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This memorandum decision from the Arizona Court of Appeals, Division Two, arose from a homeowners association’s judicial foreclosure. In 2018, Trails at Amber Ridge Homeowners Association obtained a default judgment against homeowner Gerardo Macias and foreclosed on his home. Maricopoly, LLC purchased the property at the sheriff’s sale, and after the Association’s judgment was satisfied, $59,819.17 in excess proceeds was deposited with the clerk of court. Maricopoly intervened and claimed the surplus on the theory that it had acquired an “equitable assignment” of the senior lien, but in an earlier appeal Division Two rejected that theory, vacated the order paying Maricopoly, and remanded with directions to have Maricopoly return the funds. On remand, Arizona Home Foreclosure Prevention Funding Corporation (“AZ Home”), a junior lienholder, moved for release of $21,902.81 of the proceeds. The trial court granted that motion on September 1, 2021 — before Maricopoly’s response deadline under Rule 7.1. Maricopoly appealed, arguing the premature ruling denied it procedural due process and that the court wrongly refused to set the order aside under Rule 60. The Court of Appeals agreed the ruling was premature but held the error was harmless: under the appellate mandate and the law-of-the-case doctrine, Maricopoly could only re-assert its already-rejected equitable-assignment claim and could not raise new priority theories. Finding no prejudice, the court affirmed.

The court first agreed with Maricopoly that the trial court had acted prematurely. Under Rule 7.1(a)(3), Ariz. R. Civ. P., an opposing party must file any responsive memorandum within 10 days after service; because AZ Home served its August 19, 2021 motion by U.S. mail under Rule 5(c)(2)(C), five calendar days were added under Rule 6(c), and the weekend/holiday exclusion of Rule 6(a)(2) applied, making Maricopoly’s response due September 7, 2021. The court had signed and filed AZ Home’s order on September 1 — before that deadline. The panel explained that although Rule 7.1(b) permits a court to summarily grant a motion in three situations (noncompliance with Rule 7.1(a), the opposing party’s failure to file a response, or counsel’s failure to appear for oral argument), none applied here, so summary treatment was inappropriate and the trial court erred.

Nevertheless, the court held Maricopoly was not prejudiced and its due process rights were not violated. Procedural due process requires only the opportunity to be heard at a meaningful time and in a meaningful manner (citing Sycamore Hills Estates Homeowners Ass’n v. Zablotny). Maricopoly had already fully presented its sole basis for the surplus — equitable assignment — and the first appeal had rejected it. Under the mandate rule (Raimey v. Ditsworth) and the law-of-the-case doctrine (State v. Bocharski), that prior decision bound the trial court and the parties throughout the remaining proceedings, so Maricopoly could not re-assert equitable assignment or introduce new evidence to support it (United Dairymen of Ariz. v. Schugg; Crouch v. Truman).

The court further held that Maricopoly could not raise “other grounds for priority,” such as equitable subrogation, for the first time on remand, and that its attempt to advance that theory for the first time in its appellate reply brief was untimely and waived (United Bank v. Mesa N. O. Nelson Co.; BMO Harris Bank N.A. v. Espiau). The proper time to raise such theories had been the initial trial-court proceedings before the first appeal. The record also belied Maricopoly’s claim that it would have argued differently if given a chance to respond, because on remand it had told the trial court the case was remanded only to address equitable assignment. And even assuming an argument that surplus proceeds automatically flow up to an unextinguished senior lien, the court noted it would have been unavailing under Tortosa Homeowners Ass’n v. Garcia. Finding no prejudice and thus no reversible error (Volk v. Brame; Creach v. Angulo), the court affirmed and denied Maricopoly’s request for costs because it was not the successful party under A.R.S. § 12-341.

For homeowners, purchasers, and lienholders navigating Arizona HOA assessment-lien foreclosures, this decision illustrates how “excess” or surplus sale proceeds are contested after the association is paid, and how an appellate mandate constrains what can be argued later. When an HOA forecloses and the property sells for more than the association’s judgment, the surplus does not automatically belong to the sheriff’s-sale purchaser; competing junior lienholders (here a state-affiliated foreclosure-prevention corporation) and the former owner may also claim it, and entitlement turns on lien-priority principles rather than on who bought the home.

The case is also a practical lesson in civil procedure. A trial court’s ruling on a motion before the response deadline is error, but Arizona appellate courts will not reverse unless the error actually prejudiced the complaining party. Because the law-of-the-case doctrine and the mandate from the first appeal had already foreclosed Maricopoly’s only viable theory, the premature ruling changed nothing and the panel affirmed. The decision underscores that a party must raise all of its legal theories — such as equitable subrogation — in the trial court before the first appeal, not for the first time on remand or in a reply brief, or it risks waiver. As an unpublished memorandum decision it creates no binding precedent, but it offers a concrete window into surplus-proceeds and remand practice in Arizona HOA foreclosures.

Video overview of the ruling

An AI-generated video overview of TRAILS AT AMBER RIDGE HOMEOWNERS ASSOCIATION, an Arizona nonprofit corporation, Plaintiff, v. GERARDO MACIAS, a married man, as his sole and separate property; COMMUNITY HOUSING RESOURCES OF ARIZONA; ARIZONA HOME FORECLOSURE PREVENTION FUNDING CORPORATION, Defendants/Appellees, MARICOPOLY, LLC, a limited liability company, Intervenor/Appellant. (2 CA-CV 2022-0096). Although the trial court erred by granting the junior lienholder’s motion to release excess foreclosure proceeds… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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An AI-generated audio deep dive walking through the court’s reasoning and disposition in TRAILS AT AMBER RIDGE HOMEOWNERS ASSOCIATION, an Arizona nonprofit corporation, Plaintiff, v. GERARDO MACIAS, a married man, as his sole and separate property; COMMUNITY HOUSING RESOURCES OF ARIZONA; ARIZONA HOME FORECLOSURE PREVENTION FUNDING CORPORATION, Defendants/Appellees, MARICOPOLY, LLC, a limited liability company, Intervenor/Appellant.. Generated from the case filings; verify against the linked ruling below.

