07/17/2023 — LC2023000212 EDINBURGH, MARY 07/17/2023 HONORABLE JOSEPH P. MIKITISH View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
07/18/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2023-000212-001 DT
07/17/2023
Docket Code 504
Form L000
Page 1
CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
J. Eaton
Deputy
MARY EDINBURGH
JONATHAN A DESSAULES
v.
SCOTTSDALE EMBASSY CONDOMINIUM
ASSOCIATION (001)
TERESA H FOSTER
JUDGE MIKITISH
MCDOWELL MOUNTAIN JUSTICE
COURT
REMAND DESK-LCA-CCC
CIVIL
RECORD APPEAL ASSIGNMENT
McDowell Mountain Justice Court Case No. CC2022062965RC.
The parties’ memoranda having been filed in the above-mentioned appeal,
IT IS ORDERED assigning this appeal on July 17, 2023, to the Honorable Joseph P. Mikitish
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
document, 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.
09/14/2023 — LC2023000212 EDINBURGH, MARY 09/14/2023 HONORABLE JOSEPH P. MIKITISH View Minute Entry ↑ top
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- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
09/19/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2023-000212-001 DT
09/14/2023
Docket Code 019
Form L000
Page 1
CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
J. Eaton
Deputy
MARY EDINBURGH
JONATHAN A DESSAULES
v.
SCOTTSDALE EMBASSY CONDOMINIUM
ASSOCIATION (001)
TERESA H FOSTER
JUDGE MIKITISH
MCDOWELL MOUNTAIN JUSTICE
COURT
REMAND DESK-LCA-CCC
RULING
McDowell Mountain Justice Court Case No. CC2022062965RC
Plaintiff/Appellant Mary Edinburgh appeals from a civil judgment entered in the
McDowell Mountain Justice Court. After a bench trial, that court found in favor of
Defendant/Appellee, Scottsdale Embassy Condominium Association. This Court has jurisdiction
pursuant to ARIZ. CONST. Art. 6, § 16 and A.R.S. §§ 12–124, 22–261. For the following reasons,
this Court affirms.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff sued Defendant on a breach of contract claim.1 Plaintiff was a property owner
within the Scottsdale Embassy Condominium Association and alleged that Defendant “ha[d]
wrongfully and unlawfully attempted to implement a special assessment upon condominium
owners to pay for roof repairs.” See Complaint at p. 2. Plaintiff alleged she “ha[d] been forced,
1 Because the parties are familiar with the facts and procedural history, it is not recounted in detail here.
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under protest and duress, to make payment of $1,500.00 to the Association for this wrongful and
unlawful misconduct.” Id. at p. 3. Defendant filed an Answer and then parties litigated Plaintiff’s
motion for summary judgment, which the trial court ultimately denied on November 9, 2022. A
bench trial was held on January 23, 2023. The president of the Scottsdale Embassy Condominium
Association and Plaintiff testified, and several exhibits were admitted into evidence.
At the conclusion of the trial, the trial court took the matter under advisement and issued
its written ruling on January 25, 2023. The trial court entered judgment for Defendant. In its written
ruling, dated January 25, 2023, the trial court found,
Based upon evidence and testimony in the bench trial held on Junauary [sic] 23,
2023, the Plaintiff did not prevail by the Proponderance [sic] of the Evidence.
Therefore Judgment is granted to the Defendant. Defendant to submit an
Application for Fees and Costs within 10 days. Plaintiff to submit a response within
5 days of the Defendant’s filing.
Minute Entry dated 1/25/2023.
Defendant submitted its Motion for Attorney Fees. Plaintiff then filed its Response to
Defendant’s Motion for Attorney Fees. The trial court issued its judgment awarding attorney’s
fees on March 1, 2023. Plaintiff timely appealed.
