2025-03-06 — Lakewood Estates Homeowners Association, Plaintiff/Appellee, v. Michael A. Urbano, Defendant/Appellant ↑ top

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lakewood-estates-homeowners-association-v-urbano.pdf

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
LAKEWOOD ESTATES HOMEOWNERS ASSOCIATION,
Plaintiff/Appellee,
v.
MICHAEL A. URBANO, Defendant/Appellant.
No. 1 CA-CV 24-0377
Appeal from the Superior Court in Maricopa County
No. CV2020-010651
The Honorable Timothy J. Ryan, Judge
AFFIRMED IN PART; REVERSED IN PART
COUNSEL
Vial Fotheringham, LLP, Mesa
By Quinten T. Cupps, Christina N. Morgan, Deeann M. Barnes
Co-Counsel for Plaintiff/Appellee
Goering Roberts Rubin Brogna Enos & Treadwell-Ruben, PC, Tucson
By Andrew Apodaca
Co-Counsel for Plaintiff/Appellee
The Collins Law Firm, PLLC, Mesa
By Ernest Collins, Jr.
Counsel for Defendant/Appellant
FILED 03-06-2025

LAKEWOOD v. URBANO
Decision of the Court

2

MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Michael S. Catlett and Judge Daniel J. Kiley joined.

W E I N Z W E I G, Judge:

¶1
Michael Urbano appeals the superior court’s grant of
summary judgment and award of attorney fees. For the reasons that follow,
we affirm in part and reverse in part.
FACTS AND PROCEDURAL BACKGROUND
Contract Claims
¶2
Urbano bought a house in Lakewood Estates in 2005. At that
time, he agreed to all covenants, conditions and restrictions (“CC&Rs”)
running with the property and promised to pay the Homeowners
Association (“HOA”) assessments to maintain common spaces. The HOA
sued Urbano in justice court in 2014, alleging he failed to pay assessments
levied by the HOA.
¶3
The parties settled that lawsuit, and the justice court entered
an order (“2014 Order”) to dismiss the case with prejudice. The 2014 Order
specified “any and all future liens, encumbrances, and/or assessments
against [Urbano] . . . shall be deemed void and invalid.”
¶4
Six years later, the HOA again sued Urbano in justice court,
alleging he failed to pay assessments levied by the HOA. Urbano argued
he need not pay any HOA assessments under the 2014 Order and a
confidential settlement agreement between him and the HOA. Urbano
counterclaimed for breach of contract, breach of duty of good faith and fair
dealing, abuse of process and punitive damages, so the lawsuit was
transferred to the superior court.
Tort Claims
¶5
Urbano had an altercation with the HOA’s property manager
over tree trimmings while the lawsuit was pending. The police were called
and a report was filed, but nothing more happened.

LAKEWOOD v. URBANO
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¶6
Urbano later asserted tort claims against the HOA and two
third-party defendants, including the property manager Susan Smith and
the property management company AAM (collectively “Third-Party
Defendants”), alleging harassment, defamation, negligent infliction of
emotional distress and intentional infliction of emotional distress. Urbano
added the Third-Party Defendants to the existing abuse of process and
punitive damages claims, too, but not the breach of contract and breach of
good faith and fair dealing claims.
Summary Judgment and Attorney Fees
¶7
The HOA and Third-Party Defendants successfully moved
for summary judgment. The superior court found the 2014 Order void
because the justice court lacked subject matter jurisdiction to relieve Urbano
from having to pay all future assessments.
¶8
After an evidentiary hearing, the HOA and Third-Party
Defendants successfully moved for their attorney fees. The HOA was
awarded $31,830, while the Third-Party Defendants were awarded $83,413.
Urbano timely appealed. We have jurisdiction. A.R.S. §§ 12-2101(A)(1),
-120.21(A)(1).
DISCUSSION
¶9
Urbano argues the 2014 Order was enforceable. He also
argues the superior court erroneously granted summary judgment to the
HOA and improperly granted attorney fees to the HOA and Third-Party
Defendants. We address each argument in turn.
I.
The 2014 Order.
¶10
Urbano first argues the superior court erred by finding the
2014 Order void.1 Justice courts are courts of limited jurisdiction, only
having jurisdiction as affirmatively conferred on them by statute. Ariz.
Const. art. 6, § 32(B); A.R.S. § 22-201(A). We review the interpretation of
statutes and the justice court’s subject matter jurisdiction de novo. State ex
rel. Brannan v. Williams, 217 Ariz. 207, 209–10, ¶ 4 (App. 2007).
¶11
As relevant here, justice courts have jurisdiction to hear civil
actions when the amount involved is less than ten thousand dollars and

