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La Esperanza Townhome Association, Inc. v. Title Security Agency of Arizona: HOA Court Case Guide

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CC&R Amendment | Riley v. Boyle | 2 CA-CIV 5001

Division Two holds that an amendment to a subdivision’s restrictive covenants must apply uniformly to all lots, and that a unilateral plat revision without the required 90% owner approval is void.

Last updated July 1, 2026. Case: La Esperanza Townhome Association, Inc. v. Title Security Agency of Arizona; 142 Ariz. 235, 689 P.2d 178 (App. 1984).

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

An amendment to a subdivision’s restrictive covenants must apply uniformly to all lots; an amendment that releases or alters the CC&Rs as to only part of the lots is null and void. Because the recorded plat was incorporated into the Declaration, a unilateral plat revision without the Declaration’s required 90 percent owner approval was likewise an invalid attempt to amend the CC&Rs.

Case Participants

Neutral Parties

  • La Esperanza Townhome Association, Inc. (Appellant)
    Arizona non-profit corporation and plaintiff; the townhome owners’ association that sued to void the 1975 amendment and the 1980 plat revision. Prevailed on appeal.
  • Title Security Agency of Arizona (Appellee)
    Defendant sued in its capacity as trustee under Trust T-285; owned 50 percent of the lots and recorded the 1980 revised plat.
  • Lyman E. Ostlund (Appellee)
    Defendant who acquired 15 lots, three garages, and the common area and sought to develop the south 223 feet commercially before conveying to Title Security as trustee.
  • Steven Weatherspoon (Counsel)
    Chandler, Tullar, Udall & Redhair
    Tucson counsel for plaintiff/appellant La Esperanza Townhome Association, Inc.
  • Tom Slutes (Counsel)
    Slutes, Sakrison, Grant & Pelander, P.C.
    Tucson counsel for defendants/appellees Title Security Agency of Arizona and Lyman E. Ostlund.
  • Howard (Judge)
    Judge of the Arizona Court of Appeals, Division Two; authored the opinion.
  • Birdsall (Judge)
    Chief Judge of the Arizona Court of Appeals, Division Two; concurred.
  • Hathaway (Judge)
    Judge of the Arizona Court of Appeals, Division Two; concurred.

What happened and why it matters

La Esperanza Townhome Association, Inc. v. Title Security Agency of Arizona is a 1984 published decision of the Arizona Court of Appeals, Division Two, addressing how a recorded subdivision Declaration of Covenants, Conditions and Restrictions (CC&Rs) may be amended. The La Esperanza townhome subdivision in Tucson was created in 1973, when the developers subdivided the land, recorded a Declaration covering lots 1 through 35, and recorded a subdivision plat. The Declaration allowed amendment only by an instrument signed by at least 90 percent of the lot owners during its first 25 years. In 1975, the developers directed the title trustee to record an amendment excluding the southerly 223 feet of the subdivision, the portion fronting East Broadway, so it could be developed for multiple-unit and commercial use. In 1980, a successor trustee, Title Security, then holding 50 percent of the lots, unilaterally recorded a revised plat that resubdivided that area. The association sued to have both the amendment and the plat revision declared void; the trial court instead ruled for the defendants and upheld them. The Court of Appeals reversed, holding that an amendment to restrictive covenants must apply uniformly to all lots in the subdivision, and that both the non-uniform 1975 amendment and the unilateral 1980 plat revision, which lacked the required 90 percent owner approval, were null and void.

The court reviewed the trial court’s judgment upholding the 1975 amendment and the 1980 plat revision and reversed. On the amendment, the court noted there was a question below about whether it had been signed by the required number of landowners, but held that the case turned on a more fundamental point: the amendment purported to affect only part of the lots in the subdivision. Relying on Riley v. Boyle, 6 Ariz. App. 523, 434 P.2d 525 (1967), the court reaffirmed that any amendment to a set of restrictive covenants must have uniform application to all lots, and that an amendment purporting to modify the restrictions as to one lot or some lots, but not all, is null and void. The court quoted Riley’s reasoning that the power to amend extends only to restrictions for all lots, and that a contrary reading could produce a “patchwork quilt” of different restrictions that would upset the orderly plan of the subdivision.

The court reinforced this conclusion with out-of-state authority reaching the same result, including Montoya v. Barreras (N.M. 1970), Lakeshore Estates Recreational Area, Inc. v. Turner (Mo. App. 1972), Ridge Park Home-Owners v. Pena (N.M. 1975), and Cowherd Development Co. v. Littick (Mo. 1951), each holding that a subset of owners cannot release or alter restrictions on selected lots absent a clear provision allowing it. The court acknowledged that if all landowners join in an amendment it need not have uniform effect (Steve Vogli Co. v. Lane), but found that the La Esperanza Declaration permitted only uniform changes. It rejected the defendants’ argument that releasing the south 223 feet from all covenants (rather than just one) was a meaningful distinction, calling it “a distinction without a difference.”

The court also rejected the defendants’ reliance and estoppel defenses. Because the 1975 amendment was null and void, it never became effective; purchasers who bought after 1975 took subject to a void document, and their purchase did not validate it. The court found Ostlund could not claim detrimental reliance because the amendment, changing restrictions on only part of the subdivision, raised a “red flag” that reasonable investigation would have shown to be invalid. Finally, because the original plat (Book 25, page 1) had been incorporated into the Declaration, Ostlund’s recording of a new plat was itself an attempt to amend the Declaration; without an instrument signed by 90 percent of the lot owners, the new plat was invalid, and the estoppel claim failed because the association learned of the plan only after the revised plat was filed and most funds were spent.

This decision is a foundational Arizona statement of the uniformity principle in restrictive-covenant and CC&R law: a subset of owners generally cannot amend a subdivision’s covenants to relieve only some lots from restrictions while leaving the rest bound. The rule protects the mutual, reciprocal expectations that owners acquire when they buy into a common plan, and it prevents a controlling owner or developer from carving out favored parcels for uses (here, multi-unit and commercial development) that the recorded scheme did not allow. Even where the governing document sets a supermajority threshold, an amendment that is non-uniform in application can fail regardless of how many owners sign it.

The case also illustrates two practical points that continue to matter for community associations, developers, and buyers. First, a recorded subdivision plat that is incorporated into a declaration cannot be revised unilaterally; changing it requires the same owner approval the declaration demands for any amendment. Second, an instrument that appears in the public record is not necessarily valid: a void amendment never takes effect, later purchasers take subject to its invalidity rather than curing it, and an irregularity that changes restrictions on only part of a subdivision should put a prospective developer on notice to investigate before spending money in reliance on it.

Step-by-step litigation record

Step 1973 Tom Kennedy and his wife purchased Tucson land fronting East Broadway from Ted Bloodworth, subdivided it into townhouse lots, and recorded the La Esperanza Declaration of CC&Rs (lots 1 through 35, plat Book 25, page 1) with Stewart Title and Trust as trustee.
Step 1975 Facing financial difficulty, the Kennedys directed Stewart Title to record an amendment excluding the southerly 223 feet from the Declaration; at that time Stewart Title owned 22 of 30 lots, the Kennedys 4, and third parties 4. Lot 6 was conveyed to the Bakers; the Bakers and the lot 17 owners later signed affidavits ratifying the amendment.
Step 1980-02 After the property passed from Bloodworth to Beck and Marshall and then to Ostlund (15 lots, 3 garages, and the common area), Ostlund conveyed those interests to Title Security Agency of Arizona, as trustee under Trust T-285.
Step 1980-05 Title Security, then owning 50 percent of the lots, unilaterally recorded a revised plat resubdividing the property, eliminating the seven townhome lots in the south 223 feet (converting the area to Block 1) and replacing eight eastern lots with nine.
The La Esperanza Townhome Association sued to void the amendment and plat revision; the defendants counterclaimed for validity. The trial court, sitting without a jury, dismissed the complaint and ruled for the defendants.
Step 1984-05-24 The Arizona Court of Appeals, Division Two, reversed, holding the 1975 amendment and the 1980 plat revision null and void and directing entry of judgment for the association.
Step 1984-10-10 The Arizona Supreme Court denied review.

FAQ

What was La Esperanza Townhome Association v. Title Security about?

It concerned a Tucson townhome subdivision, La Esperanza, and whether two changes to its recorded governing documents were valid: a 1975 amendment that excluded the southerly 223 feet of the subdivision from the Declaration of CC&Rs so that area could be developed for multiple-unit and commercial use, and a 1980 plat revision recorded by a successor trustee that resubdivided the same area. The townhome association sued to have both declared null and void.

What did the Arizona Court of Appeals decide?

The court reversed the trial court and held that both the 1975 amendment and the 1980 plat revision were null and void. The key reason was that an amendment to a subdivision’s restrictive covenants must apply uniformly to all lots; an amendment that releases or changes restrictions on only part of the lots is invalid. The court directed the trial court to enter judgment for the association.

Why can’t a subdivision’s covenants be amended for only some lots?

Following Riley v. Boyle, the court explained that restrictions apply to all lots in a subdivision, so the power to amend them extends only to changes affecting all lots. Allowing a group of owners to exempt selected lots would create, in the court’s words, a “patchwork quilt” of different restrictions and upset the subdivision’s orderly plan. The court noted an exception: if every landowner joins in an amendment, it need not have a uniform effect.

Why was the 1980 revised plat also invalid?

The original subdivision plat had been incorporated into the Declaration of CC&Rs. Because the plat was part of the Declaration, recording a new plat was effectively an attempt to amend the Declaration. That required an instrument signed by at least 90 percent of the lot owners. Since Title Security owned only 50 percent of the lots and acted unilaterally, the revised plat was an invalid amendment.

Did it matter that the buyers purchased after the 1975 amendment was recorded?

No. The court held that a void amendment never becomes effective, so owners who bought after 1975 took their lots subject to the void amendment, and their purchase did not validate it. The court also rejected a detrimental-reliance argument, reasoning that an amendment changing restrictions on only part of a subdivision raised a “red flag” that reasonable investigation would have shown to be invalid.

Why does this 1984 decision still matter for HOAs and homeowners?

It is a foundational Arizona statement that a subset of owners generally cannot amend covenants to relieve only some lots from restrictions, protecting the mutual expectations owners acquire under a common plan. It also confirms that a recorded plat incorporated into a declaration cannot be changed unilaterally, and that an instrument appearing in the public record is not necessarily valid, points that remain relevant to associations, developers, and buyers reviewing title.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation142 Ariz. 235, 689 P.2d 178 (App. 1984)
Court / tribunalCourt of Appeals
Decision / key dateMay 24, 1984
Judge / panelHoward (Judge, author), Birdsall (Chief Judge), Hathaway (Judge)
PartiesLa Esperanza Townhome Association, Inc. (Plaintiff/Appellant) v. Title Security Agency of Arizona, as Trustee under Trust T-285, and Lyman E. Ostlund (Defendants/Appellees)
Topics
CC&RsCovenantsAmendments
Outcome / holding

An amendment to a subdivision’s restrictive covenants must apply uniformly to all lots; an amendment that releases or alters the CC&Rs as to only part of the lots is null and void. Because the recorded plat was incorporated into the Declaration, a unilateral plat revision without the Declaration’s required 90 percent owner approval was likewise an invalid attempt to amend the CC&Rs.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source packageNo raw source-folder files found for this slug
Step-by-step docket roadmap7 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases0 download links

Key Issues & Findings

Case Summary

La Esperanza Townhome Association, Inc. v. Title Security Agency of Arizona is a 1984 published decision of the Arizona Court of Appeals, Division Two, addressing how a recorded subdivision Declaration of Covenants, Conditions and Restrictions (CC&Rs) may be amended. The La Esperanza townhome subdivision in Tucson was created in 1973, when the developers subdivided the land, recorded a Declaration covering lots 1 through 35, and recorded a subdivision plat. The Declaration allowed amendment only by an instrument signed by at least 90 percent of the lot owners during its first 25 years. In 1975, the developers directed the title trustee to record an amendment excluding the southerly 223 feet of the subdivision, the portion fronting East Broadway, so it could be developed for multiple-unit and commercial use. In 1980, a successor trustee, Title Security, then holding 50 percent of the lots, unilaterally recorded a revised plat that resubdivided that area. The association sued to have both the amendment and the plat revision declared void; the trial court instead ruled for the defendants and upheld them. The Court of Appeals reversed, holding that an amendment to restrictive covenants must apply uniformly to all lots in the subdivision, and that both the non-uniform 1975 amendment and the unilateral 1980 plat revision, which lacked the required 90 percent owner approval, were null and void.

Key Issues & Findings

The court reviewed the trial court’s judgment upholding the 1975 amendment and the 1980 plat revision and reversed. On the amendment, the court noted there was a question below about whether it had been signed by the required number of landowners, but held that the case turned on a more fundamental point: the amendment purported to affect only part of the lots in the subdivision. Relying on Riley v. Boyle, 6 Ariz. App. 523, 434 P.2d 525 (1967), the court reaffirmed that any amendment to a set of restrictive covenants must have uniform application to all lots, and that an amendment purporting to modify the restrictions as to one lot or some lots, but not all, is null and void. The court quoted Riley’s reasoning that the power to amend extends only to restrictions for all lots, and that a contrary reading could produce a “patchwork quilt” of different restrictions that would upset the orderly plan of the subdivision.

The court reinforced this conclusion with out-of-state authority reaching the same result, including Montoya v. Barreras (N.M. 1970), Lakeshore Estates Recreational Area, Inc. v. Turner (Mo. App. 1972), Ridge Park Home-Owners v. Pena (N.M. 1975), and Cowherd Development Co. v. Littick (Mo. 1951), each holding that a subset of owners cannot release or alter restrictions on selected lots absent a clear provision allowing it. The court acknowledged that if all landowners join in an amendment it need not have uniform effect (Steve Vogli Co. v. Lane), but found that the La Esperanza Declaration permitted only uniform changes. It rejected the defendants’ argument that releasing the south 223 feet from all covenants (rather than just one) was a meaningful distinction, calling it “a distinction without a difference.”

The court also rejected the defendants’ reliance and estoppel defenses. Because the 1975 amendment was null and void, it never became effective; purchasers who bought after 1975 took subject to a void document, and their purchase did not validate it. The court found Ostlund could not claim detrimental reliance because the amendment, changing restrictions on only part of the subdivision, raised a “red flag” that reasonable investigation would have shown to be invalid. Finally, because the original plat (Book 25, page 1) had been incorporated into the Declaration, Ostlund’s recording of a new plat was itself an attempt to amend the Declaration; without an instrument signed by 90 percent of the lot owners, the new plat was invalid, and the estoppel claim failed because the association learned of the plan only after the revised plat was filed and most funds were spent.

Why It Matters

This decision is a foundational Arizona statement of the uniformity principle in restrictive-covenant and CC&R law: a subset of owners generally cannot amend a subdivision’s covenants to relieve only some lots from restrictions while leaving the rest bound. The rule protects the mutual, reciprocal expectations that owners acquire when they buy into a common plan, and it prevents a controlling owner or developer from carving out favored parcels for uses (here, multi-unit and commercial development) that the recorded scheme did not allow. Even where the governing document sets a supermajority threshold, an amendment that is non-uniform in application can fail regardless of how many owners sign it.

The case also illustrates two practical points that continue to matter for community associations, developers, and buyers. First, a recorded subdivision plat that is incorporated into a declaration cannot be revised unilaterally; changing it requires the same owner approval the declaration demands for any amendment. Second, an instrument that appears in the public record is not necessarily valid: a void amendment never takes effect, later purchasers take subject to its invalidity rather than curing it, and an irregularity that changes restrictions on only part of a subdivision should put a prospective developer on notice to investigate before spending money in reliance on it.

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Robert Jashinsky v. Dorada Estates Community Association, Inc.: HOA Court Case Guide

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Architectural Review & CC&Rs | A.R.S. §§ 12-2102(C), 12-1831 to -1845 | 1 CA-CV 24-0721

In this 2025 unpublished decision, Division One held that an HOA’s broad, “sole and absolute” design-review discretion remains constrained by the implied duty of good faith and fair dealing and the duty to act reasonably, and that whether those duties were breached was a jury question.

Last updated July 1, 2026. Case: Robert Jashinsky v. Dorada Estates Community Association, Inc.; 1 CA-CV 24-0721; CV2022-006735.

Download the ruling PDF

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

Even where a community association’s governing documents grant its design review committee broad, “sole and absolute” discretion, that discretion is constrained by the association’s implied duty of good faith and fair dealing and its duty to treat members fairly and act reasonably in exercising discretionary design-control powers (Restatement (Third) of Property (Servitudes) section 6.13; Tierra Ranchos). Whether the association breached those duties is a question of fact for the jury, and the trial court did not abuse its discretion in awarding equitable relief compelling the association to allow the proposed construction. Affirmed.

Case Participants

Neutral Parties

  • Robert Jashinsky (Appellee)
    Dorada Estates homeowner (bought in 2019) whose backyard casita/pergola proposal was repeatedly denied by the DRC; plaintiff below and prevailing appellee.
  • Dorada Estates Community Association, Inc. (Appellant)
    Homeowners association whose Design Review Committee denied the proposal; defendant below and appellant.
  • Angelika O. Doebler (Counsel)
    Galbut Beabeau, P.C.
    Counsel for Plaintiff/Appellee Robert Jashinsky.
  • Olivier A. Beabeau (Counsel)
    Galbut Beabeau, P.C.
    Counsel for Plaintiff/Appellee Robert Jashinsky.
  • Nicholas C. Nogami (Counsel)
    CHDB Law LLP
    Counsel for Defendant/Appellant Dorada Estates Community Association, Inc.
  • Tessa Knueppel (Counsel)
    CHDB Law LLP
    Counsel for Defendant/Appellant Dorada Estates Community Association, Inc.
  • Cynthia J. Bailey (Judge)
    Presiding Judge, Court of Appeals Division One; authored the memorandum decision.
  • Randall M. Howe (Judge)
    Vice Chief Judge, Court of Appeals Division One; joined the decision.
  • Andrew M. Jacobs (Judge)
    Judge, Court of Appeals Division One; joined the decision.
  • Timothy J. Ryan (Judge)
    Maricopa County Superior Court judge who presided over the trial and entered judgment (below).

What happened and why it matters

Homeowner Robert Jashinsky sued his homeowners’ association, Dorada Estates Community Association, Inc., after its Design Review Committee (DRC) repeatedly denied his proposal to build an 879-square-foot backyard casita with an attached pergola. The community’s recorded Declaration gave the DRC “sole and absolute discretion” over design proposals, but internal board emails suggested the committee was searching for a reason to deny the project and ultimately relied on Design Guidelines adopted after Jashinsky’s submission. A three-day Maricopa County jury trial produced a $52,740 damages award for breach of the covenant of good faith and fair dealing and breach of the association’s duty to act reasonably, and the superior court separately granted equitable and declaratory relief ordering the association to permit the construction. On appeal, Division One affirmed. It held that the homeowner’s testimony about estimated building costs was admissible (not hearsay under State v. Printz); that the court lacked jurisdiction to review the sufficiency of the evidence because the association never moved for a new trial or renewed judgment as a matter of law (A.R.S. section 12-2102(C)); that whether the HOA acted reasonably was a fact question for the jury; that the failure to plead injunctive relief was cured by raising the issue in the joint pretrial statement; and that the equitable remedy was within the trial court’s discretion. This is an unpublished memorandum decision and is not precedential under Ariz. R. Sup. Ct. 111(c).

The Court of Appeals addressed five arguments. First, on the evidentiary challenge, the court reviewed for abuse of discretion and held that Jashinsky’s testimony about the casita’s estimated $200-per-square-foot building cost was not inadmissible hearsay. Applying State v. Printz, 125 Ariz. 300 (1980), the court explained that knowledge of value does not necessarily rest on hearsay; when a witness acquires first-hand knowledge of value through multiple negotiations or consultations rather than a single out-of-court assertion offered for its truth, the resulting estimate is admissible. Because Jashinsky derived his estimate from consultations with an architect and a contractor, the superior court did not abuse its discretion in overruling the hearsay objection.

Second, the court held it lacked jurisdiction to review the sufficiency of the evidence supporting the damages award. Under A.R.S. section 12-2102(C) and Marquette Venture Partners II, L.P. v. Leonesio, an appellant who made a Rule 50(a) motion at the close of evidence must move for a new trial or for renewed judgment as a matter of law to preserve a sufficiency challenge on appeal. Because Dorada Estates did neither, appellate jurisdiction over that issue was absent.

