02/06/2014 — LC2013000334 HOMEOWNERS ASSOCIATION INC, SUNDANCE RESIDENTIAL 02/06/2014 COMMISSIONER MYRA HARRIS View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Filed ***
02/10/2014 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2013-000334-001 DT
02/06/2014
Docket Code 023
Form L512
Page 1
CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton
Deputy
SUNDANCE RESIDENTIAL HOMEOWNERS
ASSOCIATION INC
JASON N MILLER
v.
GEISEL JARVIS (001)
JOSEPH JARVIS (001)
GEISEL JARVIS
1894 S 216TH LN
BUCKEYE AZ 85326
JOSEPH JARVIS
1894 S 216TH LN
BUCKEYE AZ 85326
REMAND DESK-LCA-CCC
WHITE TANK JUSTICE COURT
MINUTE ENTRY
Lower Court Case No. CC2011064291RC.
Defendants-Appellants (Defendants) request that this Court reconsider/rehear its determina-
tion in this case. On November 20, 2013, this Court entered its Minute Entry ruling. On
December 10, 2013, Defendants filed a Motion for Reconsideration. Plaintiffs-Appellees re-
sponded. This Court has considered Defendants’ requested reconsideration but, for the reasons
stated below, denies reconsideration/rehearing.
Defendants’ Motion For Reconsideration of this Court’s November 10, 2013, Minute Entry
Ruling was not filed until December 10, 2013. This request was untimely. Requests for rehearing
of decisions or orders of the Superior Court are governed by Rule 14 of the Superior Court Rules
of Appellate Procedure—Civil (SCRAP—Civ.) which allows 14 days for filing any request for
rehearing. Defendants request is untimely as it was filed after the 14 day allowable time period
expired. Defendants provided this Court with no reason for their untimely filing.
Additionally, Defendants’ motion did not identify any court decisions, statutes or regula-
tions that were issued after the Minute Entry Ruling was filed or that Defendants believed this
Court overlooked. Instead, Defendants asserted (incorrectly) that Plaintiff defaulted because they
did not object to Defendants’ discovery or disclosure and therefore discovery was admitted by
default. This Court knows of no authority that adopts this proposition.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
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02/06/2014
Docket Code 023
Form L512
Page 2
Additionally, Defendants claimed this Court erred by “not taking into consideration when rul-
ing erroneously in favor of the appellee/plaintiff, error that was pointed out by the appellant
when requesting the Justice court for a new trial and again in the appellants [sic.] memorandum .
. . .”1 [sic]. Defendant Geisel Jarvis signed this Motion on behalf of her husband—“In Legal
representation of Joseph Jarvis.”2 Ms. Geisel is not a member of the State Bar and cannot
represent her husband.
Courts may inquire as to whether a person who appears before it in a representa-
tive capacity is admitted to the practice of law. Inquiry discloses that neither Mr.
nor Mrs. Haberkorn is admitted to the practice of law in Arizona. In Bloch we
considered the effect of Bernard Bloch’s representation of himself and his at-
tempted representation of Nathan Bloch and Ruth Bloch. We held that he could
not represent either Nathan Bloch or Ruth Bloch and where he attempted to repre-
sent them as plaintiffs in the trial court, neither Nathan Bloch nor Ruth Bloch
were before the trial court or before this Court. The same legal principles preclude
a husband, not a member of the Bar, from representing his wife in a court of law.
This is true whether her interest be separate or community.
Haberkorn v. Sears, Roebuck & Co., 5 Ariz. App. 397, 399, 427 P.2d 378, 380 (1967).
This Court denies Defendants’ request for rehearing/reconsideration. Motions for reconsid-
eration should not reargue issues already briefed by the parties and addressed by the decision. As
early as 1886, the Supreme Court of the Territory of Arizona recognized the limitations on re-
arguing cases that have just been finalized and stated:
Defendant petitioned this court for a rehearing of the cause, which was granted,
and the case was reargued, and again submitted. Neither the petition itself, nor the
argument of the case, point out any misapprehension of the record by this court,
or any mistake in the law of the case. Every question urged upon us was sub-
mitted and considered by the court on the former hearing. We are, in effect, asked
to review that decision of this court. This we decline to do. It is not the office or
purpose of a rehearing to reopen the whole cause, and to require of the court a re-
consideration of the whole case. Were this precedent to be established, it would
open the doors for petitions for rehearing of all causes, and we should expect
them more particularly when the persons who compose the court have been
changed. On the argument of the cause many points have been urged upon the
attention of the court, which were not included in the petition for rehearing. This
we regard as bad practice. A petition for a rehearing should state particularly the
ground upon which it is asked, and, if granted, the argument should be confined to
those grounds.
Arizona Prince Copper Co. v. Copper Queen Copper Co., 2 Ariz. 169, 170-71, 11 P. 396 (1886).
Here, Defendants challenged this Court’s affirmation of the trial court decision granting sum-
mary judgment to Plaintiff and finding Defendants had an obligation to pay their assessments
under the CC&Rs. In addition, Defendants claimed:
1 Motion For Reconsideration at p. 2, ll. 6–9.
2 Id. at p. 3, l. 20.
SUPERIOR COURT OF ARIZONA
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1. They filed an answer to the Complaint on December 9, 2011;
2. Plaintiff failed to answer their allegation;
3. Plaintiff did not object to their disclosure which they filed on March 3, 2012;
4. There was no basis for summary judgment because they “had given an abundance of
legal grounds for a trial”;
5. Their proffered disclosure provided grounds for a trial;
6. Defendants claimed the Public Reports are not a basis for a contract and for
demonstrating Plaintiff had the right to assess them;
7. The CC&Rs do not provide for assessment rights;
8. The HOA’s maintenance did not meet the minimum standards for the town;
9. The Superior Court erred by “supplementing the deficiencies” for the appellees/plaintiff
because Plaintiff did not claim to meet the town standards and this violated Defendants’
due process rights;
10. The trial court failed to properly notify Defendants about the summary judgment as the
Order was not sent to Defendants.
Although Defendants filed a responsive pleading to Plaintiff’s Complaint, Plaintiff had no
obligation to answer or respond to any of Defendants’ allegations as Defendants failed to file a
counterclaim. Similarly, Plaintiff had no obligation to object to Defendants’ disclosure. This
Court addressed the reasons for summary judgment in its prior ruling of November 20, 2013, and
will not rehash these explanations. Defendants have not provided this Court with any basis for
the trial court to have denied Plaintiff’s summary judgment since Defendants admitted they
failed to pay the monthly assessments and the CC&Rs established Defendants’ obligation to pay
these charges. Although Defendants deny the CC&Rs form a contract, the law provides
otherwise. As the Arizona Supreme Court stated:
A deed containing a restrictive covenant that runs with the land is a contract.
