remaining regarding ted there are questions of intentions certainly remaining as it relates to the arguments presented by the defendant and the reason i say that your honor as you may have been aware of through the reading of the briefs the motions they were cross motions for summary judgment at the trial court level and the arguments presented her very different and i do believe and it is still our position that there are questions of material fact related to the arguments presented by the defendants their argument which both the trail court summarized well what the different arguments were between the two parties and the argument as it relates to the to follow to the defendant related to the developer's intent and we do remain with the position today that there are questions of fact related to that the reason there is questions of fact related do you agree that the court when when the lawsuit was filed that the court has the power to decide whether there were questions of material fact regarding the initial developers and i do believe that the trial court could make a determination on that however i also do believe that the law is very i would also streamline the court to that in the undisputed statement of facts the parties even don't dispute that the intent was for a run of the three associations to be responsible to be the owner of this property so that is not in dispute one of the three of them should be the owner and responsible for maintaining and by one of the three of them being either kind o by him why don't you or the community association yes your honor but there's one other time or there's another water involved in these developments and is it also undisputed that the other hand was deeded to condo one that is also undisputed also part of the responsible for the maintenance of those waterways and are those waterways like this waterway pretty much surrounded by the condo one units yes they are pretty much surrounded just by the condo one by the layout and there is a part of the record two different maps which identify the layout of the property and would it be fair to say that one could argue that condo two benefits from that lake property  one they certainly could make that argument but there's also an argument to be made as to bright kind o one also benefits from the this particular lake in this particular y where i'm just saying yes so there is no dispute that the developer intended for one of the three associations to be responsible for it but the issue of the benefit whether your truck might enter the waterways and the benefit that the parties may attain from that is only one factor to be considered pattern here i question to you is is that that question isn't really one of material back because it can be used on the other side of the fence and so it really doesn't raise a question of material and  disagree with that it doesn't raise a question of material fact just because the other argument can be made as it relates to kind of one waterways because kind of one's waterway is really isn't it we're not comparing apples to oranges or apples to apples we're doing apples to oranges because our water way was not d d to us yet we're kind of the ones who was and so we know who the developer is intact we know he intended to defect to convey it to kind o one because that's what he did with the document and we can't ignore the t that conveyed that property however when we are only looking at the developer's intent and what's around this particular area of property we're ignoring either reasonable inferences ok give me a couple of reasonable inferences why when the developer his deeded the other planned to watch what would be the reasonable inference why he would deed the pond completely surrounded by conduit to units to condo because your honor there was also an area this property where the lake this is subject to a head that also has a community area clubhouse a playground area and ten which was given by the county includes that area and then the shadow lake the lake which is in dispute the area where the clubhouse and the playground are located it was deeded to the community association and that some just spewed it and so the inference can also be may that just as the developer conveyed a portion of the property which has a permanent index number where this lake is located with then part of that property was did it to the community association the recent reasonable inference but the developer also intended for this like to be conveyed to the community association and it's for that that it's our contention that the trial court improperly granted the motion for summary judgment so clearly if anything you're you're right now you're arguing there's questions of material fact it wouldn't in any way declaration the community associations declaration it also relates to the history of the property how it had been maintained how it had been included as part of the community associations budget and also the argument i just made a moment ago as it relates to this piece of property the way the clubhouse is located was conveyed to the community association and our it was more when you look at all of those and reading the declaration as a whole and the actions of both the community association and the developer as it relates to other portions of the property the most applicable result would have then conveyed this property to the community association and left so if you ever see or read not aware of any i have there and i will also when we were at the trial level that was one of the reasons we had put together the joints statement of undisputed facts because in order to show that we were able to make a good faith however they had been doing this for over fifteen years that being the community association was not only putting it in their budget but also maintaining it but they don't there's nothing in the record that definitively even suggests a wrong number jones that comes from the plain language of the community association stack aeration as to how the property which is common to the associations is supposed to be treated based on the size of the difference and thighs between the two association to don't go