2011-07-21 — Raimey v. Ditsworth (Dreamland Villa Community Club, Inc.) ↑ top

Source

Minute Source

IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE

DARYLE G. RAIMEY and CAROLYN E. ) No. 1 CA-SA 10-0255
RAIMEY, husband and wife; )
KATHRYN PUGNIER and VINCENT ) DEPARTMENT B
PUGNIER, wife and husband; )
JOSEPH KUKA and ARYLYNNE KUKA, )
husband and wife; EDWARD BERNAL )
and BERTHA J. BERNAL, husband )
and wife; PHILIP MORGAN and )
GLYNDA M. MORGAN, husband and )
wife; DOROTHY NORRIS and JOHN ) O P I N I O N
DOE NORRIS, wife and husband; )
DEANNALEE C. PLANT and JOHN DOE )
PLANT, wife and husband; FRANK )
S. PONIO and ELLEN J. PONIO, )
husband and wife; HAROLD G. )
ROBINSON and ANITA R. ROBINSON, )
husband and wife; JOSE SECURA )
and ROSALINA SECURA, husband and )
wife; JAMES SHIELDS and EILEEN )
SHIELDS, husband and wife; )
ARTHUR H. SPRANDEL and JANICE E. )
SPRANDEL, husband and wife; )
ROBERT D. WIMSETT and CAROLYN )
WIMSETT, husband and wife; FRANK )
W. WOLGAN and BETTY J. WOLGAN, )
husband and wife; JAMES H. )
ANHORN and JANE DOE ANHORN, )
husband and wife; HAROLD M. )
BRITTON and JANET E. BRITTON, )
husband and wife; HOWARD R. )
MCKILLIP and DEBRA MCKILLIP, )
husband and wife; NELSON J. DEAN )
and R. SHIRLEY DEAN, husband and )
wife; EVANGELINA DEMARBIEX )
Beneficiary of the Evangelina )
Demarbiex Trust; HAROLD L. )
GEIVETT and RUBY GEIVETT, )
husband and wife; MABELLE )
LERSTAD and JOHN DOE LERSTAD, )
wife and husband; ROY DON FIELDS )
and SUSAN FIELDS, husband and )
wife; EDWARD L. YOUNG and JOANNE )
YOUNG, husband and wife; W.T. )

DIVISION ONE
FILED:
RUTH A. WILLINGHAM,
CLERK
BY:
07/21/2011
DLL

2
TILLER and NORMA J. TILLER, )
husband and wife; ROGER )
BREYFOGLE and MARIA BREYFOGLE, )
husband and wife, )
)
Petitioners, )
)
v. )
)
THE HONORABLE JOHN DITSWORTH, )
Judge of the SUPERIOR COURT OF )
THE STATE OF ARIZONA, in and for )
the County of MARICOPA, )
)
Respondent Judge, )
)
DREAMLAND VILLA COMMUNITY CLUB, )
INC., an Arizona non-profit )
corporation, )
)
Real Party in Interest. )
__________________________________)

Appeal from the Superior Court in Maricopa County

Cause Nos. CC2006-211780, CC2006-211797, CC2006-211804,
CC2006-211807, CC2006-211814, CC2006-211819, CC2006-211824,
CC2006-211827, CC2006-211828, CC2006-211831, CC2006-211846,
CC2006-211849, CC2006-211852, CC2006-211860, CC2006-212434,
CC2006-212629, CC2006-212657, CC2006-212661, CC2006-212670,
CC2006-212681, CC2006-212694, CC2006-212703, CC2006-212711,
CC2006-212778, CC2006-212796, CC2006-212817, CC2007-090680
(Consolidated)

The Honorable John Ditsworth, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED

Cheifetz Iannitelli Marcolini, P.C. Phoenix
By Steven W. Cheifetz and Stuart F. Gross
Attorneys for Petitioners

Maxwell and Morgan P.C. Mesa
By Charles E. Maxwell and Brian W. Morgan
Attorneys for Real Party in Interest