Powell v. Washburn, 211 Ariz. 553, 125 P.3d 373, ¶ 8 (2006). Accord, Ahwatukee Custom
Estates Mgmt. Ass'n, Inc. v. Turner, 196 Ariz. 6312 P.3d 1276, ¶ 5 (Ct. App. 2000) where the
Arizona Court of Appeals held:
We consider on appeal whether the trial court correctly found that the Turners had
violated the CC&Rs, correctly denied ACEMA retrospective injunctive relief, and
correctly denied both parties attorneys’ fees. In so doing, we are guided by the
following precepts: (1) CC&Rs constitute a contract between the subdivision’s
property owners as a whole and individual lot owners.
Arizona law establishes CC&Rs form contracts.
Defendants also claim they have a guaranteed right to a trial by jury despite Plaintiff having
been awarded summary judgment. They provided no authority for this position. Our Court of
Appeals addressed a similar issue and held that summary judgment precludes a later trial by jury.
The Arizona Court of Appeals stated:
SUPERIOR COURT OF ARIZONA
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It is obvious that the entry of summary judgment will preclude a later trial by jury.
This is the design of Rule 56-to resolve whether material issues of fact exist, and
if none do, then to enter judgment for the moving party if he is entitled to it as a
matter of law. Union Bank v. Pfeffer, 18 Ariz. App. 386, 502 P.2d 535 (1972). It
is not the intention of the rules to grant a trial on the merits when there is no
genuine fact issue or where a claim may be frivolous. Hackin v. Rupp, 9 Ariz.
App. 354, 452 P.2d 519 (1969).
Morrell v. St. Luke's Med. Ctr., 27 Ariz. App. 486, 490, 556 P.2d 334, 338 (1976). Accord,
Cagle v. Carlson, 146 Ariz. 292, 297-98, 705 P.2d 1343, 1348-49 (Ariz. Ct. App. 1985) where
the Arizona Court of Appeals stated:
Finally, the appellant argues that the grant of summary judgment denied him
his right to trial by jury under the United States and Arizona Constitutions. We
find this claim to be without merit.
Defendants did not have a right to a jury trial after Plaintiff was awarded summary judgment.
Based on the foregoing, this Court denies Defendants’ requested relief.
IT IS THEREFORE ORDERED denying Defendants’ requested relief.
IT IS FURTHER ORDERED remanding this matter to the White Tank Justice Court for
all further appropriate proceedings.
IT IS FURTHER ORDERED signing this minute entry as a formal Order of the Court.
/s/ Myra Harris
THE HON. MYRA HARRIS
Judicial Officer of the Superior Court
020720140930
NOTICE: LC cases are not under the e-file system. As a result, when a party files a doc-
ument, the system does not generate a courtesy copy for the Judge. Therefore, you will have to
deliver to the Judge a conformed courtesy copy of any filings.
11/20/2013 — LC2013000334 HOMEOWNERS ASSOCIATION INC, SUNDANCE RESIDENTIAL 11/20/2013 COMMISSIONER MYRA HARRIS View Minute Entry ↑ top
- Source
- Minute Source
Michael K. Jeanes, Clerk of Court
*** Filed ***
11/21/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2013-000334-001 DT
11/20/2013
Docket Code 512
Form L512
Page 1
CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton
Deputy
SUNDANCE RESIDENTIAL HOMEOWNERS
ASSOCIATION INC
JASON N MILLER
v.
GEISEL JARVIS (001)
JOSEPH JARVIS (001)
GEISEL JARVIS
1894 S 216TH LN
BUCKEYE AZ 85326
JOSEPH JARVIS
1894 S 216TH LN
BUCKEYE AZ 85326
REMAND DESK-LCA-CCC
WHITE TANK JUSTICE COURT
RECORD APPEAL RULING / REMAND
Lower Court Case No. CC2011064291RC.
Defendants-Appellants Geisel and Joseph Jarvis, (Defendants) appeal the White Tank
Justice Court’s determination granting Plaintiff, Sundance Residential Homeowners’
Association, Inc., summary judgment. Defendants contend the trial court erred. For the reasons
stated below, the court affirms the trial court’s judgment.
I. Factual Background.
On April 4, 2011, Plaintiff, an Arizona non-profit corporation, filed a Complaint alleging
Defendants—homeowners within the Sundance Residential Development—failed to pay their
mandatory Association fees and assessments. Plaintiff requested $1,931.74 plus continuing
assessments, interest, costs and attorneys’ fees. On March 10, 2012, the parties were notified a
trial was set for July 2, 2012, at 2:00 PM before the Hon. Jeff Fine. On March 20, 2012, Plaintiff
filed its summary judgment motion. On April 19, 2012, Defendants responded to the summary
judgment motion by filing a document entitled Defendants [sic.] Answer to Plaintiffs’ [sic.]
Motion for Summary Judgment, and claimed the action was unjustified because Plaintiff
breached the CC&Rs by failing to properly provide upkeep and improvements to the property.
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1 Subdivision Public Report for Sundance Parcel 48, August 10, 2006, at p. 10.
2 Id. at p. 11.
3 Subdivision Public Report for Parcel 48, May 9, 2008, at p. 12.
On April 30, 2012, Plaintiff filed its reply to Defendants responsive motion. The trial court record
does not reflect Defendants filed an Answer, any Rule 12(b) motions, or a Counterclaim.
The parties submitted a number of documents detailing the duties and obligations of the
subdivider, HOA, and purchasers of property. The earliest of these documents was the
Subdivision Public Report for Sundance Parcel 48 (Subdivision Public Report) with an effective
date of August 10, 2006, submitted by the subdivider, Rick Hancock Homes, LLC. That report
mentioned the Property Owners Association1 and provided (1) Sundance Residential
Homeowners Association, Inc. was the Association and (2) the control of the Association was by
Sundance Master Community Association, Inc. The Subdivision Public Report indicated:2 (1) all
lot purchasers will be members of the Homeowners’ Association; (2) payments to the
Association are subject to change in accordance with the Recorded Restrictions; and (3)
purchasers were advised to read the CC&Rs to determine the rights of the lot owners to
participate in the Association and to determine the rights, duties and limitations of owners in the
use of their lots. Purchasers were also cautioned to determine for themselves if the subdivider’s
arrangements and plans for assessments on unsold lots would be sufficient to fulfill the financial
obligations of the association.
The subdivider, Hancock Communities LLC submitted another Subdivision Public Report
for Parcel 48 with an effective date of May 9, 2008. This Subdivision Public Report
recommended that the purchaser not sign any agreement until the purchaser read the report. On
page 10 of this report, the purchaser is warned that the purchaser has no assurance that the
subdivider will purchase or build homes on all development lots. As with the earlier Subdivision
Report, purchasers are told Sundance Residential Homeowners Association Inc. is the Property
Owners Association.3
The trial court was also provided with the CC&Rs for Sundance Residential Community.
