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Maricopa County Superior Court Case LC2014-000179: public docket details, parties, minute entries, documents, and official source links for Velda Rose Estates Home Owners Association.

Case Number

LC2014-000179

County

Maricopa

Caption

Not captured

Filed

4/8/2014

Case Type

Lower Court Appeals

Judge

LaFave, Julie

Location

Downtown

Official Court Record

Official Court Record

Parties

Minute Entries

Michael K. Jeanes, Clerk of Court

*** Filed ***

05/05/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

05/01/2014

Docket Code 023
Form L512
Page 1

CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton

Deputy

VELDA ROSE ESTATES HOME OWNERS
ASSOCIATION
CHARLES E MAXWELL

v.

EDITH POGGI (001)
EDITH POGGI
4132 N 3RD AVE #2
PHOENIX AZ 85013

JOSEPH I VIGIL
COMM. MORROW
MESA JUSTICE CT-EAST
REMAND DESK-LCA-CCC
MCSO CIVIL DIVISION
111 S 3RD AVE
2ND FLOOR
PHOENIX AZ 85003

MINUTE ENTRY
Lower Court Case No. CC2012–132551.
Comm. Morrow’s Case No. TJ 2013–003854.
MCSO File No. C286247.
On April 30, 2014, Defendant-Appellant Edith Poggi (Defendant) filed a Motion for
Accelerated Review of Defendant’s Appeal To Avoid Irreperable [sic] Injury That Will Occur
(See Exhibit A) Motion For Stay All Court Orders Pending Appeal Motion For Relief Of Posting
Bond. This Motion was faxed to this Court. As of this date, the adverse party, Velda Rose
Estates Homeowners’ Association, has had no opportunity to respond and has not provided any
opposition.
This Court will provisionally grant Defendant’s request. This Court grants Defendant’s
request staying the last day for the redemption of the property. The last day for the redemption of
the property at 6429 E. University Drive, Mesa Arizona, 85205, Units 1, 2, 3, and 4 is currently
set for Wednesday May 14, 2014, at 5:00 pm. This date is stayed until after this Court has ruled
on the procedural motions and/or Defendant’s appeal pursuant to the conditions set forth in this
Order. In order to minimize any inconvenience to the parties, this Court will also expedite its
rulings on the procedural motion and/or appeal in this case.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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Form L512
Page 2

In so ruling, this Court notes our Arizona Supreme Court has interpreted the purpose for the
redemption statutes. It held:
Whether a statute should be given a strict or equitable interpretation must be
decided in accordance with the legislature’s intent in enacting that statute.
Redemption statutes are remedial in nature and exist for the dual purpose of
insuring the property will bring a fair price at a sheriff’s sale and that, if the
mortgagor does not redeem, his property will be applied to payment of debts in
the order of the priority to which his various creditors are entitled. United States v.
MacKenzie, 510 F.2d 39, 41 (9th Cir. 1975); Mutual Life Insurance Co. of New
York, 88 Ill.App.3d 952, 955-56, 43 Ill. Dec. 829, 832-33, 410 N.E.2d 962, 965-
66 (1980); Birznieks v. Cooper, 405 Mich. 319, 330 n.10, 275 N.W.2d 221, 225
n.10 (1979); Silbernagel v. Goin, 31 Or. App. 545, 547-48, 570 P.2d 1011-12
(1977). It was not the “intent of the legislature” that the redemption statutes be
given the severe application “required in the interpretation of a penal law.”
Western Land & Cattle Co. v. National Bank of Arizona, 29 Ariz. at 58, 239 P. at
302. Accordingly, we hold that in the absence of prejudice to the other parties,
substantial compliance with the requirements of §§ 12-1282–12-1289 will be
sufficient to effect a redemption.
Matcha v. Wachs, 132 Ariz. 378, 381, 646 P.2d 263, 266 (1982). The Supreme Court continued
and held:
However, the establishment of any rule which permits the application of equitable
principles invites controversy over what constitutes an equitable result in any
particular case. We feel, however, that such a danger, if it be one, is better
tolerated than the injustice that can result from the inflexible application of the
redemption statutes. As the court stated in Osborne Hardware Co. v. Colorado
Corp., 32 Colo. App. 254, 258, 510 P.2d 461, 463 (1973) (quoting Plute v. Schick,
101 Colo. 159, 162, 71 P.2d 802, 804 (1937)).
“The purpose of the redemption law is to help creditors recover their just
demands, nothing more. Equity has always prevented the redemption laws
from being used as ‘an instrument of oppression when substantial justice
can be done without enforcing them to the letter.’ ”
See also, Silbernagel v. Goin, supra; United States v. Loosely, 551 P.2d 506 (Utah
1976); Mutual Life Insurance Co. of New York v. Chambers, 88 Ill.App.3d 952,
43 Ill. Dec. 829, 410 N.E.2d 962 (1980); Hruby v. Steinman, 374 Ill. 465, 30
N.E.2d 7 (1940); Mollerup v. Storage Systems International, 569 P.2d 1122 (Utah
1977); Gordon Grossman Building Company v. Elliott, 382 Mich. 596, 171
N.W.2d 441 (1969). These cases support the doctrine that although the right of
redemption is a legal right, equitable principles may be utilized to relieve a
redeeming lienholder from minor deviations and thus prevent injustice.
Matcha v. Wachs, 132 Ariz. at 381, 646 P.2d at 266. The Arizona Supreme Court also stated:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

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Docket Code 023
Form L512
Page 3

The intent and purpose of the statute providing for redemption cannot be
violated by an agreement. The object of the redemption statute is to give to the
mortgagor time to pay his obligation and avoid the loss of his property. In the case
of Skach v. Sykora, 6 Ill.2d 215, 127 N.E.2d 453, 52 A.L.R.2d 1320, the court, in
discussing the purpose of the redemption period, stated:
‘The purpose of a mortgage foreclosure is to enforce the payment of
the mortgagor’s debt. The purpose of the redemption statute is to give the
debtor time and opportunity to avoid the loss of his property and to give his
other creditors an opportunity to collect their debts from any surplus over
the mortgage debt. The statutes are not intended to take the landowner's
property unjustly or for an inadequate consideration. They are not intended
to penalize the debtor for his default nor to reward the purchaser by unjust
enrichment above the amount of his debt at the expense of the landowner
and his other creditors. The statute protects the purchaser to the extent of his
bid, costs and interest on his investment. The statute contemplates
redemption where the value of the property exceeds the sale price. The
purchaser knows this when he makes his bid, whether he is the mortgagee
or a stranger, and when he is repaid all that the statute allows upon
redemption, that is all he is either legally or equitably entitled to receive. As
was said in Hruby v. Steinman, 374 Ill. 465, 30 N.E.2d 7, 10, citing Phillips
v. Demoss, 14 Ill. 410, ‘That he [the purchaser] may be deprived of a deed
will not avail him, as his right to the land is no higher or more sacred than
to the redemption money, and the statute holds out no inducements for a
speculation at a sheriff’s sale, beyond the interest provided for the use of the
purchase money.’ These being the purposes of a redemption statute a court
of equity would not be justified in attaching a rigidity to its language which
carried it beyond that purpose to work inequities.' 127 N.E.2d at 456.
Elson Dev. Co. v. Arizona Sav. & Loan Ass'n, 99 Ariz. 217, 224-25, 407 P.2d 930, 936 (1965).
Because this Court will expedite its ruling on the pending procedural motion and/or appeal, the
deviation from the mandatory time lines should only be a minor deviation.
If Plaintiff has any opposition to Defendant’s Motion for Accelerated Review of
Defendant’s Appeal To Avoid Irreperable [sic] Injury That Will Occur (See Exhibit A) Motion
For Stay All Court Orders Pending Appeal Motion For Relief Of Posting Bond, Plaintiff should
file with this Court, in writing, an Opposition and this Court will revisit the issue. Should the
Plaintiff wish to file an Opposition, Plaintiff should file it with the Clerk of the Maricopa County
Superior Court, and MUST provide one copy of the filing to this Division.
IT IS ORDERED provisionally staying the expiration of the time to redeem the property—
following the sheriff’s sale—until such time as this Court has resolved the procedural motions
and/or appeal in this matter.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

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Docket Code 023
Form L512
Page 4

IT IS FURTHER ORDERED adopting any of the conditions still extant set by
Commissioner Morrow in TJ2013–003854.
IT IS FURTHER ORDERED Defendant shall have a five-day period following the
expiration of the stay period in which to redeem plus five calendar days to allow for mailing
time. Should Defendant elect to redeem, Defendant shall pay (1) the amount for which the
property was sold; plus (2) eight per cent; (3) any assessments or taxes which the purchaser has
lawfully paid after purchase; and (4) interest on such amount.
IT IS FURTHER ORDERED signing this Minute Entry as a formal Order of the Court.

/s/ Myra Harris

THE HON. MYRA HARRIS

Judicial Officer of the Superior Court

050120141700

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any filings.

Michael K. Jeanes, Clerk of Court

*** Filed ***

05/05/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

05/02/2014

Docket Code 023
Form L512
Page 1

CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton

Deputy

VELDA ROSE ESTATES HOME OWNERS
ASSOCIATION
CHARLES E MAXWELL
v.

EDITH POGGI (001)
EDITH POGGI
4132 N 3RD AVE #2
PHOENIX AZ 85013

JOSEPH I VIGIL
MESA JUSTICE CT-EAST
REMAND DESK-LCA-CCC
MCSO CIVIL DIVISION
111 S 3RD AVE
2ND FLOOR
PHOENIX AZ 85003

MINUTE ENTRY
Lower Court Case No. CC2012–132551.
Plaintiff-Appellee Velda Rose Estates Homeowners’ Association (Plaintiff) filed a proced-
ural motion—“Procedural Motion—Refer To Superior Court—Motion To Dismiss” dated Febru-
ary 21, 2014,—requesting that this Court dismiss Defendant-Appellant (Defendant) Edith
Poggi’s appeal because the Defendant filed an untimely Notice of Appeal. Plaintiff alleged that
Defendant’s December 2, 2013, Notice of Appeal was filed more than 14 days after the East
Mesa Justice Court entered Judgment.
Defendant filed a second Notice of Appeal on December 9, 2013, and asked that this Court
find her December 2, 2013, Notice of Appeal timely and that the East Mesa Justice Court erred
when it dismissed her appeal on December 3, 2013. Because both of these requests relate to the
issue of this Court’s jurisdiction to consider the appeal, this Court will, in the interest of judicial
economy, consider the arguments of both parties in this Minute Entry ruling.1 Defendant also

1 Defendant’s Notice of Appeal is essentially a procedural motion to allow the appeal. However, Defendant did not
follow the requirements for a procedural motion pursuant to Superior Court Rules of Appellate Procedure—Civil
(SCRAP—Civ.), Rule 8(c). This Court waives strict compliance with Rule 8, SCRAP—Civ. in the interest of
fairness and pursuant to Rule 2, SCRAP—Civ.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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filed a “Response To Procedural Motion To Motion To Dismiss”. In that Response, Defendant
requested that this Court waive the time limits for filing a Notice of Appeal in the event this
Court determines Defendant’s December 2, 2013, Notice of Appeal was untimely.
For the reasons stated below, the Court denies (1) Defendant’s request to waive the time
limits for filing a Notice of Appeal; and (2) the Plaintiff’s Procedural Motion.
I. FACTUAL BACKGROUND.
For purposes of this procedural motion, the underlying facts are both brief and essentially
uncontested. Plaintiff initially filed a Complaint to collect past due HOA assessments and
obtained a summary judgment from the trial court. Defendant filed a Motion To Set Aside the
Judgment more than six months after the summary judgment was entered. The trial court denied
this Motion on November 13, 2013. The mailing certificate is dated November 14, 2013. The
trial court’s Calendar Events and Hearings lists both dates as the date for the Judgment.
Plaintiff filed a procedural motion and incorporated arguments from its appellate
memorandum as the basis for the procedural motion. Defendant filed a responsive pleading; a
separate—and second—Notice of Appeal; and also addressed this issue in her appellate
memorandum. This Court has jurisdiction to consider these motions pursuant to ARIZONA CON-
STITUTION Art. 6, § 16, and A.R.S. § 12–124(A) and Superior Court Rules of Appellate
Procedure—Civil, Rule 8(c).
II. ISSUES:
A. May This Court Waive The Time Limits For Filing An Appeal.
Defendant requested that this Court waive the time limits for filing a Notice of Appeal in
the interest of justice. This Court has no power to grant such request. Although this Court may
waive most of the rules in the interest of justice, the single exception to this is the time to file the
Notice of Appeal. SCRAP—Civ. Rule 2 states:
Except as otherwise provided in these rules, and excepting the requirement
of timely filing of the notice of appeal and cross-appeal, a trial or Superior Court
may, for good cause shown, suspend the requirements or provisions of any of
these rules in a particular case, and may order proceedings in accordance with its
decision. These rules shall be liberally construed in the furtherance of justice.
SCRAP—Civ., Rule 4 establishes the time limit for filing a notice of appeal. Rule 4
states—in relevant part:
The notice of appeal shall be filed with the trial court within 14 calendar days
after the entry of the order, ruling or judgment appealed from . . . .
This rule incorporates the mandatory language “shall”. As stated in State v. Lewis, 224 Ariz. 512,
233 P.3d 625, ¶ 17 (Ct. App. 2010) aff'd, 226 Ariz. 124, 244 P.3d 561 (2011):

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

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Docket Code 023
Form L512
Page 3

