintiffs failed to establish that the Association wrongfully retaliated against Plaintiffs
for filing a ADRE complaint.

70. The Plaintiff failed to establish that Defendant breached a fiduciary duty to Plaintiff.

71. The Plaintiffs did not establish that they are entitled to recover damages in the form of
their monthly dues paid during the months their voting privileges were suspended.

72. The Plaintiffs did not establish that they are entitled to punitive damages.

For the foregoing reasons,

THE COURT FINDS Plaintiff violated the Association bylaws when they began
construction on the pergola without approval on or about March 22, 2019, while their application
was pending.

THE COURT FURTHER FINDS the Association did not act reasonably in their written
correspondence and communications with Plaintiff. In nearly every instance, the Association’s
letters and notices of violation were seriously flawed and difficult to understand.
THE COURT FURTHER FINDS the Association’s June 5, 2019 letter approved the
Plaintiff’s Architectural Request that were submitted on March 1, 2019, and April 22, 2019.

THE COURT FURTHER FINDS the Association did not act reasonably in drafting their
approval letter if their actual intent was that the approval was conditional to the Plaintiff’s
subsequent modification of the pergola by increasing the height to match the neighboring
original pergola, and that such modification was expected to be done within 30 days.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/28/2023

Docket Code 926
Form V000A
Page 10

THE COURT FURTHER FINDS the Associations, as the drafter of the approval letter,
had a duty to clearly identify those important terms and condition in the approval letter. This
Court will not construe the vague language of the approval letter against the Association
Member, in favor of the Association who failed to clearly state, if it was their intention, that the
approval was conditional on Plaintiffs’ future modification to their already completed pergola.

THE COURT FURTHER FINDS that the issuance of the approval letter rendered
Plaintiffs’ prior violation of the bylaws moot.

THE COURT FURTHER FINDS the Association did not act reasonably when
suspending the Plaintiff’s voting rights, as the Notice of Suspension of Voting Rights was based
on erroneous violations. The Association had no lawful basis to suspend Plaintiff’s voting rights.

THE COURT FURTHER FINDS the Association acted unreasonably when it failed to
reinstate Plaintiff’s voting rights once it became known that the two provisions listed in the
Notice of Suspension of Voting Rights were erroneous.

THE COURT FURTHER FINDS the Association acted unreasonably when it believed
that the suspension of voting rights could remain in force because of the Plaintiff’s failure to
modify the pergola height, when the Association never provided proper notice to the Plaintiff of
this alleged violation.
THE COURT FURTHER FINDS that the Association breached its contractual duties
owed to Plaintiffs, as expressed in the governing documents.
THE COURT FURTHER FINDS that Plaintiffs are not entitled to recover damages in the
form of their monthly dues paid during the months their voting privileges were suspended,
because they have received a benefit from the payment of those fees.
THE COURT FURTHER FINDS that the Association did not fail to timely produce
requested documents.
THE COURT FURTHER FINDS that the Association did not retaliate against Plaintiffs
for filing an ADRE complaint.

IT IS THEREFORE ORDERED declaring that the Association failed to establish that
Plaintiff is in violation of the governing documents.

IT IS FURTHER ORDERED declaring that the Association violated its contractual
duties owed to the Plaintiffs.

IT IS FURTHER ORDERED declaring that the Association wrongfully suspended the
Plaintiffs’ voting privileges.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

09/28/2023

Docket Code 926
Form V000A
Page 11

IT IS FURTHER ORDERED that Plaintiff’s voting rights be reinstated effective
immediately.

IT IS FURTHER ORDERED denying Plaintiff’s request for compensatory damages and
punitive damages.
IT IS FURTHER ORDERED denying Plaintiff’s request to declare the Association failed
to produce requested documents.

