2025-05-29 — Jashinsky v. Dorada Estates Community Association, Inc. ↑ top

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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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
ROBERT JASHINSKY, Plaintiff/Appellee,
v.
DORADA ESTATES COMMUNITY ASSOCIATION, INC.,
Defendant/Appellant.
No. 1 CA-CV 24-0721
Appeal from the Superior Court in Maricopa County
No. CV2022-006735
The Honorable Timothy J. Ryan, Judge
AFFIRMED
COUNSEL
Galbut Beabeau, P.C., Scottsdale
By Angelika O. Doebler, Olivier A. Beabeau
Counsel for Plaintiff/Appellee
CHDB Law LLP, Tempe
By Nicholas C. Nogami, Tessa Knueppel
Counsel for Defendant/Appellant
FILED 05-29-2025

JASHINSKY v. DORADA ESTATES
Decision of the Court

2

MEMORANDUM DECISION
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Vice Chief Judge Randall M. Howe and Judge Andrew M. Jacobs
joined.

B A I L E Y, Judge:

¶1
Dorada Estates Community Association, Inc. (“Dorada
Estates”) appeals a jury verdict awarding damages to Robert Jashinsky.
Dorada Estates also challenges the superior court’s award of equitable relief
to Jashinsky. Dorada Estates argues: (1) Jashinsky’s testimony about his
estimated building costs was inadmissible hearsay; (2) insufficient evidence
supported the jury’s damages award; (3) Dorada Estates acted reasonably
in denying Jashinsky’s proposal; (4) Jashinsky failed to plead for his desired
equitable relief; and (5) the judgment was inconsistent with Jashinsky’s
requested relief and violated the plain language of Dorada Estates’
governing documents. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2
The Dorada Estates community is governed by the Amended
and Restated Declaration of Covenants, Conditions and Restrictions
(“Declaration”), a recorded deed restriction. The Declaration authorizes
Dorada Estates’ board of directors (“Board”) to create a Design Review
Committee (“DRC”) to review proposals for modifications by community
members. The Declaration permits the DRC to consider, among other
factors, whether a proposal complies with Dorada Estates’ architectural
guidelines, standards, and procedures (“Design Guidelines”), which the
DRC is also responsible for promulgating.
¶3
Section 11.3 of the Declaration provides:
Review of Plans. In reviewing plans and specifications for
any Modification, the Design Review Committee may
consider any and all factors which the Design Review
Committee, in its sole and absolute discretion, determines to
be relevant . . . . The Design Review Committee may
disapprove plans and specifications for any Modification
even though the plans and specifications may be in

JASHINSKY v. DORADA ESTATES
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substantial compliance with this Declaration and the Design
Guidelines if the Design Review Committee, in its sole and
absolute
discretion,
determines
that
the
proposed
Modification, or some aspect or portion thereof, is
undesirable or unattractive.
¶4
Jashinsky purchased a home in the Dorada Estates
community in 2019. In early 2021, Jashinsky sought to build a casita with
an attached pergola in his backyard. He planned for the casita to occupy
879 square feet and for the pergola to be roughly 55 feet long. Pursuant to
city code, the combined structure would be set back by five feet from his
back fence and ten feet from each side fence. At the time of his proposal,
Jashinsky observed that similar structures existed in the Dorada Estates
community.
¶5
After hiring an architect to create drawings and obtaining
approval from the Town of Queen Creek, Jashinsky submitted his plan to
the DRC for approval on April 16. At the time of his submission, the Design
Guidelines read: “Structures shall be visually connected to the main
building with walls, courtyards, trellis or other major landscape elements
. . . .” The Design Guidelines also stated that additional structures could
not exceed 1,000 square feet in size.
¶6
Three days later, unbeknownst to Jashinsky, Byron
Applegate, the DRC chair, sent an email to the Board and Dorada Estates’
community manager, Shana Morton, with the subject line: “HUGE REAR
YARD CASITA REQUEST!” In the body, Applegate wrote:
Ok I was afraid of this… We have a request that puts a full
casita in the back yard and does everything according to city
set back standards yet it flies fully in the face of what we have
been discussing. If I am not mistaken we have to approve or
deny upon the current design guidelines, NOT THE ONES
WE ARE WORKING ON! . . . Question is if this is something
we should be including in the new guidelines . . .
Currently we ( Bill, Sharon, and I ) can deny this
request because the current guidelines state . . . “ Structures
shall be visually connected to the main building”
¶7
Jashinsky later received a disapproval notification from
Morton. The notification stated: “In this case, the request was not approved
for the following reason(s): Current guidelines state . . . ‘Structures shall be
visually connected to the main building[.]’”