Section 2.02 of the CC&Rs state all present and future owners and owner’s occupants are subject
to and bound by the Residential Project Documents and the Master Association Documents.
Section 3.01 of the CC&Rs provided every owner of a parcel within the residential community is
bound by the Residential Project Documents and is:
. . . deemed to have personally covenanted and agreed to be bound by all
covenants and restrictions contained in the residential Project Documents, and is
deemed to enter into a contract with the Residential Association and each other
Owner for the performance of the respective covenants and restrictions. . .
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MARICOPA COUNTY
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Form L512
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Section 4.01(b) provides each assessment becomes the personal, joint, and several obligation of
each person who was the owner of property at the time when the assessment became due.
Additionally, section 4.07(d) provides (1) each owner of a living unit, by accepting a deed for the
living unit, or otherwise becoming an owner, “specifically vests in the residential Association and
its agents the right and power to bring all actions against the Owner personally for the collection
of all assessments due under the Residential Project Documents as a debt to the Residential
Association; and (2) allows the Residential Association to bring suit to recover a money
judgment for unpaid assessments. Article V of the CC&Rs described the Association’s
responsibilities but stated the Association was only required to maintain the level of maintenance
imposed by the Town. Section 5.01 states:
So long as the level of maintenance exceeds those minimum standards, if any,
imposed by the Town, the Board will be the sole and absolute judge as to the
appropriate maintenance of the Residential Common Area and the Areas of
Residential Association Responsibility.
Section 10.19 addresses the imposition of attorneys’ fees and provides the prevailing party in any
action will be entitled to reasonable attorneys’ fees and court costs.
On May 16, 2012, Defendants filed a second response to Plaintiff’s summary judgment
motion. On May 24, 2012, Plaintiff filed a motion to strike the second response. On June 11,
2012, the trial court granted Plaintiff’s summary judgment motion and notified the parties the
court date for July 2, 2012, was cancelled. In its June 19, 2012, Order re Summary Judgment, the
trial court specifically mentioned it had considered all timely filed pleadings and supporting
evidence and ruled on the merits of the summary judgment motion. In its June 19, 2012, Ruling
on Motion the trial court said:
IT IS FURTHER ORDERED Plaintiff’s Motion For Summary Judgment is
granted on 05–01–12. Defendant’s Response filed on 05–16–12 was not filed
timely. Court ruled on the merits taking into consideration all Pleadings Timely
filed. Plaintiff’s Motion To Strike granted. Judgment stands. Please submit
formalized judgment.
The Ruling was signed by the Justice of the Peace and the clerk of court certified a copy was
mailed to each party on June 19, 2012. However, the address listed for Defendants on the June
19, 2012, Ruling on Motion was the address for Plaintiff’s attorney and not Defendants’ address.
Defendants then filed a number of motions which the trial court—on October 17,
2012,—denied. The trial court re-affirmed its decision awarding Plaintiff summary judgment and
stated it had reviewed and considered the contents of the pleading prior to granting the summary
judgment. The trial court explained it granted the summary judgment because:
After reviewing and considering the contents of the pleadings the Court
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
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Docket Code 512
Form L512
Page 4
4 The trial court referenced Defendants’ May 16, 2012 second response to Plaintiff’s summary judgment motion.
5 Plaintiff initially requested attorneys’ fees of $13,560.00.
6 In filing their appellate memorandum, Defendants ignored the mandates of Superior Court Rules of Appellate
Procedure—Civil (SCRAP—Civ.) Rule 8(a)(4) re page limitations and size of type. Defendants also failed to
conform to SCRAP—Civ. Rule 8(a)(3) as they did not provide a concise argument. Defendants’ argument lacked
clarity. However, and pursuant to SCRAP—Civ. Rule 2, this Court will address the main issues which Defendant
presented and will suspend the requirements of Rule 8(a)(4) in the interest of justice.
7 Effective Jan. 1, 2013, actions at Justice Court became subject to the Justice Court Rules of Civil Procedure.
granted Plaintiff’s Motion for Summary Judgment on 5/1/12. Judgment was
granted on the basis that the Plaintiff met the provisions of Rule 56 and applicable
burden of proof while Defendants failed to sufficiently support the defense
contained within their response.
The trial court also explained it struck Defendants’ “second reply”4 which Defendants filed
following the trial court’s granting of judgment for Plaintiff and said it did not consider this
pleading because (1) it was filed after judgment; and (2) the trial court agreed with Plaintiff’s
interpretation that the rules did not allow a second response to a motion. The trial court detailed
the series of post judgment motions and denied many of Defendants’ post-judgment motions.
On Jan. 9, 2013, the trial court ruled on the remaining post-judgment motions and awarded
Plaintiff attorneys’ fees of $11,460.00.5
Defendants filed a timely appeal.6 Plaintiff filed a responsive memorandum. This Court has
jurisdiction pursuant to Arizona Constitution Art. 6, § 16, and A.R.S. § 12–124(A).
II. Issues:
Did The Trial Court Err By Awarding Plaintiff Summary Judgment.
A.
Appellate courts review both the factual and legal determinations in motions for summary
judgment de novo, Aranki v. RKP Investments, Inc., 194 Ariz. 206, 979 P.2d 534, ¶ 6 (Ct. App.
1999), to determine if the material facts are uncontested and the prevailing party is entitled to
judgment as a matter of law.
Summary judgment should only be granted in cases where there is no genuine
issue of material fact and the case may therefore be decided on the pleadings.
We view the facts in the light most favorable to the non-moving party.
Kiley v. Jennings, Strouss & Salmon, 187 Ariz. 136, 139, 927 P.2d 796, 799 (Ct. App. 1996)
(citations omitted.) In this case, Plaintiff had the burden of proving (1) no genuine issue of
material fact; and (2) Plaintiff was entitled to judgment as a matter of law. That burden remained
Plaintiff’s.
At the time the trial court considered Plaintiff’s summary judgment motion, actions in
Justice Court were governed by the Arizona Rules of Civil Procedure (ARCP), Rule 56.7 In
reviewing a summary judgment, the reviewing court must view the facts and the reasonable
inferences to be drawn from the facts in the light that is most favorable to the party against whom
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
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Form L512
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judgment was entered. Maycock v. Asilomar Dev. Inc., 207 Ariz. 495, 88 P.3d 565, ¶ 2 (Ct. App.
2004). Therefore, this Court must view the facts in the light that most favors the Defendants.
Here, both parties agree Defendants did not pay their monthly assessments. Defendants,
however, claimed they were exempt from the requirement that they pay these assessments
because they alleged Plaintiff breached the CC&Rs and failed to provide the required upkeep
services that would cause and/or allow their investment in their real property to appreciate.
It has long been recognized that summary judgment is only appropriate where the material
facts are not in controversy and a party is entitled to a judgment as a matter of law. ARCP
56(c)(1). Here, the material facts are not in controversy. Therefore, the salient question is whether
Plaintiff was entitled to judgment as a matter of law.
