03/16/2021 — CV2021001021 CONDOMINIUM ASSOCIATION INC, LA FUENTE 03/16/2021 HONORABLE JAMES D. SMITH View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
03/17/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-001021
03/16/2021
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JAMES D. SMITH
K. Treftz
Deputy
RON HASSID
RON HASSID
2401 E ELM ST
PHOENIX AZ 85016
v.
LA FUENTE CONDOMINIUM ASSOCIATION
INC, et al.
LYDIA P LINSMEIER
JUDGE J. SMITH
MINUTE ENTRY
These protocols will govern this matter.
THE FOLLOWING ORDERS ARE IMPORTANT. READ THEM CAREFULLY.
These orders govern unless the Court expressly rescinds them. Later amended scheduling
orders, etc., need not repeat them.
Formatting Filed Papers.
Use 13-point font in text and footnotes. Ariz. R. Civ. P. 5.2(b)(1)(B). Any submissions
cannot have more than three footnotes (in whole or in part) on a page, and no footnote may exceed
five lines.
Sequentially paginate attachments to any submission that are 50 pages or greater. For
example, if exhibits to a statement of facts are 537 pages, number every page from 1 to 537. Cite
to specific pages of the attachments in the motion/response/reply (i.e., not just in a statement of
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-001021
03/16/2021
Docket Code 023
Form V000A
Page 2
facts). A citation in a motion for summary judgment would point to “SOF ¶ 17 at 298.” That
directs the Court to page 298 of your exhibits. One purpose is to allow the Court to find the cited
source without reviewing a paragraph in the statement of facts. While this most often applies to
summary judgment statements of facts, follow this protocol for any submission with attachments
50 pages or greater.
If you rely on a deposition, attach only the deposition cover page, the pages with the
relevant testimony, and the court reporter’s certification. Use full size transcript pages; do not use
mini-script.
Do not combine requests for relief. For example, do not include a request for sanctions in
response to the other side’s motion.
Expert Disclosures/Motions About Experts.
Do not use expert depositions to disclose new opinions or methodologies. The
disclosures/reports must include this information. Ariz. R. Civ. P. 26(d)(3) & (4). In all medical
malpractice actions (A.R.S. § 12-561(3)), the Court requires expert reports under Arizona Rule of
Civil of Procedure 26.1(d)(2) and (4) for standard of care and causation experts.
The deadline to move to exclude an expert under Daubert/Arizona Rule of Evidence 702
is the same as the dispositive motion deadline.
Motions to exclude an expert as violating the one-expert-per-issue rule are due 28 days
after the allegedly duplicative opinion arises (whether in a disclosure, deposition, etc.). You must
meet and confer before filing such motions.
Motions About Improper Disclosures.
Motions to exclude untimely- or improperly-disclosed information or arguments are due
28 days after that untimely or improper disclosure. You must meet and confer before filing such
motions.
Summary Judgment Protocol And Limits.
The parties must exchange letters of two pages or fewer at least 30 days before filing a
motion for summary judgment. They will describe anticipated motions for summary judgment,
identifying the issues and claims on which a party will seek summary judgment. The purpose is
to narrow issues, focus briefing, and perhaps eliminate separate statements of fact.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-001021
03/16/2021
Docket Code 023
Form V000A
Page 3
The Court presumptively limits each party to one motion for summary judgment. If a party
believes that it cannot address all issues in the 17-page limit, then it must obtain leave to file an
oversize brief before filing the motion. For this protocol, the Court limits multiple parties
represented by the same counsel to one summary judgment motion.
Separate statements of fact and opposing statements under Arizona Rule of Civil Procedure
56(c)(3) cannot exceed 12 pages, excluding exhibits; objections/responses to the opposing party’s
statements cannot exceed 10 pages. All counsel must know proper versus improper uses of
statements of fact. See, e.g., Hunton v. Am. Zurich Ins. Co., 2018 WL 1182552, *2-4 (D. Ariz.
