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Daniel Mason, et al. v. La Glorieta Homeowners Association, et al.: Arizona HOA Appellate Case Guide

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CC&R Enforcement | A.R.S. §§ 12-1832, 12-341.01 | 1 CA-CV 23-0437

Division One reaffirms that an Arizona HOA’s enforcement of its CC&Rs is discretionary unless the governing documents expressly create a duty to enforce.

Last updated June 30, 2026. Case: Daniel Mason, et al. v. La Glorieta Homeowners Association, et al., 1 CA-CV 23-0437.

Download memorandum decision

Scope note: This page covers Daniel Mason, et al. v. La Glorieta Homeowners Association, et al. (1 CA-CV 23-0437) as a public Arizona Court of Appeals HOA case guide. The source decision came from Division One. The downloadable source-document index below is generated from local raw source files when a PDF opinion is available. This page is educational and is not legal advice.

The takeaway

An HOA has no duty to enforce its CC&Rs against a violating owner unless the governing documents expressly obligate it to do so; La Glorieta’s CC&Rs granted enforcement powers but imposed no such duty, so summary judgment for the HOA was affirmed.

Case Participants

Petitioner Side

  • Daniel Mason (Appellant)
    Homeowner in La Glorieta subdivision; plaintiff who sued the HOA over a drainage obstruction.
  • Toni Mason (Appellant)
    Homeowner and co-plaintiff/appellant with Daniel Mason.
  • Keith L. Hendricks (Counsel)
    Moyes Sellers & Hendricks
    Counsel for Plaintiffs/Appellants the Masons.
  • Natalya Ter-Grigoryan (Counsel)
    Moyes Sellers & Hendricks
    Counsel for Plaintiffs/Appellants the Masons.

Respondent Side

  • La Glorieta Homeowners Association (Appellee)
    The defendant HOA; obtained summary judgment and a fee award, affirmed on appeal.
  • Yinong Chen (Appellee)
    Neighbor two lots from the Masons whose lot allegedly obstructed drainage; denied summary judgment below (not part of this appeal).
  • Hongyan Shi (Appellee)
    Co-owner of the neighboring lot with Yinong Chen; defendant/appellee.
  • Mark E. Lines (Counsel)
    Shaw & Lines, LLC
    Counsel for Defendant/Appellee La Glorieta Homeowners Association.
  • Patrick Whelan (Counsel)
    Shaw & Lines, LLC
    Counsel for Defendant/Appellee La Glorieta Homeowners Association.
  • Hyung Choi (Counsel)
    Choi & Fabian, PLC
    Counsel for Defendants/Appellees Yinong Chen and Hongyan Shi.
  • Veronika Fabian (Counsel)
    Choi & Fabian, PLC
    Counsel for Defendants/Appellees Yinong Chen and Hongyan Shi.

Neutral Parties

  • Anni Hill Foster (Judge)
    Presiding Judge, Arizona Court of Appeals, Division One; authored the memorandum decision.
  • Brian Y. Furuya (Judge)
    Judge, Arizona Court of Appeals, Division One; joined the decision.
  • Randall M. Howe (Judge)
    Vice Chief Judge, Arizona Court of Appeals, Division One; joined the decision.
  • Joan M. Sinclair (Judge)
    Honorable Judge of the Maricopa County Superior Court who granted the HOA summary judgment and the fee award below.

What happened

Daniel and Toni Mason own a home in the La Glorieta residential subdivision in Chandler, two lots away from a home owned by Yinong Chen and Hongyan Shi. A drainage swale runs in front of both properties, designed to route runoff from the Masons’ lot to an outlet grate on the Chen and Shi lot. In September 2014, a severe thunderstorm flooded the Masons’ basement, causing roughly $2,000 in damage. The day after, Mr. Mason found water still pooling and concluded an obstruction on the neighbors’ lot was blocking the flow.

Over the next several years the Masons tried to resolve the issue by talking to the neighbors, raising it at two HOA meetings, and filing a written complaint with the HOA. In mid-2019 the HOA’s counsel sent the neighbors a letter noting that work on their lot may have contributed to water backups up the street. City of Chandler officials told the Masons the HOA, not the city, was responsible for subdivision drainage, and a civil engineer the Masons hired reported obstructions in the swale on the neighbors’ lot. The home has not flooded since 2014.

In September 2020 the Masons sued the HOA, Chen, and Shi for breach of contract and declaratory judgment, claiming the neighbors’ pathway blocked drainage in violation of CC&Rs § 12.17 and that the HOA was required to enforce the covenants. The HOA moved for summary judgment; the superior court granted it and dismissed all claims against the HOA (the neighbors were denied summary judgment, and that ruling was not appealed).

After a procedural detour — the Court of Appeals initially stayed the appeal because the superior court had not yet ruled on the HOA’s fee request, defeating Rule 54(b) certification — the superior court denied reconsideration, awarded the HOA its attorneys’ fees, and entered final judgment. The Masons appealed, and the Court of Appeals affirmed, holding the CC&Rs gave the HOA enforcement power but no duty to enforce.

Video overview of the ruling

An AI-generated video overview of Daniel Mason, et al. v. La Glorieta Homeowners Association, et al. (1 CA-CV 23-0437). An HOA has no duty to enforce its CC&Rs against a violating owner unless the governing documents expressly obligate… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the ruling

An AI-generated audio deep dive walking through the court’s reasoning and disposition in Daniel Mason, et al. v. La Glorieta Homeowners Association, et al.. Generated from the case filings; verify against the linked ruling below.

Audio overview generated with Google NotebookLM from the case’s court filings.

Procedural timeline

2014-09

A severe thunderstorm flooded the Masons' basement, causing about $2,000 in damage; Mr. Mason concluded an obstruction on the neighbors' lot was blocking drainage.

2019

The HOA's counsel sent Chen and Shi a letter stating work done to their lot may have contributed to water backups on lots up the street (mid-2019).

2020

The Masons hired a civil engineer whose report found obstructions in the drainage swale on Chen and Shi's lot (late 2019 or early 2020).

2020-09

The Masons sued the HOA, Chen, and Shi for breach of contract and declaratory judgment, alleging a violation of CC&Rs § 12.17.

2022-03

The superior court entered judgment for the HOA and certified it under Rule 54(b); the Masons appealed.

2022-12

The Court of Appeals stayed the appeal and reinstated superior court jurisdiction because the HOA's fee request was unresolved, defeating Rule 54(b) certification.

2023-05

The superior court denied the Masons' motion for reconsideration and awarded the HOA its attorneys' fees.

2023-06

The superior court entered final judgment; the Masons timely appealed.

2024-04-02

The Court of Appeals, Division One, affirmed the judgment in favor of the HOA.

Download source
Memorandum Decision

View all 1 source document for this case ↓

Complete source-document index

This index contains 1 PDF from the reviewed public source packet. Byte-identical copies are listed once. Files are ordered by the date and sequence in the public filename, and party filings or research materials are labeled separately from court rulings.

Source 1 2024-04-02

Memorandum Decision

Type: Decision or judgment

Memorandum decision holding that an HOA has no duty to enforce its CC&Rs against a violating owner unless the governing documents expressly obligate it to do so; La Glorieta's CC&Rs granted enforcement powers but imposed no such duty, so summary judgment for the HOA was affirmed.

Download source file
2024-04-02_001_memorandum-decision.pdf

FAQ

What was Mason v. La Glorieta Homeowners Association about?

Two La Glorieta homeowners, the Masons, sued their HOA and two neighbors after a 2014 storm flooded their basement. They alleged an obstruction on the neighbors’ lot violated the CC&Rs’ drainage provision (§ 12.17) and claimed the HOA was contractually required to enforce the CC&Rs against the neighbors. They sought damages for breach of contract and a declaratory judgment.

What did the Arizona Court of Appeals decide?

The court affirmed summary judgment in favor of the HOA. It held that while the CC&Rs gave the HOA the power to enforce its covenants, none of the provisions required the HOA to exercise that power. With no duty to enforce, the breach-of-contract and declaratory-judgment claims both failed as a matter of law.

Does an Arizona HOA have to enforce its CC&Rs?

Not automatically. The court reaffirmed that under Arizona law — citing Tierra Ranchos v. Kitchukov and the Restatement (Third) of Property: Servitudes § 6.13 — enforcement is a discretionary power. An HOA must act reasonably in exercising that discretion, but it has no duty to enforce a particular violation unless the governing documents expressly obligate it to do so.

Why did the homeowners' reliance on the CC&R language fail?

The court read every enforcement-related provision (the recitals and §§ 4.7, 12.21, 15.1, and 15.3) and found each one used permissive, power-granting language such as ‘may enter’ or ‘shall have the power to file an action.’ None imposed a mandatory duty. Because the language was unambiguous, there was no room to interpret an implied enforcement obligation into the CC&Rs.

The trial court misread one CC&R section — why didn't that change the result?

The superior court had treated § 4.5 as disclaiming HOA liability for drainage, but the appellate court found § 4.5 created two separate easements and its disclaimer reached only landscaping, not drainage. The error was harmless because the Masons were not asking the HOA to maintain landscaping; they were asking it to enforce a violation, which remained discretionary either way.

Who paid attorneys' fees in the case?

The Masons. As the prevailing party in a contract dispute, the HOA was awarded its attorneys’ fees and costs under A.R.S. §§ 12-341 and 12-341.01, and the Court of Appeals found no abuse of discretion. The appellate court also granted the HOA its fees on appeal and denied the Masons’ fee request as the non-prevailing party.

Case Dossier

This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.

Case Summary

Case ID / citation1 CA-CV 23-0437
Court / tribunalCourt of Appeals
Decision / key dateApril 2, 2024
Judge / panelAnni Hill Foster, Brian Y. Furuya, Randall M. Howe
PartiesDaniel and Toni Mason (Plaintiffs/Appellants) v. La Glorieta Homeowners Association (Defendant/Appellee)
Governing law
  • A.R.S. § 12-1832
  • A.R.S. § 12-1842
  • A.R.S. § 12-341
  • A.R.S. § 12-341.01
Topics
CC&RsBoard GovernanceAttorney Fees
Outcome / holding

An HOA has no duty to enforce its CC&Rs against a violating owner unless the governing documents expressly obligate it to do so; La Glorieta's CC&Rs granted enforcement powers but imposed no such duty, so summary judgment for the HOA was affirmed.

Primary public sourceView hosted source opinion/order

Parties, Court, and Research Coverage

Reviewed source package1 PDF
Step-by-step docket roadmap9 roadmap entries
Video overviewDaniel Mason, et al. v. La Glorieta Homeowners Association, et al.
Study / briefing material1 section
FAQ / homeowner questions6 questions
Featured download links1 download link

Key Issues & Findings

Case Summary

Two homeowners in the La Glorieta subdivision sued their HOA (and two neighbors) after a 2014 storm flooded their basement, alleging an obstruction on the neighbors' lot violated the CC&Rs' drainage provision (§ 12.17). The homeowners claimed the HOA was contractually required to enforce the CC&Rs against the neighbors and sought both breach-of-contract damages and a declaratory judgment. The superior court granted summary judgment to the HOA and awarded it attorneys' fees. The Arizona Court of Appeals, Division One, affirmed. Reviewing the CC&Rs de novo, the court held that although several provisions gave the HOA the power to enforce its covenants, none obligated it to do so. Under Arizona law, an HOA's enforcement of its CC&Rs is discretionary unless the governing documents expressly create a duty to enforce. Because no such duty existed, both the contract and declaratory-judgment claims failed as a matter of law, and the fee award stood.

Key Issues & Findings

The court reviewed the summary-judgment ruling and the interpretation of the CC&Rs de novo, treating the recorded covenants as a contract. It examined every CC&R provision addressing enforcement — the recitals, the § 4.7 easement for investigating and correcting violations, § 12.21 (the HOA "may" enter a lot and correct a violation at the owner's expense), § 15.1, and § 15.3 (the HOA "shall have the power to file an action"). Each provision granted the association authority to act, but none required it to exercise that authority. That absence of a mandatory duty was fatal to the homeowners' claims.

The court corrected one point in the HOA's favor's analysis: the superior court had read § 4.5 as disclaiming HOA liability for drainage, but the appellate court found § 4.5 created two distinct easements (landscape and drainage) and its disclaimer language reached only the landscape easement. That interpretive error was harmless, however, because the homeowners were not asking the HOA to install or maintain landscaping — they were asking it to enforce an alleged violation, which remained discretionary. The court also distinguished Gfeller v. Scottsdale Vista N. Townhomes Ass'n (which involved CC&Rs with an express enforcement duty) and reaffirmed, citing Tierra Ranchos Homeowners Ass'n v. Kitchukov and the Restatement (Third) of Property: Servitudes § 6.13, that discretionary enforcement is the default rule in Arizona.

Because the CC&Rs' language was unambiguous and imposed no duty to enforce, the breach-of-contract claim failed for lack of any breach, and the declaratory-judgment claim failed because the homeowners had no corresponding right to compel enforcement. Finally, the court held the superior court did not abuse its discretion in awarding the prevailing HOA its fees and costs under A.R.S. §§ 12-341 and 12-341.01, and it granted the HOA its appellate fees while denying the homeowners' request.

Why It Matters

This decision reinforces a recurring principle in Arizona community-association law: language that gives an HOA the power to enforce its CC&Rs ("may enter," "shall have the power to file an action") is not the same as language requiring it to enforce. Absent an express, mandatory duty in the governing documents, enforcement is discretionary, and a homeowner generally cannot force the HOA to pursue a neighbor over an alleged violation.

It complements Johnson v. The Pointe and Tierra Ranchos v. Kitchukov, which likewise frame HOA enforcement as a discretionary power the board must exercise reasonably rather than a duty owed to any individual owner. Homeowners frequently sue on the theory that the HOA "must" act against a neighbor; Mason illustrates that such claims typically fail unless the CC&Rs create a specific enforcement obligation — and that a losing homeowner in a CC&R contract dispute can be ordered to pay the association's attorneys' fees.

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Sundance Adult Village Homeowners Association v. Elliott

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Common-Area Costs | A.R.S. §§ 12-341, 12-341.01 | 2 CA-CV 2024-0314

An Arizona active-adult community sued homeowners to make them pay half the cost of repairing a wall between the common area and their lots. The Court of Appeals affirmed judgment for the homeowners, holding the wall is part of the common area the association must maintain and that a committee-adopted guideline could not shift those costs in conflict with the recorded CC&Rs.

Last updated June 30, 2026. Case: SUNDANCE ADULT VILLAGE HOMEOWNERS ASSOCIATION, Plaintiff/Appellant, v. BILL ELLIOTT AND MARY ELLIOTT, HUSBAND AND WIFE; ROBERT C. LAMB AND SHARON R. LAMB, HUSBAND AND WIFE, AKA ROBERT LAMB AND SHARON LAMB, HUSBAND AND WIFE; HELEN J. HORNE AND EDWARD L. HORNE, WIFE AND HUSBAND AS COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP; JASON JOSEPH, A SINGLE MAN; MIKE MARTIN, AN UNMARRIED MAN; KATHLEEN LAMONT, AN UNMARRIED WOMAN; LELAND PINNEY, AN UNMARRIED MAN; CAROLINA ALCALA, AN UNMARRIED WOMAN; DAVID H. OTIS AND LEANN K. OTIS, TRUSTEES OF THE DAVE AND LEANN OTIS FAMILY TRUST, DATED MARCH 27, 2008, Defendants/Appellees., 2 CA-CV 2024-0314.

Download memorandum decision

Scope note: This page covers SUNDANCE ADULT VILLAGE HOMEOWNERS ASSOCIATION, Plaintiff/Appellant, v. BILL ELLIOTT AND MARY ELLIOTT, HUSBAND AND WIFE; ROBERT C. LAMB AND SHARON R. LAMB, HUSBAND AND WIFE, AKA ROBERT LAMB AND SHARON LAMB, HUSBAND AND WIFE; HELEN J. HORNE AND EDWARD L. HORNE, WIFE AND HUSBAND AS COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP; JASON JOSEPH, A SINGLE MAN; MIKE MARTIN, AN UNMARRIED MAN; KATHLEEN LAMONT, AN UNMARRIED WOMAN; LELAND PINNEY, AN UNMARRIED MAN; CAROLINA ALCALA, AN UNMARRIED WOMAN; DAVID H. OTIS AND LEANN K. OTIS, TRUSTEES OF THE DAVE AND LEANN OTIS FAMILY TRUST, DATED MARCH 27, 2008, Defendants/Appellees. (2 CA-CV 2024-0314) as a public Arizona Court of Appeals HOA case guide. The downloadable source-document index below is generated from local raw source files when a PDF opinion is available. This page is educational and is not legal advice.

The takeaway

The Court of Appeals held that the wall is a structure located on the common area under Section 1.17 of the Declaration, so Section 5.01 makes the Association responsible for repairing the entire wall absent proof that the homeowners caused the damage; the conflicting 2012 Architectural Committee guideline shifting repair costs to owners could not be enforced because it would effectively amend the Declaration without the required 75% vote, and the Architectural Committee lacked authority to impose new financial obligations not found in the original Declaration. Affirmed.

Case Participants

Petitioner Side

  • Sundance Adult Village Homeowners Association (Plaintiff)
    Arizona homeowners association governing the active-adult residential community in Buckeye, Arizona; Plaintiff/Appellant.
  • Lauren Elliott Stine (Counsel)
    Quarles & Brady LLP
    Counsel for Plaintiff/Appellant Sundance Adult Village Homeowners Association.
  • Kristin N. Leaptrott (Counsel)
    Quarles & Brady LLP
    Counsel for Plaintiff/Appellant Sundance Adult Village Homeowners Association.

Respondent Side

  • Bill Elliott (Defendant)
    Homeowner of a lot bordering the wall; Defendant/Appellee. Husband of Mary Elliott.
  • Mary Elliott (Defendant)
    Homeowner of a lot bordering the wall; Defendant/Appellee. Wife of Bill Elliott.
  • Robert C. Lamb (Defendant)
    Homeowner of a lot bordering the wall; Defendant/Appellee. Also known as Robert Lamb. Husband of Sharon R. Lamb.
  • Sharon R. Lamb (Defendant)
    Homeowner of a lot bordering the wall; Defendant/Appellee. Also known as Sharon Lamb. Wife of Robert C. Lamb.
  • Helen J. Horne (Defendant)
    Homeowner of a lot bordering the wall; Defendant/Appellee. Holds title as community property with right of survivorship with Edward L. Horne.
  • Edward L. Horne (Defendant)
    Homeowner of a lot bordering the wall; Defendant/Appellee. Holds title as community property with right of survivorship with Helen J. Horne.
  • Jason Joseph (Defendant)
    Homeowner of a lot bordering the wall; Defendant/Appellee. A single man per the caption.
  • Mike Martin (Defendant)
    Homeowner of a lot bordering the wall; Defendant/Appellee. An unmarried man per the caption.
  • Kathleen Lamont (Defendant)
    Homeowner of a lot bordering the wall; Defendant/Appellee. An unmarried woman per the caption.
  • Leland Pinney (Defendant)
    Homeowner of a lot bordering the wall; Defendant/Appellee. An unmarried man per the caption.
  • Carolina Alcala (Defendant)
    Homeowner of a lot bordering the wall; Defendant/Appellee. An unmarried woman per the caption.
  • David H. Otis (Defendant)
    Defendant/Appellee, sued as trustee of the Dave and LeAnn Otis Family Trust, dated March 27, 2008, which owns a lot bordering the wall.
  • LeAnn K. Otis (Defendant)
    Defendant/Appellee, sued as trustee of the Dave and LeAnn Otis Family Trust, dated March 27, 2008, which owns a lot bordering the wall.
  • Jonathan A. Dessaules (Counsel)
    Dessaules Law Group
    Counsel for Defendants/Appellees (the homeowners).
  • David E. Wood (Counsel)
    Dessaules Law Group
    Counsel for Defendants/Appellees (the homeowners).

