Category Archives: Court of Appeals

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In 2012, McGovern and Sines purchased property in Tucson Estates with an existing 35-year-old shed.

Sines submitted a change request to replace the shed and received verbal approval from a TEPOA inspector; TEPOA failed to send their written denial form.

Sines completed the shed, and more than a year later TEPOA sent a letter alleging a violation of the CC&Rs.;

Sines corresponded with TEPOA and ultimately moved the shed to the cement pad where the original shed had stood.

TEPOA sued the homeowners seeking an injunction, liquidated damages, and attorney fees for breach of contract.

The trial court denied TEPOA’s injunction, vacated the fines, and ordered both sides to bear their own fees and costs.

The homeowners appealed the denial of attorney fees under A.R.S. § 12-341.01 and sanctions under A.R.S. § 12-349, and the denial of costs under A.R.S. § 12-341.

The Arizona Court of Appeals affirmed the denial of attorney fees but reversed the denial of trial court costs.

Video overview of the case record

An AI-generated video overview of Tucson Estates Property Owners Association, Inc. v. McGovern (2 CA-CV 2015-0069 (Ariz. Ct. App.)). Unilateral CC&R fee provisions do not mandate reciprocal fee awards under A.R.S. 12-341.01(A). This plain-language summary was generated from the court’s filings; the court’s own records control.

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An AI-generated audio deep dive walking through the case record in Tucson Estates Property Owners Association, Inc. v. McGovern. Generated from the case filings; verify against the linked records below.

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Sunland Springs Village is a planned community in Maricopa County, Arizona, subject to Arizona’s Planned Community Act (A.R.S. Title 33, Chapter 16, §§ 33-1801 to 33-1820). The community is governed by a homeowners association that conducts its business through board of directors’ meetings, some of which are closed to residents. The homeowner in this case owns residential property in the community and holds it through the AZNH Revocable Trust.

According to the opinion, Sunland Springs did not permit residents to attend its closed meetings except by invitation, and its board president determined what business would be addressed in closed sessions. Before a closed meeting, the association gave members notice of the date, time, and place and quoted the language of A.R.S. § 33-1804(A) that allows meetings to be closed. Its closed-meeting agendas identified matters only by the paragraph of Section 33-1804(A) corresponding to the topic.

The opinion states that Sunland Springs conducted formal business and voting during its closed meetings. Among other things, the board approved a $917,000 budget item, granted the community manager up to $7,000 in discretionary spending authority, addressed 13 waivers of the community’s minimum-age requirement for residents, and authorized foreclosures against two homeowners—all in closed session.

In December 2023, the homeowner filed a declaratory-judgment action in Maricopa County Superior Court (No. CV2023-096192), alleging that Sunland Springs failed to conduct its meetings in compliance with Section 33-1804. After initial discovery, the homeowner moved for summary judgment on three points: that the board improperly voted and took formal action in closed meetings; that it had to designate closed-meeting agenda items by formal action at open meetings; and that its notices and agendas for closed meetings were deficient.

The superior court, the Honorable Rodrick J. Coffey presiding, granted summary judgment in part and denied it in part. It agreed that Section 33-1804 required votes to occur in open session, but held that the statute did not require the board to select closed-meeting agenda items by formal action at an open meeting, and did not require notices or agendas to describe closed-meeting topics beyond citing the applicable paragraph of Section 33-1804(A). The parties agreed the ruling resolved all claims, the court entered a final judgment under Arizona Rule of Civil Procedure 54(c), and both sides appealed.

On April 28, 2026, Division One of the Arizona Court of Appeals issued a published opinion authored by Judge James B. Morse Jr. and joined by Presiding Judge Andrew M. Jacobs and Judge Brian Y. Furuya. The court affirmed that all votes and formal actions must occur at open meetings and that the content of the association’s notices complied with the statute. It reversed on the agenda issue, holding that closed-meeting agendas must reasonably describe the matters to be addressed, and it remanded for factual development on whether the board properly delegated to its president the duty to identify the reason for closing a meeting.

Because both parties prevailed in part, the court declined to award costs on appeal to either side and remanded for further proceedings consistent with its opinion. As of the opinion’s issuance, a petition for review was pending before the Arizona Supreme Court (No. CV-26-0167-PR), so the decision’s ultimate status could change.

This is a landmark 2026 interpretation of Arizona’s HOA open-meeting statute, A.R.S. § 33-1804, and it draws a bright line for planned-community and condominium boards: they may deliberate on sensitive matters such as legal advice, litigation, personnel, and member appeals behind closed doors, but they may not vote or take formal action there. Approving budgets, granting spending authority, ruling on waivers, or authorizing foreclosures must happen at an open meeting where members can be present and can speak before the vote. Boards that have historically finalized business in executive session will need to move those votes into open session. The decision also reshapes how boards must describe closed-session business. An agenda—even for a closed portion of a meeting—must give members information reasonably necessary to understand what will be addressed, not merely a citation to the statutory paragraph that authorizes closing the meeting, while still protecting personally identifying and privileged information. For homeowners, the ruling strengthens the right to meaningful notice and participation; for associations and managers, it signals a need to revise meeting notices, agendas, and closure procedures, including how the authority to state the reason for a closed meeting is delegated. Because the opinion is published it is binding Arizona precedent, but a petition for review is pending in the Arizona Supreme Court (No. CV-26-0167-PR), so its status could change.