Mar. 7, 2018). They are not tools to exceed the presumptive page limits or for facts/argument
outside the briefs.
The Court prohibits “cross-motions” or “counter-motions” for summary judgment.
03/18/2021 — CV2021001021 CONDOMINIUM ASSOCIATION INC, LA FUENTE 03/18/2021 HONORABLE JAMES D. SMITH View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
03/19/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-001021
03/18/2021
Docket Code 019
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JAMES D. SMITH
K. Treftz
Deputy
RON HASSID
RON HASSID
2401 E ELM ST
PHOENIX AZ 85016
v.
LA FUENTE CONDOMINIUM ASSOCIATION
INC, et al.
LYDIA P LINSMEIER
JUDGE J. SMITH
MINUTE ENTRY
The Court considered Defendants’ Motion to Dismiss (filed 02/22/2021), the Response,
and the Reply.
J.R. Dahlberg and Thomas Lester own an upstairs condominium. A water leak developed.
Gravity worked, so the downstairs unit suffered the consequences. Plaintiff’s Complaint alleged
that the HOA and the management company it hired, Vision Community Management, LLC,
negligently handled the water leak and are responsible for damages to the downstairs unit. The
complication is deciding who owns the downstairs unit and whether Plaintiff may bring these
claims.
The HOA and Vision argued that Plaintiff does not own the unit and cannot bring the
claims. Indeed, Plaintiff acknowledged that Orange Acre, LLC, owns the unit. But Plaintiff
contended that he is the beneficial owner because he is the only member of Orange Acre. Also,
he “transferred legal ownership of Orange Acre LLC to the SRH Trust, of which Plaintiff is Trustor
and Trustee.” But that effectively asked the Court to disregard Orange Acre’s separate legal
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-001021
03/18/2021
Docket Code 019
Form V000A
Page 2
existence. It also would mean letting Plaintiff bring claims individually rather than as trustee of
the SRH Trust, which would be the proper approach when litigating about trust property.1
Next, Plaintiff argued that Orange Acre assigned its claims to him, so he may pursue them
as a self-represented party. No one doubts that corporations and limited liability companies cannot
represent themselves in Superior Court; a licensed lawyer must appear. But may a self-represented
party like Plaintiff pursue claims assigned by the LLC he is a member of? No Arizona opinion
addressed the issue, so the Court looked to other jurisdictions.
A recent opinion is Zapata v. McHugh, 893 N.W.2d 720 (Neb. 2017). An LLC assigned
to its sole member claims for unpaid rent and damage to rental property. The Supreme Court of
Nebraska held that the member could not pursue the assigned claim. “[T]he weight of authority
from other jurisdictions is that an assignment does not erase the requirement that the suit arising
from the entity’s status as a business must be represented by a duly licensed attorney.” Id. at 726
(citing opinions from the Second Circuit, Eleventh Circuit, Court of Federal Claims, District of
Maryland, Eastern District of Michigan, Southern District of New York, District of Columbia,
Illinois, and Missouri).
The Eleventh Circuit opinion is something of a benchmark on this topic. It rejected a
business’ attempt to assign its antitrust claims to its executive after its lawyer withdrew. “We see
no reason to permit any evasion of the general rule by the simple expedient of the assignment of
corporate claims to the pro se plaintiff.” Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1386 (11th
Cir. 1985); see also, e.g., Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 23 (2d Cir. 1983)
(sole shareholder could not pursue claim that the corporation assigned to him). “Having previously
accepted the advantages of incorporation, Plaintiffs cannot be permitted to shed the corporate
format as an inconvenience when doing so means disregarding the well-established rule that
corporations be represented by counsel.” Gottlieb v. Alphabet Inc., 2018 WL 2010976, at *5 (N.D.
Cal. Apr. 30, 2018) (dismissing complaint; president and sole shareholder could not pursue claims
assigned by the corporation).