A general principle of statutory construction is that the use of the word ‘may’
generally indicates a permissive provision; in contrast, the use of the word ‘shall’
typically indicates a mandatory provision.
Defendant had a 14 day window in which to file her Notice of Appeal. If Defendant failed to
comply with this requirement, this Court cannot, under our rules, waive her compliance.
B. Did Defendant Timely File Her Notice Of Appeal And The Trial Court Err
When It Ruled Her Appeal Was Abandoned.
The central question before this Court is whether Defendant timely filed her Notice of
Appeal. To determine if the Notice of Appeal was timely filed, this Court must consider not only
the date the trial court signed the Judgment, but also the date when the Judgment was entered.
Rule 1(f), SCRAP–Civ., defines the Entry of Judgment as:
“Entry of judgment” as used in these rules, shall mean a judgment which has been
signed by the judge and filed with the court.
At Justice Court, often the only record of when a filing occurs appears on the Calendar Events
and Hearings since, unlike Superior Court, the Justice Court rulings do not include a file stamp
indicating the date and time for the entry of the judgment.
Justice courts are required to record their judgments. The applicable statute states:
The judgment shall be recorded at length in the docket and signed by the
justice of the peace. The judgment shall clearly state the determination of the
rights of the parties, who shall pay the costs, and shall direct issuance of such
process as necessary to carry the judgment into execution.
A.R.S. § 22–242 (emphasis added). The language of this statute lists a two-step procedure:
recording at length in the docket and signing by the justice of the peace.2 This is reminiscent of
the two steps required by A.R.C.P. Rule 58(a). SCRAP—Civ. Rule 4, specifically refers to the
“entry of the order, ruling, or judgment appealed from” and not the signing of the judgment
(emphasis added).
In this case, the trial court signed the Judgment on November 13, 2013. The signed
judgment was not mailed until November 14, 2013, as indicated by the mailing certificate on the
Judgment. The single day difference is crucial because if the Judgment had been both signed and
entered on November 13, the time to file a Notice of Appeal would have expired 14 days later on
November 27. However, if the Judgment was not entered until November 14, 2013—the date
indicated on the mailing certificate—the final date to file would have been November 28, 2013.
The courts were closed on November 28, 2013, in honor of the Thanksgiving Day holiday. The
courts were also closed the following day—November 29, 2013. November 30, 2013, was a

2 The word “and” is a conjunction. Conjunctions are used to connect words, phrases, clauses or sentences.
En.wikipedia.org/wiki/Grammatical_conjunction.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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Form L512
Page 4

Saturday and December 1, 2013, was a Sunday. Because the courts were closed from November
28, 2013, until December 2, 2013, the final date for Defendant to file her Notice of Appeal
would have been December 2, 2013, assuming the Judgment was entered on November 14, 2013.
The trial court’s Calendar Events and Hearings does little to clarify the date for the entry of the
Judgment as both November 13, and November 14, are listed for the dates of the Judgment. The
Calendar Events and Hearings reflect the following Event Note:
APPEAL AS TO ORDER OR FINAL JUDGMENT ENTERED ON 11–13–
13 ALSO DATED 11–14–13. COPIES TO BOTH PARTIES 12–2–13.
Because the trial court record indicates a date of 11–14–2013 as a date for the entry of
judgment, this Court finds Defendant’s Notice of Appeal was timely.
The Arizona Supreme Court specifically addressed the issue of when the time begins to run
on a judgment for purposes of appeal and noted the procedures for obtaining a judgment in
Justice Court differ significantly from those used in Superior Court. The Supreme Court stated
the Justice of the Peace is required to:
. . . set forth the terms of the judgment in the docket and sign it. The judgment is
entered at the time he signs the docket, A.R.S. § 22-242, and the aggrieved party
has 10 days in which to perfect his appeal
DNB Const., Inc. v. Superior Court, 125 Ariz. 61, 62, 607 P.2d 380, 381 (1980). The Supreme
Court continued:
We note that, because of the short time (10 days) between the entry of
judgment and the time within which the aggrieved party must perfect his appeal,
when the Justice of the Peace elects to defer the decision until after trial and to
notify the parties by mail, the aggrieved party may find it almost impossible to
exercise his right of appeal. He gets no solace from Rule 6(e) of the Rules of Civil
Procedure, 16 A.R.S., which allows an additional time after service of mail, for
the Rule specifically states, “This rule has no application to the mailing of notice
of entry of judgment.” We can envision situations when the 10 day time limit
could operate as a flat denial of a party's right to appeal; for example, mail might
be delayed so that the party does not receive notice of judgment within 10 days.
A party should be able to rely upon the mail for notice and should not be
required to contact the Justice of the Peace every day to ascertain if judgment has
been entered. We believe that upon a proper showing that notice of judgment was
received so late as to make appeal within the statutory time limit impossible, that
the Superior Court could relieve the appealing party from strict application of the
10 day rule.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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Form L512
Page 5

DNB Construction v. Superior Court, 125 Ariz. at 62– 63, 604 P.2d at 381–382. The Arizona
Court of Appeals noted the difference between making a judgment and entering a judgment and
held:
There are several cases from the Arizona Supreme Court which make it clear
that ‘entry of judgment’ and ‘rendition of judgment’ are not synonymous. In the
American Surety Co. case just cited, the distinction is well drawn:
‘The rendition of a judgment is the act of the court in pronouncing its
judgment, and differs from the entry or filing of the judgment in that the former
act is the declaration of the court from the bench announcing its decision, while
the entry is the act of the clerk in writing it upon the records of the court. . . .
rendition is generally, if not always, an oral act by the court from the bench, . . .’
Fridena v. Maricopa Cnty., 18 Ariz. App. 527, 531, 504 P.2d 58, 62 (1972) [citations omitted].
The Arizona Supreme Court recognized the two prong approach and held the dates reflected in
the civil docket as the date for the entry of judgment should be the actual date on which the clerk
is making the notation.
The clerk, when he enters an order or judgment in the docket, is obliged to
show the date that he does it; that is, the date that he is actually entering (noting)
the order or judgment. When the clerk notes an order or judgment in the civil
docket he is not privileged to date it back to the date that the judge ordered the
entry. The dates reflected in the docket should be the actual dates on which the
clerk is making the notation or entry.
Judges of the Superior Court should instruct the Clerks of Superior Court
that when they make any notation or entry in the civil docket of orders denying
motions for new trial and judgments, that the date ascribed to the notation (entry)
should reflect the actual date thereof. The civil docket is a public record and
should speak the truth. The effective date of such orders and judgment is the date
of notation in the civil docket. In the instant case the appeal was timely taken,
notice of appeal having been given within sixty days from the entry of the order
denying the motion for a new trial.
Harbel Oil Co. v. Steele, 81 Ariz. 104, 105-06, 301 P.2d 757, 758 (1956). Similarly, the Arizona
Supreme Court held: “The time of entry is the day when the clerk makes the notation in the civil
docket.” Jackson v. Sears, Roebuck & Co., 83 Ariz. 20, 23, 315 P.2d 871, 873 (1957). The
Arizona Court of Appeals quoted with approval the State Bar Committee Notes to Amended
Rule 58(a) and held the purpose of the rule was to fix a date “by reference to the date of its
filing.” The Court of Appeals stated:

. . . .

. . . .

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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Form L512
Page 6

The spirit of Rule 58(a) is clear:
“The primary purpose of the amended rule is to formalize by a writing all
judgment, decrees and appealable orders, and to fix the crucial act of entry
of every judgment, decree or appealable order by reference to the date of its
filing . . .” (State Bar Committee Notes to Amended Rule 58(a).)
In order to give full effect to this purpose, such judgments should stand out loud
and clear so that the practitioner can ascertain their rendition, they should not be
hidden away in a preamble to a judgment upon and entirely separate point.
Apache E., Inc. v. Means, 124 Ariz. 11, 14, 601 P.2d 615, 618 (Ct. App. 1979).
The “crucial act of entry” is not less important in Justice Court even if it takes the form of
“recording at length in the docket.” This was recognized in the Justice Court Rules of Civil
Procedure, Rule 139, which specifically adopts language similar to that used in A.R.C.P. Rule
58(a) and requires judgments to be signed by the judge and filed and entered by the court.3
Parties have a right to appeal from adverse judgments. This right is compromised if the
party is not apprised of an adverse judgment or if the time to appeal is shortcut Because the time
for filing a Notice of Appeal is (1) jurisdictional and (2) not subject to waiver—SCRAP—Civ.
Rule 2—parties must have the full 14 days allowed by SCRAP—Civ. The statutes and rules re-
quire two separate acts—(1) signing; and (2) recording. In this case, the recording part occurred
either on November 13, 2013, or November 14, 2014. The Calendar Notes are not specific and
leave the date ambiguous. Because the right to appeal is so important, this Court determines that
for purposes of this case, the entry did not occur until November 14, 2013. Defendant had 14
days in which to file her appeal. The 14 day period expired on November 28, 2013. SCRAP—
Civ. Rule 4(a). As stated, November 28, 2013, and November 29, 2013, were legal holidays in
Maricopa County and the courts were closed. JCRCP, Rule 115, addresses how to calculate time.
JCRCP, Rule 115(a)(3) excludes Saturdays, Sundays, and legal holidays from the calculation.
Last day. The last day of the period is included, unless it is a Saturday,
Sunday, or legal holiday, in which event the period runs until the end of the next
day that is not a Saturday, Sunday, or legal holiday.
December 2, 2013, was the last day in which Defendant could file her Notice of Appeal. Defen-
dant filed her Notice of Appeal on that date. Defendant’s appeal was timely. This determination
is in accord with the spirit of the Arizona Supreme Court’s holding in DNB Const., Inc. v.
Superior Court.

3 The A.R.C.P. governed suits in Justice Court prior to the enactment of the Justice Court Rules of Civil Procedure,
promulgated August 30, 2012, and effective Jan. 1, 2013. Rule 101(d) of the new Justice Court Rules states:
Relationship of these rules to the Arizona Rules of Civil Procedure. These rules replace the
Arizona Rules of Civil Procedure (“the superior court rules”). Differences in language between a
justice court rule and a superior court rule are intended only to make the justice court rule simpler
and easier to understand. . . .

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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Form L512
Page 7

We believe that upon a proper showing that notice of judgment was received
so late as to make appeal within the statutory time limit impossible, that the
Superior Court could relieve the appealing party from strict application of the 10
day rule.
III. CONCLUSION.
Based on the foregoing, this Court concludes the Defendant timely filed her Notice of
Appeal.
The trial court has already forwarded Appellant’s Memorandum, Appellee’s Answering
Memorandum and Appellant’s Reply Brief to this Court.
IT IS ORDERED that all future filings in this matter shall be filed with the Clerk of the
Superior Court.
IT IS FURTHER ORDERED pursuant to Rule 8(c)(4) of Superior Court Rules of
Appellate Procedure—Civil the East Mesa Justice Court is to transfer the record on appeal on an
expedited basis to this Court within 15 days from the filing of this minute entry.
IT IS FURTHER ORDERED for any future filings that are filed with the Clerk of the
Superior Court, the party MUST provide one copy of that filing to this Division.
IT IS FURTHER ORDERED that the Appellant nunc pro tunc has leave to file a Reply
Memorandum (Reply Brief).
IT IS FURTHER ORDERED signing this minute entry as a formal Order of the Court.

/s/ Myra Harris

THE HON. MYRA HARRIS

Judicial Officer of the Superior Court

050220141040

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any filings.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

05/06/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

05/05/2014

Docket Code 021
Form L000
Page 1

CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton

Deputy

VELDA ROSE ESTATES HOME OWNERS
ASSOCIATION
CHARLES E MAXWELL

v.

EDITH POGGI (001)
EDITH POGGI
4132 N 3RD AVE #2
PHOENIX AZ 85013

JOSEPH I VIGIL
MESA JUSTICE CT-EAST
REMAND DESK-LCA-CCC
MCSO CIVIL DIVISION
111 S 3RD AVE
2ND FLOOR
PHOENIX AZ 85003

NUNC PRO TUNC ORDER
Lower Court Case No. CC2012–132551.
IT IS ORDERED nunc pro tunc amending the minute entry dated May 2, 2014, page 7, to
include an additional Order. The Order that is to be included reads:
IT IS ORDERED denying Plaintiff-Appellee Velda Rose Estates Home-
owners’ Association’s “Procedural Motion––Motion To Dismiss,” dated
February 21, 2014.
The remainder of the minute entry stands in effect as stated therein.
The parties will be able to access this Court’s minute entry dated May 2, 2014, by
accessing the following website: http://www.courtminutes.maricopa.gov.
NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any filings.

Michael K. Jeanes, Clerk of Court

*** Filed ***

05/08/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

05/06/2014

Docket Code 023
Form L512
Page 1

CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton

Deputy

VELDA ROSE ESTATES HOME OWNERS
ASSOCIATION
CHARLES E MAXWELL

v.

EDITH POGGI (001)
EDITH POGGI
4132 N 3RD AVE #2
PHOENIX AZ 85013

JOSEPH I VIGIL
MESA JUSTICE CT-EAST
REMAND DESK-LCA-CCC
MCSO CIVIL DIVISION
111 S 3RD AVE
2ND FLOOR
PHOENIX AZ 85003

MINUTE ENTRY
Lower Court Case No. CC2012–132551.
Comm. Morrow’s Case No. TJ 2013–003854.
MCSO File No. C286247.
Defendant-Appellant Edith Poggi (Defendant) filed a Request to file a Reply Memorandum.
This Court previously addressed that request in its Minute Entry of May 2, 2014. At the time this
Court ruled on Defendant’s request this Court had not received a copy of Plaintiff Velda Rose
Estates Homeowners Association’s (Plaintiff’s) opposition to Defendant’s Request for a Reply
Memorandum. For the reasons stated below, this Court allows Defendant’s Reply Memorandum
and denies Plaintiff’s opposition to Defendant’s request.
I. FACTUAL BACKGROUND.
This Court has addressed the factual background in its prior Minute Entries of May 1, 2014,
and May 2, 2014.