Third, and most significant for HOA law, the court held that whether the association acted reasonably was a factual question reserved for the jury. Even where governing documents afford broad discretion, that discretion is constrained by duties the association owes its members: the implied covenant of good faith and fair dealing (Restatement (Second) of Contracts section 205; Restatement (Third) of Property (Servitudes) section 4.1) and the duty under Restatement (Third) of Property (Servitudes) section 6.13(1)(b), (c) to treat members fairly and act reasonably in exercising discretionary powers, including design-control powers. Arizona adopted this approach in Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195 (App. 2007), and whether an association breached those duties is a question of fact (Maleki; Est. of Reinen). By awarding damages, the jury implicitly found Dorada Estates breached both duties, and the record supported that finding: the jury could have concluded the DRC gave only pretextual reasons and denied the revised request based on Design Guidelines not in effect when Jashinsky submitted it.

Fourth, the court rejected the argument that Jashinsky’s failure to plead injunctive relief barred his equitable recovery. Under Murphy Farrell Development and Carlton v. Emhardt, listing a claim as a material contested issue in the joint pretrial statement effectively amends the complaint; Jashinsky’s estoppel questions in the joint pretrial statement asked for essentially the relief he obtained. Fifth, the court held the equitable remedy was not an abuse of discretion. Whether to decline enforcement of a covenant turns on equitable considerations such as relative hardship, misconduct, the public interest, and the adequacy of other remedies (Swain; Ahwatukee; Loiselle). The court could weigh the association’s misconduct and the inadequacy of damages, because Jashinsky’s ultimate goal was permission to build, not money. The declaratory and equitable-estoppel judgment ordering the association to allow the construction was therefore affirmed, and the court awarded Jashinsky his appellate attorneys’ fees and costs under the Declaration and A.R.S. section 12-341.

This decision is a clear application of the principle that an HOA’s architectural-review discretion, even when the governing documents describe it as “sole and absolute,” is not unlimited. Division One reaffirmed that Arizona associations owe their members an implied duty of good faith and fair dealing and a duty to act reasonably in exercising design-control powers, and that a jury may find those duties breached where the record shows pretextual denials or reliance on guidelines adopted after a member’s application. For boards and design committees, the practical lesson is that broad discretionary language does not immunize a denial that a factfinder could view as arbitrary, unreasonable, or applied retroactively.

The case also illustrates important procedural and remedial points. On the procedural side, it shows that a Rule 50(a) motion alone does not preserve a sufficiency-of-the-evidence challenge for appeal; a party must also move for a new trial or renewed judgment as a matter of law under A.R.S. section 12-2102(C). On the remedial side, it shows that a court may order an association to permit a proposed modification as equitable relief, and that failing to formally plead injunctive relief is not fatal when the issue is raised in the joint pretrial statement. Although unpublished and non-precedential under Ariz. R. Sup. Ct. 111(c), the decision is a useful illustration of how Arizona courts police the outer limits of HOA architectural discretion.

Step-by-step litigation record

Step 2019 Robert Jashinsky purchases a home in the Dorada Estates community, subject to the recorded Declaration (CC&Rs).
Step 2021-04-16 Jashinsky submits his plan for an 879-square-foot backyard casita and attached pergola to the Design Review Committee after obtaining architect drawings and Town of Queen Creek approval.
Step 2021-04-19 DRC chair Byron Applegate emails the board and community manager (“HUGE REAR YARD CASITA REQUEST!”) noting the committee could deny under the current “visually connected” guideline.
Step 2021 Community manager Shana Morton sends Jashinsky a disapproval notice citing the “visually connected to the main building” requirement; DRC member Bill Monaccio emails that the association “may not have a leg to stand on if we get sued.”
Step 2021-05-04 Jashinsky submits a Revised Architectural Request connecting the casita to the house with a travertine walkway.
Step 2021-05-20 The board approves Revised Design Guidelines (max 1,200 sq ft; rear wall may not extend past the home’s original rear wall); Jashinsky is denied again days later based on the updated guidelines.
Step 2021-10 Board members walk the proposed site with Jashinsky; he is denied again, with the association reiterating the casita must be on the side of the home.
Step 2022-05 Jashinsky files suit asserting breach of the covenant of good faith and fair dealing, promissory and equitable estoppel, negligent misrepresentation, and declaratory relief (Maricopa County Superior Court No. CV2022-006735).
After a three-day jury trial and denial of Dorada Estates’ Rule 50(a) motion, the jury awards Jashinsky $52,740; the court later grants equitable/declaratory relief ordering the association to allow the construction.
Step 2025-05-29 The Arizona Court of Appeals, Division One, files its memorandum decision affirming and awarding Jashinsky appellate attorneys’ fees and costs.

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/jashinsky-v-dorada-estates/raw/: 1 PDF. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2025-05-29

Opinion

Type: Decision or judgment

Opinion holding that even where a community association’s governing documents grant its design review committee broad, “sole and absolute” discretion, that discretion is constrained by the association’s implied duty of good faith and fair dealing and its duty to treat members fairly and act reasonably in exercising discretionary design-control powers (Restatement (Third) of Property (Servitudes) section 6.13; Tierra Ranchos).

Download source file
2025-05-29_001_opinion.pdf

FAQ

What was the dispute in Jashinsky v. Dorada Estates about?

A Dorada Estates homeowner, Robert Jashinsky, wanted to build an 879-square-foot casita with an attached pergola in his backyard. The association’s Design Review Committee denied the proposal several times, and Jashinsky sued, claiming the denials breached the association’s duties of good faith and fair dealing and its duty to act reasonably. A jury awarded him $52,740 and the court ordered the association to allow the construction.

Does an HOA’s “sole and absolute discretion” over design allow it to deny anything?

No. The court explained that even when governing documents grant broad, “sole and absolute” discretion, that discretion is constrained by the association’s implied duty of good faith and fair dealing and its duty under the Restatement (Third) of Property (Servitudes) section 6.13 to treat members fairly and act reasonably in exercising design-control powers. Arizona adopted this approach in Tierra Ranchos Homeowners Ass’n v. Kitchukov.

Why did the appeals court refuse to review whether the evidence supported the damages?

Under A.R.S. section 12-2102(C), a party that moves for judgment as a matter of law at the close of evidence must also move for a new trial or a renewed judgment as a matter of law to preserve a sufficiency-of-the-evidence challenge on appeal. Because Dorada Estates did neither, the Court of Appeals lacked jurisdiction to review that issue.

Was the homeowner’s testimony about building costs improper hearsay?

No. The court held that Jashinsky’s estimate of roughly $200 per square foot, based on consultations with an architect and a contractor, was admissible under State v. Printz. Knowledge of value acquired first-hand through such consultations is not hearsay, so the trial court did not abuse its discretion in allowing the testimony.

Could the court order the HOA to allow the project even though the homeowner did not formally plead injunctive relief?

Yes. Under Murphy Farrell Development and Carlton v. Emhardt, listing a claim as a material contested issue in the joint pretrial statement effectively amends the complaint. Jashinsky’s estoppel questions in the joint pretrial statement sought essentially the relief he obtained, so the equitable remedy ordering the association to permit construction was proper and within the trial court’s discretion.

Is this decision binding precedent in Arizona?

No. It is an unpublished memorandum decision of the Arizona Court of Appeals, Division One. Under Arizona Rule of the Supreme Court 111(c) it is not precedential and may be cited only as authorized by rule.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation1 CA-CV 24-0721
Court / tribunalCourt of Appeals
Decision / key dateMay 29, 2025
Judge / panelBailey, Howe, Jacobs
PartiesRobert Jashinsky (Plaintiff/Appellee) v. Dorada Estates Community Association, Inc. (Defendant/Appellant)
Governing law
  • A.R.S. § 12-2102(C)
  • A.R.S. §§ 12-1831 to -1845 (Uniform Declaratory Judgments Act)
  • A.R.S. § 12-341
  • A.R.S. § 12-2101(A)(1)
  • A.R.S. § 12-120.21(A)(1)
Topics
CC&RsArchitectural ReviewGood Faith & Fair DealingAttorney FeesProcedure
Outcome / holding

Even where a community association’s governing documents grant its design review committee broad, “sole and absolute” discretion, that discretion is constrained by the association’s implied duty of good faith and fair dealing and its duty to treat members fairly and act reasonably in exercising discretionary design-control powers (Restatement (Third) of Property (Servitudes) section 6.13; Tierra Ranchos). Whether the association breached those duties is a question of fact for the jury, and the trial court did not abuse its discretion in awarding equitable relief compelling the association to allow the proposed construction. Affirmed.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package1 PDF
Step-by-step docket roadmap10 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

Homeowner Robert Jashinsky sued his homeowners’ association, Dorada Estates Community Association, Inc., after its Design Review Committee (DRC) repeatedly denied his proposal to build an 879-square-foot backyard casita with an attached pergola. The community’s recorded Declaration gave the DRC “sole and absolute discretion” over design proposals, but internal board emails suggested the committee was searching for a reason to deny the project and ultimately relied on Design Guidelines adopted after Jashinsky’s submission. A three-day Maricopa County jury trial produced a $52,740 damages award for breach of the covenant of good faith and fair dealing and breach of the association’s duty to act reasonably, and the superior court separately granted equitable and declaratory relief ordering the association to permit the construction. On appeal, Division One affirmed. It held that the homeowner’s testimony about estimated building costs was admissible (not hearsay under State v. Printz); that the court lacked jurisdiction to review the sufficiency of the evidence because the association never moved for a new trial or renewed judgment as a matter of law (A.R.S. section 12-2102(C)); that whether the HOA acted reasonably was a fact question for the jury; that the failure to plead injunctive relief was cured by raising the issue in the joint pretrial statement; and that the equitable remedy was within the trial court’s discretion. This is an unpublished memorandum decision and is not precedential under Ariz. R. Sup. Ct. 111(c).

Key Issues & Findings

The Court of Appeals addressed five arguments. First, on the evidentiary challenge, the court reviewed for abuse of discretion and held that Jashinsky’s testimony about the casita’s estimated $200-per-square-foot building cost was not inadmissible hearsay. Applying State v. Printz, 125 Ariz. 300 (1980), the court explained that knowledge of value does not necessarily rest on hearsay; when a witness acquires first-hand knowledge of value through multiple negotiations or consultations rather than a single out-of-court assertion offered for its truth, the resulting estimate is admissible. Because Jashinsky derived his estimate from consultations with an architect and a contractor, the superior court did not abuse its discretion in overruling the hearsay objection.

Second, the court held it lacked jurisdiction to review the sufficiency of the evidence supporting the damages award. Under A.R.S. section 12-2102(C) and Marquette Venture Partners II, L.P. v. Leonesio, an appellant who made a Rule 50(a) motion at the close of evidence must move for a new trial or for renewed judgment as a matter of law to preserve a sufficiency challenge on appeal. Because Dorada Estates did neither, appellate jurisdiction over that issue was absent.

Third, and most significant for HOA law, the court held that whether the association acted reasonably was a factual question reserved for the jury. Even where governing documents afford broad discretion, that discretion is constrained by duties the association owes its members: the implied covenant of good faith and fair dealing (Restatement (Second) of Contracts section 205; Restatement (Third) of Property (Servitudes) section 4.1) and the duty under Restatement (Third) of Property (Servitudes) section 6.13(1)(b), (c) to treat members fairly and act reasonably in exercising discretionary powers, including design-control powers. Arizona adopted this approach in Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195 (App. 2007), and whether an association breached those duties is a question of fact (Maleki; Est. of Reinen). By awarding damages, the jury implicitly found Dorada Estates breached both duties, and the record supported that finding: the jury could have concluded the DRC gave only pretextual reasons and denied the revised request based on Design Guidelines not in effect when Jashinsky submitted it.

Fourth, the court rejected the argument that Jashinsky’s failure to plead injunctive relief barred his equitable recovery. Under Murphy Farrell Development and Carlton v. Emhardt, listing a claim as a material contested issue in the joint pretrial statement effectively amends the complaint; Jashinsky’s estoppel questions in the joint pretrial statement asked for essentially the relief he obtained. Fifth, the court held the equitable remedy was not an abuse of discretion. Whether to decline enforcement of a covenant turns on equitable considerations such as relative hardship, misconduct, the public interest, and the adequacy of other remedies (Swain; Ahwatukee; Loiselle). The court could weigh the association’s misconduct and the inadequacy of damages, because Jashinsky’s ultimate goal was permission to build, not money. The declaratory and equitable-estoppel judgment ordering the association to allow the construction was therefore affirmed, and the court awarded Jashinsky his appellate attorneys’ fees and costs under the Declaration and A.R.S. section 12-341.

Why It Matters

This decision is a clear application of the principle that an HOA’s architectural-review discretion, even when the governing documents describe it as “sole and absolute,” is not unlimited. Division One reaffirmed that Arizona associations owe their members an implied duty of good faith and fair dealing and a duty to act reasonably in exercising design-control powers, and that a jury may find those duties breached where the record shows pretextual denials or reliance on guidelines adopted after a member’s application. For boards and design committees, the practical lesson is that broad discretionary language does not immunize a denial that a factfinder could view as arbitrary, unreasonable, or applied retroactively.

The case also illustrates important procedural and remedial points. On the procedural side, it shows that a Rule 50(a) motion alone does not preserve a sufficiency-of-the-evidence challenge for appeal; a party must also move for a new trial or renewed judgment as a matter of law under A.R.S. section 12-2102(C). On the remedial side, it shows that a court may order an association to permit a proposed modification as equitable relief, and that failing to formally plead injunctive relief is not fatal when the issue is raised in the joint pretrial statement. Although unpublished and non-precedential under Ariz. R. Sup. Ct. 111(c), the decision is a useful illustration of how Arizona courts police the outer limits of HOA architectural discretion.

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Greenberg v. McGowan: HOA Court Case Guide

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Arizona Court of Appeals – Division One (Memorandum Decision)

A Yavapai County covenant dispute over whether a neighbor’s structure was a barn or garage, and whether donkeys were allowed, ends with the Court of Appeals affirming summary judgment and a prevailing-party fee award.

Last updated July 1, 2026. Case: Greenberg v. McGowan; 1 CA-CV 19-0061; Yavapai County Superior Court No. P1300CV201600734 (Hon. David L. Mackey).

Download the ruling PDF

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

The Court of Appeals affirmed summary judgment for the defendants, holding that Greenberg showed no error in the interpretation and enforcement of the recorded CC&Rs — the covenants did not prohibit donkeys and the structure’s undisputed current use was as a permitted barn — that her contract claim failed for lack of any disclosed, computable damages, and that the superior court did not abuse its discretion in denying leave to amend or reconsideration or in awarding attorneys’ fees under the CC&Rs and A.R.S. § 12-341.01.

Case Participants

Neutral Parties

  • Linda H. Greenberg (Party)
    Plaintiff/Appellant; homeowner in Inscription Canyon Ranch who sued over the neighboring structure and donkeys and alleged an open-meetings violation.
  • John McGowan (Party)
    Defendant/Appellee; neighboring homeowner who built the disputed structure and kept donkeys.
  • Eileen McGowan (Party)
    Defendant/Appellee; neighboring homeowner (wife of John McGowan).
  • Inscription Canyon Ranch Architectural Review Committee (ICR ARC) (Party)
    Defendant/Appellee; the community’s architectural review committee that approved the McGowans’ construction.
  • ICR Water Users Association, Inc. (Party)
    Defendant/Appellee; Arizona corporation (association-side entity) named in the suit.
  • William J. O’Leary (Counsel)
    O’Leary Eaton, P.L.L.C.
    Counsel for Plaintiff/Appellant Linda Greenberg (Prescott).
  • Michael P. Thieme (Counsel)
    O’Leary Eaton, P.L.L.C.
    Counsel for Plaintiff/Appellant Linda Greenberg (Prescott).
  • Andrew J. Becke (Counsel)
    Murphy, Schmitt, Hathaway, Wilson & Becke, P.L.L.C.
    Co-Counsel for Defendants/Appellees John and Eileen McGowan (Prescott).
  • Alex B. Vakula (Counsel)
    The Vakula Law Firm, PLC
    Co-Counsel for Defendants/Appellees John and Eileen McGowan (Prescott).
  • Douglas J. Suits (Counsel)
    Suits Law Firm, PLC
    Counsel for Defendant/Appellee ICR Water Users Association, Inc. (Prescott).
  • Samuel A. Thumma (Judge)
    Presiding Judge; authored the memorandum decision.
  • Jennifer M. Perkins (Judge)
    Judge; joined the decision.
  • Paul J. McMurdie (Judge)
    Judge; joined the decision.

What happened and why it matters

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

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

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

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

Video overview of the ruling

An AI-generated video overview of Greenberg v. McGowan (1 CA-CV 19-0061). Greenberg showed no error in the interpretation and enforcement of the recorded CC&Rs — the covenants did not… 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 Greenberg v. McGowan. Generated from the case filings; verify against the linked ruling below.

Audio overview generated with Google NotebookLM from the case’s court filings.

Step-by-step litigation record

Step 2016-05 After ICR ARC approval, the McGowans begin constructing the disputed structure.
Step 2016-10 With the structure nearly complete, Greenberg sues the McGowans, ICR ARC, and ICR WUA to enjoin further construction; the parties stipulate to a preliminary injunction through May 2017.
Step 2017-05 After the defendants’ motion to dismiss is denied, the parties stipulate to extend and modify the injunction through November 2017, allowing ‘equine animals’ permitted under the CC&Rs; the McGowans begin keeping two foster donkeys (a foal arrives later).
Step 2017-10 Greenberg files her second amended (operative) complaint alleging breach of the CC&Rs and a violation of A.R.S. § 33-1804.
Step 2018-03 The defendants move for summary judgment; Greenberg moves for partial summary judgment on her contract and injunctive-relief claims.
Step 2018-05 The superior court grants the defendants’ summary-judgment motions and denies Greenberg’s; Greenberg then moves to amend a third time and for reconsideration, which are denied.
Step 2018-06 Greenberg’s late-filed motion for leave to file a third amended complaint is at issue; the case had been pending about 20 months with discovery closed.
Step 2019-01 Greenberg files her appeal (No. 1 CA-CV 19-0061) after entry of final judgment awarding the defendants fees and costs.
Step 2019-12-24 Division One issues a memorandum decision affirming the judgment and awarding the defendants their fees and costs on appeal under the CC&Rs.

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/greenberg-v-mcgowan/raw/: 1 PDF. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2019-12-24

Opinion

Type: Decision or judgment

Opinion holding that the Court of Appeals affirmed summary judgment for the defendants, holding that Greenberg showed no error in the interpretation and enforcement of the recorded CC&Rs — the covenants did not prohibit donkeys and the structure’s undisputed current use was as a permitted barn — that her contract claim failed for lack of any disclosed, computable damages, and that the superior court did not abuse its discretion in denying leave to amend or reconsideration or in awarding attorneys’ fees under the CC&Rs and A.R.S. § 12-341.01.

Download source file
2019-12-24_001_opinion.pdf

FAQ

What was Greenberg v. McGowan about?

It was a dispute between neighbors in Inscription Canyon Ranch, a Yavapai County residential community governed by recorded CC&Rs. Linda Greenberg sued the McGowans, the community’s Architectural Review Committee (ICR ARC), and the ICR Water Users Association, arguing the McGowans’ new structure was a prohibited garage rather than a permitted barn and that the CC&Rs did not allow the McGowans to keep donkeys. She alleged breach of the CC&Rs and a violation of the HOA open-meetings statute and sought declaratory and injunctive relief and damages.

Did the CC&Rs prohibit keeping donkeys?

No. The Court of Appeals held that Paragraph 10 of the CC&Rs did not create an exclusive list of permitted animals. It prohibited poultry, fowl, and swine and expressly allowed horses and 4-H animal projects, but it never mentioned donkeys and contained no catch-all barring unlisted animals. Because the covenant did not describe a class of prohibited animals, the court would not read it to ban donkeys, especially since other provisions referenced barns, livestock, and a bridle path for horses, mules, and donkeys.

Was the structure a barn or a garage?

The court did not have to decide the hypothetical. Greenberg conceded the structure had, to date, been used only as a barn — the use the ARC approved. Her concern that it might later be used as a garage presented an unripe, speculative dispute, and Arizona courts do not issue advisory opinions about actions that may never occur. Summary judgment on that claim was therefore proper.

Why did Greenberg’s breach-of-contract claim fail?