Open-meetings note: the published decision is treated here as a landmark Arizona planned-community open-meetings authority because it distinguishes deliberation from formal board action under A.R.S. section 33-1804.

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The Elis, the Whitmers, and Diana Shaffer (collectively the “Homeowners”) own or previously owned casitas at the Scottsdale Hilton Casitas. Although they own their houses, they lease the ground on which the houses sit from Procaccianti AZ II LP (the “Hotel”). Since at least 2012 the Homeowners, the Hilton Casitas Homeowners Association (the “HOA”), and the Hotel had been locked in litigation over the price of the ground lease and related disputes, generating several prior appeals.

In January 2018 the Hotel asked to meet with the Homeowners to negotiate a global settlement resolving all pending litigation, including appeals. The Homeowners agreed but demanded that no litigation counsel attend. The HOA said its representative, Mike Bengson, would attend and would convey the HOA’s non-negotiable terms beforehand. The Elis then demanded that Bengson not attend, asserting he lacked real authority, and warned they would walk out if he did. Per the Elis’ demand, Bengson did not attend; the HOA did not convey its demands to the Homeowners but did disclose them to the Hotel, and those demands sought a global settlement of all pending litigation involving the Whitmers, the Elis, and Mrs. Shaffer.

At the meeting, the Hotel’s general counsel, Ron Hadar, and its CFO attended. After Zadoc Eli, Tim Shaffer (for Mrs. Shaffer), and Lamar Whitmer arrived, the Hotel asked Mr. Whitmer to leave because the Whitmers’ claims concerned only the HOA, which was not present; Whitmer left, and the Hotel did not pass along the HOA’s demands. Mr. Eli and Mr. Shaffer each stated their demands. Mr. Eli demanded that the Hotel pay him $228,829, set his ground lease at $690 per month until 2036, and waive more than $500,000 in fees awarded against the Homeowners in prior cases. Hadar wrote down each demand and recited them back at the end of the meeting. The parties exchanged no draft agreements and signed nothing, and Hadar discarded his notes soon after.

The Homeowners promptly asserted that an enforceable settlement had been reached. The Hotel disagreed and filed a complaint seeking a declaratory judgment that no settlement existed (the “Declaratory Action”). The Homeowners answered, asserted counterclaims, and filed a separate complaint (the “Tort Action”) raising substantially the same claims as their counterclaims. On the Homeowners’ motion, the court consolidated the two cases.

The parties filed cross-motions for summary judgment on the declaratory-relief claim. The Hotel argued that no valid settlement existed under Rule 80(a) and the Statute of Frauds, A.R.S. § 44-101. The Elis argued that Hadar’s notes evidenced a binding agreement. The Hotel acknowledged Hadar had written down the Elis’ demands but argued it never acquiesced, contending Hadar had told the Homeowners that no agreement could be made without meeting conditions, including the approval of the Hotel’s owner, Procaccianti. For the first time in the cross-motion, the Whitmers argued they should be dismissed because they had been excluded from the meeting. Meanwhile, Mrs. Shaffer settled, leaving the Elis and the Whitmers.

The superior court ruled there was no settlement agreement. It reserved the Declaratory Action counterclaims for resolution in the Tort Action, entered declaratory judgment for the Hotel with Rule 54(b) finality language, and awarded attorneys’ fees jointly and severally against the Homeowners in the amount of $114,255.70. The court denied the Elis’ and Whitmers’ motion for a new trial, and they timely appealed.

The Court of Appeals affirmed. It held Rule 80(a) applied because there was a genuine dispute over whether the Hotel had imposed conditions precedent, and remanding for a trial on added oral conditions would eviscerate the rule’s anti-fraud purpose. Hadar’s notes recorded only the Elis’ demands and did not show the Hotel’s assent, so no enforceable writing existed. The Whitmers were proper parties because they defended the alleged settlement and asserted counterclaims dependent on the contract’s existence rather than moving to be dismissed; because a dispute over the existence of a contract is a contract matter, they were jointly and severally liable for fees, and the court granted the Hotel its appellate fees under A.R.S. § 12-341.01.

For HOA communities and their members, this decision is a reminder that settlements of pending litigation carry a heightened formality requirement. Even when the parties meet, discuss numbers, and one side writes them down, there is no enforceable deal unless it is reduced to a signed writing or stated orally in open court and entered in the minutes. Rule 80(a) exists precisely to prevent later disputes about what was agreed, so homeowners, boards, and their counsel should insist on a signed term sheet before treating a negotiation as resolved and should be wary of relying on an opponent’s informal notes. The decision also shows the fee exposure that flows from how a party litigates. The Whitmers, who were not even in the room, still faced joint and several liability for the Hotel’s fees because they answered, defended the alleged settlement, and pressed counterclaims that depended on the contract existing, instead of promptly moving to be dismissed. Because a fight over whether a contract exists is treated as a contract action, A.R.S. § 12-341.01 allowed a fee award to the prevailing party. As an unpublished memorandum decision under Arizona Supreme Court Rule 111(c), the ruling is not precedential and may be cited only as that rule allows, but it illustrates well-settled Arizona principles on settlement enforceability and fees.

