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Maricopa County Superior Court Case LC2018-000210: public docket details, parties, minute entries, documents, and official source links for Town Square Homeowners Association.

Case Number

LC2018-000210

County

Maricopa

Caption

Not captured

Filed

5/22/2018

Case Type

Lower Court Appeals

Judge

Francis, Jillian

Location

Downtown

Official Court Record

Official Court Record

Parties

Minute Entries

Clerk of the Superior Court

*** Electronically Filed ***

01/25/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

01/23/2019

Docket Code 016
Form L000
Page 1

CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
C. Avena

Deputy

TOWN SQUARE HOMEOWNERS
ASSOCIATION
LORI L VOEPEL

v.

ROBERT A TOMICZEK (001)
CHRISTOPHER J BERRY

JUDGE STARR
MOON VALLEY JUSTICE COURT
REMAND DESK-LCA-CCC

EXTEND TIME FOR FILING GRANTED

The Court has received the Appellant’s Unopposed Motion for Extension of Time to File
Response to Appellee’s Motion for Reconsideration, filed on January 22, 2019. Accordingly,

IT IS ORDERED approving Appellant’s motion and extending the time for filing the
response up to and including January 24, 2019, all in accordance with the formal written Order
signed by the Court on January 23, 2019, and filed (entered) by the Clerk on January 23, 2019.

Please note: The Court has signed a hard-copy version of the order provided with an
electronically filed pleading. After the order has been scanned and docketed by the Clerk of Court,
copies of this order may be available through ECR Online at clerkofcourt.maricopa.gov or through
AZTurboCourt.gov and from the Public Access Terminals at the Clerk of Court’s offices located
throughout Maricopa County.

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, 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 new filings.

Clerk of the Superior Court

*** Filed ***

03/18/2019 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

03/12/2019

Docket Code 023
Form L000
Page 1

CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
C. Avena

Deputy

TOWN SQUARE HOMEOWNERS
ASSOCIATION
LORI L VOEPEL

v.

ROBERT A TOMICZEK (001)
CHRISTOPHER J BERRY

JUDGE STARR
MOON VALLEY JUSTICE COURT
REMAND DESK-LCA-CCC

MINUTE ENTRY

Lower Court Case No. CC2015-144356RC.

Pending before the Court are two matters: Appellee Robert A. Tomiczek’s Motion for
Reconsideration, which the Court will treat as a Motion for Rehearing pursuant to Rule 14(a),
Superior Court Rules of Appellate Procedure-Civil, and Appellant Town Square Homeowners
Association’s Application for Attorneys’ Fees and Costs. The Court has considered all the
related papers for each motion as well as the record in this matter.
Motion for Rehearing
Tomiczek seeks rehearing regarding this Court’s previous finding that the trial court erred
when it ruled in his favor on his Counterclaims D and E. According to Tomiczek, this Court
wrongly found that on appeal, Tomiczek argued his claims as negligence claims, while at the
trial court level, he presented those claims as contract claims. But regardless of the label put on
the arguments, on appeal, Tomiczek essentially made a claim based on negligence. Moreover,
this Court specifically stated that it would address the claims in the context of breach of contract,
not negligence.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