Independent of the merits, her contract claim failed because she never disclosed a computation or measure of her damages, as Arizona Rule of Civil Procedure 26.1(a)(7) requires. Simply stating that she would testify at trial did not satisfy the disclosure rules and could not create a genuine issue of material fact to defeat summary judgment under Rule 56(e).

Why were the defendants awarded attorneys’ fees?

The CC&Rs contain a prevailing-party clause entitling the winning side in an enforcement action to recover reasonable attorneys’ fees and costs, and A.R.S. § 12-341.01 also applies to contract disputes. Because the defendants prevailed and their fee affidavits complied with Rule 54(g)(4), the trial court’s fee award — including to the ARC — was proper, and Division One also awarded the defendants their fees and costs on appeal under the CC&Rs.

Is this decision binding precedent in Arizona?

No. Greenberg v. McGowan 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. It is useful as an illustration of how Arizona courts interpret CC&Rs and handle summary judgment, amendment, and fee issues, but it does not establish binding law.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation1 CA-CV 19-0061
Court / tribunalCourt of Appeals
Decision / key dateDecember 24, 2019
Judge / panelSamuel A. Thumma (Presiding Judge, author), Jennifer M. Perkins, Paul J. McMurdie
PartiesA homeowner sued her neighbors, the community’s Architectural Review Committee, and its water users association over a structure and donkeys, alleging CC&R breaches and an open-meetings violation; the trial court and Court of Appeals ruled for the defendants.
Governing law
  • A.R.S. § 33-1804 (planned communities; open meetings; homeowners’ associations)
  • A.R.S. § 12-341.01 (attorneys’ fees in contract actions)
  • A.R.S. § 12-342 (costs on appeal)
  • A.R.S. § 3-1201 (livestock and equine definitions)
  • A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1) (appellate jurisdiction)
  • Ariz. R. Civ. P. 56(a) (summary judgment standard)
  • Ariz. R. Civ. P. 26.1(a)(7) (disclosure of damages computation)
  • Ariz. R. Civ. P. 15(a) (leave to amend)
  • Ariz. R. Civ. P. 54(g)(4) (fee-affidavit requirement)
  • Ariz. R. Civ. P. 7.1(e) (motions for reconsideration)
  • Ariz. R. Sup. Ct. 111(c) (non-precedential decisions)
Topics
CC&RsArchitectural ReviewAttorney FeesProcedureOpen Meetings
Outcome / holding

The Court of Appeals affirmed summary judgment for the defendants, holding that Greenberg showed no error in the interpretation and enforcement of the recorded CC&Rs — the covenants did not prohibit donkeys and the structure’s undisputed current use was as a permitted barn — that her contract claim failed for lack of any disclosed, computable damages, and that the superior court did not abuse its discretion in denying leave to amend or reconsideration or in awarding attorneys’ fees under the CC&Rs and A.R.S. § 12-341.01.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package1 PDF
Step-by-step docket roadmap9 roadmap entries
Video overviewGreenberg v. McGowan
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

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

Key Issues & Findings

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

Why It Matters

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

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

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Glawe v. Carpenter, Hazlewood, Delgado & Bolen PLC: HOA Court Case Guide

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Ninth Circuit (Unpublished) • FDCPA & HOA Assessments

An Arizona homeowner’s FDCPA suit against his HOA’s collection law firm turned on a single question: is a rental-property assessment a consumer debt or a commercial one?

Last updated July 1, 2026. Case: Glawe v. Carpenter, Hazlewood, Delgado & Bolen PLC; 9th Cir. No. 19-17090 (memorandum disposition); D.C. No. 2:18-cv-01282-JAS (D. Ariz.).

Download the ruling PDF

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

The relevant “transaction” under the FDCPA’s definition of “debt” is the purchase of the property that gave rise to the HOA assessment obligation, and whether that obligation is a consumer debt turns on the primary purpose of the purchase measured when the obligation was incurred—not on the owner’s later use of the property as a rental. Because an obligation associated with a rental property is not automatically commercial and a genuine factual dispute existed about the Glawes’ purpose in acquiring the properties, the district court erred in granting summary judgment; the Ninth Circuit reversed and remanded.

Case Participants

Neutral Parties

  • Curtis G. Glawe (Party)
    Plaintiff-Appellant; homeowner and Sundance HOA member who brought the FDCPA claim. Appeared pro se on appeal.
  • Carpenter, Hazlewood, Delgado & Bolen PLC (Party)
    Defendant-Appellee; the law firm that served as collection counsel for the Sundance Residential Homeowners Association. (Spelled ‘Carpenter, Hazelwood, Delgado, & Boren PLC’ in the body of the memorandum.)
  • Javier Delgado (Party)
    Carpenter, Hazlewood, Delgado & Bolen PLC
    Defendant-Appellee; individual attorney named as a defendant.
  • Mark Holmgreen (Party)
    Carpenter, Hazlewood, Delgado & Bolen PLC
    Defendant-Appellee; individual attorney named as a defendant.
  • Mark K. Sahl (Party)
    Carpenter, Hazlewood, Delgado & Bolen PLC
    Defendant-Appellee; individual attorney named as a defendant.
  • Gregory A. Stein (Party)
    Carpenter, Hazlewood, Delgado & Bolen PLC
    Defendant-Appellee; individual attorney named as a defendant.
  • Curtis G. Glawe (Counsel)
    Pro Se
    Appeared pro se (self-represented) for Plaintiff-Appellant.
  • Donald Wilson, Jr. (Counsel)
    Broening Oberg Woods & Wilson PC
    Counsel for Defendants-Appellees.
  • Alicyn Marie Freeman (Counsel)
    Broening Oberg Woods & Wilson PC
    Counsel for Defendants-Appellees.
  • Kim McLane Wardlaw (Judge)
    Ninth Circuit Judge on the panel.
  • Ronald M. Gould (Judge)
    Ninth Circuit Judge on the panel.
  • James Donato (Judge)
    U.S. District Judge for the Northern District of California, sitting by designation.
  • James Alan Soto (Judge)
    U.S. District Judge who presided over the case below and granted summary judgment.

What happened and why it matters

In 2009, Iowa residents Curtis and Lorri Glawe purchased a home in Buckeye, Arizona (the “Mohave Property”) and a second lot in the same subdivision (the “228th Lane Property”). Ownership made them members of the Sundance Residential Homeowners Association, Inc. and bound them to the community’s CC&Rs and assessment obligations. The Glawes never lived in the homes and consistently rented them to tenants. After they fell behind on assessments, the HOA—through its collection law firm, Carpenter, Hazlewood, Delgado & Bolen PLC—twice sued them in Arizona state court for unpaid assessments and late fees and was awarded court costs and attorneys’ fees. Glawe then sued the firm and several of its attorneys in federal court under the Fair Debt Collection Practices Act (FDCPA). The district court granted summary judgment for the firm, reasoning that because the property was a rental, the assessment obligation was commercial rather than consumer in nature and therefore not a “debt” covered by the FDCPA. On appeal, the Ninth Circuit reversed. It held that the relevant “transaction” was the original 2009 purchase of the property, and that the purpose of that purchase—measured when the obligation was incurred—controls, not the owner’s later rental use. Because an obligation tied to a rental property is not automatically commercial and a genuine factual dispute existed over the Glawes’ purpose in buying the properties, the panel remanded for the district court to determine the true purpose of the acquisition. The decision is an unpublished, non-precedential memorandum.

The panel began with the FDCPA’s threshold limitation: the statute reaches only consumer—as opposed to commercial—debt, citing Bloom v. I.C. Systems, Inc., 972 F.2d 1067, 1068 (9th Cir. 1992). The FDCPA defines “debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5). The court read this to require two things: (1) an obligation arising out of a transaction, and (2) that the subject of the transaction be primarily for personal, family, or household purposes.

The dispositive question was how to identify the “transaction.” The appellees urged the court to focus on the assessments and attorneys’ fees incurred after the Glawes bought the home and while it was being used as a rental. The panel rejected that framing. It held that the “transaction” at issue is the purchase of the Mohave Property itself. The Glawes bought the property in 2009 and were, at that moment, subject to the HOA’s CC&Rs, which required them to pay assessments. Because the appellees’ efforts to collect the allegedly late assessments, late fees, court costs, and attorneys’ fees are what produced the FDCPA claim, the underlying obligation “ar[ose] out of” the purchase of the property under a plain reading of the statute.

Having fixed the transaction as the purchase, the court framed the real inquiry as whether that purchase was primarily consumer or commercial in nature, and it emphasized timing: courts “determine the debtor’s purpose as of the time the debt was incurred,” quoting In re Cherrett, 873 F.3d 1060, 1067 (9th Cir. 2017). The district court had erred by concluding categorically that an obligation associated with a rental property cannot be primarily consumer in nature. To decide the purpose question, a court must “examine the transaction as a whole, paying particular attention to the purpose for which the credit was extended,” quoting Slenk v. Transworld Systems, Inc., 236 F.3d 1072, 1075 (9th Cir. 2001). That determination can be made as a matter of law, but a genuine dispute of fact relevant to the inquiry can preclude summary judgment. Here, the Glawes’ affidavits and deposition testimony—that they initially intended to use the home as a future retirement residence and only later decided to rent—created such a dispute. The panel therefore reversed and remanded for the district court to make a factual determination of the true purpose of the Glawes’ acquisition of both the Mohave Property and the 228th Lane Property, using whatever procedures it deemed appropriate. Because the reversal resolved the appeal, the panel did not reach Glawe’s challenges to the denial of his motion to amend or his motion for reconsideration.

For Arizona homeowners and community associations, this memorandum illustrates a recurring dividing line in assessment-collection disputes: whether the FDCPA even applies to an HOA’s efforts to collect unpaid dues. The FDCPA governs only “consumer” debt, and the Ninth Circuit’s analysis makes clear that the character of an HOA assessment obligation is judged by the primary purpose of the original property purchase, measured when the obligation was incurred—not by how the owner later uses the home. An owner who buys a residence for personal or family use does not necessarily lose FDCPA protection simply by later renting it out, and a court cannot treat every rental-property assessment as categorically commercial. That has practical stakes for both sides: if the debt is consumer in nature, the collecting law firm must comply with the FDCPA’s disclosure and conduct rules; if it is commercial, those federal protections do not apply.

The decision also underscores that the consumer-versus-commercial question is fact-intensive and can defeat summary judgment. Owner intent at the time of purchase—documented through affidavits, deposition testimony, and the surrounding circumstances of the acquisition—can create a genuine dispute that a court must resolve on a full record. Because the disposition is unpublished and non-precedential under Ninth Circuit Rule 36-3, it does not bind future panels, but it is a useful window into how the court frames the “transaction” and “primary purpose” elements when HOA assessment debt intersects with federal debt-collection law. This page is educational and neutral; it is not legal advice, and anyone facing an assessment or collection dispute should consult a qualified Arizona attorney about their specific facts.

Video overview of the ruling

An AI-generated video overview of Glawe v. Carpenter, Hazlewood, Delgado & Bolen PLC (9th Cir. No. 19-17090 (memorandum disposition)). FDCPA debt status turned on the property purchase that created the HOA assessment obligation. 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 Glawe v. Carpenter, Hazlewood, Delgado & Bolen PLC. Generated from the case filings; verify against the linked ruling below.

Audio overview generated with Google NotebookLM from the case’s court filings.

Step-by-step litigation record

Step 2009 Curtis and Lorri Glawe, Iowa residents, purchase the Mohave Property in Buckeye, Arizona, and later a second lot (the 228th Lane Property) in the same Sundance Residential development, becoming HOA members bound by the CC&Rs.
Step After 2009 The Glawes rent out the properties to tenants and fall behind on HOA assessments; the Sundance HOA, through Carpenter, Hazlewood, Delgado & Bolen PLC, twice sues them in Arizona state court for unpaid assessments, late fees, court costs, and attorneys’ fees.
Step 2018 Glawe files an FDCPA action against the collection law firm and individual attorneys in the U.S. District Court for the District of Arizona (No. 2:18-cv-01282-JAS).
Step 2019 The district court grants summary judgment for the defendants, holding the assessment obligation is commercial (not consumer) and thus not a ‘debt’ under the FDCPA; Glawe appeals (9th Cir. No. 19-17090).
Step 2021-05-06 The Ninth Circuit panel submits the case for decision without oral argument at Pasadena, California.
Step 2021-06-08 The Ninth Circuit issues an unpublished memorandum reversing the judgment and remanding for the district court to determine the true purpose of the Glawes’ acquisition of both properties.

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/glawe-v-carpenter-hazlewood/raw/: 1 PDF. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2021-06-08

Opinion

Type: Decision or judgment

Opinion holding that the relevant “transaction” under the FDCPA’s definition of “debt” is the purchase of the property that gave rise to the HOA assessment obligation, and whether that obligation is a consumer debt turns on the primary purpose of the purchase measured when the obligation was incurred—not on the owner’s later use of the property as a rental.

Download source file
2021-06-08_001_opinion.pdf

FAQ

What was Glawe v. Carpenter, Hazlewood, Delgado & Bolen PLC about?

It was a Fair Debt Collection Practices Act (FDCPA) lawsuit brought by an Arizona homeowner, Curtis Glawe, against the law firm that acted as collection counsel for his community association, the Sundance Residential Homeowners Association. After the HOA twice sued the Glawes in state court for unpaid assessments, late fees, court costs, and attorneys’ fees, Glawe sued the firm in federal court, claiming its collection efforts violated the FDCPA. The central legal question was whether the HOA assessment obligation qualified as a consumer ‘debt’ that the FDCPA protects.

What did the Ninth Circuit decide?

The Ninth Circuit reversed the district court’s grant of summary judgment for the law firm and remanded the case. It held that the relevant ‘transaction’ for the FDCPA analysis is the original purchase of the property, and that whether the assessment obligation is a consumer or commercial debt depends on the primary purpose of that purchase—measured when the obligation was incurred—not on how the owner later used the property. The court directed the district court to make a factual finding about the true purpose of the Glawes’ acquisition of both properties.

Does renting out a home automatically make HOA dues a commercial debt?

No. The court expressly rejected the idea that an obligation associated with a rental property cannot be consumer in nature. The district court had erred by treating the rental use as automatically making the debt commercial. Instead, a court must examine the transaction as a whole and focus on the purpose for which the property was acquired at the time the obligation arose. An owner who bought a home for personal or family use does not necessarily lose FDCPA protection just by later renting it out.

Why did the timing of the ‘debt’ matter?

The FDCPA defines a consumer debt by reference to a transaction whose subject is ‘primarily for personal, family, or household purposes.’ The Ninth Circuit, quoting In re Cherrett, explained that courts determine the debtor’s purpose ‘as of the time the debt was incurred.’ Because the Glawes’ assessment obligation arose out of their 2009 purchase of the property, the relevant question was their purpose at that time—here complicated by affidavits stating they initially planned to retire in the home and only later chose to rent it out.

Is this decision binding precedent in Arizona?

No. The disposition is an unpublished memorandum marked ‘NOT FOR PUBLICATION,’ and under Ninth Circuit Rule 36-3 it is not precedent except in limited circumstances. It does not bind future panels or district courts as controlling authority. It can still be informative as an illustration of how the Ninth Circuit frames the consumer-versus-commercial debt question when HOA assessments intersect with the FDCPA, but it should not be treated as settled law.

What happens after a reversal and remand like this?

A reversal and remand sends the case back to the district court for further proceedings consistent with the appellate ruling. Here, the Ninth Circuit did not decide who wins; it instructed the district court to make a factual determination of the true purpose of the Glawes’ acquisition of the Mohave Property and the 228th Lane Property, using whatever procedures the court finds appropriate. Depending on that finding, the FDCPA claim may proceed or be resolved. This summary is educational only and is not legal advice.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation9th Cir. No. 19-17090 (memorandum disposition)
Court / tribunalFederal Court
Decision / key dateJune 8, 2021
Judge / panelKim McLane Wardlaw (Circuit Judge), Ronald M. Gould (Circuit Judge), James Donato (U.S. District Judge, N.D. Cal., sitting by designation)
PartiesCurtis G. Glawe (pro se homeowner and HOA member) v. Carpenter, Hazlewood, Delgado & Bolen PLC and individual attorneys Javier Delgado, Mark Holmgreen, Mark K. Sahl, and Gregory A. Stein (collection counsel for the Sundance Residential Homeowners Association).
Governing law
  • 15 U.S.C. § 1692a(5) (FDCPA definition of ‘debt’)
  • 15 U.S.C. § 1692 et seq. (Fair Debt Collection Practices Act)
  • 28 U.S.C. § 1291 (courts of appeals jurisdiction over final decisions)
Topics
FDCPAAssessmentsCC&RsAttorney FeesProcedure
Outcome / holding

The relevant “transaction” under the FDCPA’s definition of “debt” is the purchase of the property that gave rise to the HOA assessment obligation, and whether that obligation is a consumer debt turns on the primary purpose of the purchase measured when the obligation was incurred—not on the owner’s later use of the property as a rental. Because an obligation associated with a rental property is not automatically commercial and a genuine factual dispute existed about the Glawes’ purpose in acquiring the properties, the district court erred in granting summary judgment; the Ninth Circuit reversed and remanded.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package1 PDF
Step-by-step docket roadmap6 roadmap entries
Video overviewGlawe v. Carpenter, Hazlewood, Delgado & Bolen PLC
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

In 2009, Iowa residents Curtis and Lorri Glawe purchased a home in Buckeye, Arizona (the “Mohave Property”) and a second lot in the same subdivision (the “228th Lane Property”). Ownership made them members of the Sundance Residential Homeowners Association, Inc. and bound them to the community’s CC&Rs and assessment obligations. The Glawes never lived in the homes and consistently rented them to tenants. After they fell behind on assessments, the HOA—through its collection law firm, Carpenter, Hazlewood, Delgado & Bolen PLC—twice sued them in Arizona state court for unpaid assessments and late fees and was awarded court costs and attorneys’ fees. Glawe then sued the firm and several of its attorneys in federal court under the Fair Debt Collection Practices Act (FDCPA). The district court granted summary judgment for the firm, reasoning that because the property was a rental, the assessment obligation was commercial rather than consumer in nature and therefore not a “debt” covered by the FDCPA. On appeal, the Ninth Circuit reversed. It held that the relevant “transaction” was the original 2009 purchase of the property, and that the purpose of that purchase—measured when the obligation was incurred—controls, not the owner’s later rental use. Because an obligation tied to a rental property is not automatically commercial and a genuine factual dispute existed over the Glawes’ purpose in buying the properties, the panel remanded for the district court to determine the true purpose of the acquisition. The decision is an unpublished, non-precedential memorandum.

Key Issues & Findings

The panel began with the FDCPA’s threshold limitation: the statute reaches only consumer—as opposed to commercial—debt, citing Bloom v. I.C. Systems, Inc., 972 F.2d 1067, 1068 (9th Cir. 1992). The FDCPA defines “debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” 15 U.S.C. § 1692a(5). The court read this to require two things: (1) an obligation arising out of a transaction, and (2) that the subject of the transaction be primarily for personal, family, or household purposes.

The dispositive question was how to identify the “transaction.” The appellees urged the court to focus on the assessments and attorneys’ fees incurred after the Glawes bought the home and while it was being used as a rental. The panel rejected that framing. It held that the “transaction” at issue is the purchase of the Mohave Property itself. The Glawes bought the property in 2009 and were, at that moment, subject to the HOA’s CC&Rs, which required them to pay assessments. Because the appellees’ efforts to collect the allegedly late assessments, late fees, court costs, and attorneys’ fees are what produced the FDCPA claim, the underlying obligation “ar[ose] out of” the purchase of the property under a plain reading of the statute.

Having fixed the transaction as the purchase, the court framed the real inquiry as whether that purchase was primarily consumer or commercial in nature, and it emphasized timing: courts “determine the debtor’s purpose as of the time the debt was incurred,” quoting In re Cherrett, 873 F.3d 1060, 1067 (9th Cir. 2017). The district court had erred by concluding categorically that an obligation associated with a rental property cannot be primarily consumer in nature. To decide the purpose question, a court must “examine the transaction as a whole, paying particular attention to the purpose for which the credit was extended,” quoting Slenk v. Transworld Systems, Inc., 236 F.3d 1072, 1075 (9th Cir. 2001). That determination can be made as a matter of law, but a genuine dispute of fact relevant to the inquiry can preclude summary judgment. Here, the Glawes’ affidavits and deposition testimony—that they initially intended to use the home as a future retirement residence and only later decided to rent—created such a dispute. The panel therefore reversed and remanded for the district court to make a factual determination of the true purpose of the Glawes’ acquisition of both the Mohave Property and the 228th Lane Property, using whatever procedures it deemed appropriate. Because the reversal resolved the appeal, the panel did not reach Glawe’s challenges to the denial of his motion to amend or his motion for reconsideration.