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West Frontier Condominiums HOA, Inc. is the unit owners’ association for the Frontier Condominiums in Payson, Arizona. In October 2005, unit owners David and Joan Levengood rented their unit to Lynn Bergeson.

In 2006, with the Levengoods’ permission but without seeking permission from or notifying the association, Lynn replaced an overhead light fixture in the unit with a ceiling fan. In 2007, a smoldering fire ignited in the wiring above the fan, producing lethal levels of carbon monoxide that killed Lynn.

Lynn’s children, Christopher and Amy Bergeson, brought a wrongful-death action against the Levengoods and West Frontier, claiming the association had negligently failed to use reasonable care to discover and fix faulty wiring above the ceiling fan. The Court of Appeals twice reversed the trial court’s entry of summary judgment in the association’s favor, and in 2019 the case proceeded to a jury trial on the negligence claim.

The jury returned a verdict for the Bergesons, apportioning seventy-five percent of the fault to West Frontier and twenty-five percent to non-parties. After the trial court entered an amended judgment for the Bergesons, the association filed a renewed motion for judgment as a matter of law or, alternatively, for a new trial. The trial court denied the motions, and West Frontier appealed.

On appeal, the association argued the plaintiffs had presented no evidence it breached any duty to Lynn. The court agreed there was no evidence the association created the defect: the units were built in the mid-1980s and the electrical work passed Town of Payson inspection in 1984-85, years before the HOA incorporated in March 2007. The plaintiffs’ ‘mere continuation’ successor-liability theory, resting solely on A.R. Teeters & Associates, failed because they showed no assumption of liabilities and no genuine continuation, and even a continuation would not have created a defect that pre-dated the association.

On the question of notice, the court held the trial court abused its discretion by admitting testimony about kitchen code violations (missing nail plates, exposed wiring behind the range, and a misplaced outlet) that were discovered only after the fire. That evidence was irrelevant and unfairly prejudicial: it was unrelated to the living-room ceiling wiring, one of the plaintiffs’ own experts admitted the kitchen defects had nothing to do with the fire, and it allowed the jury to impute notice the association never had. A duty to inspect arises only when there is a reason to suspect a defect, and no prior similar incident provided one.

Finally, the court held the non-delegable-duty instruction (drawn from Ft. Lowell-NSS Ltd. Partnership v. Kelly and Restatement (Second) of Torts Section 422) was erroneous. It reached ‘third parties’ who were neither employees nor independent contractors, no association employee or contractor was shown to be negligent, and the doctrine could not be used to make the association liable for a unit owner’s own alteration of a fixture the recorded Declaration made the owner responsible to maintain. Because the irrelevant evidence and the flawed instruction together held the association to a standard approaching strict liability, the court vacated the judgment and remanded for entry of judgment in favor of West Frontier.

This decision illustrates that an Arizona condominium association is not an insurer of its members’ safety. Under the Arizona Condominium Act (A.R.S. Section 33-1247(A)) and Martinez v. Woodmar IV Condominiums Homeowners Ass’n, an association owes a duty of reasonable care to maintain the common elements, but ordinary premises-liability principles still require proof that the association created a dangerous condition, actually knew of it, or should have discovered it in the exercise of reasonable care. A duty to inspect arises only when the association has some reason to suspect a latent defect. The court refused to let a tragic outcome, standing alone, convert that reasonable-care standard into strict liability for a hidden wiring condition the association had no way to know about, especially where a unit owner altered a fixture without the notice or permission the recorded Declaration required. Just as important, this is an unpublished memorandum decision. Under Ariz. R. Sup. Ct. 111(c) and Ariz. R. Civ. App. P. 28, it does not create legal precedent and may be cited only as authorized by rule; it is persuasive at most, not binding. It is useful as an educational illustration of how notice, relevance, and non-delegable-duty doctrines are applied to a condominium association, and of the practical value of the maintenance-and-alteration allocations in a condominium Declaration, but it should not be treated as a controlling statement of Arizona law. It also shows how evidentiary and jury-instruction errors can independently require reversal even after a jury verdict.

Video overview of the case record

An AI-generated video overview of Bergeson v. West Frontier Condominiums HOA, Inc. (No. 2 CA-CV 2019-0117 (Ariz. Ct. App. Oct. 30, 2020) (mem. decision)). The condominium association was entitled to judgment as a matter of law on the wrongful-death negligence claim. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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An AI-generated audio deep dive walking through the court record and procedural posture in Bergeson v. West Frontier Condominiums HOA, Inc.. Generated from the case filings; verify against the linked case records below.

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Sonia and Douglas Bendt, a married couple, purchased a condominium in the Fairway Lodge community in 2008. Tim and Christina Tarter moved into Fairway Lodge in 2013. Fairway Lodge is a luxury condominium complex governed by a homeowners’ association board, and owners paid $795 in monthly HOA dues. Mr. Tarter and the Bendts ran against each other in the 2013 HOA election; Mr. Tarter won a seat, and his fellow board members elected him president for 2014.