II. LEGAL STANDARD
When reviewing a trial court judgment reached after a bench trial, the reviewing court
views “the evidence in a light most favorable to sustaining the verdict.” Castro v. Ballesteros-
Suarez, 222 Ariz. 48, 51-52 ¶ 11 (App. 2009). This Court cannot “reweigh the evidence or
substitute [its] evaluation of the facts” for that of the trial court. Id. However, this Court
considers pure questions of law de novo, including whether the trial court correctly applied the
substantive law to the facts. Trust v. County of Yuma, 205 Ariz. 272, 274 ¶ 7 (App. 2003).
“Implied in every judgment, in addition to express findings made by the court, is any
additional finding that is necessary to sustain the judgment, if reasonably supported by the
evidence, and not in conflict with the express findings.” Coronado Co., Inc, v. Jacome’s Dept.
Store, Inc., 129 Ariz. 137, 139 (App. 1981). “[I]f any reasonable view of the facts and law might
support the judgment of the trial court, [this court] is obliged to affirm its decision [and follows]
this rule even if the trial court has reached the correct result for the wrong reason.” Pugh v. Cook,
153 Ariz. 246, 248 (App. 1987).
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To establish a claim for breach of contract, the plaintiff must prove, by a preponderance
of the evidence, the existence of a contract, the defendant’s breach of that contract, and the
plaintiff’s resulting damages. See, e.g., Keg Restaurants Ariz., Inc. v. Jones, 240 Ariz. 64, 75 ¶
41 (App. 2016).
This Court reviews a trial court’s attorneys’ fees award for an abuse of discretion, Geller
v. Lesk, 230 Ariz. 624, 627 ¶ 8 (App. 2012), and views the facts in the light most favorable to
upholding the trial court’s ruling. Tucson Estates Prop. Owners Ass’n, Inc, v. McGovern, 239
Ariz. 52, 54 ¶ 3 (App. 2016). Trial judges are presumed to know the law and apply it when
making their determinations. Fuentes v. Fuentes, 209 Ariz. 51, 58 ¶ 32 (App. 2004). Moreover,
trial judges are not required to detail each item of their thinking on the record when reaching
their legal conclusions. See id. at 55 ¶ 18.
An issue is “discretionary” when
its resolution is based on factors which vary from case to case and which involve
the balance of conflicting facts and equitable considerations. Thus, the phrase
“within the discretion of the trial court” does not mean that the court is free to reach
any conclusion it wishes. It does mean that where there are opposing equitable or
factual considerations, we will not substitute our judgment for that of the trial court.
State v. Chapple, 135 Ariz. 281, 296 (1983), superseded by statute on other grounds, State v.
Sanders, 245 Ariz. 113, 127 ¶ 52 (2018).
Trial judges must consider a myriad of factors when exercising their discretion regarding
attorneys’ fees awards. See generally Associated Indem. Corp., 143 Ariz. 567 (1985); Schweiger
v. China Doll Rest., Inc., 138 Ariz. 183 (App. 1983). “The amount of fees is peculiarly within the
trial court’s discretion. Appellate courts are hesitant to second-guess the trial court on awards of
attorneys’ fees ‘in view of the [trial court’s] superior understanding of the litigation and the
desirability of avoiding frequent appellate review of what essentially are factual matters.’” Chase
Bank of Arizona v. Acosta, 179 Ariz. 563, 574 (App. 1994) (quoting Associated Indem. Corp.,
143 Ariz. at 571). Thus, on appeal,
the question is not whether the judges of [the reviewing] court would have made an
original like ruling, but whether a judicial mind, in view of the law and
circumstances, could have made the ruling without exceeding the bounds of reason.
[The reviewing court] cannot substitute [its] discretion for that of the trial judge.
Associated Indem. Corp., 143 Ariz. at 571 (internal quotation omitted).
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
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III. LEGAL ANALYSIS
The Court has reviewed and considered Plaintiff’s “Appellant’s Opening Brief” which
will be referred to herein as the “Opening Memorandum” or “O.M.” and Defendant’s
“Defendant/Appellee’s Answering Memorandum” which will be referred to herein as the
“Answering Memorandum” or “A.M.”