Why It Matters

For Arizona homeowners and community associations, this memorandum illustrates a recurring dividing line in assessment-collection disputes: whether the FDCPA even applies to an HOA’s efforts to collect unpaid dues. The FDCPA governs only “consumer” debt, and the Ninth Circuit’s analysis makes clear that the character of an HOA assessment obligation is judged by the primary purpose of the original property purchase, measured when the obligation was incurred—not by how the owner later uses the home. An owner who buys a residence for personal or family use does not necessarily lose FDCPA protection simply by later renting it out, and a court cannot treat every rental-property assessment as categorically commercial. That has practical stakes for both sides: if the debt is consumer in nature, the collecting law firm must comply with the FDCPA’s disclosure and conduct rules; if it is commercial, those federal protections do not apply.

The decision also underscores that the consumer-versus-commercial question is fact-intensive and can defeat summary judgment. Owner intent at the time of purchase—documented through affidavits, deposition testimony, and the surrounding circumstances of the acquisition—can create a genuine dispute that a court must resolve on a full record. Because the disposition is unpublished and non-precedential under Ninth Circuit Rule 36-3, it does not bind future panels, but it is a useful window into how the court frames the “transaction” and “primary purpose” elements when HOA assessment debt intersects with federal debt-collection law. This page is educational and neutral; it is not legal advice, and anyone facing an assessment or collection dispute should consult a qualified Arizona attorney about their specific facts.

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Cropley v. Recreation Centers of Sun City, Inc.: HOA Court Case Guide

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Assessments & CC&Rs | A.R.S. §§ 33-440, 12-341.01 | 1 CA-CV 10-0034

How nearly thirty years of acquiescence locked in a 1979 lake-maintenance assessment formula, and why a recorded 1969 Declaration burdened a contiguous condominium tract.

Last updated July 1, 2026. Case: Cropley v. Recreation Centers of Sun City, Inc.; 1 CA-CV 10-0034; CV2009-004740.

Download the ruling PDF

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

Affirmed. Recreation Centers waived any right to challenge the validity or interpretation of the 1979 Agreement through nearly thirty years of knowing acquiescence, and the agreement — enforceable as a settlement of a bona fide dispute — prospectively governs the allocation of Viewpoint Lake maintenance assessments for the same duration as the underlying 1969 Declaration and is not barred by A.R.S. section 33-440. The recorded 1969 Declaration of Restrictions runs with and burdens El Dorado’s contiguous condominium land because it gave constructive notice to anyone tracing title, and the class plaintiffs are awarded their reasonable appellate attorneys’ fees under A.R.S. section 12-341.01.

Case Participants

Neutral Parties

  • Beryl Cropley (Plaintiff)
    Lead named plaintiff/appellee; one of six Viewpoint Lake homeowners (with Marcia File, Gerald A. Klaus, Charles Lester, Nadine E. Meis, and Nancy Q. Shovlain) who brought the class action.
  • Viewpoint Lake Homeowners (certified class) (Plaintiff)
    Certified class of the owners of the eighty-one lakefront properties around Viewpoint Lake seeking to enforce the 1979 assessment agreement.
  • Recreation Centers of Sun City, Inc. (Defendant)
    Arizona non-profit corporation that owns Viewpoint Lake and nearby golf courses; defendant/appellant against the class and defendant/appellee as to El Dorado’s intervention.
  • El Dorado of Sun City Condominiums Homeowners Association (Intervenor)
    Arizona nonprofit condominium association that intervened, arguing the 1969 Declaration did not burden its Tract C property; intervening plaintiff/appellant.
  • Jeffrey A. Bernick (Counsel)
    Ridenour, Hienton & Lewis, P.L.L.C.
    Counsel for defendant/appellant Recreation Centers of Sun City, Inc. (Phoenix).
  • Scott S. Wakefield (Counsel)
    Ridenour, Hienton & Lewis, P.L.L.C.
    Counsel for defendant/appellant Recreation Centers of Sun City, Inc. (Phoenix).
  • Burton T. Cohen (Counsel)
    Burton T. Cohen, P.C.
    Counsel for intervening plaintiff/appellant El Dorado of Sun City Condominiums Homeowners Association (Scottsdale).
  • Nancy A. Mangone (Counsel)
    The Mangone Law Firm, P.C.
    Counsel for the plaintiffs/appellees, the Viewpoint Lake homeowners class (Phoenix).
  • Sheldon H. Weisberg (Judge)
    Court of Appeals judge; authored the memorandum decision.
  • Philip Hall (Judge)
    Presiding Judge on the Court of Appeals panel; concurred.
  • Diane M. Johnsen (Judge)
    Judge on the Court of Appeals panel; concurred.
  • Edward O. Burke (Judge)
    Maricopa County Superior Court judge who entered the summary judgments (No. CV2009-004740).

What happened and why it matters

Viewpoint Lake sits in Sun City, Arizona, ringed by eighty-one single-family lots, the El Dorado of Sun City Condominiums, a recreation center, and a medical facility. A 1969 recorded Declaration of Restrictions made lake maintenance the responsibility of the surrounding lakefront owners but never specified how those costs should be split. After Recreation Centers of Sun City, Inc. took title to the lake and nearby golf courses in 1975 and agreed to pay half of maintenance, disputes arose over the rest. In 1979, Del Webb, Recreation Centers, and the Viewpoint Lake Homeowners Association signed an unrecorded agreement setting a $95 per-lot fee adjusted annually by the Consumer Price Index, and the parties followed that formula for nearly thirty years. In late 2008, Recreation Centers announced it would reduce its funding and proposed a lakeshore-frontage formula that more than tripled homeowner assessments. Six owners filed a certified class action, and El Dorado intervened, arguing the 1969 Declaration did not burden its condominium tract. The superior court granted summary judgment for the class and for Recreation Centers against El Dorado. On appeal, Division One of the Arizona Court of Appeals affirmed. It held that Recreation Centers had waived any challenge to the 1979 Agreement through decades of acquiescence, that A.R.S. section 33-440 did not invalidate the agreement, that the agreement lasted as long as the 1969 Declaration, and that the recorded 1969 Declaration burdened El Dorado’s contiguous land. The court awarded the class its appellate attorneys’ fees. This is an unpublished memorandum decision and is not precedent.

Reviewing the summary judgments de novo, the court declined to resolve whether the 1979 Agreement was a substantive amendment to the 1969 Declaration that would have required the majority owner vote prescribed for amendments. It instead affirmed on the alternative ground that Recreation Centers had waived any right to challenge the agreement’s validity. Waiver is the intentional relinquishment of a known right, and a party’s persistent failure to object to conduct under a covenant can result in waiver or abandonment of the restriction. Here Recreation Centers had knowingly performed under the 1979 Agreement for nearly thirty years — paying its share and accepting the CPI-based allocation without objection — so no remand for factfinding was necessary. The court reinforced this with the contract principle that a course of performance accepted or acquiesced in without objection is given great weight in interpreting an agreement (Abrams v. Horizon Corp.; Restatement (Second) of Contracts section 202(4)).

The court next rejected Recreation Centers’ argument that A.R.S. section 33-440, governing private covenants, precluded the 1979 Agreement. Because no statute is retroactive unless expressly declared (A.R.S. section 1-244) and section 33-440 took effect on September 26, 2008, the statute did not control a 1979 agreement. Even assuming it applied, the court found no conflict: the 1979 Agreement is a private covenant affecting real property under section 33-440(C)(2) and is expressly validated by section 33-440(A)(1), which recognizes pre-statute covenants and precludes only later covenants inconsistent with them. The court also declined to read section 33-440 as limited to planned communities; although declaration is defined by reference to the Planned Communities Act (section 33-1802), the separate definition of private covenant is not so limited.

Interpreting the 1979 Agreement as a question of law, the court held it was a binding settlement of a bona fide dispute rather than a terminable-at-will, short-term arrangement. The agreement adjusted assessments for any succeeding year, incorporated a Consumer Price Index escalator showing the parties contemplated future increases, and rested on the 1969 Declaration, which itself ran for thirty years with automatic ten-year renewals; the court therefore tied the agreement’s duration to that of the Declaration. The court also rejected the contention that the Viewpoint Lake Homeowners Association lacked legal capacity: a party that deals with an association as an entity and accepts value from it is estopped from later denying its capacity to contract, and nothing in the Declaration gave the Management Board the exclusive power to allocate maintenance costs.

Finally, the court held the recorded 1969 Declaration burdened El Dorado’s Tract C property. It refused to read the Declaration’s reference to future deed language as a condition precedent to imposing the burden absent clear and unequivocal language, and it found the Declaration satisfied the statute of frauds because it identified the burdened estate — Viewpoint Lake (Tract A) and all parcels adjacent to and contiguous with it — with sufficient certainty. Because Del Webb owned both tracts in 1969 and the 1971 amendment confirmed Tract C’s contiguity, anyone tracing title would have constructive notice that the Declaration encumbered Tract C from the moment of its execution.

For Arizona homeowners and associations, this decision illustrates how a long-standing course of conduct can lock in a cost-sharing arrangement even when the original governing documents are silent or arguably require a formal amendment. Recreation Centers could not escape the 1979 assessment formula it had followed for three decades: by knowingly performing under the agreement year after year, it waived any argument that the agreement was an invalid amendment or was terminable at will. The case is a reminder that boards and owners who want to preserve the right to challenge a governing arrangement must object promptly rather than acquiesce, because Arizona courts give great weight to a settled course of performance and may treat decades of acceptance as an intentional relinquishment of the right to complain.

The decision also shows how recorded declarations can bind property that never received a separate, tailored recording. The 1969 Declaration encumbered every parcel adjacent to and contiguous with Viewpoint Lake, and the court held that this description gave constructive notice to anyone tracing title to El Dorado’s condominium tract — so the burden attached from the Declaration’s execution, not from some later filing. For buyers, associations, and title examiners, the case underscores the importance of tracing the full chain of title for recorded lake-, common-area-, or subdivision-wide restrictions, and it confirms that A.R.S. section 33-440 (effective in 2008) does not retroactively unsettle covenants and agreements that predate it. Because the opinion is an unpublished memorandum decision, it is not binding precedent, but it is a useful educational example of assessment, covenant, and waiver principles in the HOA context.

Video overview of the ruling

An AI-generated video overview of Cropley v. Recreation Centers of Sun City, Inc. (1 CA-CV 10-0034). Affirmed. Recreation Centers waived any right to challenge the validity or interpretation of the 1979 Agreement… 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 Cropley v. Recreation Centers of Sun City, Inc.. Generated from the case filings; verify against the linked ruling below.

Audio overview generated with Google NotebookLM from the case’s court filings.

Step-by-step litigation record

Step 1969-07 Arizona Title, as trustee for Del E. Webb Development Corporation, records the Declaration of Restrictions governing Viewpoint Lake (Tract A) and adjacent, contiguous property.
Step 1971 The 1969 Declaration is amended (by Arizona Title as owner of Tract C) to regulate boats and boat docking facilities.
Step 1975 Recreation Centers of Sun City takes title to Viewpoint Lake and several golf courses and agrees to pay fifty percent of lake-maintenance costs (the 1975 Agreement).
Step 1977-03-01 The 1975 Agreement is amended to strike the developer subsidy while keeping Recreation Centers’ fifty-percent maintenance obligation.
Step 1979-04-19 At a Viewpoint Lake Management Board meeting, Recreation Centers’ president James Wormsley suggests a $95 flat assessment.
Step 1979 Del Webb, Recreation Centers, and the Viewpoint Lake Homeowners Association sign the unrecorded 1979 Agreement setting a $95 per-lot fee with annual Consumer Price Index adjustments.
Step 2008 Each lakefront owner is assessed $302.10 for lake maintenance under the CPI formula.
Step 2008-12-10 Recreation Centers notifies the Board it will reduce lake-maintenance funding after January 1, 2009, and proposes a lakeshore-frontage formula.
Step 2009-02 The Board bills each lakefront owner $1,032.25 under the new proposed formula.
Step 2009 Six owners file a class action in Maricopa County Superior Court (No. CV2009-004740); El Dorado later intervenes to dispute the 1969 Declaration’s reach.
The superior court grants summary judgment for the certified class against Recreation Centers and for Recreation Centers against El Dorado.
Step 2010-12-14 Division One of the Arizona Court of Appeals affirms both grants of summary judgment and awards the class its appellate attorneys’ fees.

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/cropley-v-recreation-centers-of-sun-city/raw/: 1 PDF. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2010-12-14

Opinion

Type: Decision or judgment

Opinion affirming the judgment.

Download source file
2010-12-14_001_opinion.pdf

FAQ

What was the dispute in Cropley v. Recreation Centers of Sun City?

A certified class of eighty-one Viewpoint Lake homeowners in Sun City sued Recreation Centers of Sun City, Inc. after it announced in late 2008 that it would cut its funding of lake maintenance and switch to a lakeshore-frontage assessment formula that more than tripled homeowner bills (from $302.10 to $1,032.25 per lot). The homeowners sought to enforce a 1979 agreement that had allocated lake-maintenance costs by a $95 base fee adjusted annually by the Consumer Price Index. The El Dorado condominium association separately intervened, arguing the 1969 Declaration did not burden its property.

Why couldn’t Recreation Centers challenge the 1979 Agreement?

The Court of Appeals held that Recreation Centers waived any challenge to the agreement’s validity by acquiescing in it for nearly thirty years. Waiver is the intentional relinquishment of a known right, and a party that knowingly performs under an arrangement without objecting — as Recreation Centers did from 1979 to 2008 — cannot later argue it was an invalid amendment or terminable at will. The court did not need to decide whether the agreement was technically an amendment requiring an owner vote.

Did A.R.S. § 33-440 invalidate the 1979 Agreement?

No. The court held that A.R.S. § 33-440, which took effect in September 2008, does not apply retroactively (A.R.S. § 1-244) and so did not govern a 1979 agreement. Even if it applied, the court found no conflict: the 1979 Agreement qualifies as a private covenant affecting real property under § 33-440(C)(2) and is expressly validated by § 33-440(A)(1). The court also rejected the argument that § 33-440 applies only to planned communities.

How long does the 1979 Agreement last?

The court concluded the agreement was a binding settlement of indefinite duration tied to the underlying 1969 Declaration, not a short-term or terminable-at-will arrangement. The agreement adjusted assessments for any succeeding year and included a Consumer Price Index escalator, showing the parties intended it to handle future increases. Because it rested on the 1969 Declaration — which ran for thirty years with automatic ten-year renewals — its term matches that of the Declaration.

Was El Dorado’s condominium property bound by the 1969 Declaration?

Yes. The court held the recorded 1969 Declaration burdened El Dorado’s Tract C land because the Declaration encumbered Viewpoint Lake (Tract A) and all property adjacent to and contiguous with it. Del Webb owned both tracts in 1969, and a 1971 amendment confirmed Tract C’s contiguity, so anyone tracing title would have constructive notice of the burden. The court rejected El Dorado’s arguments that a later, separate filing was required and that the Declaration failed the statute of frauds.

Is this decision binding precedent, and who paid attorneys’ fees?

No. The decision is an unpublished memorandum decision marked Not for Publication, so it does not create legal precedent and may be cited only as authorized by ARCAP 28(c) and Ariz. R. Sup. Ct. 111(c). On fees, the Court of Appeals awarded the class plaintiffs their reasonable appellate attorneys’ fees and costs under A.R.S. § 12-341.01, awarded Recreation Centers fees limited to responding to El Dorado’s appeal, and denied El Dorado’s request for fees because it did not prevail.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation1 CA-CV 10-0034
Court / tribunalCourt of Appeals
Decision / key dateDecember 14, 2010
Judge / panelSheldon H. Weisberg (Author), Philip Hall (Presiding Judge, concurring), Diane M. Johnsen (concurring)
PartiesA certified class of Viewpoint Lake homeowners (Beryl Cropley, et al.) sued Recreation Centers of Sun City, Inc. to enforce a 1979 lake-maintenance assessment agreement, while the El Dorado of Sun City Condominiums Homeowners Association intervened to dispute whether the recorded 1969 Declaration burdened its property.
Governing law
  • A.R.S. § 33-440 (private covenants regarding real property)
  • A.R.S. § 12-341.01 (attorneys’ fees in contract actions)
  • A.R.S. § 12-341 (costs)
  • A.R.S. § 33-1802 (Planned Communities Act definitions)
  • A.R.S. § 1-244 (statutes not retroactive)
Topics
CC&RsAssessmentsAttorney FeesCovenantsProcedure
Outcome / holding

Affirmed. Recreation Centers waived any right to challenge the validity or interpretation of the 1979 Agreement through nearly thirty years of knowing acquiescence, and the agreement — enforceable as a settlement of a bona fide dispute — prospectively governs the allocation of Viewpoint Lake maintenance assessments for the same duration as the underlying 1969 Declaration and is not barred by A.R.S. section 33-440. The recorded 1969 Declaration of Restrictions runs with and burdens El Dorado’s contiguous condominium land because it gave constructive notice to anyone tracing title, and the class plaintiffs are awarded their reasonable appellate attorneys’ fees under A.R.S. section 12-341.01.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package1 PDF
Step-by-step docket roadmap12 roadmap entries
Video overviewCropley v. Recreation Centers of Sun City, Inc.
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

Viewpoint Lake sits in Sun City, Arizona, ringed by eighty-one single-family lots, the El Dorado of Sun City Condominiums, a recreation center, and a medical facility. A 1969 recorded Declaration of Restrictions made lake maintenance the responsibility of the surrounding lakefront owners but never specified how those costs should be split. After Recreation Centers of Sun City, Inc. took title to the lake and nearby golf courses in 1975 and agreed to pay half of maintenance, disputes arose over the rest. In 1979, Del Webb, Recreation Centers, and the Viewpoint Lake Homeowners Association signed an unrecorded agreement setting a $95 per-lot fee adjusted annually by the Consumer Price Index, and the parties followed that formula for nearly thirty years. In late 2008, Recreation Centers announced it would reduce its funding and proposed a lakeshore-frontage formula that more than tripled homeowner assessments. Six owners filed a certified class action, and El Dorado intervened, arguing the 1969 Declaration did not burden its condominium tract. The superior court granted summary judgment for the class and for Recreation Centers against El Dorado. On appeal, Division One of the Arizona Court of Appeals affirmed. It held that Recreation Centers had waived any challenge to the 1979 Agreement through decades of acquiescence, that A.R.S. section 33-440 did not invalidate the agreement, that the agreement lasted as long as the 1969 Declaration, and that the recorded 1969 Declaration burdened El Dorado’s contiguous land. The court awarded the class its appellate attorneys’ fees. This is an unpublished memorandum decision and is not precedent.

Key Issues & Findings

Reviewing the summary judgments de novo, the court declined to resolve whether the 1979 Agreement was a substantive amendment to the 1969 Declaration that would have required the majority owner vote prescribed for amendments. It instead affirmed on the alternative ground that Recreation Centers had waived any right to challenge the agreement’s validity. Waiver is the intentional relinquishment of a known right, and a party’s persistent failure to object to conduct under a covenant can result in waiver or abandonment of the restriction. Here Recreation Centers had knowingly performed under the 1979 Agreement for nearly thirty years — paying its share and accepting the CPI-based allocation without objection — so no remand for factfinding was necessary. The court reinforced this with the contract principle that a course of performance accepted or acquiesced in without objection is given great weight in interpreting an agreement (Abrams v. Horizon Corp.; Restatement (Second) of Contracts section 202(4)).

The court next rejected Recreation Centers’ argument that A.R.S. section 33-440, governing private covenants, precluded the 1979 Agreement. Because no statute is retroactive unless expressly declared (A.R.S. section 1-244) and section 33-440 took effect on September 26, 2008, the statute did not control a 1979 agreement. Even assuming it applied, the court found no conflict: the 1979 Agreement is a private covenant affecting real property under section 33-440(C)(2) and is expressly validated by section 33-440(A)(1), which recognizes pre-statute covenants and precludes only later covenants inconsistent with them. The court also declined to read section 33-440 as limited to planned communities; although declaration is defined by reference to the Planned Communities Act (section 33-1802), the separate definition of private covenant is not so limited.