Neutral Parties

  • Hon. Kelly (Judge)
    Arizona Court of Appeals, Division Two
    Authored the memorandum decision of the court.
  • Hon. Vásquez (Judge)
    Arizona Court of Appeals, Division Two
    Presiding Judge who concurred in the decision.
  • Hon. Gard (Judge)
    Arizona Court of Appeals, Division Two
    Judge who concurred in the decision.
  • Hon. Rodrick Coffey (Judge)
    Maricopa County Superior Court
    Trial judge who granted the homeowners' motion for summary judgment in No. CV2022090753.

What happened

Sundance Adult Village Homeowners Association governs an active-adult residential community in Buckeye, Arizona. In one part of the community, a wall separates the common area from eight adjoining private lots that contain single-family homes. The wall straddles the property lines, sitting partly on the common area and partly on the owners’ lots. About a year before suit, water damage to the wall was discovered, prompting repair efforts.

In 2022, the Association filed a complaint in Maricopa County Superior Court seeking, among other things, a declaration that the owners of the eight bordering lots were responsible for contributing half the cost of repairing and replacing the wall. In 2023, both sides moved for summary judgment. In 2024, after a hearing, the superior court granted the homeowners’ motion and denied the Association’s, ruling that the Association was responsible for repairing the entire wall absent a showing that the homeowners caused the damage.

The Association appealed. On January 6, 2026, Division Two of the Arizona Court of Appeals affirmed in an unpublished memorandum decision, holding that the wall is part of the common area the Association must repair, that a conflicting 2012 architectural guideline could not be enforced because it would amend the Declaration without the required vote, and that the homeowners, as the prevailing party, were entitled to their attorney fees and costs.

Video overview of the ruling

An AI-generated video overview of Sundance Adult Village Homeowners Association v. Elliott (2 CA-CV 2024-0314). HOA had to repair a common-area wall; architectural guidelines could not shift the cost to owners. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the ruling

An AI-generated audio deep dive walking through the court’s reasoning and disposition in Sundance Adult Village Homeowners Association v. Elliott. Generated from the case filings; verify against the linked ruling below.

Audio overview generated with Google NotebookLM from the case’s court filings.

Procedural timeline

2006

Sundance adopts the original Architectural Design Guidelines and Association Rules.

2012

The Architectural Committee amends the Guidelines, adopting Guideline I(h)(7), which assigns lot owners responsibility for maintaining and repairing walls separating a lot from the common area.

2021

Water damage to the wall separating the common area from the Residents' lots is discovered (approximately a year before the complaint).

2022

Sundance files a complaint in Maricopa County Superior Court (No. CV2022090753) seeking a declaration that the owners of eight bordering lots must contribute half the cost of repairing and replacing the wall.

2023

Both parties file competing motions for summary judgment.

2024

After a hearing, the superior court grants the Residents' motion for summary judgment and denies Sundance's motion, holding Sundance responsible for repairing the entire wall absent proof the Residents caused the damage.

2026-01-06

Division Two of the Arizona Court of Appeals files a memorandum decision affirming the superior court.

Download source
Memorandum Decision

View all 1 source document for this case ↓

Complete source-document index

This index contains 1 PDF from the reviewed public source packet. Byte-identical copies are listed once. Files are ordered by the date and sequence in the public filename, and party filings or research materials are labeled separately from court rulings.

Source 1 2026-01-06

Memorandum Decision

Type: Decision or judgment

Memorandum decision holding the HOA must repair the common-area wall and cannot shift that cost through architectural guidelines.

Download source file
2026-01-06_001_memorandum-decision.pdf

FAQ

Is Sundance Adult Village HOA v. Elliott binding precedent in Arizona?

No. It is an unpublished memorandum decision from the Arizona Court of Appeals, Division Two. Under the applicable rules, it does not create legal precedent and generally may not be cited as binding authority, though it can still illustrate how Arizona courts approach these issues.

Who is responsible for repairing a wall between an HOA common area and a homeowner's lot in this case?

The court held the Association was responsible for repairing the entire wall. Because the wall is a structure located on the common area under the Declaration, the Association’s duty to maintain, repair, and replace the common area applied, absent proof that the homeowners caused the damage.

Can an HOA shift common-area repair costs to homeowners through an architectural guideline?

Not here. The court held that a 2012 architectural guideline assigning repair costs to lot owners conflicted with the Declaration, which made the Association solely responsible. Enforcing the guideline would effectively amend the Declaration without the required 75% owner vote, so it could not be enforced.

Did the homeowners cause the wall damage in this case?

The opinion notes the repairs followed water damage discovered about a year before suit, and that on appeal the Association did not allege the homeowners’ actions necessitated the repairs. The Declaration would have allowed cost-shifting only for repairs necessitated by an owner.

Who pays attorney fees after this appeal?

The homeowners. Because they prevailed in an action to enforce the Declaration, which requires a fee award to the prevailing party, the Court of Appeals held they were entitled to recover their appellate attorney fees and costs upon complying with Rule 21 of the Arizona Rules of Civil Appellate Procedure.

Case Dossier

This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.

Case Summary

Case ID / citation2 CA-CV 2024-0314
Court / tribunalCourt of Appeals
Decision / key dateJanuary 6, 2026
Judge / panelHon. Kelly, Hon. Vásquez, Hon. Gard
PartiesSundance Adult Village Homeowners Association (Plaintiff/Appellant) v. Bill and Mary Elliott, Robert and Sharon Lamb, Helen and Edward Horne, Jason Joseph, Mike Martin, Kathleen Lamont, Leland Pinney, Carolina Alcala, and David and LeAnn Otis as trustees of the Dave and LeAnn Otis Family Trust (Defendants/Appellees)
Governing law
  • A.R.S. § 12-120.21(A)(1)
  • A.R.S. § 12-2101(A)(1)
  • A.R.S. § 12-341
  • A.R.S. § 12-341.01
Topics
CC&RsArchitectural ReviewAttorney FeesProcedure
Outcome / holding

The Court of Appeals held that the wall is a structure located on the common area under Section 1.17 of the Declaration, so Section 5.01 makes the Association responsible for repairing the entire wall absent proof that the homeowners caused the damage; the conflicting 2012 Architectural Committee guideline shifting repair costs to owners could not be enforced because it would effectively amend the Declaration without the required 75% vote, and the Architectural Committee lacked authority to impose new financial obligations not found in the original Declaration. Affirmed.

Primary public sourceView hosted source opinion/order

Parties, Court, and Research Coverage

Reviewed source package1 PDF
Step-by-step docket roadmap7 roadmap entries
Video overviewSundance Adult Village Homeowners Association v. Elliott
Study / briefing material1 section
FAQ / homeowner questions5 questions
Featured download links1 download link

Key Issues & Findings

Case Summary

Sundance Adult Village Homeowners Association governs an active-adult community in Buckeye, Arizona, where a wall straddling the property line separates the common area from eight adjoining lots. After water damage to the wall was discovered, the Association sued the owners of those lots, seeking a declaration that they must contribute half the cost of repairing and replacing the wall. Both sides moved for summary judgment. The superior court ruled for the homeowners, holding the Association responsible for repairing the entire wall absent proof that the owners caused the damage. On appeal, Division Two of the Arizona Court of Appeals affirmed. It held that the wall is a structure located on the common area under the Declaration, so the Association's maintenance and repair duty applies, and that a later architectural guideline shifting costs to owners conflicted with the Declaration and was therefore unenforceable. This is an unpublished memorandum decision.

Key Issues & Findings

Reviewing the summary judgment de novo, the court interpreted the community's Declaration of Covenants, Conditions and Restrictions as a contract among the landowners. Section 5.01 makes the Association responsible for maintaining, repairing, and replacing the "Common Area," which Section 1.17 defines to include structures located on the common area tracts. The court agreed with the Association that the definition distinguishes tangible structures "located on" the tracts from intangible "rights, easements, and appurtenances relating to" them. But because the parties agreed the disputed wall is a structure that sits, at least partially, on the common area tract, the wall falls within the ordinary meaning of being "on" the common area, and thus within the definition of Common Area. The Association was therefore responsible for repairing the entire wall.

The Association relied on a 2012 Architectural Committee guideline, Guideline I(h)(7), which assigned lot owners responsibility for maintaining and repairing walls separating a lot from the common area. The court held this guideline could not override the Declaration. Section 5.01 assigned sole repair responsibility to the Association absent a repair necessitated by an owner, and the Association did not allege the owners caused this damage. Enforcing the guideline would effectively amend the Declaration, which Section 11.07 permits only by a 75% affirmative vote, and Section 11.16 provides that the Declaration prevails over conflicting documents "in all instances." The court declined to rewrite the parties' agreement by ignoring those provisions.

Finally, the court rejected the argument that the Architectural Committee had authority to impose this new financial obligation. Reading Article Seven of the Declaration as a whole, the court found the committee's powers concern aesthetic matters and related procedures, not the creation of new financial burdens that did not exist in the original Declaration. Because the homeowners prevailed in an action to enforce the Declaration, which requires a fee award to the prevailing party, the court held they were entitled to their appellate attorney fees and costs upon compliance with Rule 21.

Why It Matters

For Arizona homeowners and associations, this decision illustrates that an association generally cannot shift common-area repair costs onto individual owners without clear authority in the governing documents or proof that the owners caused the damage. Where a board rule or architectural guideline conflicts with the recorded CC&Rs, the CC&Rs control, and an association cannot use committee-adopted guidelines to create new financial obligations that the declaration's formal amendment process never approved. Owners facing a demand to pay for common-area repairs should check whether the CC&Rs actually assign that cost to them and how the documents must be amended.

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Colin Preston, et al., Plaintiffs/Appellants, v. Las Sendas Community Association, Inc., Defendant/Appellee: Arizona HOA Appellate Case Guide

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CC&Rs & Short-Term Rentals | A.R.S. §§ 33-1806.01, 33-1817 | 1 CA-CV 22-0761

An unpublished Division One decision holding that a planned community’s short-term rental amendment was a foreseeable extension of its original CC&Rs, and thus valid and enforceable.

Last updated June 30, 2026. Case: Colin Preston, et al., Plaintiffs/Appellants, v. Las Sendas Community Association, Inc., Defendant/Appellee, 1 CA-CV 22-0761.

Download memorandum decision

Scope note: This page covers Colin Preston, et al., Plaintiffs/Appellants, v. Las Sendas Community Association, Inc., Defendant/Appellee (1 CA-CV 22-0761) as a public Arizona Court of Appeals HOA case guide. The source decision came from Division One. The downloadable source-document index below is generated from local raw source files when a PDF opinion is available. This page is educational and is not legal advice.

The takeaway

The 1995 CC&Rs, read in their entirety, provided sufficient notice that a durational limit on leases could be imposed by amendment; the 2022 short-term rental amendment is therefore valid and enforceable, and the superior court properly denied the homeowners’ requests for injunctive relief. Affirmed.

Case Participants

Petitioner Side

  • Colin Preston (Appellant)
    Named homeowner-plaintiff who, with several other single-family owners ("et al."), challenged the amendment and sought injunctive relief.
  • Brian Locker (Counsel)
    Fowler St. Clair, PLLC (Scottsdale)
    Counsel for Plaintiffs/Appellants (the homeowners).

Respondent Side

  • Las Sendas Community Association, Inc. (Appellee)
    Planned-community HOA (Defendant below) that adopted and recorded the short-term rental amendment; prevailing party.
  • Curtis S. Ekmark (Counsel)
    Carpenter, Hazlewood, Delgado & Bolen, LLP (Tempe)
    Counsel for Defendant/Appellee (the HOA).

Neutral Parties

  • D. Steven Williams (Judge)
    Arizona Court of Appeals, Division One
    Presiding Judge; authored the memorandum decision.
  • Samuel A. Thumma (Judge)
    Arizona Court of Appeals, Division One
    Panel member who joined the decision.
  • Paul J. McMurdie (Judge)
    Arizona Court of Appeals, Division One
    Panel member who joined the decision.
  • John R. Hannah (Judge)
    Maricopa County Superior Court
    Trial judge who granted summary judgment for the HOA and denied injunctive relief.

What happened

Las Sendas is a planned community in Maricopa County governed by CC&Rs, recorded in 1995, that restrict all residential units to residential use by a single family and impose broad restrictions on business and trade within residential units, while exempting an owner’s leasing of a unit from the definition of “trade or business.” Each plaintiff owns a single-family home subject to those CC&Rs.

In 2009 the HOA Board adopted a rule barring leases of fewer than six months. After the legislature enacted A.R.S. § 33-1806.01(A) in 2014 (allowing owners to use property as rental property unless prohibited in the CC&Rs, subject to CC&R rental-time-period restrictions), the Board grew concerned the statute might invalidate the six-months rule and, in July 2021, proposed an amendment prohibiting leases of 31 days or fewer and advertising units as vacation rentals.

Voting opened in November 2021, and in June 2022 the HOA declared the amendment approved with 2,604 of 3,090 votes (84.3%), exceeding the 75% threshold in CC&Rs Section 9.3.1. The HOA recorded the short-term rental amendment in June 2022.

The homeowners sued the HOA, alleging the amendment lessened the value and marketability of their properties, and sought both a preliminary injunction and a permanent injunction barring enforcement. The HOA moved for summary judgment, arguing the amendment was valid; the plaintiffs cross-moved for partial summary judgment on their permanent-injunction claim.

The superior court (Judge John R. Hannah) denied the preliminary injunction, denied the plaintiffs’ partial summary judgment motion, and granted summary judgment for the HOA on the permanent-injunction claim. The plaintiffs appealed.

The Arizona Court of Appeals, Division One, affirmed. It held that, viewed in their entirety, the original CC&Rs gave sufficient notice under Kalway that a durational limit on leases could be imposed, so the amendment was valid and enforceable and injunctive relief was properly denied. As the prevailing party, the HOA was awarded its reasonable appellate attorneys’ fees and costs.

Video overview of the ruling

An AI-generated video overview of Colin Preston, et al., Plaintiffs/Appellants, v. Las Sendas Community Association, Inc., Defendant/Appellee (1 CA-CV 22-0761). The 1995 CC&Rs, read in their entirety, provided sufficient notice that a durational limit on leases could be… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the ruling

An AI-generated audio deep dive walking through the court’s reasoning and disposition in Colin Preston, et al., Plaintiffs/Appellants, v. Las Sendas Community Association, Inc., Defendant/Appellee. Generated from the case filings; verify against the linked ruling below.

Audio overview generated with Google NotebookLM from the case’s court filings.

Procedural timeline

1995

Original Las Sendas CC&Rs recorded, restricting residential units to single-family residential use and limiting business/trade while exempting owner leasing.

Date not specified

CC&Rs amended in 1998, 2004, and 2005 (amendments did not alter the provisions relevant to this appeal).

2009

HOA Board adopts a rule barring leases of fewer than six months ("the six-months rule").

2014

Arizona legislature enacts A.R.S. § 33-1806.01(A), allowing owners to use property as rental property unless prohibited in the CC&Rs, subject to rental time-period restrictions.

2021-07

Board announces a proposed amendment prohibiting leases of 31 days or fewer and advertising units as vacation rentals ("the short-term rental amendment").

2021-11

HOA opens owner voting on the short-term rental amendment.

2022-06

HOA declares the amendment approved (2,604 of 3,090 votes, 84.3%, exceeding the 75% threshold) and records the short-term rental amendment.

Date not specified

Homeowners file suit (Maricopa County Superior Court No. CV2022-010280) seeking preliminary and permanent injunctions against enforcement of the amendment.

Date not specified

Superior court denies the preliminary injunction, denies plaintiffs' partial summary judgment, and grants summary judgment for the HOA; plaintiffs appeal.

2023-10-31

Court of Appeals, Division One, affirms and awards the HOA its appellate attorneys' fees and costs.

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Memorandum Decision

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Source 1 2023-10-31

Memorandum Decision

Type: Decision or judgment

Memorandum decision holding that the 1995 CC&Rs, read in their entirety, provided sufficient notice that a durational limit on leases could be imposed by amendment; the 2022 short-term rental amendment is therefore valid and enforceable, and the superior court properly denied the homeowners' requests for injunctive relief.

Download source file
2023-10-31_001_memorandum-decision.pdf

FAQ

Who won Preston v. Las Sendas?

The HOA. Division One affirmed summary judgment for Las Sendas Community Association, upheld the 2022 short-term rental amendment, and affirmed the denial of the homeowners’ injunctions. As the prevailing party, the HOA was awarded its reasonable appellate attorneys’ fees and costs.

What was the dispute about?

Homeowners challenged a 2022 amendment to the Las Sendas CC&Rs that prohibited leasing units for 31 days or fewer and advertising them as vacation rentals. They argued the original CC&Rs did not give them sufficient notice that such a durational rental restriction could be imposed.

What legal test did the court apply?

The court applied the reasonable-expectations / sufficient-notice framework from Kalway v. Calabria Ranch HOA, LLC. Even an amendment properly adopted under A.R.S. § 33-1817(A) and the CC&Rs’ amendment procedure is unenforceable unless the original CC&Rs, objectively viewed at the time of purchase, foreshadowed the possibility of the amendment.

Why did the homeowners lose?

The court read the CC&Rs as a whole rather than the lease exemption in isolation. The original CC&Rs limited units to single-family residential use, broadly restricted business and trade subject to Board discretion, and already barred apartment units from hotel or transient use, language that tracked the amendment. Together these gave sufficient notice that a durational lease limit could be added.

Does A.R.S. § 33-1806.01 let HOAs restrict rentals?

The statute allows owners to use their property as rental property unless prohibited in the governing CC&Rs, and requires owners to abide by the CC&Rs’ rental time-period restrictions. Here, the court held the amendment validly imposed such a durational restriction under the CC&Rs.

Is this decision precedential?

No. It is an unpublished memorandum decision under Arizona Supreme Court Rule 111(c). It is not precedential and may be cited only as authorized by rule.

Case Dossier

This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.

Case Summary

Case ID / citation1 CA-CV 22-0761
Court / tribunalCourt of Appeals
Decision / key dateOctober 31, 2023
Judge / panelD. Steven Williams, Samuel A. Thumma, Paul J. McMurdie
PartiesColin Preston, et al. (homeowners / Plaintiffs-Appellants) v. Las Sendas Community Association, Inc. (HOA / Defendant-Appellee)
Governing law
Topics
CC&RsBoard GovernanceElectionsAttorney Fees
Outcome / holding

The 1995 CC&Rs, read in their entirety, provided sufficient notice that a durational limit on leases could be imposed by amendment; the 2022 short-term rental amendment is therefore valid and enforceable, and the superior court properly denied the homeowners' requests for injunctive relief. Affirmed.