IT IS ORDERED denying Plaintiff’s request to declare the Association breached a
fiduciary duty to Plaintiff.
Counter Claim
Based on the findings above,

THE COURT FINDS that the Defendant/Counterclaimant did not meet their burden to
establish a breach of contract claim against Plaintiff.
IT IS ORDERED denying Defendant’s Counterclaim for breach of contract.
IT IS FURTHER ORDERED denying Defendant’s request that a permanent injunction
be ordered to remove the Subject Structure from their lot or otherwise bring it into compliance
with the Association’s June 5, 2019, approval letter.
This is an action arising out of a purported contract, which entitles Plaintiff to apply for an
award of attorney’s fees. Keystone Floor & More, LLC v Arizona Registrar of Contractors, 223
Ariz. 27, 219 P.3d 237 (App 2009). Therefore,
IT IS ORDERED that not later than 20 calendar days after the entry of this order,
Plaintiff may submit an application for an award of attorney’s fees and statement of costs. If an
application or statement is submitted that Defendant Treviso wishes to oppose, a response must
be filed not later than 20 calendar days after service. Plaintiff is not permitted to file a reply
unless requested to do so by the court.
IT IS FURTHER ORDERED that not later than 20 calendar days after the entry of this
order, Plaintiff must also submit a proposed form of judgment, leaving blank spaces for
attorney’s fees and taxable costs. That form of judgment may incorporate by reference what is
said here but otherwise should be confined to the amounts being awarded along with Rule 54(c)
language.

Clerk of the Superior Court

*** Electronically Filed ***

10/21/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

10/20/2022

Docket Code 094
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE STEPHEN M. HOPKINS
C. Avena

Deputy

ROBERT GIEDT, et al.
KEVIN R HARPER

v.

TREVISO COMMUNITY ASSOCIATION
NICHOLAS C NOGAMI

JUDGE HOPKINS

ORAL ARGUMENT SET

Courtroom 207 (SEA)

8:33 a.m. This is the time set for a Trial-Setting Conference. Plaintiffs/ Counter Defendants,
Robert Giedt and Leslie Giedt are represented by counsel, Kevin Harper. Defendant, Treviso
Community Association is represented by counsel, Nicholas C. Nogami.

Today’s proceeding is being held virtually through Court Connect. A record of the
proceedings is made digitally in lieu of a court reporter.

The Court and counsel discuss the status of the case. Counsel informs the Court that they
have filed Motions for Summary Judgment, which have been fully briefed.

IT IS THEREFORE ORDERED setting Oral Argument re: Pending Motions for
Summary Judgment on November 3, 2022 at 10:00 a.m. (time allotted: 1 hour). A Trial setting
Conference shall also be heard in conjunction with the Oral Argument.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

10/20/2022

Docket Code 094
Form V000A
Page 2

HONORABLE STEPHEN M. HOPKINS
MARICOPA COUNTY SUPERIOR COURT
SOUTHEAST JUDICIAL FACILITY
COURTROOM 207
222 E. JAVELINA
MESA, AZ 85210

Your hearing will be conducted through the new TEAMS program offered by the Superior
Court of Arizona in Maricopa County. Hearings are preferably conducted by video-conference but
can also be conducted by phone. Lawyers (and self-represented litigants) are responsible for
distributing this notice to anyone who will be appearing on their behalf.

FOR VIRTUAL APPEARANCES before Honorable Stephen M. Hopkins, CRJ23.
Virtual Proceedings are held via the Court Connect platform. Please review the brief Court
Connect training prior to the hearing:
https://superiorcourt.maricopa.gov/virtual-justice/.

When you are ready to connect to the proceedings via Court Connect, please follow the
steps below.

1. CLICK THE JOIN MICROSOFT TEAMS MEETING BUTTON BELOW
2. ENTER YOUR FULL NAME AND ROLE IN NAME FIELD.
3. WAIT IN THE LOBBY UNTIL GRANTED ADMISSION BY FACILITATOR.

You can also join by phone if necessary by using the number below with the Conference
ID #

If you have called into your hearing and are still waiting in the lobby after the scheduled
start time, please call the division telephone number at 602-372-5561.

Judge Hopkins’s Virtual Courtroom
Please join my Teams meeting from your computer, tablet or smartphone.
https://tinyurl.com/jbazmc-cvj22

You can also dial in using your phone.
United States: +1 917-781-4590
Access Code: 969-248-722#

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

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

10/20/2022

Docket Code 094
Form V000A
Page 3

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 ***

11/04/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

11/03/2022

Docket Code 020
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE STEPHEN M. HOPKINS
C. Avena

Deputy

ROBERT GIEDT, et al.
KEVIN R HARPER

v.