Plaintiff urges three assignments of error on appeal. First, Plaintiff argues that the trial
court “err[ed] in its bench trial ruling in favor of Defendant/Appellee.” O.M. at p. 8. Second, “the
trial court err[ed] in awarding attorneys’ fees to Defendant/Appellee.” Id. And finally, Plaintiff
argues that “the trial court err[ed] in denying Plaintiff/Appellant’s motion for summary judgment
on November 10, 2022.” Id.
In response, Defendant contends that the trial court did not err in “dismissing the
Complaint,” nor “in awarding attorneys’ fees.” A.M. at p. 5. Defendant argues that the “denial of
the summary judgment is irrelevant” because “[t]he matter actually proceeded to trial and the
court dismissed the Plaintiff’s claim after hearing all of the evidence and weighing the
creditability [sic] of witnesses.” Id. Defendant further alleges that Plaintiff “failed to meet her
burden of proof to establish a breach and/or to establish any damages.” Id. at p. 8.
The record does not reflect that either party requested the trial court to make specific
findings of facts and conclusions of law. See Rule 135(a), Justice Court Rules of Civil Procedure.
Accordingly, the trial court did not do so, but instead offered a very brief written ruling that
found “Plaintiff did not prevail by the Proponderance [sic] of the Evidence.” Minute Entry dated
1/25/23. Plaintiff essentially argues that the trial court erred when it found that Plaintiff failed to
carry her burden of proof. “In a contract case, the burden of proof rests solely on the plaintiff,”
and never shifts to the defendant.” Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 213 ¶ 16
(App. 2012). Thus, Plaintiff had the burden of proof by a “preponderance of the evidence.” See,
e.g., Aileen H. Char Life Interest v. Maricopa County, 208 Ariz. 286, 291 ¶ 11 (2004). A party’s
testimony, if believed by the trial court, is sufficient proof to sustain a verdict and judgment. Cf.
State v. Montano, 121 Ariz. 147, 149 (App. 1978) (“one witness, if relevant and credible, is
sufficient to support a conviction”).
Here, the parties agreed that the “Declaration” or “CC&Rs” created a contract between
the parties. See Plaintiff’s Exhibit 1. Plaintiff argued that the manner in which Defendant sought
to impose a temporary fee increase for community roof repairs, and later recharacterized it as a
“special assessment” was in breach of the CC&Rs. Plaintiff conceded that she had paid the
$1,500.00 assessment “under protest” although she did believe the roof repairs were necessary.
SUPERIOR COURT OF ARIZONA
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Plaintiff did not contend that she was not required to pay for the roof repairs as a property owner;
however, she argued that the manner in which the assessment was imposed was improper.
Defendant testified that the board believed it could impose a temporary fee assessment
because it had historically been done and the roof repairs were of an urgent nature. Defendant
further testified that when a single property owner [not Plaintiff] objected to the assessment, it
sought to reclassify it as a special assessment pursuant to the CC&Rs, using a ballot and seeking
2/3 two-thirds majority of property owners’ approval, which it later obtained. Plaintiff further
argued that the manner in which Defendant sought to classify the assessment as a special
assessment also was not proper (i.e., the ballot used, the distribution of the ballots, the lack of a
“meeting”).
It was for the trial court to make a determination based on the conflicting testimony and
other evidence. This Court cannot, on appeal, read the trial transcript, review the exhibits, and
then substitute its judgment for that of the trial court. An appeal is not the proverbial second bite
of the apple. The January 23rd trial was the “main event” in this case. The trial judge heard the
testimony, saw the parties while they were testifying, and considered the exhibits. It was the trial
judge’s role as the trier of fact to weigh the conflicting testimonies, make its own credibility
determinations, and determine whether Plaintiff met her burden of proof. Castro, 222 Ariz. at 51-
52 ¶ 11.