Primary public sourceView hosted source opinion/order

Parties, Court, and Research Coverage

Reviewed source package1 PDF
Step-by-step docket roadmap10 roadmap entries
Video overviewColin Preston, et al., Plaintiffs/Appellants, v. Las Sendas Community Association, Inc., Defendant/A
Study / briefing material1 section
FAQ / homeowner questions6 questions
Featured download links1 download link

Key Issues & Findings

Case Summary

Las Sendas is a Maricopa County planned community whose CC&Rs, recorded in 1995, restrict residential units to single-family residential use and limit business or trade activity while exempting owner leasing. In 2009 the Board adopted a rule barring leases of fewer than six months. After Arizona enacted A.R.S. § 33-1806.01(A) in 2014, the Board proposed a 2021 amendment prohibiting rentals of 31 days or fewer and vacation-rental advertising; owners approved it by 84.3% (well above the 75% threshold), and the HOA recorded it in June 2022. Several homeowners sued, seeking preliminary and permanent injunctions to block enforcement and arguing the original CC&Rs gave insufficient notice under Kalway v. Calabria Ranch that such a restriction could be added. The superior court granted summary judgment to the HOA and denied injunctive relief. Division One affirmed, holding the original CC&Rs, read as a whole, gave sufficient notice that a durational lease limit could be imposed.

Key Issues & Findings

The court reviewed the denial of injunctive relief for abuse of discretion but interpreted the CC&Rs and reviewed the grant of summary judgment de novo. Under Kalway v. Calabria Ranch HOA, LLC, even an amendment adopted in compliance with A.R.S. § 33-1817(A) and the CC&Rs' own amendment procedure will not be enforced unless the original CC&Rs "provided sufficient notice" of the possibility of the amendment; courts strike down "unforeseen" amendments that would alter the nature of the covenants homeowners originally agreed to. The test is objective and measured against a purchaser's reasonable expectations at the time of purchase: the original CC&Rs need not state the precise details of a later amendment, but must make clear that a restriction exists and could be refined or extended, and neither a general-purpose statement nor a general-amendment provision alone suffices.

Applying that standard, the court held the lease exemption in Section 3.12 could not be read in isolation. It is only an exception to Section 3.12's broad prohibition on commercial activity in residential units and has meaning only in the context of the CC&Rs as a whole. The CC&Rs limit units to residential use by a single family who "maintain" a common household, language the court read to imply continuing rather than transient occupancy, and impose extensive restrictions on business and trade subject to the Board's "sole discretion," reasonably placing purchasers on notice that their use could be substantially regulated and even curtailed by future amendment.

The court also relied on the original CC&Rs' treatment of apartment units, which barred the Las Sendas "Rental Apartments" from being used as a hotel or on a transient basis, language that largely tracks the short-term rental amendment. A prospective purchaser could reasonably have anticipated the HOA extending a comparable durational restriction to residential units. Viewed in their entirety, the CC&Rs foreshadowed the amendment, so upholding it did not alter the covenants in a substantial or unforeseen way. The court declined the homeowners' footnote arguments drawn from A.R.S. § 9-500.39 and later online-lodging statutes, did not reach whether the 2009 six-months rule supplied additional notice, and treated the HOA's first-on-appeal standing argument as waived.

Why It Matters

This is a board-favorable short-term-rental outcome: the homeowners' Kalway challenge failed because the original CC&Rs, read as a whole, foreshadowed a durational lease restriction. It illustrates that Kalway's notice-and-foreseeability test cuts both ways, and that not every Kalway or short-term-rental challenge succeeds. Where the original governing documents already contain robust single-family use and commercial-activity restrictions and an analogous transient-use limit (here, on apartment units), a later amendment adding a rental durational cap can be deemed a foreseeable extension rather than an "entirely new and different" restriction, and thus enforceable even against owners who purchased before it was recorded.

As a counterweight to owner-favorable amendment decisions, the case shows the fact-specific nature of the analysis: the enforceability of a short-term-rental amendment turns on the text and structure of the specific CC&Rs, not on a categorical rule. Because it is an unpublished memorandum decision, it is not precedential and may be cited only as authorized by rule.

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Gene D. Watson, et al., Plaintiffs/Appellees/Cross-Appellants, v. Leisure World Community Association, Defendant/Appellant/Cross-Appellee: Arizona HOA Appellate Case Guide

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CC&Rs & Voting | A.R.S. §§ 33-420, 33-1817 | 1 CA-CV 20-0592

How an HOA’s recorded “consolidation” and amendment of CC&Rs were struck down for lacking owner consent, and when recording an invalid document triggers A.R.S. § 33-420 damages.

Last updated June 30, 2026. Case: Gene D. Watson, et al., Plaintiffs/Appellees/Cross-Appellants, v. Leisure World Community Association, Defendant/Appellant/Cross-Appellee, 1 CA-CV 20-0592.

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Current-status note: This page is published as a litigation record based on the source files available through 2021-12-02. Later filings, appeals, mandates, settlements, or dismissal orders may change the posture; the linked court records control.

Video/audio is held from this page until a fresh media package is generated from the approved source record.

Scope note: This page covers Gene D. Watson, et al., Plaintiffs/Appellees/Cross-Appellants, v. Leisure World Community Association, Defendant/Appellant/Cross-Appellee (1 CA-CV 20-0592) as a public Arizona Court of Appeals HOA case guide. The source decision came from Division One. The downloadable source-document index below is generated from local raw source files when a PDF opinion is available. This page is educational and is not legal advice.

The takeaway

Both the 2013 Consolidated Declaration and the 2014 Amendment were invalid amendments adopted without the owner approval the CC&Rs required; the Association violated A.R.S. § 33-420(A) and (C) as to the Consolidated Declaration, which it knew or should have known was invalid, but not as to the 2014 Amendment, where the record negated the required scienter. The Trust was the successful party, and fees and costs were remanded for recalculation.

Case Participants

Petitioner Side

  • Gene D. Watson (Plaintiff)
    Named plaintiff/appellee/cross-appellant associated with the Watson-McKinley Residence Revocable Trust, which owns a unit in Plat 24.
  • Watson-McKinley Residence Revocable Trust (Plaintiff)
    Owner of a Plat 24 unit; brought quiet title and A.R.S. § 33-420 claims seeking release of the recorded documents.
  • Eileen Dennis GilBride (Counsel)
    Jones, Skelton & Hochuli, P.L.C.
    Co-counsel for the Trust/plaintiffs on appeal.
  • Frederick E. Davidson (Counsel)
    Davidson & Funkhouser, PLLC
    Co-counsel for the Trust/plaintiffs; argued the appeal.
  • Josh G. Funkhouser (Counsel)
    Davidson & Funkhouser, PLLC
    Co-counsel for the Trust/plaintiffs.

Respondent Side

  • Leisure World Community Association (Defendant)
    Property owners' association for nearly two dozen platted communities, including Plat 24; recorded the challenged Consolidated Declaration and 2014 Amendment.
  • Chad P. Miesen (Counsel)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Counsel for the Association (Defendant/Appellant/Cross-Appellee).
  • Kate J. Merolo (Counsel)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Counsel for the Association (Defendant/Appellant/Cross-Appellee).

Neutral Parties

  • Paul J. McMurdie (Judge)
    Court of Appeals judge; authored the memorandum decision.
  • Peter B. Swann (Judge)
    Presiding Judge on the Court of Appeals panel.
  • David D. Weinzweig (Judge)
    Judge on the Court of Appeals panel.
  • Andrew J. Russell (Judge)
    Maricopa County Superior Court judge in the underlying case.
  • Cynthia J. Bailey (Judge)
    Maricopa County Superior Court judge (retired) in the underlying case.

What happened

Leisure World Community Association is the property owners’ association for nearly two dozen single-family platted communities, including Plat 24. Each community is governed by its own Declaration of Covenants, Conditions, and Restrictions (CC&Rs), and Plat 24’s original CC&Rs required at least three-quarters of Plat 24’s record owners to approve any amendment. The Watson-McKinley Residence Revocable Trust owns a unit in Plat 24.

In 2013, without obtaining owner approval, the Association recorded a “Consolidated Declaration” purporting to consolidate and restate the declarations of the communities it served. In 2014, it recorded an amendment changing the voting rules so amendments could be adopted by three-quarters of record owners across the platted communities rather than within each community; it obtained consent from 47 of Plat 24’s 54 units.

In February 2017, the Trust’s attorney demanded that the Association release both documents, and the Association refused. About nine months later the Trust sued in Maricopa County Superior Court (No. CV2017-055942), seeking release of the documents and asserting quiet title and a violation of A.R.S. § 33-420. After cross-motions and depositions, the court granted summary judgment for the Trust, invalidated both documents, awarded statutory damages under § 33-420, roughly $116,000 in attorney’s fees, and $4,000 in costs.

The Association moved for a new trial. After the original judge retired, a newly assigned judge partly reversed course, ruling the Consolidated Declaration was a mere restatement and striking the order invalidating it, while leaving the 2014 Amendment’s statutory damages in place. Both sides appealed.

The Arizona Court of Appeals held both documents were invalid amendments adopted without required owner consent. It concluded the Association violated A.R.S. § 33-420(A) and (C) as to the Consolidated Declaration (reinstating those damages) but not as to the 2014 Amendment (vacating those damages), found the Trust the successful party, and remanded for recalculation of attorney’s fees and costs.

Procedural timeline

2013

The Association recorded the 2013 Consolidated Declaration without a vote of the record owners.

2014

The Association recorded the 2014 Amendment, changing amendment voting to a three-quarters vote across the platted communities; 47 of Plat 24's 54 units consented.

2017-02

The Trust's attorney demanded release of the Consolidated Declaration and the 2014 Amendment; the Association refused.

Date not specified

About nine months after the demand, the Trust filed its complaint seeking release of the documents and asserting quiet title and a violation of A.R.S. § 33-420 (Maricopa County Superior Court No. CV2017-055942).

Date not specified

The parties cross-moved for summary judgment; the court found disputes of material fact and denied both motions.

Date not specified

After depositions, the parties again cross-moved for summary judgment and the court granted summary judgment for the Trust.

2020-02

The superior court entered an order awarding statutory damages under A.R.S. § 33-420(A) and (C).

2020-04

The superior court entered judgment for the Trust, awarding $5,000 per document under § 33-420(A), $1,000 per document under § 33-420(C), about $116,000 in attorney's fees, and $4,000 in costs; the Association moved for a new trial.

2020-09

After the original trial judge retired, the newly assigned judge partly granted the new-trial motion, striking the ruling that invalidated the Consolidated Declaration (deeming it a mere restatement) while leaving the 2014 Amendment's statutory damages in place; both sides appealed.

2021-12-02

The Court of Appeals issued its memorandum decision, affirming in part, vacating in part, and remanding.

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Source 1 2021-12-02

Memorandum Decision

Type: Decision or judgment

Memorandum decision holding that both the 2013 Consolidated Declaration and the 2014 Amendment were invalid amendments adopted without the owner approval the CC&Rs required; the Association violated A.R.S. § 33-420(A) and (C) as to the Consolidated Declaration, which it knew or should have known was invalid, but not as to the 2014 Amendment, where the record negated the required scienter.

Download source file
2021-12-02_001_memorandum-decision.pdf

FAQ

What was the dispute in Watson v. Leisure World Community Association?

A revocable trust that owned a Plat 24 unit challenged two documents the Association recorded without the owner approval its CC&Rs required: a 2013 Consolidated Declaration that restated the communities’ declarations and a 2014 Amendment that let CC&R changes pass by a three-quarters vote across all platted communities instead of within each community. The Trust sought their release and asserted quiet title and a violation of A.R.S. § 33-420.

Why did the court hold both documents were invalid?

A recorded CC&R declaration is a contract interpreted from its plain language. The court found the Consolidated Declaration was an amendment (not a mere restatement) because its operative text expanded the Association’s veto power and diluted Plat 24’s autonomous voting rights, so it needed owner approval that was never obtained. The 2014 Amendment failed because 21 of the consent forms did not describe the action taken as required by A.R.S. § 10-3704(A), leaving fewer than the three-quarters of Plat 24 owners needed.

What is A.R.S. § 33-420 and how did it apply here?

A.R.S. § 33-420 penalizes recording a document asserting an invalid interest, lien, or encumbrance against real property when the recorder knew or should have known it was invalid, and it also penalizes willful refusal to release such a document. The court held the dilution of the Trust’s voting power and the expansion of the Association’s veto power each created an “encumbrance,” and that the Association had reason to know the Consolidated Declaration was invalid but not the 2014 Amendment.

What damages and fees were involved?

The trial court had awarded $5,000 per document under § 33-420(A), $1,000 per document under § 33-420(C), about $116,000 in attorney’s fees, and $4,000 in costs. On appeal, the Court of Appeals reinstated the statutory damages tied to the Consolidated Declaration, vacated those tied to the 2014 Amendment, found the Trust the successful party, and remanded for recalculation of fees and costs.

What was the final disposition?

The Arizona Court of Appeals issued a memorandum decision that affirmed in part, vacated in part, and remanded. It affirmed that both documents were invalid, reinstated § 33-420 damages for the Consolidated Declaration, vacated § 33-420 damages for the 2014 Amendment, and remanded for recalculation of attorney’s fees and costs.

Who represented the parties?

The Leisure World Community Association was represented by Chad P. Miesen and Kate J. Merolo of Carpenter, Hazlewood, Delgado & Bolen, LLP, an HOA-side firm. The Trust was represented by Eileen Dennis GilBride of Jones, Skelton & Hochuli, P.L.C., and by Frederick E. Davidson (who argued) and Josh G. Funkhouser of Davidson & Funkhouser, PLLC.

Case Dossier

This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.

Case Summary

Case ID / citation1 CA-CV 20-0592
Court / tribunalCourt of Appeals
Decision / key dateDecember 2, 2021
Judge / panelPaul J. McMurdie, Peter B. Swann, David D. Weinzweig
PartiesGene D. Watson, et al. (Plaintiffs/Appellees/Cross-Appellants) v. Leisure World Community Association (Defendant/Appellant/Cross-Appellee)
Governing law
Topics
CC&RsElectionsBoard GovernanceAttorney Fees
Outcome / holding

Both the 2013 Consolidated Declaration and the 2014 Amendment were invalid amendments adopted without the owner approval the CC&Rs required; the Association violated A.R.S. § 33-420(A) and (C) as to the Consolidated Declaration, which it knew or should have known was invalid, but not as to the 2014 Amendment, where the record negated the required scienter. The Trust was the successful party, and fees and costs were remanded for recalculation.

Primary public sourceView hosted source opinion/order

Parties, Court, and Research Coverage

Reviewed source package1 PDF
Step-by-step docket roadmap10 roadmap entries
Video overviewTemporarily unavailable while the expanded case record is reviewed
Study / briefing material1 section
FAQ / homeowner questions6 questions
Featured download links1 download link

Key Issues & Findings

Case Summary

A homeowner's revocable trust that owned a unit in Leisure World's Plat 24 challenged two documents the Association recorded without the owner approval its CC&Rs required: a 2013 "Consolidated Declaration" that restated the various communities' declarations and a 2014 Amendment that let CC&R changes pass by a three-quarters vote across all platted communities rather than within each one. The trial court initially found both documents invalid, groundless recordings under A.R.S. § 33-420, and awarded statutory damages and about $116,000 in fees; a newly assigned judge then partly reversed course on a new-trial motion. On cross-appeals, the Arizona Court of Appeals held both documents were invalid amendments adopted without required owner consent, that the Association violated A.R.S. § 33-420 by recording and refusing to release the Consolidated Declaration, but not the 2014 Amendment because it lacked the required knowledge of that document's invalidity. The court affirmed in part, vacated in part, and remanded.

Key Issues & Findings

A recorded declaration of CC&Rs is a contract interpreted as a matter of law from its plain language. The court held the 2013 Consolidated Declaration was an amendment, not a mere restatement, because its operative text made two substantive changes to Plat 24's governance: it dropped the phrase "with respect to the Community Facilities," broadening the Association's veto over amendments, and it redefined "Project" to include additional platted communities, replacing Plat 24's autonomous three-quarters vote with a three-quarters vote spread across communities. Because it changed the CC&Rs it required owner approval, and none was obtained, so it was invalid. The document's recitals, board-member testimony, and a claimed clerical omission could not override the clear operative language.

The 2014 Amendment was also invalid. An amendment to the Plat 24 declaration required consent from three-quarters of Plat 24's 54 record owners (at least 41), and the consent forms themselves had to describe the action taken under A.R.S. § 10-3704(A). Although 47 owners signed, 21 forms did not refer to amending the Plat 24 declaration or summarize the change to voting rights, and representations made only in the Leisure World News did not satisfy the statute. The valid consents therefore fell short.

On A.R.S. § 33-420, the court held that both the dilution of the Trust's voting power and the expansion of the Association's veto power each created an "encumbrance" (a non-ownership right in real property) because they reduced the Trust's control over its property and could lead buyers to underestimate that control. The Association knew or had reason to know the Consolidated Declaration was invalid because its plain text plainly departed from the CC&Rs, so § 33-420(A) and (C) liability and statutory damages applied. But confusion over which statute governed the 2014 consent forms, plus undisputed evidence that owners were informed through the Association's website, negated the required knowledge of that document's invalidity, so no § 33-420 liability attached to the 2014 Amendment. The court reinstated the statutory damages tied to the Consolidated Declaration, vacated those tied to the 2014 Amendment, deemed the Trust the successful party, and remanded for recalculation of fees and costs.

Why It Matters

The decision illustrates how Arizona courts scrutinize HOA amendment procedures and recorded documents. An association cannot expand its own powers or dilute owners' voting rights by "consolidating and restating" or amending CC&Rs without the owner approval the governing documents require, and the operative recorded language controls over the drafters' stated intent. Consent forms must themselves describe the action being approved; publicizing an amendment elsewhere does not cure defective forms.

The case also shows the reach of A.R.S. § 33-420 (false or invalid recorded documents): recording an instrument that clouds title can expose an association to statutory damages ($5,000 per document under subsection (A) and $1,000 per document under subsection (C)) and substantial attorney's-fee liability (about $116,000 here, plus appellate fees), but only where the recorder knew or had reason to know of the document's invalidity. In this matter the Association was represented by Carpenter, Hazlewood, Delgado & Bolen, LLP, an HOA-side firm, underscoring the accountability stakes for associations and their counsel when documents of questionable validity are recorded against owners' property.

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Vista Del Corazon Homeowners Association v. Smith

Posted on by

Amendments & STR | A.R.S. §§ 33-1806.01, 33-1817 | 2 CA-CV 2023-0071

Vista Del Corazon’s HOA amended its CC&Rs to ban rentals shorter than ninety days and re-voted to approve them with eighty-percent support. Division Two of the Arizona Court of Appeals vacated the injunction enforcing the amendments, applying Kalway v. Calabria Ranch HOA to hold that entirely new restrictions need fair notice in the original declaration and, absent that, unanimous consent.

Last updated June 30, 2026. Case: VISTA DEL CORAZON HOMEOWNERS ASSOCIATION, AN ARIZONA NON-PROFIT CORPORATION, Plaintiff/Counter-Defendant/Appellee, v. DEANNA SMITH AND MYCHAL A. KINTZ, Defendants/Counter-Claimants/Appellants, 2 CA-CV 2023-0071.

Download memorandum decision

Current-status note: This page is published as a litigation record based on the source files available through 2024-03-08. Later filings, appeals, mandates, settlements, or dismissal orders may change the posture; the linked court records control.

Scope note: This page covers VISTA DEL CORAZON HOMEOWNERS ASSOCIATION, AN ARIZONA NON-PROFIT CORPORATION, Plaintiff/Counter-Defendant/Appellee, v. DEANNA SMITH AND MYCHAL A. KINTZ, Defendants/Counter-Claimants/Appellants (2 CA-CV 2023-0071) as a public Arizona Court of Appeals HOA case guide. The downloadable source-document index below is generated from local raw source files when a PDF opinion is available. This page is educational and is not legal advice.