Interpreting the 1979 Agreement as a question of law, the court held it was a binding settlement of a bona fide dispute rather than a terminable-at-will, short-term arrangement. The agreement adjusted assessments for any succeeding year, incorporated a Consumer Price Index escalator showing the parties contemplated future increases, and rested on the 1969 Declaration, which itself ran for thirty years with automatic ten-year renewals; the court therefore tied the agreement’s duration to that of the Declaration. The court also rejected the contention that the Viewpoint Lake Homeowners Association lacked legal capacity: a party that deals with an association as an entity and accepts value from it is estopped from later denying its capacity to contract, and nothing in the Declaration gave the Management Board the exclusive power to allocate maintenance costs.

Finally, the court held the recorded 1969 Declaration burdened El Dorado’s Tract C property. It refused to read the Declaration’s reference to future deed language as a condition precedent to imposing the burden absent clear and unequivocal language, and it found the Declaration satisfied the statute of frauds because it identified the burdened estate — Viewpoint Lake (Tract A) and all parcels adjacent to and contiguous with it — with sufficient certainty. Because Del Webb owned both tracts in 1969 and the 1971 amendment confirmed Tract C’s contiguity, anyone tracing title would have constructive notice that the Declaration encumbered Tract C from the moment of its execution.

Why It Matters

For Arizona homeowners and associations, this decision illustrates how a long-standing course of conduct can lock in a cost-sharing arrangement even when the original governing documents are silent or arguably require a formal amendment. Recreation Centers could not escape the 1979 assessment formula it had followed for three decades: by knowingly performing under the agreement year after year, it waived any argument that the agreement was an invalid amendment or was terminable at will. The case is a reminder that boards and owners who want to preserve the right to challenge a governing arrangement must object promptly rather than acquiesce, because Arizona courts give great weight to a settled course of performance and may treat decades of acceptance as an intentional relinquishment of the right to complain.

The decision also shows how recorded declarations can bind property that never received a separate, tailored recording. The 1969 Declaration encumbered every parcel adjacent to and contiguous with Viewpoint Lake, and the court held that this description gave constructive notice to anyone tracing title to El Dorado’s condominium tract — so the burden attached from the Declaration’s execution, not from some later filing. For buyers, associations, and title examiners, the case underscores the importance of tracing the full chain of title for recorded lake-, common-area-, or subdivision-wide restrictions, and it confirms that A.R.S. section 33-440 (effective in 2008) does not retroactively unsettle covenants and agreements that predate it. Because the opinion is an unpublished memorandum decision, it is not binding precedent, but it is a useful educational example of assessment, covenant, and waiver principles in the HOA context.

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Casita de Castilian, Inc. v. Kenneth K. Kamrath and Mary Elizabeth Kamrath: HOA Court Case Guide

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Common-Element Maintenance | A.R.S. §§ 33-561, 33-556 | 2 CA-CIV 3815

Division Two affirms that a condominium association’s majority-adopted bylaw amendment validly placed roof maintenance on individual unit owners, defeating the owners’ claim for repair costs.

Last updated July 1, 2026. Case: Casita de Castilian, Inc. v. Kenneth K. Kamrath and Mary Elizabeth Kamrath; 129 Ariz. 146, 629 P.2d 562 (App. 1981).

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

A condominium council of co-owners may, through a validly adopted majority-vote bylaw amendment, shift responsibility for maintaining a general common element (here, the roof) from the association to the individual unit owners. Such an allocation satisfies A.R.S. Section 33-561’s requirement that the council ‘make provisions for the maintenance of the common elements,’ and, absent an inequitable or disproportionate result, it does not require the unanimous consent of all co-owners.

Case Participants

Neutral Parties

  • Casita de Castilian, Inc. (Plaintiff/Appellee)
    Arizona non-profit corporation serving as the Council of Co-owners (apartment owners’ association) for the condominium; sued to recover unpaid assessments and penalties and prevailed on the owners’ roof-maintenance counterclaim.
  • Kenneth K. Kamrath (Defendant/Appellant)
    Owner (with his wife) of two units in the condominium; counterclaimed that the association was obligated to repair the roof.
  • Mary Elizabeth Kamrath (Defendant/Appellant)
    Owner (with her husband) of two units in the condominium; counterclaimed that the association was obligated to repair the roof.
  • Scott L. Taylor (Counsel)
    Zipf & Henderson (Tucson)
    Counsel for plaintiff/appellee Casita de Castilian, Inc.
  • Norris L. Ganson (Counsel)
    Norris L. Ganson (solo practitioner, Tucson)
    Counsel for defendants/appellants Kenneth and Mary Elizabeth Kamrath.
  • Ben C. Birdsall (Judge)
    Arizona Court of Appeals, Division Two
    Authored the opinion of the court (surname ‘Birdsall’ as given in the opinion).
  • Hathaway, C.J. (Judge)
    Arizona Court of Appeals, Division Two
    Chief Judge; concurred in the opinion.
  • Howard, J. (Judge)
    Arizona Court of Appeals, Division Two
    Judge; concurred in the opinion.

What happened and why it matters

Casita de Castilian, Inc., the non-profit corporation serving as the Council of Co-owners for a condominium (horizontal property regime) created under A.R.S. Section 33-551 et seq., sued unit owners Kenneth and Mary Elizabeth Kamrath to recover $4,397 in unpaid assessments plus $765 in late-payment penalties. The Kamraths counterclaimed, asserting that the association was obligated to repair and maintain the roof over their units, a general common element, and was liable for the roughly $2,393 cost of the needed repairs. The case was tried to the court on stipulated facts. The association’s original 1970 bylaws had made the corporation responsible for maintaining all common elements, but a 1975 amendment, adopted by a 92-to-14 vote of the membership and recorded, shifted roof-maintenance responsibility to the individual unit owners. The trial court ruled for the association on both its complaint and the counterclaim and awarded assessments, penalties, and attorney fees; the owners appealed only the counterclaim ruling. The Court of Appeals, Division Two, affirmed. It held that bylaws are a proper instrument for allocating maintenance responsibility, that only a majority (not unanimous) vote was required, and that assigning roof upkeep to individual owners satisfied A.R.S. Section 33-561’s requirement that the council ‘make provisions for’ maintenance. Finding no inequitable or disproportionate burden, the court denied the owners’ claimed setoff.

The Court of Appeals framed three questions: whether the corporation’s bylaws are a proper instrument for providing for maintenance of common elements; if so, whether all co-owners must agree to such a provision; and whether requiring each owner to maintain his own roof satisfies A.R.S. Section 33-561. On the first question, the court observed that A.R.S. Section 33-551(6)(b) makes roofs ‘general common elements’ unless the recorded declaration provides otherwise, and that A.R.S. Section 33-553(4) requires the declaration to describe the common elements. Here the declaration described the common elements as all real property except the individual units, so the roofs were common elements, but neither the statutes nor the declaration fixed responsibility for maintaining them. The articles of incorporation were likewise silent. The bylaws, however, did fix responsibility: the original 1970 bylaws made the corporation responsible, and the amended 1975 bylaws made each member liable for the roof covering of the apartment owned. Rejecting the owners’ argument that Article IV(A) of the declaration (which obligates owners to pay assessments to meet common-element expenses) required the association to perform the work, the court held that the provision merely obligated owners to pay assessments and did not impose a maintenance duty on the council. It therefore held the bylaws were a proper instrument.

On unanimity, the court found nothing in the statute requiring agreement of all co-owners; the only statutory unanimity requirement (A.R.S. Section 33-556) concerns withdrawing property from the regime. The court distinguished Makeever v. Lyle, then the only reported Arizona decision interpreting the condominium law, in which a majority could not convert general common elements to one owner’s exclusive use because that amounted to a taking of the other co-owners’ interests. Reallocating upkeep of a single common element was not such a taking. Reading the declaration (which called for majority approval of decisions), the articles (which let a majority change bylaws), and the statute together, the court concluded a simple majority could adopt or amend maintenance bylaws.

On the third question, the court emphasized that A.R.S. Section 33-561 requires only that the council ‘make provisions for’ maintenance and does not itself make the council responsible for the work. Surveying the 1962 FHA Model Act, the 1977 Uniform Condominium Act (which Arizona did not adopt), and comparative state statutes, the court found nothing supporting the owners’ reading. It distinguished the Florida case Thiess v. Island House Association, where an amendment shifted a disproportionate repair burden onto a minority of owners; here the owners raised no claim that the amendment was unfair, disproportionate, or inequitable. Accordingly, absent such an inequitable result, the majority could place maintenance of a common element on the individual owners, and the counterclaim failed.

This 1981 published decision is one of the earliest Arizona appellate opinions interpreting the state’s condominium (horizontal property regime) statute, and it remains instructive on how maintenance duties are allocated within a community association. The key lesson is that, under Arizona’s particular statutory language, the law does not automatically make the association responsible for maintaining every common element. A.R.S. Section 33-561 requires only that the council of co-owners ‘make provisions for’ maintenance, and the court read that phrasing to permit an association to place upkeep of a specific common element, such as each unit’s roof, on the individual owners through the governing documents. Owners and boards reviewing who is responsible for a repair should therefore look closely at the declaration, articles, and especially the bylaws rather than assuming the association must perform all common-element work.

The decision also illustrates two recurring themes in association governance disputes. First, governing documents can generally be amended by the vote specified in those documents and the statute (here a simple majority), and unanimity is required only in narrow circumstances such as withdrawing property from the regime; a maintenance reallocation is not treated as a ‘taking’ of the other owners’ interests the way converting common area to one owner’s exclusive use would be. Second, the court signaled an equitable limit: an amendment that shifts a disproportionate or unfair burden onto a minority of owners (as in the Florida Thiess case) could be vulnerable, even though the reallocation here was upheld because no such inequity was shown. Because this is a published opinion in which the Arizona Supreme Court denied review, it is binding precedent for how these older condominium instruments and statutes are construed.

Step-by-step litigation record

Step 1962-03-22 Arizona’s condominium (horizontal property regime) statute, A.R.S. Section 33-551 et seq., took effect as an emergency measure (background cited by the court).
Step 1970 Casita de Castilian, Inc. adopted its original bylaws, which made the corporation responsible for maintaining all common elements.
Step 1975-12-15 The membership adopted amended bylaws by a 92-to-14 vote, shifting responsibility for roof maintenance from the corporation to the individual unit owners; the amended bylaws were recorded.
The association sued the Kamraths to recover $4,397 in unpaid assessments and $765 in late penalties; the Kamraths counterclaimed, seeking the roughly $2,393 cost of needed roof repairs.
After a trial on stipulated facts, the superior court ruled for the association on the complaint and the counterclaim, awarding assessments, penalties, and attorney fees and allowing no setoff.
Step 1981-04-07 The Arizona Court of Appeals, Division Two (Birdsall, J.), affirmed the judgment on the counterclaim.
Step 1981-05-13 Rehearing denied.
Step 1981-06-16 The Arizona Supreme Court denied review, leaving the published Court of Appeals decision as binding precedent.

FAQ

What was this case about?

A condominium association (Casita de Castilian, Inc., acting as the Council of Co-owners) sued two unit owners, the Kamraths, for $4,397 in unpaid assessments and $765 in late penalties. The owners counterclaimed that the association was required to maintain and repair their roof, a general common element, and should pay the roughly $2,393 repair cost. The Court of Appeals decided whether the association or the individual owners were responsible for that roof.

Who was responsible for maintaining the roof, and why?

The individual owners were responsible. Although a roof is a ‘general common element’ under A.R.S. Section 33-551(6)(b), neither the statute nor the declaration fixed who had to maintain it. The association’s 1975 amended bylaws made each member responsible for the roof covering of the apartment owned. The court held the bylaws were a proper place to allocate that responsibility, so the owners, not the association, had to pay for their roof repairs.

Did the association need a unanimous vote to shift roof maintenance to owners?

No. The court found nothing in the condominium statute requiring unanimous agreement to allocate maintenance duties; the only statutory unanimity requirement (A.R.S. Section 33-556) applies to withdrawing property from the regime. Reading the declaration, articles, and statute together, the court held a simple majority could adopt or amend the maintenance bylaws. Here the amendment passed 92 to 14.

Why didn’t the case Makeever v. Lyle help the owners?

In Makeever v. Lyle, a majority could not convert general common elements to one owner’s exclusive use because that amounted to a taking of the other co-owners’ shared interests. This case was different: reallocating who maintains a single common element (the roof) did not take away anyone’s ownership interest, so the court held Makeever was not controlling.

What does it mean that A.R.S. Section 33-561 says the council must ‘make provisions for’ maintenance?

The court stressed that Arizona’s statute does not make the association responsible for doing the maintenance; it requires only that the council ‘make provisions for’ it. Comparing the FHA Model Act, the Uniform Condominium Act (which Arizona did not adopt), and other states’ laws, the court concluded that assigning roof upkeep to individual owners was a valid way to ‘make provisions for’ maintenance.

Is there any limit on shifting maintenance costs to certain owners?

Yes, an equitable one. The court distinguished the Florida case Thiess v. Island House Association, where an amendment shifted a disproportionate repair burden onto a minority of owners. The court noted the Kamraths raised no claim that the amendment here was unfair, disproportionate, or inequitable, and held that absent such an inequitable result, a majority may place maintenance of a common element on the individual owners.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation129 Ariz. 146, 629 P.2d 562 (App. 1981)
Court / tribunalCourt of Appeals
Decision / key dateApril 7, 1981
Judge / panelBirdsall, J. (author), Hathaway, C.J. (concurring), Howard, J. (concurring)
PartiesCasita de Castilian, Inc. (condominium council of co-owners; plaintiff/appellee) v. Kenneth K. and Mary Elizabeth Kamrath (unit owners; defendants/appellants).
Governing law
  • A.R.S. § 33-551 et seq. (Arizona Horizontal Property Regimes / Condominium Act)
  • A.R.S. § 33-551(6)(b) (general common elements include ceilings and roofs)
  • A.R.S. § 33-553(4) (recorded declaration must describe the common elements)
  • A.R.S. § 33-556 (unanimous co-owner agreement required only to withdraw property from the regime)
  • A.R.S. § 33-561 (council of co-owners shall make provisions for maintenance of common elements)
Topics
AssessmentsCC&RsAttorney FeesCovenants
Outcome / holding

A condominium council of co-owners may, through a validly adopted majority-vote bylaw amendment, shift responsibility for maintaining a general common element (here, the roof) from the association to the individual unit owners. Such an allocation satisfies A.R.S. Section 33-561’s requirement that the council ‘make provisions for the maintenance of the common elements,’ and, absent an inequitable or disproportionate result, it does not require the unanimous consent of all co-owners.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source packageNo raw source-folder files found for this slug
Step-by-step docket roadmap8 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases0 download links

Key Issues & Findings

Case Summary

Casita de Castilian, Inc., the non-profit corporation serving as the Council of Co-owners for a condominium (horizontal property regime) created under A.R.S. Section 33-551 et seq., sued unit owners Kenneth and Mary Elizabeth Kamrath to recover $4,397 in unpaid assessments plus $765 in late-payment penalties. The Kamraths counterclaimed, asserting that the association was obligated to repair and maintain the roof over their units, a general common element, and was liable for the roughly $2,393 cost of the needed repairs. The case was tried to the court on stipulated facts. The association’s original 1970 bylaws had made the corporation responsible for maintaining all common elements, but a 1975 amendment, adopted by a 92-to-14 vote of the membership and recorded, shifted roof-maintenance responsibility to the individual unit owners. The trial court ruled for the association on both its complaint and the counterclaim and awarded assessments, penalties, and attorney fees; the owners appealed only the counterclaim ruling. The Court of Appeals, Division Two, affirmed. It held that bylaws are a proper instrument for allocating maintenance responsibility, that only a majority (not unanimous) vote was required, and that assigning roof upkeep to individual owners satisfied A.R.S. Section 33-561’s requirement that the council ‘make provisions for’ maintenance. Finding no inequitable or disproportionate burden, the court denied the owners’ claimed setoff.

Key Issues & Findings

The Court of Appeals framed three questions: whether the corporation’s bylaws are a proper instrument for providing for maintenance of common elements; if so, whether all co-owners must agree to such a provision; and whether requiring each owner to maintain his own roof satisfies A.R.S. Section 33-561. On the first question, the court observed that A.R.S. Section 33-551(6)(b) makes roofs ‘general common elements’ unless the recorded declaration provides otherwise, and that A.R.S. Section 33-553(4) requires the declaration to describe the common elements. Here the declaration described the common elements as all real property except the individual units, so the roofs were common elements, but neither the statutes nor the declaration fixed responsibility for maintaining them. The articles of incorporation were likewise silent. The bylaws, however, did fix responsibility: the original 1970 bylaws made the corporation responsible, and the amended 1975 bylaws made each member liable for the roof covering of the apartment owned. Rejecting the owners’ argument that Article IV(A) of the declaration (which obligates owners to pay assessments to meet common-element expenses) required the association to perform the work, the court held that the provision merely obligated owners to pay assessments and did not impose a maintenance duty on the council. It therefore held the bylaws were a proper instrument.

On unanimity, the court found nothing in the statute requiring agreement of all co-owners; the only statutory unanimity requirement (A.R.S. Section 33-556) concerns withdrawing property from the regime. The court distinguished Makeever v. Lyle, then the only reported Arizona decision interpreting the condominium law, in which a majority could not convert general common elements to one owner’s exclusive use because that amounted to a taking of the other co-owners’ interests. Reallocating upkeep of a single common element was not such a taking. Reading the declaration (which called for majority approval of decisions), the articles (which let a majority change bylaws), and the statute together, the court concluded a simple majority could adopt or amend maintenance bylaws.

On the third question, the court emphasized that A.R.S. Section 33-561 requires only that the council ‘make provisions for’ maintenance and does not itself make the council responsible for the work. Surveying the 1962 FHA Model Act, the 1977 Uniform Condominium Act (which Arizona did not adopt), and comparative state statutes, the court found nothing supporting the owners’ reading. It distinguished the Florida case Thiess v. Island House Association, where an amendment shifted a disproportionate repair burden onto a minority of owners; here the owners raised no claim that the amendment was unfair, disproportionate, or inequitable. Accordingly, absent such an inequitable result, the majority could place maintenance of a common element on the individual owners, and the counterclaim failed.

Why It Matters

This 1981 published decision is one of the earliest Arizona appellate opinions interpreting the state’s condominium (horizontal property regime) statute, and it remains instructive on how maintenance duties are allocated within a community association. The key lesson is that, under Arizona’s particular statutory language, the law does not automatically make the association responsible for maintaining every common element. A.R.S. Section 33-561 requires only that the council of co-owners ‘make provisions for’ maintenance, and the court read that phrasing to permit an association to place upkeep of a specific common element, such as each unit’s roof, on the individual owners through the governing documents. Owners and boards reviewing who is responsible for a repair should therefore look closely at the declaration, articles, and especially the bylaws rather than assuming the association must perform all common-element work.

The decision also illustrates two recurring themes in association governance disputes. First, governing documents can generally be amended by the vote specified in those documents and the statute (here a simple majority), and unanimity is required only in narrow circumstances such as withdrawing property from the regime; a maintenance reallocation is not treated as a ‘taking’ of the other owners’ interests the way converting common area to one owner’s exclusive use would be. Second, the court signaled an equitable limit: an amendment that shifts a disproportionate or unfair burden onto a minority of owners (as in the Florida Thiess case) could be vulnerable, even though the reallocation here was upheld because no such inequity was shown. Because this is a published opinion in which the Arizona Supreme Court denied review, it is binding precedent for how these older condominium instruments and statutes are construed.

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Keith and Kathy Campbell, husband and wife, Plaintiffs/Appellants/Cross-Appellees, v. Florence Gardens Mobile Home Association, an Arizona non-profit corporation; Gail and Steven Haskett; Nick and JoAnn Treinen; Emily J. Webster; Gerald C. and Patricia M. Palmatier; Judith A. and Martin C. Weber, Defendants/Appellees/Cross-Appellants: HOA Court Case Guide

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CC&R Amendments & Pleading Procedure | A.R.S. §§ 33-1804, 33-1812, 33-1817 | 2 CA-CV 2021-0091

An unpublished Division Two decision affirming dismissal of a homeowner fiduciary-duty claim while reviving CC&R-amendment claims, holding a court cannot order a more definite statement of a meeting the HOA concedes never happened.