In a contract case, the Plaintiff has the burden of proof, Yeazell v. Copins, 98 Ariz. 109, 116-
17, 402 P.2d 541, 546 (1965), and must prove its case by a preponderance of the evidence. The
phrase “preponderance of the evidence” was defined by our Arizona Supreme Court where the
Arizona Supreme Court stated:
The most acceptable meaning to be given to the expression, proof by a
preponderance, seems to be proof which leads the [trier of fact] to find that the
existence of the contested fact is more probable than its nonexistence.” Indeed,
this court stated long ago that by a preponderance of the evidence “the ultimate
test is, does the evidence convince the trier of fact that one theory of the case is
more probable than the other.” The United States Supreme Court on several
occasions has agreed with this statement of the preponderance of the evidence
test. Thus, we disagree with the court of appeals’ definition of the preponderance
of the evidence standard, and hold that that standard requires simply that the trier
of fact find the existence of the contested fact to be more probable than not.
Matter of Appeal in Maricopa County Juvenile Action No. J-84984, 138 Ariz. 282, 283, 674
P.2d 836, 837 (1983) (citations omitted).
The moving party’s burden of persuasion on the motion remains with that party; it
does not shift to the non-moving party.
Nat’l Bank of Arizona v. Thruston, 218 Ariz. 112, 180 P.3d 977, ¶ 16 (Ct. App. 2008). Although
the burden is a heavy one, Plaintiff met the burden because it submitted admissible evidence that
would compel a reasonable juror to find Defendants obligated themselves to the Declaration and
CC&Rs when they purchased their property. Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 292
P.3d 195, ¶ 18 (Ct. App. 2012). Plaintiff established (1) Defendants purchased the property; (2)
the property was subject to the CC&Rs; and (3) Defendants reneged on their obligation to pay
the assessed monthly fees. Defendants did not deny these factual claims. Instead, as stated,
Defendants proposed—in their response to Plaintiff’s summary judgment—the Association
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8 Although Defendants claimed the assessment provision was “hidden”, the provision was set out in the CC&Rs.
lacked the right to collect any assessed fees because the Association failed to properly maintain
the property. To factually support this allegation, Defendants provided a plethora of pictures
showing trash on the property, dead plants, mud in the streets, bugs, detritus and undone
landscaping.
The Association’s right to collect its assessments is separate from its obligations under the
CC&Rs. Article IV, section 4.01(a) of the CC&Rs imposes an obligation on all homeowners in
the Sundance Residential Community. That section—in relevant part—states:
By accepting a deed for a Parcel or Living Unit, as the case may be, (whether
or not expressed in the deed or conveying instrument) or otherwise becoming an
Owner, each Owner is deemed personally to covenant and agree to be bound by
all covenants and restrictions of the residential Project Documents and to pay to
the Residential Association or to the Master Association, as applicable: (i) the
Annual Assessments described in Section 4.02 below; (ii) the Special Assessments
described in Section 4.04 below; (iii) any Community Master Assessments; (iv)
any Neighborhood Master Assessment to the extent applicable to Owners within a
Neighborhood; (v) any Neighborhood residential Association Assessments to the
extent applicable to Owners within a Neighborhood; (vi) . . . .
Section 4.06(a) of the Declaration requires that assessments be paid in full and specifically
addresses the issue of offsets.8 That provision states a homeowner may not offset his/her
obligation to pay the full amount of the assessment even if the homeowner claims the
Association is not properly exercising its duties. The specific language is:
Assessments will be payable in the full amount specified by the assessment
notice, and no offsets against this amount will be permitted for any reason
whatsoever including, without limitation, abandonment of the Owner’s Living
Unit, a claim that the residential Association is not properly exercising its duties in
maintenance or enforcement, a claim against the Declarant or its affiliates, or the
non-use or claim of non-use by Owner of all or any portion of the Residential
Common Area.
The Arizona Court of Appeals addressed a similar issue and held a condominium owner was
required to pay assessments to the homeowners’ association even if the Association had not
made the required improvements to the individual’s home. Mountain View Condominiums
Homeowners Ass'n Inc. v. Scott, 180 Ariz. 216, 883 P.2d 453 (Ct. App. 1994). The Court of
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9 This Court reviewed the provided CD but was not able to locate any hearing on the proffered CD. Neither Plaintiff
nor Defendant referenced the CD in the respective memoranda. This Court notes the photographs indicate (1) large
weeds growing in the neighborhood; (2) trash in the area; (3) a child’s plastic swimming pool filled with dirt; (4)
construction debris; (5) construction material; (6) unfinished lots; (7) empty homes; (8) graffiti on the outside of the
retaining walls; (9) evidence of a broken street light with an APS sign; (10) a dead bird; and (11) several pictures of an
insect infestation at one of the homes. Defendants did not specify which problems the HOA was required to correct.
Appeals held the rights and obligations of the owners were contained in the Declaration, the
bylaws, and state statutes and determined the owners had the obligations as well as the benefits
of the Association. The Court of Appeals stated:
It seems obvious that the defendants’ ownership interests must necessarily
include not only the benefits but also the obligations of the previous owner. One
of the obligations conveyed with unit ownership is the continuing obligation to
pay assessments. The declarant initially arranges for the payment of assessments
until conveyance of the first unit to an owner. Then the Association, standing in
the shoes of the declarant, takes over. The obligation to pay assessments is
continuing, therefore, without interruption.
In addition, the defendants’ ownership interests cannot logically be defined
as other than unit owners, by the unambiguous terms of the Condominium
Documents. As such, they are deemed members of the Association obligated, as
are all other members, to pay the assessments. To define their interests in any
other manner brings about an absurd result: they become owners and members of
the Association with all the benefits of membership and none of the obligations.
The Condominium Documents and relevant statutes, when read in harmony,
dictate otherwise.
Mountain View Condominiums Homeowners Ass'n Inc. v. Scott, 180 Ariz. at 221, 883 P.2d at
458. The logic behind this ruling is that the Association can only continue to make repairs and do
maintenance to the common elements if the homeowners pay their assessments. Here,
Defendants admitted they failed to pay their assessments for a number of years but complained
about the upkeep of the premises. While Defendant may be correct that the Association is not
properly maintaining the property, the Association’s failure to meet Defendants’ expectations
does not allow them to unilaterally decide when and if they will honor their financial obligations.
This Court has carefully reviewed the entire trial court file including the DVDs as well as the
witness statements Defendants provided to support their alleged claims.9 However, Defendants
made no claim against Plaintiff because Defendants filed no counterclaim. ARCP Rule 13 deals
with counterclaims. Rule 13(a) authorizes compulsory counterclaims when the claim arises out of
a transaction or occurrence that is the subject matter of the opposing party’s claim and does not
require the presence of third parties over whom the court cannot acquire jurisdiction.