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II. ISSUE: MAY DEFENDANT FILE A REPLY MEMORANDUM.
In this Court’s Minute Entry of May 2, 2014, this Court granted Defendant’s request to file a
Reply Memorandum nunc pro tunc. At the time this Court ruled, this Court did not have
Plaintiff’s opposition to Defendant’s request for a Reply Memorandum. LC cases are not under
the e-file system. As a result, when a party files a document, the system does not generate a
courtesy copy for the Judge.
This Court has received Plaintiff’s Procedural Motion Response—Refer To Superior
Court—Response In Opposition To Appellant’s Motion To Permit Reply Memorandum
(Response). In that Response, Plaintiff re-iterated its argument about the untimeliness of Defen-
dant’s appeal. That argument has already been considered and this Court found Defendant’s
appeal was timely. Plaintiff’s Response added nothing relevant about Defendant’s request to file
a Reply Memorandum. Superior Court Rules of Appellate Procedure—Civil (SCRAP—Civ. Rule
8(a)(1) allows this Court to authorize a reply memorandum.
III. CONCLUSION.
This Court has previously granted Defendant the opportunity to file a Reply Memorandum.
IT IS THEREFORE ORDERED denying all requests in Plaintiff’s Procedural Motion
Response—Refer To Superior Court—Response In Opposition To Appellant’s Motion To Permit
Reply Memorandum (Response).
IT IS FURTHER ORDERED that all future filings in this matter shall be filed with the
Clerk of the Superior Court and a conformed courtesy copy shall be sent to the Judicial Officer.
IT IS FURTHER ORDERED signing this minute entry as a formal Order of the Court.

/s/ Myra Harris

THE HON. MYRA HARRIS

Judicial Officer of the Superior Court

050620141445

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any filings.

Michael K. Jeanes, Clerk of Court

*** Filed ***

05/08/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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Page 1

CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton

Deputy

VELDA ROSE ESTATES HOME OWNERS
ASSOCIATION
CHARLES E MAXWELL

v.

EDITH POGGI (001)
EDITH POGGI
4132 N 3RD AVE #2
PHOENIX AZ 85013

JOSEPH I VIGIL
MESA JUSTICE CT-EAST
REMAND DESK-LCA-CCC
MCSO CIVIL DIVISION
111 S 3RD AVE
2ND FLOOR
PHOENIX AZ 85003

MINUTE ENTRY
Lower Court Case No. CC2012–132551.
MCSO File No. C286247.
Plaintiff-Appellant Velda Rose Estates Homeowners Association (Plaintiff) filed a proce-
dural motion requesting that this Court strike all references to the Report and Order Imposing
Sanctions. For the reasons stated below, this Court denies Plaintiff’s Motion.
On February 21, 2014, Plaintiff filed a Procedural Motion asking that this Court strike (1)
the Report and Order Imposing Sanctions (the Report); and (2) any reference to this Report from
Defendant Edith Poggi’s Appellant Memorandum. Plaintiff claimed the Report was attached in
“an effort to besmirch the reputation of Plaintiff’s legal counsel and improperly prejudice this
Court.” Plaintiff also claimed the Report had no relation to Defendant’s appeal and the inclusion
of the Report violated the “civil, professional, and courteous treatment of all participants in the
legal process.”1 Plaintiff did not state how or why the inclusion of the Report violated the civil,
professional and courteous treatment of the participants in the legal process or why the Report is
“immaterial, impertinent, and scandalous.”2

1 Plaintiff’s Procedural Motion—Refer To Superior Court, Motion To Strike filed Feb. 21, 2014, at p. 2, ll. 3–5.
2 Id. at p. 2, ll. 5–8.

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Defendant responded (1) the Report related to counsel’s prior misconduct; and (2) Plain-
tiff’s counsel committed fraud upon the court in the current case. This Court will not rule on the
merits of the appeal at this time. In her responsive pleading, Defendant alleged counsel’s
character is relevant because he authored the 1997 CC&Rs, and did not serve Defendant with the
1997 CC&Rs when he first served the Complaint. Defendant also asserted Plaintiff’s counsel had
a conflict of interest in this case. Defendant did not support this contention. In addition, Defen-
dant included a number of claims relating to the underlying appeal. This Court will not rule on
the merits of the underlying appeal in the guise of ruling on the procedural motion.
This Court notes the Report may be immaterial or impertinent and not relate to Defendant’s
appeal. Because this Court has not yet reviewed the trial court file or the appellate memoranda
from the parties, this Court cannot determine the relevancy of the Report. However, this Court
doubts the Report is necessarily scandalous as it was created under the auspices of the Arizona
Supreme Court/Acting Presiding Disciplinary Judge. This Court notes, however, the Report is
currently being appealed to the Arizona Supreme Court3 and the Acting Presiding Disciplinary
Judge issued a stay of the Hearing Panel’s decision of reprimand set forth in the Hearing Panel’s
Report and Order Imposing Sanctions dated July 19, 2013.4
Generally, when confronted with Motions To Strike, the granting of the Motion is dis-
favored. Our Supreme Court commented:
It is the usual rule that while the granting of a motion to strike may be reversible
error, the denying of such a motion, although perhaps erroneous, is not such as a
rule, and the whole matter is usually in the sound discretion of the trial court.
MacNeil v. Vance, 48 Ariz. 187, 193, 60 P.2d 1078, 1080 (1936). Accord, Birth Hope Adoption
Agency, Inc. v. Doe, 190 Ariz. 285, 287, 947 P.2d 859, 861 (Ct. App. 1997) holding:
Denial of a motion to strike falls within the sound discretion of the trial court, and
we review for an abuse of that discretion.
See also, Engel v. Landman, 221 Ariz. 504, 509, 212 P.3d 842, 847 n. 2 (Ct. App. 2009) stating:
We note that the use of “motions to strike” to challenge all manner of items in the
record, though regrettably common in practice, should be avoided except when
authorized by rule. Motions to strike are not properly used to voice objection to
the content of a court order. “Rule 12(f) motions are generally viewed with
disfavor ‘because striking a portion of a pleading is a drastic remedy and because
it is often sought by the movant simply as a dilatory tactic.’ ” Waste Management
Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir.2001) (quoting 5A A.
Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1380,
647 (2d ed.1990)). The use of motions to strike beyond the narrow purpose
articulated in the rules frequently has the consequence of impeding the efficient

3 SB–14–0004–AP.
4 PDJ–2012–9112 Order Staying Proceedings Pending Appeal dated August 13, 2013.

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resolution of cases and increasing the cost of litigation. The proper procedural
vehicle by which to challenge the court’s order in this case would have been a
motion for reconsideration, which would not have required a response and reply
absent the court's permission. ARFLP 35(D).
The terms “impertinent and immaterial” for purposes of a Motion To Strike have been
persuasively defined as:
(Order—Granting motion to strike—General form)
Rule 12(f) authorizes a court to strike immaterial or impertinent matter from
a pleading. "Immaterial" matter, in this context, is matter which has no essential
or important relationship to the claim for relief or the defenses being pleaded, or
which is outside the scope of the action. A statement of unnecessary particulars in
connection with and descriptive of that which is material may be stricken as
"immaterial" matter. For instance, settlement discussions are inadmissible to show
fault, and accordingly, they may be stricken from a complaint as immaterial and
potentially prejudicial.
"Impertinent" matter, for purposes of Rule 12(f), consists of any allegation
not responsive or relevant to the issues involved in the action and which could not
be put in issue or be given in evidence between the parties. It is generally said that
there is considerable overlapping between the concepts of "impertinent" and
"immaterial" matter.
61A Am. Jur. 2d Pleading § 466. Our Supreme Court commented on the history of the Motion
To Strike in conjunction with A.R.C.P. Rule 11, and stated:
Thus, the provisions in Rule 11 for striking pleadings as “sham and false” if they
were signed “with intent to defeat the purpose of this rule” will be appropriate
only in those cases where the party or counsel intended some end or use not
recognized as legitimate in our system of justice. See, Risinger, Honesty in
Pleading and Its Enforcement: Some “Striking” Problems with Federal Rule of
Civil Procedure 11, 61 Minn.L.Rev. 1, 16–17 (1976–77) (describing the history
of the rule and its evolution from the common law motion to strike—a motion
which required a showing of both improper motive and falsity). We proceed,
therefore, to examine the actions of plaintiff's counsel in light of the objectives of
the rule.
Boone v. Superior Court In & For Maricopa Cnty., 145 Ariz. 235, 239, 700 P.2d 1335, 1339
(1985).
Persuasively, “scandalous” has been defined as:
Matters alleged in a pleading that are not material are impertinent, and if such
matters are impertinent and reflect on character or contain recriminations, they are
scandalous.

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Matters that are not material are impertinent. Allegations that are pertinent or
contain matters material to the issues cannot be scandalous. However, if they are
impertinent and reflect on character or contain recriminations, they are
scandalous.
The courts discourage the making of unnecessary allegations when they tend to
reflect on the character or standing of others or when they may expose them to
public obloquy.
71 C.J.S. Pleading § 60.
"Scandalous," in the context of a motion to strike, refers to any allegation that
unnecessarily reflects on the moral character of individual or states anything in
repulsive language that detracts from the dignity of the district court.
35A C.J.S. Federal Civil Procedure § 479. See also Black’s Law Dictionary defining scandalous
matter as :
Civil procedure. A matter that is both grossly disgraceful (or defamatory) and
irrelevant to the action or defense.
Black’s Law Dictionary (9th ed. 2009). The complained of Report may prove to be irrelevant.
Plaintiff has not provided this Court with any legal authority that a disciplinary ruling is
scandalous. While this Court understands why counsel is opposed to including the disciplinary
Report in Defendant’s appeal, for this Court to strike the Report as scandalous, counsel must first
demonstrate it is legally scandalous. Plaintiff’s counsel failed to do so.
At this time this Court denies Plaintiff’s Motion To Strike. Should a review of the Report in
the context of Defendant’s appeal indicate the Report is not relevant to Defendant’s case, this
Court may disregard the Report and any references Defendant made to the Report. This Court
recognizes the Report is currently on appeal.
III. CONCLUSION.
Based on the foregoing, this Court denies Plaintiff’s Motion To Strike.
IT IS THEREFORE ORDERED denying Plaintiff’s Motion To Strike.
IT IS FURTHER ORDERED signing this minute entry as a formal Order of the Court.

/s/ Myra Harris

THE HON. MYRA HARRIS

Judicial Officer of the Superior Court

050720140930

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any filings.

Michael K. Jeanes, Clerk of Court

*** Filed ***

05/20/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

05/19/2014

Docket Code 023
Form L512
Page 1

CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton

Deputy

VELDA ROSE ESTATES HOME OWNERS
ASSOCIATION
CHARLES E MAXWELL

v.

EDITH POGGI (001)
EDITH POGGI
4132 N 3RD AVE #2
PHOENIX AZ 85013

MESA JUSTICE CT-EAST
REMAND DESK-LCA-CCC

MINUTE ENTRY
Lower Court Case No. CC2012–132551.
Introduction
Defendant-Appellant Edith Poggi (Defendant) filed a series of combined motions as well as
responsive motions and reply motions. In addition, Plaintiff-Appellee filed a procedural motion.
To date, the parties have filed more than five procedural motions in this case. In order to
expedite ruling on these various motions, conserve judicial resources, and avoid needless
duplication of law, this Court shall combine the rulings on the pending motions into one minute
entry ruling.
The April 30, 2014 Motions
The first set of motions was filed on April 30, 2014, and included (1) a Motion for
Accelerated Review of Defendant’s Appeal To Avoid Irreperable Injury That Will Occur on
5/14/14 (See Exhibit A) [sic.]; (2) a Motion for Stay All Court Orders Pending Appeal; and (3)
Motion for Relief of Posting Bond. This Court ruled on this first set of motions on May 1, 2014.
Although this Court determined it would expedite its ruling on the appeal, Defendant’s continual
filing of additional motions delays this Court from ruling on Defendant’s appeal. When a party
files a procedural motion, the opposing side has 14 days in which to respond. Superior Court
Rules of Appellate Procedure—Civil (SCRAP—Civ.) Rule 8(c)(2). In addition, while a
procedural motion is pending, any further preparation of the record is suspended. SCRAP—Civ.
Rule 8(c)(2). Thus, each procedural motion further delays this Court’s ability to rule on the
appeal. A summary of the other procedural motions is included below.