TREVISO COMMUNITY ASSOCIATION
NICHOLAS C NOGAMI

JUDGE HOPKINS

MINUTE ENTRY

Courtroom 207 (SEA)

10:02 a.m. This is the time set for Oral Argument re: Pending Motions for Summary
Judgment. Plaintiffs/ Counter-Defendants, Robert Giedt and Leslie Giedt are present and
represented by counsel, Kevin Harper. Defendant/Counter Claimant, Treviso Community
Association is represented by counsel, Nicholas C. Nogami.

Today’s proceeding is being held virtually through Court Connect. A record of the
proceedings is made digitally in lieu of a court reporter.

Oral argument is presented to the Court regarding Defendant Treviso Community
Association’s Motion for Partial Summary Judgment, filed July 29, 2022 and Plaintiff/Counter-
Defendants’ Motion for Partial Summary Judgment, filed July 29, 2022.

For the reasons stated on the record,

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

11/03/2022

Docket Code 020
Form V000A
Page 2

IT IS ORDERED taking Defendant Treviso Community Association’s Motion for Partial
Summary Judgment, filed July 29, 2022 and Plaintiff/Counter-Defendants’ Motion for Partial
Summary Judgment, filed July 29, 2022 under advisement.

10:52 a.m. Matter concludes.

Clerk of the Superior Court

*** Electronically Filed ***

11/10/2022 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

11/08/2022

Docket Code 926
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE STEPHEN M. HOPKINS
C. Avena

Deputy

ROBERT GIEDT, et al.
KEVIN R HARPER

v.

TREVISO COMMUNITY ASSOCIATION
NICHOLAS C NOGAMI

JUDGE HOPKINS

MINUTE ENTRY

The Court has taken under advisement Plaintiffs/Counterdefendants’ Motion for Partial
Summary Judgment and Defendant/Counterclaimant’s Motion for Partial Summary Judgment.
The Court has reviewed the written submissions of the parties, hear arguments of counsel, and
after due deliberation now rules as follows.

The salient facts necessary for the Court’s decision are uncontroverted. Paragraph 3.1.1
of the applicable Covenants, Conditions and Restrictions (C, C& Rs) for the property provide as
follows:
In the event that the Architectural Committee fails to approve or disapprove an
application for approval within sixty (60) days after a complete application, together with
any fee payable pursuant to Subsection 3.1.4 of this Declaration and all supporting
information, plans and specifications requested by the Architectural Committee, have
been submitted to the Architectural Committee, approval will not have be required and
this Subsection 3.1.1 will be deemed to have been complied with by the Owner.
Plaintiff’s Statement of Facts (“PSOF”) ¶¶ 6.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

11/08/2022

Docket Code 926
Form V000A
Page 2

On March 2, 2019 Plaintiffs/ Counterdefendants (hereafter “Plaintiffs”) submitted their
initial request in accordance with this section. Id., ¶ 3. Sixty days from March 2, 2019 was May
2, 2019.

On March 5, 2019 Plaintiffs received notice from the then property manager for
Defendant/Counterclaimant (hereafter “Defendant”) that the request had been received and
forwarded for approval. Id., ¶ 4, exhibit 7.

On April 1, 2019 Plaintiffs were asked to stop construction pending formal approval. Id.,
¶ 11. In this notice of violation letter Plaintiffs were directed to “disregard this notice” if “this
situation [failure to provide their submittal] has already been corrected.” Plaintiffs were not told
the prior submission had been rejected, nor were they told it had been or would be approved.

On April 22, 2019 Defendant (through its new property manager) requested additional
information regarding the pergola. Id., ¶ 13, exhibit 9. Specifically, even though Plaintiffs had
submitted a request over forty-five days earlier Defendant requested a renewed “architectural
request” and were advised that failure to do so would result in monetary penalties.1 Sixty days
from April 22, 2019 was June 21, 2019.