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Joan Tober, a mandatory member of the Civano 1: Neighborhood Association, a Tucson planned community, sued the association and the members of its board of directors after the 2011 board election was conducted exclusively by mail-in ballots that were counted before the association’s annual meeting. She alleged the board breached its statutory obligations under A.R.S. section 33-1812 by not allowing votes to be cast in person and by absentee ballot, and she sought injunctive relief under A.R.S. section 10-3304 after withdrawing her breach-of-contract and breach-of-fiduciary-duty claims. The trial court granted summary judgment for the association and board and awarded them attorney fees and costs, and Tober appealed only the ruling on her breach-of-statutory-duty claim. Division Two of the Arizona Court of Appeals affirmed. It held that Tober’s claim against the individual board members was derivative and could not proceed as a direct action because she alleged no injury unique to herself, that neither the CC&Rs nor section 10-3304 authorized her particular statutory claim as pleaded, and that her challenge to the completed 2011 election and to speculative future elections presented no justiciable controversy for injunctive relief. The court added that, in any event, section 33-1812 does not require in-person voting at every election or that elections be held at the annual meeting. It also upheld the attorney-fee award and awarded the association its fees and costs on appeal.

The court reviewed the summary judgment de novo because the material facts were undisputed, and it treated capacity to sue as a question of law. It first held that Tober’s claim against the individual board members was derivative rather than direct. An action by an association member is derivative when the gravamen is injury to the corporation or to the whole body of members without any severance among individual holders. A member may sue directly only if she has a relationship with the wrongdoer apart from her membership, the wrongdoer owes her a duty for a reason other than membership, or her injury is unique to her rather than shared by the association. Tober alleged none of these; she asserted only a “personal stake in how her community is run,” and her theory was that Civano members as a whole were disadvantaged by the mail-in procedure. Because she did not follow the demand and standing requirements for a derivative suit under A.R.S. sections 10-3631 and 10-3632, that claim was properly dismissed.

The court next rejected the two authorities Tober said permitted her direct statutory claim. The CC&Rs’ section 16.1 gives owners a right to enforce the community documents, but Tober conceded her statutory claim was independent of the contract, and A.R.S. section 33-1812 could not be read into the CC&Rs because it was enacted after the CC&Rs were executed. A.R.S. section 10-3304 does let a planned community member sue the association to enjoin an ultra vires act, and the court agreed Tober could in theory bring such a claim. But injunctive relief was unavailable: she did not try to enjoin the 2011 election before it was finalized, and a completed election cannot be undone on that ground; her request to control future elections was speculative, unsupported by any showing of likely future harm, and therefore not a justiciable controversy.

Finally, and in any event, the court held the mail-in procedure did not violate section 33-1812. The statute’s phrase “if absentee ballots are used” shows absentee voting is optional, and the statute expressly allows voting by “some other form of delivery” such as mail; it does not require in-person voting at every election or that elections occur at the annual meeting, and section 33-1804 requires only that meetings be open, not that elections happen at them. The court affirmed the attorney-fee award under A.R.S. section 12-341.01 and section 16.2 of the CC&Rs, noting that voluntarily dismissing the contract claims did not defeat a contract-based fee award and that the missing hearing transcripts were presumed to support the trial court’s discretion.

For Arizona homeowners and boards, the decision illustrates how planned community election procedures are measured against A.R.S. section 33-1812 and the open-meeting law, A.R.S. section 33-1804. The court read section 33-1812 to permit an association to elect directors entirely by mail-in ballot, with ballots counted before the annual meeting, and concluded the statute does not compel in-person voting at every election or require that the election itself take place at the annual meeting. It also underscores a practical timing lesson: a member who believes an election procedure is unlawful generally must seek to enjoin it before the vote is finalized, because courts are reluctant to unwind a completed election or to issue advisory relief about future, speculative elections.

The opinion is an unpublished memorandum decision, so under Rule 28 of the Arizona Rules of Civil Appellate Procedure it is not precedent and generally may not be cited as legal authority; it is offered here only as a neutral, educational illustration of how these HOA-governance statutes have been applied. The decision also highlights procedural mechanics that recur in HOA disputes, including the derivative-versus-direct distinction for suits against a board and the risk that a member who loses such a suit may owe the association’s attorney fees under A.R.S. section 12-341.01 and a fee-shifting provision in the CC&Rs. The homeowner was represented by Elizabeth D. Bushell of Elizabeth D. Bushell, P.L.C., and the association and its board by Carolyn B. Goldschmidt of Monroe, McDonough, Goldschmidt & Molla, P.L.L.C.

Video overview of the ruling

An AI-generated video overview of Joan Tober, Plaintiff/Appellant, v. Civano 1: Neighborhood Association, Inc., an Arizona nonprofit corporation; and Rick Hanson, Mark Levine, George Luis, Lee Rayburn, Bob Small, Chris Shipley, and Les Shipley, Defendants/Appellees (2 CA-CV 2012-0129). Under A.R.S. § 33-1812, a planned community association may conduct its board election exclusively by mail-in… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the ruling

An AI-generated audio deep dive walking through the court’s reasoning and disposition in Joan Tober, Plaintiff/Appellant, v. Civano 1: Neighborhood Association, Inc., an Arizona nonprofit corporation; and Rick Hanson, Mark Levine, George Luis, Lee Rayburn, Bob Small, Chris Shipley, and Les Shipley, Defendants/Appellees. Generated from the case filings; verify against the linked ruling below.

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Sycamore Hills Estates is a residential community governed by an Amended and Restated Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs), which created the Sycamore Hills Estates Homeowners Association. Kenneth and Barbara Zablotny, homeowners bound by the CC&Rs, sued the Association in 2015 for allegedly breaching the CC&Rs. The parties settled, signed a written settlement agreement, and stipulated to a form of final judgment that incorporated the settlement by reference. In March 2017 the trial court approved the settlement and entered the stipulated judgment. In May 2019 the Association moved under Ariz. R. Civ. P. 60(b)(4) to set the judgment aside, arguing the court had no jurisdiction ‘to render’ a declaratory approval of relief the pleadings never requested, and that its own agreement to a settlement provision conflicting with the CC&Rs was an ultra vires act. The Court of Appeals, Division Two, affirmed the denial of that motion. It held that a court with general jurisdiction over the underlying contract dispute may enter a consent judgment granting relief beyond the pleadings, and that A.R.S. section 10-3304 bars a nonprofit planned-community association from challenging the validity of its own corporate action for lack of power. Separately, the court held the trial court violated procedural due process by granting the Zablotnys’ supplemental attorney-fee request before the Association’s time to respond had run, and it vacated and remanded that fee award. Neither side wholly prevailed, so the court awarded no fees or costs on appeal.