3
B R O W N, Judge

¶1
In this special action, Daryle G. Raimey, et al.
(“Petitioners”), challenge the trial court’s judgment entered
pursuant to this court’s opinion and resulting mandate in
Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42, 226
P.3d 411 (App. 2010). We may accept jurisdiction when the case
presents a pure question of law for which there is no “equally
plain, speedy, and adequate remedy by appeal[.]” Ariz. R.P.
Spec. Act. 1(a); see also State ex rel. Pennartz v. Olcavage,
200 Ariz. 582, 585, ¶ 8, 30 P.3d 649, 652 (App. 2001). “[T]he
appropriate method of seeking review of a trial court’s judgment
on remand entered pursuant to specific directions of an
appellate court is through special action” because a trial
court’s entry of judgment “based on [an appellate court’s]
specific mandate and opinion is not appealable.” Scates v.
Ariz. Corp. Comm’n, 124 Ariz. 73, 75-76, 601 P.2d 1357, 1359-60
(App. 1979). In the exercise of our discretion, we accept
jurisdiction of this special action and, for the following
reasons, grant relief.

4
BACKGROUND1
¶2
In Raimey, Dreamland Villa Community Club (“DVCC”)
appealed the trial court’s denial of its request for attorneys’
fees after it prevailed in litigation against the Petitioners.
Id. at 45-46, ¶¶ 12-15, 226 P.3d at 414-15. Petitioners, who
own lots located in sections 7, 14, 15, 16, 17, and 18 of
Dreamland Villa (the “Six Sections”), cross-appealed, asserting
that certain restrictive covenants of DVCC, known as the Second
Amended Declarations, were invalid because DVCC “could not
create new affirmative obligations where the previous provisions
did not alert the homeowners to the possibility that they would
be subject to assessments.” Id. at 50, ¶ 32, 226 P.3d at 419.
This court agreed with Petitioners and held that the “Second
Amended Declarations [were] invalid and unenforceable.” Id. at
51, ¶ 37, 226 P.3d at 420. We also awarded Petitioners their
attorneys’ fees incurred on appeal but did not address recovery
of fees incurred in the trial court. Id. Our subsequent
mandate ordered the trial court to “comply with the decision.”

¶3
On remand, the parties disputed the ramifications and
scope of our decision in Raimey. DVCC argued that the decision
was binding only as to homeowners who participated in the Raimey

1
The extensive factual and procedural history of this case
is explained in detail in Raimey, 224 Ariz. at 43-46, ¶¶ 2-14,
226 P.3d at 412-15.

5
cross-appeal,
while
Petitioners
contended
that the
Second
Amended Declarations were invalid as to all homeowners within
the Six Sections. Petitioners also requested restitution for
judgments they had previously paid to DVCC as well as attorneys’
fees they had incurred in the trial court throughout the
litigation.
¶4
The trial court agreed with DVCC’s position and issued
a judgment on mandate, ordering that “the Second Amended
Declaration of Restrictions recorded in Sections 7, 14, 15, 16
and 17 of Dreamland Villa are invalidated, and no longer of any
force and effect as to the Defendants set forth above for their
respective Sections, with the exception of Defendants [who did
not participate in the cross-appeal].” Thus, the court
restricted the judgment to the homeowners who participated in
the cross-appeal. As to Petitioners’ requests for restitution
and attorneys’ fees, the court declined to address these issues
in the judgment on mandate. Petitioners then filed this
petition for special action.
DISCUSSION
I. Scope of the Raimey Opinion

¶5
Petitioners assert that the trial court, in its
judgment on mandate, ignored the “clear holding” of this court’s
decision in Raimey when it failed to declare the Second Amended
Declarations invalid as to all residents in the Six Sections.

6
Petitioners argue that Raimey “clearly invalidate[d] the Second
Amended Declarations as to everyone,” not just those homeowners
participating in the appeal.
¶6
A trial court does not have “authority to transgress
upon the ‘obvious intent’ of this court” by contravening on
remand a decision and mandate previously issued. Tucson Gas &
Elec. Co. v. Superior Court, 9 Ariz. App. 210, 212, 450 P.2d
722, 724 (1969). Thus, an appellate mandate, along with the
decision it seeks to implement, is binding on the trial court
and enforceable according to its “true intent and meaning.”
Vargas v. Superior Court, 60 Ariz. 395, 397, 138 P.2d 287, 288
(1943). Because the mandate issued after Raimey required the
trial court to comply with the Raimey opinion, we look to that
opinion to determine whether the trial court exceeded its
jurisdiction. See Harbel Oil Co. v. Superior Court of Maricopa
Cnty., 86 Ariz. 303, 306, 345 P.2d 427, 429 (1959) (explaining
that the determination of whether the trial court had authority
to consider certain issues on remand would require analysis of
the holding and terms of the mandate previously issued).
¶7
In
Raimey,
we
held
that
the
Second
Amended
Declarations for the Six Sections were invalid, reasoning as
follows:
For decades after the first development of
Dreamland Villa, DVCC was a voluntary club
with voluntary membership. Homeowners had