03/12/2019

Docket Code 023
Form L000
Page 2

Tomiczek also argues that this Court “refused to analyze the merits” of his argument.
(Motion for Reconsideration at 3.) But the Court did analyze the merits of the claims; it simply
disagreed with Tomiczek’s argument and characterization of the claims.
Thus,
IT IS ORDERED denying the Motion for Reconsideration/Rehearing.
Application for Attorneys’ Fees and Costs
Town Square seeks an award of attorneys’ fees in the amount of $59.690.00 and costs in
the amount of $4,816.90. Tomiczek opposes that request.
A.R.S. § 12-341.01 allows a court to award a successful party reasonable attorney fees
“to mitigate the burden of the expense of litigation . . .” § 12-341.01(B). The award “need not
equal or relate to the attorney fees actually paid or contracted, but the award may not exceed the
amount paid or agreed to be paid.” Id. Moreover, the Declaration upon which this suit was based
provides that “[i]n the event an action is instituted to enforce any provisions contained in this
Declaration, the party prevailing in such action shall be entitled to recover from the other party
thereto, as part of the judgment, reasonable attorneys’ fees and costs of such suit.” Declaration,
Article IVI, Section 8. Here, the Association is the prevailing party. As the prevailing party, the
Association is entitled to an award of reasonable attorneys’ fees.
And although Tomiczek opposes an award of attorneys’ fees incurred in the trial of the
Counterclaims, the Association was entitled to include those fees in its claim, “provided that the
trial court has not previously awarded such fees.” Rule 13(b), Superior Court Rules of Appellate
Procedure – Civil.
The Court has considered all relevant factors in relation to A.R.S. 12-341.01 and finds
that an award of attorneys’ fees is appropriate. Associated Indemnity Corp. v. Warner, 143 Ariz.
567 (1985). Specifically, the Court has considered: (1) whether the unsuccessful party’s claim or
defense was meritorious; (2) whether the litigation could have been avoided or settled and the
successful party’s efforts were completely superfluous in achieving the result; (3) whether a fee
award would be an extreme hardship; (4) whether the successful party prevailed with respect to
all of the relief sought; (5) whether the matter presented a novel legal question; and (6) whether
the award would discourage other parties with tenable claims or defenses from litigating them.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

03/12/2019

Docket Code 023
Form L000
Page 3

The Court finds the fee affidavit submitted meets the requirements set forth in Schweiger
v. China Doll Rest., Inc., 138 Ariz. 183, 188 (1983). Specifically, the affidavit indicates the
agreed upon hourly rate, the attorney providing service, the time spent, and has sufficient detail
to enable the court to assess the reasonableness of the time expended.
The Court also finds that the Association is entitled to an award of reasonable attorneys’
fees pursuant to the Declaration.
Considering all those factors, the Court finds the amount of the reasonable attorneys’ fees
to be $14,000.00.
The Court also finds Town Square is entitled to an award of $4,816.90 in costs.
Accordingly,
IT IS ORDERED awarding attorneys’ fees in the amount of $14,000.00
IT IS FURTHER ORDERED awarding costs in the amount of $4,816.90.
IT IS FURTHER ORDERED confirming this Court’s previous ruling remanding this
matter to the Moon Valley Justice Court.
IT IS FURTHER ORDERED signing this minute entry as a formal order of the Court.

/s/ Patricia A. Starr

THE HON. PATRICIA A. STARR

JUDGE OF THE SUPERIOR COURT

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, 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 new filings.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

06/19/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

06/18/2018

Docket Code 504
Form L000
Page 1

CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
C. Avena

Deputy

TOWN SQUARE HOMEOWNERS
ASSOCIATION
LORI L VOEPEL

v.

ROBERT A TOMICZEK (001)
CHRISTOPHER J BERRY

MOON VALLEY JUSTICE COURT
REMAND DESK-LCA-CCC

CIVIL
RECORD APPEAL ASSIGNMENT - NO ORAL ARGUMENT

Lower Court Case No. CC2015-144356RC.
Memoranda have been filed in the above-mentioned appeal. This Court has determined that
oral argument would not be beneficial in resolving this appeal.
IT IS ORDERED assigning this appeal on June 18, 2018, to Hon. Patricia Starr for
determination of the appeal within sixty (60) days from this date based upon the record of the
proceedings and the parties’ memoranda, pursuant to Rule 9.9, Maricopa County Superior Court
Local Rules of Practice.

504.CIVIL.NOA

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, 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 new filings.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

07/03/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

07/02/2018

Docket Code 019
Form L000
Page 1

CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
C. Avena

Deputy

TOWN SQUARE HOMEOWNERS
ASSOCIATION
LORI L VOEPEL

v.