The takeaway

Applying Kalway v. Calabria Ranch HOA, the court held that an HOA cannot use the CC&R amendment process to impose entirely new restrictions or affirmative obligations on owners unless the original CC&Rs gave fair notice that such restrictions could be added; following the technical amendment procedure (here, an eighty-percent vote) does not cure the lack of notice, and absent unanimous consent the new short-term-rental ban and most related provisions are unenforceable. The permanent injunction compelling compliance was therefore an abuse of discretion and was vacated.

Case Participants

Petitioner Side

  • Vista Del Corazon Homeowners Association (Plaintiff)
    Arizona non-profit corporation and Plaintiff/Counter-Defendant/Appellee; adopted the 2021 and re-voted 2022 CC&R amendments and sought to enforce them by injunction.
  • Alexis G. Firehawk (Counsel)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Counsel for Plaintiff/Counter-Defendant/Appellee Vista Del Corazon Homeowners Association (Tempe).
  • Ember Van Vranken (Counsel)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Counsel for Plaintiff/Counter-Defendant/Appellee Vista Del Corazon Homeowners Association (Tempe).

Respondent Side

  • Deanna Smith (Defendant)
    Co-owner of Lot 89 (since 2020) and Defendant/Counter-Claimant/Appellant; challenged the validity of the CC&R amendments and prevailed on appeal.
  • Mychal A. Kintz (Defendant)
    Co-owner of Lot 89 (since 2020) and Defendant/Counter-Claimant/Appellant; challenged the validity of the CC&R amendments and prevailed on appeal.
  • Jonathan A. Dessaules (Counsel)
    Dessaules Law Group
    Counsel for Defendants/Counter-Claimants/Appellants Deanna Smith and Mychal A. Kintz (Phoenix).
  • Ashley C. Hill (Counsel)
    Dessaules Law Group
    Counsel for Defendants/Counter-Claimants/Appellants Deanna Smith and Mychal A. Kintz (Phoenix).

Neutral Parties

  • Judge Brearcliffe (Judge)
    Arizona Court of Appeals, Division Two
    Presiding Judge who authored the memorandum decision of the Court.
  • Judge Kelly (Judge)
    Arizona Court of Appeals, Division Two
    Judge who concurred in the decision.
  • Judge Eckerstrom (Judge)
    Arizona Court of Appeals, Division Two
    Judge who concurred in part and dissented in part; would have upheld the lease-notice, lease-default, and disclosure provisions as enforcing the original covenants.
  • Joseph R. Georgini (Judge)
    Pinal County Superior Court
    The Honorable Joseph R. Georgini, trial judge whose grant of the permanent injunction was vacated on appeal.

What happened

Vista Del Corazon is a planned community in Pinal County whose CC&Rs were first adopted in 1997. Deanna Smith and Mychal Kintz bought Lot 89 in 2020 and rented it out from time to time for periods shorter than ninety days. In February 2021 the HOA board told members it had been “surprised to discover” that the existing CC&Rs did not prohibit short-term rentals, and it set out to amend them. Without holding a formal association meeting and vote, the HOA collected written approvals, repealed the existing rental section, and adopted new §§ 4.22.1-4.22.5 (the “2021 amendments”) banning rentals shorter than ninety days, prohibiting advertising, and adding a special fine structure. The HOA began fining Smith and Kintz, then sued to enforce the amendments and collect the fines; Smith and Kintz counterclaimed that the amendments were invalid because the HOA had not obtained the vote required to amend without a meeting.

After a settlement conference the parties stayed the case so the HOA could re-vote. In April 2022 about eighty percent of members approved the amendments (the “2022 amendments”), which the HOA president certified on April 28, 2022; they were erroneously recorded in Maricopa County before being properly recorded in Pinal County on August 11, 2022. The superior court granted the HOA partial summary judgment, entered a permanent injunction compelling Smith and Kintz to stop advertising and renting short-term, and awarded the HOA its fees and costs. On appeal, Division Two vacated the injunction. Applying Kalway, it held that the short-term-rental ban and most related provisions were entirely new restrictions for which the 1997 CC&Rs gave no fair notice, so they could not be enforced absent unanimous consent. The court vacated the injunction without prejudice, vacated the HOA’s fee award, awarded Smith and Kintz their appellate fees, and remanded for further proceedings.

Video overview of the case record

An AI-generated video overview of Vista Del Corazon Homeowners Association v. Smith (2 CA-CV 2023-0071). Applying Kalway v. Calabria Ranch HOA, the court held that an HOA cannot use the CC&R amendment process to impose… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the case record

An AI-generated audio deep dive walking through the court record and procedural posture in Vista Del Corazon Homeowners Association v. Smith. Generated from the case filings; verify against the linked case records below.

Audio overview generated with Google NotebookLM from the case’s court filings.

Procedural timeline

1997

Vista Del Corazon's original CC&Rs (Declaration of Covenants, Conditions, Restrictions, and Grant of Easements) are adopted.

2020

Deanna Smith and Mychal Kintz buy Lot 89 and begin leasing it from time to time for periods shorter than ninety days.

2021-02

The HOA board sends members a letter reporting short-term-rental activity and proposing to amend the CC&Rs to require a minimum rental of ninety consecutive days.

2021

The HOA adopts the 2021 amendments (repealing § 4.22 and adopting §§ 4.22.1-4.22.5) by written approval without a formal association meeting and vote, records them in Pinal County, and adopts a special fine structure; the HOA begins fining Smith and Kintz.

2022

The HOA files a complaint to enforce the amended CC&Rs and collect fines; Smith and Kintz counterclaim challenging the validity of the 2021 amendments and seeking to void them.

2022-04

After a settlement conference and stay, the HOA holds a re-vote and about eighty percent of members approve the amendments (the 2022 amendments).

2022-04-28

The HOA president certifies the 2022 amendments.

2022-05-02

The 2022 amendments are erroneously recorded in Maricopa County.

2022-08-11

The 2022 amendments are properly recorded in Pinal County.

2023

The superior court grants the HOA partial summary judgment, denies Smith and Kintz's motion, enters a permanent injunction enforcing the 2022 amendments, and Smith and Kintz appeal.

2023-03-29

The superior court awards the HOA its attorney fees and costs incurred through the partial summary judgment ruling.

2024-03-08

The Arizona Court of Appeals, Division Two, files its memorandum decision vacating the permanent injunction and the fee award and remanding.

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FAQ

Is the Vista Del Corazon v. Smith decision binding precedent?

No. It is an unpublished memorandum decision of the Arizona Court of Appeals, Division Two (No. 2 CA-CV 2023-0071, filed March 8, 2024). Under Arizona rules, memorandum decisions are generally not precedential and are not citable as binding authority, although this one illustrates how courts apply the binding precedent in Kalway v. Calabria Ranch HOA.

Can an Arizona HOA ban short-term rentals by amending its CC&Rs?

Not automatically. The court held that a ban on rentals shorter than ninety days was an entirely new restriction that the community’s original 1997 CC&Rs gave no fair notice could be imposed. Under Kalway, such a new restriction generally requires the unanimous consent of affected owners, not just a majority or supermajority vote, so the ban was unenforceable here even after an eighty-percent re-vote.

Does following the CC&R amendment procedure make an amendment valid?

Not by itself. The court explained that technically complying with A.R.S. § 33-1817 and the CC&Rs’ amendment clause (here, a seventy-five-percent threshold) is not dispositive. If the original declaration did not give owners fair notice that a particular kind of restriction could be added, the common law still requires unanimous consent for that new restriction.

Did A.R.S. § 33-1806.01 give the HOA power to restrict short-term rentals?

No. The court held that § 33-1806.01(A) protects an owner’s right to lease subject to validly imposed rental-time-period restrictions; it does not itself give HOAs an unfettered power to create such restrictions, and it did not abrogate the common-law notice requirement recognized in Dreamland and Kalway.

Which amendment provisions survived and which were struck?

The court left in place provisions carried over from the original CC&Rs (such as the bar on leasing less than the entire lot and an owner’s responsibility for an occupant’s compliance) and a new sentence defining ‘lease’ and ‘rent,’ which was tied to existing terms. It held unenforceable by injunction the short-term-rental ban, the advertising ban, the mandatory lease terms, the new power for the HOA to evict an owner’s tenants, and the broad requirement to disclose lease information.

What happened to the attorney-fee award?

Because it vacated the injunction, the court also vacated the related attorney-fee award the trial court had given the HOA. As the prevailing parties on appeal, Smith and Kintz were awarded their appellate fees and costs under the CC&Rs’ fee provision (§ 17.1), upon compliance with the rules; the HOA, having lost, recovered nothing on appeal.

Case Dossier

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Case Summary

Case ID / citation2 CA-CV 2023-0071
Court / tribunalCourt of Appeals
Decision / key dateMarch 8, 2024
Judge / panelPresiding Judge Brearcliffe (authored), Judge Kelly (concurred), Judge Eckerstrom (concurred in part and dissented in part)
PartiesVista Del Corazon Homeowners Association (Plaintiff/Counter-Defendant/Appellee) v. Deanna Smith and Mychal A. Kintz (Defendants/Counter-Claimants/Appellants)
Governing law
Topics
CC&RsFinesDisclosureAttorney Fees
Outcome / holding

Applying Kalway v. Calabria Ranch HOA, the court held that an HOA cannot use the CC&R amendment process to impose entirely new restrictions or affirmative obligations on owners unless the original CC&Rs gave fair notice that such restrictions could be added; following the technical amendment procedure (here, an eighty-percent vote) does not cure the lack of notice, and absent unanimous consent the new short-term-rental ban and most related provisions are unenforceable. The permanent injunction compelling compliance was therefore an abuse of discretion and was vacated.

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Parties, Court, and Research Coverage

Reviewed source package1 PDF
Step-by-step docket roadmap12 roadmap entries
Video overviewVista Del Corazon Homeowners Association v. Smith
Study / briefing material1 section
FAQ / homeowner questions6 questions
Featured download links1 download link

Key Issues & Findings

Case Summary

Vista Del Corazon Homeowners Association sued homeowners Deanna Smith and Mychal Kintz to stop them from renting their Pinal County home for short terms and to enforce CC&R amendments the HOA adopted in 2021 and re-adopted by an eighty-percent vote in 2022. The amendments banned rentals shorter than ninety days, prohibited advertising short-term rentals, required disclosure of lease information, dictated lease terms, and let the HOA evict an owner's tenants. The trial court found the amendments valid and entered a permanent injunction enforcing them. Division Two of the Arizona Court of Appeals vacated, applying Kalway v. Calabria Ranch HOA: even a properly conducted amendment vote cannot impose entirely new restrictions unless the original 1997 CC&Rs gave homeowners fair notice that such restrictions could later be added. Because the short-term-rental ban and most related provisions were new and unforeseeable, the injunction was an abuse of discretion.

Key Issues & Findings

The court first confirmed it could review the legal basis for the injunction even though it lacked jurisdiction over the underlying partial summary judgment ruling, because the injunction was "inextricably bound up" with the trial court's conclusion that the 2022 amendments were valid. It then rejected the trial court's view that A.R.S. § 33-1806.01(A) had abrogated the common-law limits on CC&R amendments. That statute preserves an owner's right to lease subject to validly imposed rental-time-period restrictions; it does not give HOAs an unfettered power to create such restrictions, and it does not displace the notice requirement recognized in Dreamland and Kalway.

Under Kalway, an amendment is valid only if it is "reasonable and foreseeable" from the original CC&Rs, meaning the original declaration gave notice that a covenant existed and could be refined, corrected, or filled in. A general amendment clause (here allowing change by a seventy-five-percent vote), general-purpose recitals, and a flexible definition of "Declaration" were not enough to put owners on notice that any particular new restriction could be imposed. Technical compliance with A.R.S. § 33-1817(A)(1) and the CC&Rs' amendment procedure was not dispositive; absent fair notice, the common law requires the unanimous consent of affected owners, which the HOA did not obtain.

Reviewing each provision, the court held that the short-term-rental ban (§ 4.22.2), the advertising ban (§ 4.22.3), the mandatory lease terms (§ 4.22.4), the new power to evict an owner's tenants (§ 4.22.5), and the broad lease-disclosure requirement (last sentence of § 4.22.1) were entirely new and untethered to the 1997 CC&Rs, and so could not be enforced by injunction; the original CC&Rs allowed rentals of any duration and even excepted leasing from the ban on trades and businesses. Only provisions carried over from the original CC&Rs and the new sentence defining "lease" and "rent" (tethered to existing terms) were enforceable. Because the injunction rested on an erroneous view of the law and the equitable balance had shifted, the court vacated it in its entirety and remanded. It also vacated the related fee award to the HOA and awarded Smith and Kintz their appellate fees under the CC&Rs' fee clause.

Why It Matters

This case shows that following the formal CC&R amendment procedure, even with a large supermajority vote (eighty percent), is not enough to make new use restrictions enforceable in Arizona. Under Kalway, owners must have had fair notice from the original declaration that a particular kind of restriction could later be added; brand-new bans on short-term rentals, advertising, or tenant-related obligations generally require unanimous consent. For HOAs pursuing short-term-rental restrictions, the decision is a cautionary complement to Kalway and Dreamland: amendments can fail not only on procedure but on the more fundamental ground that they impose obligations no reasonable owner could have foreseen. It also illustrates that an injunction enforcing such amendments is an equitable remedy the trial court must independently justify.

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Chula Vista Homeowners Association v. Olson

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Open Meetings | A.R.S. §§ 33-1804, 33-420 | 2 CA-SA 2018-0031

After homeowners won on open-meeting-law and slander-of-title claims against their HOA, Division Two clarified that the attorney fees in the judgment are not “damages” for setting the appeal bond — a published decision touching both board transparency and appellate procedure.

Last updated June 30, 2026. Case: Chula Vista Homeowners Association v. Hon. Charles Irwin, Judge of the Superior Court of the State of Arizona in and for the County of Cochise, Respondent, and Rodney Olson and Gloria Olson, husband and wife, Real Parties in Interest, 2 CA-SA 2018-0031, 426 P.3d 1228 (App. 2018).

Current-status note: This page is published as a litigation record based on the source files available through 2018-07-27. Later filings, appeals, mandates, settlements, or dismissal orders may change the posture; the linked court records control.

Video/audio is held from this page until a fresh media package is generated from the approved source record.

Scope note: This page covers Chula Vista Homeowners Association v. Hon. Charles Irwin, Judge of the Superior Court of the State of Arizona in and for the County of Cochise, Respondent, and Rodney Olson and Gloria Olson, husband and wife, Real Parties in Interest (2 CA-SA 2018-0031, 426 P.3d 1228 (App. 2018)) as a public Arizona Court of Appeals HOA case guide. The source decision came from Division Two. The downloadable source-document index below is generated from local raw source files when a PDF opinion is available. This page is educational and is not legal advice.

The takeaway

Attorney fees awarded on the homeowners’ declaratory-relief, open-meeting-law, and slander-of-title claims under fee-authorizing statutes (A.R.S. § 33-420(A) and § 12-341.01) are not “damages” for purposes of calculating a supersedeas bond under A.R.S. § 12-2108 and Rule 7, Ariz. R. Civ. App. P. The trial court abused its discretion by including those fees in the bond, so the bond order was vacated.

Case Participants

Petitioner Side

  • Chula Vista Homeowners Association (Petitioner)
    Non-profit corporation organized pursuant to the Chula Vista CC&Rs; defendant below and appellant; petitioner in this special action challenging the supersedeas bond.
  • Jason E. Smith (Counsel)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Counsel for petitioner Chula Vista Homeowners Association (Tucson).
  • Kaycee S. Wamsley (Counsel)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Counsel for petitioner Chula Vista Homeowners Association (Tucson).

Respondent Side

  • Rodney Olson (Real Party in Interest)
    Homeowner and plaintiff below who prevailed on all counts; opposed the special action.
  • Gloria Olson (Real Party in Interest)
    Homeowner and plaintiff below who prevailed on all counts; opposed the special action.
  • Robert D. Stachel Jr. (Counsel)
    Stachel & Associates P.C.
    Counsel for real parties in interest Rodney and Gloria Olson (Sierra Vista).
  • Alberta Chu (Counsel)
    Stachel & Associates P.C.
    Counsel for real parties in interest Rodney and Gloria Olson (Sierra Vista).

Neutral Parties

  • Hon. Charles Irwin (Respondent Judge)
    Cochise County Superior Court
    Trial judge whose order setting the supersedeas bond was challenged; nominal respondent in the special action.
  • Hon. Peter J. Eppich (Judge)
    Arizona Court of Appeals, Division Two
    Authored the opinion.
  • Hon. Garye L. Vásquez (Judge)
    Arizona Court of Appeals, Division Two
    Presiding Judge; concurred.
  • Hon. Philip G. Espinosa (Judge)
    Arizona Court of Appeals, Division Two
    Concurred.

What happened

The Olsons own property within the Chula Vista community in Cochise County, subject to the Chula Vista Protective Covenants (CC&Rs). In 2009 they obtained a permit to build a 6,000-square-foot steel structure intended to be ancillary to a planned residence. Unable to afford a separate primary residence, they obtained a county permit to convert the structure into a family residence. In 2011 the HOA rejected their conversion plan as noncompliant with the CC&Rs but granted a three-year variance allowing them to live in the structure while building a home.

The Olsons did not build another home. In 2015 the HOA took the position that they violated the CC&Rs because the structure was “nontraditional” and not a “First Class Private Dwelling” under the 2007 amendment to the covenants. The HOA recorded a Notice of Violation, removed it, then recorded a second Notice stating its purpose was to adversely affect the Olsons’ ability to convey marketable title. The HOA also imposed fines and denied the Olsons’ appeal.

In February 2016 the Olsons sued the HOA in Cochise County Superior Court (No. CV201600084). They sought declaratory relief that the 2007 CC&R amendment was invalid and the relevant section unenforceable; alleged the HOA violated the open meeting laws under A.R.S. § 33-1804(A)(5); and brought a slander-of-title claim under A.R.S. § 33-420(A).

After trial, the respondent judge ruled for the Olsons on all counts, finding the HOA had violated the open meeting laws and slandered the Olsons’ title. The court directed the HOA to record a Notice of Removal to clear title, vacated the previously imposed penalty, and awarded $5,000 in statutory damages under § 33-420(A), $318 in costs, and $35,000 in reasonable attorney fees — a total judgment of $40,318.

The HOA filed a notice of appeal and moved for a supersedeas bond, arguing the bond should be based only on $5,318 (the statutory damages plus costs) and exclude the attorney fees. The Olsons argued the fees were part of the damages. The respondent judge concluded the fees were a legal consequence of the original wrongful act and recoverable as damages, and set the bond at the full $40,318. The HOA brought this special action.

The Court of Appeals accepted special-action jurisdiction, held that the attorney fees were not damages under A.R.S. § 12-2108 and Rule 7, vacated the order setting the bond, and directed the trial court to enter a new order consistent with the decision.

Procedural timeline

2007

The Chula Vista CC&Rs are amended to include the "First Class Private Dwelling" provision later at issue.

2009

The Olsons obtain a permit to build a 6,000-square-foot steel structure on their Cochise County property.

2011

The HOA rejects the Olsons' plan to convert the structure into a residence but grants a three-year variance to live in it while building a home.

2015

The HOA declares the Olsons in violation of the CC&Rs, records (and removes, then re-records) a Notice of Violation, imposes fines, and denies their appeal.

2016-02

The Olsons sue the HOA in Cochise County Superior Court (No. CV201600084), alleging invalid CC&R amendment, open-meeting-law violations, and slander of title.

2016

After trial, the respondent judge rules for the Olsons on all counts and enters an amended judgment totaling $40,318 ($5,000 statutory damages, $318 costs, $35,000 attorney fees).