to the community association it should be treated in the same manner that the rest of the property that is subject to this hen is treated and that no one should have anything to do because one and kind of two are both members of the community association so kind of one does have something to do with it but the ego responsibility will fall under the corporate entity of the community association and then in the end isn't the seventy thirty split basically and go to would be  believe that that is relevant is because the issue as to the ownership or the maintenance of kind of one if not before this court or before the trial court and again it wasn't because there is a deed and that was not anything it was raised within the pleadings so the only one that is to this particular waterway which was used by all of the owners not just kind of want as suggested by and sorry i suspect kind of two and that is supported by the evidence in the record and the court should have considered back and just as we're asking this community association to be responsible as a whole for this particular like we are also asking for that property which is related to the playground the clubhouse the building circle could increase circle which is a roadway which is part of the community association and all of that is right by the same area subject the same ten resting at this piece of property be treated in the same manner as the rest of the property that is subject t pen which was conveyed by the developer to the community association don't you think though that you've got your numbers a little bit mixed up the seven very dirty shouldn't be maybe the other way around well you're  subject to amendment and the owners can work to amend that if that is what your first should like i'd say from the beginning there was no deed requiring the part so you know you keep saying there was no deed the trial court didn't even get to the issue of whether or not condo wine is not going to get to have the benefit of this play and so we're making the assumption that and we're looking at only the one fact if those kind of buildings being surrounded means that they're only of benefiting from the lake and there are other factors that can come into play as valid to terminate the benefit for the parties so it would be premature for us to determine whether or not seventy thirty is the right way to allocate the expense because then we do have to consider the question of the benefit of this lake to the kurds and that neighbors out in a change of the seventy thirty but we need to resolve that question a factor for we can just say it's only i'm the buildings that surround the slate and that's the trial court did it only built at the surrounding buildings of this lake and it's for that reason that we believe she improperly granted the motion for summary judgment because there are other facts that needed to be considered some of which are in  brokers so i guess this comes down to really kind of fine line of summary judgment can the trial court take the undisputed facts and as a result of the undisputed other undisputed fact the other reasonable inference which was that the developer included other property subject to this head and deed back to the community association thereby resulting in to constable reasonable and  make that terminations after the parties provided more evidence and probably not of the summary judgment novel she may have been able to make that's terminations and i would contend that she could make that determination at the trial or more of an evid adopting a budget for over fifteen years and holding itself out responsible for it and lastly that there was other property subject to the spin that was conveyed to the community association by the developer correct but it seems like your opponent is really only after the declaration that this be deep it to the communities seems correct to you have become the want to owners have an interest in this because the fact that they would have to pay attached to their response brief as most summary judgment does not say that they were from kinder one does or ever were not here to argue the merits of who benefits from the pot right that the trial court properly noted or no we're not going to argue with there with her that whether or not somebody benefits from the pond is a question of fact preclude summary judgment she grant summary judgment entirely different basis which is that the intent of the developer in the context of what the most equitable result would be was the developer must intend to convey this time clubhouse and what else is there as a playground there's a road that goes around the entire lake which was part of the day and i'm glad you raised that your honor because i think that actually bolsters our position in the trial for death well if that's all part of that same property doesn't that rights of those awful well they don't really have wrecked access but there's a roadway and then the lake is set yet some most of the most of the kind of tree buildings are on the way some of the buildings are not in the way so when if i just to clarify so that yellow anybody conceivably sure did the issue again was if the developer had all the property with you know the yellow course of the property of the wall it was all part of one home and the developer took that pen and conveyed title to the clubhouse the road the playground and conveyed to the community associate his failure to include the pond in that transfer we think it's clear evidence of the developer never intended to convey the pond to the master the most but the most logical thing for about that whole thing about equity i'm aware of cases that say that i mean that's really equity is it is it's not part of a lot it's a special area which gives the court hundred dollars a year as the number that comes to mind i have to confirm that the record but they were minor maintenance items and i think the council agrees that they were a nominal amount only once this giant bill came in did they say wait a minute let's actually see what if we have to pay the same things that are before your honor's today that is that the intent of the developer was to take part