Last updated July 1, 2026. Case: Keith and Kathy Campbell, husband and wife, Plaintiffs/Appellants/Cross-Appellees, v. Florence Gardens Mobile Home Association, an Arizona non-profit corporation; Gail and Steven Haskett; Nick and JoAnn Treinen; Emily J. Webster; Gerald C. and Patricia M. Palmatier; Judith A. and Martin C. Weber, Defendants/Appellees/Cross-Appellants; 2 CA-CV 2021-0091; S1100CV201901839.

Download the ruling PDF

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

The court affirmed dismissal of the homeowners’ breach-of-fiduciary-duty claim, holding the allegations were conclusory and the challenged conduct — counting written CC&R concurrences after the 30-day window — did not involve any collection or misuse of funds giving rise to a fiduciary duty. It held, however, that the trial court erred in ordering a more definite statement, because the Association’s own motion admitted no membership or board meeting ever occurred, so it was impossible for the homeowners to supply a meeting date; the striking of the amended complaint and dismissal of the remaining claims were therefore vacated and remanded.

Case Participants

Neutral Parties

  • Florence Gardens Mobile Home Association (Appellee)
    Arizona non-profit corporation and mobile-home community HOA (Defendant below; Appellee/Cross-Appellant); counted the written concurrences and adopted the amended CC&Rs.
  • Keith Campbell (Appellant)
    Homeowner and former board president (Plaintiff below; Appellant/Cross-Appellee) who objected to counting late concurrences and resigned from the board.
  • Kathy Campbell (Appellant)
    Homeowner and co-plaintiff (Appellant/Cross-Appellee); Keith Campbell’s wife.
  • Gail Haskett (Appellee)
    Individual board-member defendant named in the caption.
  • Steven Haskett (Appellee)
    Individual defendant named in the caption (spouse of Gail Haskett).
  • Nick Treinen (Appellee)
    Individual board-member defendant named in the caption.
  • JoAnn Treinen (Appellee)
    Individual defendant named in the caption (spouse of Nick Treinen).
  • Emily J. Webster (Appellee)
    Individual board-member defendant named in the caption.
  • Gerald C. Palmatier (Appellee)
    Individual board-member defendant named in the caption.
  • Patricia M. Palmatier (Appellee)
    Individual defendant named in the caption (spouse of Gerald C. Palmatier).
  • Judith A. Weber (Appellee)
    Individual board-member defendant named in the caption.
  • Martin C. Weber (Appellee)
    Individual defendant named in the caption (spouse of Judith A. Weber).
  • Melanie C. McKeddie (Counsel)
    McKeddie Cooley G.P. (Scottsdale)
    Counsel for Plaintiffs/Appellants/Cross-Appellees (the Campbells).
  • Justin R. Cooley (Counsel)
    McKeddie Cooley G.P. (Scottsdale)
    Counsel for Plaintiffs/Appellants/Cross-Appellees (the Campbells).
  • Edith I. Rudder (Counsel)
    Carpenter Hazlewood Delgado & Bolen LLP (Tempe)
    Counsel for Defendants/Appellees/Cross-Appellants (the Association and board members).
  • Nicholas C. S. Nogami (Counsel)
    Carpenter Hazlewood Delgado & Bolen LLP (Tempe)
    Counsel for Defendants/Appellees/Cross-Appellants (the Association and board members).
  • Brearcliffe (Judge)
    Arizona Court of Appeals, Division Two
    Judge who authored the memorandum decision.
  • Eppich (Judge)
    Arizona Court of Appeals, Division Two
    Presiding Judge who concurred in the decision.
  • Staring (Judge)
    Arizona Court of Appeals, Division Two
    Vice Chief Judge who concurred in the decision.
  • Steven J. Fuller (Judge)
    Pinal County Superior Court
    Trial judge who ordered a more definite statement, struck the amended complaint, and dismissed the suit with prejudice.

What happened and why it matters

Keith and Kathy Campbell own property in the Florence Gardens Mobile Home Association community, a Pinal County non-profit governed by CC&Rs recorded in 1998. In March 2019 the board mailed owners a letter, a proposed Amended and Restated Declaration, and a written-concurrence form, explaining that adoption required the written concurrence of 878 owners (two-thirds of the assessed lots) and asking owners to return the form within thirty days. The Association reached the required number of concurrences “shortly after the 30-day window” and counted them all; Keith Campbell, then board president, objected that late concurrences should not count, and resigned. The Campbells sued for breach of contract, negligence per se under the Planned Community Act, breach of the duty of good faith and fair dealing, and breach of fiduciary duty. The trial court dismissed the fiduciary-duty claim under Rule 12(b)(6), ordered a more definite statement identifying the specific meeting date, then struck the amended complaint and dismissed the case with prejudice when no date was supplied. Division Two affirmed dismissal of the fiduciary-duty claim as conclusory and outside the fund-related duty recognized in Divizio, but held that ordering a more definite statement was error because the Association’s own motion admitted no relevant meeting ever occurred, making a meeting date impossible to provide. The court vacated the striking and dismissal, remanded, and awarded no fees or costs on appeal.

Reviewing the dismissals de novo under Coleman v. City of Mesa, the court analyzed the two rulings separately. On the fiduciary-duty claim, dismissal under Rule 12(b)(6) is proper only where, as a matter of law, plaintiffs could not obtain relief under any provable interpretation of the facts, and the court may look only to the pleading itself. The Campbells alleged the Association “acts as a fiduciary with the fees collected from its members” and breached that duty by labeling the vote a “concurrence” and counting it past the statutory time frames. The court held these were merely conclusory statements insufficient under Cullen v. Auto-Owners Insurance: even assuming the collection of member fees could create a fiduciary relationship, the Campbells never alleged how the Association’s actions amounted to an improper use of funds. It distinguished Divizio v. Kewin Enterprises, where mobile-home-park members were entitled to accountings of dues collected for community upkeep; here the challenged conduct — collecting signed concurrences after the 30-day deadline — did not involve the collection or use of funds to which the Divizio duty would extend. Merely paying dues does not convert every alleged wrong into a breach of fiduciary duty.

On the striking of the amended complaint, the court explained that a defendant may move for a more definite statement under Rule 12(e) only when a pleading is so vague or ambiguous that it cannot frame a response, and a court may strike a pleading for disobeying such an order. But the Association’s own motion, while demanding that the Campbells identify the meeting date of the alleged statutory violations, candidly admitted that “there was no such meeting” and “no meeting of the membership related to the collection of the concurrences.” Because it was clear from the Association’s own filing that it was impossible for the Campbells to state a meeting date that never existed, ordering a more definite statement was error — and, that order being error, striking the amended complaint and dismissing the remaining claims for noncompliance with it was likewise error. Because neither party completely prevailed, the court declined to award appellate fees or costs and left the Association’s fee cross-appeal for the trial court on remand.

The decision is a mixed result that highlights two recurring HOA-litigation pressure points: whether a board owes homeowners a fiduciary duty, and how much factual specificity a complaint about governance procedures must contain. On the fiduciary-duty question, the court did not announce a categorical rule that HOA boards never owe fiduciary duties; instead it treated the claim as a pleading failure, distinguishing Divizio and emphasizing that a fiduciary theory tied to member dues requires concrete allegations of improper use of funds, not a general assertion that the board mishandled a vote. Homeowners advancing fiduciary-duty claims should therefore plead specific, fund-related misconduct rather than relabeling a covenant or voting dispute.

The striking ruling is the more consequential procedural lesson: a defendant cannot use a motion for a more definite statement to force a plaintiff to allege a fact the defendant itself concedes does not exist. Because the Association admitted no relevant meeting occurred, the trial court could not condition the survival of the suit on the Campbells’ identifying a meeting date, and dismissal on that basis was reversible. The case also confirms that CC&Rs constitute a contract among owners, so disputes over amendment and concurrence procedures can support contract-based claims and fee awards under A.R.S. § 12-341.01 — though here, with neither side fully prevailing, the court awarded no appellate fees. As an unpublished memorandum decision, it is not precedential and may be cited only as authorized by rule.

Step-by-step litigation record

Step 1998-04-16 Amended Declaration of CC&Rs for Florence Gardens dated (and recorded in 1998); governs the community until 2019.
Step 2019-02-08 Board’s proposed Amended and Restated Declaration of CC&Rs is dated.
Step 2019-03 Board mails owners a letter, the amended and restated CC&Rs, a summary, and a written-concurrence form, requiring the written concurrence of 878 owners (two-thirds of assessed lots) and asking for return within 30 days.
“Shortly after the 30-day window,” the Association receives enough concurrences to adopt the amended CC&Rs and counts all of them; board president Keith Campbell objects to counting late concurrences and resigns.
Step 2019-12 Keith and Kathy Campbell file a verified complaint in Pinal County Superior Court (No. S1100CV201901839) alleging breach of contract, negligence per se, breach of good faith and fair dealing, and breach of fiduciary duty.
The Association files a combined Rule 12(b)(6) motion to dismiss the fiduciary-duty claim and a Rule 12(e) motion for a more definite statement, while admitting no relevant meeting occurred.
After a hearing, the trial court grants the more-definite-statement motion (ordering the specific meeting dates) and later grants dismissal of the fiduciary-duty claim.
Step 2020-06-03 The Campbells file an amended complaint that again does not identify any meeting dates.
The Association moves to strike; the trial court strikes the amended complaint, dismisses the suit with prejudice, denies the Association’s fee request, and enters final judgment under Rule 54(c).
Step 2022-07-05 Court of Appeals, Division Two, affirms the fiduciary-duty dismissal, vacates the striking and dismissal of the remaining claims, remands, and awards no fees or costs on appeal.

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Source 1 2022-07-05

Opinion

Type: Decision or judgment

Opinion holding that the court affirmed dismissal of the homeowners’ breach-of-fiduciary-duty claim, holding the allegations were conclusory and the challenged conduct — counting written CC&R concurrences after the 30-day window — did not involve any collection or misuse of funds giving rise to a fiduciary duty.

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2022-07-05_001_opinion.pdf

FAQ

Who won Campbell v. Florence Gardens?

The result was split. Division Two affirmed the dismissal of the homeowners’ breach-of-fiduciary-duty claim, but it vacated the trial court’s decision to strike the amended complaint and dismiss the remaining claims, remanding those for further proceedings. Because neither side completely prevailed, the court awarded no attorneys’ fees or costs on appeal and left the Association’s fee cross-appeal for the trial court.

What was the dispute about?

The Florence Gardens board circulated written-concurrence forms to adopt amended CC&Rs, asking owners to return them within 30 days. The Association reached the required two-thirds concurrence ‘shortly after the 30-day window’ and counted the late-returned forms. Homeowners Keith and Kathy Campbell — Keith was then board president — sued, alleging breach of contract, negligence per se under the Planned Community Act, breach of good faith and fair dealing, and breach of fiduciary duty.

Why did the breach-of-fiduciary-duty claim fail?

The court held the allegations were merely conclusory. Even assuming the Association’s collection of member fees could create a fiduciary relationship, the Campbells never alleged how the Association improperly used those funds. The challenged conduct — counting concurrences after the 30-day deadline — did not involve the collection or misuse of funds to which the fiduciary duty recognized in Divizio v. Kewin Enterprises would extend.

Why did the court revive the homeowners’ other claims?

The trial court had ordered the Campbells to file a more definite statement identifying the specific meeting date of the alleged violations, then struck their amended complaint and dismissed the case when no date was given. But the Association’s own motion admitted ‘there was no such meeting.’ Because it was impossible for the Campbells to state a meeting date that never existed, ordering a more definite statement was error, and so was dismissing the case for failing to comply with that order.

Does an Arizona HOA board owe homeowners a fiduciary duty?

This decision did not adopt a categorical rule. It treated the claim as a pleading failure, distinguishing Divizio (where mobile-home-park members were entitled to accountings of dues collected for community upkeep) and stressing that a fiduciary theory tied to member dues requires concrete allegations of improper use of funds, not a general assertion that the board mishandled a vote. Because it is an unpublished memorandum decision, it sets no precedent on the issue.

Is this decision precedential?

No. It is an unpublished memorandum decision of the Arizona Court of Appeals, Division Two (Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f)). It does not create legal precedent and may be cited only as authorized by applicable rules.

Case Dossier

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Case Summary

Case ID / citation2 CA-CV 2021-0091
Court / tribunalCourt of Appeals
Decision / key dateJuly 5, 2022
Judge / panelBrearcliffe, Eppich, Staring
PartiesKeith and Kathy Campbell (homeowners / Plaintiffs-Appellants-Cross-Appellees) v. Florence Gardens Mobile Home Association and individual board members (HOA / Defendants-Appellees-Cross-Appellants)
Governing law
Topics
CC&RsElectionsProcedureAttorney FeesGood Faith & Fair Dealing
Outcome / holding

The court affirmed dismissal of the homeowners’ breach-of-fiduciary-duty claim, holding the allegations were conclusory and the challenged conduct — counting written CC&R concurrences after the 30-day window — did not involve any collection or misuse of funds giving rise to a fiduciary duty. It held, however, that the trial court erred in ordering a more definite statement, because the Association’s own motion admitted no membership or board meeting ever occurred, so it was impossible for the homeowners to supply a meeting date; the striking of the amended complaint and dismissal of the remaining claims were therefore vacated and remanded.

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Key Issues & Findings

Case Summary

Keith and Kathy Campbell own property in the Florence Gardens Mobile Home Association community, a Pinal County non-profit governed by CC&Rs recorded in 1998. In March 2019 the board mailed owners a letter, a proposed Amended and Restated Declaration, and a written-concurrence form, explaining that adoption required the written concurrence of 878 owners (two-thirds of the assessed lots) and asking owners to return the form within thirty days. The Association reached the required number of concurrences “shortly after the 30-day window” and counted them all; Keith Campbell, then board president, objected that late concurrences should not count, and resigned. The Campbells sued for breach of contract, negligence per se under the Planned Community Act, breach of the duty of good faith and fair dealing, and breach of fiduciary duty. The trial court dismissed the fiduciary-duty claim under Rule 12(b)(6), ordered a more definite statement identifying the specific meeting date, then struck the amended complaint and dismissed the case with prejudice when no date was supplied. Division Two affirmed dismissal of the fiduciary-duty claim as conclusory and outside the fund-related duty recognized in Divizio, but held that ordering a more definite statement was error because the Association’s own motion admitted no relevant meeting ever occurred, making a meeting date impossible to provide. The court vacated the striking and dismissal, remanded, and awarded no fees or costs on appeal.

Key Issues & Findings

Reviewing the dismissals de novo under Coleman v. City of Mesa, the court analyzed the two rulings separately. On the fiduciary-duty claim, dismissal under Rule 12(b)(6) is proper only where, as a matter of law, plaintiffs could not obtain relief under any provable interpretation of the facts, and the court may look only to the pleading itself. The Campbells alleged the Association “acts as a fiduciary with the fees collected from its members” and breached that duty by labeling the vote a “concurrence” and counting it past the statutory time frames. The court held these were merely conclusory statements insufficient under Cullen v. Auto-Owners Insurance: even assuming the collection of member fees could create a fiduciary relationship, the Campbells never alleged how the Association’s actions amounted to an improper use of funds. It distinguished Divizio v. Kewin Enterprises, where mobile-home-park members were entitled to accountings of dues collected for community upkeep; here the challenged conduct — collecting signed concurrences after the 30-day deadline — did not involve the collection or use of funds to which the Divizio duty would extend. Merely paying dues does not convert every alleged wrong into a breach of fiduciary duty.

On the striking of the amended complaint, the court explained that a defendant may move for a more definite statement under Rule 12(e) only when a pleading is so vague or ambiguous that it cannot frame a response, and a court may strike a pleading for disobeying such an order. But the Association’s own motion, while demanding that the Campbells identify the meeting date of the alleged statutory violations, candidly admitted that “there was no such meeting” and “no meeting of the membership related to the collection of the concurrences.” Because it was clear from the Association’s own filing that it was impossible for the Campbells to state a meeting date that never existed, ordering a more definite statement was error — and, that order being error, striking the amended complaint and dismissing the remaining claims for noncompliance with it was likewise error. Because neither party completely prevailed, the court declined to award appellate fees or costs and left the Association’s fee cross-appeal for the trial court on remand.

Why It Matters

The decision is a mixed result that highlights two recurring HOA-litigation pressure points: whether a board owes homeowners a fiduciary duty, and how much factual specificity a complaint about governance procedures must contain. On the fiduciary-duty question, the court did not announce a categorical rule that HOA boards never owe fiduciary duties; instead it treated the claim as a pleading failure, distinguishing Divizio and emphasizing that a fiduciary theory tied to member dues requires concrete allegations of improper use of funds, not a general assertion that the board mishandled a vote. Homeowners advancing fiduciary-duty claims should therefore plead specific, fund-related misconduct rather than relabeling a covenant or voting dispute.

The striking ruling is the more consequential procedural lesson: a defendant cannot use a motion for a more definite statement to force a plaintiff to allege a fact the defendant itself concedes does not exist. Because the Association admitted no relevant meeting occurred, the trial court could not condition the survival of the suit on the Campbells’ identifying a meeting date, and dismissal on that basis was reversible. The case also confirms that CC&Rs constitute a contract among owners, so disputes over amendment and concurrence procedures can support contract-based claims and fee awards under A.R.S. § 12-341.01 — though here, with neither side fully prevailing, the court awarded no appellate fees. As an unpublished memorandum decision, it is not precedential and may be cited only as authorized by rule.

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Arizona Biltmore Estates Association v. Tezak: HOA Court Case Guide

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CC&R Enforcement | A.R.S. § 12-341.01 | 1 CA-CV 92-0188

Division One construes a “trailer, camper, boat or similar equipment” covenant as a whole and holds that a large customized bus is exactly the kind of bulky, nonstandard conveyance the drafters intended to restrict.

Last updated July 1, 2026. Case: Arizona Biltmore Estates Association v. Tezak; 177 Ariz. 447, 868 P.2d 1030 (App. 1993); Not stated in the opinion (action filed in Maricopa County Superior Court).

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

Construing the declaration of covenants as a whole to give effect to the drafters’ paramount intent, the Court of Appeals held that the Tezaks’ large customized bus was “similar equipment” within the deed restriction on parking a “trailer, camper, boat or similar equipment,” notwithstanding the rule that restrictive covenants are strictly construed. Because no Architectural Committee approval had been obtained, the Association was entitled to an injunction requiring the bus’s removal, and the trial court’s contrary summary judgment was reversed.

Case Participants

Neutral Parties

  • Arizona Biltmore Estates Association (Appellant)
    Non-profit Arizona corporation and homeowners association for the Arizona Biltmore Estates subdivision; plaintiff below and appellant, seeking an injunction to remove the bus.
  • Robert Tezak (Appellee)
    Lot owner in the subdivision who, with his wife, parked the customized bus on the residential property; defendant below and appellee. The bus was registered to “UNO Products, Inc., Robert J. Tezak.”
  • Nancy Tezak (Appellee)
    Co-owner and Robert Tezak’s wife; co-defendant below and co-appellee.
  • Donald E. Dyekman (Counsel)
    O’Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A.
    Counsel for Plaintiff-Appellant Arizona Biltmore Estates Association (Phoenix).
  • Christopher Robbins (Counsel)
    O’Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A.
    Counsel for Plaintiff-Appellant Arizona Biltmore Estates Association (Phoenix).
  • Michael P. West (Counsel)
    Mariscal, Weeks, McIntyre & Friedlander, P.A.
    Counsel for Defendants-Appellees Robert and Nancy Tezak (Phoenix).
  • Donna M. Somsky (Counsel)
    Mariscal, Weeks, McIntyre & Friedlander, P.A.
    Counsel for Defendants-Appellees Robert and Nancy Tezak (Phoenix).
  • Contreras (Judge)
    Arizona Court of Appeals, Division One, Department B
    Judge who authored the opinion reversing the trial court.
  • Jacobson (Judge)
    Arizona Court of Appeals, Division One, Department B
    Presiding Judge; concurred.
  • Lankford (Judge)
    Arizona Court of Appeals, Division One, Department B
    Judge; concurred.