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The May 5, 2014 Motions
On May 5, 2014, Defendant-Appellant filed her second set of procedural motions: (1)
Motion to Bifurcate Appeal (Jury Trial Request), Motion To Amend Independent Action
Including Claim Against Maxwell & Morgan, P.C. and Its Attorneys [sic.]; and (2) Motion To
Accept This Reply To “Procedural Motion Response—Refer To Superior Court.
On May 8, 2014, Plaintiff-Appellee filed its “Appellee’s Response In Opposition To
Appellant’s “Motion To Bifurcate Appeal (Jury Trial Requested), Motion To Amend
Independent Action Including Claim Against Maxwell & Morgan, P.C. And Its Attorneys.”
Plaintiff included a request for sanctions in this Response.
On May 15, 2013, Defendant filed a Reply to her Motion To Bifurcate Appeal (Jury Trial
Requested, Motion To Amend Independent Action Including Claim Against Maxwell & Morgan
and Its Attorneys combined with a Motion To Accept This Reply to Procedural Motion Response
—Refer To Superior Court. She combined this Reply with her Response to Plaintiff’s request for
sanctions.
That same day Plaintiff filed Appellee’s Response In Opposition To Appellant’s “Motion
For Procedural Order To Accept Following Supplemental Reply And Motion To Supplement
Motion To Bifurcate.”
Defendant’s Motion to Bifurcate Appeal/Motion To Amend Independent Action Including Claim
Against Maxwell & Morgan and Its Attorneys
In her Motion To Bifurcate her case, Defendant requested a ruling from this Court as to
whether the Justice Court judgment should be set aside because she claimed there was newly
discovered evidence. This Court does not, in its appellate context, rule on motions to set aside. A
Motion To Set Aside a Justice Court ruling must be brought to the Justice Court pursuant to Rule
141, Justice Court Rules of Civil Procedure (JCTCP). However, the Justice Court in this case no
longer has the jurisdiction to consider a Motion To Set Aside a Judgment pursuant to Rule 141,
JCRCP, because Defendant filed an appeal and the Justice Court case has been transferred to the
Appeals Division of the Superior Court.
Defendant also requested that her fraud claims “referenced in its Appeal Memorandum be
separately tried before a jury against the Association, the Association attorneys Maxwell &
Morgan, P.C. the Management Company, the developer/builder of said property, and Velda Rose
Inc.” This request is (1) procedurally improper; and (2) is denied. Defendant is requesting a new
proceeding. Defendant cannot combine new claims with an appeal. An appellate court does not
provide a jury trial and does not offer the opportunity to raise new claims against parties who
were not involved in the underlying litigation.
A litigant cannot raise new issues or bring in new evidence on appeal and an appellate court
normally does not consider any issue or evidence not first raised at the trial court. “Thus,
although Arizona appellate courts have the discretion to hear arguments first raised on appeal,
we rarely exercise that discretion.” Harris v. Cochise Health Systems, 215 Ariz. 344, 160 P.3d
223 ¶ 17 (Ct. App. 2007). In Town of South Tucson v. Board of Sup’rs of Pima County, 52 Ariz.
575, 582, 84 P.2d 581, 584 (1938), our Supreme Court ruled:

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. . . One of the rules of well-nigh universal application established by
courts in the administration of the law is that questions not raised and properly
presented for review in the trial court will not be reviewed on appeal. 3 C. J. 689.
The reason for the rule is plain. If the question had been raised below, the situa-
tion might have been met by the opposite party by way of amendment or of addi-
tional proof. In such circumstances, therefore, for the appellate court to take up
and decide on an incomplete record questions raised before it for the first time
would, in many instances at least, result in great injustice, and for that reason ap-
pellate courts ordinarily decline to review questions raised for the first time in the
appellate court. . . . Whether this court should review a question raised here for
the first time depends upon the facts and circumstances disclosed by the particular
record. It undoubtedly has the power, but ordinarily will not exercise it.
Defendant claims the attorneys representing Plaintiff have been found to have committed
fraud in a separate case. Any disciplinary matters against those attorneys are part of a separate
proceeding. As stated earlier, this Court’s jurisdiction is to consider and rule on any improper
legal rulings or abuse of discretion on the part of the trial court in the handling of the case
CC2012–132551. This Court will rule on those claims when this Court considers Defendant’s
appeal, her appellate memoranda, and Plaintiff’s responsive memorandum. This Court will not
rule on these issues in the guise of a procedural motion. Furthermore, this Court shall not order
any new trial against any party who was not a party to the Justice Court action in CC2012–
132551. Such orders exceed the scope of the Appeals Division’s jurisdiction.
Rule 9.4 of the Superior Court Local Rules—Maricopa County discusses the record used for
an appeal. This rule states:
a. All cases shall be submitted for determination based upon a verbatim
record of proceedings, and those written matters consisting of the
pleadings and papers designated or required by rule to be included within
the record on appeal from the limited jurisdiction court or administrative
agency or administrative law judge. The parties may stipulate to a
determination upon less than a complete record.
An appeal is not the same as a new claim or action. Should Defendant wish to proceed with new
claims or causes of action against any additional party(ies) Defendant will need to comply with
applicable procedural rules and file appropriate requests. These claims and actions cannot be
combined with her appeal from the East Mesa Justice Court’s ruling. Similarly, the Appeals
Division will not address any of Defendant’s requests that relate to any other case.
Defendant’s Request To Accept This Reply
This Court denies Defendant’s request to file a Reply memorandum for this group of
motions. Rule 8(c)(2) SCRAP—Civ. states no reply shall be filed unless permitted by the trial
court. Defendant’s Reply adds nothing new to her argument and, as will be seen below, provides
no new legal authority or support for her claim. However, although this Court denies
Defendant’s request for file a Reply, this Court has considered or shall consider the portions of
the pleading that relates to (1) Defendant’s request to bifurcate the case; or (2) Plaintiff’s request
for sanctions.

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Plaintiff-Appellee’s Request For Sanctions
Plaintiff requested sanctions pursuant to Rule 16, SCRAP—Civ. because Plaintiff claimed
Defendant’s motions are frivolous and caused needless delay. While this Court agrees the listed
motions lack merit, this Court does not believe they were filed to either cause unnecessary delay
or needlessly increase the costs associated with the present appeal. In response to the request for
sanctions, Defendant claimed her motions resulted from Plaintiff’s Motion To Dismiss her
appeal, and her claims about Rule 60(c). This Court finds Defendant’s Rule 60(c) claim is
inapposite because (1) the Arizona Rules of Civil Procedure did not govern the Justice Court
action; (2) the Arizona Rules of Civil Procedure are not applicable to an appeal to the Appeals
Division of the Superior Court; and (3) Defendant cannot combine her various claims into a
single action before this appellate court. This Court also finds Defendant’s claim about the
timeliness of the appeal to be moot.
Although Defendant’s motions are procedurally unfounded, Plaintiff has not demonstrated
the purpose of the motions was to either cause unnecessary delay or to increase the costs
associated with the appeal. This Court notes Defendant is a pro se litigant and the interrela-
tionship between various procedural rules can be complex. However, Defendant is cautioned that
Arizona treats pro se litigants (those who represent themselves) according to the same standards
used for attorney representation and courts do not excuse the failure to conform to mandated
rules because a litigant represents himself or herself. In In re Marriage of Williams, 219 Ariz.
546, 200 P.3d 1043, ¶ 13 (Ct. App. 2008) the Arizona Court of Appeals held:
Parties who choose to represent themselves “are entitled to no more
consideration than if they had been represented by counsel” and are held to
the same standards as attorneys with respect to “familiarity with required
procedures and . . . notice of statutes and local rules.” A party’s ignorance of
the law is not an excuse for failing to comply with it.
[Citations omitted.] Similarly, in Higgins v. Higgins, 194 Ariz. 266, 279, 981 P.2d 134, 138 (Ct.
App. 1999) the Court of Appeals ruled:
One who represents herself in civil litigation is given the same consideration on
appeal as one who has been represented by counsel. She is held to the same
familiarity with court procedures and the same notice of statutes, rules, and legal
principles as is expected of a lawyer.
[Citations omitted.] Accord, Kelly v. NationsBanc. Mortg. Corp., 199 Ariz. 284, 17 P.3d 790,
793, ¶ 16 (Ct. App. 2001). Consequently, Defendant is cautioned against the filing of proced-
urally improper motions as these require the opposing litigant to expend sums for defense that
otherwise may not be required. Furthermore, although this Court is denying Plaintiff sanctions at
this time, Plaintiff may be eligible to request reimbursement for the time spent defending against
Defendant’s motions should Plaintiff prevail on appeal. In addition, Defendant is now apprised
that she will be treated in the same manner as a litigant who is represented by counsel and she
may be subject to sanctions if she continues to file procedurally improper motions or requests
with this Court.
. . . .

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The May 12, 2014 Motions
On May 12, 2014, Defendant Poggi filed another set of motions denominated Motion To
Accelerate Ruling on Below Motions, Motion For Procedural Order To Accept Following
Supplemental Reply and Motion To Supplement Motion To Bifurcate. Plaintiff maintained the
motion was based on “newly discovered information obtained in May, 2014.” This motion
referred to a separate proceeding before Commissioner Morrow and claimed Commissioner
Morrow “accidentally did not know that he was using the incorrect mailing address for Home
Owner despite the correct information filed with the Clerk of Court/Administration (Exhibit A).”
Defendant’s Exhibit A refers to Case No. TJ2013–003854. Defendant also included documents
from Superior Court CV2012–096070.
TJ2013–003854 is a separate proceeding that occurred in the Superior Court. Similarly,
CV2012–096070 is also a separate case that was filed at Superior Court. This Court has no
jurisdiction to consider what occurred in TJ2013–003854 or CV2012–096070 in the context of a
lower court appeal from a Justice Court ruling. This Lower Court of Appeals division of the
Civil Department of Superior Court (Appeals Department) is only empowered to consider
matters relating to Defendant’s appeal from the East Mesa Justice Court’s ruling that occurred in
CC2012–132551. See SCRAP—Civ. Rule 1, stating in relevant part:
(a) These rules govern the procedures in all civil appeals, except as provided
otherwise by law, taken to the Superior Court from an order or the final
justice of a justice court pursuant to A.R.S. § 22–261, or municipal court
pursuant to A.R.S. § 22–425(B) . . . .
Similarly, Rule 9.1 of the Superior Court Local Rules—Maricopa County also specifically
indicates the limited power for the Appeals Department. That rule states—in relevant part:
b. The Appeals Department shall exercise the appellate and special action
jurisdiction of the Superior Court over all criminal, civil, (including Orders of
Protection and Injunctions Against Harassment), and civil traffic cases from the
limited jurisdiction courts within Maricopa County.
Therefore any claim relating to improper addresses or the proceeding before Commissioner
Morrow in TJ2013–003854 or any claim relating to CV2012–096070 cannot be considered in the
context of this appeal and is denied.
Plaintiff/Appellee’s Motion
Plaintiff filed a Motion to strike all references from the pleadings about the Report and
Order Imposing Sanctions. Defendant responded to this Motion. On May 7, 2014, this Court, by
minute entry ruling, denied Plaintiff’s request but determined it might disregard the Report if a
review of the Report indicated it was not relevant to the case before this Court. This Court noted
the report is currently on appeal and is not final.
. . . .
. . . .
. . . .

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III. CONCLUSION.
Based on the foregoing, this Court denies Defendant Edith Poggi’s request to bifurcate her
appeal and her Motion To Amend her “Independent Action” as procedurally improper requests.
This Court also denies Defendant’s further request to be allowed to file a Reply to her Motion re
the timeliness of Defendant’s appeal. This request is moot. This Court already determined
Defendant timely filed her appeal in this Court’s minute entry ruling dated May 2, 2014 and filed
on May 5, 2014, and no further argument about this point is needed. Defendant may not file any
second Reply in this matter.
This Court has already ruled on Plaintiff’s Motion To Strike and no further ruling about this
request is needed at this time.
This Court also denies Defendant’s Motion To Accelerate Ruling on Below Motions,
Motion For Procedural Order To Accept Following Supplemental Reply and Motion To Supple-
ment Motion To Bifurcate—the May 12, 2014 motions—as this Division cannot consider claims
about any case(s) that was/were litigated in the Superior Court.
This Court finds sanctions are not warranted at this time. However, Defendant is again
cautioned that a litigant who represents herself is held to the same standard as an attorney.
Further filings of improper requests with this Court may subject Defendant to sanctions for filing
frivolous motions or requests with this Division.
IT IS THEREFORE ORDERED denying Defendant’s Motion To Bifurcate Appeal (Jury
Trial Requested), Motion To Amend Independent Action Including Claim Against Maxwell &
Morgan, P.C. And Its Attorneys; Motion To Accept This Reply To “Procedural Motion
Response–Refer To Superior Court.”
IT IS FURTHER ORDERED striking Defendant’s Reply To Motion To Bifurcate Appeal
(Jury Trial Request), Motion To Amend Independent Action Including Claim Against Maxwell
& Morgan, P.C. and Its Attorneys; and Defendant’s Motion To Accept This Reply To
“Procedural Motion response—Refer To Superior Court.”
IT IS FURTHER ORDERED denying Defendant’s Motion To Accelerate Ruling on
Below Motions, Motion For Procedural Order To Accept Following Supplemental Reply and
Motion To Supplement Motion To Bifurcate—the May 12, 2014 Motions.
IT IS FURTHER ORDERED denying Plaintiff’s request for sanctions.
IT IS FURTHER ORDERED signing this minute entry as a formal Order of the Court.

/s/ Myra Harris

THE HON. MYRA HARRIS

Judicial Officer of the Superior Court

051920141313

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any filings.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

05/27/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

05/22/2014

Docket Code 000
Form L000
Page 1

CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton

Deputy

VELDA ROSE ESTATES HOME OWNERS
ASSOCIATION
CHARLES E MAXWELL

v.