2018-07-27

Division Two of the Court of Appeals accepts special-action jurisdiction, holds the attorney fees are not damages for the supersedeas bond, and vacates the bond order.

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Decision document; read it to understand the controlling result before moving to later filings.

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FAQ

What did the Court of Appeals decide in this case?

The court held that attorney fees awarded to the Olsons on their declaratory-relief, open-meeting-law, and slander-of-title claims are not “damages” for purposes of setting a supersedeas (appeal) bond under A.R.S. § 12-2108 and Rule 7, Ariz. R. Civ. App. P. The trial court abused its discretion by including the fees in the bond, so the court vacated the bond order and directed a recalculation.

What is a supersedeas bond and why did the amount matter here?

A supersedeas bond is posted by a party appealing a judgment in order to stay (pause) enforcement or collection while the appeal is pending. Under A.R.S. § 12-2108 and Rule 7, the bond is generally the lesser of the total damages awarded (excluding punitive damages), fifty percent of the appellant’s net worth, or twenty-five million dollars. Here the $40,318 judgment included only $5,318 in statutory damages and costs but $35,000 in attorney fees, so whether fees counted as damages changed the bond substantially.

What were the underlying claims the homeowners won?

The Olsons prevailed on all counts in Cochise County Superior Court: declaratory relief that the 2007 CC&R amendment was invalid and unenforceable, a violation of the open meeting laws under A.R.S. § 33-1804(A)(5), and slander of title under A.R.S. § 33-420(A). They were awarded $5,000 in statutory damages, $318 in costs, and $35,000 in attorney fees.

Why aren't attorney fees considered 'damages' for the bond?

Arizona courts treat “damages” and “judgment” as different things: fees and costs can be part of a judgment but are generally not damages. Only narrow exceptions (such as the “tort of another” principle or wrongful injunction, attachment, garnishment, or execution) treat fees as damages. Here the fees were awarded under statutes that independently authorize fees (A.R.S. § 33-420(A) and § 12-341.01) and were incurred in the parties’ own litigation, so no exception applied.

Is this decision binding precedent in Arizona?

Yes. The opinion is published (precedential), so it can be cited and relied upon in later Arizona cases involving the calculation of supersedeas bonds and the treatment of attorney fees.

Does this case mean homeowners cannot recover attorney fees against an HOA?

No. The homeowners’ $35,000 fee award remained part of the judgment. The decision addresses only how the bond amount is calculated for an appeal — it holds that the fees are excluded from the bond figure, not that the fee award itself was improper.

Case Dossier

This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.

Case Summary

Case ID / citation2 CA-SA 2018-0031, 426 P.3d 1228 (App. 2018)
Court / tribunalCourt of Appeals
Decision / key dateJuly 27, 2018
Judge / panelHon. Peter J. Eppich (author), Hon. Garye L. Vásquez (Presiding Judge, concurring), Hon. Philip G. Espinosa (concurring)
PartiesChula Vista Homeowners Association (petitioner) sought special-action relief from a Cochise County order setting a supersedeas bond; Rodney and Gloria Olson, the prevailing homeowners below, were the real parties in interest.
Governing law
  • A.R.S. § 12-2108
  • Ariz. R. Civ. App. P. 7
  • A.R.S. § 33-420(A)
  • A.R.S. § 33-1804
  • A.R.S. § 12-341.01
  • A.R.S. § 12-341
Topics
ProcedureAttorney FeesMeetings & RecordsCC&Rs
Outcome / holding

Attorney fees awarded on the homeowners' declaratory-relief, open-meeting-law, and slander-of-title claims under fee-authorizing statutes (A.R.S. § 33-420(A) and § 12-341.01) are not "damages" for purposes of calculating a supersedeas bond under A.R.S. § 12-2108 and Rule 7, Ariz. R. Civ. App. P. The trial court abused its discretion by including those fees in the bond, so the bond order was vacated.

Primary public sourceView hosted source opinion/order

Parties, Court, and Research Coverage

Reviewed source package1 other source file
Step-by-step docket roadmap7 roadmap entries
Video overviewTemporarily unavailable while the expanded case record is reviewed
Study / briefing material1 section
FAQ / homeowner questions6 questions
Featured download links0 download links

Key Issues & Findings

Case Summary

In this published special action, Arizona's Court of Appeals, Division Two, decided whether attorney fees awarded to prevailing homeowners count as "damages" when a trial court sets a supersedeas (appeal) bond under A.R.S. § 12-2108 and Rule 7, Ariz. R. Civ. App. P. The Olsons had sued the Chula Vista Homeowners Association in Cochise County and won on all counts, including declaratory relief, violation of the open meeting laws under A.R.S. § 33-1804, and slander of title under A.R.S. § 33-420(A). The judgment totaled $40,318, which included $5,000 in statutory damages, $318 in costs, and $35,000 in attorney fees. When the HOA appealed, the trial court set the bond at the full $40,318. The Court of Appeals held that the fees were not damages, vacated the bond order, and directed the trial court to recalculate the bond.

Key Issues & Findings

The court began with the statutory text: under A.R.S. § 12-2108 and Rule 7, the bond amount is the lesser of the total damages awarded (excluding punitive damages), fifty percent of the appellant's net worth, or twenty-five million dollars. Following City Center Executive Plaza v. Jantzen, the court emphasized that "damages" and "judgment" are not synonymous: attorney fees and costs may be part of a judgment, but they are generally not damages. Only narrow exceptions treat fees as damages, such as the "tort of another" principle, wrongful repudiation of insurance coverage, or wrongful injunction, attachment, garnishment, or execution.

The court found none of those exceptions applied. The fees here were awarded under statutes that independently authorize fees (A.R.S. § 33-420(A) and § 12-341.01) and were incurred in the litigation between these two parties, not in third-party litigation. That distinguished Desert Mountain Properties v. Liberty Mutual, a "tort of another" case on which the trial court appeared to rely. The court read A.R.S. § 33-420(A) by its plain language: the slander-of-title statute provides for a separate damages award (the greater of $5,000 per claimant or treble actual damages) and separately authorizes reasonable attorney fees, so the fees were distinct from the damage award.

The court also rejected the Olsons' argument that their slander-of-title claim was "akin to a provisional remedy" like a wrongful writ of attachment or injunction; the claim was purely statutory and the statute itself separated damages from fees. And although the trial court found the action arose out of contract because CC&Rs are a contract, the court explained that a statute permitting a fee award does not transform those fees into damages, particularly where the Olsons brought no breach-of-contract claim. Because including the fees was an error of law, it was an abuse of discretion.

Why It Matters

This is a published Arizona appellate decision arising directly out of homeowner-association litigation that included open-meeting-law violations under A.R.S. § 33-1804 and slander of title under A.R.S. § 33-420(A) — the kinds of board-transparency and recording disputes that recur in Arizona communities. Because it is precedential, it can be cited in later cases, and it confirms that homeowners can prevail on open-meeting and slander-of-title claims and recover statutory damages, attorney fees, and costs.

Its central practical lesson concerns appeals. When an HOA (or a homeowner) appeals and posts a supersedeas bond to stay enforcement of a judgment, the bond is calculated on the damages awarded, not on the attorney fees. Here that distinction mattered: of a $40,318 judgment, only $5,318 reflected statutory damages and costs, while $35,000 was fees. Clarifying that fees are generally excluded from the bond affects how much an appealing party must post to stay collection during an appeal.

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Baoan Andy Gia Le, et al. v. North Shore Condominium Association, et al.: Arizona HOA Appellate Case Guide

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CC&Rs | A.R.S. §§ 33-1242, 33-1260.01 | 1 CA-CV 25-0476

Why a board-adopted short-term-rental rule survived a Kalway challenge where the Declaration already prohibited leasing units for hotel or transient purposes.

Last updated June 30, 2026. Case: Baoan Andy Gia Le, et al. v. North Shore Condominium Association, et al., 1 CA-CV 25-0476.

Download memorandum decision

Current-status note: This page is published as a litigation record based on the source files available through 2026-06-09. Later filings, appeals, mandates, settlements, or dismissal orders may change the posture; the linked court records control.

Allegations, settlements, procedural dismissals, and notices are not findings of liability unless a cited court order expressly makes that finding.

Scope note: This page covers Baoan Andy Gia Le, et al. v. North Shore Condominium Association, et al. (1 CA-CV 25-0476) as a public Arizona Court of Appeals HOA case guide. The source decision came from Division One. The downloadable source-document index below is generated from local raw source files when a PDF opinion is available. This page is educational and is not legal advice.

The takeaway

A board-adopted rule setting a 30-day minimum lease term is valid under Kalway because it reasonably and foreseeably clarifies the Declaration’s existing prohibition on leasing units for “hotel or transient purposes” and does not conflict with the Declaration; the grant of summary judgment to the owners is reversed and judgment is directed for the association.

Case Participants

Petitioner Side

  • Baoan Andy Gia Le (Appellee)
    Plaintiff below; co-owner of two North Shore units purchased as investment/short-term rental properties.
  • Linda Sinat Som (Appellee)
    Plaintiff below; co-owner of the two North Shore units (with Le, collectively the "Owners").
  • Melanie C. McKeddie (Counsel)
    McKeddie Cooley, G.P. (Scottsdale)
    Counsel for Plaintiffs/Appellees (the Owners).
  • Justin R. Cooley (Counsel)
    McKeddie Cooley, G.P. (Scottsdale)
    Counsel for Plaintiffs/Appellees (the Owners).

Respondent Side

  • North Shore Condominium Association (Appellant)
    Defendant below; condominium association whose board adopted the challenged 30-day minimum-lease rule.
  • Associated Property Management, Inc. (Appellant)
    Defendant below; the association's property manager (collectively with the association, the "Association").
  • Lauren Elliott Stine (Counsel)
    Quarles & Brady LLP (Phoenix)
    Counsel for Defendants/Appellants (the Association).
  • Kristin N. Leaptrott (Counsel)
    Quarles & Brady LLP (Phoenix)
    Counsel for Defendants/Appellants (the Association).

Neutral Parties

  • Daniel J. Kiley (Judge)
    Arizona Court of Appeals, Division One
    Presiding Judge; authored the memorandum decision of the court.
  • D. Steven Williams (Judge)
    Arizona Court of Appeals, Division One
    Panel member who joined the decision.
  • Cynthia J. Bailey (Judge)
    Arizona Court of Appeals, Division One
    Panel member who joined the decision.
  • Timothy J. Ryan (Judge)
    Maricopa County Superior Court (Judge, Ret.)
    Trial judge who granted summary judgment and fees to the Owners; decision reversed on appeal.

What happened

North Shore is a planned condominium community in Tempe subject to Arizona’s Condominium Act and to a recorded Declaration. The Declaration limits units to residential use, generally bars trade or business uses (while allowing leasing), and prohibits leasing units “for hotel or transient purposes” without defining “transient.” An earlier version of the Declaration had also barred leases for an initial term of less than one year, but that language was removed by a 2008 amendment.

In 2020 and 2021, Baoan Andy Gia Le and Linda Sinat Som purchased two North Shore units as investment properties, intending to use them as short-term rentals. In February 2022, the association’s board voted to replace an existing one-year minimum-lease rule with a rule prohibiting leases of less than 30 days.

The owners sued the association and its property manager, Associated Property Management, Inc., seeking declaratory and injunctive relief. They argued the 30-day rule was invalid because the Declaration contained no durational rental limits and short-term leases were neither hotel nor transient uses. On cross-motions for summary judgment supported by stipulated facts, the superior court agreed with the owners, held the rule invalid under Kalway, awarded the owners attorney fees and costs, and entered final judgment.

The association appealed. Division One reversed, holding the 30-day rule valid under Kalway as a reasonable and foreseeable clarification of the Declaration’s transient-use prohibition and consistent with the board’s rulemaking authority. It remanded with instructions to enter judgment for the association and held the association, as prevailing party, may recover reasonable attorney fees and costs.

Video overview of the case record

An AI-generated video overview of Baoan Andy Gia Le, et al. v. North Shore Condominium Association, et al. (1 CA-CV 25-0476). A board-adopted rule setting a 30-day minimum lease term is valid under Kalway because it reasonably and foreseeably… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the case record

An AI-generated audio deep dive walking through the court record and procedural posture in Baoan Andy Gia Le, et al. v. North Shore Condominium Association, et al.. Generated from the case filings; verify against the linked case records below.

Audio overview generated with Google NotebookLM from the case’s court filings.

Procedural timeline

2005

A prior version of the Declaration is recorded, barring leases for hotel or transient purposes or for an initial term of less than one year.

2008

The Declaration is amended to remove the "less than one (1) year" lease language, leaving only the prohibition on leasing for "hotel or transient purposes."

2009

The operative Declaration governing North Shore Condominiums is recorded.

2014

The Arizona legislature enacts A.R.S. § 33-1260.01, addressing owners' use of units as rental property subject to declaration rental time-period restrictions.

2020

The owners begin purchasing North Shore units (2020-2021) as investment properties intended for short-term rentals.

2022-02

The board votes to replace the existing one-year minimum-lease rule with the 30-day rule.

2022

The owners file suit for declaratory and injunctive relief in Maricopa County Superior Court (No. CV2022-009708).

Date not specified

After oral argument on cross-motions for summary judgment, the superior court grants the owners' motion, holds the 30-day rule invalid under Kalway, and awards the owners attorney fees and costs.

2026-06-09

Division One files its memorandum decision reversing and remanding with instructions to enter judgment for the association.

Download source
Memorandum Decision

View all 1 source document for this case ↓

Complete source-document index

This index contains 1 PDF from the reviewed public source packet. Byte-identical copies are listed once. Files are ordered by the date and sequence in the public filename, and party filings or research materials are labeled separately from court rulings.

Source 1 2026-06-09

Memorandum Decision

Type: Decision or judgment

Memorandum decision holding that a board-adopted rule setting a 30-day minimum lease term is valid under Kalway because it reasonably and foreseeably clarifies the Declaration's existing prohibition on leasing units for "hotel or transient purposes" and does not conflict with the Declaration; the grant of summary judgment to the owners is reversed and judgment is directed for the association.

Download source file
2026-06-09_001_memorandum-decision.pdf

FAQ

What did the Court of Appeals decide in Le v. North Shore Condominium Association?

Division One reversed the superior court and held the association’s 30-day minimum-lease rule valid. It remanded with instructions to enter judgment for the association, ruling the rule was a reasonable and foreseeable clarification of the Declaration’s existing prohibition on leasing units for “hotel or transient purposes” and did not conflict with the Declaration.

What was the 30-day rule and who challenged it?

In February 2022, the association’s board replaced an earlier one-year minimum-lease rule with a rule barring leases of less than 30 days. Two owners, Baoan Andy Gia Le and Linda Sinat Som, who had bought units to operate short-term rentals, sued for declaratory and injunctive relief, arguing the rule was invalid because the Declaration set no durational rental limits.

How did Kalway v. Calabria Ranch apply to a board-adopted rule?

The court held that Kalway’s reasonable-expectations standard applies to board-adopted rules, not just majority-vote amendments to CC&Rs. It reasoned that if unforeseeable use restrictions are unenforceable even when approved by a majority, the same limit should apply to a rule adopted by a board, which represents only a minority of owners.

Why was a rule defining "transient" as under 30 days considered foreseeable?

The Declaration prohibited leasing for “transient” purposes but did not define the term. The court found that clarifying an undefined term already in the governing document “fills a gap” and is tethered to existing restrictions. A 30-day threshold matched the ordinary meaning of “transient” and Arizona and Tempe definitions treating stays of less than 30 days as transient.

How does this case compare to Gross and Preston?

The court distinguished Gross v. Shores at Rainbow Lake, where a similar 30-day rule was invalidated because those CC&Rs contained no transient-purpose prohibition. It aligned instead with Preston v. Las Sendas, which upheld a comparable short-term-rental restriction where the original CC&Rs limited units to residential, non-transient use.

Who pays attorney fees after the decision?

The trial court had awarded fees and costs to the owners. On reversal, the association became the prevailing party and may recover reasonable attorney fees and costs under Section 13.1 of the Declaration and A.R.S. §§ 12-341 and 12-341.01, upon compliance with the appellate rules.

Case Dossier

This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.

Case Summary

Case ID / citation1 CA-CV 25-0476
Court / tribunalCourt of Appeals
Decision / key dateJune 9, 2026
Judge / panelDaniel J. Kiley, D. Steven Williams, Cynthia J. Bailey
PartiesBaoan Andy Gia Le & Linda Sinat Som (unit owners/appellees) v. North Shore Condominium Association (condominium association/appellant)
Governing law
Topics
CC&RsBoard GovernanceAttorney Fees
Outcome / holding

A board-adopted rule setting a 30-day minimum lease term is valid under Kalway because it reasonably and foreseeably clarifies the Declaration's existing prohibition on leasing units for "hotel or transient purposes" and does not conflict with the Declaration; the grant of summary judgment to the owners is reversed and judgment is directed for the association.

Primary public sourceView hosted source opinion/order

Parties, Court, and Research Coverage

Reviewed source package1 PDF
Step-by-step docket roadmap9 roadmap entries
Video overviewBaoan Andy Gia Le, et al. v. North Shore Condominium Association, et al.
Study / briefing material1 section
FAQ / homeowner questions6 questions
Featured download links1 download link

Key Issues & Findings

Case Summary

Two owners bought units in the North Shore condominium community in Tempe intending to operate short-term rentals. In February 2022 the association's board replaced an existing one-year minimum-lease rule with a rule barring leases of less than 30 days. The owners sued for declaratory and injunctive relief, arguing the 30-day rule was invalid under Kalway v. Calabria Ranch HOA because the Declaration set no durational rental limits. The superior court agreed and granted the owners summary judgment plus attorney fees. On appeal, Division One reversed. It held the board had statutory and declaratory authority to adopt rules that do not conflict with the Declaration, that Kalway's reasonable-expectations test applies to board rules, and that a rule defining the Declaration's undefined term "transient" as under 30 days was a reasonable, foreseeable clarification tethered to existing restrictions. The court remanded with instructions to enter judgment for the association.

Key Issues & Findings

Reviewing the cross-motions for summary judgment de novo on stipulated facts, the court first rejected the owners' argument that the board could impose durational lease limits only by amending the Declaration through unanimous owner consent. The Condominium Act permits an association to adopt and amend rules subject to the declaration (A.R.S. § 33-1242(A)(1)), and the Declaration expressly authorized the board to adopt rules governing unit use. Because the 30-day rule was consistent with, rather than in conflict with, the Declaration's provisions limiting units to residential, non-transient use, the board did not violate the Act or the Declaration. The court also found nothing in the 2008 amendment (which removed earlier "less than one (1) year" language) evinced an intent to eliminate restrictions on short-term rentals.

The court then held that Kalway's reasonable-expectations standard governs board-adopted rules, not just majority-vote CC&R amendments. It reasoned it would be illogical to exempt a rule adopted by a board (a minority of owners) from a standard that invalidates even majority-approved restrictions that were not reasonable and foreseeable. Applying that test, the court concluded that a rule defining the Declaration's undefined term "transient" as leases under 30 days was a permissible clarification that "fills a gap" and is tethered to the original restrictions. That reading tracked the ordinary dictionary meaning of "transient" and Arizona and Tempe definitions treating stays of less than 30 days as transient (A.R.S. § 42-5070(F); City of Tempe Zoning & Development Code).

The court distinguished Gross v. Shores at Rainbow Lake, where a similar 30-day rule was struck down because those CC&Rs contained no transient-purpose prohibition, and aligned its result with Preston v. Las Sendas, which upheld a comparable short-term-rental restriction. It rejected the owners' contention that requiring written leases made their use non-transient. Because only a legal question remained on stipulated facts, the court reversed and remanded with instructions to enter judgment for the association, which as the prevailing party may recover fees under the Declaration and A.R.S. §§ 12-341 and 12-341.01.