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10For example, Defendants noted they only paid assessments for two quarters from July 2007 through December
2007, in “Defendants Correction of Defendands [sic.] Pleading Dated August 27th 2012” at p. 2, ll. 18–20. In
addition, Defendants claimed the HOA failed to enforce all of the CC&Rs because the subdivision is incomplete and
lacked infrastructure such as streets, sidewalks, street lights, roads, and walls, and also contains vacant lots.
Defendants provided no proof that the HOA was ever responsible for providing the infrastructure of the subdivision.
Although Defendants maintained the HOA failed to “protect the value, attractiveness and desirability of the
Residential Community” Defendant failed to demonstrate the CC&Rs obligated the HOA to perform any construction
in the subdivision. The HOA did not guarantee completion of the subdivision. Indeed, the HOA is not the responsible
party for the subdivision. As demonstrated by the Subdivision Public Report for Sundance Parcel 48 (Subdivision
Public Report) with an effective date of August 10, 2006, Rick Hancock Homes, LLC (1) was the subdivider—not
the HOA—;and (2) authored the Subdivision Public Report. However, because Defendants failed to assert any claim
against the HOA by way of a counterclaim, Defendants are precluded from litigating these allegations.
In Arizona a compulsory counterclaim must be asserted against the plaintiff in
order to avoid the application of the principle of res judicata. A counterclaim is
compulsory if it arises out of the transaction or occurrence that is the subject
matter of the opposing party’s claim and does not require for its adjudication the
presence of third persons over whom the court cannot acquire jurisdiction.
Levin v. Hindhaugh, 167 Ariz. 110, 111, 804 P.2d 839, 840 (Ct. App. 1990) (citations omitted). A
failure to assert a compulsory counterclaim allows for res judicata to become effective and bars
litigation of the counterclaim in a subsequent lawsuit. As the Court of Appeals stated:
. . . . .
We agree with PJ. Rule 13(a), Rules of Civil Procedure, 16 A.R.S., provides that a
counterclaim is compulsory if it arises out of the transaction or occurrence that is
the subject matter of the opposing party’s claim. The test to determine if a
counterclaim is compulsory or permissive is whether there is any logical relation
between the claim and counterclaim. If there is, the counterclaim is compulsory.
Aries v. Palmer Johnson, Inc., 153 Ariz. 250, 255, 735 P.2d 1373, 1378 (Ct. App. 1987) (citation
omitted). Because Defendants filed no counterclaim—and therefore made no legal claim against
Plaintiff—the only evidence that is relevant is evidence that pertains to the assessments.
Defendants admitted—on more than one occasion—they failed to pay their assessments.10
Because Defendants admitted they did not pay the assessed fees, the trial court did not err in
granting Plaintiff’s summary judgment.
Did The Trial Court Err By Denying Defendants’ Requested Trial By Jury.
B.
Defendants alleged the trial court denied them their Constitutional right to a trial by jury
pursuant to Amendments V and XIV. In making this allegation, Defendants erred. In Arizona,
there is no guaranteed right to a trial by jury in every civil case. Taken to its logical conclusions,
Defendants’ claim is that the summary judgment process is unconstitutional because summary
judgments end cases and there is no trial when summary judgments are granted. Defendants
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11 Persuasively, our British antecedents allowed a common law judge to inspect the evidence and decide “obvious”
cases without impaneling a jury. As stated by Blackstone, the famous eighteenth century British jurist:
When for the greater expedition of a cause, in some point or issue being either the principal
question or arising collaterally out of it, but being evidently the object of sense, the judges of the
court, upon the testimony of their own senses, shall decide the point in dispute. For where the
affirmative or negative of a question is matter of such obvious determination, it is not thought
necessary to summon a jury to decide it; who are properly called in to inform the conscience of the
court in respect of dubious facts; and therefore when the fact, from its nature must be evident to the
court either from ocular demonstration or other irrefragable proof, there the law departs from its
usual resort, the verdict of twelve men, and relies on the judgment of the court alone.17
William Blackstone, 3 Commentaries *331-32 as quoted in Edward Brunet, Summary Judgment Is Constitutional, 93
Iowa L. Rev. 1625, 1651 (2008).
provide no support for this position and the summary judgment process has been accepted at
both the state and federal levels.
As early as 1902, the U.S. Supreme Court discussed the possibility of ending a case when a
Defendant failed to provide a sufficient affidavit to contest a plaintiff’s claim. Fid. & Deposit Co.
of Maryland v. United States, 187 U.S. 315, 317, 23 S. Ct. 120, 47 L. Ed. 194 (1902). The
Supreme Court interpreted the rules allowing a trial court to enter judgment prior to a trial and
stated:
. . . . .
. . . . .
The rule requires the affidavit, not only to deny the right of the plaintiff, but to
state also in precise and distinct terms the grounds of defense, ‘which must be
such as would, if true, be sufficient to defeat the plaintiff's claim in whole or in
part.’
Fid. & Deposit Co. of Maryland, 187 U.S. at 322, 23 S. Ct. at 123. This holding has provided the
legal basis on which summary judgments have been held constitutional under the Seventh
Amendment.11
Arizona trial courts have long utilized summary judgments. The Arizona Supreme Court
commented on the use of summary judgment and held:
We hold, therefore, that although the trial judge must evaluate the evidence to
some extent in ruling on a motion for summary judgment, the trial judge is to
apply the same standards as used for a directed verdict. Either motion should be
granted if the facts produced in support of the 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. Thus, assuming discovery is complete, the judge should grant summary
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judgment if, on the state of the record, he would have to grant a motion for
directed verdict at the trial.
Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). Furthermore, our Arizona
Court of Appeals specifically ruled on the issue as to whether the summary judgment process
was an unconstitutional deprivation of a right to a trial by jury and held:
The Alafaces argue that the granting of summary judgment deprived them of
their constitutional right to trial by jury. This argument has been raised previously
in Arizona and has been found to be without merit. See Gurr v. Willcutt, 146 Ariz.
575, 580–81, 707 P.2d 979, 984–85 (App.1985); Cagle v. Carlson, 146 Ariz. 292,
297–98, 705 P.2d 1343, 1348–49 (App.1985), cert. denied, 476 U.S. 1108, 106 S.
Ct. 1956, 90 L.Ed.2d 365 (1986). As explained by the Cagle court, “the granting of
summary judgment does not deprive a plaintiff of his constitutional rights to a
jury trial because, in such cases, there are simply no genuine issues of fact for a
jury to consider.” 146 Ariz. at 298, 705 P.2d at 1349.
Alaface v. Nat'l Inv. Co., 181 Ariz. 586, 599, 892 P.2d 1375, 1388 (Ct. App. 1994).
