Sandpiper Resorts Development Corporation, et al. v. Global Realty Investments, LLC et al

Filing 384

ORDER AND OPINION, the motion to amend 368 is granted as follows: Paragraphs 8, 10, 19, 24 and 33 of the JSUF are corrected to delete "/TD" and "/Toscana Developers;" and paragraph 42 is corrected to delete "Estes and Hartman signed the service agreements.", re: Joint Statement 331 . Signed by Judge John W Sedwick on 6/4/13.(REW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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SANDPIPER RESORTS
DEVELOPMENT CORPORATION, et
al.,
Plaintiffs,

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vs.
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ESTES DEVELOPMENT,
CORPORATION, et al.,

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Defendants.

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2:08-cv-01360 JWS
ORDER AND OPINION
[Re: Motion at docket 368]

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I. MOTION PRESENTED
At docket 368 defendant Estes Development Corporation (“Estes”) moves to

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amend and correct the parties Joint Statement of Uncontested Facts (“JSUF”) filed at

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docket 331. Plaintiffs Sandpiper Resorts Development Corporation and Dourian Foster

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Investments, Inc. (“Plaintiffs”) respond at docket 375, and Estes replies at docket 378.

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Oral argument was not requested and would not be of assistance to the court.

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II. DISCUSSION
The JSUF was required by the court’s order at docket 319 establishing pre-trial

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procedures. The JSUF was filed on March 11, 2013. The bench trial was held on May

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1 and 2, 2013. The motion at docket 368 was filed on May 16, 2013.

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The development of the JSUF began with an initial Statement prepared by

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Plaintiffs’ counsel. Defense counsel reviewed it and then sent a “red line” which

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eliminated points whose accuracy Estes did not accept.1

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Statement contained a great many points defense counsel contended were

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inappropriate for inclusion in such a document, a somewhat shortened version was

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provided by Plaintiffs’ counsel. Defense counsel reviewed this shorter version, red-

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lined it, and sent it to Plaintiffs’ counsel.2

Because the initial

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The statements which Estes contends are incorrect are found in paragraphs 8,

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10, 19, 24, 33 and 42 of the JSUF. An examination of defense counsel’s original “red

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line” shows that each point in those paragraphs which Estes now contends in error was

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stricken by defense counsel. But for the second red-line in which some but not all of

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the alleged errors were stricken, it would be easy for the court to conclude that the

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JSUF should be corrected to reflect the changes Estes originally requested.

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Of the six allegedly incorrect statements of fact, all save the error alleged in

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paragraph 42 result from the use of “Global/TD” or “Global/Toscana Developers” rather

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than simply Global. In the second red-line defense counsel did strike the combination

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term in paragraphs 19 and 33. So it is easy to conclude that use of the combination

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term in paragraphs 19 and 33 of the JSUF is an error which should be corrected.

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Moreover, because the combined term was carefully stricken in the original red-line and

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because it makes no sense to treat Gloabal and Toscana Developers as if they were a

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combined actor in only some of the five paragraphs at issue, it seems appropriate

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correct all of the paragraphs. This view is supported by the record in this case which

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A copy of the original Statement including defense counsel’s excisions appears as
Exhibit 2 at pp. 8-34 of docket 368.
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A copy of this shortened Statement including defense counsel’s excisions appears as
Exhibit 3 at pp. 35-54. (It may be noted that while the shorter version is several pages shorter
than the initial Statement, it actually contains more numbered pargraphs.)

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shows Estes at pains to support the proposition that Global and Toscana were not

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acting together.

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The portion of paragraph 42 which Estes contends must be corrected is the

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sentence reading: “Estes and Hartman signed the service agreements.” In the original

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red-line defense counsel struck out that sentence. However, in the second red-line

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counsel did not do so. Several considerations in addition to the excision in the original

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red-line bear on resolution of this problem: The record supports the proposition that no

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party has a copy of the service agreement signed by Estes. Estes testified at her

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deposition that she did not recall signing such an agreement. In Estes’ statement of

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facts relating to earlier summary judgment motion practice, Estes took the same

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position. During direct examination at trial Estes testified that she had never seen any

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document signed by her saying Toscana Developers would do anything concerning the

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subject property.3 There was neither an objection from Plaintiffs’ counsel that the

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testimony contravened an admitted fact nor any question posed to Estes about signing

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the service agreement on cross-examination. Estes testified to the same effect on re-

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direct,4 again without any objection or follow-up on re-cross.

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Of course allowing an agreed statement of facts to be corrected after the trial

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has been conducted could substantially prejudice a party who had relied on the

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statement. Not surprisingly, Plaintiffs do complain that if the corrections requested are

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made they will be prejudiced, because they built their presentation of evidence on a

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foundation that included the facts recited in the JSUF. This argument rings hollow for

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the simple reason, that with respect to the points at issue, there is really no other

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evidence either party could have presented through witnesses identified for trial.

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Furthermore, Plaintiffs have known since long before the trial that Estes steadfastly

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maintained a position contrary to the points at issue here.

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Transcript of Cynthia Estes’ trial testimony, doc. 377 at p. 63, l. 24 thru p. 64 l. 5.
Id. at p. 168, ll. 10-16.

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III. CONCLUSION

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For the reasons above, the motion at docket 368 is GRANTED as follows:

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Paragraphs 8, 10, 19, 24 and 33 of the JSUF are corrected to delete “/TD” and

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“/Toscana Developers;” and paragraph 42 is corrected to delete “Estes and Hartman

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signed the service agreements.”

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DATED this 4th day of June 2013.

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/S/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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