The authority rejecting this type of assignment and self-representation is nearly unanimous.
While not binding, it is very persuasive. Plaintiff chose to form a limited liability company. That
provides him with the liability shield from tort claimants and other creditors. It also may lead to
tax benefits. It would make little sense to allow someone like Plaintiff to benefit from our laws
1 Plaintiff also cannot represent the trust in propria persona. “A non-lawyer trustee cannot appear
pro se to represent a trust or trust beneficiaries.” Danziger v. Univ. of Louisville, 2019 WL
5103107, at *2 (D. Ariz. Oct. 10, 2019); accord, e.g., C.E. Pope Equity Trust v. United States, 818
F.2d 696, 697-98 (9th Cir. 1987); Bell v. S. Bay European Corp., 486 F. Supp. 2d 257, 260
(S.D.N.Y. 2007).
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-001021
03/18/2021
Docket Code 019
Form V000A
Page 3
but, when expedient, toss off corporate formalities so he may pursue a claim without hiring a
lawyer.
IT IS ORDERED granting the Motion and dismissing Plaintiff’s claims. Of course, this
ruling does not affect whether Orange Acre LLC or the SRH Trust may bring claims.
The Court’s file does not include certificates of service on Defendants Dahlberg or Lester.
But the Court cannot see why its analysis would not apply to those Defendants, too. The Court
understands that Plaintiff likely disagrees with the foregoing analysis. But if Plaintiff believes that
the foregoing analysis should not apply to Defendants Dahlberg or Lester, then he may file a
statement explaining his argument within 10 days of the Clerk filing this order.
Defendants La Fuente Condominium Association, Inc. and Vision Community
Management, LLC must submit a proposed form of judgment, statement of costs, and fee
application (if they properly pleaded fees) within 20 days of the Clerk filing this order. The Court
has not evaluated the propriety of a fee award here.
05/03/2021 — CV2021001021 CONDOMINIUM ASSOCIATION INC, LA FUENTE 05/03/2021 HONORABLE JAMES D. SMITH View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
05/04/2021 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-001021
05/03/2021
Docket Code 023
Form V000A
Page 1
CLERK OF THE COURT
HONORABLE JAMES D. SMITH
K. Treftz
Deputy
RON HASSID
RON HASSID
2401 E ELM ST
PHOENIX AZ 85016
v.
LA FUENTE CONDOMINIUM ASSOCIATION
INC, et al.
LYDIA P LINSMEIER
JUDGE J. SMITH
MINUTE ENTRY
The Court received La Fuente Condominium Association and Vision Community
Management’s Application for Attorneys’ Fees and Costs (filed 04/08/2021). The central issue is
whether the matter arose out of contract. Plaintiff’s Complaint alleged only negligence
claims. But these Defendants argued that the claims could not exist but for the contract, i.e., the
Declaration of Horizontal Property Regime.
The Court cannot find a copy of the CC&Rs in the record, so it is difficult to analyze the
parties’ contractual relationships and whether claims depend on them. When contract and tort
theories may be intertwined, “it must be the case that the tort cause of action could not exist but
for the breach of contract.” Robert E. Mann Constr. Co. v. Liebert Corp., 204 Ariz. 129, 134 ¶ 15,
60 P.3d 708, 713 (App. 2003). And Defendants did not argue that Plaintiff has a contract with
Vision; its contract is with the HOA. See Fire Ins. Exch. v. Thunderbird Masonry, Inc., 177 Ariz.
365, 370, 868 P.2d 948, 953 (App. 1993) (denying fee request under A.R.S. § 12-341.01 for
property damage). Plaintiff pleaded allegations consistent with various tort theories that did not
depend on a contract. Thus, the Court denies the request for attorneys’ fees.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CV 2021-001021
05/03/2021
Docket Code 023
Form V000A
Page 2
These Defendants, however, are entitled to their taxable costs of $265.75. Any final
judgment will reflect that award.
IT IS SO ORDERED.