The next communication from Defendant to Plaintiffs was June 5, 2019. Id., ¶ 17. This
letter indicated the Architectural Committee approved the request “as submitted with the
following stipulations: all pergolas need to be the same material, color, height and design to
existing pergolas.” At that point the pergola had been built, but was slightly higher than the
existing pergola.

Plaintiffs contend that Defendant failed to formally disapprove their application under the
section of the C, C & Rs cited above. Plaintiffs alternatively contend that their submittal was
actually approved via the June 5, 2019 letter.

Defendant contends that the letter of April 22, 2019 operates as a rejection of the
submittal under the C, C & Rs, and further maintains that the letter cited by Plaintiffs was not an
approval since Plaintiffs did not build the new structure to the same height as the existing
structure.

C, C & Rs are considered a contract. See Powell v. Washburn, 211 Ariz. 553, 125 P.3d
373 (2006). Interpretation of a contract is a question of law for the Court. See Grosvenor
Holdings, L.C. v. Figueroa, 222 Ariz. 588, 218 P.3d 1045 (App. 2009).

Per the language of Section 3.1.1, the sixty day period for approval does not commence
until all plans requested by the Architectural Committee have been provided. That request was
made on April 22, 2019. Plaintiffs maintain that everything had already been provided in March.

1 At that point, the structure had already been constructed.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

11/08/2022

Docket Code 926
Form V000A
Page 3

But this is not accurate. The other “information” regarding the existing pergola was relevant to
consideration by Defendant. Defendant clearly and reasonably viewed facts regarding the
existing structures as “all supporting information” supporting Plaintiffs’ request. There is no
evidence to support Plaintiffs’ argument that this request was simply to delay and provide a work
around for the sixty day waiver period. The Court finds that under the clear language of the C, C
& Rs the sixty day waiver period championed by Plaintiffs does not apply.
By June 21, 2019 the request was “approved” with a key caveat; the pergola had to be
identical to the existing one. While the Court may interpret an unambiguous contract, the so-
called conditional approval is ambiguous and subject to multiple interpretations. Plaintiffs claim
was “APPROVED.” However, the approval was conditioned on it being the same height as the
existing pergola. At the time of the “approval” it was not the same height. Yet it had already
been constructed. It is unclear what was being approved or how the so-called approval should be
interpreted. This vague letter is subject to different interpretations. Whether the discrepancy in
height is “material” is also a fact question for a jury. Summary judgment is not a substitute for
trial. Nicoletti v. Westcor, Inc., 131 Ariz. 140, 639 P.2d 330 (1982). The Court has reviewed
the photo of the pergolas, Exhibit 14 to Plaintiffs’ Statement of Facts. The Court concurs that
this is persuasive evidence in support of Plaintiffs’ position. But this Court will not grant
summary judgment based upon its own “take” on the evidence and which party will likely
prevail at trial.

IT IS THEREFORE ORDERED denying Plaintiffs/Counterdefendants’ Motion.

IT IS FURTHER ORDERED denying Defendant/Counterclaimant’s Motion.

Clerk of the Superior Court

*** Electronically Filed ***

11/17/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

CV 2020-094239

11/16/2021

Docket Code 023
Form V000A
Page 1

CLERK OF THE COURT
HONORABLE STEPHEN M. HOPKINS
C. Avena

Deputy

ROBERT GIEDT, et al.
KEVIN R HARPER

v.

TREVISO COMMUNITY ASSOCIATION
NICHOLAS C NOGAMI

ALTERNATIVE DISPUTE
RESOLUTION - CCC
JUDGE HOPKINS

REFERRAL TO ALTERNATIVE DISPUTE RESOLUTION

Pursuant to the parties’ joint Scheduling Order signed by the Court on November 16, 2021,

IT IS ORDERED that the parties shall participate in a mandatory settlement conference.
This case is referred to the Court’s Alternative Dispute Resolution (ADR) Department for the
appointment of a judge pro tempore to conduct a settlement conference. The judge pro tempore
is requested to conduct the settlement conference no later than February 24, 2022.

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