Reviewing the denial of the Rule 60(b)(4) motion de novo, the court explained that a judgment is void only when the court entering it lacked jurisdiction over the subject matter, over the person, or to render the particular judgment or order entered. The Association relied on Andrews v. Andrews for the proposition that a court’s power is limited by the nature of the suit and the issues raised in the pleadings; in Andrews a dissolution court’s affirmative money judgment on a claim outside the statutory dissolution scheme, and never pleaded as a civil claim, was void. The court assumed without deciding that the judgment’s language approving and incorporating the settlement agreement amounted to a declaratory judgment, and acknowledged that neither party had pleaded for declaratory relief (the settlement did not yet exist when the complaint was filed). It nevertheless held the parties’ stipulation asking the court to enter a judgment approving the settlement supplied the power to grant that relief. Drawing on Industrial Park Corp. v. U.S.I.F. Palo Verde Corp., the court reiterated that provisions of a consent judgment may be sustained and enforced even where the relief was outside the pleadings, so long as the court has general jurisdiction over the matters adjudicated. Because the Association did not contest the trial court’s constitutional and statutory authority to hear the underlying contract action, and because the parties agreed to the relief, the stipulated judgment was valid and not void.

Turning to the ultra vires theory, the court noted the Association had certified in the settlement that its signatories held full corporate authority, yet now argued that section III of the agreement could only be granted by a member vote and could not lawfully benefit the Zablotnys alone. The court held A.R.S. section 10-3304(A) forecloses that argument: the validity of corporate action may not be challenged for lack of power except in the three situations listed in subsection (B). For a planned-community association as defined in A.R.S. section 33-1802, a power-to-act challenge is limited to a proceeding by a member against the corporation to enjoin the act, or a proceeding by the corporation against a current or former director, officer, employee, or agent. The Association was neither a member nor suing an officer or agent; it was attacking its own authority, which the statute does not permit. The court acknowledged the statute could allow an impermissible corporate act to stand, but reasoned that the act is not thereby unchallengeable, only that this Association may not bring the challenge, and affirmed on that alternative ground under Forszt v. Rodriguez. Finally, applying de novo review to the due-process claim, the court calculated that the Association had until September 17, 2019 to respond to the supplemental fee application under Rules 54(g), 7.1, 6, and 5(c), yet the trial court ruled on September 13. Because a party opposing fees is entitled to be heard on their reasonableness (Reed v. Reed), and a later motion for new trial does not cure the deprivation (Morrison v. Shanwick), the premature award violated procedural due process and had to be vacated. The court lacked jurisdiction to review the Rule 59 ruling because it was entered after, and not designated in, the notice of appeal.

For Arizona homeowners associations, this published decision is a strong caution against trying to undo a settlement the association itself negotiated and stipulated to. Once a court with general jurisdiction over a contract dispute enters a consent judgment, that judgment is not void merely because it grants relief the original pleadings never requested; the parties’ stipulation supplies the court’s power to act. Just as importantly, A.R.S. section 10-3304 bars a nonprofit planned-community association from later escaping its own corporate action by calling it ultra vires. The Legislature channeled power-to-act challenges into narrow paths, chiefly a suit by a member to enjoin the act or a suit by the association against its own director, officer, employee, or agent, so a board that agrees to terms it may lack authority to grant cannot simply repudiate the deal by attacking its own authority. Boards should confirm their authority before signing, because the corporate-authority defense will generally not be available to them afterward.

The opinion is equally significant on procedure. Even a party that loses on the merits is entitled to procedural due process on attorney fees, meaning a real opportunity to be heard on the reasonableness and appropriateness of a fee request before the court rules. A trial court that grants a supplemental fee application before the opponent’s response deadline runs commits reversible error, and a later motion for new trial or reconsideration does not cure it. The decision also reminds litigants that a notice of appeal must designate each order challenged, or the appellate court will lack jurisdiction to review it, and that appellate fees under A.R.S. section 12-341.01 may be denied outright where neither side completely prevails.

Video overview of the case record

An AI-generated video overview of Sycamore Hills Estates Homeowners Association, Inc. v. Zablotny (250 Ariz. 479; 481 P.3d 705 (App. 2021) (No. 2 CA-CV 2019-0200)). A trial court that has general subject-matter jurisdiction over the underlying contract action may enter a… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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An AI-generated audio deep dive walking through the court record and procedural posture in Sycamore Hills Estates Homeowners Association, Inc. v. Zablotny. Generated from the case filings; verify against the linked case records below.

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Scott McLaren bought Tract 174 in the Sierra Verde Ranch subdivision in Seligman (Yavapai County) in April 2020, taking title by a warranty deed that expressly made the parcel subject to recorded CC&Rs. Those CC&Rs created the Sierra Verde Ranch Property Owners Association, made every parcel owner an automatic member, and obligated each owner to pay annual assessments secured by a lien enforceable through foreclosure. After McLaren paid the 2021 and 2022 assessments late and then refused to pay the 2023 and 2024 assessments, the POA sued for breach of contract and to foreclose its assessment lien. The superior court granted the POA summary judgment on the contract claim and, on reconsideration, on the foreclosure claim, entering a judgment awarding roughly $848 in unpaid assessments and fees, $1,022 in collection costs, and $12,545 in attorneys’ fees. McLaren appealed, arguing lack of mutual assent to the CC&Rs, the POA’s prior material breach for failing to maintain access roads and a water well, denial of his right to a jury trial, and various procedural and evidentiary errors. The Arizona Court of Appeals, Division One, affirmed. It held that a deed taken subject to recorded CC&Rs binds the owner as a contract, and that the obligation to pay assessments is independent of the association’s maintenance duties, so alleged non-maintenance neither excused payment nor raised a triable issue. The court also rejected McLaren’s jury-trial, affirmative-defense, and additional-evidence arguments and awarded the POA its reasonable appellate fees and costs.