Additionally, even had Plaintiff not succeeded in winning its summary judgment motion,
Defendants still would not have been entitled to a jury trial. To obtain a jury—as opposed to a
judge—trial, a litigant must timely request a trial by jury. ARCP Rule 38(b) governed the demand
for jury trial during the relevant time period. That rule states:
Any person may demand a trial by jury of any issue triable of right by jury. The
demand may be made by any party by filing and serving a demand therefor in
writing at any time after the commencement of the action, but not later than the
date on which the court sets a trial date or ten days after the date a Joint Report
and Proposed Scheduling Order under Rule 16(b) or Rule 16.3 are filed, whichever
first occurs. The demand for trial by jury shall not be endorsed on or be combined
with any other motion or pleading filed with the court.
The trial court set the date for trial on March 10, 2012. Defendants did not file their request until
June 25, 2012. By that time, not only had the allowable time period for filing a request for a jury
trial lapsed, but the trial court had also granted Plaintiff’s summary judgment request, thereby
mooting any need for any trial—jury or judge. Defendants’ argument about their alleged
deprivation of a right to a trial by jury fails.
Did The Trial Court Consider All Relevant and Admissible Evidence.
C.
Defendants claimed the trial court erred because it did not consider all of the evidence they
produced. The basis for this claim appears to be that if the trial court had considered their
plethora of pictures, it would not have found in Plaintiff’s favor. Although Defendants produced
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many pictures showing trash, bare ground, graffiti, and dead plants, those claims refer to a claim
about the Association’s upkeep of the property. As this Court previously stated, failure to pay
assessments is distinct from upkeep. Additionally, Defendants failed to file any counterclaim
incorporating these allegations and, as stated above, cannot litigate these claims.
Defendants also asserted the affidavit Plaintiff provided was insufficient as a matter of law
because the signature on the affidavit was signed under the penalty of perjury and not notarized.
ARCP Rule 80(i) allows a party to sign under the penalty of perjury. That Rule permits unsworn
verifications to be used in place of formal sworn declarations, affidavits, certificates or
verifications provided (1) the unsworn declaration is in substantially similar form to the
declaration specified in the rule; and (2) the unsworn declaration is subscribed by the person
making the declaration under the penalty of perjury. In discussing the ambit of this rule, our
Court of Appeals stated:
Evergreen asserts on appeal that this statement, and Bowles’s declaration, are
insufficient to preclude summary judgment because they contain hearsay and are
unsigned and unsworn.10 See Ariz. R. Civ. P. 56(e), 16 A.R.S., Pt. 2 (affidavits
supporting or opposing summary judgment “shall set forth such facts as would be
admissible in evidence”); In re Wetzel, 143 Ariz. 35, 43, 691 P.2d 1063, 1071
(1984) ( “An ‘affidavit’ is a signed, written statement, made under oath before an
officer authorized to administer an oath or affirmation in which the affiant
vouches that what is stated is true.”). Although the declarations by Bowles,
Fairman, and AFX employee Leigh Abbot attached to AFX's response to
Evergreen’s summary judgment motion were unsigned, AFX later submitted
signed copies of those declarations. The signed declarations stated they were made
under penalty of perjury. See Ariz. R. Civ. P. 80(i), 16 A.R.S., Pt. 2 (any matter
that rules require or permit to be supported by affidavit “may, with like force and
effect, be supported ... by the unsworn written declaration ... subscribed by such
person as true under penalty of perjury, and dated”).
Airfreight Exp. Ltd v. Evergreen Air Ctr., Inc., 215 Ariz. 103, 111-12, 158 P.3d 232, 240-41 ¶ 25
(Ct. App. 2007). Although the unsworn declarations were not accepted in Airfreight Exp. Ltd.,
because they were not dated, this does not detract from the Court of Appeals’ decision accepting
unsworn declarations as admissible evidence.
Defendants also claimed Mr. Tom Campanella’s affidavit should not have been considered
because it was hearsay and the affiant did not have knowledge about their account. However, in
light of the Defendants’ own admission that they failed to pay their assessments, any error in
considering this affidavit would be harmless. ARCP Rule 61 governs harmless error and states:
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No error in either the admission or the exclusion of evidence and no error or
defect in any ruling or order or in anything done or omitted by the court or by any
of the parties is ground for granting a new trial or for setting aside a verdict or for
vacating, modifying or otherwise disturbing a judgment or order, unless refusal to
take such action appears to the court inconsistent with substantial justice. The
court at every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties.
As the Arizona Court of Appeals stated:
The reception of inadmissible evidence that has at some other point been admitted
is harmless error.
Starkins v. Bateman, 150 Ariz. 537, 544, 724 P.2d 1206, 1213 (Ct. App. 1986).
Although Defendants claimed Plaintiff failed to provide evidence showing the HOA had the
right to assess them, the CC&Rs (1) indicate Defendants obligated themselves to pay these
assessments; and (2) authorized the Association to proceed with litigation. When Defendants
purchased a home within an HOA community, they constrained their ability to refuse to pay the
assessments.
Did The Trial Court Provide Proper Notice To Defendants.
D.
Defendants maintained the trial court failed to provide them with proper notice of the trial
court’s June 19, 2012, ruling. Although the clerk of the court indicated the clerk mailed a copy of
the ruling to Defendants, the ruling itself listed an incorrect address for Defendants. Defendants
have not alleged what damage they may have suffered from the trial court’s error in improperly
listing their address on the June 19, 2012, ruling on summary judgment, particularly in light of the
fact that the trial court had—on June 11, 2012,—also ruled granting Plaintiff’s summary
judgment motion. Even if the trial court inadvertently sent Defendants’ copy of the June 19,
2012, ruling to the incorrect address, Defendants have not demonstrated they suffered any wrong
that should be attributed to Plaintiff.
Did The Trial Court Err By Striking Defendants’ Second Response To Plaintiff’s
E.
Summary Judgment Motion.
Defendants claimed the trial court erred by (1) striking their May 16 responsive motion to
Plaintiff’s requested summary judgment and (2) granting Plaintiff summary judgment because
they responded to the summary judgment motion. Merely filing a response is not sufficient to
counter a summary judgment motion. Defendants alleged (1) Plaintiff failed to respond to their
May 16 response to the summary judgment motion so they should win this motion by default;
and (2) they were allowed a second response to the summary judgment motion because Rule
15(a) A.R.C.P. allows an amendment to a pleading one time. Defendants misconstrued Rule
15(a). The rule states:
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12 Appelants [sic.] Memorandom [sic.] on Appeal, at p. 10, ll. 1–24.
1. A party may amend the party’s pleading once as a matter of course:
A. within twenty-one days after serving it if the pleading is one to which no
responsive pleading is permitted; or
B. within twenty-one days after service of a responsive pleading if the pleading is
one to which a responsive pleading is required or, if a motion under Rule 12(b),
(e), or (f) is served, on or before the date on which a response to the motion is
due, whichever is earlier.