During Mr. Tarter’s term as HOA president, Sonia Bendt launched a campaign attacking his reputation and his handling of the presidency, including a July 2014 newsletter titled ‘Fairway Times at the Biltmore’ — described as an ‘independent newsletter’ — emailed to fellow residents, followed by a September 2014 newsletter. The newsletters and related communications accused Mr. Tarter of lacking ethics or behaving unethically or illegally, concealing material financial information from members, misleading members and acting unlawfully, conducting and facilitating ‘secret’ board meetings, violating the HOA’s CC&Rs, failing to give timely meeting notice, and wrongfully overspending HOA funds — including a claim that the HOA was ‘$40,000 in the hole’ — such that monthly dues would soon rise.

The Tarters also introduced evidence that Mrs. Bendt called Mr. Tarter names such as ‘idiot,’ ‘fool,’ ‘spineless,’ ‘lowlife,’ ‘low-class sneak,’ ‘unethical,’ and ‘a complete fake’ in front of fellow members, disparaged his legal education and alma mater, called him a habitual liar, and accused him of violating his attorney ethical obligations — writing that he could be disciplined by the Arizona State Bar and investigated by the Attorney General. She also wrote emails calling Mrs. Tarter, whom she had never met, a ‘bitch’ and a ‘drinking dog walker.’ The Tarters sued the Bendts for defamation in Maricopa County Superior Court (No. CV2015-002596).

The parties stipulated that Mr. Tarter, as HOA president, was a limited-purpose public figure, so the Tarters had to prove that Mrs. Bendt’s defamatory statements were made with ‘actual malice’ — knowledge of falsity or reckless disregard for whether they were false. At trial the parties focused on whether Mr. Tarter had been asked to resign, an $8,000 exterminator payment, a tree removal, the Board’s executive sessions, roughly $40,000 in alleged overspending, and the monthly HOA fees. Witnesses including Mr. Tarter, a past president (‘Moe’), the treasurer (‘Steve’), a board member (‘Deborah’), and a successor president (‘Dan’) testified that the statements were false, and the jury heard that a 2015 independent audit found ‘zero deficiencies.’

After an eight-day trial, the jury returned a verdict for the Tarters, awarding $150,000 for reputational harm, $350,000 for emotional harm, and $1 million in punitive damages; the superior court (Hon. Margaret R. Mahoney) added $20,120.42 in taxable costs. The court denied the Bendts’ motions for judgment as a matter of law and for a new trial, noting that the evidence supporting the challenged areas was ‘both abundant and compelling.’ The Bendts timely appealed.

On appeal, the Bendts argued that the evidence was insufficient to prove actual malice (contending Mrs. Bendt’s statements were opinion, hyperbole, or protected political speech, were substantially true, or were reasonably believed based on information from others); that the trial court erred in several evidentiary rulings, including denying broad motions in limine, admitting emails disparaging other board members, admitting evidence of other lawsuits, and admitting evidence that Mrs. Bendt carried a defamation liability insurance policy; that the court violated due process by refusing to strike a juror whose daughter had attended Mr. Tarter’s law school; and that both the compensatory and punitive damages were excessive and unconstitutional.

The Court of Appeals, Division One, affirmed in full. It held that substantial evidence supported the finding that several newsletter statements were provably false facts published with actual malice; that the Bendts’ motions in limine were improper and preserved nothing, and the challenged exhibits were properly admitted under Rules 403, 404(b), and 411 (the defense having ‘opened the door’ to the insurance evidence); that the juror-bias challenge failed because the juror served only as a non-voting alternate; that the $500,000 compensatory award was supported by evidence of actual injury and did not shock the conscience; and that the 2:1 punitive-to-compensatory ratio was constitutionally permissible under the State Farm guideposts. The court affirmed the judgment.

Tarter v. Bendt illustrates how ordinary HOA governance disputes — a contested board election, criticism of a president’s spending and meeting practices — can escalate into a large defamation judgment. Because the parties stipulated that Tarter was a ‘limited-purpose public figure’ by virtue of holding the HOA presidency, the case applies the demanding New York Times v. Sullivan ‘actual malice’ standard to a volunteer community leader, showing that heated criticism of board conduct is broadly protected as opinion or hyperbole, but that specific, provably false factual accusations (secret meetings, CC&R violations, a fabricated $40,000 shortfall, an imminent dues increase) published without checking readily available records can support liability and, here, $1 million in punitive damages. The decision is a caution to both HOA critics and boards about the line between protected political speech and actionable defamation. At the same time, the opinion’s weight is limited: it is an unpublished memorandum decision that, under Ariz. R. Sup. Ct. 111(c), is not precedential and may be cited only as the rule allows. It applies settled defamation, evidence, and punitive-damages doctrine to a specific factual record rather than announcing new HOA law, and the association itself was not a party — the dispute was homeowner-versus-homeowner. Readers should treat it as an illustrative fact pattern about HOA-election defamation, not as binding authority, and consult a qualified Arizona attorney about their own situation.