7
no right appurtenant to their lot ownership
to membership in the club and no such right
in the recreational facilities. There were
no common areas. There were no assessments
paid to the club, only voluntary dues paid
by those who chose to use the facilities.
Many homeowners chose not to become members
or to use the facilities. The authority to
amend the original Declarations did not
allow 51% of the lot owners to force the
other 49% into club membership the latter
had chosen against, nor to assess and lien
the properties of such homeowners for an
association they did not seek. It is not
reasonable to use the amendment provision to
direct that one group of lot owners may, in
effect, take the property of another group
in order to fund activities that do not
universally
benefit
each
homeowner’s
property or areas owned in common by all.

224 Ariz. at 51, ¶ 36, 226 P.3d at 420. We reasoned further
that “to allow the generic amendment provision present here to
burden the homeowners’ individual lots would unreasonably alter
the nature of the covenants, to which implicit agreement was
historically given.” Id. at ¶ 38. We therefore concluded that
“the
Second
Amended
Declarations
[are]
invalid
and
unenforceable.” Id. at ¶ 37. Although we noted that the
declarations were unenforceable against “the homeowners,”2

2
We stated, “For purposes of this opinion . . . the
appellees (including all homeowners from the proceedings below)
and
cross-appellants
(not
including
those
homeowners
not
participating
in
the
cross-appeal)
will
be
referred
to
collectively as ‘the homeowners.’” Id. at 44 n.4, ¶ 7, 226 P.3d
at 413 n.4. Therefore, at a minimum, Raimey applied to all
homeowners who were parties in the litigation and is not
restricted solely to the cross-appellants.
we did

8
not
specifically
address
whether
the
declarations
were
unenforceable against other residents of the Six Sections.
¶8
“Deed restrictions constitute ‘a contract between the
subdivision’s property owners as a whole and the individual lot
owners.’” Wilson v. Playa de Serrano, 211 Ariz. 511, 513, ¶ 7,
123 P.3d 1148, 1150 (App. 2005) (citation omitted). The lot of
one homeowner cannot be considered separate and apart from its
relation to all lots within a subdivision. See Camelback Del
Este Homeowners Ass’n v. Warner, 156 Ariz. 21, 27, 749 P.2d 930,
936 (App. 1987) (concluding that “unless otherwise provided for
in the restrictions themselves, any amendment to restrictive
covenants must apply to every lot”); La Esperanza Townhome
Ass’n, Inc. v. Title Sec. Agency of Ariz., 142 Ariz. 235, 239,
689 P.2d 178, 182 (App. 1984) (finding that “restrictions and
conditions can only be changed uniformly”); Riley v. Boyle, 6
Ariz. App. 523, 526, 434 P.2d 525, 528 (1967) (allowing a
majority of homeowners to impose restrictions on some, but not
all lots, “could easily result in a patchwork quilt of different
restrictions . . . and completely upset the orderly plan of the
subdivision”).

Therefore,
to
ensure
uniformity
in
the
application of deed restrictions, Raimey’s holding necessarily
applies to all homeowners within the Six Sections.
¶9
Scholten v. Blackhawk Partners, 184 Ariz. 326, 909
P.2d 393 (App. 1995), supports our conclusion. In Scholten,