Otherwise a party may amend the party’s pleading only by leave of court or by
written consent of the adverse party. Leave to amend shall be freely given when
justice requires. Amendment as a matter of course after service of a motion under
Rule 12(b), (e), or (f) does not, by itself, moot the motion as to the adequacy of
the allegations of the pleading as revised in the amended pleading and does not
relieve a party opposing the motion from filing a timely response to the motion.
The rule refers to pleadings and not to motions. Our Arizona Court of Appeals defined the term
“pleadings” for purposes of this rule and held:
. . . . .
Arizona Rule 15(a) is derived from Federal Rule 15(a). Both rules provide for
amendment of ‘pleadings.’ This term refers to complaints, answers, replies to a
counterclaim, answers to cross-claims, third-party complaints, third-party
answers, and, pursuant to court order, replies to answers or third-party answers.
Romo v. Reyes, 26 Ariz. App. 374, 375, 548 P.2d 1186, 1187 (1976). Defendants’ reliance on Rule
15(a), A.R.C.P. was inapposite.
The rules of civil procedure do not allow for a second response to a motion for summary
judgment. ARCP Rule 56(c) only provides for a single response. ARCP Rule 12(f) allows a trial
court to strike a redundant or immaterial matter from any pleading. Because the trial court struck
Defendants’ May 16 responsive motion, Plaintiff had no need to respond to it.
Did The Trial Court Err By Failing To Find For Defendants.
F.
Defendants relied on an Illinois case Spanish Court Two Condominium Association v.
Carlson, 2012 IL App (2d) 110473, 979 N.E.2d 891, 899 ¶ 27 (2012) appeal allowed, 982 N.E.2d
775 (Ill. 2013) and an Illinois statute to support their claim that the HOA’s alleged failure to
perform its duties is a viable defense to a suit for failing to pay their required assessments.12 This
Illinois case dealt with a forcible detainer action and neither it nor the Illinois Forcible Entry Act is
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13 In light of Arizona law, this case is not persuasive.
14 Appelants [sic.] Memorandom [sic.] on Appeal at p. 10, ll. 25–33.
15 The Johnson case is distinguishable from the Defendants’ situation as an injunction was requested. Justice courts
only have the specific jurisdiction that is conferred by law. A.R.S. § 22–201. Justice courts do not have the
jurisdiction to decide cases involving injunctions.
binding in Arizona.13
Defendants also cited Johnson v. Pointe Cmty. Ass'n, Inc., 205 Ariz. 485, 486, 73 P.3d 616,
617 (Ct. App. 2003) as authority for their contention that the Justice Court lacked the “proper
authority to determine which terms and or clauses in the CC&Rs are legal or enforceable”.14
Defendants misconstrue the holding of the Johnson opinion insofar as they use it to support their
contention that the Justice Court could not determine this action. Johnson provided a
homeowner could sue an HOA for damages and for an injunction to compel the association to
enforce the provisions of the declaration. Johnson, at ¶ 21. Defendants, however, (1) filed no
counterclaim; (2) did not sue the association; and (3) did not request either an injunction or
damages.15 Johnson stands for the proposition that courts rather than the HOA have the
opportunity to interpret the meaning of a contract. As the Arizona Court of Appeals stated in
Johnson:
The civil courts afford a neutral interpretation of the development’s declaration
and “significant protection against overreaching” by either homeowners or their
association.
Johnson, at ¶ 25. Here, the trial court properly determined the meaning of the contract. A.R.S.
§22–201 details the jurisdiction of the justice court in civil actions. It states—in relevant part:
Justices of the peace have exclusive original jurisdiction of all civil actions when
the amount involved, exclusive of interest, costs and awarded attorney fees when
authorized by law, is ten thousand dollars or less.
Ariz. Rev. Stat. Ann. § 22-201(B). The Justice Court had the authority to rule on legal questions
about the CC&Rs.
Defendants also asserted the trial court did not review the evidence but failed to support this
claim. Indeed, in making its ruling, the trial court specifically referred to having reviewed the
pleadings and evidence in this case. Additionally, even if the trial court failed to review all of
Defendants’ photographs, the condition of the property is not at issue because—as previously
stated—Defendants never filed a counterclaim in the matter and did not place the matter at issue.
This Court recognizes Defendants appeared pro se and likely were not aware of all of the
requirements for proper filings in civil actions. However, Arizona treats pro se litigants (those
who represent themselves) according to same standards used for attorney representation and
courts do not excuse the failure to conform to mandated rules because a litigant represents
himself or herself. The Arizona Court of Appeals held:
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Parties who choose to represent themselves “are entitled to no more
consideration than if they had been represented by counsel” and are held to
the same standards as attorneys with respect to “familiarity with required
procedures and . . . notice of statutes and local rules.” A party’s ignorance of
the law is not an excuse for failing to comply with it.
In re Marriage of Williams, 219 Ariz. 546, 200 P.3d 1043, ¶ 13 (Ct. App. 2008) [citations
omitted.] Accord, Higgins v. Higgins, 194 Ariz. 266, 279, 981 P.2d 134, 138 (Ct. App. 1999) and
Kelly v. NationsBanc. Mortg. Corp., 199 Ariz. 284, 17 P.3d 790, ¶ 16 (Ct. App. 2001). This may
be a harsh determination. However, it is the decision required by our state law
Did The Trial Court Err By Not Scheduling A Hearing On Plaintiff’s Summary
G.
Judgment.
Defendants asserted the trial court erred by not scheduling hearings on the summary
judgment motion. Trial courts have great discretion in the conduct of their cases and are only
required to set a time for hearing a summary judgment motion when a party requests a hearing.
ARCP Rule 56(c)(1) states—in relevant part:
Upon timely request by any party, the court shall set a time for hearing of the
motion. If no request is made, the court may, in its discretion, set a time for such
hearing.
Neither party requested a hearing. Consequently, the trial court had discretion to decide if it
needed to hold a hearing as one was not mandatory. In ruling on whether a trial court erred by
not holding a hearing in a summary judgment case the Arizona Court of Appeals determined a
trial court is only required to consider those portions of verified pleadings, depositions, answers
to interrogatories and admissions which the parties bring to the trial court’s attention. The
Arizona Court of Appeals held:
In deciding a motion for summary judgment, the trial court considers “those
portions of the verified pleadings, deposition, answers to interrogatories and
admissions on file which are brought to the court’s attention by the parties.”
Tilley v. Delci, 220 Ariz. 233, 204 P.3d 1082, ¶ 10 (Ct. App. 2009). In Tilley, the Court of Appeals
also decided (1) there was no requirement for a trial court to conduct a hearing before granting
summary judgment; and (2) summary judgment was a final judgment on the merits. Tilley, at ¶
13.
Did The Trial Court Err By Not Giving Defendants An Opportunity To Present
H.
Their Discovery.