ROBERT A TOMICZEK (001)
CHRISTOPHER J BERRY

MOON VALLEY JUSTICE COURT
REMAND DESK-LCA-CCC

MINUTE ENTRY

Lower Court Case No. CC2015-144356RC.
The Court has considered two pending motions. The Court notes that neither party
provided courtesy copies of their papers to this division, which does not participate in e-file, and
thus the Court only became aware of the papers while checking the Court’s docket for another
purpose. The Court previously advised the parties that they must provide courtesy copies to this
division. (See June 18, 2018 Minute Entry, filed June 19, 2018.) Counsel are reminded that
because this division does not have access to e-file, simply filing a motion with the Clerk of
Court is insufficient for this Court to be on notice that the motion has been filed; a courtesy copy
MUST be provided to this division.
Motion to Strike
The court has considered Appellant’s Motion to Strike Appellee’s Issue 3, Argument IV,
and Exhibits 1 and 1A to Appellee’s Memorandum, as well as the Response and Reply. The
Court will not consider any documents and/or exhibits not properly in the record on appeal, nor
will the Court consider any settlement negotiations between the parties.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

07/02/2018

Docket Code 019
Form L000
Page 2

Thus,
IT IS ORDERED granting the Motion to Strike in the following respect: the Court will
not consider any matters not in the record on appeal.
The Court finds that neither attorneys’ fees or sanctions are appropriate.
Thus,
IT IS ORDERED denying the requests for attorneys’ fees and sanctions.
Motion for Leave to File Reply Memorandum
The Court has considered the Motion for Leave to File Reply Memorandum, as well as
the Response and Reply. The Court finds that a Reply Memorandum would assist the Court in its
determination of the matter, and that there is legal authority for the filing of such a memorandum
upon leave of the Court.
Thus,
IT IS ORDERED granting the Motion for Leave to File Reply Memorandum.
IT IS FURTHER ORDERED the Reply Memorandum must be filed no later than July
24, 2018. A courtesy copy MUST be provided to this division.
IT IS FURTHER ORDERED denying the request for sanctions.
Because the Court has granted permission for Appellant to file a Reply Memorandum,
this matter is no longer considered at issue.

The parties are notified that as of July 25, 2018, this division will be located in the
East Court Building, Courtroom 613.

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, 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 new filings.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

08/02/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

08/01/2018

Docket Code 023
Form L000
Page 1

CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
C. Avena

Deputy

TOWN SQUARE HOMEOWNERS
ASSOCIATION
LORI L VOEPEL

v.

ROBERT A TOMICZEK (001)
CHRISTOPHER J BERRY

JUDGE STARR
MOON VALLEY JUSTICE COURT
REMAND DESK-LCA-CCC

MINUTE ENTRY

Lower Court Case No. CC2015-144356RC.

The Court has received Appellant’s Reply Memorandum.
Therefore,
IT IS ORDERED this matter will be determined within 60 days from the date of the filing
of this minute entry, pursuant to Rule 9.9, Maricopa County Superior Court Local Rules of
Practice.

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, 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 new filings.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

09/28/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

09/27/2018

Docket Code 094
Form L000
Page 1

CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
C. Avena

Deputy

TOWN SQUARE HOMEOWNERS
ASSOCIATION
LORI L VOEPEL

v.

ROBERT A TOMICZEK (001)
CHRISTOPHER J BERRY

JUDGE STARR
MOON VALLEY JUSTICE COURT
REMAND DESK-LCA-CCC

ORAL ARGUMENT SET

Lower Court Case No. CC2015-144356RC.

Upon further review of the briefing, the Court has determined that oral argument would
assist it in its determination of this matter.

Therefore,

IT IS ORDERED setting Oral Argument on October 29, 2018, at 9:30 a.m. before the
Hon. Patricia A. Starr, East Court Building, Courtroom 613, 101 West Jefferson, Phoenix, AZ
85003.

IT IS FURTHER ORDERED that oral argument will be limited to 15 minutes for each side
unless permission to exceed this limit has been granted.

IT IS FURTHER ORDERED this matter is no longer at issue, but will be taken under
advisement after oral argument is complete.

NOTE: If counsel for a party, or self-represented party does not appear at the scheduled
time for the oral argument, the Court may vacate the oral argument and make its determination
based on the appellate memoranda submitted.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

09/27/2018

Docket Code 094
Form L000
Page 2

IT IS FURTHER ORDERED that, by October 12, 2018, counsel and self-represented
parties shall send an email to this Court’s bailiff, Richelle Chabot, at:
[email protected].