9
certain restrictive covenants included a duration clause, which
stated that the covenants were to be extended for successive
periods of ten years after February 1970, unless the residents
agreed by majority vote to amend the covenants. Id. at 327, 909
P.2d at 394. In 1992, the defendant lot owners attempted to
amend the covenants, proposing a reduction of the minimum lot
size from one acre to 18,000 square feet. Id. The plaintiffs,
a married couple, filed suit to obtain a declaration that the
amendment was not yet in force because the defendants did not
amend the covenants prior to the start of the new ten-year
extension period beginning in 1990. Id. at 328, 909 P.2d at
395. In ruling on cross-motions for summary judgment, the trial
court dismissed the plaintiffs’ suit, finding that the amendment
was effective when filed. Id.
¶10
On appeal, we determined that an amendment approved
“during the running of an extension period [was] effective only
at the start of the next successive period.” Id. at 329, 909
P.2d at 396. We therefore concluded that the trial court erred
by granting summary judgment in favor of the defendants. Id. at
330, 909 P.2d at 397. Accordingly, we “remanded to the trial
court with directions to grant plaintiffs’ cross-motion for
summary judgment and enter a judgment declaring that the subject
amendment of the restrictive covenants cannot become effective
until the end of the current extension period[.]” Id. at 331,

10
909 P.2d at 398. This holding encompassed all homeowners within
the housing community, including, but not limited, to the
plaintiffs. In other words, no reasonable argument could be
made that the covenants were unenforceable as to the plaintiffs
but enforceable against all other lot owners. Thus, Scholten
supports our holding that the Second Amended Declarations are
invalid as to all homeowners in the Six Sections.
¶11
Here the trial court found on remand that “the Second
Amended Declaration of Restrictions recorded in Sections 7, 14,
15, 16 and 17 of Dreamland Villa are invalidated, and no longer
of any force and effect as to the Defendants set forth above for
their respective Sections, with the exception of Defendants [who
did not participate in the cross-appeal.]”3

3
We note that the trial court erred when it failed to
identify section 18 in its judgment. Although we found in
Raimey that the original declaration for section 18 contained
language not present in the declarations of the other sections,
we ultimately decided that “homeowners in section 18 were in the
same position with reference to DVCC . . . as were all the other
homeowners here.” 224 Ariz. at 48, ¶ 23, 226 P.3d at 417.
Therefore, we concluded that although the “homeowners within
section 18 did not join in the motion for summary judgment,” we
could “assess the viability of the Second Amended Declarations
by the same standards as to all the homeowners[.]” Id. at ¶ 24.
(Emphasis added.)
Because
we
unequivocally
determined
in
Raimey
that
the
declarations were invalid and unenforceable, it follows that
DVCC cannot enforce these restrictions against any homeowner
living within the Six Sections. By limiting application of our

11
holding in Raimey to only the cross-appellants, we would be
inviting DVCC to enforce the invalid declarations against other
homeowners, in contravention of the basic principle that all
homeowners within a particular subdivision be subject to the
same restrictive covenants.
¶12
DVCC, however, argues that Raimey applies only to
those homeowners who filed the cross-appeal. First, relying on
McDonnell v. S. Pac. Co., 79 Ariz. 10, 12, 281 P.2d 792, 793
(1955), DVCC contends that “[i]t is a simple principle of law
that persons not parties to a lawsuit cannot benefit from any
rulings in the lawsuit.” However, McDonnell merely states that
a “court has no jurisdiction to render a judgment in favor of
one not a party to the suit.” Id. (emphasis added). In Raimey,
we did not affirmatively rule that homeowners other than cross-
appellants were entitled to a favorable judgment. Rather, we
held that DVCC, as a party to the suit, was precluded from
enforcing
the
Second
Amended
Declarations
because
the
declarations are invalid. As such, DVCC would be collaterally
estopped from enforcing the declarations against the other
homeowners. See Campbell v. SZL Props., Ltd., 204 Ariz. 221,
223, ¶¶ 9-10, 62 P.3d 966, 968 (App. 2003). DVCC is therefore
precluded from enforcing the declarations, and fails to provide
any valid reason why the judgment should not reflect that the

12
Second Amended Declarations are invalid as to all homeowners
within the Six Sections.4
¶13
For the same reasons, we reject DVCC’s reliance on a
Restatement provision that states, “A person who is not a party
to an action is not bound by or entitled to the benefits of the
rules of res judicata[.]” Restatement (Second) of Judgments
§ 34(3) (1982) (emphasis added). A judgment declaring the
Second Amended Declarations invalid does not bestow a benefit on
the other homeowners; it deprives DVCC, as a party to the prior
suit from enforcing declarations that we have declared invalid.