Reviewing the grant of summary judgment de novo and viewing the evidence in the light most favorable to McLaren, the court asked whether the POA showed there was no genuine dispute of material fact and that it was entitled to judgment as a matter of law under Ariz. R. Civ. P. 56(a), noting it would affirm if the ruling was correct for any reason.

On contract formation, the court rejected McLaren’s claim that he never assented because he misunderstood whether the POA was an “association” or a “corporation.” His warranty deed expressly stated that he took the parcel subject to recorded CC&Rs, and those CC&Rs, recorded before he bought, provide that every owner “in accepting a deed . . . automatically becomes a member of the Association” and agrees to be bound. Citing ACEMA v. Turner and Powell v. Washburn, the court reiterated that a covenant running with the land is a contract between the association and the owners, and that the CC&R obligations, including annual assessments, are enforceable as a contract against owners like McLaren; the POA’s precise legal status did not affect the validity or applicability of the CC&Rs.

The core of the decision addressed McLaren’s prior-material-breach theory — that the POA’s alleged failure to maintain roads and its closure of a well excused his duty to pay. The court observed that McLaren had neither sued nor counterclaimed to enforce the CC&Rs, and had not shown a material breach that would suspend his own performance under Zancanaro v. Cross. More fundamentally, the court applied the independent-covenant doctrine: the obligation to pay assessments arises from ownership of property subject to the CC&Rs and does not depend on the association’s performance of maintenance. Quoting Mountain View Condos. Homeowners Ass’n v. Scott (“the obligation to pay assessments arises from unit ownership and is not dependent upon completion of improvements”) and Casita de Castilian, Inc. v. Kamrath, the court explained that the duty to pay and the association’s maintenance duties are distinct. It distinguished the out-of-state Rivers Edge decision as non-binding, and held that even though these CC&Rs were silent on the point, the payment obligation was independent of the POA’s responsibility to maintain common areas. McLaren’s failure to allege he could not use his parcel, or to identify any CC&R duty to maintain a specific road or well, left no triable issue.

The court then dispatched McLaren’s remaining arguments. Under National Bank of Arizona v. Thruston, the POA as movant was not required to negate McLaren’s affirmative defenses; the proponent of an affirmative defense bears the burden of proving it. Summary judgment did not deprive McLaren of a jury trial because there were no genuine fact issues to try (Cagle v. Carlson). The denial of his motion to submit additional evidence was reviewed only for abuse of discretion, and McLaren showed none; a party opposing summary judgment may not rest on the allegations of its pleadings but must set forth specific facts. Finally, arguments not asserted below — including his point that he declined to seek damages that would fall on his neighbors — were not a valid defense to summary judgment. The court affirmed and awarded the POA its reasonable appellate attorneys’ fees and costs under the CC&Rs and A.R.S. §§ 12-341 and 12-341.01, contingent on ARCAP 21 compliance.

This decision restates a durable principle of Arizona community-association law: when a deed takes property subject to recorded CC&Rs, those covenants operate as a contract, and an owner’s duty to pay assessments is generally treated as independent of whatever the association does or fails to do with common areas. Owners who are dissatisfied with maintenance — here, roads and a well — cannot ordinarily self-help by withholding assessments; the court pointed out that the proper route is to enforce the CC&Rs affirmatively (by suit or counterclaim), not to raise non-maintenance as a defense to a collection action. The opinion also shows how the planned-community statutes, A.R.S. §§ 33-1256(A) and 33-1807(A), gate lien foreclosure: the trial court initially denied foreclosure until the POA demonstrated the owner owed at least $1,200 or was delinquent for more than a year.

The case is also a cautionary illustration of fee exposure. Because the CC&Rs and A.R.S. §§ 12-341 and 12-341.01 authorize a fee award to the prevailing party, a relatively small assessment dispute — a few hundred dollars in unpaid dues — grew into a judgment that included more than $12,500 in trial attorneys’ fees plus collection costs, with additional fees awarded on appeal. As an unpublished memorandum decision under Arizona Supreme Court Rule 111(c), it is not precedential and may be cited only as the rule allows, but it usefully synthesizes the settled authorities (Scott and Casita de Castilian) that owners and boards alike rely on when disputes over assessments and maintenance arise.

Video overview of the ruling

An AI-generated video overview of Sierra Verde Ranch Property Owners Association, Plaintiff/Appellee, v. Scott B. McLaren, Defendant/Appellant (1 CA-CV 25-0384). An owner who accepts a deed subject to recorded CC&Rs is contractually bound to pay HOA assessments, and that… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the ruling

An AI-generated audio deep dive walking through the court’s reasoning and disposition in Sierra Verde Ranch Property Owners Association, Plaintiff/Appellee, v. Scott B. McLaren, Defendant/Appellant. Generated from the case filings; verify against the linked ruling below.

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This consolidated appeal grew out of a decades-long dispute over ground rent for 29 casitas built on land subleased from a Scottsdale resort. In 1970 the resort’s predecessor leased twenty acres, later dividing it into a twelve-acre resort and an eight-acre condominium complex of 29 casitas. A 1972 sublease set the casita owners’ ground rent, and a 1999 amendment fixed the rent at $323 per month while authorizing the homeowners association (the HOA) to represent the owners in future rent negotiations and to use an appraiser if the HOA and the resort owner, Procaccianti AZ II, L.P. (the Hotel), could not agree. After a 2005 arbitration between the Hotel and the landowner, the Hotel and the HOA agreed the owners would pay 40% of the total ground rent, or $708.50 per unit per month, and 24 of 29 owners approved that allocation at a January 2006 special meeting and again through a mailed written amendment. A 2011 stipulated judgment (the Willett Judgment) had voided the 2006 special meeting for lack of a quorum. Various owner groups then sued the Hotel and the HOA, contesting the HOA’s authority, the validity of the 2006 amendment, the identity of the incorporated HOA, the denial of a receiver, a stricken damages claim, and joint-and-several liability for a roughly $459,000 fee award. In an unpublished memorandum decision, Division One of the Arizona Court of Appeals affirmed the superior court across all three consolidated appeals and awarded the Hotel and the HOA their fees and costs on appeal.