the title to i'm going to and that's the most ethical result would have been that kind of to get this on and also that the the  presenter free rider preference something entirely different than developing content it was just the fact that the trial court improperly failed to consider material facts regarding who benefits from the time only in the reply brief that there is any  favor they filed a brief and they did if you're saying they didn't talk about it then why didn't you come back in your response brief and say that they've waived the issue that the court relied  never been raised even the trial court level their motion for summary judgment was purely based on notions of waiver and equity and in response to our motion which was based on developer's intense they didn't raise this issue at all only in the reply brief once the fact that you've got this clubhouse and this playground area near this and yeah the developer d d the flop house playground area to the community association indicates an attempt that the lake or rather this pond which is part of that same property identification number would indicate that that's a fact that shows there was an intent that the intent would be to deep that transfer the deed to the entire property over but that part of the specifically excluded from the conveyance of the street and the playground and the courthouse which are all perfectly normal things that a community association be responsible for maintaining in the complicated me ask you this why is that in the declaration that the community property is that because of sheer numbers of units that can go one has relegated to paying seventy percent and condo or looking at it from the benches or what have you but you know there was never any testimony suggesting that anyone from kind of one actually has used it in that regard it just sort of the theory that they could use it if they wanted to and you're out of it in closing unless with any other questions i would just revert to the our primary argument which is that in this context of the term a developer in tempe think that the court properly considered all the affable circumstances it  makes no sense whatsoever for the developer to have conveyed title to condo one waterways to condo one yet convey the kind of to proud of waterway to the community so station it would result in kind of one members paying one hundred percent of their own fees as well seventy percent of the condo to property akande to members only thirty percent of theirs and nothing towards our property are there any properties and one where those owners that you know when trying to sell their property say looking at kind o one waterways in conjunction with the satellite that's at issue should not be done and one of the main reasons is as we've indicated earlier is that kind of one was deeded were kind this particular lake was not but also and looking at the map that council has just been referring to i'm like the lake which is that issue here there is a common area around that waterway their answer is that there is not there isn't a clubhouse over there there isn't a playground over there there isn't there isn't a parking area or to a joint a street play so it's again we're looking at and comparing apples to oranges and also in the earlier we were discussing the budget amount and it being a nominal amount about a really what does the playground to the clubhouse have to do anything with this it goes again towards being part of the subject to the same permanent index number and going back to the council was just saying having the perhaps not having the use of it but this shows it's clear that the condo one units surround the playground and they surround the clubhouse and at the same time that clubhouse and playground are also surrounded by condo two units but the pod itself is completely surrounded only by condo two units not by no one but it is also any of the areas in don't want so i can't go back to that same question i don't know how that raises a question of material fact now council has suggested that you never respond to the issue of intent what is your response they respond is that yes we did address the issue of intent in our intent was always great to hear what we have been describing both the trial court in our previous as well which is part of this property is subject to a pen that w it or not but they're after each of the units but it had a separate index number assigned to them right may have been under the original line ten but then if units were all of ten day the county reference to there is going to be the common area and just because it may have been part of the underlying same underlying hint doesn't mean the developer didn't intend for it to be an area that would be used but by  those were deed to the community correct and also your honor when we were talking earlier about the budget and there being a nominal dollar amount in the budget well we would hope that it has been fifteen years and it's not likely that you're going to see an expense hopefully this hard for any associations to be incurring more than you know i don't think they would have seen it probably before fifteen years is there any the community association no i don't believe there would be a case to support it i think it's a factual issue going back to what the reasonable inference would be a time the actions of the developer whether you look at that action or any of the other actions of the developer but ok my my my they can utilize this play for fishing but as noted by council this lake is different than the other waterways within the association this isn't the same temple they used in the waterways you see with that kind of one so that the owners from no effort by anyone to bring him any one related to the development to resolve any intent questions was there no there is nothing as it relates to the developers inviting the i was yet to have any idea i do not your honor i believe that it was that based on the pleadings and looking at the ports after the whole power based on the plain language of the documents and the arguments presented by the parties we did not get to that point ted and we will take this matter under