What happened and why it matters

The Arizona Biltmore Estates Association, the homeowners association for a Phoenix-area subdivision, sued lot owners Robert and Nancy Tezak seeking an injunction to remove a large customized bus—weighing more than 29,000 pounds and resembling a commercial bus—that the Tezaks began parking at the back of their residential lot around September 1989. The Association contended the vehicle violated a recorded deed restriction (Article XI, Section 6) barring any “trailer, camper, boat or similar equipment” from being kept on the property without approval from the Architectural Committee. The Maricopa County Superior Court denied the injunction and granted the Tezaks summary judgment, reasoning that the bus was not covered by the covenant, and awarded the Tezaks their attorney’s fees. On appeal, Division One of the Arizona Court of Appeals reversed. The court acknowledged that restrictive covenants are strictly construed in favor of the free use of property, but explained that the paramount principle is the intent of the parties who drafted the declaration, determined by reading the document as a whole. Considering the “or similar equipment” language together with the declaration’s stated purpose of protecting the value and attractiveness of the property and its many other use restrictions, the court concluded the drafters intended to restrict large, bulky, nonstandard conveyances, and the Tezaks’ bus plainly qualified. The court distinguished a Missouri decision the Tezaks relied on, followed a Washington case reaching the same result on similar facts, reversed, and remanded for entry of summary judgment and an injunction for the Association, while awarding the Association its attorney’s fees under A.R.S. § 12-341.01.

Because the interpretation of the deed restrictions presented a question of law, the Court of Appeals reviewed the trial court’s summary judgment de novo and was not bound by its conclusions of law. The court treated the recorded restrictions as a covenant running with the land that forms a contract between the subdivision’s owners as a whole and each individual lot owner (citing Divizio v. Kewin Enterprises). It first observed that Article XI, Section 6 does not categorically ban the listed conveyances; it bars them only when they have not been approved by the Architectural Committee, and no such approval had been sought or given for the Tezaks’ bus.

The Association conceded the bus was neither a trailer, a camper, nor a boat, and argued instead that it was “similar equipment.” The Tezaks invoked the rule of ejusdem generis—that general words following a specific enumeration are limited by that enumeration unless a contrary intent is clearly shown—and contended that trailers and campers share a feature of temporary living arrangements that their bus lacked. They also urged strict construction, under which ambiguities in restrictive covenants are resolved in favor of the free use of property (citing Duffy v. Sunburst Farms East).

The court rejected the “temporary living arrangements” limitation as implausible, noting that boats are expressly enumerated yet usually contain no living quarters, so adopting that limitation would mean boats should never have been listed. It then explained that although strict construction applies in some circumstances, the cardinal principle in construing restrictive covenants is the paramount intent of the parties, ascertained by reading the declaration as a whole, and that a covenant should not be read to defeat its plain and obvious meaning. The declaration’s recitals stated that the covenants existed to enhance and protect the value, desirability, and attractiveness of the property and the quality of life within the Village, and Section 6 was one of eleven provisions restricting uses that would be unsightly or annoying. Read together, these provisions showed the drafters intended to restrict the display of large, bulky, nonstandard conveyances, and the Tezaks’ very large bus unquestionably fell within that class. The court followed Krein v. Smith (Wash. App.), where a motor home was held covered by a similar restriction after construing the document as a whole, and distinguished Lake St. Louis Community Association v. Leidy (Mo. App.), reasoning that the phrase “or similar equipment” is broader and less limiting than the Missouri covenant’s “trailers of every other description,” and that size was not the only characteristic the drafters intended to restrict. Having found the parking covenant violated, the court did not reach the Association’s alternative argument that the bus also breached the covenant against business or non-residential use.

Tezak is an Arizona illustration of how courts reconcile two competing canons that govern deed-restriction disputes: the rule that restrictive covenants are strictly construed in favor of the free use of land, and the overriding principle that the drafters’ intent—gathered from the declaration read as a whole—controls. The decision shows that a catch-all phrase like “or similar equipment,” when read alongside a declaration’s stated purposes and its other use restrictions, can reach vehicles the drafters never specifically named, so long as the vehicle shares the essential character the restriction targets (here, large, bulky, nonstandard conveyances).

For associations and owners alike, the case is a practical reminder that a covenant’s general language is not automatically neutralized by strict construction or by ejusdem generis; the outcome turns on what the governing documents, taken together, were plainly designed to prevent. It also highlights the role of an architectural-approval mechanism—the restriction bars unapproved conveyances rather than banning them outright—and confirms that a prevailing association in a covenant-enforcement action may recover attorney’s fees under A.R.S. § 12-341.01. This summary is educational and neutral; it is not legal advice, and results in other disputes will depend on the specific covenant language and facts.

Step-by-step litigation record

Step 1976-02-05 Restrictive covenants (CC&Rs) for the Arizona Biltmore Estates subdivision are recorded, including Article XI, Section 6 restricting a “trailer, camper, boat or similar equipment.”
Step 1989-09 The Tezaks begin parking a customized bus weighing more than 29,000 pounds at the back of their residential lot.
Step 1989-1990 After the Association learns of the bus and the parties fail to resolve the matter, the Association files a civil action in Maricopa County Superior Court seeking an injunction to remove the vehicle.
Step 1992 On cross-motions for summary judgment, the trial court denies the Association’s requested injunction, grants the Tezaks summary judgment, and awards the Tezaks attorney’s fees; the Association appeals (No. 1 CA-CV 92-0188).
Step 1993-11-18 Division One of the Arizona Court of Appeals issues its opinion reversing and remanding for entry of summary judgment and an injunction for the Association.
Step 1993-11-19 Opinion “As Corrected.”
Step 1994-02-14 Reconsideration denied.

FAQ

What was the dispute in Arizona Biltmore Estates Association v. Tezak about?

The homeowners association sued lot owners Robert and Nancy Tezak for an injunction to remove a large customized bus (more than 29,000 pounds, resembling a commercial bus) that they parked on their residential lot. The Association argued the bus violated a recorded deed restriction barring any “trailer, camper, boat or similar equipment” from the property without approval by the Architectural Committee. The trial court sided with the owners, but the Court of Appeals reversed and held the bus was covered by the restriction.

Did the deed restriction specifically mention a bus or a motor home?

No. Article XI, Section 6 listed only a “trailer, camper, boat or similar equipment.” The Association conceded the bus was not a trailer, camper, or boat and argued it fell within the catch-all phrase “or similar equipment.” The court agreed, concluding that a very large, bulky, self-propelled vehicle of this kind was “similar equipment” within the meaning the drafters intended.

How did the court handle the rule that restrictive covenants are strictly construed?

The court acknowledged that restrictive covenants are strictly construed against those enforcing them, with ambiguities resolved in favor of the free use of property. But it explained that the cardinal principle is the paramount intent of the parties, determined by reading the declaration as a whole, and that a covenant should not be read in a way that defeats its plain and obvious meaning. Strict construction did not override the drafters’ evident intent here.

What is ejusdem generis, and why didn’t it help the homeowners?

Ejusdem generis is a rule that general words following a list of specific items are limited to things of the same kind. The Tezaks argued trailers and campers share “temporary living arrangements” that their bus lacked. The court rejected that limitation as implausible because boats—expressly listed—usually have no living quarters, and because reading the declaration as a whole showed the drafters were targeting large, bulky, nonstandard conveyances, a class the bus plainly fit.

Could the homeowners have kept the bus if they had gotten approval?

The restriction did not ban the listed conveyances outright; it barred them only when they had not been placed or maintained in a manner approved by the Architectural Committee under Article VI of the declaration. In this case, no such approval had been sought or obtained for the bus, so the unapproved vehicle violated the covenant.

Who paid attorney’s fees, and is the decision binding precedent?

The trial court had awarded the Tezaks their fees, but the Court of Appeals vacated that award on reversal and instead awarded the Association its attorney’s fees for both the trial and the appeal under A.R.S. § 12-341.01, with the amount to be set after compliance with the appellate fee rule. The decision is a published Arizona Court of Appeals opinion (177 Ariz. 447, 868 P.2d 1030), so it is precedential.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation177 Ariz. 447, 868 P.2d 1030 (App. 1993)
Court / tribunalCourt of Appeals
Decision / key dateNovember 18, 1993
Judge / panelContreras (author), Jacobson, P.J., Lankford, J.
PartiesA homeowners association (Arizona Biltmore Estates Association) sued lot owners Robert and Nancy Tezak for an injunction to remove a 29,000-pound customized bus parked on their residential lot, contending it violated a recorded deed restriction barring any “trailer, camper, boat or similar equipment” kept without Architectural Committee approval.
Governing law
  • A.R.S. § 12-341.01 (discretionary award of attorney’s fees in an action arising out of contract)
Topics
CC&RsCovenantsArchitectural ReviewAttorney FeesProcedure
Outcome / holding

Construing the declaration of covenants as a whole to give effect to the drafters’ paramount intent, the Court of Appeals held that the Tezaks’ large customized bus was “similar equipment” within the deed restriction on parking a “trailer, camper, boat or similar equipment,” notwithstanding the rule that restrictive covenants are strictly construed. Because no Architectural Committee approval had been obtained, the Association was entitled to an injunction requiring the bus’s removal, and the trial court’s contrary summary judgment was reversed.

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Key Issues & Findings

Case Summary

The Arizona Biltmore Estates Association, the homeowners association for a Phoenix-area subdivision, sued lot owners Robert and Nancy Tezak seeking an injunction to remove a large customized bus—weighing more than 29,000 pounds and resembling a commercial bus—that the Tezaks began parking at the back of their residential lot around September 1989. The Association contended the vehicle violated a recorded deed restriction (Article XI, Section 6) barring any “trailer, camper, boat or similar equipment” from being kept on the property without approval from the Architectural Committee. The Maricopa County Superior Court denied the injunction and granted the Tezaks summary judgment, reasoning that the bus was not covered by the covenant, and awarded the Tezaks their attorney’s fees. On appeal, Division One of the Arizona Court of Appeals reversed. The court acknowledged that restrictive covenants are strictly construed in favor of the free use of property, but explained that the paramount principle is the intent of the parties who drafted the declaration, determined by reading the document as a whole. Considering the “or similar equipment” language together with the declaration’s stated purpose of protecting the value and attractiveness of the property and its many other use restrictions, the court concluded the drafters intended to restrict large, bulky, nonstandard conveyances, and the Tezaks’ bus plainly qualified. The court distinguished a Missouri decision the Tezaks relied on, followed a Washington case reaching the same result on similar facts, reversed, and remanded for entry of summary judgment and an injunction for the Association, while awarding the Association its attorney’s fees under A.R.S. § 12-341.01.

Key Issues & Findings

Because the interpretation of the deed restrictions presented a question of law, the Court of Appeals reviewed the trial court’s summary judgment de novo and was not bound by its conclusions of law. The court treated the recorded restrictions as a covenant running with the land that forms a contract between the subdivision’s owners as a whole and each individual lot owner (citing Divizio v. Kewin Enterprises). It first observed that Article XI, Section 6 does not categorically ban the listed conveyances; it bars them only when they have not been approved by the Architectural Committee, and no such approval had been sought or given for the Tezaks’ bus.

The Association conceded the bus was neither a trailer, a camper, nor a boat, and argued instead that it was “similar equipment.” The Tezaks invoked the rule of ejusdem generis—that general words following a specific enumeration are limited by that enumeration unless a contrary intent is clearly shown—and contended that trailers and campers share a feature of temporary living arrangements that their bus lacked. They also urged strict construction, under which ambiguities in restrictive covenants are resolved in favor of the free use of property (citing Duffy v. Sunburst Farms East).

The court rejected the “temporary living arrangements” limitation as implausible, noting that boats are expressly enumerated yet usually contain no living quarters, so adopting that limitation would mean boats should never have been listed. It then explained that although strict construction applies in some circumstances, the cardinal principle in construing restrictive covenants is the paramount intent of the parties, ascertained by reading the declaration as a whole, and that a covenant should not be read to defeat its plain and obvious meaning. The declaration’s recitals stated that the covenants existed to enhance and protect the value, desirability, and attractiveness of the property and the quality of life within the Village, and Section 6 was one of eleven provisions restricting uses that would be unsightly or annoying. Read together, these provisions showed the drafters intended to restrict the display of large, bulky, nonstandard conveyances, and the Tezaks’ very large bus unquestionably fell within that class. The court followed Krein v. Smith (Wash. App.), where a motor home was held covered by a similar restriction after construing the document as a whole, and distinguished Lake St. Louis Community Association v. Leidy (Mo. App.), reasoning that the phrase “or similar equipment” is broader and less limiting than the Missouri covenant’s “trailers of every other description,” and that size was not the only characteristic the drafters intended to restrict. Having found the parking covenant violated, the court did not reach the Association’s alternative argument that the bus also breached the covenant against business or non-residential use.

Why It Matters

Tezak is an Arizona illustration of how courts reconcile two competing canons that govern deed-restriction disputes: the rule that restrictive covenants are strictly construed in favor of the free use of land, and the overriding principle that the drafters’ intent—gathered from the declaration read as a whole—controls. The decision shows that a catch-all phrase like “or similar equipment,” when read alongside a declaration’s stated purposes and its other use restrictions, can reach vehicles the drafters never specifically named, so long as the vehicle shares the essential character the restriction targets (here, large, bulky, nonstandard conveyances).

For associations and owners alike, the case is a practical reminder that a covenant’s general language is not automatically neutralized by strict construction or by ejusdem generis; the outcome turns on what the governing documents, taken together, were plainly designed to prevent. It also highlights the role of an architectural-approval mechanism—the restriction bars unapproved conveyances rather than banning them outright—and confirms that a prevailing association in a covenant-enforcement action may recover attorney’s fees under A.R.S. § 12-341.01. This summary is educational and neutral; it is not legal advice, and results in other disputes will depend on the specific covenant language and facts.

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Ahwatukee Custom Estates Management Association, Inc. v. George M. Turner and Betty C. Turner: HOA Court Case Guide

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CC&R Enforcement & Architectural Review | A.R.S. § 12-341.01 | 196 Ariz. 631 (1 CA-CV 98-0233)

Division One holds that enforcing CC&Rs and architectural-approval requirements by mandatory injunction is an equitable remedy, not a matter of right, and can be denied where the board acted arbitrarily and the violations caused no material harm.

Last updated July 1, 2026. Case: Ahwatukee Custom Estates Management Association, Inc. v. George M. Turner and Betty C. Turner; 196 Ariz. 631, 2 P.3d 1276 (App. 2000) (Nos. 1 CA-CV 98-0233, 1 CA-CV 98-0528).

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

Although the homeowners violated the association’s CC&Rs and Architectural Committee Guidelines, the trial court did not abuse its equitable discretion in denying the association a mandatory retrospective injunction where the board had acted arbitrarily and unreasonably and the violations caused no irreparable harm. Because neither side was a prevailing party, the denial of attorneys’ fees was also affirmed.

Case Participants

Neutral Parties

  • Ahwatukee Custom Estates Management Association, Inc. (Appellant)
    Arizona non-profit homeowners association; plaintiff/appellant and cross-appellee that sought to enjoin the pool and compel correction of past CC&R violations.
  • George M. Turner (Appellee)
    Owner of lot 6796; defendant/appellee and cross-appellant found to have violated the CC&Rs but against whom no mandatory injunction issued.
  • Betty C. Turner (Appellee)
    Co-owner of lot 6796 with her husband; defendant/appellee and cross-appellant.
  • Neil Vincent Wake (Counsel)
    Bryan Cave LLP
    Counsel for Plaintiff/Appellant/Cross-Appellee ACEMA (Phoenix).
  • Sarah L. Chilton (Counsel)
    Bryan Cave LLP
    Counsel for Plaintiff/Appellant/Cross-Appellee ACEMA (Phoenix).
  • Roger R. Foote (Counsel)
    Jackson, White, Gardner, Weech & Walker, P.C.
    Counsel for Defendants/Appellees/Cross-Appellants the Turners (Mesa).
  • Patricia A. Terian (Counsel)
    Jackson, White, Gardner, Weech & Walker, P.C.
    Counsel for Defendants/Appellees/Cross-Appellants the Turners (Mesa); name reconstructed from OCR hyphenation (‘Teri-an’).
  • Fidel (Judge)
    Judge, Arizona Court of Appeals, Division One, Department E; authored the opinion.
  • Sheldon H. Weisberg (Judge)
    Judge, Arizona Court of Appeals, Division One; concurred.
  • E.G. Noyes, Jr. (Judge)
    Judge, Arizona Court of Appeals, Division One; concurred.

What happened and why it matters

The Ahwatukee Custom Estates Management Association, Inc. (ACEMA), an Arizona non-profit homeowners association, sued lot owners George and Betty Turner after the Turners were denied board permission to install a swimming pool and then threatened to build it without approval. ACEMA sought to enjoin the pool and also asked for a mandatory injunction directing the Turners to correct three past violations of the subdivision’s CC&Rs and Architectural Committee Guidelines: adding fill and grading their lot without board approval, and building two fences without board approval. A special master heard three days of testimony, visited the site, and found the Turners had violated the CC&Rs in each respect, but concluded ACEMA suffered no irreparable injury and was not entitled to corrective relief. The trial court adopted those findings and denied both sides’ attorneys’ fees for lack of a prevailing party. On appeal, Division One of the Arizona Court of Appeals treated the CC&Rs as a contract among the subdivision’s owners and reviewed the injunction and fee rulings for abuse of discretion. It affirmed. The court held that a mandatory retrospective injunction should not issue to enforce approval requirements the board had applied arbitrarily and unreasonably, especially where the interrelated, largely invisible violations caused no material harm and ACEMA had delayed until after construction. Invoking the maxim that one who seeks equity must do equity, the court left the board with prospective authority to require approval of any future pool, and affirmed the denial of fees under the CC&Rs’ fee clause and A.R.S. section 12-341.01 because neither party prevailed.

The court began with the governing framework: CC&Rs constitute a contract between the subdivision’s property owners as a whole and the individual lot owners, so their interpretation is a question of law reviewed de novo (Arizona Biltmore Estates Ass’n v. Tezak). Factual findings are binding unless clearly erroneous (Lee Dev. Co. v. Papp), and the grant or denial of both injunctive relief and attorneys’ fees rests in the sound discretion of the trial court (Financial Associates v. Hub Properties; A.R.S. section 12-341.01).

On the grading-and-fill violation, the court agreed the Turners had filled and graded without board approval in breach of the CC&Rs and Guidelines, but held no equitable relief was warranted. The Turners had graded to conform to the developer’s FS-20 Grading and Drainage Plan; the CC&Rs did not clearly say whether the proper grade was the FS-20 plan or the condition at time of purchase, and ambiguities in restrictive covenants are resolved in favor of the free use of property. The board could not even establish the grade at time of purchase, the City had issued permits based on the FS-20 plan, ACEMA proved no drainage disruption or irreparable injury, and it waited until after the house and fences were built to sue. Enforcement of restrictive covenants by injunction is not a matter of right but is governed by equity, weighing relative hardships, the public interest, party misconduct, delay, and the adequacy of other remedies (McRae v. Lois Grunow Memorial Clinic). A mandatory injunction should not issue to enforce an approval requirement withheld arbitrarily and unreasonably (Young v. Tortoise Island; Donoghue v. Prynnwood), and ‘one who seeks equity must do equity.’ The board’s grading demands were arbitrary and unreasonable.

The fencing violations followed the same logic. The 6796/6795 fence had been restored to a height compliant with the Phoenix City Code (which measures pool-fence height from the higher adjacent lot); forcing the Turners to lower it would have reinstated a code violation, an arbitrary demand. The 6796/6794 fence atop the retaining wall was the closest question, and in isolation ACEMA might have shown adequate harm under Continental Oil Co. v. Fennemore by pointing to the diluted protection of the deed restrictions. But the court declined to view it in isolation: it was one of a cluster of interrelated violations arising from the arbitrary grading dispute, the changes were invisible to the public and caused no material harm, and the board’s future enforcement authority was adequately preserved by the judgment’s requirement that any future pool obtain board approval. The court also upheld denial of a new trial under Rule 59(A)(4) because ACEMA failed to show it could not have discovered the neighbors’ withdrawn consent with reasonable diligence. Finally, under CC&R Article IX and A.R.S. section 12-341.01, neither party prevailed: ACEMA established the violations and preserved prospective authority but lost its principal claim for retrospective relief, so each side bore its own fees.

The decision is a leading Arizona statement that enforcing CC&Rs and architectural-approval requirements through a mandatory injunction is an equitable remedy, not an automatic right. Even when a board proves that an owner technically violated the governing documents, a court may withhold retrospective relief where the board itself acted arbitrarily or unreasonably, where the violations caused no material or irreparable harm, and where the association delayed enforcement until after the improvements were built. The maxim that ‘one who seeks equity must do equity’ gives trial courts broad discretion to deny an order compelling removal of structures that are invisible to the community and harmless in fact.