Why It Matters

This decision marks where an Arizona short-term-rental restriction survives a Kalway-style challenge. Unlike disputes in which durational rental caps were invalidated as unforeseeable, the court found that the North Shore Declaration's existing ban on "hotel or transient purposes" put purchasers on notice that short-term rentals could be restricted, so a board rule defining "transient" as under 30 days merely clarified an existing term rather than imposing an entirely new limitation.

Read alongside decisions such as Gross v. Shores at Rainbow Lake (and, in the broader body of Arizona short-term-rental cases, Bonham) that struck down comparable rental caps, it serves as a counterweight illustrating that the outcome under Kalway turns on the specific language of the governing documents. Where a declaration already limits units to residential, non-transient use, associations may have room to adopt clarifying rules; where it does not, similar restrictions have failed. The opinion is a non-precedential memorandum decision and may be cited only as authorized by rule.

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Jimmie Klatt v. SunBird Golf Resort Homeowners Association Inc.: Arizona HOA Appellate Case Guide

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Assessments & CC&Rs | A.R.S. §§ 12-1832, 12-341.01 | 1 CA-CV 25-0709

Division One affirmed the homeowner’s Kalway victory over SunBird’s 2021 golf-course funding amendment. The trial court separately rejected his transfer-fee statute theory; the later county docket records mandate and satisfaction of judgment.

Last updated October 12, 2026. Appeal: 1 CA-CV 25-0709. Superior court: CV2023-053589.

Download memorandum decision Download trial ruling Read official superior-court docket

Decision and later docket history: The Court of Appeals affirmed on June 11, 2026. The official county docket checked October 12 records an August 13 mandate and September 9 satisfaction of judgment. Later docket entries were reviewed as metadata; the signed final judgment, mandate document, and appellate fee-amount order were not obtained. The complete current docket and any history of Supreme Court review have not been independently established. This memorandum decision is nonprecedential under Rule 111(c).

Source scope: This guide covers CV2023-053589 and appeal 1 CA-CV 25-0709 using the archived superior-court minute entries, the official June 11, 2026 memorandum decision, and the county docket checked October 12, 2026. The source archive contains 14 trial minute entries plus the appeal decision; it is not the complete litigation file. Pleadings, the signed final judgment, the mandate document, and any later appellate fee-amount order were not retrieved. Lisa Kittredge’s October 1 email is separately attributed participant context. This page is educational and is not legal advice.

The appellate decision is nonprecedential under Arizona Supreme Court Rule 111(c) and may be cited only as that rule permits.

The takeaway

The Court of Appeals affirmed summary judgment for the homeowner, holding that the 2021 amendment—which imposed a $300 capital-improvement assessment and authorized association funding for the golf course—was an unforeseeable new obligation under Kalway because the 2015 CC&Rs plainly excluded golf-course expenses, and that the homeowner had standing and raised a justiciable controversy.

Case Participants

Petitioner Side

  • Jimmie Klatt (Appellee)
    Homeowner and member of the Association who challenged the 2021 Amendment; prevailed in the superior court and on appeal.
  • Jonathan A. Dessaules (Counsel)
    Dessaules Law Group
    Counsel for Plaintiff/Appellee Jimmie Klatt.
  • Jacob A. Kubert (Counsel)
    Dessaules Law Group
    Counsel for Plaintiff/Appellee Jimmie Klatt.

Respondent Side

  • SunBird Golf Resort Homeowners' Association, Inc. (Appellant)
    HOA managing the age-restricted SunBird community of about 1,600 homes; adopted and defended the challenged Amendment.
  • Gaurav Bobby Kalra (Counsel)
    Gordon Rees Scully Mansukhani, LLP
    Counsel for Defendant/Appellant SunBird Golf Resort Homeowners' Association, Inc.
  • Christine B. Stutz (Counsel)
    Gordon Rees Scully Mansukhani, LLP
    Counsel for Defendant/Appellant SunBird Golf Resort Homeowners' Association, Inc.

Neutral Parties

  • Michael J. Brown (Judge)
    Presiding Judge of the Court of Appeals, Division One; authored the memorandum decision.
  • Veronika Fabian (Judge)
    Judge of the Court of Appeals, Division One; joined the decision.
  • Randall M. Howe (Judge)
    Chief Judge of the Court of Appeals; joined the decision.
  • Michael D. Gordon (Judge)
    Maricopa County Superior Court judge (Retired) who granted summary judgment for Klatt.

What happened

The SunBird Golf Resort Homeowners’ Association manages SunBird, an age-restricted (55 and older) active-living community of about 1,600 homes, many located near the separately owned SunBird Golf Course. In 1999, several homeowners’ associations within SunBird joined and adopted CC&Rs creating the Association, and those 1999 CC&Rs stated that the Golf Course does not constitute a common area of the Association.

When Jimmie Klatt bought a SunBird home in 2018, his lot was subject to an amended set of CC&Rs adopted in 2015. The 2015 CC&Rs provided in Subsection 9.2 that neither the Association nor its members would be responsible for the costs of operating and maintaining the golf course (apart from golf-related fees), and Section 6.3(A) specifically excluded the Golf Course from the common areas and expenses for which members were responsible.

In 2021, a majority of SunBird owners approved three amendments (together, the Amendment) establishing a fund to maintain, repair, replace, or improve the common areas and other areas affecting the Association, including the Golf Course. The Amendment applied only to people who become SunBird lot owners after its adoption and required those new owners to pay a $300 capital-improvement assessment.

In September 2023, Klatt sued the Association seeking a declaratory judgment and an injunction, contending that under the 2015 CC&Rs owners owed no financial obligation to the golf course and that the Amendment violated Kalway v. Calabria Ranch HOA, LLC because the 2015 CC&Rs did not make it reasonably foreseeable that the Association could change the prohibition against financially supporting the golf course. He alleged the Amendment harmed his home’s marketability by requiring purchasers to pay a transfer fee supporting the golf course.

The May 2, 2025 trial ruling, electronically filed May 5, granted Klatt summary judgment on the Kalway issue. The HOA separately won summary judgment on his A.R.S. § 33-1806 transfer-fee theory: invalidity under Kalway did not itself establish a statutory violation. The county docket records final judgment July 16, 2025; the appellate decision describes that judgment as invalidating the challenged amendment and awarding Klatt fees and costs (paragraph 6).

On June 11, 2026, Division One affirmed. It rejected the HOA’s standing and justiciability objections and its argument that Kalway did not apply to an amendment affecting future buyers. The court also found waiver of the HOA’s challenge to the foreseeability determination and explained why the amendment was unforeseeable in any event (paragraphs 9–18). It awarded reasonable appeal fees and costs subject to ARCAP 21 (paragraph 19).

Lisa Kittredge’s earlier OAH case

The June 13, 2023 OAH decision in Lisa Kittredge’s case, 23F-H040-REL, addressed a proposed drainage project capped at $20,000 from the HOA contingency funding stream. The ALJ granted her petition, ordered $500 filing-fee reimbursement, and required compliance with the governing documents. The HOA reported that work had not proceeded pending that decision. The ALJ interpreted the then-current amendment as allowing golf-course spending only from the restricted § 6.7(C) assessment fund; she did not invalidate the amendment.

Klatt’s later superior-court lawsuit challenged the amendment’s validity under Kalway. These are separate proceedings with different issues and relief. The 2023 OAH allowance for restricted-fund spending describes that earlier decision; it should not be read as current authorization after the later amendment-invalidity ruling.

In an October 1, 2026 email to this project, Lisa said she knew about Kalway when she filed but wanted to address the immediate misuse of membership funds. She said she subsequently moved from the HOA and identified Klatt’s lawsuit as a follow-up. This is her account of her motivation and circumstances, not a finding in the Klatt opinion.

Lisa also reported an August 21, 2026 homeowner win and fees in the $100,000 range. Neither that date as a ruling date nor that estimated amount has been independently verified. The retrieved appellate merits decision is dated June 11, 2026, and the county mandate entry is dated August 13. No August 21, 2026 event appears in the retrieved county docket.

Fees and later docket history

The official superior-court docket lists July 16, 2025 judgment entries labeled “Attorney Fee” for $70,581.30 and “Costs” for $581.30, each marked “Satisfied.” These are the docket’s labels and amounts; they are not added together here because the signed judgment has not been retrieved to resolve whether the fee entry includes costs. The June 11 appellate decision awards reasonable appeal fees and taxable costs subject to ARCAP 21, but supplies no dollar amount. View the official docket.

The county docket records an Order of Mandate filed August 13, 2026 (docketed August 17), a Satisfaction of Judgment filed September 9 (docketed September 10), and a September 22 bond-release order. No matching Klatt or SunBird case appeared in the Division One or Arizona Supreme Court active civil lists checked October 12, 2026. Those lists and the county entries do not establish whether Supreme Court review was ever sought or denied.

Complete source-document index

This index contains 15 PDFs from the reviewed public source packet. Byte-identical copies are listed once. Files are ordered by the date and sequence in the public filename, and party filings or research materials are labeled separately from court rulings.

Source 1 2024-01-24

Motions Hearing Set

Type: Motion/application

A request for a specific ruling or procedural action; the next document is often a response or order.

Download source file
2024-01-24_001_motions-hearing-set.pdf
Source 2 2024-03-15

Motion To Dismiss Denied

Type: Motion/application

A request for a specific ruling or procedural action; the next document is often a response or order.

Download source file
2024-03-15_002_motion-to-dismiss-denied.pdf
Source 3 2024-05-07

Dismissal Calendar Extension

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2024-05-07_003_dismissal-calendar-extension.pdf
Source 4 2024-05-16

March Ruling Clarification

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2024-05-16_004_march-ruling-clarification.pdf
Source 5 2024-08-09

Dismissal Calendar Extension

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2024-08-09_005_dismissal-calendar-extension.pdf
Source 8 2024-10-02

Reconsideration Briefing

Type: Briefing paper

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2024-10-02_008_reconsideration-briefing.pdf
Source 9 2024-12-04

Reconsideration Granted

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2024-12-04_009_reconsideration-granted.pdf
Source 10 2025-05-02

Summary Judgment Ruling

Type: Decision or judgment

May 2, 2025 ruling, filed May 5: Klatt prevails under Kalway; the HOA prevails on the separate transfer-fee statute theory.

Download source file
2025-05-02_010_summary-judgment-ruling.pdf
Source 11 2025-05-02

Ex Parte Letters No Action

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2025-05-02_011_ex-parte-letters-no-action.pdf
Source 12 2025-09-19

Bond Hearing Set

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2025-09-19_012_bond-hearing-set.pdf
Source 13 2025-09-22

Supersedeas Bond Order

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2025-09-22_013_supersedeas-bond-order.pdf
Source 14 2025-09-22

Bond Hearing Vacated

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2025-09-22_014_bond-hearing-vacated.pdf
Source 15 2026-06-11

Memorandum Decision

Type: Decision or judgment

Memorandum decision affirming that the $300 golf-course assessment amendment was void as unforeseeable under Kalway.

Download source file
2026-06-11_001_memorandum-decision.pdf

Read the source records

The May 2 trial ruling, pages 8–9, records the mixed summary-judgment result. The June 11 appellate decision records the affirmance and fee entitlement. The official county docket supplies final-judgment, mandate, satisfaction, and bond-release dates. The downloads below preserve the available source PDFs, with descriptions distinguishing each order from the separately signed documents it references.

For related analysis, read Kittredge’s OAH case and Kalway v. Calabria Ranch HOA. The historical media summaries below accompany the earlier article and should be checked against this updated source record.

Video overview of the case record

An AI-generated video overview of Jimmie Klatt v. SunBird Golf Resort Homeowners Association Inc. (1 CA-CV 25-0709). CC&R amendment adding a $300 golf-course assessment was void as unforeseeable under Kalway. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the case record

An AI-generated audio deep dive walking through the court record and procedural posture in Jimmie Klatt v. SunBird Golf Resort Homeowners Association Inc.. Generated from the case filings; verify against the linked case records below.

Audio overview generated with Google NotebookLM from the case’s court filings.

Procedural timeline

DateEvent
1999Several SunBird homeowners’ associations join and adopt the 1999 CC&Rs creating the Association; the CC&Rs state the Golf Course does not constitute a common area.
2015The 2015 CC&Rs are adopted; Subsection 9.2 and Section 6.3(A) exclude the Golf Course from the association’s and members’ cost and common-expense responsibilities.
2018Jimmie Klatt buys a home in SunBird, becoming subject to the 2015 CC&Rs.
2021A majority of SunBird owners approve three amendments (the Amendment) creating a fund covering the Golf Course and imposing a $300 capital-improvement assessment on future lot owners.
2023-06-13In the separate OAH case 23F-H040-REL, Lisa Kittredge wins her challenge to the proposed use of HOA contingency funds for golf-course drainage.
2023-09Klatt sues the Association seeking a declaratory judgment and injunction, invoking Kalway.
2024-09-27 / 2024-12-04The trial court initially denies Klatt summary judgment, then grants reconsideration and allows an HOA cross-motion.
2025-05-02 (filed May 5)Klatt wins the Kalway issue; the HOA wins the separate transfer-fee statute theory.
2025-07-16County docket records final judgment; the appeal decision describes invalidation of the challenged amendment and a fee/cost award.
2026-06-11Division One affirms and awards reasonable appellate fees and taxable costs subject to ARCAP 21.
2026-08-13 (docketed August 17)County docket records an Order of Mandate.
2026-09-09 (docketed September 10)County docket records Satisfaction of Judgment.
2026-09-22 / September 23 / October 7County docket records bond release and subsequent deposit-release notices.

FAQ

What did the SunBird 2021 amendment do?

The 2021 Amendment (three amendments to the 2015 CC&Rs) established a fund to maintain, repair, replace, or improve the community’s common areas and other areas affecting the Association, including the separately owned SunBird Golf Course, and required people who buy SunBird lots after the amendment to pay a $300 capital-improvement assessment.

Why did the homeowner win?

The 2015 CC&Rs in effect when Klatt bought his home expressly stated that neither the Association nor its members would be responsible for golf-course costs and excluded the golf course from common areas and expenses. Under Kalway v. Calabria Ranch, associations cannot create new affirmative obligations the CC&Rs did not make foreseeable, so the amendment adding an assessment and golf-course funding was unforeseeable and unenforceable.

How does this case relate to Kalway v. Calabria Ranch?

Kalway holds that CC&R amendments must be reasonable and foreseeable and cannot impose entirely new obligations untethered to the original covenants. The Court of Appeals applied Kalway here and rejected the Association’s argument that Kalway did not apply because the amendment affected only future purchasers.

Could the homeowner challenge an amendment that applied only to future buyers?

Yes. The court explained that an amendment applying only to new owners is still a restrictive covenant that affects existing owners’ ability to sell their lots. Klatt had standing under the declaratory judgment statute (A.R.S. § 12-1832) and raised a justiciable controversy because the amendment affected his property’s marketability and authorized golf-course spending the prior CC&Rs barred.

What do the records establish about fees?

The official superior-court docket lists July 16, 2025 judgment entries labeled “Attorney Fee” for $70,581.30 and “Costs” for $581.30, each marked “Satisfied.” These are the docket’s labels and amounts; they are not added together here because the signed judgment has not been retrieved to resolve whether the fee entry includes costs. The June 11 appellate decision awards reasonable appeal fees and taxable costs subject to ARCAP 21, but supplies no dollar amount. Lisa reported a roughly $100,000 fee award in her October 1, 2026 email; that estimate and its components remain unverified.

Is this decision binding precedent?

No. It is an unpublished memorandum decision of the Arizona Court of Appeals, Division One. Under Arizona Rule of the Supreme Court 111(c) it is not precedential and may be cited only as authorized by rule.

Did Klatt win every trial-court issue?

No. He won the amendment challenge under Kalway, but the HOA won summary judgment on his separate A.R.S. § 33-1806 transfer-fee theory. The May 2, 2025 ruling, filed May 5, distinguishes those grounds.

Case Dossier

This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.

Case Summary

Case ID / citation1 CA-CV 25-0709
Court / tribunalCourt of Appeals
Decision / key dateJune 11, 2026
Judge / panelBrown, Fabian, Howe
PartiesJimmie Klatt (Plaintiff/Appellee) v. SunBird Golf Resort Homeowners' Association, Inc. (Defendant/Appellant)
Governing law
  • A.R.S. § 12-1832
  • A.R.S. § 12-341.01
Topics
AssessmentsCC&RsAttorney FeesProcedure
Outcome / holding

The Court of Appeals affirmed summary judgment for the homeowner, holding that the 2021 amendment—which imposed a $300 capital-improvement assessment and authorized association funding for the golf course—was an unforeseeable new obligation under Kalway because the 2015 CC&Rs plainly excluded golf-course expenses, and that the homeowner had standing and raised a justiciable controversy.

Primary public sourceView hosted source opinion/order

Parties, Court, and Research Coverage

Reviewed source package15 PDFs
Step-by-step docket roadmapNo separate litigation roadmap table on this page
Video overviewJimmie Klatt v. SunBird Golf Resort Homeowners Association Inc.
Study / briefing material1 section
FAQ / homeowner questions7 questions
Featured download links2 download links

Key Issues & Findings

Case Summary

Jimmie Klatt challenged SunBird’s 2021 amendment allowing funding of a separately owned golf course and imposing a $300 capital-improvement assessment on new purchasers. The 2015 CC&Rs had excluded golf-course expenses. In a May 2, 2025 ruling, filed May 5, Klatt won the amendment challenge under Kalway while the HOA won his separate A.R.S. § 33-1806 transfer-fee theory. The county docket records final judgment July 16, 2025. Division One affirmed June 11, 2026 and awarded reasonable appeal fees and taxable costs subject to ARCAP 21. The county docket later records an August 13 mandate and September 9 satisfaction of judgment. This nonprecedential memorandum decision is distinct from Lisa Kittredge’s 2023 OAH challenge to proposed contingency-funded drainage work.

Key Issues & Findings

On standing and justiciability, the court first noted that the Association never raised standing in the superior court and had therefore waived it, arguing only that the homeowner did not present a justiciable issue. Even reaching the merits, the court explained that the declaratory judgment statute, A.R.S. § 12-1832, allows any person interested under a written contract to seek a determination of the contract's validity, and that CC&Rs constitute a contract between the property owners as a whole and individual lot owners. Because the homeowner had a contractual relationship with the Association and the Association cited no authority that a lot owner cannot challenge the validity of CC&R amendments, his interest was neither speculative nor uncertain. He bought his home knowing the golf course and the community were separate and that association funds would not benefit the golf course; the amendment now subjected his property to the assessment on resale and granted the Association authority to spend funds on the golf course, creating a definite interest and a genuine controversy.

Applying Kalway v. Calabria Ranch HOA, LLC, the court rejected the Association's attempt to distinguish that decision on the ground that the amendment applies only to future purchasers. Kalway holds that homeowners' associations cannot create new affirmative obligations where the CC&Rs did not give notice that owners might be subject to them, and that amendments must be both reasonable and foreseeable and cannot be entirely new and different in character, untethered to an original covenant. That Kalway did not expressly address transfer fees for new buyers did not make it inapplicable. An amendment that applies only to new owners is still a restrictive covenant that affects existing owners' ability to sell their lots, and nothing in Kalway would preclude an existing owner from challenging such an amendment.