5

4
The scenario presented here—where a court declares that
restrictive covenants in a housing community are invalid—is
analogous to a court’s decision invalidating a statute as
unconstitutional on its face. The ruling invalidating the
statute would not only preclude the government from enforcing
the statute against the individual that challenged the statute;
it would preclude the government from enforcing the statute.
Likewise, DVCC cannot enforce the invalid restrictive covenants
at issue here against any affected homeowner.

5
DVCC relies on other authorities to support its contention
that res judicata would not allow homeowners who did not
participate in the cross-appeal to benefit from our decision in
Raimey. See Restatement (Second) of Judgments § 76 cmt. a
(“Generally speaking, a judgment is of no legal concern to a
person who is neither a party to it nor otherwise bound by it
under the rules of res judicata.”). DVCC also argues that
persons may not “stand on the sidelines to avoid an adverse
outcome of a lawsuit and then seek to benefit from a favorable
ruling.” Id. at § 76 cmt. b (interests may be put in jeopardy
when others are “emboldened in acting because they suppose the
judgment
has
determinative
significance.”).

However,
as
previously
stated,
we
did
not
determine
that
the
other
homeowners were entitled to any benefit or affirmative relief;
we merely concluded that DVCC could not enforce the Second

13
¶14
The introductory note to the Restatement of Judgments
is in accord with our conclusion that a judgment may affect the
rights of nonparties. It states,
A person may be legally affected by a
judgment, broadly speaking, by reason either
of being a party or equivalent participant
in the litigation, or from having a legal
relationship that is derivative from one who
was a party, or in being so situated that
his
own
rights
or
obligations
are
conditioned in one way or another by a
judgment involving another person.

Id. ch. 4, intro. note (emphasis added). Here, those homeowners
within the affected sections who were not parties to this
litigation have rights that are conditioned on the determination
of whether the Second Amended Declarations were invalid. Like
the nonparty lot owners in Scholten, the nonparty homeowners in
Raimey were relieved of the obligations of the Second Amended
Declarations when this court determined they were invalid.
¶15
DVCC asserts nonetheless that our holding in Raimey is
not applicable to homeowners other than cross-appellants because
we did not find that the declarations were “void,” but rather
“voidable.” DVCC asserts that “a ‘void’ document never takes
effect” and is “nugatory and ineffectual so that nothing can

Amended Declarations against homeowners in the Six Sections of
the subdivision.

14
cure
it,”6
¶16
By extension, DVCC also argues that because the Second
Amended Declarations are merely voidable, it has the right to
assert a number of defenses against others who would argue the
Second Amended Declarations are not effective as to them. For
example, DVCC asserts that the statute of limitation has
expired, thereby providing DVCC with a defense against other
homeowner claims of invalidity.

whereas
a
“‘voidable’
document
is
valid
and
enforceable until such time, if ever that it is timely and
successfully challenged in a court of law.” DVCC contends that
this court found the declarations were invalid, or merely
“voidable.” Thus, it argues that the declarations can only be
rendered void as against a nonparty “by a timely legal
challenge.” However, we find that this court’s use of the word
“invalid”
instead
of
“void”
is
a
distinction
without
a
difference
and
we
decline
to
adopt
DVCC’s
suggested
interpretation. Raimey’s holding that the Second Amended
Declarations
are
invalid
and
unenforceable
has
only
one
reasonable meaning—that the declarations cannot be enforced.
Id. at 49, ¶ 30, 226 P.3d at 418.
7

6
DVCC relies on Easley v. Pettibone Mich. Corp., 990 F.2d
905, 909 (6th Cir. 1993) (citation omitted).
However, DVCC cites no

7
In its response to the petition for special action and at
oral argument before this court, counsel for DVCC suggested that
the panel that decided Raimey was consciously aware of the fact