1
Urbano failed to develop this argument in his brief, which may
constitute waiver, but we address the argument in our discretion. See
ARCAP 13(a)(7); Ramos v. Nichols, 252 Ariz. 519, 522, ¶ 8 (App. 2022).

LAKEWOOD v. URBANO
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when the dispute involves the right to possession of real property, but not
ownership or title to that property. A.R.S. § 22-201(B), (D). A justice court
order is void when the justice court lacks jurisdiction to issue the order.
State v. Cramer, 192 Ariz. 150, 153, ¶ 16 (App. 1998). A void order is a nullity,
and the parties can proceed as though it had not been rendered. Legacy
Found. Action Fund v. Citizens Clean Elections Comm’n, 254 Ariz. 485, 491–92,
¶ 21 (2023).
¶12
The superior court found the 2014 Order void for lack of
subject matter jurisdiction because it declared all future liens,
encumbrances and assessments levied on Urbano to be invalid. We agree
because that relief is neither a monetary remedy under ten thousand dollars
nor concerns the right to possess real property. See A.R.S. § 22-201(B), (D).
¶13
Urbano raises a new theory on appeal, arguing the 2014 Order
is enforceable under the theory of promissory estoppel, but that argument
was waived because Urbano never raised it below. See Harris v. Cochise
Health Sys., 215 Ariz. 344, 349, ¶ 17 (App. 2007).
II.
Summary Judgment.
¶14
Next, Urbano claims the superior court erred by granting the
HOA’s motion for summary judgment. We review the grant of summary
judgment de novo, viewing the evidence and reasonable inferences in the
light most favorable to the party opposing the motion. Andrews v. Blake, 205
Ariz. 236, 240, ¶ 12 (2003). Summary judgment is appropriate when “there
is no genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). A moving
party is entitled to summary judgment “if the facts produced in support of
the [nonmovant’s] claim or defense have so little probative value, given the
quantum of evidence required, that reasonable people could not agree with
the conclusion advanced by the proponent of the claim or defense.” Orme
Sch. v. Reeves, 166 Ariz. 301, 309 (1990).
¶15
To prove a breach of contract claim, plaintiffs must establish
the existence of a contract, breach and resulting damages. Graham v. Asbury,
112 Ariz. 184, 185 (1975). The HOA met that burden with undisputed
evidence that Urbano agreed to the CC&Rs, failed to pay assessments and
had an outstanding balance. See Ahwatukee Custom Ests. Mgmt. Ass’n, Inc.
v. Turner, 196 Ariz. 631, 634, ¶ 5 (App. 2000) (“CC & Rs constitute a contract
between the subdivision’s property owners as a whole and individual lot
owners.”).

