Motion for Summary Judgment Hearing 5-7-07 Update

Today, May 7, 2007 at 1045-1130am Judge Charles Harrington heard arguments from CFSD and LPPOA attorneys regarding CFSD's motion for Summary Judgment.

Ten or so local La Paloma residents and Board members from the Master Governing Board and three Neighborhood Associations were present at the hearing. Thanks to those taking time to attend.

Counsel for CFSD opened, though no one from CFSD was present. Additionally not even the named attorney (Spencer Smith) from the DeConcini firm showed up for the case, instead Lisa Anne Smith (no relation, but from DeConcini) argued on their behalf.

To briefly summarize her arguments: any facts raised by the Plaintiff (LPPOA) about the case do not matter since the Stipulated Judgment signed in 1994 is not ambiguous and even if it were, Statute of limitation rules would say it is too late for any objection on the matter and that LPPOA has waived its right to object and therefore Summary Judgment is appropriate. (Summary Judgment for the defendants - CFSD - would mean the case for Declaratory Relief would be thrown out). She appeared to be making her arguments to the very letter of the law, while ignoring facts and circumstances. Pretty much the same game as has been played all along.

One key here (at least to this writer) is that the stipulated Judgment is in fact ambiguous since it neither speaks for nor against vehicular access to block 25 from the common areas of LPPOA. Since that is exactly the question, it would seem reasonable the CFSD arguments don’t hold water and the judgment is ambiguous. However, that is only one opinion.

Our counsel, Larry Schubart argued the specifics, the circumstances and facts surrounding the case citing at least three other cases that illustrate our perspective exactly. He brought large exhibits to demonstrate to the Judge the logistics of the situation as well as enlarged plats showing the original declarations on the plat designating LPPOA as the only governing body that has a say in matters of access to the common areas. He also pointed out that, as in other cited cases, the payment of a small fee cannot be construed as one that gives the buyer of even condemned land unlimited future rights of access whatever it might cost the association and its members. Meaning it is unreasonable to think that LPPOA and its members should bear the burden of cost to any access CFSD desires being an adjacent property owner and wishing to use of specifically common area “A”. He made numerous other pertinent points of facts, circumstances and the reality of how and when things are filed with the County for recording purposes.

Larry did an EXCELLENT job for us all today and I believe LPPOA will prevail on the point of Summary Judgment. A big “THANK YOU” to Larry.

Judge Harrington is noted as a hard working judge and although he has 60 days to make a decision, it is expected and hoped he will do so in the next 2-3 weeks. Stay tuned.

Assuming LPPOA prevails on this issue, which still leaves the motion for Declaratory Relief and could take some time to play out or CFSD could fold their cards. My guess is they might. Alternatively, the case could proceed or a Condemnation action could be filed by CFSD. I think that would be an expensive alternative for CFSD and one they would have to consider closely. Looking at the enlarged overhead view of Block 24, Campo Abierto, the intersection, it appears to me that it would be quite a feat to make an enlarged intersection work at Campo Abierto and Sunrise.


I would also like to state that the statements and opinions expressed in this article are mine and do not reflect any official position of LPPOA or the Neighborhood Associations. I was merely at the hearing and reporting back what I heard and saw….and what I think as a person who has followed this very closely from the beginning.