This email shall advise Ms. Chabot that the above named parties have received notice
and will be in attendance at this Oral Argument.

Court Reporter

NOTE: All court proceedings are recorded digitally and not by a court reporter. Pursuant
to Local Rule 2.22, if a party desires a court reporter for any proceeding in which a court reporter
is not mandated by Arizona Supreme Court Rule 30, the party must submit a written request to the
assigned judicial officer at least ten (10) judicial days in advance of the hearing, and must pay the
authorized fee to the Clerk of the Court at least two (2) judicial days before the proceeding. The
fee is $140 for a half-day and $280 for a full-day.

Effective February 15, 2017, Rule 9.8 of the Maricopa County Superior Court Local
Rules of Practice (Reporting of Oral Arguments and Hearings) has been abrogated. See Arizona
Supreme Court Order No. R-16-0044.

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, 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 new filings.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

10/09/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

10/08/2018

Docket Code 095
Form L000
Page 1

CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
C. Avena

Deputy

TOWN SQUARE HOMEOWNERS
ASSOCIATION
LORI L VOEPEL

v.

ROBERT A TOMICZEK (001)
CHRISTOPHER J BERRY

JUDGE STARR
MOON VALLEY JUSTICE COURT
REMAND DESK-LCA-CCC

ORAL ARGUMENT RESET

Lower Court Case No. CC2015-144356RC.

On the Court’s own motion,

IT IS ORDERED vacating the Oral Argument for Appeal currently scheduled for October
29, 2018, at 9:00 a.m. and resetting same to October 29, 2018, at 9:30 a.m. before the Hon.
Patricia A. Starr, East Court Building, Courtroom 913, 101 West Jefferson, Phoenix, AZ 85003.

IT IS FURTHER ORDERED that oral argument will be limited to 15 minutes for each side
unless permission to exceed this limit has been granted.
NOTE: If counsel for a party, or self-represented party does not appear at the scheduled
time for the oral argument, the Court may vacate the oral argument and make its determination
based on the appellate memoranda submitted.
IT IS FURTHER ORDERED that, by October 23, 2018, counsel and self-represented
parties shall send an email to this Court’s bailiff, Richelle Chabot, at:
[email protected].

This email shall advise Ms. Chabot that the above named parties have received notice
and will be in attendance at this Oral Argument.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

10/08/2018

Docket Code 095
Form L000
Page 2

Court Reporter

NOTE: All court proceedings are recorded digitally and not by a court reporter.
Pursuant to Local Rule 2.22, if a party desires a court reporter for any proceeding in which a
court reporter is not mandated by Arizona Supreme Court Rule 30, the party must submit a
written request to the assigned judicial officer at least ten (10) judicial days in advance of the
hearing, and must pay the authorized fee to the Clerk of the Court at least two (2) judicial days
before the proceeding. The fee is $140 for a half-day and $280 for a full-day.

Effective February 15, 2017, Rule 9.8 of the Maricopa County Superior Court Local Rules
of Practice (Reporting of Oral Arguments and Hearings) has been abrogated. See Arizona Supreme
Court Order No. R-16-0044.

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, 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 new filings.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

10/12/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

10/11/2018

Docket Code 023
Form L000
Page 1

CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
C. Avena

Deputy

TOWN SQUARE HOMEOWNERS
ASSOCIATION
LORI L VOEPEL

v.

ROBERT A TOMICZEK (001)
CHRISTOPHER J BERRY

JUDGE STARR
MOON VALLEY JUSTICE COURT
REMAND DESK-LCA-CCC

MINUTE ENTRY

Lower Court Case No. CC2015-144356RC

A clerical error having been made,

IT IS ORDERED correcting the Oral Argument Reset minute entry dated October 08,
2018 and filed October 09, 2018, page one, to reflect that the Oral Argument set in this matter is
set for 9:00 a.m., instead of 9:30 a.m., as reflected in the minute entry in error.