EDITH POGGI (001)
EDITH POGGI
4132 N 3RD AVE #2
PHOENIX AZ 85013

MESA JUSTICE CT-EAST
REMAND DESK-LCA-CCC

MINUTE ENTRY
Lower Court Case No. CC2012–132551 .
Defendant-Appellant Edith Poggi (Defendant) filed a “Defendant’/Appellants Notice of
Filing the Pleading That They Filed In The Justice Court And The Justice Court’s 5/14/14
Minute Entry (Both Attached)” [sic.] on May 21, 2014. The attached motion was a “Defendants’
Motion To Accelerate Review Of This Motion / Defendants’ Motion To Stay Further Orders/
Judgments From This Court / Notice To This Court Re Court’s Staff Treatment” [sic]. The
Motion requested the trial court stay issuing any further Orders/Judgments based on this Court’s
minute entry rulings dated May 1, 2014 and May 2, 2014. The motion to the trial court also
notified the trial court she believed she was treated rudely by court staff on an ongoing basis. In
her motion, Defendant mentioned she has a medical disability and needed assistance from an
aide to communicate with the trial court’s staff. Defendant complained the trial court disregarded
her medical disability and refused to communicate with her aide. The trial court returned her
motion to her and noted this return in its May 14, 2014, minute entry. The Motion was returned
because the trial court no longer has jurisdiction over this case since Defendant filed an appeal
with the Superior Court.
Both the trial court and the Superior Court provide accommodations for persons with
disabilities. However, the person must request accommodation. At the Superior Court, there is a
form that can be completed online or printed in PDF format. If a person needs help in completing
the form, the person should contact the ADA Coordinator for assistance. The ADA Coordinator
can be reached:

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

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Docket Code 000
Form L000
Page 2

Hugh Gallagher, ADA Coordinator for Maricopa County Superior Court
125 W. Washington 3rd Floor
Phoenix, Arizona 85003
602–372–3070
Fax 602–506–3134
If alternative means of submitting an accommodation request are needed, such as by
personal interview or a tape recording, these means will be made available to qualified
individuals upon request.
Persons with disabilities must request accommodation. Absent a request, the court staff
would not be aware of any need for accommodation. Normally, court staff cannot release infor-
mation to anyone other than a party to a case or a licensed attorney appearing in a representative
capacity. Friends and family cannot appear on behalf of a party unless the person appearing is
licensed to practice law in Arizona. As our Supreme Court stated:
Courts may inquire as to whether a person who appears before it in a
representative capacity is admitted to the practice of law. Inquiry discloses that
neither Mr. nor Mrs. Haberkorn is admitted to the practice of law in Arizona. In
Bloch we considered the effect of Bernard Bloch's representation of himself and
his attempted representation of Nathan Bloch and Ruth Bloch. We held that he
could not represent either Nathan Bloch or Ruth Bloch and where he attempted to
represent them as plaintiffs in the trial court, neither Nathan Bloch nor Ruth Bloch
were before the trial court or before this Court. The same legal principles preclude
a husband, not a member of the Bar, from representing his wife in a court of law.
This is true whether her interest be separate or community.
Haberkorn v. Sears, Roebuck & Co., 5 Ariz. App. 397, 399, 427 P.2d 378, 380 (1967). This
Court hopes Defendant has not been rudely treated.

052320140951

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any filings.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

05/23/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

05/22/2014

Docket Code 025
Form L000
Page 1

CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton

Deputy

VELDA ROSE ESTATES HOME OWNERS
ASSOCIATION
CHARLES E MAXWELL

v.

EDITH POGGI (001)
EDITH POGGI
4132 N 3RD AVE #2
PHOENIX AZ 85013

MESA JUSTICE CT-EAST
REMAND DESK-LCA-CCC

MINUTE ENTRY
Lower Court Case No.CC2012132551.
Defendant-Appellant Edith Poggi (Defendant) filed “Defendants’/Appellants Reply To
Appellee’s Response In Opposition To “Motion For Procedural Order To Accept Supplemental
Reply And Motion To Supplement Motion To Bifurcate” [sic.] (Reply) on May 20, 2014. This
Court has already ruled on Defendant’s combined motions. This Court read Defendant’s most
recently filed Reply. Nothing in this Reply would change this Court’s ruling. Defendant’s Reply
is moot.

052220141345

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any filings.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

06/03/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

06/02/2014

Docket Code 504
Form L000
Page 1

CLERK OF THE COURT
THE HON. CRANE MCCLENNEN
J. Eaton

Deputy

VELDA ROSE ESTATES HOME OWNERS
ASSOCIATION
CHARLES E MAXWELL

v.

EDITH POGGI (001)
EDITH POGGI
4132 N 3RD AVE #2
PHOENIX AZ 85013

COMM. M. HARRIS
MESA JUSTICE CT-EAST
REMAND DESK-LCA-CCC

CIVIL
RECORD APPEAL ASSIGNMENT - ORAL ARGUMENT REQUESTED
Lower Court Case No. CC2012–132551.
Memoranda having been filed in the above-mentioned appeal,
IT IS ORDERED assigning this appeal on June 2, 2014, to Commissioner Myra Harris for
determination of the appeal based upon the transcript of the proceedings and the parties’
memoranda, pursuant to Local Rule 9.9, Maricopa County Superior Court Local Rules of Practice,
within sixty (60) days from this date.
Oral argument is requested and this matter is referred to Commissioner Myra Harris for
determination, pursuant to Rules of Procedure in Civil Cases.
IT IS ORDERED denying request for oral argument.

504.CIVIL.OAR

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any filings.

Michael K. Jeanes, Clerk of Court

*** Filed ***

06/12/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

06/10/2014

Docket Code 512
Form L512
Page 1

CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
M. Nielsen

Deputy

VELDA ROSE ESTATES HOME OWNERS
ASSOCIATION
CHARLES E MAXWELL
v.

EDITH POGGI (001)
EDITH POGGI
4132 N 3RD AVE #2
PHOENIX AZ 85013

MESA JUSTICE CT-EAST
REMAND DESK-LCA-CCC

RECORD APPEAL RULING / REMAND
Lower Court Case No.CC2012–132551.
Defendant-Appellant Edith Poggi (Defendant) appeals the East Mesa Justice Court’s deter-
mination that refused to set aside Plaintiff-Appellee Velda Rose Estates Homeowners Associa-
tion’s (Plaintiff) summary judgment. Defendant contends the trial court erred and the judgment
should have been set aside because Defendant discovered new evidence, post-judgment, that the
CC&Rs on which the summary judgment was based, were invalid and unenforceable; and she
never received the Motion for Summary Judgment. Defendant also claims Plaintiff’s counsel
engaged in fraud and the HOA improperly assessed her fees based on the number of units she
owned as opposed to the number of lots she owned. For the reasons stated below, this Court
affirms in part and reverses in part the trial court’s judgment.
I.
FACTUAL BACKGROUND.
The Initial Complaint and Proceedings
Defendant owned four dwellings on two lots within the Velda Rose Estates Homeowners
Association complex (HOA) and allegedly failed to pay all of the assessments for these units. On
July 9, 2012, Plaintiff, represented by Charles E. Maxwell, Esq., filed a Complaint in CC2012–
132551, alleging (1) breach of contract; (2) open account; and (3) quantum meruit because
Defendant was indebted to Plaintiff in the sum of $1,797.77 for unpaid monthly maintenance
and/or special and/or fine assessments. Plaintiff alleged it incurred attorneys’ fees of $1,000.00 in
bringing the suit and anticipated incurring additional attorneys’ fees. Plaintiff alleged it was
entitled to be reimbursed for these attorneys’ fees pursuant to the Declaration of the CC&Rs, § 8;
A.R.S. § 33–1256(H); A.R.S. § 33–1807(H); and A.R.S. § 12–341.01. Plaintiff alleged a second
claim for an open account for the monthly maintenance and/or special assessment and/or fine
assessments of the outstanding $1,797.77 plus and additional $151.25 per unit per year as well as

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MARICOPA COUNTY

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Form L512
Page 2

monthly late charges. In addition, Plaintiff alleged a cause of action for quantum meruit for the
same amounts as indicated in its other claims as well as the $1,000.00 for attorneys’ fees.
Plaintiff attached a copy of the First and Second Amended Declarations of Covenants,
Conditions and Restrictions for Velda Rose Estates East, Maricopa County, Arizona (CC&Rs) to
the Complaint. The First Amended Declaration of CC&RS was dated April 22, 1997, and the
Second Amended Declaration of CC&Rs was dated September 9, 1997. Article VI, Provision
8(a) of the First Amended Declaration of CC&Rs provided for the enforcement of the assess-
ments and allowed for the imposition of reasonable attorneys’ fees as well as interest on past due
assessments and provided that:
Each owner agrees that any judgment rendered in any such action shall include a
sum for reasonable attorneys’ fees in such amount as the Court may adjudge
against the defaulting Owner, plus all court costs and necessary expenses and
accounting fees incurred by the Association, plus interest on all amounts from the
date the assessment becomes delinquent until paid in full, and an amount for
accruing assessments, attorneys’ fees and costs, until all amounts due and owing
under any such judgment are paid in full.
Section 8(a) of the Second Amended Declaration of CC&Rs re-iterated this provision.
An Owner was defined as the record owner of a Lot, and a Lot was defined as:
“Lot” shall mean and refer to any separate parcel of real property shown
upon the recorded subdivision plat of the Properties, with the exception of the
Common Area, including the 32 Single Family residences.1
Defendant, on October 10, 2012, responded to the Complaint and filed a Counterclaim. In
the Response, Defendant claimed Plaintiff repeatedly sent documents to an incorrect address and
Defendant and her daughter—Mrs. Saville—had mailed a full payment to the HOA.2 Defendant
attached a copy of a check dated August 22, 2012 payable to the Velda Rose HOA, for $670.62
and included a notation the check was for the total outstanding balance. Defendant also attached
a copy of a letter dated August 30, 2012, from Plaintiff’s counsel—Allen H. Quist—indicating
the check was being returned because the total amount owing was $2,903.67 which resulted from
the principal amount of the claim of $1,797.77 plus attorneys’ fees of $707.50 and costs of
$398.40.
The East Mesa Justice Court transferred the case to the Maricopa County Superior Court on
October 10, 2012, —CV2012–096070—because Defendant’s Counterclaim exceeded the trial
court’s jurisdiction. Plaintiff filed a Motion To Dismiss Defendant’s Counterclaim on October 16,
2012, and claimed Defendant failed to allege any claim on which relief could be granted.
On November 6, 2012, Plaintiff filed a Motion For Summary Judgment. Two days later, on
November 8, 2012, Plaintiff filed a Motion To Remand the case to the Justice Court because

1 Article I, Sections 11, and 14, First Amended Declaration of CC&Rs.
2 Answer, dated Sept. 27, 2012.

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Defendant failed to pay the required filing fee for her Counterclaim. Defendant paid her filing
fee on November 9, 2012, and filed her Response to Plaintiff’s Motions. On December 13, 2012,
Hon. Mark Aceto, a Judge of the Maricopa County Superior Court, found Defendant failed to
state a claim on which relief could be granted and dismissed Defendant’s Counterclaim. The
Maricopa County Superior Court determined the remaining matters were within the Justice
Court’s jurisdictional limits and remanded the case to the East Mesa Justice Court.
The Justice Court Action
On January 10, 2013, Plaintiff filed a request for a ruling on its summary judgment motion
and asserted Defendant had not timely responded to that motion. Plaintiff claimed, pursuant to
Rule 128(c) Justice Court Rules of Civil Procedure (JCRCP), a failure to challenge the requested
summary judgment could be deemed consent to the request. Plaintiff also alleged the entire
record supported its requested ruling.
The trial court granted Plaintiffs’ Motion for Summary Judgment on February 6, 2013.The
following day the trial court signed an order granting summary judgment and awarding Plaintiff
the principal sum of $1,979.77 plus reasonable attorneys’ fees and accruing charges as granted
by the trial court. Plaintiff’s counsel was told to submit a China Doll3 for the trial court’s review
as well as a proposed form of Judgment.
Stephanie Van Splunder submitted her China Doll Affidavit and requested attorneys’ fees of
$3,353.50 for her work on the case.4 In addition, Charles E. Maxwell submitted a separate China
Doll and requested an additional $6,305.00 for his work. The combined legal fees from both
firms totaled $9,658.00—a sum almost five times the total amount awarded for the underlying
principal claim. The combined cost expended by both firms was $412.80.
Defendant—through counsel—responded to the fee application and claimed the requested
fees were excessive and duplicative. In addition, Defendant claimed counsel did not sufficiently
specify the work performed or distinguish between work on the contract claim—which would be
compensable—from work requesting the tort claims be dismissed—which would be non-
compensable. Plaintiff’s counsel replied and, as part of this Reply, submitted as Exhibit B to
Plaintiff’s Reply In Support Of Application For Attorney [sic.] Fees a copy of a letter from
Maxwell & Morgan to Defendant dated October 25, 2012, where they characterized the action as
“ultimately, this is a straightforward collection case”. Plaintiff’s counsel—Maxwell & Morgan—
also relied on McDowell Mountain Ranch Cm’ty Ass’n v. Simon, 216 Ariz. 266, 165 P.3d 667 (Ct.
App. 2007) and asserted Defendant had the burden of demonstrating which billing entries were
excessive.

3 A China Doll Affidavit details the work performed and the basis for the requested attorneys’ fees. Schweiger v.
China Doll Restaurant, Inc.,138 Ariz. 183 (Ct. App. 1983).
4 Two attorneys from Mr. Maxwell’s firm worked on the case and two additional attorneys from a separate law firm
associated with the Maxwell & Morgan attorneys. Four attorneys billed for their collection efforts in bringing the
case to a summary judgment.