Video overview of the ruling

An AI-generated video overview of Tarter, et al. v. Bendt, et al. (1 CA-CV 19-0703 (Ariz. App. Div. 1 Jan. 28, 2021) (memorandum decision — not precedential under Ariz. R. Sup. Ct. 111(c))). The Court of Appeals affirmed the defamation judgment in full. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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An AI-generated audio deep dive walking through the court’s reasoning and disposition in Tarter, et al. v. Bendt, et al.. Generated from the case filings; verify against the linked ruling below.

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Derailed, LLC owned a lot in the Pinnacle Peak Vistas III subdivision in Scottsdale, Arizona, a planned community governed by recorded CC&Rs and Architectural Committee Rules. The company’s principal, Arvin Bernstein, lived on the property. In 2006 the owner installed a metal yard sculpture of a saguaro cactus wearing sunglasses and holding an electric guitar.

Roughly two years later, the Association sent notices treating the sculpture as an unapproved modification and demanding removal. The notices did not clearly identify the exact provisions allegedly violated. The Association later pointed to landscaping language, structure/exterior-review provisions, and provisions barring signs, billboards, unsightly objects, or nuisances.

The superior court granted summary judgment to Derailed, concluding that the governing documents did not require approval for, or prohibit, this sculpture. The Association appealed.

The Court of Appeals affirmed part of the owner’s win. It agreed that the sculpture was not landscaping: ordinary landscaping means plantings, ground cover, grading, or similar treatment of land, and the Association offered no evidence that the sculpture damaged vegetation or conflicted with the desert environment. The court also agreed that the sculpture was not a structure or dwelling under the cited provisions, which in context referred to buildings or constructed things that can be entered into or walked upon.

The court reversed only on a narrower theory. Article I section 13 and Rule 2.28 prohibited signs, billboards, unsightly objects, or nuisances. Because the Association had cited those provisions and an unsightly-object clause could include a sculpture, summary judgment for the owner was premature on that issue.

The appellate court did not decide that the cactus sculpture was unsightly, did not order it removed, and did not give the Association a final merits win. It remanded for further proceedings, including factual questions about reasonableness, delay, and alleged selective enforcement.

Because this is an unpublished memorandum decision, it is non-precedential and may be cited only as allowed by Arizona court rules. It is useful here as a practical example of how architectural-control disputes can turn on the exact words a community chose in its governing documents.

This decision cuts both ways. For homeowners, it rejects an association’s attempt to stretch landscaping and structure provisions beyond their ordinary meaning just because a board dislikes a yard object. Silence in the CC&Rs mattered on those theories, and the court would not defer to the Association’s broad interpretation. For associations, the case preserves a narrower enforcement path when governing documents separately prohibit unsightly objects or nuisances. But that path still requires reasonable application, factual development, and attention to defenses such as delay and selective enforcement. The decision is unpublished and non-precedential, so it is best treated as a practical illustration rather than binding law. Counsel note: Carpenter Hazlewood represented the Association in this architectural-review appeal.

Video overview of the case record

An AI-generated video overview of Pinnacle Peak Vistas III Homeowners’ Association v. Derailed, LLC (No. 1 CA-CV 10-0604 (Ariz. Ct. App. Div. One May 31, 2011) (mem. decision)). Court affirmed owner wins on landscaping/structure theories but remanded the narrower unsightly-object issue. This plain-language summary was generated from the court’s filings; the court’s own records control.

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In 2004, Christine Gelb bought a lot in a Sedona subdivision governed by the Sedona Casa Contenta Homeowners Association. Casa Contenta is an unusually design-conscious community: most of the land is common area owned by all residents, each owner builds within a defined “building pad,” and construction is governed both by an Amended and Restated Declaration of CC&Rs and by a separate 48-page Design Guidelines and Construction Regulations document (adopted October 2004 and incorporated into the CC&Rs) that repeatedly stresses harmonizing with the natural desert environment. After the community’s Design Review Committee approved her plans in June 2006, Gelb built a roughly $2.1 million home and installed the required landscaping, wintering in Sedona and returning to Wisconsin in the summers.

The dispute began with rock. In December 2006 the HOA board decided it wanted non-indigenous crushed gravel placed in the common area around Gelb’s home. In 2007, while Gelb was away for the summer, the association brought in a dump truck and installed red crushed gravel in front of her house without her approval. Gelb saw this as both a breach of the Design Guidelines (which call for leaving the natural landscape undisturbed outside the building pad) and, more pointedly, uneven treatment: the community had gold, white, and red rock in different areas, and not every owner was required to take the same treatment.

Rather than sue, Gelb used the administrative option the Legislature had created in 2006. Under A.R.S. sections 41-2198 to -2198.05, a homeowner or association could petition the Department of Fire, Building and Life Safety, which could refer the matter to the Office of Administrative Hearings for a hearing before an administrative law judge (ALJ). Gelb filed her petition on March 13, 2008, invoking Article XII, section 3 of the CC&Rs — the “Equal Treatment of Owners” anti-discrimination clause — along with Restatement of Property servitudes principles and related statutes.