For associations and owners alike, the case underscores several practical points: approval standards must be applied consistently and reasonably; a board that takes an unreasonable position on one issue may find its related enforcement demands treated as part of a single, tainted ‘cluster’; and prevailing-party fee clauses cut both ways, so a mixed result where the association proves violations but loses its main remedy can leave each side paying its own attorneys’ fees. Because the opinion is published, it remains citable precedent on the equitable limits of covenant enforcement and on when a homeowners association is, and is not, a ‘prevailing party.’

Step-by-step litigation record

Step 1992 The Turners purchased lot 6796, one of nine lots in the Ahwatukee subdivision governed by the ACEMA CC&Rs.
Step 1995 The Turners had completed building their house on the lot; before construction they added fill and regraded the lot without board approval to conform to the FS-20 Grading and Drainage Plan.
Step 1997 After being denied board permission to install a swimming pool, the Turners notified the board they intended to build it without approval; ACEMA filed suit to enjoin the pool and to compel correction of past CC&R violations.
A special master heard three days of testimony and conducted an on-site visit, finding the Turners had violated the CC&Rs in three respects but that ACEMA suffered no irreparable injury and neither party prevailed.
Step 1998 The trial court adopted the special master’s findings and entered judgment; both sides appealed (docketed as 1 CA-CV 98-0233 and 1 CA-CV 98-0528). ACEMA’s motion for a new trial based on the 6794 owners’ withdrawn consent was denied.
Step 2000-06-06 Division One of the Arizona Court of Appeals affirmed the judgment in full, upholding the denial of a mandatory injunction, the denial of attorneys’ fees, and the denial of a new trial.

FAQ

What was Ahwatukee Custom Estates Management Association v. Turner about?

The Ahwatukee Custom Estates Management Association (ACEMA) sued homeowners George and Betty Turner after they were denied permission to build a swimming pool and threatened to build it anyway. ACEMA also sought a mandatory injunction ordering the Turners to undo three past violations of the CC&Rs and architectural guidelines: unapproved grading and fill, and two fences built without board approval. A special master and the trial court found the violations occurred but denied corrective relief.

What did the Arizona Court of Appeals decide?

Division One affirmed the trial court in full. It held the Turners did violate the CC&Rs, but that the trial court did not abuse its discretion in denying ACEMA a mandatory retrospective injunction, because the board had acted arbitrarily and unreasonably and the violations caused no irreparable or material harm. It also affirmed the denial of attorneys’ fees to both sides.

Why didn’t the HOA get an injunction even though it won on the violations?

Because enforcing restrictive covenants by injunction is an equitable remedy, not an automatic right. Courts weigh relative hardship, the public interest, party misconduct, delay, and the adequacy of other remedies. The court found the board’s grading demands arbitrary and unreasonable, the changes largely invisible and harmless, and that ACEMA had waited until after construction to sue. Under the maxim that ‘one who seeks equity must do equity,’ the trial court could deny retrospective relief.

What happened with the two fences?

The court treated both fences as part of a single cluster of interrelated violations tied to the arbitrary grading dispute. Forcing the Turners to lower the 6796/6795 fence would have reinstated a Phoenix pool-fence code violation. The 6796/6794 fence atop the retaining wall was a closer call, but because it was invisible from the street, caused no material harm, and the board’s future authority was preserved, the court declined to order its removal.

Did either party recover attorneys’ fees?

No. The CC&Rs’ Article IX fee clause and A.R.S. section 12-341.01 award fees to a prevailing party, but the trial court found, and the Court of Appeals agreed, that neither side prevailed. ACEMA established the violations and preserved its future enforcement authority but lost its principal claim for a mandatory injunction, so each party bore its own fees and costs, including on appeal.

Is this decision binding precedent in Arizona?

Yes. Unlike an unpublished memorandum decision, this is a published opinion of the Arizona Court of Appeals, reported at 196 Ariz. 631 and 2 P.3d 1276. It remains citable authority on the equitable limits of enforcing CC&Rs and architectural-approval requirements and on when a homeowners association is a ‘prevailing party.’

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation196 Ariz. 631, 2 P.3d 1276 (App. 2000) (Nos. 1 CA-CV 98-0233, 1 CA-CV 98-0528)
Court / tribunalCourt of Appeals
Decision / key dateJune 6, 2000
Judge / panelFidel (author), Sheldon H. Weisberg, E.G. Noyes, Jr.
PartiesAhwatukee Custom Estates Management Association, Inc. (Plaintiff/Appellant/Cross-Appellee) v. George M. and Betty C. Turner (Defendants/Appellees/Cross-Appellants)
Governing law
  • A.R.S. § 12-341.01
  • Ariz. R. Civ. P. 59(A)(4)
Topics
CC&RsArchitectural ReviewAttorney FeesProcedure
Outcome / holding

Although the homeowners violated the association’s CC&Rs and Architectural Committee Guidelines, the trial court did not abuse its equitable discretion in denying the association a mandatory retrospective injunction where the board had acted arbitrarily and unreasonably and the violations caused no irreparable harm. Because neither side was a prevailing party, the denial of attorneys’ fees was also affirmed.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source packageNo raw source-folder files found for this slug
Step-by-step docket roadmap6 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases0 download links

Key Issues & Findings

Case Summary

The Ahwatukee Custom Estates Management Association, Inc. (ACEMA), an Arizona non-profit homeowners association, sued lot owners George and Betty Turner after the Turners were denied board permission to install a swimming pool and then threatened to build it without approval. ACEMA sought to enjoin the pool and also asked for a mandatory injunction directing the Turners to correct three past violations of the subdivision’s CC&Rs and Architectural Committee Guidelines: adding fill and grading their lot without board approval, and building two fences without board approval. A special master heard three days of testimony, visited the site, and found the Turners had violated the CC&Rs in each respect, but concluded ACEMA suffered no irreparable injury and was not entitled to corrective relief. The trial court adopted those findings and denied both sides’ attorneys’ fees for lack of a prevailing party. On appeal, Division One of the Arizona Court of Appeals treated the CC&Rs as a contract among the subdivision’s owners and reviewed the injunction and fee rulings for abuse of discretion. It affirmed. The court held that a mandatory retrospective injunction should not issue to enforce approval requirements the board had applied arbitrarily and unreasonably, especially where the interrelated, largely invisible violations caused no material harm and ACEMA had delayed until after construction. Invoking the maxim that one who seeks equity must do equity, the court left the board with prospective authority to require approval of any future pool, and affirmed the denial of fees under the CC&Rs’ fee clause and A.R.S. section 12-341.01 because neither party prevailed.

Key Issues & Findings

The court began with the governing framework: CC&Rs constitute a contract between the subdivision’s property owners as a whole and the individual lot owners, so their interpretation is a question of law reviewed de novo (Arizona Biltmore Estates Ass’n v. Tezak). Factual findings are binding unless clearly erroneous (Lee Dev. Co. v. Papp), and the grant or denial of both injunctive relief and attorneys’ fees rests in the sound discretion of the trial court (Financial Associates v. Hub Properties; A.R.S. section 12-341.01).

On the grading-and-fill violation, the court agreed the Turners had filled and graded without board approval in breach of the CC&Rs and Guidelines, but held no equitable relief was warranted. The Turners had graded to conform to the developer’s FS-20 Grading and Drainage Plan; the CC&Rs did not clearly say whether the proper grade was the FS-20 plan or the condition at time of purchase, and ambiguities in restrictive covenants are resolved in favor of the free use of property. The board could not even establish the grade at time of purchase, the City had issued permits based on the FS-20 plan, ACEMA proved no drainage disruption or irreparable injury, and it waited until after the house and fences were built to sue. Enforcement of restrictive covenants by injunction is not a matter of right but is governed by equity, weighing relative hardships, the public interest, party misconduct, delay, and the adequacy of other remedies (McRae v. Lois Grunow Memorial Clinic). A mandatory injunction should not issue to enforce an approval requirement withheld arbitrarily and unreasonably (Young v. Tortoise Island; Donoghue v. Prynnwood), and ‘one who seeks equity must do equity.’ The board’s grading demands were arbitrary and unreasonable.

The fencing violations followed the same logic. The 6796/6795 fence had been restored to a height compliant with the Phoenix City Code (which measures pool-fence height from the higher adjacent lot); forcing the Turners to lower it would have reinstated a code violation, an arbitrary demand. The 6796/6794 fence atop the retaining wall was the closest question, and in isolation ACEMA might have shown adequate harm under Continental Oil Co. v. Fennemore by pointing to the diluted protection of the deed restrictions. But the court declined to view it in isolation: it was one of a cluster of interrelated violations arising from the arbitrary grading dispute, the changes were invisible to the public and caused no material harm, and the board’s future enforcement authority was adequately preserved by the judgment’s requirement that any future pool obtain board approval. The court also upheld denial of a new trial under Rule 59(A)(4) because ACEMA failed to show it could not have discovered the neighbors’ withdrawn consent with reasonable diligence. Finally, under CC&R Article IX and A.R.S. section 12-341.01, neither party prevailed: ACEMA established the violations and preserved prospective authority but lost its principal claim for retrospective relief, so each side bore its own fees.

Why It Matters

The decision is a leading Arizona statement that enforcing CC&Rs and architectural-approval requirements through a mandatory injunction is an equitable remedy, not an automatic right. Even when a board proves that an owner technically violated the governing documents, a court may withhold retrospective relief where the board itself acted arbitrarily or unreasonably, where the violations caused no material or irreparable harm, and where the association delayed enforcement until after the improvements were built. The maxim that ‘one who seeks equity must do equity’ gives trial courts broad discretion to deny an order compelling removal of structures that are invisible to the community and harmless in fact.

For associations and owners alike, the case underscores several practical points: approval standards must be applied consistently and reasonably; a board that takes an unreasonable position on one issue may find its related enforcement demands treated as part of a single, tainted ‘cluster’; and prevailing-party fee clauses cut both ways, so a mixed result where the association proves violations but loses its main remedy can leave each side paying its own attorneys’ fees. Because the opinion is published, it remains citable precedent on the equitable limits of covenant enforcement and on when a homeowners association is, and is not, a ‘prevailing party.’

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Desert Crown III Homeowners Association, an Arizona nonprofit corporation v. Debabrata Gupta, an unmarried man: Arizona HOA Appellate Case Guide

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Lien Foreclosure | A.R.S. §§ 12-341, 12-341.01 | 2 CA-CV 2025-0138

An unpublished Division Two memorandum decision affirming an HOA assessment-lien foreclosure — and a cautionary example of how a self-represented appeal can be waived for lack of legal authority and argument.

Last updated June 30, 2026. Case: Desert Crown III Homeowners Association, an Arizona nonprofit corporation v. Debabrata Gupta, an unmarried man, 2 CA-CV 2025-0138.

Download memorandum decision

Scope note: This page covers Desert Crown III Homeowners Association, an Arizona nonprofit corporation v. Debabrata Gupta, an unmarried man (2 CA-CV 2025-0138) as a public Arizona Court of Appeals HOA case guide. The downloadable source-document index below is generated from local raw source files when a PDF opinion is available. This page is educational and is not legal advice.

The takeaway

Affirmed. A self-represented (in propria persona) appellant is held to the same procedural standards as a licensed attorney; an appellant whose briefs cite no supporting legal authority and develop no legal argument waives appellate review, and the appellate court will not reweigh evidence already considered by the trial court.

Case Participants

Petitioner Side

  • Debabrata Gupta (Defendant/Appellant)
    Homeowner; self-represented (in propria persona / pro se); listed as an unmarried man of Scottsdale.

Respondent Side

  • Desert Crown III Homeowners Association (Plaintiff/Appellee)
    Arizona nonprofit corporation
    The homeowners association that filed the lien-foreclosure suit; prevailing party on appeal.
  • Garren R. Laymon (Counsel)
    Maxwell & Morgan P.C., Mesa
    Counsel for Plaintiff/Appellee Desert Crown III Homeowners Association.

Neutral Parties

  • Judge Eckerstrom (Judge (author of the decision))
    Arizona Court of Appeals, Division Two
    Authored the memorandum decision of the court.
  • Presiding Judge Gard (Presiding Judge)
    Arizona Court of Appeals, Division Two
    Concurred in the decision.
  • Judge O’Neil (Judge)
    Arizona Court of Appeals, Division Two
    Concurred in the decision.
  • Hon. Adam D. Driggs (Superior Court Judge)
    Maricopa County Superior Court
    Trial judge whose judgment was affirmed on appeal.

What happened

Desert Crown III Homeowners Association, an Arizona nonprofit corporation, initiated a lien-foreclosure suit against homeowner Debabrata Gupta in Maricopa County Superior Court (No. CV2023096287).

The superior court granted the association’s motion to dismiss Gupta’s counterclaim.

The superior court granted summary judgment in favor of the association.

The superior court denied Gupta’s motion for reconsideration and entered judgment against him as to the lien foreclosure.

Gupta, representing himself (in propria persona), appealed, arguing the superior court erred in finding a factual basis for the monetary claims underlying the judgment.

The Court of Appeals held Gupta to the same procedural standards as a represented appellant.

The court found Gupta’s opening brief cited no legal authority and that his reply brief cited Rule 403, Ariz. R. Evid., without developing any legal argument, warranting waiver of appellate review.

The court noted that, even reaching the merits, it would not reweigh the evidence as Gupta requested.

On March 19, 2026, the Court of Appeals, Division Two, affirmed the superior court’s judgment in an unpublished memorandum decision, denied the association’s request for attorney fees, and awarded it costs on appeal as the prevailing party.

Video overview of the ruling

An AI-generated video overview of Desert Crown III Homeowners Association, an Arizona nonprofit corporation v. Debabrata Gupta, an unmarried man (2 CA-CV 2025-0138). Affirmed. A self-represented (in propria persona) appellant is held to the same procedural standards as a licensed… 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 Desert Crown III Homeowners Association, an Arizona nonprofit corporation v. Debabrata Gupta, an unmarried man. Generated from the case filings; verify against the linked ruling below.

Audio overview generated with Google NotebookLM from the case’s court filings.

Procedural timeline

Step Date not specified Desert Crown III Homeowners Association initiates a lien-foreclosure suit against Debabrata Gupta in Maricopa County Superior Court (No. CV2023096287).
Step Date not specified Superior court grants the association’s motion to dismiss Gupta’s counterclaim.
Step Date not specified Superior court grants summary judgment in favor of the association.
Step Date not specified Superior court denies Gupta’s motion for reconsideration and enters a lien-foreclosure judgment against him.
Step Date not specified Gupta, self-represented, appeals to the Arizona Court of Appeals, Division Two (No. 2 CA-CV 2025-0138).
Step 2026-03-19 Court of Appeals, Division Two, files an unpublished memorandum decision affirming the superior court’s judgment.

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/desert-crown-iii-homeowners-association-v-gupta/raw/: 1 PDF. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

FAQ

What was Desert Crown III Homeowners Association v. Gupta about?

Desert Crown III Homeowners Association sued homeowner Debabrata Gupta in Maricopa County Superior Court to foreclose an assessment lien. The superior court dismissed Gupta’s counterclaim, granted summary judgment for the association, and entered a lien-foreclosure judgment. Gupta appealed, and the Arizona Court of Appeals, Division Two, affirmed.

Why did Gupta lose the appeal?

The Court of Appeals held that Gupta’s appeal was procedurally deficient: his opening brief cited no legal authority as required by Ariz. R. Civ. App. P. 13(a)(7)(A), and although his reply brief cited Rule 403 of the Arizona Rules of Evidence, he developed no legal argument. These deficiencies warranted waiver of appellate review. The court also noted that, even reaching the merits, it would not reweigh the evidence.

Does it matter that Gupta represented himself?

The court afforded Gupta, who appeared in propria persona (pro se), the same consideration as a represented appellant and held him to the same familiarity with court procedures and rules expected of a lawyer. Representing himself did not lower the procedural standards he had to meet.

Did the association get its attorney fees and costs?

The association requested attorney fees and costs under Rule 21, Ariz. R. Civ. App. P., and A.R.S. §§ 12-341 and 12-341.01. The court exercised its discretion to deny attorney fees, but awarded the association its costs on appeal as the prevailing party under A.R.S. § 12-341.

Is this decision binding precedent?

No. The decision is an unpublished memorandum decision and does not create legal precedent. It may not be cited except as authorized by applicable rules (see Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f)). It is offered here only as an educational illustration of how assessment-foreclosure appeals are handled.

What is the practical takeaway for homeowners and associations?

An appellate court will not reweigh the evidence a trial court considered, and a brief that cites no legal authority and develops no legal argument can result in the issues being waived. Disagreeing with a trial court’s factual findings, without identifying a specific legal error supported by authority, is unlikely to succeed on appeal.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation2 CA-CV 2025-0138
Court / tribunalCourt of Appeals
Decision / key dateMarch 19, 2026
Judge / panelJudge Eckerstrom (author), Presiding Judge Gard, Judge O’Neil, Hon. Adam D. Driggs (Maricopa County Superior Court)
PartiesDesert Crown III Homeowners Association v. Debabrata Gupta
Governing law
  • A.R.S. § 12-120.21
  • A.R.S. § 12-2101
  • A.R.S. § 12-341
  • A.R.S. § 12-341.01
Topics
ForeclosureAssessmentsProcedureAttorney Fees
Outcome / holding

Affirmed. A self-represented (in propria persona) appellant is held to the same procedural standards as a licensed attorney; an appellant whose briefs cite no supporting legal authority and develop no legal argument waives appellate review, and the appellate court will not reweigh evidence already considered by the trial court.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package1 PDF
Step-by-step docket roadmap6 roadmap entries
Video overviewDesert Crown III Homeowners Association, an Arizona nonprofit corporation v. Debabrata Gupta, an unm
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

Desert Crown III Homeowners Association sued homeowner Debabrata Gupta in Maricopa County Superior Court to foreclose an assessment lien on his property. The superior court granted the association’s motion to dismiss Gupta’s counterclaim, granted summary judgment for the association, denied Gupta’s motion for reconsideration, and entered a lien-foreclosure judgment against him. Representing himself, Gupta appealed, arguing the superior court lacked a factual basis for the monetary claims underlying the judgment. The Arizona Court of Appeals, Division Two, affirmed in an unpublished memorandum decision. The court held that a self-represented appellant is held to the same procedural standards as a licensed attorney, and that Gupta’s briefs cited no supporting legal authority and developed no legal argument, which waived appellate review. The court added that, even reaching the merits, it would not reweigh the evidence as Gupta requested. It denied the association’s request for attorney fees but awarded it costs on appeal as the prevailing party.

Key Issues & Findings

Reviewing the record in the light most favorable to upholding the superior court’s decision (Tucson Estates Property Owners Ass’n v. Jenkins, 247 Ariz. 475, ¶ 2 (App. 2019)), the court confirmed it had jurisdiction over the appeal under A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1). Although Gupta represented himself, the court explained that a self-represented litigant is afforded the same consideration as a represented appellant and is held to the same familiarity with court procedures and rules expected of a lawyer (Higgins v. Higgins, 194 Ariz. 266, ¶ 12 (App. 1999)).

The court found Gupta’s appeal procedurally deficient. His opening brief cited no legal authority to support his claim of error, contrary to Ariz. R. Civ. App. P. 13(a)(7)(A), which requires citations of legal authority and references to the record for each issue. While his reply brief cited Rule 403, Ariz. R. Evid., he developed no supporting legal argument. Citing Ritchie v. Krasner, Boswell v. Fintelmann, and Sholes v. Fernando, the court held these deficiencies warranted waiver of appellate review.

Even if it reached the argument, the court noted Gupta was effectively asking it to reweigh the evidence, which is not part of an appellate court’s duty on review (Hurd v. Hurd, 223 Ariz. 48, ¶ 16 (App. 2009)). On fees, the court exercised its discretion to deny the association’s request for attorney fees under Rule 21, Ariz. R. Civ. App. P., and A.R.S. §§ 12-341 and 12-341.01, but awarded the association its costs on appeal as the prevailing party under A.R.S. § 12-341.

Why It Matters

This is a current, real-world example of how Arizona courts handle an appeal from an HOA assessment-lien foreclosure judgment, and of the practical risk of appealing without counsel. The decision illustrates two recurring points for homeowners and associations: self-represented litigants are held to the same procedural rules as attorneys, and an appellate brief that cites no legal authority and develops no legal argument can be deemed to waive the issues entirely. It also shows that appellate courts will not reweigh the evidence a trial court considered, so disagreement with the trial court’s factual findings is unlikely to succeed on appeal without identifying a legal error. Because the decision is unpublished, it does not create binding precedent, but it is instructive about how assessment-foreclosure appeals proceed and the consequences of procedural missteps.

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