LAKEWOOD v. URBANO
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¶16
Still, Urbano argues the 2014 Order is evidence of an
agreement that exempts him from assessments, creating a dispute of
material fact. Urbano had the burden of proof to demonstrate this
affirmative defense and counterclaim. Grubb & Ellis Mgmt. Servs., Inc. v.
407417 B.C., L.L.C., 213 Ariz. 83, 89, ¶ 21 (App. 2006) (“The proponent of an
affirmative defense has the burden of pleading and proving it.”). To meet
that burden, however, Urbano relies on the void 2014 Order, which is a
nullity and ineffective for any purpose. See State v. Espinoza, 229 Ariz. 421,
429, ¶ 32 (App. 2012); supra ¶¶ 11–13. Beyond that, the CC&Rs required
that any amendment to the declaration be signed by the HOA’s president
or vice president and recorded, which never happened. As a result, the
alleged oral agreement could not have raised a material fact that prevented
summary judgment. Orme Sch., 166 Ariz. at 310.
¶17
The superior court properly granted the HOA’s motion for
summary judgment.
III.
Attorney Fees.
¶18
Lastly, Urbano challenges whether the superior court had
authority to grant the Third-Party Defendants’ attorney fees and whether
the HOA’s attorney fees were reasonable.
A.
The Third-Party Defendants.
¶19
Urbano claims the superior court erred by awarding fees to
the Third-Party Defendants because he sued them for tort claims, not
contract claims.
¶20
Parties in civil cases are generally responsible for their own
litigation expenses. Bennett v. Baxter Grp., Inc., 223 Ariz. 414, 419, ¶ 19 (App.
2010). Section 12-341.01(A) represents one exception to that rule, stating
“[i]n any contested action arising out of a contract, express or implied, the
court may award the successful party reasonable attorney fees.” A.R.S. §
12-341.01(A). Arizona courts may also award fees for tort claims when
interwoven with contract claims, but only when the tort claims could not
exist but for the breach of contract. Ramsey Air Meds, L.L.C. v. Cutter
Aviation, Inc., 198 Ariz. 10, 13, 15, ¶¶ 17, 27 (App. 2000).
¶21
Here, the Third-Party Defendants requested fees as the
successful party in an action arising out of contract under A.R.S. § 12-
341.01(A), but Urbano’s tort claims arose from his argument with the
property manager, which were unrelated to his breach of contract claims

LAKEWOOD v. URBANO
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against the HOA. For that reason, we reverse the superior court’s award of
attorney fees to the Third-Party Defendants.
B.
Plaintiff HOA.
¶22
Urbano next challenges the superior court’s award of attorney
fees to the HOA as plaintiffs, which he contends were for an unreasonable
amount. We review for abuse of discretion. A.R.S. § 12-341.01; Hawk v. PC
Village Ass’n, Inc., 233 Ariz. 94, 100, ¶ 19 (App. 2013). We will not disturb
the court’s decision if it has any reasonable basis. State Farm Auto. Ins. Co.
v. Arrington, 192 Ariz. 255, 261, ¶ 27 (App. 1998).
¶23
Urbano argues the court did not consider the relevant factors
in awarding $31,830 in fees to the HOA. Not so. The superior court
considered several factors to reach the award, including Urbano’s
counterclaims and discovery. Nor was the court required to make findings
on the record. See Hawk, 233 Ariz. at 100, ¶ 21. We discern no error on the
HOA’s fee award.
CONCLUSION
¶24
We affirm the superior court’s orders voiding the 2014 Order,
granting Lakewood HOA’s motion for summary judgment and granting
the HOA’s attorney fees on its contract claims. We reverse the order
granting attorney fees to the Third-Party Defendants.
¶25
The HOA requested attorney fees under the contract and
Arizona law. The CC&Rs grant the HOA reasonable attorney fees
expended collecting assessments. Thus, we grant the HOA’s appellate
attorney fees upon compliance with ARCAP 21.
¶26
The Third-Party Defendants also request their attorney fees,
but we decline that request because their case did not arise out of the
CC&Rs or contract. Supra ¶ 21. They cite no other authority entitling them
to fees on appeal. See ARCAP 21(a)(2) (“A claim for fees under this Rule
must specifically state the statute, rule, decisional law, contract, or other
authority for an award of attorneys’ fees.”).
MATTHEW J. MARTIN • Clerk of the Court
FILED: JR