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¶8
Shortly after the disapproval notification issued, Bill
Monaccio, another DRC member, emailed Morton and the other DRC
members:
Unfortunately we have not put the side yard only regulation
into effect prior to his request. Based on the fact that [another
lot] was allowed a backyard structure, we may not have a leg
to stand on if we get sued . . . . He is an intelligent man who
did his homework and drew this to city code.
I tried to find anything in our rules that would work,
but cannot. Visually attached to the home is all that I can see,
but it is too vague.
¶9
Jashinsky had his architect revise the drawings so that the
casita would be visually connected to the main house with a travertine
walkway.1 He submitted his revised plan (“Revised Architectural
Request”) to the DRC for approval on May 4.
¶10
In a May 20 meeting, the Board voted to approve a revised
version of the Design Guidelines (“Revised Design Guidelines”). The
Revised Design Guidelines expanded the maximum square footage of
additional structures to 1,200 square feet and included a new provision:
“Rear wall of structure shall not extend passed [sic] the original rear wall of
home.” Several days after the Board meeting, Jashinsky received a second
disapproval notification stating: “Per the updated guidelines, casitas need
to be on the side of the home and not exceed the back of the home.”
¶11
In October, Jashinsky invited Board members, including
Applegate, to his home to walk the proposed project site and discuss the
Board’s concerns. After the meeting, Jashinsky emailed the Board president
to memorialize the changes they discussed and request additional
feedback. He later received another denial that simply reiterated that the
casita needed to be built on the side of his home.
¶12
In May 2022, Jashinsky filed a complaint against Dorada
Estates, asserting claims for breach of the covenant of good faith and fair

1 At trial, Jashinsky testified that his architect had “done other homes in the
area,” and when he shared the disapproval notification with his architect,
his architect responded that “[i]t shouldn’t be a problem” for him to submit
a revised proposal with the structures visually connected by a walkway or
trellis.

JASHINSKY v. DORADA ESTATES
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dealing,
promissory
estoppel,
equitable
estoppel,
negligent
misrepresentation, and declaratory relief. Over a three-day trial,
Applegate’s and Monaccio’s emails were admitted into evidence, and the
jury heard testimony from various witnesses, including Jashinsky and
Applegate.
¶13
Jashinsky testified that based on conversations with his
architect and contractor, his estimated cost to construct the casita was
roughly $200 per square foot in 2021. He further testified that according to
a federal price index, construction costs in Phoenix had increased by about
30% since then.2 Applegate testified that he thought the size of Jashinsky’s
proposed project was like a “Berlin Wall.” Recounting the meeting at
Jashinsky’s home, he also testified: “[W]hen I got there and I saw the
immensity of what it was going to be . . . I could have told you in the first
30 seconds there was no way I would vote yes for that.”
¶14
At the close of evidence, Dorada Estates moved for judgment
as a matter of law, see Ariz. R. Civ. P. 50(a), arguing that Jashinsky had
insufficient evidence to support his alleged damages. The superior court
denied the motion. In his closing argument, Jashinsky summarized that his
damages totaled $52,740—his estimated cost of building the casita,
multiplied by his estimated increase in construction costs due to inflation.
¶15
The jury found in Jashinsky’s favor and awarded him $52,740
in damages. Following a hearing on Jashinsky’s equitable claims, the
superior court entered judgment in Jashinsky’s favor on his equitable
estoppel and declaratory relief claims. The court later issued a final
judgment ordering Dorada Estates to allow him to construct his proposed
project according to the Revised Architectural Request.
¶16
Dorada Estates timely appealed. We have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) sections 12-2101(A)(1) and 12-
120.21(A)(1).

2 The court later took judicial notice of a schedule of the producer price
index (“PPI”) for final demand construction, compiled by the Federal
Reserve Economic Data Division of the Federal Reserve Bank of St. Louis.
The PPI measures the average change over time in the prices domestic
producers receive for their output.