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On March 26, 2013, the trial court signed Plaintiff’s proposed Judgment and awarded
Plaintiff a principal balance of $1,979.77; attorneys’ fees of $9,658.50; costs of $412.80; and
dismissed Defendant’s Counterclaim with prejudice pursuant to the prior order of the Hon. Mark
Aceto, Judge of the Superior Court. The Judgment also included a proviso awarding Plaintiff all
future costs and attorney fees incurred by Plaintiff after submission of the Judgment. The
provision stated:
For all costs and attorney fees incurred by Plaintiff after submission of this
Judgment for entry by the Court in collecting the amounts listed in this
Judgment.5
On March 28, 2013, the trial court awarded Plaintiff’s counsel an additional $500.00 in
attorneys’ fees for their Reply In Support Of Application For Attorney [sic.] Fees.
Defendant did not appeal from this Judgment. Plaintiff, on April 5, 2013, filed a garnish-
ment action at the Superior Court—TJ2013–003854. On September 18, 2013, Defendant filed
her Motion To Set Aside the Judgment issued by the Justice court. However, instead of filing the
motion at the Justice Court, Defendant filed her Motion in the Superior Court case. By Minute
Entry dated October 10, 2013, and filed on October 11, 2013, the Superior Court denied
Defendant’s Motion To Set Aside Judgment without prejudice to Defendant raising her argument
before the trial (Justice) court.
The Motion To Set Aside The Judgment
On October 21, 2013, Defense counsel filed a Motion To Set Aside Judgment and Stay
Sheriff’s Sale Scheduled (Motion To Set Aside) with the trial court and claimed the CC&Rs on
which Plaintiff based its Summary Judgment were invalid and unenforceable. Defendant claimed
the judgment should be set aside based on newly discovered evidence; misconduct on the
Plaintiff’s part; and in the interest of justice.6 Defendant claimed the newly discovered evidence
was that the Second Amendment to the CC&Rs ratified on September 9, 1997, were improperly
ratified as an insufficient number of lot owners agreed to the amended CC&Rs. Defendant
provided a tally of the lot owners and indicated only 18 votes were cast in favor of the amended
CC&Rs.7 Defendant claimed the Second Amendment was not properly passed and the prior
version of the CC&Rs did not provide for any assessments. Defendant concluded this was a
material claim and would have changed the outcome of this matter. In addition, Defendant
maintained she was reasonably diligent in presenting this claim because she had no reason to
question the legitimacy of the CC&Rs. Defendant asserted Plaintiff knew the votes cast were
insufficient to support its allegation that the Second Amendment to the CC&Rs had passed.
Defendant also stated (1) she was improperly assessed fees based on the number of units she

5 Plaintiff did not explain the basis for awarding its counsel all future fees when the underlying CC&Rs only
provided for the award of reasonable fees. See CC&Rs section 8. Additionally, Plaintiff’s Complaint requested
“accruing” attorneys’ fees but never mentioned “all” attorneys’ fees.
6 Motion To Set Aside Judgment and Stay Sheriff’s Sale Scheduled at p. 3, ll. 17–19, filed on Oct. 21, 2013.
7 Id. at p. 5, ll. 6–22.

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owned as opposed the number of lots; and (2) Plaintiff’s representation that the assessments were
valid was the result of a “conscious misrepresentation” on Plaintiff’s part.8 Defendant declared
she should be relieved from the consequences of her actions in choosing to represent herself be-
cause (1) she is elderly (71 years old); (2) thought she could handle a dispute of approximately
$1900.00 on her own; and (3) the case had “steam rollered” into a judgment in excess of
$25,000.00.
Plaintiff filed a Motion to Strike Defendant’s Motion To Set Aside and claimed Defendant’s
Motion To Set Aside was untimely based on JCRCP, Rule 141(c) which imposes a six month
time limit on filing motions to set aside for newly discovered evidence, fraud, misrepresentation
or other misconduct.
Defendant opposed Plaintiff’s Motion To Strike her Motion To Set Aside and argued she
originally filed the Motion To Set Aside in the Superior Court action, TJ2013–003854 within the
six month window. She claimed she believed the Superior Court had concurrent jurisdiction with
the Justice Court for purposes of the Motion To Set Aside and, when the Superior Court dis-
missed her Motion To Set Aside, she re-filed in the Justice Court. She asserted A.R.S. § 12–504,
the “savings statute” supported her position.
On November 14, 2013, the Trial Court (1) denied Defendant’s Motion To Set Aside; and
(2) determined Plaintiff’s Motion To Strike the Motion To Set Aside was moot. Defendant filed a
timely appeal.9 Plaintiff filed a responsive memorandum. This Court has jurisdiction pursuant to
ARIZONA CONSTITUTION Art. 6, § 16, and A.R.S. § 12–124(A).
II. ISSUES:
A. Did Defendant Timely File Her Notice Of Appeal
Defendant addressed the timely filing of her Notice of Appeal in her appellate
memorandum. This issue was resolved in this Court’s prior Minute Entry—dated May 2, 2014,
and filed on May 5, 2014,—in response to Plaintiff’s procedural motion to dismiss the appeal
and does not need any further discussion. This Court adopts its prior ruling.
B. Did The Trial Court Abuse Its Discretion By Failing To Set Aside Plaintiff’s
Summary Judgment When Defendant (1) Filed Her Request Almost Seven
Months After Judgment Was Entered; And (2) Based Her Claim On Newly
Discovered Evidence And Her Lack Of Notice About The Motion For
Summary Judgment.
. . . .
. . . .

8 Id. at p. 7, ll. 1–5. The Second Amended CC&Rs, Section 6, states the annual and special assessments “must be
fixed at a uniform rate for all Lots”. . . .
9 This Court previously ruled on the timeliness of Defendant’s appeal. Both parties addressed the timeliness issue in
their respective appellate memoranda.

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Standard of Review For Denial Of Motion To Set Aside Judgment
The Trial Court did not make any findings of fact or conclusions of law when it ruled on
Defendant’s Motion To Set Aside the Judgment. While most of the facts do not appear to be in
controversy, where facts do appear to be contested, this Court will review the trial court’s factual
determination(s) for an abuse of discretion. This Court will also review the trial court’s legal
determinations. The trial court’s decision will not be set aside absent a clear abuse of discretion.
Hirsch v. National Van Lines, Inc. 136 Ariz. 304, 666 P.2d 49 (1983). Review is limited to
questions raised in the Motion To Set Aside. Goglia v. Bodnar, 156 Ariz. 12, 16, 749 P.2d 921,
925 (Ct. App. 1987). However, if the undisputed facts require a different ruling as a matter of
law, or material facts are in controversy, the appellate court may reverse. Coconino Pulp and
Paper Co. v. Marvin, 83 Ariz. 117, 119, 317 P.2d 550, 551 (1957).
In determining if the trial court abused its discretion, this court must consider the standards
for an abuse of discretion claim. The Supreme Court of Arizona stated:
In exercising its discretion, the trial court is not authorized to act arbitrarily or
inequitably, nor to make decisions unsupported by facts or sound legal policy. . . .
Neither does discretion leave a court free to misapply law or legal principle.
City of Phoenix v. Geyler, 144 Ariz. 323, 328–329, 697 P.2d 1073, 1078–1079. (1985) (citations
omitted). Thus, a trial court abuses its discretion if it:
1) applied the incorrect substantive law or preliminary injunction standard; 2)
based its decision on a clearly erroneous finding of fact that is material to the
decision to grant or deny the injunction; or 3) applied an acceptable preliminary
injunction standard in a manner that results in an abuse of discretion.
McCarthy Western Constructors v. Phoenix Resort Corp., 169 Ariz. 520, 523, 821 P.2d 181, 184
(Ct. App. 1991) (citation omitted). As stated, appellate courts review an order denying a motion
to vacate or set aside a summary judgment for an abuse of discretion. Our Court of Appeals said:
This is an appeal from an order denying a motion to vacate a summary
judgment. The sole issue is whether the trial court abused its discretion in denying
appellant's motion.
Ashton v. Sierrita Mining & Ranching, 21 Ariz. App. 303, 304, 518 P.2d 1020, 1021 (Ct. App.
1974). Accord, Modla v. Parker, 17 Ariz. App. 54, 56, 495 P.2d 494, 496 (1972) where the
Arizona Supreme Court held:
. . . it is within the sound discretion of a trial court to set aside a final judgment
and that action will not be disturbed on appeal except for clear abuse of
discretion.
To counteract the trial court’s decision to refuse to set aside the Judgment, Defendant must make
a clear showing of the trial court’s abuse of its discretion.

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The Motion To Set Aside The Judgment
Introduction
Defendant based her Motion To Set Aside on her claim about newly discovered evidence
relating to how or if the HOA adopted the amended CC&Rs. This is a claim the Defendant failed
to make prior to the trial court granting Plaintiff’s Motion For Summary Judgment. Indeed,
Defendant—a self-represented litigant at the time—failed to file any response to Plaintiff’s
requested Motion For Summary Judgment. In requesting that the Summary Judgment be set
aside Defendant acknowledged her failure to respond to the Summary Judgment motion.10
Defendant also raised—but did not develop—her claim she never received the Motion For
Summary Judgment.11
Defendant’s Failure To Receive The Summary Judgment Motion
Defendant claimed she never saw the summary judgment motion “to begin with” but
provided no affidavit to support this assertion and did not otherwise address this point. Our Court
of Appeals discussed the need to fully address a legal issue and held the failure to provide legal
support for a claim results in a waiver of the claim. The Court of Appeals wrote:
Father, however, cites no legal authority for how or why the juvenile court erred.
Accordingly, this argument is waived.
Bob H. v. Arizona Dep't of Econ. Sec., 225 Ariz. 279, 237 P.3d 632, ¶ 10 (Ct. App. 2010). Defen-
dant raised this same claim about not receiving the summary judgment motion in her appellate
memorandum but again failed to do anything other than state in her argument that she did not
receive the summary judgment motion “to begin with”. This is not sufficient to raise the claim.
Our Supreme Court held:
Failure to argue a claim on appeal constitutes waiver of that claim.
State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995). Furthermore, Defendant delayed
for almost six months before requesting that the trial court set aside the summary judgment. Even
if Defendant had not received the Motion for Summary Judgment—a fact which she never
substantiated—she surely knew about the summary judgment once the trial court granted it. She
did nothing at that time. As our Supreme Court stated:
We first note that mere carelessness is not sufficient reason to set aside a
default judgment.
Daou v. Harris, 139 Ariz. 353, 359, 678 P.2d 934, 940 (1984). After learning about the trial
court granting Plaintiff its requested summary judgment, Defendant did not seek immediate
relief from the trial court. If Defendant believed she received no notice about the summary
judgment, she should have properly brought that claim to the trial court’s attention. She failed to

10 Motion To Set Aside at p. 2, l. 23.
11 Id. at p. 7, ll. 19–20. See also Appellant’s Memorandum at p. 8, # 32.

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do so. Our Court of Appeals addressed the need to bring a claim to the trial court’s attention and
said:
To obtain such relief under Rule 60(c), in addition to satisfying the other
requirement of the rule that the party show compelling circumstances favoring
relief from the judgment, a party must demonstrate (1) that it did not timely
receive notice that the judgment had been entered; (2) that it promptly filed a
motion after actually receiving such notice; (3) that it exercised due diligence, or
had a reason for the lack thereof, in attempting to learn the date of the decision;
and (4) that no party would be prejudiced
Haroutunian v. Valueoptions, Inc., 218 Ariz. 541, 189 P.3d 1114, ¶ 20 (Ct. App. 2008).
Defendant slept on her rights and this claim is waived.
Was Summary Judgment Properly Granted
In her Motion To Set Aside the judgment, Defendant asserted the summary judgment was
improper because (1) the Amended CC&Rs had not been correctly adopted; and (2) even if the
CC&Rs had been properly adopted, these rules were not fairly administered because Defendant
was being assessed based on her number of units instead of on the number of lots she owned.12
While Defendant owned two lots, she had a total of four units on these lots. Defendant claimed
Plaintiff’s assessments were not supported by its own CC&Rs and therefore, summary judgment
was improper.
By requesting summary judgment, Plaintiff had the burden of proof. Although Defendant
did not respond to the summary judgment, her failure to respond is not a guarantee of Plaintiff’s
success. The Arizona Court of Appeals addressed the consequences of failing to respond to a
motion for summary judgment and held:
However, certain limitations exist on the exercise of the trial court's
discretion, especially if the motion is one for summary judgment. A failure to
respond to a motion for summary judgment with a written memorandum or
opposing affidavits cannot, by itself, entitle the moving party to summary
judgment. The trial court must consider the entire record before deciding a
summary judgment motion. Rule 56(e) provides that “an adverse party may not
rest upon the mere allegations or denials of [its] pleading,” and that if the party
does not respond, summary judgment shall be entered against the party “if
appropriate.” Choisser, 12 Ariz. App. at 261, 469 P.2d at 495 (quoting Ariz. R.
Civ. P. 56(e)). This is another way of saying that the moving party is entitled to
summary judgment if “there is no genuine issue as to any material fact and [ ] the
moving party is entitled to a judgment as a matter of law.” The burden of showing
that no genuine issue of material fact exists rests with the party seeking summary
judgment.