Defendants also claimed—p. 15, ll. 1–2 of their appellate memorandum—the trial court
“ruled incorrectly for failure to give the Appellants an opportunity at any time during these
proceedings to properly present their discovery.” Discovery is presented to the adverse party. It is
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not provided to the trial court. This claim fails.
Did The Trial Court Err By Awarding But Reducing Plaintiff’s Attorneys’
I.
Fees.
The CC&Rs provide for an award of reasonable attorneys’ fees. Additionally, A.R.S. §
33–1807(H) and A.R.S. § 12–341.01 provide for the award of reasonable attorneys’ fees. Plaintiff
prevailed and therefore was entitled to an attorneys’ fee award. Attorney fee awards are reviewed
under an abuse of discretion standard. Chase Bank of Arizona v. Acosta, 179 Ariz. 563, 574, 880
P.2d 1109, 1120 (Ct. App. 1994). Normally, appellate courts do not adjust the attorney fee award
determined by the trial court because (1) the trial court has a “superior understanding of the
litigation” and (2) appellate review of primarily factual matters is not desirable. Chase Bank of
Arizona v. Acosta, id., 179 Ariz. at 574, 880 P.2d at 1120.
Where this Court reviews the trial court’s actions based on an abuse of discretion standard,
this Court will not change or revise the trial court’s determination if there is a reasonable basis for
the order. A court abuses its discretion when there is no evidence supporting the court’s
conclusion or the court’s reasons are untenable, legally incorrect, or amount to a denial of justice.
Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 141 P.3d 824 ¶ 17 (Ct. App. 2006).
However, the trial court may—and should—review the requested fee to insure that it is not an
unreasonable one. In McDowell Mountain Ranch Community Ass’n Inc. v. Simons, 216 Ariz.
266, 165 P.3d 667 ¶ 18 (Ct. App. 2007), the Court ruled that while a defendant may be obligated
to pay the full amount of the attorneys’ fees, that obligation may not be enforced when the
requested amount for the fees is “obviously excessive.”
. . . . .
. . . . .
. . . . .
In determining if the award of attorney fees is reasonable, this Court is guided by the
underlying purpose behind the attorney fees statute—to mitigate the burden of the expense of
litigation. Fousel v. Ted Walker-Mobile Homes, Inc. 124 Ariz. 126, 602 P.2d 507 (Ct. App. 1979).
Before determining any award, this Court notes (1) the attorney must provide a China Doll
affidavit detailing the work performed, Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183,
673 P.2d 927 (Ct. App. 1983) and (2) any award of attorney fees under A.R.S. 12–341.01 is
subject to an analysis about the reasons for the shifting of responsibility for fees. In Schweiger v.
China Doll, id., 138 Ariz. at 188, 673 P.2d at 932 the Court of Appeals reviewed the types of
services which may be included in a fee application but cautioned if “a particular task takes an
attorney an inordinate amount of time, the losing party ought not be required to pay for that
time.”
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The Arizona Supreme Court discussed the factors a court should consider prior to
making an award. These include:
whether the unsuccessful party’s position or defense had merit;
1.
whether the litigation could have been avoided, or settled and how the
2.
successful party’s efforts influenced the result;
whether assessing fees against the unsuccessful party would cause extreme
3.
hardship;
whether the successful party prevailed with respect to all of the relief sought;
4.
whether the legal question was novel;
5.
whether a similar claim had been previously adjudicated in this jurisdiction;
6.
whether the particular award would discourage other parties with tenable
7.
claims or defenses from litigating or defending for fear of incurring liability for
substantial amounts of attorney fees.
Assoc. Indem. Corp. v. Warner, 143 Ariz. 567, 570, 694 P.2d 1181, 1184 (1985); Moedt v.
General Motors Corp., 204 Ariz. 100, 60 P.3d 240 ¶ 19 (Ct. App. 2003). In establishing these
factors, the Arizona Supreme Court considered the language of A.R.S. 12–341.01 and cited
subsection B which states the award:
“. . . should be made to mitigate the burden of the expense of litigation to establish
a just claim or a just defense. It need not equal or relate to the attorney’s fees
actually paid or contracted. . .”.
Assoc. Indem. Corp. v. Warner, 143 Ariz. at 569, 694 P.2d at 1183. Here, before awarding the
attorneys’ fees, the trial court noted the numerous pleadings Defendants filed and found many of
these pleadings lacked merit. In addition, Defendants had multiple opportunities to settle their
case. Furthermore, Plaintiff is able to recover attorneys’ fees that exceed the underlying claim.
Our Court of Appeals stated:
The fact that the attorney’s fees are in excess of the amount in dispute does not
mean they are unreasonable. Appellants took the risk of having to pay such an
amount by its refusal to agree to a proper adjustment of the taxes.
Wagner v. Caster, 136 Ariz. 29, 32, 663 P.2d 1020, 1023, (Ct. App. 1983). The determination of
the amount of attorney fees—according to A.R.S. § 12–341.01—is subject to the court’s
discretion. “The trial court has broad discretion in determining whether to award attorneys’ fees
under A.R.S. section 12–341.01(A).” State Farm Mut. Auto Ins. Co. v. Arrington, 192 Ariz. 255,
963 P.2d 334 ¶ 27 (Ct. App. 1998). “[The] trial court abuses its discretion as to attorneys’ fees
only when its view would not be taken by a reasonable man.” Moser v. Moser, 117 Ariz. 312,
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315, 572 P.2d 446, 449 (Ct. App. 1977). Here, Defendants’ actions caused the HOA to expend a
great deal of funds to respond to Defendants’ many motions. Thus, the only issue is whether the
requested fees were reasonable as both the CC&Rs—Section 10.19—and our statutory scheme
provide for reasonable fees. In this case, the trial court reduced the amount of requested fees.
From the record before this Court, it appears the trial court determined the appropriate amount of
attorneys’ fees to award after (1) analyzing the specific charges and (2) considering the factors
required by Assoc. Indem. Corp. v. Warner, id., 143 Ariz. at 570, 694 P.2d at 1184. The trial
court’s fee determination stands.
Is Plaintiff Entitled To Attorneys’ Fees For The Appeal.
J.
Plaintiff prevailed on appeal. It is entitled to reasonable attorneys’ fees for the appeal
provided Plaintiff submits a China Doll affidavit.
III. Conclusion.
Based on the foregoing, this Court concludes the White Tank Justice Court did not err.
IT IS THEREFORE ORDERED affirming the judgment of the White Tank Justice Court.
IT IS FURTHER ORDERED remanding this matter to the White Tank Justice Court for
all further appropriate proceedings.
IT IS FURTHER ORDERED signing this minute entry as a formal Order of the Court.
/s/ Myra Harris
The Hon. myra harris
Judicial Officer of the Superior Court
112020131413
NOTICE: LC cases are not under the e-file system. As a result, when a party files a
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