15
authority for the proposition that a statute of limitations
restricts a lot owner’s ability to seek a determination that a
particular restrictive covenant is unenforceable. Moreover,
DVCC acknowledges that if, as we have concluded, the Second
Amended Declarations are invalid and therefore void, they cannot
be confirmed or ratified by the running of the statute of
limitations. See Princess Plaza Partners v. State, 187 Ariz.
214, 222 n.5, 928 P.2d 638, 646 n.5 (App. 1995) (“A ‘voidable’
agreement would be one subject to rescission or ratification
whereas a ‘void’ agreement would be incapable of ratification or
disaffirmance.”) (emphasis added).
¶17
At oral argument before this court, DVCC asserted that
Armstrong v. Ledges Homeowners Ass’n, Inc., 633 S.E.2d 78 (N.C.
2006), which we cited in Raimey, supports its argument that
Raimey does not apply to all homeowners. Armstrong noted as
follows:
[A court] may determine that an amendment is
unreasonable, and therefore, invalid and
unenforceable against existing owners who

that the “six[-]year statute of limitation[s] of A.R.S. § 12-548
. . . expired by no later than February 22, 2010, several weeks
before issuance of [Raimey].” Counsel further asserted that
this court deliberately “withheld issuance of [Raimey] until
after the six years expired.” Although none of the judges on
this panel participated in the Raimey decision, nothing in the
record supports such unfounded speculation and we do not believe
for an instant that the timing of the issuance of the Raimey
opinion was dictated by any actual or perceived statute of
limitations issue.

16
purchased
their
property
before
the
amendment was passed; however, the same
court may also find that the amendment is
binding as to subsequent purchasers who buy
their property with notice of a recorded
amended declaration.

Id. at 88. Ultimately, however, the Armstrong court concluded
that an amendment requiring assessments was “invalid and
unenforceable,”
reasoning
that
it
could
“not
permit
the
Association to use the [d]eclaration’s amendment provision as a
vehicle for imposing a new and different set of covenants,
thereby substituting a new obligation for the original bargain
of the covenanting parties.” Id. at 89.
¶18
We decline to adopt a principle that would allow the
Second Amended Declarations to be enforced against homeowners
who purchased with notice. The issue of enforceability against
future lot owners was not an issue in Armstrong and the court’s
statement—that
a
court
“may”
find
the
otherwise
invalid
amendment binding—is dicta. Even if it were not dicta, nothing
in Raimey remotely suggests that our holding in that case
applies only to existing homeowners. Furthermore, DVCC’s
suggestion would contravene longstanding precedent that requires
deed
restrictions
to
be
enforced
uniformly;
an
invalid
restriction does not become valid simply based on the timing of
a lot purchase. See Warner, 156 Ariz. at 27, 749 P.2d at 936.

17
¶19
In
sum,
we
conclude
that
the
Second
Amended
Declarations are invalid as to all homeowners in the Six
Sections, regardless of the purchase date. Therefore, the trial
court erred when it found that the Second Amended Declarations
were invalidated only as to homeowners who participated in the
prior appeal. See Vargas, 60 Ariz. at 397, 138 P.2d at 288 (the
trial court’s jurisdiction on remand is limited by the terms of
the mandate, which must be strictly followed). Accordingly, we
remand to the trial court and direct that the judgment provide
that
the
Second
Amended
Declarations
are
invalid
and
unenforceable as to all homeowners in sections 7, 14, 15, 16,
17, and 18. See Armstrong, 633 S.E.2d at 88-89 (concluding that
the
disputed
amendment
was
“invalid
and
unenforceable”);
Gillebaard v. Bayview Acres Ass’n, Inc., 263 S.W.3d 342, 353
(Tex. App. 2007) (directing the trial court on remand to
“declare that the Amended and Restated Restrictions [in a
residential subdivision] . . . are invalid and unenforceable”).
II. Notice of Invalidity
¶20
In
the
trial
court,
Petitioners
unsuccessfully
requested authorization to file a notice of invalidity with the
recorded deed restrictions to ensure that the public is alerted
to
the
invalidity
of
the
Second
Amended
Declarations.
Generally, recording a subsequent document is the only effective
way of removing a prior invalid recorded document. See Purcell