The court addressed each argument in turn. On issue preclusion, it reviewed de novo and applied the five-element test, holding that Appellants failed the first element because the status of the incorporated HOA and the validity of the 2006 Amendment were never “actually litigated and determined by a valid and final judgment.” The 2011 Willett Judgment was a stipulated judgment that addressed only the narrow question whether the January 12, 2006 special meeting and vote were valid; stipulated judgments generally lack preclusive effect, and its narrow findings did not bar the later courts from deciding the HOA’s status and authority or the validity of the 2006 Amendment. Interpreting the Willett Judgment de novo as a contract, the court found its plain terms voided only the actions taken at the January 2006 meeting for lack of a quorum; it made no findings about the validity of future amendments and did not extinguish the owners’ ground-rent obligations. On the HOA’s status, the court noted the question—whether the post-1994 incorporated entity succeeded the pre-1994 unincorporated association—had already been decided against Appellants, including in London v. Karatz, and declined to revisit it. On the “vote by pen,” the court held A.R.S. § 10-3704(A) permits nonprofit-corporation members to approve action by signed written consent absent contrary governing documents, that nothing showed the HOA’s documents forbade it, and that a jury on sufficient evidence implicitly found the owners validly approved the 2006 Amendment. It found no abuse of discretion in striking the Elis’ undisclosed damages under Arizona Rule of Civil Procedure 26.1, and affirmed summary judgment for the Hotel because the owners’ 2011 settlement—barring the HOA from negotiating their ground rent—breached the 1999 Amendment’s grant of exclusive negotiating authority to the HOA. The court upheld the denial of a receiver because the HOA had a properly elected board and valid bylaws and was not incapacitated, and, alternatively, the declaration’s remedy was for the Hotel to assume control. It held DRL waived its challenge to joint-and-several fee liability by not raising it below, and awarded the Hotel and the HOA their fees and costs on appeal as prevailing parties under A.R.S. § 12-341.01.

For Arizona associations and owners, this decision illustrates how governing-document amendment and voting rules interact with the Arizona Nonprofit Corporation Act. The court confirmed that a nonprofit HOA may obtain member approval through a written “vote by pen” under A.R.S. § 10-3704(A) when the governing documents do not prohibit it, and that whether owners actually approved an amendment can be a fact question for a jury. It also shows that an association’s authority, once conferred in the governing documents, can bind owners: because the 1999 Amendment gave the HOA exclusive authority to negotiate ground rent, individual owners who sidestepped that authority through a private settlement were found to have breached the sublease.

The opinion is also a caution about the limits of a favorable earlier ruling and about preserving arguments. A 2011 stipulated judgment that voided a defective 2006 meeting did not, by its narrow terms, permanently free the owners from ground rent or bar the association from later re-approving the amendment. And DRL’s challenge to being held jointly and severally liable for a roughly $459,000 fee award was waived because it was not raised in the trial court. Because the decision is an unpublished memorandum decision under Arizona Rule of the Supreme Court 111(c), it is not precedential and may be cited only as authorized by rule.

Video overview of the ruling

An AI-generated video overview of Diana R. Shaffer, et al. v. Procaccianti AZ II, L.P., et al. (Hilton Casitas Council of Homeowners) (consolidated with Whitmer and London) (1 CA-CV 16-0628 (consolidated with 1 CA-CV 16-0629 and 1 CA-CV 16-0654)). Prior judgment did not preclude later litigation over the HOA status, authority, and assessment claims. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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An AI-generated audio deep dive walking through the court’s reasoning and disposition in Diana R. Shaffer, et al. v. Procaccianti AZ II, L.P., et al. (Hilton Casitas Council of Homeowners) (consolidated with Whitmer and London). Generated from the case filings; verify against the linked ruling below.

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Carla Bartschi owned a home in the Santa Fe Ridge planned community in Glendale, Arizona, subject to the community’s recorded Declaration of Covenants, Conditions and Restrictions (CC&Rs). In November 2006, the Santa Fe Ridge Homeowners’ Association sued her for breach of contract and injunctive relief, alleging she had failed to maintain her landscaping, remove trash and debris from her front yard, and remove a large crate from her lot. Four days after filing, the association recorded a notice of lis pendens against her property under A.R.S. § 12-1191(A). Bartschi counterclaimed for wrongful recordation under A.R.S. § 33-420(A) and moved for partial summary judgment, arguing the lawsuit did not ‘affect title to real property.’ The trial court ultimately agreed, granted her summary judgment, ordered the lis pendens removed, and awarded $5,000 in statutory damages plus $11,110 in attorneys’ fees and $422.20 in costs; it later dismissed the association’s complaint after Bartschi corrected the maintenance issues. The Arizona Court of Appeals, Division One, affirmed that the lis pendens was groundless, holding that a suit merely to compel compliance with already-recorded CC&Rs does not affect title, because any injunction would be personal to the owner and would not run with the land. The court vacated the fee award, however, holding fees under § 33-420(A) could be awarded only for the wrongful-recordation counterclaim, not for defending the association’s separate, arguably meritorious enforcement complaint.

Reviewing the summary judgment de novo, the court first addressed timing. It agreed with the association that A.R.S. § 12-1191(A) plainly permits a lis pendens to be recorded when a complaint is filed, and it read the trial court’s remarks not as requiring a prior judgment or lien but as observing that the relief sought would not affect title unless a monetary judgment or lien was later obtained on future events. The dispositive question, therefore, was whether the underlying action was one ‘affecting title to real property.’