12 Id. at p. 7, ll. 2–5.

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The admonition in Rule 56(e) simply means that a nonmoving party who
fails to respond does so at his peril because the trial court will presume that any
uncontroverted evidence favorable to the movant, and from which only one
inference can be drawn, is true. If that uncontroverted evidence would entitle the
movant to a judgment as a matter of law, then the trial court must grant the
summary judgment motion. However, if a moving party's summary judgment
motion fails to show an entitlement to judgment, the nonmoving party need not
respond to controvert the motion. see also Zimmerman v. Shakman, 204 Ariz.
231, 237, ¶ 21, 62 P.3d 976, 982 (App. 2003) (stating that Rule 7.1(b) “is not
mandatory, and the failure to respond does not in and of itself authorize a
judgment against the nonmoving party if the motion fails to demonstrate the
movant's entitlement to the requested relief”).
Schwab v. Ames Const., 207 Ariz. 56, 83 P.3d 56, ¶¶ 15–16 (Ct. App. 2004). Despite this
standard, Plaintiff advocated that by failing to appeal the entry of the Summary Judgment,
Defendant effectively waived her right to complain about the entry of the Judgment. This is
incorrect. Plaintiff had the burden of demonstrating it was entitled to its requested summary
judgment based on the facts before the trial court.
To prevail on a summary judgment motion, the proponent must show there are no material
facts in controversy and the proponent is entitled to judgment as a matter of law Chanay v.
Chittenden, 115 Ariz. 32, 38, 563 P.2d 287, 293 (1977). Plaintiff alleged there were no material
facts in controversy and the trial court determined Plaintiff was entitled to judgment as a matter
of law. Once the trial court made this determination, the burden switched to Defendant to show
(1) there were material facts in controversy and/or (2) Plaintiff was not entitled to Judgment as a
matter of law. Defendant met this burden based on the documents Plaintiff submitted.
Defendant claimed she was improperly assessed because the assessment was based on the
number of her units as opposed to the number of her lots. In reviewing the Edith Poggi Account
Summary which Plaintiff (1) provided as Exhibit D to its Motion For Summary Judgment; and
(2) referenced on page 2, ll. 14–15 of Plaintiff’s Separate Statement Of Facts In Support Of
Plaintiff’s Motion For Summary Judgment, the Assessments for 2012 are listed as “Assessments
($151.25 x 4 Units) for a total of $605.00. This Amount indicates Defendant was assessed based
on the number of units she owned and not on the number of lots she owned as required by the
CC&Rs. Although Defendant never provided the trial court—or the appellate court—with proof
as to the amount of the monthly assessment per lot or the number of occupants that were present
in each of her units, Plaintiff’s exhibits demonstrated the problems with its calculations and the
contradictory nature of its own pleadings where,—in Plaintiffs’ Separate Statement of Facts In
Support Of Plaintiff’s Motion For Summary Judgment13—Plaintiff asserted Defendant was
accruing maintenance assessments and monthly charges per lot and not per unit but its
calculations show a per unit charge. Plaintiff’s Exhibit D demonstrated Defendant was likely
overcharged in the amount Defendant was assessed. This discrepancy indicated there were

13 Plaintiffs’ Separate Statement of Facts In Support Of Plaintiff’s Motion For Summary Judgment at p. 3, l. 10.

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material facts in controversy. Therefore, Plaintiff did not prove it was entitled to Judgment as a
matter of law, particularly where one of Defendant’s claims was she was charged for assess-
ments she did not owe. Because Defendant claimed she was not responsible for the amount
assessed, and because Plaintiff’s own exhibits supported her claim, the trial court should have set
the summary judgment aside. Thus, although the trial court did not err by disregarding
Defendant’s claim about not timely receiving the Motion for Summary Judgment, the trial court
did err by refusing to set the summary judgment aside based on a demonstrated conflict in the
facts.
Defendant Alleged Newly Discovered Evidence
Defendant premised a major portion of her Motion To Set Aside the summary judgment on
her allegation that she had newly discovered evidence of fraud relating to how the CC&Rs were
amended. She claimed the Amended CC&Rs were (1) never properly passed; (2) ineffective; and
(3) improperly applied to her;14 and based her Motion To Set Aside on Rule 141, JCRCP—the
functional equivalent of A.R.C.P., Rule 60 (c).15 Defendant claimed her position on the
Amended CC&Rs was newly discovered evidence. It was not. The Court of Appeals discussed
the standard for finding newly discovered evidence and stated:
The standard governing motions on the grounds of newly discovered evidence is
concisely set out in 11 Wright & Miller, supra, s 2859 as follows:
‘Under both rules, (Rule 59(a) 4 and Rule 60(c) 2) the evidence must have
been in existence at the time of the trial, but if it was in possession of the
party before the judgment was rendered it is not newly discovered and does
not entitle him to relief. The rule speaks of ‘due diligence,’ and the moving
party must show why he did not have the evidence at the time of the trial or
in time to move under Rule 59(b). A judgment will not be reopened if the
evidence is merely cumulative and would not have changed the result.' 11
Wright & Miller at 182-85.
Ashton v. Sierrita Mining & Ranching, id., 21 Ariz. App. at 305, 518 P.2d at 1022. The
reviewing court must distinguish between a lack of due diligence and Defendant’s reasons for
her claimed inability to discover the evidence. Here, both the first and second Amended

14 Defendant claimed the CC&Rs were improperly applied to her because she was assessed based on the number of
units she owned instead of the number of lots. This Court addressed this claim in the preceding section.
15 Although there is not a lot of case law interpreting Rule 141, JCRCP, case law interpretations for Rule 60(c) ap-
ply. See JCRCP, Rule 101(d), adopting the case law interpretations of the A.R.C.P.
Relationship of these rules to the Arizona Rules of Civil Procedure. These rules replace the
Arizona Rules of Civil Procedure (“the superior court rules”). Differences in language between a
justice court rule and a superior court rule are intended only to make the justice court rule simpler
and easier to understand. Case law interpreting a superior court rule is authoritative unless a justice
court rule expressly adds a requirement or provides a right not found in a superior court rule. For
ease of reference, any related superior court rules are shown in brackets at the end of a
corresponding subsection of these rules.

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Declarations of CC&Rs had existed for over a decade. Defendant should have been aware of
these amendments and could have chosen to investigate how the amended CC&Rs were passed.
Plaintiff provided copies of these Declarations with its pleadings. Defendant had ample
opportunity to read and research the amendments had she chosen to do so. Similarly, Defendant
had time to locate the original Declaration of CC&Rs (the 1969 Declaration). Defendant failed to
assert any issue about the 1969 Declaration prior to claiming the amendments were incorrectly
passed. Failure to conceive of or develop an argument is not synonymous with newly discovered
evidence. A newly thought of claim is not the same as newly discovered evidence. This claim
fails.
Defendant Alleged Fraud
Defendant also claimed fraud and alleged several types of fraud. Her first claim for fraud
related to the passing of the amended Declarations. As stated above, this claim failed because
Defendant premised this claim on “newly discovered evidence” and the evidence was available
throughout these proceedings. Her second allegation related to the pending disciplinary
proceedings against Plaintiff’s counsel. This—second— fraud allegation will be addressed in
Issue C discussing the use of a pending ethics investigation and Court of Appeals opinion from
an unrelated case.
Fraud on the Court
Defendant requested Rule 141 (c)(6) relief re “any other reason that justifies relief from the
judgment” in addition to her generic fraud claim. Here, this Court found Plaintiff’s counsel erred
by changing the terms of the trial court’s summary judgment order and by requesting relief that
exceeded the relief it originally pleaded in its Complaint and summary judgment motion. In its
Complaint, Plaintiff requested attorneys’ fees based on the Declaration of CC&Rs. Plaintiff also
requested attorneys’ fees pursuant to A.R.S. 12–341.01; A.R.S. 33–1807 (H); and A.R.S. 33–
1256(H). The Declaration and all of these statutes use the term “reasonable” as the modifier for
the attorneys’ fees provision.
After granting Plaintiff’s requested summary judgment, the trial court signed an Order on
February 7, 2013. That order, signed by the Hon. Mark Chiles, Sr.; stated:
This Court grants Plaintiff’s Motion for Summary Judgment as follows:
Principal: $1979.77
Interest
Costs
Reasonable Attorney Fees (China Doll required for consideration on amount.)
Accruing charges as granted by court.
Please submit a purposed [sic.] form of judgment for further consideration.
When Plaintiff’s counsel submitted its proposed form of judgment, counsel included a provision
for “all” attorneys’ fees instead of “reasonable” fees. Counsel knew—or should have known—
this request was in derogation of the clearly expressed contractual terms as well as of the

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statutory authority on which Plaintiff based its right to attorneys’ fees. Counsel did not disclose
the change in the terms to the trial court. The trial court had the right to rely on counsel’s
proffered proposed judgment to be accurate since counsel is an officer of the court.
Fraud requires nine elements: a knowing intentional misstatement of a material fact made
with the intent the opposite party relies on it; the opposite party does rely on it; and the statement
causes detriment.
The elements of actionable fraud may be stated as follows: (1) A representation;
(2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or
ignorance of its truth; (5) his intent that it should be acted upon by the person and
in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity;
(7) his reliance on its truth; (8) his right to rely thereon; (9) his consequent and
proximate injury. 26 C. J. 1062. If these factors all appear, a cause of action for
fraud will unquestionably exist.
Moore v. Meyers, 31 Ariz. 347, 354, 253 P. 626, 628 on reh'g, 31 Ariz. 519, 255 P. 164 (1927).
Here, counsel’s fraud was a fraud on the court as well as on Defendant. Counsel provided a
proposed judgment that contained a misstatement of a material fact—that the future attorneys’
fees were to be for “all” fees and costs in the future. Thereafter, counsel used the judgment to
acquire “all” requested fees in counsel’s later legal work on behalf of his client. Counsel made
no attempt to amend his judgment and this statement was both material and a misstatement of a
fact. Because counsel then used this judgment to obtain his entire claimed fee, he made his claim
for “all” fees with the intent that courts—in any subsequent filings—would rely on this
misstatement to the detriment of both Defendant and the entire system of justice and fair dealing.
As our Supreme Court stated:
It is urged that fraud on the court vitiates everything it touches and hence, when it
is shown to have been committed by the party in whose favor the judgment is
rendered, such judgment may be vacated at any time upon a proper showing made
by the injured party. As an abstract matter we agree with the above proposition of
law.
Damiano v. Damiano, 83 Ariz. 366, 369, 321 P.2d 1027, 1030 (1958). The provision about “all”
future attorneys’ fees in the signed Judgment is vacated and void.
Timely Filing Of Motion To Set Aside Judgment
The parties disputed whether Defendant timely filed her Motion To Set Aside. Although
Defendant originally filed her Motion To Set Aside within the six month allowable period, the
Motion To Set Aside was filed at the Superior Court where there was an active collection case
based on Plaintiff’s Summary Judgment. By the time the Superior Court issued its Minute Entry
ruling—October 10, 2013,—informing Defendant she had chosen the incorrect court, the six
month period had ended. Defendant claimed her Motion To Set Aside was timely because the
initial filing was done within the allowable period while Plaintiff asserted the filing of the
Motion To Set Aside was untimely because it was not filed at the Justice Court until October 21,

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2013, almost seven months had elapsed after the summary judgment was originally issued on
March 26, 2013.
JCRCP, Rule 141 (c), provides:
Reasons for relief from a judgment or order. A party may file a motion asking
the court for relief from a final judgment, order, or proceeding based on one or
more of the following:
(1) Mistake, inadvertence, surprise, or excusable neglect;
(2) Newly discovered evidence that with the exercise of due diligence could not
have been discovered in time to file a motion for a new trial;
(3) Fraud, misrepresentation, or other misconduct of an opposing party;
(4) The judgment is void;
(5) The judgment has been satisfied, released, or discharged; or a prior judgment
upon which it is based has been reversed or vacated; or it is no longer equitable
that the judgment should have prospective application;
(6) Any other reason that justifies relief from the judgment.
A motion under Rule 141(c) must be filed within a reasonable time, and for
reasons (1), (2), and (3), within six (6) months after the judgment or order was
entered or after the proceeding occurred. The filing of a motion under this section
does not affect the finality of a judgment, nor does it suspend the operation of a
judgment. This rule does not limit the power of the court to relieve a party from a
judgment, order, or proceeding if a fraud was committed upon the court; and this
rule does not limit the power of the court to grant relief to a defendant served by
publication, as provided by Rule 140(j). [ARCP 60(c)]
Here, the Rule imposes a reasonable time for “any other reason that justifies relief from the
judgment” as well as a six month limit for claims relating to fraud, and newly discovered
evidence. Defendant met this standard. The Superior Court allowed for Defendant re-filing her
Motion To Set Aside with the Justice Court when it held the claim could be re-filed. This Court
finds (1) Defendant did not unduly delay in filing her Motion To Set Aside after the Superior
Court ruled on her Motion; and (2) her initial filing of her Motion To Set Aside was timely as it
was filed within the six month allowable period. Based on these circumstances, this Court finds
Defendant timely filed her Motion To Set Aside.
C. Did Defendant Provide Sufficient Grounds To Set Aside The Judgment When
She Alleged Plaintiff’s Counsel Was Responsible For A Fraud In Her Case
Because He Had Been Censured In An Unrelated Case.
One of Defendant’s claims in her Motion To Set Aside was based on her allegation that a
sanction against Plaintiff’s counsel in an unrelated case was relevant to Defendant’s case and

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indicated counsel must have committed fraud in her case as well. To support her allegation,
Defendant attached a copy of the Supreme Court Report and Order Imposing Sanctions against
Charles E. Maxwell and Brian Morgan in PDJ—2012–9112 as an exhibit to her appeal. That
report indicated both counsel violated a number of ethical rules—ERs—relating to honesty to a
tribunal because they asserted an HOA’s statutory lien had priority over a deed of trust and,
during a hearing before Commissioner Kongable, asserted A.R.S. §33–1807 was a new statute
and had no legislative history. Mr. Maxwell told the trial court he had been on the legislative
action committee and there was no canon of statutory construction relating to A.R.S. §33–1807.
Commissioner Kongable ruled in counsel’s favor. Thereafter, the intervenors appealed to the
Arizona Court of Appeals. In its appellate decision in Cypress on Sunland HOA v. Orlandini,
227 Ariz. 288, 257 P.3d 1168 (Ct. App. 2011), the Court of Appeals (1) determined there was
legislative history for A.R.S. §33–1807; (2) found the legislative history reflected the legis-
lature’s intent “to give lien priority to a first deed of trust over an earlier perfected HOA assess-
ment lien”;16 and (3) commented on counsel’s work in the case and held:
The basis of Commissioner Kongable's ruling was that the HOA's attorneys
presented a “legitimate” legal argument supporting the HOA's position and
therefore, as a matter of law, could not have committed a fraud upon the court.
We disagree. The HOA's interpretations of the statute and the CC&Rs are not
supportable on any legitimate ground. Its arguments are specious, legally and
logically unsound, and are so contrived as to be little more than sophistry.
Because Commissioner Kongable's ruling was based upon a false premise,
namely that the HOA had a defensible position, he reached an incorrect
conclusion.
Further, we agree with the Intervenors that the HOA's attorneys obtained the
default judgment by perpetrating a fraud upon the court as that term is defined and
that the judgment can therefore be set aside under either Rule 60(c)(6) or in an
independent action. When a party obtains a judgment by concealing material facts
and suppressing the truth with the intent to mislead the court, this constitutes a
fraud upon the court, and the court has the power to set aside the judgment at any
time. Ivancovich v. Meier, 122 Ariz. 346, 349, 595 P.2d 24, 27 (1979). A fraud
upon the court is perpetrated “by officers of the court so that the judicial
machinery can not perform in the usual manner its impartial task of adjudging
cases.” In re Intermagnetics Am., Inc., 926 F.2d 912, 916 (9th Cir.1991) (quoting
J. Moore and J. Lucas, Moore's Federal Practice ¶ 60.33, at 515 (2nd Ed. 1978)).
Orlandini at ¶¶ 41–42.
Defendant failed to connect the Court of Appeals ruling in Orlandini to her own case. She
claimed there was a connection because Plaintiff’s counsel drafted the amended CC&Rs.
Assuming arguendo that Plaintiff’s counsel represented the HOA continuously since 1997, a fact