To clarify, the Oral Argument will be held on October 29, 2018 at 9:00 a.m. (Time
allotted: 30 minutes)

The balance of the minute entry remains unchanged.

The minute entry is available for viewing at:
http://www.courtminutes.maricopa.gov.

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, 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 new filings.

Chris DeRose, Clerk of Court

*** Electronically Filed ***

10/31/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

10/29/2018

Docket Code 020
Form L000
Page 1

CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
C. Avena

Deputy

TOWN SQUARE HOMEOWNERS
ASSOCIATION
LORI L VOEPEL

v.

ROBERT A TOMICZEK (001)
CHRISTOPHER J BERRY

JUDGE STARR
MOON VALLEY JUSTICE COURT
REMAND DESK-LCA-CCC

ORAL ARGUMENT

Lower Court Case No. CC2015-144356RC.
Courtroom: ECB 613
9:00 a.m. This is the time set for Oral Argument. Appellant, Town Square Homeowners
Association is represented by counsel, Lori L. Voepel. Defendant-Appellee, Robert A. Tomiczek
is present and is represented by counsel, Christopher J. Berry.
A record of the proceedings is made digitally in lieu of a court reporter.
Arguments are presented to the Court.
IT IS ORDERED taking the matter under advisement.
9:23 a.m. Hearing concludes.

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, 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 new filings.

Chris DeRose, Clerk of Court

*** Filed ***

12/19/2018 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

12/13/2018

Docket Code 513
Form L513
Page 1

CLERK OF THE COURT
HONORABLE PATRICIA ANN STARR
C. Avena

Deputy

TOWN SQUARE HOMEOWNERS
ASSOCIATION
LORI L VOEPEL

v.

ROBERT A TOMICZEK (001)
CHRISTOPHER J BERRY

JUDGE STARR
MOON VALLEY JUSTICE COURT
REMAND DESK-LCA-CCC

HIGHER COURT RULING / REMAND

Lower Court Case No. CC2015-144356RC.

Appellant Town Square Homeowners Association (“the Association”) seeks an order
reversing the judgment in favor of Appellee Robert A. Tomiczek on Counterclaims D and E, or
alternatively, an order modifying the amount of damages awarded on those counterclaims. For
the following reasons, this Court reverses the judgment of the trial court on Counterclaims D and
E.
I. FACTS AND PROCEDURAL BACKGROUND
In August of 2015, the Association filed a Complaint against Tomiczek, alleging breach
of contract for failure to pay assessments and related charges. (Complaint at 2.) Tomiczek filed
an Answer and Counterclaim. Among Tomiczek’s Counterclaims were allegations that the
Association’s landscapers had damaged a block wall on his property, and that the landscape
company spread chemicals in his front yard that killed vegetation. (Answer and Counterclaim,
filed February 5, 2016.)
The case eventually proceeded to a bench trial. At that trial, Tomiczek testified that the
Association’s landscapers damaged his block wall with a piece of machinery, and killed his
vegetation by spreading fertilizer into the “bender box” area of his front yard.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

12/13/2018

Docket Code 513
Form L513
Page 2

After trial, the trial court made the following findings:
• The Association met its burden of proof and prevailed on its claim for breach of
contract.
• Tomiczek failed to prove three of his counterclaims by a preponderance of the
evidence.
• Tomiczek met his burden of proof and prevailed on Counterclaims D and E,
regarding his wall and vegetation.
(Judgment, June 20, 2017.) The trial court awarded damages to the Association in the amount of
$3,559.00; the trial court awarded damages to Tomiczek in the amount of $1,477.50 for the wall,
and $6,402.78 for the vegetation. (Id.)
The Association appealed from the judgment in favor of Tomiczek on his two successful
counterclaims.
This Court has jurisdiction pursuant to A.R.S. §§ 12-124(A) and 22-261.
II. ISSUES
The Association raises two issues on appeal:
(1) Did the trial court improperly award damages to Tomiczek for breach of contract
based on an erroneous interpretation of the Association’s contractual duties?
(2) Did the trial court award Tomiczek damages in excess of those necessary to make him
whole?
III. LEGAL ANALYSIS
On appeal, Tomiczek presents his claims as negligence claims. At trial, Tomiczek stated
that “ultimately what he’s trying to prove is that the board breached its obligations” to him.
(Reporter’s Transcript of Proceedings, April 26, 2017 at 12.) Tomiczek further agreed with the
trial court that the issue at trial was whether “the HOA breach[ed] their contractual responsibility
to maintain the property.” (Id. at 17.)
Having chosen to present his claims as breach of contract claims at the trial court level,
Tomiczek may not now change his theory of the case to assert he is entitled to relief on the basis