Guided by Evergreen West, Inc. v. Boyd, the court explained that a lis pendens is groundless only when the claim that the action affects title has no arguable basis or is unsupported by any credible evidence, and that this inquiry does not turn on the merits of the underlying claim. Applying Tucson Estates, Inc. v. Superior Court, the court accepted that an action affecting rights ‘incident to’ title falls within the statute, but read that principle narrowly: a lawsuit affects a right incident to title only if a judgment would expand, restrict, or burden the owner’s rights as bestowed by that title. In Tucson Estates the plaintiffs sought to establish and enforce an implied covenant that would bind future owners; here, by contrast, the association sought only to enforce existing CC&Rs whose validity Bartschi did not dispute. Any injunction would be personal to Bartschi, would not run with the land, and would not alter rights already burdened by the recorded CC&Rs. The court also found the purposes of § 12-1191 unserved, because future purchasers took subject to the recorded CC&Rs and could not defeat the association’s ability to obtain relief.

The court then rejected the association’s lien theory under Coventry Homes, Inc. v. Scottscom Partnership. Merely requesting a lien does not make an action one affecting title; there must be a basis to conclude a lien would actually be imposed. Because the association’s lien depended on future events—Bartschi’s noncompliance with an injunction, the association’s incurring self-help expenses, and her refusal to reimburse them—the claim was anticipatory and not ripe, so the recordation was groundless and premature. The court further held the association waived, and in any event could not show error on, the scienter element of § 33-420(A): the situation was readily distinguishable from Tucson Estates, and because the association’s president signed the notice of lis pendens, counsel’s knowledge that the recording was groundless was imputed to the association. Finally, applying Schweiger v. China Doll Restaurant, Inc., the court held the CC&R enforcement complaint was separate and distinct from the wrongful-recordation counterclaim, so § 33-420(A) fees were limited to the counterclaim; it vacated the fee award and remanded, denied the association’s request for appellate fees, and awarded Bartschi her reasonable fees on appeal.

This published 2008 decision is a leading Arizona authority on when a homeowners’ association may record a lis pendens against a member’s property during a governing-documents dispute. It draws a clear line: a routine action to enforce existing, already-recorded CC&Rs—demanding that an owner maintain landscaping, clear debris, or remove an object—does not ‘affect title to real property’ and therefore does not authorize a lis pendens. Because the recorded CC&Rs already burden the land and any compliance injunction is personal to the current owner, recording a lis pendens in that setting is groundless and can trigger mandatory statutory damages of at least $5,000, plus reasonable attorneys’ fees and costs, under A.R.S. § 33-420(A).

For associations and their counsel, the decision is a caution against reflexively clouding an owner’s title during a CC&R dispute; a lis pendens generally becomes appropriate only once the association has a ripe basis for a lien or a judgment that actually affects title, not while relief remains anticipatory. For owners, it confirms a powerful remedy against improperly recorded documents. The opinion also refines fee awards under § 33-420(A): even a homeowner who defeats an improper lis pendens cannot recover fees for defending the association’s separate, arguably meritorious enforcement claim, because unrelated claims that could have been litigated separately must be parsed under Schweiger v. China Doll.

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Homeowners across the unincorporated retirement community of Green Valley sued Green Valley Recreation, Inc. (GVR), a nonprofit recreational association formed in 1978, seeking to quiet title, obtain declaratory relief, and recover damages. They contended that recorded Master Deed Restrictions (MDR), private membership agreements, and CC&Rs compelling them to maintain GVR membership and pay its dues and assessments—including a 2000 ‘new member capital fee’—were unenforceable. The homeowners argued the covenants did not touch and concern the land, were unconscionable, and lacked mutuality of obligation. The Pima County Superior Court granted summary judgment to GVR and denied both the homeowners’ post-judgment motions and GVR’s request for attorney fees. The homeowners appealed and GVR cross-appealed the fee denial. Addressing what it described as a novel Arizona issue, the Court of Appeals, Division Two, held that covenants requiring membership in a recreational association touch and concern the burdened land and are enforceable as real covenants running with the land. The court rejected the homeowners’ unconscionability and mutuality arguments and declined to apply A.R.S. §§ 33-440 and 33-442 retroactively to covenants created before those statutes took effect. It affirmed summary judgment for GVR and, reviewing for abuse of discretion, affirmed the discretionary denial of GVR’s trial-court attorney fees, while awarding GVR its reasonable attorney fees on appeal under A.R.S. § 12-341.01.

The court first addressed the trial court’s use of its preliminary-injunction findings as ‘law of the case.’ Citing Powell-Cerkoney v. TCR-Montana Ranch, the court reaffirmed that legal conclusions reached at the preliminary-injunction stage do not constitute law of the case and do not bind the court at summary judgment. It held, however, that the homeowners had waived the point by not objecting until their motion for new trial, and that any error was harmless because the servitudes were valid on other grounds, so the trial court reached the correct result.

Turning to the central issue, the court applied the traditional four elements of a real covenant from Choisser v. Eyman and Federoff v. Pioneer Title & Trust: a writing satisfying the Statute of Frauds, intent that the covenant run with the land, a covenant that touches and concerns the land, and privity of estate. GVR urged that the touch-and-concern element had been superseded by the Restatement (Third) of Property (Servitudes) and by A.R.S. §§ 33-440 and 33-442. The court declined to resolve that question, holding those statutes could not be applied retroactively under A.R.S. § 1-244 because eliminating touch-and-concern would affect substantive rights established when the covenants were created (§ 33-440 effective September 2008; § 33-442 enacted 2010).

Applying the traditional test, the court concluded the GVR covenants do touch and concern the land: each burdened owner is entitled to the benefit of recreational facilities and services, and the homeowners offered no evidence any of them was denied those benefits. The court rejected the argument that ‘benefit’ and ‘value’ should be measured subjectively, analogized GVR membership to a community pool, and relied on out-of-state authority (Lowry, Streams Sports Club, Regency Homes, Four Seasons, Homsey) holding that mandatory recreational-association membership satisfies touch-and-concern. Because GVR offers full membership and access to owners throughout its vicinity, the absence of a single common subdivision scheme was inconsequential so long as access is not unreasonably impeded by distance. The recorded agreements and CC&Rs also showed clear intent to bind the land permanently, and the writing and privity elements were undisputed; even homeowner Guldan, whose restriction was unrecorded, was bound because he had actual notice under Federoff and A.R.S. § 33-412(B).