18
v. Superior Court, 172 Ariz. 166, 172, 835 P.2d 498, 504 (App.
1992). Physical removal of invalid recorded documents is
expensive, time-consuming, and “essentially pointless.” Id.
Obviously, Petitioners have the legal right to record the
judgment, which in theory should be sufficient to advise the
public of the status of the Second Amended Declarations. See
Ariz. Rev. Stat. (“A.R.S.”) § 33-414 (2007) (“Every judgment of
a court by which title to real property is affected shall be
recorded in the office of the county recorder of the county in
which the real property or part thereof is located[.]”). As a
practical matter, however, the judgment on mandate in this case
will include multiple pages addressing matters that do not
affect real property, such as restitution and attorneys’ fees.
Thus, to eliminate any confusion or ambiguity as to the status
of the Second Amended Declarations, Petitioners should be
permitted to record a simple notice informing all homeowners in
the Six Sections that the Second Amended Declarations are
“invalid and unenforceable.” On remand, the trial court shall
authorize such a notice to be recorded, ensuring consistency
with the judgment on mandate.
III. Restitution
¶21
Petitioners also argue that the trial court erred when
it refused to award Petitioners restitution for all amounts they
paid to DVCC to satisfy the vacated judgments. Funds paid by a

19
judgment debtor to a judgment creditor must be refunded to the
debtor if the judgment has been set aside and “justice requires
restitution.” See United States v. Morgan, 307 U.S. 183, 197
(1939) (citation omitted); Restatement (First) of Restitution
§ 74 (1937) (“A person who has conferred a benefit upon another
in compliance with a judgment, or whose property has been taken
thereunder, is entitled to restitution if the judgment is
reversed or set aside, unless restitution would be inequitable
or the parties contract that payment is to be final[.]”).
¶22
Here, some of the Petitioners paid the judgments that
had been entered against them for unpaid assessments and late
fees. Because of our decision in Raimey, the judgments were set
aside
and
therefore
those
Petitioners
are
entitled
to
restitution, including both the amounts paid and interest from
the dates of such payments “at the rate established by the law
of the state in which such sums were paid.” See Baltimore &
O.R. Co. v. United States, 279 U.S. 781, 786 (1929).
¶23
Without citation to authority, DVCC contends that
restitution is improper because in Raimey, we did not address
restitution and Petitioners did not ask for restitution in that
part of this litigation. Although Petitioners may not have
explicitly requested restitution as a remedy on appeal, it was
implicit in their argument on cross-appeal that the trial court
erred in granting DVCC summary judgment and in entering judgment

20
against Petitioners for unpaid assessments, including late
charges and interest. Moreover, entitlement to restitution is
not triggered until a judgment is set aside, which did not occur
here until the mandate was issued. See In re 1969 Chevrolet, 2-
door, 134 Ariz. 357, 360-61, 656 P.2d 646, 649-50 (App. 1982)
(quoting Restatement (First) of Restitution § 74). Thus,
Petitioners did not waive their right to claim restitution.
¶24
On remand, the trial court shall enter a restitution
order in favor of those Petitioners who satisfied in whole or in
part the vacated judgments. In light of DVCC’s arguments that
certain Petitioners used the facilities provided by DVCC, the
court may equitably reduce specific restitution awards in the
exercise of its discretion if DVCC can show such use.
IV. Attorneys’ Fees - Trial Court
¶25
Finally, Petitioners argue that the trial court erred
on remand when it refused to award Petitioners the attorneys’
fees they incurred prior to and subsequent to the appeal. DVCC
counters that Petitioners waived any right to pre-appellate fees
because they did not specifically mention those fees in their
briefs on appeal in Raimey. See ARCAP 21(c) (“When attorneys’
fees are claimed pursuant to statute, decisional law or
contract, a request for allowance of attorneys’ fees in
connection with the . . . prosecution or defense of the case in
the superior court shall be made in the briefs on appeal[.]”).

21
As a result of Petitioners’ request, they were awarded fees
incurred on appeal but there was no discussion in Raimey whether
Petitioners were entitled to fees previously incurred in the
trial court. In our view, however, Petitioners’ broad request
was sufficient to preserve the issue:
As this is a matter arising out of contract,
the Cross-Appellants request an award of
attorneys’ fees and costs pursuant to the
Declarations, and A.R.S. §§ 12-341 and -
341.01 pending an application in compliance
with Rule 21 of the Arizona Rules of Civil
Appellate Procedure.

