IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MOHAVE

HONORABLE LEE F. JANTZEN

DIVISION IV *je
DATE: May 16, 2011
NOTICE/RULING/ORDER
BRIAN THIENES, an individual, JOHN
BALL and MONICA BALL, husband and
wife; THE THOMPSON FAMILY TRUST;
JUAN BRACAMONTE and JACQUELINE
BRACAMONTE, husband and wife,
Plaintiffs,

vs. No. CV-2010-01563

CITY CENTER EXECUTIVE PLAZA, LLC,

an Arizona liability company; JERRY
ALDRIDGE and CYNTHIA ALDRIDGE,
husband and wife, BLACK COMPANIES 1-
100, WHITE PARTNERSHIPS 1-100,
JOHN and JANE DOES 1-100,
Defendants.

The Court took under advisement after oral argument Defendant/Counter

Claimant City Center’s (hereinafter “City Center”) Motion For Summary Judgment and

Defendant Jerry Aldridge’s (hereinafter “Aldridge”) Motion to Quash the Temporary

Restraining Order.

The Court has considered the pleadings, the supporting affidavits and

statements of facts provided by both counsel, oral argument at the hearing held on this

matter, the applicable case law, the codes covenants and restrictions (hereinafter “CC

& Rs”) and the amended CC & Rs. The Court apologizes for the delay in ruling.
 Summary judgment is only appropriate when "there is no genuine issue as to any

material fact and . . . the moving party is entitled to a judgment as a matter of law." Ariz.

R. Civ. P. Rule 56(c). The Court must view the facts in a light most favorable to the

non-moving party and draw any inferences reasonably derived from the facts in favor of

that party. Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (Ariz. 1990); Angus

Med. Co. v. Digital Equip. Corp., 173 Ariz. 159, 840 P.2d 1024 (App. 1992). The party

seeking the motion for summary judgment has the burden of establishing the absence

of factual issues. Mast v. Standard Oil Co., 140 Ariz. 1, 680 P.2d 137 (1984).

The issue for the Court is whether there are a genuine issues of material fact in

dispute regarding whether City Center, the new owners of the property, in an attempt to

make the use of their property financially viable, can create a golf course smaller than

originally contemplated and whether City Center can add a small RV Park to the

property to create more income.

City Center argues that Plaintiffs have no rights in the property and therefore

have no input. City Center also argues the proposed changes are not outside the

original intent of the parties to create a golf course community (although admittedly

smaller). But most of all, City Center argues the CC & Rs give them clear authority to

make the changes they are proposing.

Plaintiffs counter they have a servient property right and the proposed changes

are outside the original intent of the original developers and, therefore, outside the

agreement the original purchasers of the lots on the property made with the original

developers. Further, Plaintiff claims that the CC & Rs can be supplemented by

additional information showing the intent of the parties.

 IT IS ORDERED denying City Center’s Motion For Summary Judgment. The

Court finds numerous genuine factual issues are still in dispute about the meaning of

the CC & Rs and the intent of the parties. The Court agrees with City Center that there

may be evidentiary limitations in what evidence can be added to the existing information

to help interpret the CC & Rs and the original intent of the parties, but even those

limitations are in dispute and will require additional evidentiary presentations for the

Court to make final determinations.

The Court has also reviewed the request to make the Temporary Restraining

Order issued October 13, 2010 permanent. IT IS ORDERED continuing the TRO until

a future date when the ultimate issues are resolved in this case. The Court finds the

TRO was properly granted and maintaining the status quo brought about by the TRO is

beneficial to moving toward the ultimate conclusion in this case.

IT IS FURTHER ORDERED setting this matter for oral argument on Plaintiff’s

Motion for Summary Judgment on Thursday, June 16, 2011 at 1:30 p.m.

cc:

Paul E. Gilbert, Esq.*

Franklyn D. Jeans, Esq.
Cory L. Broadbent, Esq.
BEUS GILBERT PLLC
Attorney for Plaintiffs

Dan C. Barr, Esq.*

James A. Ahlers, Esq.
PERKINS COIE LLP
Attorney for Defendants

Paul Lenkowsky, Esq.*

OFFICE OF CITY ATTORNEY/LAKE HAVASU CITY
Lyn Anne Bailey, Esq.*
Adrienne Speas, Esq.
EKMARK & EKMARK, L.L.C.
Attorneys for Refuge Association

Honorable Lee F. Jantzen

Division IV