disk management of the golf course would repeat forever that they had to manage it at the standard of an exclusive private country club how long would it be but your honor that would be frankly probably an issue of fact which would have to be proven by parole evidence with regard to intent of the parties because as i started you know it's just wide open at this point it could be forever no your honor because these agreements the man t and the management of this country club in the midst of hundreds of lots of the on college developments those agreements were made to promote and maintain the value of the l which on global and on college holdings and its press predecessors were selling in other words the better the golf course the greater the stature the golf course the greater the value of the lots because i understand that but  my question is this time i'm trying to figure out the statute of limitations issue and you claim it's a continuing wrong and i'm wondering how long it continues to continue forever i mean fifty years from now those people will still like to live near a really good golf course i imagine your honor it would seem that's wrong till the purpose of the contract is served which would be the sale of all along columns lots because it's a developer it is not these are not homes going on forever do you mean once they finish selling the lots then the place can go downhill while they would have no interest to complain after that and in addition you're right when they have an interest to complain does decides to play there then york your backyard that the backs up to the fourth floor hole has all really lousy view and your home is not worth as much as it was when you bought it and when they were maintaining a premium course i absolutely agree your honor and they're ours at some possible perspective claims about representations to homeowners while and college is selling these units but more could go on forever i don't believe so on that your cost of those memberships receive direct interest in those memberships upon their transfer the golf court clubs provides that these member rules provide th members if they sell their property move and a new owner comes in and wants their membership there is a transfer fee paid by the new owner to the club are we talking about the barton members membership let me ask a question about the part memberships i was trying to figure out who has the burden of proving something had the plaintiffs here has the burden of proof and of proof has to do in a motion for summary judgment is point and then the party with the burden of proof has to submit evidence such that a jury would be allowed to believe that evidence to return a verdict for the party so on the barton properties it's the plaintiff burden to submit some evidence that some there are some sales and some fees do that have not been paid on the other hand statute of limitations is an affirmative defense to the party with an affirmative defense has the burden of produce evidence on the affirmative defense maybe that means that the defendants have to prove that whatever sales there were were at the statute has run off i can't figure it out and i didn't see any discussion in the briefs of this issue could you explain to me now how to handle i said your honor i perhaps i didn't state it clearly enough but there's a citation to a car decision in the brief which is a ninth circuit opinion which imposes the duty upon the party asserting the affirmative defense to prove the date when the claim accrued in card case what's in any of the papers that your side submitted well your honor that's correct because the memberships are identified in the exhibit h the country club because they're the ones who have to a facilitate the transfer and receive the funds are in possession of the records to prove that there is a citation in the record however to do to mr barton deposition where he testified in two thousand and one that there were still barton members who owned property there for their property and their memberships are still subject to transfer only upon that eventual transfer some time after two thousand and one would be entitled to bring a claim whether any bargain memberships if you haven't been paid for other words i think what we're asking  was in front of the judge was i mean part of the memberships that had been so which you had not been paid or was it just an absence of evidence that there were any one way or the others or just some abstract question it was an allegation upon information and belief your honor because as evidenced by the record on the defendants had paid some call i had received some barton membership transfer fees there's also an allegation in the complaint and various pleadings that we were entitled to accounting for these records and in fact as in one thousand nine hundred you don't defeat summary judgment on allegations and complaints come summary judgment any evidence so it was you who was claiming that some part in memberships had been sold and you hadn't gotten your three and that was there any evidence that any had your honor i  don't know of any specific citation in the record to a specific sale for which we didn't get paid they at the complaint sixty two to establish and recover those fees which accrued six years prior this story i'm sorry you keep talking about the complaint and frankly i don't care what it says if it's a rule fifty six motion but maybe i'm confused maybe this was a rule twelve piece fix motion in which case with the complaint says it's critical are still barton members out there my concern frankly is that this order prospectively bars those claims and facts that's what it purports to say it says all barton claims barton membership claims are dismissed because the claims arose in one nine hundred ninety one when the defendants failed to run a premium prime and country club i agree that's strange but i also want to point out your honor that the response to the summary judgment filed by a column points out in a footnote that the motion is not with respect to count two which is the tomorrow a lot was sold that some of our membership the whole three years held three years and now the money has to go to the chance for us to go to the country club and then you have an interest that this order were amended in one thousand nine hundred eight with regard to certain memberships because additional lots were granted in that agreement all the agreements were reaffirmed the court again bar it says the plaintiffs claims for breach of contract with respect to the barton memberships were barred by the six year statute at but as for a claim you don't have yet because there haven't been any still yet i don't understand where that speaks to well your honor the ruling purports to say that the claims with regard to barton memberships accrued in one nine hundred ninety one which is which in effect is the date of the agreement ok i've got to thank you i don't believe i'm over here  upon the sale of that membership has not yet accrued so that i wasn't part of those that are more than six years from one from the only ones that could be part of the ones that were alleged in the complaint that's what the order reports to  bar there wasn't a lot of discussion about the failure of the claim regarding the failure to maintain or operate the on call a country club as a premium a lawsuit was threatened a draft complaint was sent and then more than six years file elapsed before they actually file i see thankfully the same complaint that they originally threatened the district got it right in this case and found that the claims were barred by the statute of limitations because that clearly showed that they were aware of the alleged breach more than six years before district court rejected the plaintiff this continuing breach and in part cited ford versus international harvester a ninth circuit case that arose out of the eastern district of washington idly enough and in that case this court within the six year period going back from filing or that the plaintiff's complaint pretty much early on that the golf course was not being maintained right and it just continued to be i think the record reflects that the complaints were pretty much the saying the plaintiffs representative mr barton testified in deposition that in his opinion the the golf course had never been operated as a premium private country club they let public be public they look public quite public play and there were a list of other things what this really was what the dispute about what premium private country club means done the way i see that is that they circulate this complaint saying this isn't premium private the way we had envisioned it and the defendants say yes this is premium private this is the way we run our other excluded the public they said ok we're shaken up so they excluded the public you have to be a member and there is nothing nothing of that in the record there was one other thing that was really not a matter of subjective states all involve situations like an installment contract where there isn't a regular periodic repeated obligation to pay money an installment contract otherwise arizona has not recognized any exception case when i'm talking about is the builder supply where there was i believe it was a hauling contractor they hauled made district discrete contracts you this case right now i would agree with that is there any evidence one way or another of any barton memberships not that i hadn't accruing fees within the six years prior to filing not that i have seen in the record your honor no again this is  i don't see that anywhere in the in the contract i did i don't see a term began almost immediately and crystallize that has never really changed the plaintiff sat on its rights and didn't do anything to to to bring that dispute to a head despite threatening the lawsuit more than six years