JASHINSKY v. DORADA ESTATES
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DISCUSSION
I.
The superior court did not err by allowing Jashinsky to testify about
his estimated cost of building the casita.
¶17
On appeal, Dorada Estates maintains the following testimony
on direct examination was inadmissible hearsay:
COUNSEL:
So can you tell me about the cost damages that
you have incurred because of inflation?
JASHINSKY: Yeah. Well, if we had built this in 2021, the
rough order of magnitude estimate was about
$200 a square foot.
COUNSEL:
Where did you get $200 a square foot from?
JASHINSKY: Talking to my architect and talking to a general
contractor.
¶18
The superior court overruled Dorada Estates’ objection on
hearsay grounds. We review evidentiary rulings for an abuse of discretion.
Larsen v. Decker, 196 Ariz. 239, 241, ¶ 6 (App. 2000).
¶19
Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted and is generally not admissible unless it falls
within a recognized exception. See Ariz. R. Evid. 801(c), 802–04. Our
supreme court explored the issue of “value testimony as hearsay” in State
v. Printz, 125 Ariz. 300 (1980). In Printz, an undercover police task force sold
television sets to suspected dealers of stolen property. Id. at 301. A member
of the task force later testified that, based on two months of undercover
transactions he had participated in, the value of the television sets was
around $300. Id. at 302. In considering whether this testimony was hearsay,
the court noted:
Knowledge of value does not necessarily rest on hearsay. It
might be supposed that to know value is merely to know
what other people say the thing is worth, merely to have
heard them offering and accepting prices. But the answer is
that these various instances of offers or acceptances of prices,
averaged into a mean or probable figure, are what constitute
value. The statements of persons declaring their estimates of
the prices they would give or receive are not taken, on the
credit of those persons, as trustworthy assertions of the fact of

JASHINSKY v. DORADA ESTATES
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value, but merely as items of conduct which in themselves
make up that total fact of conduct which we call value. Thus,
if A sits in a merchant’s office and listens to the terms accepted
and rejected for a dozen articles, he acquires a first-hand
knowledge of value; but if he goes in and asks the merchant
to tell him the value of a given article, his knowledge is based
on a belief in the truth of the merchant’s assertion. In the
former case, his knowledge is not based on hearsay.
Id. at 302–03 (quoting State v. Miller, 108 Ariz. 303, 307–08 (1972) (quoting
Wigmore on Evidence (3rd ed.) § 719 (1940))). The court concluded the
testimony was not hearsay, explaining: “The witness testified not as to
specific information supplied him in the course of a single transaction, but
instead stated the figure based upon numerous negotiations.” Id. at 303.
¶20
Here, Jashinsky acquired first-hand knowledge of the casita’s
estimated building cost based on consultations with several individuals—
namely, an architect and contractor. The superior court did not abuse its
discretion by declining to exclude this testimony as hearsay.
II.
We lack jurisdiction to consider the sufficiency of the evidence to
sustain the jury verdict.
¶21
Dorada Estates argues that insufficient evidence supported
the jury’s damages award, making it error for the superior court to deny its
motion for judgment as a matter of law. See Ariz. R. Civ. P. 50(a).
¶22
We independently review whether we have jurisdiction to
address an appellate issue. Engel v. Landman, 221 Ariz. 504, 508, ¶ 10 (App.
2009). Appellate jurisdiction is limited by statute. Eaton v. Unified Sch. Dist.
No. 1, 122 Ariz. 391, 392 (App. 1979). When appealing from a jury trial, to
preserve a Rule 50(a) challenge to the sufficiency of evidence, an appellant
must move for new trial or renewed motion for judgment as a matter of
law. A.R.S. § 12-2102(C); Marquette Venture Partners II, L.P. v. Leonesio, 227
Ariz. 179, 182–83, ¶¶ 6–13 (App. 2011).
¶23
Because Dorada Estates failed to move for a new trial or for
renewed judgment as a matter of law, we lack jurisdiction to consider
whether the evidence was sufficient to sustain the jury verdict.