On unconscionability—a question of law under Maxwell v. Fidelity Financial Services—the court found neither procedural nor substantive unconscionability. There was no evidence of unfair surprise or bargaining defects; the recorded documents provided notice, and the homeowners’ claims of unequal bargaining power lacked factual support. Substantively, there was no evidence of a significant cost-price disparity, and GVR’s amendment power was tempered by its articles and bylaws, members’ voting rights, and the rule that an association may not unreasonably alter the nature of its covenants (Dreamland Villa; Shamrock). The court also rejected the illusory/mutuality argument under Gates and Carroll v. Lee, holding GVR provided consideration by being obligated to perform for its members. Finally, reviewing the fee ruling for abuse of discretion, the court upheld the trial court’s denial of GVR’s fees because it had a reasonable basis—the novel, close nature of the claims and the risk of chilling future servitude litigation—while awarding GVR its fees on appeal under A.R.S. § 12-341.01.

Nickerson is a published, precedential Division Two decision that answered what the court called a novel Arizona question: whether a recorded covenant requiring membership in, and payment of dues to, a recreational association ‘touches and concerns’ the land so that it runs with the land and binds successive owners. The court held that it does, aligning Arizona with courts in several other states and confirming that mandatory recreational-association membership can be a valid, enforceable real covenant even where the burdened homes are not all within a single subdivision and the facilities are dispersed throughout the community. The key consideration is reasonable access to the facilities from the burdened property, not a common platted scheme.

The decision also matters for how associations structure and defend their governing documents and assessments. It reinforces that unconscionability is a legal question examined at contract formation, that recorded CC&Rs and deed restrictions provide the notice needed to defeat an ‘unfair surprise’ claim, and that an association’s power to amend is not ‘unfettered’ because it is checked by its articles, bylaws, members’ voting rights, and the limit against unreasonably altering the nature of the covenants. At the same time, the court’s affirmance of the trial court’s discretionary refusal to award the prevailing association its trial-court fees—because the homeowners raised novel, close questions and fee-shifting could chill legitimate servitude litigation—illustrates that prevailing on the merits does not guarantee a fee award under A.R.S. § 12-341.01.

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An AI-generated video overview of Nickerson v. Green Valley Recreation, Inc. (228 Ariz. 528, 269 P.3d 1179 (App. 2011) (2 CA-CV 2010-0197)). Covenants requiring homeowners to maintain membership in, and pay dues and assessments to, a recreational… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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Mountain View Condominiums Homeowners Association, doing business as Arbor Point Condominiums, sued Clifford and Valerie Scott, Lawyers Title of Arizona (as trustee and Declarant), Douglas Knoles, Superstition Homes, and Inca Investment to collect common-area assessments on condominium units on which no buildings had been constructed. The complex was created in 1984 under the Horizontal Property Regime Act, when a Declaration of CC&Rs was recorded and a plat divided the land into 76 units plus common areas. After a foreclosure and a series of deeds, the defendants held Units 22 through 76. They argued they owed no assessments because their units were still vacant land with no improvements, and the trial court agreed, granting them summary judgment and attorneys’ fees on the theory that the Declaration contemplated an erected structure before assessment liability arose. The Arizona Court of Appeals, Division Two, reversed. Reading the statute, the Declaration, and the bylaws together, the court held that a condominium unit is defined as airspace carrying a vested, undivided interest in the common elements, and that ownership of that interest, not the completion of a building, triggers the duty to pay assessments. Nothing in the Declaration, the former Horizontal Property Regime Act, or the Arizona Uniform Condominium Act distinguished completed from uncompleted units for assessment purposes. The court reversed the judgment and the fee award, remanded for entry of judgment for the Association and a determination of the amounts owed, and awarded the Association its appellate attorneys’ fees.

The court framed the sole question as whether a condominium unit owner must pay assessments when no improvements have been built on the unit, and answered yes. It began with the settled rule that the rights and obligations of condominium owners regarding the common elements come from three sources, the statute, the declaration, and the bylaws, which must be read together and harmonized where possible (citing American Savings Service Corp. v. Selby, Sun-Air Estates v. Manzari, and A.R.S. section 33-1201(B)). Because the property had been submitted to a horizontal property regime under former A.R.S. sections 33-551 to 33-561, the court explained that Arizona condominium ownership consists of individual ownership of a horizontal layer of cubic airspace subject to exclusive control, together with a fractional interest held in common in the common elements (Makeever v. Lyle). The defendants’ undivided Common Area interest was appurtenant to each unit, could not be severed, and was vested as a separate parcel of real property.

Turning to the documents, the court found nothing in the Declaration distinguishing owners of completed units from owners of uncompleted ones. Because an Arizona condominium owner owns only airspace and not the underlying land, the Declaration necessarily describes a unit by physical boundaries to mark the line between the owner’s exclusive area and the common area; that boundary description does not require a structure to exist before someone becomes a unit owner obligated to pay. The bylaws and Articles of Incorporation reinforced this by defining an owner as one holding fee simple to any unit (including contract purchasers) and a member as any unit owner, all obligated to pay assessments without reference to construction.

The court then rejected the argument that the Arizona Uniform Condominium Act applied only to condominiums created after January 1, 1986, holding that section 33-1201(B) extends the Act to earlier condominiums where not in conflict. Both the former Horizontal Property Regime Act, which defined a building as the principal structure “erected or to be erected,” and the Uniform Condominium Act assess against units by percentage interest in the common elements and draw no line between finished and unfinished units. The court found persuasive Bradley v. Mullenix, which reasoned that common expenses like landscaping, snow removal, and exterior upkeep accrue regardless of whether a unit is completed. It also noted that section 33-1255(F) permits only a limited reduction (to not less than twenty-five percent) of a declarant’s assessment on units not substantially completed, and only if the declaration so provides; absent such an amendment, the defendants owed the full assessment. Concluding that the defendants took the benefits and burdens of prior ownership, including the continuing duty to pay assessments, and that treating them otherwise would produce the absurd result of membership benefits without obligations, the court reversed the summary judgment and fee award and remanded.