With respect to Plaintiff’s contention that the attorneys’ fees awarded to Defendant were
“unjustified and should likewise be reversed,” this Court disagrees. While it is always more
helpful for litigants to get a full and comprehensive explanation of the trial court’s ruling, it was
not required. The trial court was permitted to order the prevailing party to provide a proposed
form of judgment and to sign same, without further explanation. The parties’ trial court filings
reflect that each party discussed the factors relevant to the trial court’s decision regarding
attorneys’ fees. Mindful of the trial court’s superior ability to perceive and balance the
competing factual and equitable interests, this Court will not substitute its own judgment for that
of the trial court. The trial court had to balance a myriad of factors when making its
determination. This Court will not disturb that exercise of discretion.
Defendant/Appellee has given notice of its intent to seek costs and attorneys’ fees in the
Answering Memorandum. As the prevailing party, Defendant/Appellee may be entitled to
recover its taxable costs and its reasonable attorneys’ fees on appeal. Upon Appellee’s
compliance with Rule 13, Sup. Ct. R. App. P. – Civil, this Court will consider Appellee’s request
for costs and fees. If Appellee contends that this Court is required to award reasonable attorneys’
fees due to a provision of a contract between the parties, Appellee’s Rule 13 filing must either
supply the contractual provision requiring the award of fees or specifically identify where in the
existing record that provision can be found. See Bennett Blum, M.D., Inc. v. Cowan, 235 Ariz.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
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204, 206 ¶ 8 (App. 2014). Appellee’s Rule 13 filing also “must disclose the terms of any fee
agreement for the services for which the claim is made.” Rule 54(g)(4), Ariz. R. Civ. P., See also
Jerman v. O’Leary, 145 Ariz. 397, 403 (App. 1985) (“[I]t is vital to know what the agreement
was between appellees and their lawyer.”).
Upon resolution of Defendant/Appellee’s request for fees and costs, the Court will
remand this matter to the McDowell Mountain Justice Court.
This Court will not address Plaintiff’s contention that the trial court erred by not granting
the motion for summary judgment. As Defendant correctly notes, this matter proceeded to a trial
on the merits and all of the evidence was presented to the trial court before it made its ruling.
Plaintiff is dissatisfied with the result the trial court reached. That is understandable. But there
was no showing of any legal error. This Court will not reweigh the evidence and substitute its
judgment for that of the trial court.
IV. CONCLUSION
Accordingly,
IT IS THEREFORE ORDERED affirming the judgment of the McDowell Mountain
Justice Court.
Upon a determination of any request for an award of fees and costs this Court will enter a
final judgment.
/s/ Joseph P. Mikitish
THE HON. JOSEPH P. MIKITISH
Judge of the Superior Court
NOTICE: LC cases are not under the e-file system. As a result, when a party files a
document, 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.
12/18/2023 — LC2023000212 EDINBURGH, MARY 12/18/2023 HONORABLE JOSEPH P. MIKITISH View Minute Entry ↑ top
- Source
- Minute Source
Clerk of the Superior Court
*** Electronically Filed ***
12/27/2023 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2023-000212-001 DT
12/18/2023
Docket Code 512
Form L000
Page 1
CLERK OF THE COURT
HONORABLE JOSEPH P. MIKITISH
P. McKinley
Deputy
MARY EDINBURGH
JONATHAN A DESSAULES
v.
SCOTTSDALE EMBASSY CONDOMINIUM
ASSOCIATION (001)
TERESA H FOSTER
JUDGE MIKITISH
MCDOWELL MOUNTAIN JUSTICE
COURT
REMAND DESK-LCA-CCC
RULING / REMAND
McDowell Mountain Justice Court Case No. CC2022062965RC
The Court has received and reviewed the Defendant/Appellee Scottsdale Embassy
Condominium Association’s (“the Association”) Motion for Attorney Fees and Costs, filed
October 2, 2023; the response thereto filed by the Plaintiff/Appellant Mary Edinburgh (“Ms.