At the June 10, 2008 hearing, the ALJ limited the scope to the single Article XII, section 3 clause Gelb had cited in her petition and declined to decide whether the HOA had violated the Design Guidelines, reasoning that no other governing-document violation had been “alleged in the petition.” Notably, a witness testified that the association had trucked in roughly 28 tons of crushed gravel community-wide in the weeks before the hearing, with another ten tons arriving the day after — which Gelb argued was an attempt to paper over the uneven, discriminatory treatment. The ALJ nonetheless found the HOA had not violated the CC&Rs.; Under the statute, that decision was final and not subject to any review or rehearing by the DFBLS; the only avenue was review in the superior court.

Gelb filed a complaint for judicial review in Yavapai County Superior Court (No. V1300CV820080197, before Judge Michael R. Bluff). There, the HOA moved to dismiss on a theory Gelb had never expected: that the entire administrative process was unconstitutional because it violated the separation-of-powers provision of Article 3 of the Arizona Constitution. The superior court summarily denied that motion, then — applying what Gelb argued was the wrong standard of review — found the ALJ’s decision supported by the substantial weight of the evidence and denied her relief. Gelb appealed.

The appeal took an unusual shape. Gelb’s opening, answering, and reply briefs (March-May 2010) argued the CC&R and Design Guidelines merits. But the constitutional question the HOA had raised below loomed over the case, so the Court of Appeals ordered supplemental briefing (both sides filed on September 10, 2010) on two questions: a procedural gateway — whether ARCAP 13(b)(3) required the HOA to file a cross-appeal to raise the constitutional issue (and whether it had waived the issue) — and the merits of the separation-of-powers challenge itself.

On October 28, 2010, the Court of Appeals (Thumma, J., writing, with Presiding Judge Winthrop and Judge Irvine concurring) never reached the CC&R merits. It first cleared the procedural gateway: because holding the process unconstitutional neither enlarged the HOA’s rights nor lessened Gelb’s, no cross-appeal was required, and subject-matter-jurisdiction arguments are not waived. Then, applying the four-factor Cactus Wren / J.W. Hancock test, it held the process unconstitutional. Adjudicating a private CC&R dispute is judicial in nature (factor one); superior-court review was a real check (factor two, favoring the statute); but the DFBLS — a department created to regulate manufactured housing and fire safety — has no regulatory nexus to, or expertise in, planned communities (factors three and four). Unlike the mobile-home regulation upheld in Cactus Wren or the contractor-licensing power in J.W. Hancock, the DFBLS was “mechanically processing paperwork” in an area with no connection to its mission. The court vacated the superior court’s judgment and directed the DFBLS to dismiss Gelb’s complaint without prejudice for lack of jurisdiction, noting the DFBLS had itself stopped processing such claims in January 2009 after two other courts reached the same conclusion.

The story did not end at the Court of Appeals. Gelb petitioned the Arizona Supreme Court for review (No. CV-10-0371-PR), and HOA-reform advocate George Staropoli filed an amicus curiae brief; the HOA filed a response on February 22, 2011. On May 24, 2011, the Supreme Court denied review and — importantly — ordered that the Court of Appeals opinion “shall not be published” under Rule 111(g). That depublication is why Gelb, although reported at 225 Ariz. 515, is today a depublished decision: not binding precedent, and generally not citable as authority in Arizona courts.

For Arizona homeowners and associations, Gelb is a structural decision about where HOA disputes may be decided, not about who was right in any particular rock-and-gravel fight. Even depublished, its practical footprint is real. By holding the 2006 administrative-hearing process unconstitutional, the courts removed the inexpensive administrative forum homeowners and associations had used since 2006 and pushed CC&R disputes back toward the courts — until the Legislature revised the scheme so that petitions are filed with, and hearings conducted by, the Office of Administrative Hearings, the neutral adjudicative body the constitutional analysis pointed toward. Anyone researching today’s A.R.S. section 41-2198 framework should understand that its current shape traces partly to Gelb and the parallel cases that preceded it. This summary is educational and neutral; it is not legal advice, and homeowners or associations facing a dispute should confirm the current statutes and consult a qualified Arizona attorney.

Counsel note: Aspey, Watkins & Diesel represented homeowner Christine Gelb; the Arizona Attorney General’s Office represented the DFBLS; and Carpenter Hazlewood represented the Sedona Casa Contenta HOA, which raised the successful constitutional challenge.

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An AI-generated video overview of Gelb v. Department of Fire, Building & Life Safety (225 Ariz. 515, 241 P.3d 512 (App. 2010)). Arizona’s former HOA administrative-hearing system violated separation of powers and lacked jurisdiction. This plain-language summary was generated from the court’s filings; the court’s own records control.

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Garden Lakes is a planned community in Avondale, Arizona, whose lots are subject to recorded covenants, conditions, and restrictions (CC&Rs) administered by the Garden Lakes Community Association through an Architectural Review Committee. The Association’s architectural guidelines addressed solar devices, generally requiring that any panels be integrated into the roof design and screened so they would not be visible or detract from the neighborhood’s appearance.

Two homeowner couples — William and Joan Madigan and Henry and Lavonne Speak — installed solar panels on their roofs to heat their swimming pools. They did so without first obtaining Architectural Review Committee approval, and the installed panels were visible rather than screened or flush-mounted as the guidelines contemplated.

The Association treated the visible panels as a violation of its recorded guidelines and demanded that the homeowners bring the installations into compliance. When the homeowners did not remove or conceal the panels, the Association filed suit in Maricopa County Superior Court, seeking an injunction to compel compliance and damages for breach of the architectural restrictions.

