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What happened and why it matters

Linda Greenberg and her neighbors, John and Eileen McGowan, own adjoining two-acre parcels in Inscription Canyon Ranch, a residential community in Williamson Valley, Arizona, that is governed by longstanding recorded Covenants, Conditions and Restrictions (CC&Rs). After the Inscription Canyon Ranch Architectural Review Committee (ICR ARC) approved the McGowans’ construction of a structure, Greenberg sued the McGowans, the ARC, and the ICR Water Users Association, Inc. The dispute centered on whether the structure was a permitted barn or a prohibited garage and whether the McGowans could keep two donkeys and a foal on their parcel. Greenberg’s operative complaint alleged breach of the CC&Rs and a violation of the homeowners’-association open-meetings statute, A.R.S. § 33-1804, and sought declaratory and injunctive relief and damages. The Yavapai County Superior Court granted summary judgment to all defendants, denied Greenberg’s requests to file a third amended complaint and for reconsideration, and awarded the defendants attorneys’ fees under the CC&Rs and A.R.S. § 12-341.01. On appeal, Division One reviewed the summary judgment de novo and affirmed, finding no genuine issue of material fact, no abuse of discretion in the procedural rulings, and no error in the fee award. The court also awarded the prevailing defendants their reasonable fees and taxable costs on appeal under the CC&Rs. The decision is an unpublished memorandum decision and is not precedential.

Reviewing the grant of summary judgment de novo, the court treated the interpretation of the CC&Rs as a question of law, giving effect to the parties’ intent as shown by the language of the document read in its entirety and the purpose for which the covenants were created (Powell v. Washburn). On the central animal question, the court rejected Greenberg’s premise that Paragraph 10 (“Livestock and Poultry”) created an exclusive list of permitted animals. Paragraph 10 expressly prohibits poultry, fowl, and swine and expressly permits horses and 4-H animal projects, but it never mentions donkeys and contains no catch-all establishing that the listed animals are the only ones allowed. Because the paragraph does not describe a class of prohibited animals, the maxim expressio unius est exclusio alterius did not apply, and reading the covenant to bar donkeys would improperly render its broad references to “livestock,” “animals,” fences, and corrals superfluous. The court reinforced this reading with other provisions: Paragraphs 1, 3, and 4 contemplate barns and outbuildings for animals of all kinds; Paragraph 6 describes a bridle path expressly for horses, mules, and donkeys; and Paragraphs 8, 13, and 19 show the drafters knew how to write comprehensive, all-encompassing prohibitions when they intended one — something Paragraph 10 conspicuously lacks. The court also noted A.R.S. § 3-1201’s definition of “equine” as including donkeys. On the barn-versus-garage issue, Greenberg conceded the structure had to date been used only as a barn (the approved use), so her theory that it might later be used as a garage presented an unripe, hypothetical dispute on which courts do not issue advisory opinions. Her breach-of-contract claim independently failed because she never disclosed a computation or measure of damages as required by Rule 26.1(a)(7); merely stating she would testify at trial could not create a triable issue under Rule 56(e). The court found no abuse of discretion in denying leave to file a third amended complaint filed 20 months into the case after discovery closed and summary judgment was entered — the amendment came late, sought to add long-known parties, would have reopened discovery, and was partly futile — and no error in denying reconsideration that merely repackaged rejected CC&R arguments. Finally, because the CC&Rs entitle the prevailing party to reasonable fees and costs and A.R.S. § 12-341.01 also applies, and because the defendants’ fee affidavits complied with Rule 54(g)(4), the fee award (including to the ARC) was proper.

For Arizona homeowners’ associations and their members, the decision illustrates a recurring principle of covenant interpretation: restrictions on the use of land are construed from the text of the recorded document as a whole, and a list of prohibited or permitted items is not treated as exhaustive unless the drafters said so. Because Paragraph 10 barred only certain animals and lacked any catch-all, the court would not read it to prohibit donkeys, and it pointed to the drafters’ use of sweeping language elsewhere in the CC&Rs as proof they knew how to impose a comprehensive ban when they wanted one. Boards, architectural committees, and owners drafting or enforcing covenants should note that ambiguity and omission tend to be resolved in favor of the free use of property, and that courts will avoid readings that render covenant language superfluous.

The case is also a practical reminder about litigation mechanics in HOA disputes. A breach-of-contract claim, even one tied to CC&Rs, still requires the plaintiff to disclose a computation and measure of damages; a promise to testify at trial will not defeat summary judgment. Motions to amend brought late — after discovery has closed and judgment entered — face steep odds, especially when they add previously known parties and would reopen discovery. And most owners bringing or defending covenant suits should anticipate that the CC&Rs’ prevailing-party fee clause, reinforced by A.R.S. § 12-341.01, can shift substantial attorneys’ fees to the losing side both in the trial court and on appeal. As an unpublished memorandum decision, however, the ruling is not precedential and may be cited only as authorized by rule.

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