This published Division Two decision establishes a foundational Arizona rule that assessment liability in a condominium flows from ownership of the unit and its inseparable undivided interest in the common elements, not from whether a building has been constructed. For associations and boards, it confirms that owners of vacant or unbuilt condominium lots cannot escape common-area assessments by pointing to the absence of improvements; the grass still grows, the roads and shared systems still deteriorate, and every unit owner shares those costs in proportion to the interest fixed by the recorded documents. The opinion reads the declaration, bylaws, articles, and the governing statutes as a harmonized whole, a method that continues to guide Arizona courts interpreting community documents.

For developers, contract purchasers, and investors who acquire undeveloped condominium units, the case is a caution that taking title carries the previous owner’s continuing assessment obligations, without interruption, from the moment assessments commence. It also clarifies that the Arizona Uniform Condominium Act reaches condominiums created before its 1986 effective date where it does not conflict with the older Horizontal Property Regime Act or the recorded documents, and that the only relief for unbuilt units is the narrow statutory reduction under A.R.S. section 33-1255(F), which applies solely to declarants and only if the declaration provides for it. The reversal of the fee award further signals that a party who prevails at trial on an erroneous reading of the documents can lose both the judgment and its fees on appeal.

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An AI-generated video overview of Mountain View Condominiums Homeowners Ass’n v. Scott (No. 2 CA-CV 93-0288; 180 Ariz. 216, 883 P.2d 453 (App. 1994)). A condominium unit owner’s obligation to pay association assessments arises from unit ownership itself, which… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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McDowell Mountain Ranch Community Association, an Arizona nonprofit homeowners association in Scottsdale, sued homeowner James F. Simons in January 2004 for injunctive relief after he began a construction project at the rear of his home without the architectural approval his community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) required. Simons did not answer the complaint or appear at the injunction hearings; the trial court entered a permanent injunction, and the association pursued contempt proceedings until Simons began moving toward compliance. The association then sought its attorneys’ fees under CC&R Article XV, Section 15.14, which obligated an offending owner to pay “all attorney fees and court costs incurred” by the association in enforcing the CC&Rs, and it requested $8,000 in fees plus costs. Without holding the hearing Simons had asked for, the trial court crossed out the requested figure and awarded only $4,000, giving no explanation. On appeal, Division One held that CC&Rs are a contract and that a court generally must enforce a contractual fee provision, reducing the amount only where the fees are clearly or “obviously” excessive—a showing the objecting owner bears the burden to make. Finding no record support for the 50% reduction, the court vacated the fee award and remanded. Judge Orozco dissented.

The Court of Appeals began from the settled principle that a community’s CC&Rs “constitute a contract between the subdivision’s property owners as a whole and individual lot owners” (Ahwatukee Custom Estates Mgmt. Ass’n v. Turner). It distinguished contractual fee provisions from the discretionary fee statute, A.R.S. § 12-341.01(A): unlike statutory fees, a court “lacks discretion to refuse to award fees under a contractual provision” (Chase Bank of Ariz. v. Acosta), and contracts for the payment of attorneys’ fees are enforced according to their terms (Heritage Heights Home Owners Ass’n v. Esser). In Heritage Heights, the court had held that a homeowner became contractually bound to a deed provision requiring the offending owner to pay all attorneys’ fees and costs the enforcing party incurred, and that recovery of all such fees, including on appeal, had to be granted.

The court then recognized a limit drawn from Elson Development Co. v. Arizona Savings & Loan Ass’n: a contractual fee provision is “binding only to the extent that it is reasonable,” but “where the services have been rendered, and the amount stipulated is not obviously excessive, the stipulation as to the amount should govern.” Reading Section 15.14 as closer to the “all fees” language of Heritage Heights than to the fixed percentage in Elson, the court held that the association was entitled to all of its fees except those that are obviously or clearly excessive. Surveying decisions from other jurisdictions, it adopted the rule that fees fixed by a fee-shifting contract are presumptively reasonable and that the party challenging them bears the burden of proving excessiveness. Because the association had submitted two fee applications satisfying Schweiger v. China Doll Restaurant, it made a prima facie showing, and the burden shifted to Simons to demonstrate that the requested fees were clearly excessive.

Applying those rules, the court found the trial court had erred. By cutting the request in half without explanation—and without holding the hearing Simons requested—the trial court appeared to have placed the burden of proving reasonableness on the association and to have exercised the broad discretion that applies to statutory fee awards under A.R.S. § 12-341.01 and § 12-2030. That discretion is more narrowly circumscribed when the parties have contractually agreed that the prevailing party recovers all of its fees. The record did not support a determination that 50% of the association’s fees were clearly excessive, so the award was vacated. On remand, the trial court may hold a hearing to consider any evidence Simons offers and then award all fees properly incurred except those it expressly finds clearly excessive (noting that a $200 charge for a demand letter about an unrelated recreational-vehicle violation not pleaded in the complaint should be subtracted). The court also awarded the association its fees and costs on appeal under the CC&Rs and A.R.S. § 12-342, upon compliance with Ariz. R. Civ. App. P. 21.

For Arizona homeowners associations and the owners they regulate, this published opinion clarifies how much control a trial court has over attorneys’ fees when the governing documents contain an “all fees” enforcement clause. The court treats such CC&R provisions as an enforceable contract: if the association prevails and documents its fees properly, it is presumptively entitled to the full amount, and the court may not simply trim the request as it might under the discretionary fee statute. The practical effect is that the burden shifts to the objecting owner, who must come forward with evidence that specific fees are clearly or obviously excessive rather than relying on the court to police reasonableness on its own.

At the same time, the decision is not a blank check for associations. Fees must still be documented in a proper China Doll application, work unrelated to the pleaded violations can be excluded (as with the $200 recreational-vehicle demand letter here), and an owner who requests a hearing on excessiveness is generally entitled to be heard before the court rules. The opinion also drew a dissent from Judge Orozco, who read Heritage Heights and Elson to preserve the trial court’s duty to assess reasonableness and who would have affirmed the 50% reduction as an implicit finding that the fees were excessive—illustrating that the scope of judicial review over contractual fee awards remained genuinely contested.

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An AI-generated video overview of McDowell Mountain Ranch Community Association, Inc. v. James F. Simons (216 Ariz. 266, 165 P.3d 667 (App. 2007)). Mandatory CC&R fee clauses must be enforced according to their terms after covenant litigation. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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