08/01/2017 — LC2017000274 HOMEOWNERS ASSOCIATION, TOWN SQUARE 08/01/2017 HONORABLE PATRICIA ANN STARR View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/02/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000274-001 DT
08/01/2017
Docket Code 504
Form L000
Page 1
CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
C. Avena/T. DeRaddo
Deputy
TOWN SQUARE HOMEOWNERS
ASSOCIATION
LORI L VOEPEL
v.
ANDREW HETTINGER (001)
ROBERT A TOMICZEK (001)
JUDGE BRODMAN
MOON VALLEY JUSTICE COURT
REMAND DESK-LCA-CCC
SPECIAL ACTION ASSIGNMENT
Lower Court Case No. CC2015-144356RC
On July 28, 2017, Petitioner/Appellant, Town Square Homeowners Association, filed a
Complaint for Special Action in the above cause number.
IT IS ORDERED assigning this matter on August 1, 2017, to The Honorable Roger
Brodman for determination.
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 new filings.
08/02/2017 — LC2017000274 HOMEOWNERS ASSOCIATION, TOWN SQUARE 08/02/2017 HONORABLE ROGER E. BRODMAN View Minute Entry ↑ top
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Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
08/03/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000274-001 DT
08/02/2017
Docket Code 023
Form L000
Page 1
CLERK OF THE COURT
HONORABLE ROGER E. BRODMAN
M. Corriveau
Deputy
TOWN SQUARE HOMEOWNERS
ASSOCIATION
LORI L VOEPEL
v.
ANDREW HETTINGER (001)
ROBERT A TOMICZEK (001)
CHRISTOPHER J BERRY
REMAND DESK-LCA-CCC
MINUTE ENTRY
The Court has received a special action in LC 2017-000274. The special action requests
expedited consideration. As a result, the Court gives the following expedited schedule:
1. Plaintiff shall serve all necessary parties with the complaint and a copy of this order
by August 10, 2017. Plaintiff will provide the Court with proof of service.
2. Plaintiff shall file a motion for relief no later than August 14, 2017.
3. Any party opposing plaintiff’s motion for relief shall file an opposition no later than
August 28, 2017.
4. Plaintiff’s reply is due September 5, 2017.
5. If any party believes a status conference is necessary, contact this division’s Judicial
Assistant, Christine Cobb at [email protected].
6. If necessary, the Court will set oral argument on any motions.
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.
09/07/2017 — LC2017000274 HOMEOWNERS ASSOCIATION, TOWN SQUARE 09/07/2017 HONORABLE ROGER E. BRODMAN View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Filed ***
09/08/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000274-001 DT
09/07/2017
Docket Code 019
Form L000
Page 1
CLERK OF THE COURT
HONORABLE ROGER E. BRODMAN
M. Corriveau
Deputy
TOWN SQUARE HOMEOWNERS
ASSOCIATION
LORI L VOEPEL
v.
ANDREW HETTINGER (001)
ROBERT A TOMICZEK (001)
CHRISTOPHER J BERRY
REMAND DESK-LCA-CCC
ORDER GRANTING SPECIAL ACTION RELIEF
The Court reviewed the Motion for Relief, the Response and Reply.
No one challenged this Court’s jurisdiction. The Court finds that it has jurisdiction over
this special action pursuant to A.R.S. §§ 12-2021, 12-2029 and ARPSA 1, 3 and 4. The Court
accepts special action review.
The facts of this matter are largely undisputed. After a trial before a Justice of the Peace,
a judgment was entered on Robert Tomiczek’s counterclaim on June 20, 2017. Counterdefendant
Town Square Homeowners Association (Town Square) filed a notice of appeal on July 5, 2017.
Town Square did not pay a filing fee or file a cost bond at the same time it filed its Notice of
Appeal. The filing fee is $75 and the cost bond is $250.
On July 18, 2017, Judge Hettinger dismissed the appeal on the grounds that the appellant
1) failed to timely file a Notice of Appeal; and 2) failed to post a cost bond or, alternatively, a
motion to waive the cost bond. See Notice of Final Disposition of Appeal by Trial Court (Civil)
dated July 18, 2017.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000274-001 DT
09/07/2017
Docket Code 019
Form L000
Page 2
The Court finds that the defendant Judge exceeded his authority and abused his discretion
in dismissing the appeal.
First, the appeal was not untimely. The appellant had 14 days to file the Notice of
Appeal. Since the 14th day fell on July 4, 2017 (a holiday), the Notice of Appeal filed on July 5
was timely. See Ariz. R. Civ. P. 6(a)(3).
Second, the failure to file a cost bond is not jurisdictional. Rule 6(b) of the Superior Court
Rules of Appellate Procedure (Civil) must be read in conjunction with A.R.S. § 22-263. That
statute provides as follows concerning civil proceedings in justice courts:
No appeal shall be dismissed or judgment affirmed by reason of any defect, informality
or insufficiency of the appeal bond, if appellant, within such time and upon such terms as
the court orders, files a legal and sufficient bond.
See also Ariz. R. Civ. App. P. 8(d) and Riendeau v. Wal-Mart Stores, Inc., 223 Ariz. 540, 541, ¶
6 (App. 2010) (plaintiff’s untimely payment of a cost bond on an appeal from arbitration did not
deprive the superior court of jurisdiction). Appellant demonstrated good cause to be given
additional time. Appellant should have been given a reasonable opportunity to correct the matter
before the appeal was dismissed.
In its discretion, the Court declines to award appellant its attorneys’ fees. The Court does
not believe an award of fees is in the interests of justice.
IT IS ORDERED that this Court accepts special action jurisdiction and grants
mandamus relief.
IT IS FURTHER ORDERED that the July 18, 2017 order dismissing the appeal is
vacated and the appeal filed by Counterdefendant Town Square is reinstated.
IT IS FURTHER ORDERED that the defendant Judge is directed to issue an order
providing Counterdefendant Town Square a reasonable opportunity to file a cost bond and filing
fee.
IT IS FURTHER ORDERED that defendant Judge and the Moon Valley Justice Court
Clerk’s Office amend its docket and service list to reflect the parties as
Plaintiff/Counterdefendant (Town Square) and Defendant/Counterclaimant (Robert Tomiczek)
and to reflect that the law firm of Jones, Skelton & Hochuli, PLC represents Town Square on the
Counterclaim.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2017-000274-001 DT
09/07/2017
Docket Code 019
Form L000
Page 3
IT IS FURTHER ORDERED that Town Square’s request for costs and attorneys’ fees
is denied.
This is a final ruling and no matters remain pending before this Court. As a result, the
Court is issuing a signed order which is subject to appeal.
DATED this 7th day of September, 2017.
/s/ Roger Brodman
HONORABLE ROGER BRODMAN
JUDICIAL OFFICER OF THE SUPERIOR COURT
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.
