Court Case Update #2 July 2, 2007

On June 26th, Judge Hon. Charles V. Harrington ruled on defendant CFSD's motion for Summary Judgment. LPPOA previously sued CFSD for Declaratory Relielf. We wish the court to declare our respective rights under the original 1994 Summary Judgment and seek among other things, that CFSD impose a one foot no access easement on the east side of their property, as was originally agreed outside the Summary Judgment, such that no vehicular access be permitted to/from their property via Campo Abierto.

CFSD argued our case has no merit and sought to have it dismissed through a process called Summary Judgment (which is a formal proceeding that suggests to the Court that our case has exactly no merit).

In short, the Judge sided with LPPOA. In his ruling, he gave examples of why which is a bit unusual. Normally, a short ruling is given with no explanation.

Our original case still exists, but this victory supports our facts as we have presented them to the court as well as strengthens our case, especially with the additional examples supplied by the Court in denying CFSD's Motion for Summary Judgment.

Here is the actual text/ruling by the Court:

The Court has reviewed the parties' briefs and heard oral argument on this Motion for Summary Judgment. The Court finds that there are genuine issues of material fact which preclude summary judgment in this matter and, therefore, the Defendant's Motion for Summary Judgment is DENIED.

The Court finds that there are certain issues with respect to when the cause of action against the District accrued. In addition, the documents provided by the parties make reference to "private streets," reserved for "private use...." The Defendant intends to use Lot [Block] 24 to construct an early childhood learning center. It intends that access to the center be from Camino [Campo] Abierto and perhaps other access points. The Stipulated Judgment [original 1994 case] contains additional consideration with respect to pedestrian access from the La Paloma subdivision to the property. The Stipulated Judgment also requires that Pima County allow cuts for access to be made through the existing no access easement along Skyline Drive frontage of Lot [Block] 24 to allow vehicular access to the property.

Given the above factual issues, the Court cannot say as a matter of law that the Stipulated Judgment allows Defendant the access it intends to Lot [Block] 24 via Camino [Campo] Abierto. Stated in another way, there are genuine issues of material fact as to whether the "privateness" of Camino [Campo] Abierto continued to exist once Judgment was entered and if it did, whether the uses contemplated by the Defendant exceed that use.

The above factual issues are not intended to be an exhaustive list of all factual issues raised which would preclude a Motion for Summary Judgment, but simply an example as to some of those issues that are of concern to the Court.