Because the 2015 CC&Rs plainly stated that the Association would not use its funds for golf-course expenses, the amendment creating the assessment and golf-course financial support was unforeseeable, and the Association did not show error in the grant of summary judgment. The Association also waived any challenge to the trial court's finding that the amendment was unreasonable and unforeseeable by not arguing that point on appeal. On fees, the court denied the Association's request because it did not prevail and, in its discretion, granted the homeowner reasonable attorneys' fees and taxable costs under A.R.S. § 12-341.01, subject to compliance with ARCAP 21.

The May 2, 2025 trial ruling, filed May 5, distinguishes invalidity under Kalway from the separate transfer-fee statute claim, on which the Association prevailed. The official superior-court docket lists July 16, 2025 judgment entries labeled “Attorney Fee” for $70,581.30 and “Costs” for $581.30, each marked “Satisfied.” These are the docket’s labels and amounts; they are not added together here because the signed judgment has not been retrieved to resolve whether the fee entry includes costs. The June 11 appellate decision awards reasonable appeal fees and taxable costs subject to ARCAP 21, but supplies no dollar amount. The county docket records an Order of Mandate filed August 13, 2026 (docketed August 17), a Satisfaction of Judgment filed September 9 (docketed September 10), and a September 22 bond-release order. No matching Klatt or SunBird case appeared in the Division One or Arizona Supreme Court active civil lists checked October 12, 2026. Those lists and the county entries do not establish whether Supreme Court review was ever sought or denied.

Why It Matters

This 2026 decision is a notable post-Kalway application of the "new financial obligation" limit on CC&R amendments. Division One affirmed a homeowner victory that used Kalway v. Calabria Ranch to invalidate a capital-improvement assessment tied to a golf course the community's CC&Rs had previously excluded from association and common-expense responsibility, and it upheld the trial court's judgment declaring the amendment void along with an award of attorneys' fees to the homeowner.

Although unpublished and non-precedential, the decision illustrates two points of continuing interest to Arizona associations and owners: that an amendment purporting to bind only future purchasers can still be challenged by existing owners because it affects the marketability of their lots, and that an amendment adding funding obligations for something the prior declaration expressly carved out may be treated as unforeseeable under Kalway.

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Turtle Rock III HOA v. Fisher: HOA Daily Fines Deemed Per Se Unreasonable Without Written Schedule

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HOA Daily Fines & CC&Rs | A.R.S. § 33-1803(B) | 1 CA-CV 16-0455

An Arizona case illustrating the strict evidentiary standards homeowners associations must meet to legally impose fines. While homeowners must raise objections at trial to preserve them, HOAs must present their written fee policies to enforce monetary penalties.

Last updated June 30, 2026. Case: Turtle Rock III, Court of Appeals No. 1 CA-CV 16-0455; affirmed in part and reversed in part — opinion depublished by the Arizona Supreme Court (No. CV-17-0327-PR), so it is non-precedential.

Download the appellate opinion Download the appellate mandate Download the record index Source-file index FAQ

Current-status note: Pipeline note: the public raw-source folder contains source files that were not in the last staged NotebookLM source set. The page remains a source-linked record, but generated media should be rebuilt or rechecked after the staged source manifest catches up.

Scope note: This page covers the litigation between Turtle Rock III HOA and homeowner Lynne Fisher regarding property maintenance, daily fines, and subsequent appeal proceedings. While the opinion remains highly persuasive, it was depublished by the Arizona Supreme Court and therefore lacks precedential value. This page is educational and is not legal advice.

The takeaway

The trial court’s injunction ordering property repairs is affirmed because the homeowner waived her interior maintenance objections by failing to raise them below, but the award of monetary penalties and attorneys’ fees is reversed because the association failed to present competent evidence of a pre-existing, promulgated fee schedule.

Case Participants

Petitioner Side

  • Turtle Rock III Homeowners Association (Plaintiff)
    Arizona non-profit corporation and planned community association
  • Clint G. Goodman (Counsel)
    Goodman Law Group, LLP
    Attorney representing Plaintiff/Appellee Turtle Rock III Homeowners Association
  • Scott L. Potter (Counsel)
    Goodman Law Offices, P.C.
    Attorney representing Plaintiff/Appellee Turtle Rock III Homeowners Association
  • Maura A. Abernethy (Counsel)
    Goodman Law Group, LLP
    Attorney representing Plaintiff/Appellee Turtle Rock III Homeowners Association
  • Ashley N. Moscarello (Counsel)
    Goodman Law Group, LLP
    Attorney representing Plaintiff/Appellee Turtle Rock III Homeowners Association
  • Gregory J. Wahl (Board Member)
    Turtle Rock III Homeowners Association
    HOA Board Member who verified the initial Complaint
  • Verl Curtiss (Witness)
    Turtle Rock III Homeowners Association
    HOA representative who testified at the evidentiary hearing
  • Annette Milauskas (Witness)
    Turtle Rock III Homeowners Association
    HOA member listed as witness and present at the evidentiary hearing

Respondent Side

  • Lynne A. Fisher (Defendant)
    Homeowner and record owner of the property at issue
  • James Roger Wood (Counsel)
    The Law Offices of J. Roger Wood, PLLC
    Lead attorney representing Defendant/Appellant Lynne A. Fisher; later disbarred
  • Erin S. Iungerich (Counsel)
    The Law Offices of J. Roger Wood, PLLC
    Attorney representing Defendant/Appellant Lynne A. Fisher
  • James B. Sweeney (Counsel)
    The Law Offices of J. Roger Wood, PLLC
    Attorney representing Defendant/Appellant Lynne A. Fisher

Neutral Parties

  • Hon. David M. Talamante (Judge)
    Maricopa County Superior Court
    Trial court judge who presided over the consolidated trial and evidentiary hearing
  • Hon. David K. Udall (Judge)
    Maricopa County Superior Court
    Original trial court judge before reassignment
  • Hon. Randall H. Warner (Judge)
    Maricopa County Superior Court
    Presiding Civil Judge who reassigned the case to Judge Talamante
  • Hon. Margaret Benny (Judge)
    Maricopa County Superior Court
    Superior Court Commissioner assigned to handle default judgment proceedings
  • Hon. Jon W. Thompson (Judge)
    Arizona Court of Appeals, Division One
    Appellate judge who delivered the opinion of the court
  • Hon. Kent E. Cattani (Judge)
    Arizona Court of Appeals, Division One
    Appellate judge who participated in the decision
  • Hon. Paul J. McMurdie (Judge)
    Arizona Court of Appeals, Division One
    Appellate judge who participated in the decision
  • Hon. Scott Bales (Judge)
    Arizona Supreme Court
    Chief Justice who signed the order denying review and depublishing the appellate opinion
  • Hon. Melina Brill (Judge)
    Arizona Court of Appeals, Division One
    Judge Pro Tempore who signed procedural scheduling orders
  • Hon. Barbara Vidal Vaught (Judge)
    Arizona Court of Appeals, Division One
    Judge Pro Tempore who signed the order extending time for the answering brief
  • Amy M. Wood (Other)
    Arizona Court of Appeals, Division One
    Clerk of the Court of Appeals, Division One
  • Ruth Willingham (Other)
    Arizona Court of Appeals, Division One
    Former Clerk of the Court of Appeals, Division One
  • Janet Johnson (Other)
    Arizona Supreme Court
    Clerk of the Arizona Supreme Court
  • Michael K. Jeanes (Other)
    Maricopa County Superior Court
    Clerk of the Superior Court of Maricopa County
  • Chris DeRose (Other)
    Maricopa County Superior Court
    Clerk of the Superior Court of Maricopa County

What happened

Beginning in January 2014, the Turtle Rock III Homeowners Association sent numerous notices of violation to Lynne Fisher regarding maintenance issues at her property, including weedy landscaping, damaged gates, and a wood-rotted garage door. The HOA also cited interior conditions, such as dilapidated blinds and excessive storage items visible from the street. When Fisher failed to cure these issues, the HOA began assessing a daily fine of $25 and eventually filed a lawsuit in November 2015 for breach of contract and injunctive relief.

At the April 2016 evidentiary hearing, which was consolidated with a trial on the merits, Fisher’s counsel appeared but Fisher did not, and her counsel presented no evidence or witnesses. The trial court subsequently entered an injunction ordering Fisher to replace her backyard door, keep her yard free of weeds, replace her front window blinds, and move interior items that prevented the blinds from closing properly. The court also entered judgment against Fisher for $3,850 in penalties, $10,839.70 in attorneys’ fees, and $474 in costs.

Fisher appealed the judgment to the Arizona Court of Appeals, which affirmed the injunction but reversed the fines and fee awards. The HOA petitioned the Arizona Supreme Court, which initially granted review on the issue of ad hoc penalties but later vacated its order as improvidently granted, denying the petition and depublishing the Court of Appeals’ opinion.

Video overview of the ruling

An AI-generated video overview of Turtle Rock III HOA v. Fisher (1 CA-CV 16-0455). The trial court’s injunction ordering property repairs is affirmed because the homeowner waived her interior… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the ruling

An AI-generated audio deep dive walking through the court’s reasoning and disposition in Turtle Rock III HOA v. Fisher. Generated from the case filings; verify against the linked ruling below.

Audio overview generated with Google NotebookLM from the case’s court filings.

Procedural timeline

2015-11-04

Turtle Rock III Homeowners Association files a Complaint for breach of contract and injunctive relief against record owner Lynne A. Fisher in Maricopa County Superior Court.

2015-11-20

Superior Court issues an Order to Show Cause setting a preliminary return hearing.

2015-11-30

Defendant Lynne Fisher is personally served with the summons, complaint, and application for injunction.

2015-12-11

Counsel enters a Notice of Appearance for Fisher and files a Notice of Change of Judge as a Matter of Right.

2015-12-16

The case is reassigned from Judge David Udall to Judge David Talamante.

2015-12-30

Plaintiff files an Affidavit and Application for Entry of Default after Fisher fails to file a timely response.

2016-01-04

Court enters a minute entry noting default paperwork issues regarding a default coversheet.

2016-01-05

Court sets a return hearing on the application for preliminary injunction.

2016-01-08

Fisher files her Answer admitting residency but denying CC&R violation allegations, alongside a Demand for Jury Trial.

2016-01-12

HOA files an Objection to Defendant's Demand for Jury Trial, arguing no jury right exists in equitable enforcement actions.

2016-01-20

Court holds a status conference where it sets an evidentiary hearing.

2016-02-26

Court issues an order scheduling an evidentiary hearing for April 15, 2016.

2016-03-01

HOA files a Request for Clarification regarding whether the evidentiary hearing will be consolidated with a trial on the merits.

2016-03-11

Court clarifies that the evidentiary hearing will address both injunctive relief and monetary penalties.

2016-03-23

Court issues a 100-day notice directing the parties to submit a Joint Report and Scheduling Order.

2016-04-02

Court issues a 150-day order providing scheduling directives.

2016-04-08

HOA files its trial exhibits, including the CC&Rs, deed, account ledger, photographs, and warning letters.

2016-04-12

The parties submit a Joint Pretrial Statement outlining uncontested facts and issues for trial.

2016-04-15

Evidentiary hearing is held before Judge David Talamante; Fisher's counsel is present, but Fisher fails to appear.

2016-04-21

HOA files its Application for Monetary Penalties seeking $9,165.25 and Application for Attorney Fees and Costs seeking $10,839.70.

2016-05-11

Fisher files her Objection to the Application for Monetary Penalties, arguing lack of proper notice under A.R.S. § 33-1803(B).

2016-05-12

Fisher files a Response and Objection to the HOA's Application for Attorney Fees and Costs.

2016-05-25

HOA files replies defending its applications for fees and monetary penalties.

2016-06-07

Judge David Talamante signs the final Order and Judgment, awarding the HOA injunctive relief, $3,850 in penalties, $10,839.70 in attorney fees, and $474 in costs.

2016-06-23

HOA files a Petition and Declaration for Supplemental Proceedings to discover Fisher's assets.

2016-07-03

Fisher files her Notice of Appeal to the Arizona Court of Appeals.

2016-07-26

The parties file a Stipulation to Post Supersedeas Bond of $15,163.70 to stay execution of judgment during the appeal.

2016-08-09

Court signs the order approving the supersedeas bond stay.

2018-05-08

The Arizona Supreme Court grants the Petition for Review on reframed issues regarding ad hoc penalties (No. CV-17-0327-PR).

2018-07-03

The Arizona Supreme Court vacates its order granting review as improvident, denies the Petition for Review, and depublishes the Court of Appeals' Opinion (No. CV-17-0327-PR).

Download source
0000 Asc Order Filed 07032018 Re Order Gr
2018-07-25

The Court of Appeals issues its Civil Mandate returning jurisdiction to the Superior Court to proceed in accordance with its opinion.

Download source
0000 Civil Mandate

View all 97 source documents for this case ↓

Complete source-document index

This index contains 97 PDFs from the reviewed public source packet. Byte-identical copies are listed once. Files are ordered by the date and sequence in the public filename, and party filings or research materials are labeled separately from court rulings.

Source 1 2016-08-01

0000 Index Of Record

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2016-08-01_001_0000-index-of-record.pdf
Source 2 2016-08-01

0001 Complaint

Type: Opening pleading

Starts or reframes the case and identifies the claims or relief requested.

Download source file
2016-08-01_002_0001-complaint.pdf
Source 4 2016-08-01

0003 Civil Cover Sheet

Type: Court/source PDF

Court intake document classifying the case for filing and assignment purposes.

Download source file
2016-08-01_004_0003-civil-coversheet.pdf
Source 7 2016-08-01

0006 Order To Show Cause

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2016-08-01_007_0006-order-to-show-cause.pdf
Source 8 2016-08-01

0007 Certificate Of Service

Type: Procedural/service filing

Procedural filing that documents service, appearance, compliance, or a required notice step.

Download source file
2016-08-01_008_0007-certificate-of-service.pdf
Source 9 2016-08-01

0008 Notice Of Appearance

Type: Procedural/service filing

Procedural filing that documents service, appearance, compliance, or a required notice step.

Download source file
2016-08-01_009_0008-notice-of-appearance.pdf
Source 11 2016-08-01

0010 Credit Memo

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2016-08-01_011_0010-credit-memo.pdf
Source 12 2016-08-01

0011 Minute Entry Case Reassigned 12162015

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2016-08-01_012_0011-me-case-reassigned-12162015.pdf
Source 13 2016-08-01

0012 Affidavit And Application For Entr

Type: Declaration or affidavit

Witness statement submitted under oath or declaration; its assertions are evidence offered by a party, not court findings.

Download source file
2016-08-01_013_0012-affidavit-and-application-for-entr.pdf
Source 15 2016-08-01

0014 Minute Entry Hearing Set 01052016

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2016-08-01_015_0014-me-hearing-set-01052016.pdf
Source 19 2016-08-01

0018 Minute Entry Status Conference Set 01202016

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2016-08-01_019_0018-me-status-conference-set-01202016.pdf
Source 21 2016-08-01

0020 Request For Clarification

Type: Motion/application

A request for a specific ruling or procedural action; the next document is often a response or order.

Download source file
2016-08-01_021_0020-request-for-clarification.pdf
Source 30 2016-08-01

0029 Joint Pretrial Statement

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2016-08-01_030_0029-joint-pretrial-statement.pdf
Source 31 2016-08-01

0030 Minute Entry Ruling 04152016

Type: Court order/minute entry

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2016-08-01_031_0030-me-ruling-04152016.pdf
Source 35 2016-08-01

0034 Exhibit Worksheet Hd 04152016

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2016-08-01_035_0034-exhibit-worksheet-hd-04152016.pdf
Source 40 2016-08-01

0039 Order And Judgment

Type: Decision or judgment

Court or agency order; this is usually the document that tells readers what changed next.

Download source file
2016-08-01_040_0039-order-and-judgment.pdf
Source 41 2016-08-01

0040 Petition And Declaration For Suppl

Type: Declaration or affidavit

Witness statement submitted under oath or declaration; its assertions are evidence offered by a party, not court findings.

Download source file
2016-08-01_041_0040-petition-and-declaration-for-suppl.pdf
Source 46 2016-08-16

0000 Case Management Statement

Type: Court/source PDF

Case-management filing; it tells the court how the parties propose to schedule and manage the case.

Download source file
2016-08-16_046_0000-case-management-statement.pdf
Source 54 2016-11-01

0001 Certificate Of Service

Type: Procedural/service filing

Procedural filing that documents service, appearance, compliance, or a required notice step.

Download source file
2016-11-01_055_0001-certificate-of-service.pdf
Source 57 2016-11-14

0001 Certificate Of Service

Type: Procedural/service filing

Procedural filing that documents service, appearance, compliance, or a required notice step.

Download source file
2016-11-14_058_0001-certificate-of-service.pdf
Source 60 2016-11-21

0001 Certificate Of Compliance

Type: Procedural/service filing

Procedural filing that documents service, appearance, compliance, or a required notice step.

Download source file
2016-11-21_061_0001-certificate-of-compliance.pdf
Source 63 2016-12-28

0001 Certificate Of Service

Type: Procedural/service filing

Procedural filing that documents service, appearance, compliance, or a required notice step.

Download source file
2016-12-28_064_0001-certificate-of-service.pdf
Source 66 2017-02-08

0001 Certificate Of Compliance

Type: Procedural/service filing

Procedural filing that documents service, appearance, compliance, or a required notice step.

Download source file
2017-02-08_067_0001-certificate-of-compliance.pdf
Source 67 2017-02-08

0002 Certificate Of Service

Type: Procedural/service filing

Procedural filing that documents service, appearance, compliance, or a required notice step.

Download source file
2017-02-08_068_0002-certificate-of-service.pdf
Source 72 2017-04-17

0044 Court Of Appeals Receipt

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2017-04-17_073_0044-court-of-appeals-receipt.pdf
Source 73 2017-04-17

0045 Electronic Index Of Record

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2017-04-17_074_0045-electronic-index-of-record.pdf
Source 75 2017-04-17

0047 Court Of Appeals Receipt

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2017-04-17_076_0047-court-of-appeals-receipt.pdf
Source 79 2017-10-26

0000 Opinion

Type: Decision or judgment

Opinion holding that the trial court's injunction ordering property repairs is affirmed because the homeowner waived her interior maintenance objections by failing to raise them below, but the award of monetary penalties and attorneys' fees is reversed because the association failed to present competent evidence of a pre-existing, promulgated fee schedule.

Download source file
2017-10-26_080_0000-opinion.pdf
Source 81 2017-11-01

0000 Motion For Reconsideration

Type: Motion/application

A request for a specific ruling or procedural action; the next document is often a response or order.

Download source file
2017-11-01_082_0000-motion-for-reconsideration.pdf
Source 82 2017-11-01

0001 Certificate Of Compliance

Type: Procedural/service filing

Procedural filing that documents service, appearance, compliance, or a required notice step.

Download source file
2017-11-01_083_0001-certificate-of-compliance.pdf
Source 83 2017-11-01

0002 Certificate Of Service

Type: Procedural/service filing

Procedural filing that documents service, appearance, compliance, or a required notice step.

Download source file
2017-11-01_084_0002-certificate-of-service.pdf
Source 95 2018-07-25

0000 Civil Mandate

Type: Decision or judgment

Decision document; read it to understand the controlling result before moving to later filings.

Download source file
2018-07-25_096_0000-civil-mandate.pdf

FAQ

Can an Arizona HOA impose daily fines on a homeowner without a written fine schedule?

No. Under A.R.S. § 33-1803(B), an HOA must establish and timely distribute a written schedule of penalties before imposing fines. In this case, the court ruled that failing to introduce the written fine schedule into evidence makes any assessed daily penalties ad hoc and per se unreasonable.