We do not favor the approach employed here by Petitioners, as
the better course would have been to identify the scope of the
fee award with specificity. See Wagenseller v. Scottsdale Mem’l
Hosp.,
147
Ariz.
370,
391,
710
P.2d
1025,
1046
(1985)
(recognizing that “notice of intent to seek fees should be given
before ‘each stage’ of a lawsuit, furthering the public policy
of encouraging settlement”). But we reject DVCC’s suggestion
that Petitioners sought only their fees on appeal, as their
request contains no such limitation. Instead, Petitioners
sought a general award of fees pursuant to the restrictive
covenants and statutory authority, which was sufficient to
preserve their right to seek attorneys’ fees incurred in the
superior court proceedings. Cf. Robert E. Mann Constr. Co. v.
Liebert Corp., 204 Ariz. 129, 133, ¶ 10, 60 P.3d 708, 712 (App.
2003) (finding that a party’s failure to request attorneys’ fees

22
pursuant to ARCAP 21(c) precludes that party from seeking their
pre-appellate fees after remand).8
¶26
DVCC also asserts that the trial court’s authority to
award fees is limited to “recovery of any attorneys’ fees and
costs awarded pursuant to the appellate mandate, and for
recovering any appellate costs against the bond for costs on
appeal.” See State Bar of Arizona, Arizona Appellate Handbook
§ 3.13.7.1, at 3-175. Because Raimey did not address attorneys’
fees outside the appellate proceedings, DVCC argues that the
trial court lacked jurisdiction to award additional pre- and
post-appellate attorneys’ fees. Under these circumstances,
however, the trial court’s power to award attorneys’ fees is not
restricted solely to those fees explicitly determined by our
decision in Raimey. Although our court did not expressly direct
the trial court to grant pre- or post-appellate fees, an award
of such fees is not inconsistent with the mandate. See Kadish
v. Ariz. State Land Dept., 177 Ariz. 322, 328, 868 P.2d 335, 341
(App. 1993) (where this court failed to address attorneys’ fees,

8
Similarly, DVCC asserts that Petitioners are precluded from
obtaining post-appellate fees because they did not request such
attorneys’ fees “in the briefs on appeal.” Arizona Appellate
Handbook § 3.14.2.1, at 3-182 (5th ed. 2010) (quoting ARCAP
21(c)). We are not bound by the Arizona Appellate Handbook, but
in any event, that provision clarifies that the purported rule
it articulates only applies to “fees for pre-appellate work.”
Id. Moreover, Petitioners could not have requested post-
appellate fees at the time we issued the Raimey decision as the
fees had not yet been incurred.

23
the trial court on remand was free to entertain an attorneys’
fees application); Harbel, 86 Ariz. at 306, 307-08, 345 P.2d at
429, 430 (where the appellate court “neither expressly nor
impliedly” addressed certain defenses, the trial court could
address
the
defenses
on
remand
because
they
were
not
inconsistent with mandate’s holding). We therefore remand for
reconsideration of whether Petitioners are entitled to pre- and
post-appellate attorneys’ fees.
V. Attorneys’ Fees—Special Action
¶27
Both Petitioners and DVCC request recovery of the
attorneys’ fees incurred in this special action pursuant to
A.R.S. § 12-341.01 (2003). DVCC also requests that we award
fees as a sanction against Petitioners pursuant to A.R.S. § 12-
349 (2003), A.R.S. § 12-350 (2003), and Arizona Rule of Civil
Procedure 11. As authorized by Arizona Rule of Special Actions
Procedure 4(g), in the exercise of our discretion, we award
Petitioners their reasonable attorneys’ fees and costs incurred
in this special action upon their compliance with Arizona Rule
of Civil Appellate Procedure 21(c). As to DVCC’s request for
sanctions, the request is entirely without merit and is
therefore denied.

24
CONCLUSION
¶28
For the foregoing reasons, we vacate the trial court’s
judgment on mandate and remand for entry of a new judgment that
provides that the Second Amended Declarations are “invalid and
unenforceable” as to all homeowners in sections 7, 14, 15, 16,
17, and 18. The judgment shall provide further that Petitioners
may record a separate notice of invalidity of the Second Amended
Declarations which accurately identifies all the lots located
within the aforementioned sections. In addition, the court
shall grant Petitioners reasonable restitution, which may be
reduced due to equitable considerations applying to specific
Petitioners. Finally, the court shall reconsider Petitioners’
request for attorneys’ fees incurred in the trial court.
/s/
_________________________________
MICHAEL J. BROWN, Judge

CONCURRING:

/s/
___________________________________
DIANE M. JOHNSEN, Presiding Judge

/s/
___________________________________
JOHN C. GEMMILL, Judge