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

12/13/2018

Docket Code 513
Form L513
Page 3

of the principles of negligence. To allow otherwise would be to unfairly prejudice the
Association, which defended breach of contract claims in the trial court, not negligence claims.
The Court thus addresses the arguments in the context of a breach of contract, not
negligence. To prove a breach of contract claim, a plaintiff must prove the existence of the
contract, a breach of the contract, and damages. Thomas v. Montelucia Villas, LLC, 232 Ariz.
92, 96, ¶ 16 (2013). An appellate court reviews the interpretation of a contract de novo.
Grosvenor Holdings, L.C. v. Figueroa, 222 Ariz. 588, 593, ¶ 9 (App. 2009).
Here, Tomiczek established the existence of a contract, namely the Amended and
Restated Declaration of Covenants, Conditions and Restrictions (“the Declaration”). But he did
not establish that the Association breached that contract.
With respect to the wall, the applicable section of the Declaration states that if a party
wall or common wall is damaged “by reason of any cause other than an act or negligence of a
party, the same shall be repaired or rebuilt at the joint expense of the parties,” with the expense
to be borne equally. Declaration, Article II, Section 13(A). Tomiczek argued at trial that the
Association breached the Declaration when its agent negligently damaged his block wall.
Under the Declaration, the Association had no duty to indemnify Tomiczek for damage to
the wall. Before this Court, Tomiczek argues that the Association is responsible for the
negligence of the landscapers, and thus must pay for repairs to the wall. But again, he did not
bring a negligence claim in the trial court, but rather a breach of contract action. Assuming that
the wall was damaged by reason of negligence of a party (the Association), Tomiczek did not
establish that the Association breached a contractual duty under the Declaration by not repairing
the wall at its expense.
As to the vegetation, the applicable section of the Declaration provides that the
Association is responsible for maintaining the common areas and front yards of each unit in the
community, including fertilizing. Declaration, Article IX, Section 1(A). Nothing in the
Declaration addresses the situation presented here, where the Association complied with its duty
to fertilize Tomiczek’s yard, but in the process negligently damaged other vegetation on his
property.
Instead, the arguments made by Tomiczek in this appeal go to whether the Association
and/or its landscaping company negligently damaged his vegetation.

SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY

LC2018-000210-001 DT

12/13/2018

Docket Code 513
Form L513
Page 4

Tomiczek’s counterclaims were brought as breach of contract claims. And under the
relevant contract, which is the Declaration, Tomiczek did not establish that the Association
breached its duties to him.
Because this Court has concluded that the trial court erroneously awarded damages to
Tomiczek on the counterclaims, it need not reach the second issue regarding the correct
calculation of the damages due to Tomiczek.
IV. CONCLUSION
Based on the foregoing, this Court finds
IT IS THEREFORE ORDERED vacating the judgment of the Moon Valley Justice Court
as to Counterclaims D and E.
IT IS FURTHER ORDERED remanding this matter to the Moon Valley Justice Court for
all further appropriate proceedings.
IT IS FURTHER ORDERED any Application for Attorneys’ Fees and Costs must be
submitted within 20 days of the filing of this minute entry. Any response must be filed within 20
days thereafter. No reply shall be filed.
IT IS FURTHER ORDERED signing this minute entry as a formal order of the Court.

/s/ Patricia A. Starr

THE HON. PATRICIA A. STARR

JUDGE OF THE SUPERIOR COURT

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu-
ment, 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 new filings.

Documents