Edinburgh”) on October 12, 2023; and the Association’s reply filed on October 18, 2023.
In the Motion, the Association argues that attorney fees are mandatory according to
Paragraph XV, Section 1, of the CC&Rs. It further argues that, even if the attorney fees were not
mandatory under the CC&Rs, the fee should be awarded under A.R.S. § 12-341.01(A) which
allows for attorney’s fees for actions arising out of contract. Ms. Edinburgh argues that the fees
requested are not mandatory under the CC&Rs because those only provide for fees to enforce a
lien or collection, or enforce compliance with or compel specific performance of the terms and
conditions of the Declaration. Ms. Edinburgh further argues that the fees are not appropriate under
A.R.S. § 12-341.01 because those fees are discretionary and the Association’s claims do not meet
the criteria.
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LC2023-000212-001 DT
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Form L000
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The Declaration provides as follows:
In the event the Declarant, or the Association, employs an attorney or attorneys to
enforce said lien or the collection of any amount due pursuant to this Declaration,
or to enforce compliance with or compel specific performance of the terms and
conditions of this Declaration, the owner, owners and parties against whom the
action is brought shall pay all attorney’s fees and costs thereby incurred by any such
enforcing party prevailing in any such action.
Declaration, Paragraph XV, Section 1. The Court agrees with Ms. Edinburgh that this provision
of the Declaration does not apply in this case because she is not the “owner, owners [or] parties
against whom the action is brought.” Ms. Edinburgh brought the action, it was not brought against
her.
The parties agree, however, that the matter arises out of the provisions of the Declaration,
which constitute a contract. Courts assess six factors for determining an award of contracts under
A.R.S. § 12-341.01(A). See Associated Indemnity v. Wagner, 143 Ariz. 567, 570 (1985). First, the
Court finds that Ms. Edinburgh presented colorable claims, but she did not establish a basis for
error by the trial court by demonstrating either breach of contract or damages. Second, Ms.
Edinburgh does not describe how or whether the Association could have avoided or settle the
litigation. She does not indicate that a settlement offer was made or whether it was reasonable.
Third, Ms. Edinburgh argues that the assessment of fees would be an extreme hardship because
she has sold the property in Arizona and is caring for her ailing father in Texas. The Court finds
that the assessment of fees would be a hardship under the circumstances, but because of the
relatively low amounts requested, fees would not constitute an extreme hardship. Fourth, as
acknowledged by Ms. Edinburgh, the Court finds that the Association prevailed as to all of the
relief sought. Fifth, the Court finds that the legal questions were novel and ensuring that the
Declaration authorized the type of assessment sought. Sixth, the Court finds that an award would
not discourage other parties with tenable claims from pursuing those claims without fear of
incurring liability for substantial fees.
Given the Court’s findings on the applicable factors, the Court finds that attorney’s fees
and costs are appropriate. Because of the merits of Ms. Edinburgh’s claims, the hardship involved,
and the novelty of the claims raised, the court finds a fee award of $2,500.00 is appropriate.
Further, an award of costs in the amount of $230.00 is appropriate.
CONCLUSION
For the reasons stated above, and the Court’s ruling of September 14, 2023,
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2023-000212-001 DT
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Form L000
Page 3
IT IS ORDERED affirming the judgment of the McDowell Mountain Justice Court.
IT IS FURTHER ORDERED awarding the Association $2,500.00 in attorney fees and
$230.00 in costs on appeal.
IT IS FURTHER ORDERED remanding this matter to the McDowell Mountain Justice
Court for such further appropriate proceedings, if any, as may be appropriate.
No matters remain pending in connection with this appeal. This is a final order. See Rules
12(c), 12(d), 14(b), Sup. Ct. R. App. P. – Civil and Rule 54(c), Ariz. R. Civ. P.
/s/ Joseph P. Mikitish
THE HON. JOSEPH P. MIKITISH
Judge of the Superior Court
NOTICE: LC cases are not under the e-file system. As a result, when a party files a
document, 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.