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III.
Whether Dorada Estates acted reasonably is a factual determination
reserved for the jury.
¶24
Dorada Estates argues the DRC acted reasonably in denying
Jashinsky’s proposed structure because the community’s governing
documents afforded it the discretion to do so. Specifically, Dorada Estates
argues that the DRC retained broad discretion under the Declaration to
deny the proposal even if the proposal substantially complied with both the
Declaration and Design Guidelines. Dorada Estates also argues that the
proposal did not substantially comply with the Design Guidelines, as the
combined square footage of the casita and pergola exceeded the maximum
square footage permitted under either version of the Design Guidelines.
¶25
But even if a community association is afforded broad
discretion under its governing documents, the exercise of such discretion is
constrained by certain duties owed by the association to its members. The
duty of good faith and fair dealing is a term implied in all contracts. See
Restatement (Second) of Contracts § 205 (1981); Restatement (Third) of
Property (Servitudes) § 4.1 (2000). The Restatement (Third) of Property
(Servitudes) § 6.13(1)(b), (c) (2000) further provides that a community
association has a duty to treat members fairly and act reasonably in the
exercise of its discretionary powers, including its design-control powers.
Arizona has adopted this Restatement-driven approach. Tierra Ranchos
Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 202, ¶ 27 (App. 2007).
¶26
Whether a community association breached its duties to its
members is a question of fact properly reserved for the jury. See Maleki v.
Desert Palms Pro. Props., L.L.C., 222 Ariz. 327, 333, ¶ 28 (App. 2009)
(“Whether a party has breached the covenant of good faith and fair dealing
is a question of fact.” (citation omitted)); Tierra Ranchos, 216 Ariz. at 202, ¶
28 (“[I]ssues of reasonableness are usually questions of fact.” (citations
omitted)); Est. of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287, ¶ 12
(2000) (stating witness credibility and the weight given to testimony are
within the province of the jury).
¶27
Here, by awarding damages to Jashinsky, the jury implicitly
found that Dorada Estates breached both its duty of good faith and fair
dealing and its duty to act reasonably in exercising its discretionary
powers.3 The record supports this finding. From the evidence presented at

3 Throughout this litigation, the parties have treated the duty to treat
members fairly and act reasonably as a part of the contractual duty of good

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trial, the jury could have found that the DRC behaved unfairly and
unreasonably by providing only pretextual reasons to Jashinsky for
denying his requests. It could also have found that the DRC behaved
unfairly and unreasonably by denying Jashinsky’s Revised Architectural
Request based on Design Guidelines that were not in effect at the time of
his submission.
IV.
Jashinsky was not barred from receiving his requested equitable
relief merely by not having pled for injunctive relief in his complaint.
¶28
Characterizing the equitable relief Jashinsky sought as
injunctive relief, Dorada Estates argues that Jashinsky failed to plead for
injunctive relief in his complaint.
¶29
Even if a party fails to allege a particular claim for relief in its
complaint, it effectively amends its complaint to include the claim by listing
the claim as a material, contested issue in the parties’ joint pretrial
statement. Murphy Farrell Dev., LLLP v. Sourant, 229 Ariz. 124, 128, ¶ 15
(App. 2012); Carlton v. Emhardt, 138 Ariz. 353, 355 (App. 1983). Here, in the
joint pretrial statement, Jashinsky listed the following questions among the
other issues of fact or law he deemed material:
• Whether Defendant is estopped from denying Plaintiff’s
Revised Architectural Request when Plaintiff had already
addressed all issues Defendant had raised in its
Notification
of
Disapproval
of
Plaintiff’s
initial
Architectural Request?
• Whether Defendant’s listing that the only reason for the
Notification
of
Disapproval
for
Plaintiff’s
initial
Architectural Request was the lack of the buildings being
“visually connected” means that it is promissorily or

faith and fair dealing. It is unclear, however, whether the former duty is
subsumed into the latter. See Restatement (Second) of Contracts § 205;
Restatement (Third) of Property (Servitudes) § 6.13 cmt. a (“The duties
recognized in this section grow out of the relationship created by servitudes
between
individually
owned
property
and
a
common-interest
community.”); Riss v. Angel, 934 P.2d 669, 680–81 (Wash. 1997) (en banc)
(recognizing that an association has a duty to act reasonably in addition to
its duty to act in good faith in exercising discretionary powers). We need
not resolve this issue because the jury was instructed to award damages
only if it found that Dorada Estates had breached both duties.