The homeowners raised A.R.S. § 33-439(A) as a defense. That statute voids any covenant, restriction, or condition affecting real property that “effectively prohibits” the installation or use of a solar energy device (a term the statute ties to definitions in A.R.S. § 44-1761 and § 43-1083). The homeowners argued that the only ways to comply with the Association’s guidelines were impractical and prohibitively expensive, so the guidelines effectively prohibited their solar use.

After a bench trial, the superior court agreed with the homeowners. It found that the alternatives the Association offered — building a patio cover that would cost more than $5,000 and would violate the municipality’s setback requirements, or constructing an untested roof-line screening wall — were impractical and cost-prohibitive. On those findings it concluded the guidelines effectively prohibited the homeowners’ solar use and were void under § 33-439(A), and it entered judgment for the homeowners.

The Association appealed to Division One of the Arizona Court of Appeals, arguing chiefly that “effectively prohibits” should mean “absolutely precludes” and that the trial court’s findings were inadequate. The court of appeals disagreed. Reviewing the factual findings for clear error under Ariz. R. Civ. P. 52(a), and construing the statute functionally, the panel held that a restriction effectively prohibits solar use when compliance is impractical, cost-prohibitive, or destructive of the device’s efficiency, judged case-by-case against factors including cost relative to community home values, aesthetics, solar efficiency, and the association’s conduct.

The court affirmed the judgment for the homeowners and held the guidelines void as applied. Because the dispute arose out of contract (the recorded CC&Rs), the court also addressed attorneys’ fees under A.R.S. § 12-341.01 and awarded the prevailing homeowners their reasonable fees and costs on appeal. Sun City Grand Community Association appeared as amicus curiae addressing the statute’s scope for associations.

Garden Lakes v. Madigan is one of the anchor decisions defining how Arizona’s solar-access statute, A.R.S. § 33-439(A), limits HOA architectural control. By rejecting the argument that a restriction is void only if it makes solar literally impossible, the court gave the statute practical teeth: a rule can be unenforceable when the community’s demanded alternative is too expensive, too impractical, or too damaging to the panels’ efficiency to be a realistic option. That functional, case-by-case standard shifted the analysis from formal permissibility to real-world burden, and it is regularly cited when homeowners and associations dispute rooftop solar. For associations, the decision does not abolish architectural review of solar devices — associations may still adopt reasonable aesthetic standards — but it warns that guidelines that impose disproportionate cost, defeat the device’s purpose, or lack a workable compliant path risk being struck down as an effective prohibition. For homeowners, it confirms a statutory defense to enforcement actions and a potential basis to install solar even over an ARC’s objection. The case also illustrates that prevailing parties in these contract-based disputes may recover attorneys’ fees under A.R.S. § 12-341.01, raising the stakes of enforcement litigation for both sides.

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An AI-generated video overview of Garden Lakes Community Association, Inc. v. Madigan (204 Ariz. 238, 62 P.3d 983 (App. 2003)). HOA solar restrictions are void if they effectively prohibit solar-energy device installation. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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Heritage Heights Home Owners Association was created by the developer of a residential subdivision in 1970. The development plan made every resident an automatic member of the Association, and membership rights, privileges, and land-use restrictions were embodied as restrictive covenants imposed on every conveyance of a lot in the subdivision.

From 1970 through 1972, while lots were still being sold, the Association remained under the developer’s control and generally did not pursue violations of the deed restrictions, which were usually minor. In 1972 the individual homeowners took control of the Association and began a program of enforcement aimed at eliminating existing violations and preventing new ones.

As part of that program, the Association sent newsletters in March, April, and July of 1973 reminding residents of the restrictions, and it addressed existing violations through negotiation and, where necessary, litigation. The parties stipulated that the Association granted permanent variances for fences that substantially met the purpose of the restrictions (such as brick-and-masonry or wrought-iron-and-block fences) and that, for non-conforming wood fences built before enforcement began, its usual policy was to allow a five-year period to remove them.

In October 1973, after the three newsletters had gone out, Fred Esser began constructing a wooden “grapestake” fence. On October 15, 1973, a member of the Board of Directors saw the construction, told Esser the fence would violate the deed restrictions, and asked him to stop. Esser refused and completed the fence.

The Association sued for an injunction. After preliminary proceedings — including an order requiring the Association to join additional defendants and a later extension of time to do so — the case was tried on stipulated facts. The trial court ordered the Association to grant Esser a five-year variance to remove the fence within 30 days or face dismissal of the suit with prejudice, and it denied the Association any costs or attorneys’ fees.

On appeal, the Arizona Court of Appeals reversed both rulings. It held there was no record support for the five-year postponement and that Esser, who built with actual knowledge of the violation, was reasonably distinguished from good-faith owners; once the restriction was valid, no equity justified delaying removal. It also held that the declaration’s express fee provision contractually required an award of fees and costs to the prevailing Association, including fees on appeal, and it rejected Esser’s Rule 6(b) jurisdictional argument. The court remanded for entry of an injunction ordering immediate removal of the fence and for assessment of costs and attorneys’ fees.