16 Orlandini at ¶ 36.

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which Defendant did not establish, their mere representation does not indicate fraudulent conduct
in this case. Defendant did not demonstrate counsel was involved in the passage of the amended
CC&Rs. Instead, she claimed counsel drafted these CC&Rs. She did not show how Plaintiff’s
counsel’s misstatement about the legislative history of A.R.S. § 12–1807 to Commissioner
Kongable related to her case about the payment of HOA assessments. Instead, Defendant
attempted to tar counsel with a broad brush and intimated that if counsel was responsible for a
misrepresentation in one case, counsel must have been engaged in fraudulent conduct in her case.
This is too sweeping a claim and Defendant did not support her assertion with any fact or law.
This claim fails.
D. Is Defendant Entitled To Leniency Because She Represented Herself During
The Case.
Defendant maintained part of her problem stemmed from her choice to represent herself in
the claim about assessments. Arizona treats pro se litigants (who represent themselves) according
to same standards used for attorney representation and courts do not excuse the failure to
conform to mandated rules because a litigant represents himself or herself. In In re Marriage of
Williams, 219 Ariz. 546, 200 P.3d 1043, ¶ 13 (Ct. App. 2008) the Arizona Court of Appeals held:
Parties who choose to represent themselves “are entitled to no more
consideration than if they had been represented by counsel” and are held to
the same standards as attorneys with respect to “familiarity with required
procedures and . . . notice of statutes and local rules.” A party’s ignorance of
the law is not an excuse for failing to comply with it.
[Citations omitted.] Similarly, in Higgins v. Higgins, 194 Ariz. 266, 279, 981 P.2d 134, 138 (Ct.
App. 1999) the Court ruled:
One who represents herself in civil litigation is given the same consideration on
appeal as one who has been represented by counsel. She is held to the same
familiarity with court procedures and the same notice of statutes, rules, and legal
principles as is expected of a lawyer.
[Citations omitted.] Accord, Kelly v. NationsBanc. Mortg. Corp., 199 Ariz. 284, 17 P.3d 790, ¶
16 (Ct. App. 2001). This may be a harsh determination. However, it is the decision required by
our state law
E. Is Either Party Entitled To Attorneys’ Fees On Appeal.
Neither Plaintiff nor Defendant entirely prevailed in this appeal. Although this Court has the
discretion to award attorneys’ fees, this Court finds neither party prevailed and, in its discretion,
this Court finds attorneys’ fees on appeal are not appropriate.
SCRAP—Civ, Rule 13 allows for attorneys’ fees but uses discretionary language. In
relevant part, the statute provides:
(b) Attorneys' Fees Taxable as Costs. When attorneys' fees are recoverable by
statute or contract, the claim for such fees in connection with the prosecution or

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defense of an appeal may be included in the statement of costs prescribed by this
rule. The claim for attorneys' fees for the prosecution or defense of the case in the
trial court may also be included, provided that the trial court has not previously
awarded such fees.
III. CONCLUSION.
Based on the foregoing, this Court concludes the East Mesa Justice Court erred when it
granted summary judgment and refused to set it aside when there was a material fact in
controversy as to whether the HOA properly assessed Defendant based on her number of lots as
opposed to her number of units. Defendant demonstrated she timely filed her Motion To Set
Aside. In addition, this Court finds Plaintiff’s counsel provided a factually incorrect Judgment
where counsel included a provision for “all” future attorneys’ fees in derogation of the provisions
of the first and second amended Declarations of CC&Rs. In summary, this Court finds the trial
court erred by refusing to set aside the summary judgment motion.
This Court further finds Defendant did not prevail on a number of the issues she raised.
Defendant failed to (1) prove fraud based on the Court of Appeals censuring Plaintiff’s counsel
in an unrelated case followed by the disciplinary ruling by the State Bar (currently on appeal);
(2) demonstrate newly discovered evidence based on her claim about the passing of the Amended
Declarations of the CC&Rs; (3) demonstrate she did not receive the Motion for Summary
Judgment; and (4) establish she was entitled to leniency because she chose to represent herself at
the trial court.
IT IS THEREFORE ORDERED affirming in part and reversing in part the judgment of
the East Mesa Justice Court.
IT IS FURTHER ORDERED remanding this matter to the East Mesa Justice Court for all
further appropriate proceedings.
IT IS FURTHER ORDERED signing this minute entry as a formal Order of the Court.

/s/ Myra Harris

THE HON. MYRA HARRIS

Judicial Officer of the Superior Court

061120141456

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any filings.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

07/11/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

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Docket Code 023
Form L000
Page 1

CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton

Deputy

VELDA ROSE ESTATES HOME OWNERS
ASSOCIATION
CHARLES E MAXWELL

v.

EDITH POGGI (001)
KENT S BERK

MESA JUSTICE CT-EAST
REMAND DESK-LCA-CCC

MINUTE ENTRY
Lower Court Case No. CC2012–132551.

The Court is in receipt of counsel for Defendant-Appellant Edith Poggi’s “First Notice of
Extension of Time for Defendant to Respond to Plaintiff’s Motion To Strike and for
Reconsideration and for Rehearing Until July 15, 2015,” [sic] filed July 7, 2014.

IT IS ORDERED granting the Motion.

IT IS FURTHER ORDERED, the due date for the Response to Plaintiff-Appellee’s
Motion To Strike and for Reconsideration and for Rehearing is July 15, 2014.

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any filings.

Michael K. Jeanes, Clerk of Court

*** Filed ***

08/13/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

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Docket Code 021
Form L512
Page 1

CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton

Deputy

VELDA ROSE ESTATES HOME OWNERS
ASSOCIATION
CHARLES E MAXWELL
v.

EDITH POGGI (001)
KENT S BERK

MESA JUSTICE CT-EAST
REMAND DESK-LCA-CCC

NUNC PRO TUNC ORDER
Lower Court Case No.CC2012–132551.
Plaintiff-Appellee Velda Rose Estates HOA and their attorneys Maxwell & Morgan, P.C.
requested—pursuant to Rule 14(a) Superior Court Rules of Appellate Procedure—Civil
(SCRAP—Civ.)—requested that this Court (1) reconsider its ruling in this matter; and (2) strike
that portion of this Court’s June 10, 2014, Record Appeal Ruling/Remand to remove any
allegation about “Fraud On The Court” on pages 11 and 12 of that ruling and in the third
sentence of the Ruling’s Conclusion on page 16. This Court has considered Plaintiff’s Request,
Defendant’s Response, and Plaintiff’s Reply and accedes to Plaintiff’s Request to strike
references to “Fraud on the Court.”
IT IS ORDERED nunc pro tunc amending the minute entry dated June 10, 2014, pages 11,
12, and 16 as follows:
In place of the “Fraud on the Court” section, this Court substitutes the following section
denominated “Other Reasons Justifying Relief.”
Other Reasons Justifying Relief
Defendant requested Rule 141(c (6) relief re “any other reason that justifies relief from the
judgment” in addition to her generic fraud claim. Here, this court found Plaintiff’s counsel erred
in its requested attorneys’ fee. In its Complaint, Plaintiff requested attorneys’ fees based on the
Declaration of CC&Rs, Plaintiff also requested attorneys’ fees pursuant to A.R.S. § 12–341.01;
A.R.S. § 33–1807(H); and A.R.S. §33–1256(h). These statutes use the term “reasonable” as the
modifier for the attorneys’ fees provision. The Declaration of CC&Rs used the modifier “reason-
able” when describing the attorneys’ fees to be assessed against a defaulting owner. The same
provision allowed an additional amount for accruing assessments, attorneys’ fees and costs until
all amounts were paid in full but did not specify if “reasonable” or “all” attorneys’ fees were to
be awarded for the accruing assessments. The attorneys’ fee provision stated:

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Each Owner agrees that any judgment rendered in any such action shall include a
sum for reasonable attorneys’ fees in such amount as the Court may adjudge
against the defaulting Owner, plus all court costs and necessary expenses and
accounting fees incurred by the Association, plus interest on all amounts from the
date the assessment becomes delinquent until paid in full, and an amount for
accruing assessments, attorneys’ fees and costs, until all amounts due and owing
under any such judgment are paid in full.
After granting Plaintiff’s requested summary judgment, the trial court signed an Order on
February 7, 2013. That order, signed by the Hon. Mark Chiles, Sr. stated:
This Court grants Plaintiff’s Motion for Summary Judgment as follows:
Principal: $1,979.77
Interest
Costs
Reasonable Attorney Fees (China Doll required for consideration on amount.)
Accruing charges as granted by court

Please submit a purposed [sic] form of judgment for further consideration.

When Plaintiff’s counsel submitted its proposed form of judgment, counsel included a
provision for “all” attorney’ fees instead of “reasonable” fees. The attorneys’ fee provision did
not clearly specify “all” attorneys’ fees were to be paid.
This Court has also revised the third sentence of its Conclusion to the June 10, 2014, Record
Appeal Ruling/Remand. The new third sentence shall be substituted in place of the third sentence
on page 16 of the June 10, 2014, Record Appeal Ruling/ Remand.
In addition, this Court finds Plaintiff’s counsel provided a Judgment where counsel
included a provision for “all” future attorneys’ fees despite the language of the provisions of the
first and second amended Declarations of CC&Rs lacking a clear statement allowing for “all”
attorneys’ fees.
IT IS THEREFORE ORDERED striking any reference to Fraud on the Court on pages 11
and 12 of the Record Appeal Ruling/Remand and substituting the revised section for pages 11
and 12.
IT IS FURTHER ORDERED striking any reference to Fraud on the Court on page 16 of
the Record Appeal Ruling/Remand and substituting the revised sentence for the Conclusion on
page 16 of that ruling.
The remainder of the minute entry stands in effect as stated therein.
The parties will be able to access this Court’s minute entry dated June 10, 2014, by
accessing the following website: http://www.courtminutes.maricopa.gov.
IT IS FURTHER ORDERED signing this minute entry as a formal Order of the Court.
/s/ Myra Harris

THE HON. MYRA HARRIS

Judicial Officer of the Superior Court

081220141524

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

08/13/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

08/12/2014

Docket Code 022
Form L000
Page 1

CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton

Deputy

VELDA ROSE ESTATES HOME OWNERS
ASSOCIATION
CHARLES E MAXWELL

v.

EDITH POGGI (001)
KENT S BERK

MESA JUSTICE CT-EAST
REMAND DESK-LCA-CCC

MINUTE ENTRY
Lower Court Case No.CC2012–132551.

The Court is in receipt of “Defendant’s Motion For Clarification of Record Appeal
Ruling Filed June 12, 2014,” (Ruling) filed July 15, 2014. Good cause appearing,

IT IS HEREBY ORDERED that the Motion is granted.

IT IS FURTHER ORDERED that the following order and judgments of the East Mesa
Justice Court in case number CC2012–132551 are all reversed, vacated and set-aside (a) order
granting summary judgment dated February 6, 2013 in favor of Plaintiff; (b) Judgment dated
March 26, 2013; and (c) order dated November 13, 2013 and mailed November 14, 2013
denying Defendant’s Motion To Set Aside Judgment.

IT IS FURTHER ORDERED remanding this matter to the East Mesa Justice Court for
further proceedings consistent with this Order and Ruling all in accordance with the formal
written Order signed by the Court on August 11, 2014, and filed (entered) by the Clerk on
August 12, 2014.

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any filings.

Michael K. Jeanes, Clerk of Court

*** Electronically Filed ***

10/31/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2014-000179-001 DT

10/30/2014

Docket Code 025
Form L000
Page 1

CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton

Deputy

VELDA ROSE ESTATES HOME OWNERS
ASSOCIATION
CHARLES E MAXWELL

v.

EDITH POGGI (001)
KENT S BERK

MESA JUSTICE CT-EAST
REMAND DESK-LCA-CCC

MINUTE ENTRY
Lower Court Case No. CC2012–132551.
On October 17, 2014, this Court received a copy of a Stipulation To (1) Vacate All
Judgments, Orders and Decrees, and (2) To Dismiss With Prejudice stating the matter had been
settled and the parties agreed the sheriffs sale should be set aside. The Stipulation was signed by
Berk & Moskowitz, P.C. for Kent Berk, Attorney for Defendant Edith Poggi, and by Clint G.
Goodman, Vial Fotheringham, LLP, who was listed as Attorney for Plaintiff. A check of this
Court’s records indicated that Plaintiff is represented by Charles E. Maxwell. This Court’s
records do not reflect that Mr. Maxwell withdrew from representation or that Mr. Goodman has
filed a notice of appearance in this matter. However, upon checking the Calendar Events and
Hearings for the East Mesa Justice Court this Court noted an entry indicating Clint Goodman
was representing Plaintiff as of August 1, 2014.
This matter was remanded to the East Mesa Justice Court. This Court no longer has any
jurisdiction to enter orders for the parties. Accordingly, this Court will take no action on the
parties’ Stipulation To (1) Vacate All Judgments, Orders and Decrees, and (2) To Dismiss With
Prejudice.

102920141535

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any filings.

Documents