Does this Court of Appeals decision set a binding legal precedent for other Arizona HOAs?

No. Although the Court of Appeals issued a published opinion in 2017, the Arizona Supreme Court subsequently vacated its review and ordered the opinion depublished in July 2018. Therefore, this decision is non-precedential and cannot be cited as binding authority, though it remains highly persuasive regarding how courts evaluate ad hoc HOA penalties.

Can an HOA regulate or issue an injunction regarding the interior of a home?

Yes, but only under limited circumstances. Here, the court affirmed an injunction requiring the homeowner to replace dilapidated front-window blinds and move interior storage items back so the blinds could close. The court noted that because these conditions were ‘visible from neighboring property,’ they fell under the HOA’s authority to maintain community aesthetics under the CC&Rs.

What happens if a homeowner fails to participate in the trial court proceedings but appeals the decision?

The homeowner will likely lose on appeal. In this case, because the homeowner failed to attend the trial and her attorney did not object to the property maintenance allegations, the Court of Appeals held she waived her right to contest the injunction. Unpreserved arguments cannot be raised for the first time on appeal.

Can an HOA recover its attorneys' fees if its daily fines are overturned on appeal?

If an HOA’s fine award is completely reversed on appeal, it may lose its status as the ‘successful party’ regarding those monetary claims. Here, because the Court of Appeals reversed the monetary penalties, it also reversed the trial court’s award of $10,839.70 in attorneys’ fees to the HOA, and denied appellate fee requests for both parties as neither was wholly successful.

Case Dossier

This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.

Case Summary

Case ID / citation1 CA-CV 16-0455
Court / tribunalCourt of Appeals
Decision / key dateOctober 26, 2017
Judge / panelHon. Jon W. Thompson, Hon. Kent E. Cattani, Hon. Paul J. McMurdie
PartiesTurtle Rock III Homeowners Association (Plaintiff/Appellee) v. Lynne A. Fisher (Defendant/Appellant)
Governing law
Topics
CC&RsFinesAttorney FeesProcedure
Outcome / holding

The trial court's injunction ordering property repairs is affirmed because the homeowner waived her interior maintenance objections by failing to raise them below, but the award of monetary penalties and attorneys' fees is reversed because the association failed to present competent evidence of a pre-existing, promulgated fee schedule.

Primary public sourceView hosted source opinion/order

Parties, Court, and Research Coverage

Reviewed source package97 PDFs
Step-by-step docket roadmap39 roadmap entries
Video overviewTurtle Rock III HOA v. Fisher
Study / briefing material1 section
FAQ / homeowner questions5 questions
Featured download links3 download links

Key Issues & Findings

Case Summary

Turtle Rock III Homeowners Association filed a lawsuit against homeowner Lynne Fisher in Maricopa County Superior Court, alleging multiple ongoing violations of the community's CC&Rs regarding her property's maintenance. The violations included missing and damaged gates, weeds, and a wood-rotted garage door, alongside interior conditions and dilapidated blinds visible from the street. Following an evidentiary hearing where Fisher failed to appear but was represented by counsel, the trial court granted a permanent injunction ordering repairs and awarded the HOA $3,850 in monetary penalties, $10,839.70 in attorneys' fees, and $474 in costs. On appeal, the Arizona Court of Appeals affirmed the injunction, holding that Fisher waived her objections to both the exterior and interior repairs by failing to raise them below. However, the court reversed the monetary penalties and attorneys' fees because the HOA failed to introduce its written fine schedule into evidence, making the fines per se unreasonable.

Key Issues & Findings

The Court of Appeals affirmed the injunction because Fisher failed to object to the required maintenance items at the trial court level, thereby waiving her arguments on appeal. Additionally, because the hearing transcript was missing, the court presumed the record supported the trial court's injunctive order regarding both the exterior repairs and the interior adjustments to her window blinds and personal property.

On the issue of monetary penalties, the court held that under state statute (A.R.S. § 33-1803(B)) and established precedent (Villas at Hidden Lakes), community associations must timely promulgate and prove a written schedule of fines before imposing monetary penalties. Because the Association failed to introduce its fine schedule into evidence during the trial, the daily penalties were deemed ad hoc and per se unreasonable.

Finally, because the monetary penalties were reversed, the associated award of trial-level attorneys' fees was also reversed, and neither party was awarded attorneys' fees on appeal because neither was wholly successful.

Why It Matters

This case establishes a critical limit on the enforcement and regulatory powers of Arizona homeowners associations, declaring that ad hoc fines are per se unreasonable. To lawfully impose monetary penalties, an HOA must adopt and document a written fine schedule before any violations occur and must be prepared to introduce the actual written policy into evidence in court rather than relying on oral testimony.

For homeowners, the case underscores the severe procedural consequences of failing to participate in trial court proceedings or raise timely objections, as unpreserved arguments are deemed waived on appeal. For legal practitioners, it serves as a reminder under the Best Evidence Rule that proving contractual damages or fine authority requires entering the original written policies directly into the record.

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Tierra Ranchos HOA v. Kitchukov: Reasonableness Standard and Burden of Proof in HOA Architectural Disputes

Posted on by

Architectural Control | A.R.S. § 12-2101 | 1 CA-CV 06-0474

This landmark case establishes how Arizona courts evaluate architectural control disputes between homeowners associations and their members. By adopting the Restatement approach, the court balanced the collective interests of the community against individual property rights. It highlights the heavy factual burden homeowners must meet when challenging a board’s aesthetic decisions.

Last updated June 29, 2026. Case: Tierra Ranchos, Arizona Court of Appeals No. 1 CA-CV 06-0474; reversed and remanded.

Download the appellate opinion Download the appellate mandate Download the record index Source-file index FAQ

Current-status note: This page is published as a litigation record based on the source files available through 2008-04-04. Later filings, appeals, mandates, settlements, or dismissal orders may change the posture; the linked court records control.

Scope note: This page analyzes the Arizona Court of Appeals’ landmark decision concerning the judicial review of homeowners association design-control powers and architectural committee decisions. This page is educational and is not legal advice.

The takeaway

The Arizona Court of Appeals held that a community association’s discretionary decisions regarding property modifications are subject to a standard of reasonableness, and the challenging homeowner bears the burden of proving that the association breached its duty. Because genuine issues of material fact existed regarding the reasonableness of the Association’s disapproval of the garage’s location and the uniqueness of the lot, summary judgment was inappropriate.

Case Participants

Petitioner Side

  • Tierra Ranchos Homeowners Association (Plaintiff)
    Arizona corporation and homeowners association for the Tierra Ranchos subdivision; Plaintiff/Counter-Defendant/Appellant in the action.
  • James E. Brown (Counsel)
    James E. Brown, P.C.
    Co-counsel representing Plaintiff/Counter-Defendant/Appellant Tierra Ranchos Homeowners Association.
  • Paul G. Ulrich (Counsel)
    Paul G. Ulrich, P.C.
    Co-counsel representing Plaintiff/Counter-Defendant/Appellant Tierra Ranchos Homeowners Association.
  • Pamela B. Petersen (Counsel)
    Paul G. Ulrich, P.C.
    Co-counsel representing Plaintiff/Counter-Defendant/Appellant Tierra Ranchos Homeowners Association.

Respondent Side

  • Todor Kitchukov (Defendant)
    Homeowner of Lot 6 in the Tierra Ranchos subdivision; Defendant/Counter-Claimant/Appellee in the action.
  • Mariana Kitchukov (Defendant)
    Homeowner of Lot 6 in the Tierra Ranchos subdivision, wife of Todor Kitchukov; Defendant/Counter-Claimant/Appellee in the action.
  • Roger C. Decker (Counsel)
    Udall, Shumway & Lyons, P.L.C.
    Attorney representing Defendants/Counter-Claimants/Appellees Todor and Mariana Kitchukov.
  • Bret A. Maidman (Counsel)
    Udall, Shumway & Lyons, P.L.C.
    Attorney representing Defendants/Counter-Claimants/Appellees Todor and Mariana Kitchukov.
  • Erin H. Walz (Counsel)
    Udall, Shumway & Lyons, P.L.C.
    Attorney representing Defendants/Counter-Claimants/Appellees Todor and Mariana Kitchukov.

Neutral Parties

  • Neal B. Thomas (Counsel)
    Attorney listed on the appellate court mandate and Supreme Court transmittal service lists.
  • Philip Hall (Judge)
    Arizona Court of Appeals, Division One
    Appellate judge who authored the Department D court opinion.
  • Diane M. Johnsen (Judge)
    Arizona Court of Appeals, Division One
    Presiding judge of Department D on the Arizona Court of Appeals, Division One.
  • Lawrence F. Winthrop (Judge)
    Arizona Court of Appeals, Division One
    Judge of Department D on the Arizona Court of Appeals, Division One.
  • Barry C. Schneider (Judge)
    Maricopa County Superior Court
    Trial court judge who presided over the case in the Maricopa County Superior Court.
  • Philip G. Urry (Other)
    Arizona Court of Appeals, Division One
    Clerk of the Court of Appeals, Division One.
  • Michael K. Jeanes (Other)
    Maricopa County Superior Court
    Clerk of the Maricopa County Superior Court.
  • Patricia Sanderman (Other)
    Maricopa County Superior Court
    Supervisor of the Appeals Section of the Maricopa County Superior Court.
  • Rachelle M. Resnick (Other)
    Arizona Supreme Court
    Clerk of the Arizona Supreme Court.
  • Mark Rolls (Other)
    Tierra Ranchos subdivision lot owner whose prior request for a relaxed five-foot setback was rejected.

What happened

In late 2003, Todor and Mariana Kitchukov submitted plans to the Tierra Ranchos Homeowners Association’s Architectural Committee to construct a guest house and detached garage on their lot. The plans, which proposed an eighty-two-foot setback from the north property line and a five-foot setback from the west property line, were approved. However, the Kitchukovs subsequently modified the plans to relocate both structures closer to the northern boundary without resubmitting them to the committee. After construction began, the committee requested they resubmit the modified plans. On December 17, 2004, the Kitchukovs submitted the new plans, which reduced the northern setback of the garage to between five and fifteen feet. The Architectural Committee approved the relocation of the guest house but disapproved the garage’s new location, stating a desire to remain consistent with other approved structures in the neighborhood.

Despite the disapproval and subsequent fines of five hundred dollars per day imposed by the Association, the Kitchukovs resumed construction of the garage in April 2005. In response, Tierra Ranchos filed a complaint in Maricopa County Superior Court seeking injunctive and declaratory relief, while the Kitchukovs counterclaimed to declare the disapproval arbitrary and the fines invalid. After appointing a Special Master to perform a site visit, the trial court granted summary judgment for the Kitchukovs, ruling that the garage minimized its impact on neighbors due to its unique location and that the committee’s decision was arbitrary. Tierra Ranchos appealed, leading the Arizona Court of Appeals to reverse the summary judgment and remand the case for trial.

Video overview of the case record

An AI-generated video overview of Tierra Ranchos HOA v. Kitchukov (1 CA-CV 06-0474). Architectural-review discretion is judged under the governing documents and record, not board preference alone. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the case record

An AI-generated audio deep dive walking through the court record and procedural posture in Tierra Ranchos HOA v. Kitchukov. Generated from the case filings; verify against the linked case records below.

Audio overview generated with Google NotebookLM from the case’s court filings.

Procedural timeline

2003-12-02

Architectural Committee approves Kitchukovs' initial plans in writing.

2004-12-17

Kitchukovs submit modified plans showing reduced northern setback for the detached garage.

2005-01-05

Architectural Committee disapproves modified location of the detached garage.

2005-04-01

Kitchukovs resume construction of the garage without approval, prompting daily fines.

2005-05-16

Tierra Ranchos files a complaint seeking injunctive and declaratory relief in Maricopa County Superior Court.

2006-01-27

Special Master files site visit report with the trial court.

2006-03-27

Trial court reconvenes oral argument on the parties' cross-motions for summary judgment.

2006-05-23

Trial court enters signed judgment and award of attorneys' fees in favor of the Kitchukovs.

2006-08-11

Tierra Ranchos pays appellant's filing fee in the Court of Appeals.

2007-05-30

Oral argument held; Court of Appeals takes the matter under advisement.

2007-08-09

Court of Appeals files opinion reversing summary judgment and remanding the case.

Download source
0000 Opinion
2007-08-27

Motion for Reconsideration is filed.

2007-11-14

Court of Appeals denies Motion for Reconsideration.

2007-12-12

Kitchukovs file a Petition for Review with the Arizona Supreme Court.

2008-03-18

Arizona Supreme Court denies the Petition for Review.

View all 11 source documents for this case ↓

Complete source-document index

This index contains 11 PDFs from the reviewed public source packet. Byte-identical copies are listed once. Files are ordered by the date and sequence in the public filename, and party filings or research materials are labeled separately from court rulings.

Source 4 2007-01-24

0000 Div 1 Inventory

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2007-01-24_004_0000-div-1-inventory.pdf
Source 6 2007-05-23

0000 Div 1 Under Advisement

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2007-05-23_006_0000-div-1-under-advisement.pdf
Source 7 2007-08-08

0000 Div 1 Westmead Package Letters

Type: Court/source PDF

Uploaded source file in the case record; read it in sequence with the surrounding filings to follow the procedure.

Download source file
2007-08-08_007_0000-div-1-westmead-package-letters.pdf
Source 8 2007-08-09

0000 Opinion

Type: Decision or judgment

Opinion holding that a community association's discretionary decisions regarding property modifications are subject to a standard of reasonableness, and the challenging homeowner bears the burden of proving that the association breached its duty.

Download source file
2007-08-09_008_0000-opinion.pdf

FAQ

Is the Tierra Ranchos v. Kitchukov decision binding precedent in Arizona?

Yes. This is a published, precedential opinion from the Arizona Court of Appeals, which means it serves as binding legal authority for all community associations, homeowners, and courts across Arizona.

What legal standard do Arizona courts use to review an HOA's architectural decisions?

Arizona courts apply a standard of reasonableness based on the Restatement (Third) of Property: Servitudes § 6.13. Under this standard, a homeowners association has a duty to treat members fairly and act reasonably when exercising its discretionary design-control and rulemaking powers.

Who bears the burden of proof in an Arizona HOA architectural dispute?

The homeowner challenging the HOA’s decision bears the legal burden of proving that the association breached its duty to act reasonably, fairly, and in good faith.

Can an architectural dispute between an HOA and a homeowner be easily resolved by summary judgment?

Generally, no. The Court of Appeals emphasized that determinations of reasonableness, aesthetic harmony, and visual impact are inherently factual questions. Because reasonable minds can differ on these elements, they must typically be resolved at trial by a trier of fact rather than through a pre-trial summary judgment.

What was the final procedural outcome of the appeal in this case?

The Court of Appeals reversed the trial court’s summary judgment and award of attorneys’ fees in favor of the homeowners. The case was remanded back to the Superior Court for further trial proceedings to resolve the disputed factual questions regarding the garage’s aesthetic impact and the reasonableness of the board’s decision.

Case Dossier

This dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.

Case Summary

Case ID / citation1 CA-CV 06-0474
Court / tribunalCourt of Appeals
Decision / key dateAugust 9, 2007
Judge / panelHon. Philip Hall, Hon. Diane M. Johnsen, Hon. Lawrence F. Winthrop
PartiesTierra Ranchos Homeowners Association (Plaintiff/Counter-Defendant/Appellant) v. Todor Kitchukov and Mariana Kitchukov (Defendants/Counter-Claimants/Appellees)
Governing law
  • A.R.S. § 12-2101
Topics
Architectural ReviewCC&RsFinesProcedure
Outcome / holding

The Arizona Court of Appeals held that a community association's discretionary decisions regarding property modifications are subject to a standard of reasonableness, and the challenging homeowner bears the burden of proving that the association breached its duty. Because genuine issues of material fact existed regarding the reasonableness of the Association's disapproval of the garage's location and the uniqueness of the lot, summary judgment was inappropriate.

Primary public sourceView hosted source opinion/order

Parties, Court, and Research Coverage

Reviewed source package11 PDFs
Step-by-step docket roadmap22 roadmap entries
Video overviewTierra Ranchos HOA v. Kitchukov
Study / briefing material1 section
FAQ / homeowner questions5 questions
Featured download links3 download links

Key Issues & Findings

Case Summary

This case arises from a dispute between the Tierra Ranchos Homeowners Association and homeowners Todor and Mariana Kitchukov over the placement of a detached garage. The Kitchukovs originally obtained approval for their plans but later altered the garage's setback from the north property line from eighty-two feet to between five and fifteen feet without resubmitting the plans. The Association's Architectural Committee disapproved of the relocated garage to preserve the openness of the subdivision and maintain uniform twenty-five-foot setbacks, subsequently fining the Kitchukovs five hundred dollars per day when they resumed construction. The Kitchukovs filed a counterclaim arguing the disapproval was arbitrary. The trial court granted summary judgment in favor of the Kitchukovs. The Arizona Court of Appeals reversed, adopting the Restatement (Third) of Property: Servitudes approach. The court held that community associations have a duty to act reasonably, and homeowners bear the burden of proving any breach of this duty. Because the reasonableness of the Association's decision and the uniqueness of the property involved disputed factual questions, summary judgment was inappropriate, and the case was remanded.

Key Issues & Findings

The Court of Appeals began by determining the appropriate standard of judicial review for a community association's discretionary decisions concerning property modifications. In doing so, the court rejected both the highly deferential "business judgment" rule and the strict objective "reasonableness" rule where the association bears the burden of proof. Instead, the court adopted the Restatement (Third) of Property: Servitudes § 6.13, which requires associations to act reasonably and treat members fairly, but places the burden of proving unreasonableness on the challenging member. The court noted this standard balances protecting collective community decision-making with safeguarding individual owners from improper management.

Applying this standard, the court concluded that summary judgment was improper because the reasonableness of the Association's decision involved disputed issues of material fact. The trial court's finding that the Kitchukov property was uniquely situated next to a canal and a ranchette, thereby minimizing the garage's visual impact, was contested. The Association presented evidence that five other lots bordered the ranchette, and that its Architectural Committee aimed to maintain a uniform twenty-five-foot setback to preserve the "open look and feel" of the luxury subdivision.

Furthermore, the court observed that whether moving the garage would make it more visible to other residents was highly disputed, with conflicting affidavits from the homeowners and committee members regarding its current visibility. Because issues of reasonableness and visual impact are generally questions of fact for a trier of fact to resolve, the court held that a jury or judge must decide the case on its merits. Finally, because the summary judgment was reversed, the court vacated the trial court's award of attorneys' fees to the Kitchukovs, deferring any fee award until the merits of the case are fully resolved.

Why It Matters

This decision establishes a critical legal framework in Arizona by adopting the Restatement (Third) of Property: Servitudes § 6.13 standard for HOA architectural disputes. For Arizona homeowners, it clarifies that while they are protected from arbitrary or capricious board actions, they bear the legal burden of proving that an HOA board or architectural committee acted unreasonably. For HOA boards and managers, the case emphasizes that discretionary design-control decisions must be executed reasonably, consistently, and in good faith to withstand judicial review. Boards should document the specific aesthetic or community-wide rationale behind their decisions to help demonstrate reasonableness if challenged.

For legal counsel, the ruling highlights that "reasonableness" in architectural and aesthetic disputes is generally a question of fact rather than a question of law. Consequently, parties cannot easily resolve these disputes through summary judgment, potentially leading to lengthy and costly trials. Attorneys must advise their clients-whether HOAs or homeowners-of the high financial risks of litigation in design-control matters and the strategic importance of developing a strong evidentiary record, including affidavits and consistent past enforcement practices, before entering court.

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