For Arizona community associations and homeowners, Esser is a foundational, pre-Planned Communities Act statement that valid recorded CC&Rs will be enforced by injunction and that a knowing violator generally cannot obtain an open-ended delay to keep a non-conforming structure in place. The decision emphasizes that a board may treat differently those who built in good faith before enforcement and those who built with actual knowledge of a violation, and that equitable “grace periods” are discretionary, must be supported by the record, and cannot be imposed on the association by a court without an evidentiary basis. The case is also frequently cited for the enforceability of a declaration’s attorneys’-fee clause: where the recorded documents require a violating owner to pay the prevailing enforcing party’s fees and costs, the court is contractually bound to award them, including fees incurred on appeal. Homeowners should understand that ignoring a documented warning and completing a non-conforming improvement can expose them not only to a removal order but also to the association’s litigation costs. Because the opinion predates the Arizona Planned Communities Act (A.R.S. Title 33, Chapter 16) and current fee statutes such as A.R.S. section 12-341.01, readers should confirm how later statutes and case law apply to any specific dispute.

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An AI-generated video overview of Heritage Heights Home Owners Ass’n v. Esser (115 Ariz. 330, 565 P.2d 207 (App. 1977)). A valid, enforceable subdivision deed restriction must be enforced by injunction, and the trial court abused its… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

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Fisher’s home sat in a planned community governed by recorded CC&Rs that required owners to keep their property in a “clean and attractive condition” and allowed the HOA board to fine an owner who failed to cure a violation within thirty days of written notice.

Beginning in January 2014, the HOA sent Fisher a large number of violation notices—roughly ninety over about two years—complaining that she was using the home as a storage facility, that exterior components were broken, missing, or dilapidated, and that clutter visible from neighboring property blocked her blinds and posed a claimed health and safety concern. The HOA assessed fines at $25 per day.

In November 2015 the HOA sued in Maricopa County Superior Court (No. CV2015-095897) for breach of the CC&Rs, seeking an injunction to compel the repairs and a judgment for the accrued penalties.

At the evidentiary hearing, the HOA filed a pretrial statement and presented one witness (board member Ms. Curtiss) and five exhibits—photographs, a voluminous set of notice letters, a ledger of accrued fines, and the CC&Rs—but it did not put its written fine schedule into evidence. Fisher filed no pretrial statement and did not appear; her counsel attended, waived testimony, and offered no evidence, but argued that no fine schedule was in the record and that the HOA had not honored the thirty-day cure period.

The trial court entered an injunction requiring the exterior repairs and the interior changes (moving items that kept the blinds from closing and replacing dilapidated blinds), found the HOA had complied with the thirty-day notice requirement, and found the witness’s testimony sufficient to support the $25-per-day assessment. On its own motion the court reduced the requested $9,165.25 in penalties to $3,850—counting only fines that accrued after the HOA’s September 16, 2015 attorney letter—and awarded $10,839.70 in attorneys’ fees and $474 in costs under Rule 54(c).

Fisher appealed. Division One affirmed the injunction, including the interior items, holding that her interior-repair objection was raised for the first time on appeal and was therefore waived, and that the missing hearing transcript had to be presumed to support the trial court’s ruling.

The court reversed the penalties. It held that under A.R.S. § 33-1803(B) monetary penalties must be reasonable, that ad hoc fines are per se unreasonable under Villas at Hidden Lakes, and that an HOA must promulgate its fine schedule before imposing fines and prove reasonableness. Because no schedule was in evidence (best-evidence rule, Ariz. R. Evid. 1002) and the HOA bore the burden of proof, the $3,850 award could not stand, and the 58% reduction did not cure the defect. The attorneys’ fee award fell with the penalties, and the court awarded neither side fees on appeal. The Arizona Supreme Court later depublished the opinion, leaving it persuasive only.

For Arizona HOAs and homeowners, Turtle Rock III illustrates the practical difference between having the power to fine and being able to collect a fine. The decision reads A.R.S. § 33-1803(B) and Villas at Hidden Lakes together to require two things before a monetary penalty will hold up: the association must promulgate a written fine schedule before it imposes the fine, and, if the fine is challenged, it must prove both that the schedule existed and that the amount is reasonable. Because the association is the plaintiff in a collection or breach action, that burden is its own; a homeowner does not have to disprove the fines, and the best-evidence rule means the actual schedule (not a board member’s recollection) generally has to be in the record. The opinion also shows that a court’s willingness to cut an excessive fine does not rescue an otherwise unsupported penalty, and that daily or per-diem fines fixed in advance can look like an unenforceable penalty rather than a reasonable charge. An important caveat frames how much weight this case can carry: it was originally published at 243 Ariz. 294, 406 P.3d 824 (App. 2017), but the Arizona Supreme Court later ordered it depublished. A depublished opinion is not binding precedent and generally may not be cited as authority; it survives only as persuasive commentary and as a window into how one appellate panel applied the governing statute and the still-binding Villas decision. The underlying rule it relied on, however, comes from Villas at Hidden Lakes, which remains good law, so the core lesson about promulgating and proving a reasonable fine schedule continues to reflect Arizona law even though this particular opinion cannot be cited for it.

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