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equitably estopped from denying Plaintiff’s Revised
Architectural Request based on differing or additional
reasons?
¶30
We agree with Dorada Estates that the equitable relief
Jashinsky sought could be appropriately characterized as injunctive relief.
See Restatement (Third) of Property (Servitudes) § 8.3, cmt. b (2000)
(“Injunctive relief is normally available to redress violations of . . .
restrictive covenants . . . .”). But by including the above questions in the
joint pretrial statement, Jashinsky effectively amended his complaint to
include a claim for such relief. Jashinsky framed these questions as requests
for promissory or equitable estoppel, but they nevertheless express the
relief he desired—namely, a court order requiring Dorada Estates to allow
him to build his proposed project. Jashinsky’s decision not to include a
claim for relief in his complaint that could be injunctive in nature was not
fatal to his cause of action where his questions in the joint pretrial statement
asked the court for essentially the same relief.
V.
The superior court did not err in awarding Jashinsky’s requested
equitable relief.
¶31
In its minute entry awarding equitable relief to Jashinsky, the
superior court ruled that Dorada Estates was equitably estopped from
relying on the Revised Design Guidelines to deny Jashinsky’s proposal.
The court also ruled that Jashinsky was entitled to a declaratory judgment,
effectively interpreting Dorada Estates’ governing documents to find that
Jashinsky had a right to build his proposed project. See A.R.S. §§ 12-1831 to
-1845 (authorizing courts to declare the respective rights and obligations of
contracting parties).
¶32
Dorada Estates argues that the superior court’s entry of
judgment on equitable estoppel and declaratory judgment grounds was
inconsistent with the actual relief awarded, which it again characterizes as
injunctive. In its final judgment awarding damages and equitable relief,
however, the superior court ordered: “[Dorada Estates] shall allow
[Jashinsky] to construct a casita and patio as set forth in [Jashinsky]’s
[Revised Architectural Request].” We interpret this as ruling on Jashinsky’s
questions in the joint pretrial statement, which, as discussed, effectively
amended Jashinsky’s pleading. Because the relief pleaded is consistent
with the relief that was ultimately awarded, we see no error.
¶33
Dorada Estates also argues that the superior court fashioned
an equitable remedy that violated the plain language of Dorada Estates’

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governing documents. But the relevant question is not whether the
superior court declined to enforce a covenant, but whether doing so
amounted to an abuse of discretion. See Swain v. Bixby Vill. Golf Course Inc.,
247 Ariz. 405, 413, ¶ 33 (App. 2019) (“Whether a covenant should be
enforced depends on equitable considerations, such as the parties’ relative
hardships, the parties’ misconduct, public interest, and adequacy of other
remedies.”); Ahwatukee Custom Ests. Mgmt. Ass’n, Inc. v. Turner, 196 Ariz.
631, 635, ¶ 10 (App. 2000) (affirming that mandatory injunctive relief should
not issue to enforce a requirement of formal approval by a community
association board, where such approval was arbitrarily and unreasonably
withheld); Loiselle v. Cosas Mgmt. Grp., LLC, 224 Ariz. 207, 210, ¶ 8 (App.
2010) (stating that the superior court’s equitable remedy is reviewed for an
abuse of discretion).
¶34
Equity supports the relief the superior court awarded
Jashinsky. The court could consider Dorada Estates’ misconduct, given that
the jury found Dorada Estates breached its duties and acted unreasonably.
The court could also consider the inadequacy of damages as a remedy, as
Jashinsky’s ultimate purpose in bringing this lawsuit was not merely to
recover damages but to secure permission to build. On this record, we
cannot say the court abused its discretion in fashioning the equitable
remedy of permitting Jashinsky to build his proposed project.
VI.
We award attorneys’ fees and costs to Jashinsky.
¶35
Jashinsky requests his attorneys’ fees and costs incurred on
appeal. Under the terms of the Declaration and A.R.S. § 12-341, we award
Jashinsky attorneys’ fees and taxable costs in an amount to be determined
upon compliance with Rule 21, ARCAP.
CONCLUSION
¶36
We affirm.
MATTHEW J. MARTIN • Clerk of the Court
FILED: JR