cc-and-rs Archives - Page 6 of 13 - Arizona HOA Transparency Project

Richard J. Murtland v. Astragal Condominium Unit Owners Association: Arizona HOA Superior Court Case Guide

Posted on July 1, 2026 by [email protected]

CC&R Amendments & Rental Restrictions | A.R.S. §§ 33-1227, 33-1260.01 | CV2015-091102

In this Maricopa County Superior Court case, condominium owners in the Scottsdale Astragal community argued that an amendment imposing a six-month minimum rental period changed the use to which their units were restricted and therefore required the unanimous consent of all unit owners under A.R.S. § 33-1227(D). The court held the rental restriction was instead subject to the 67% amendment rule of A.R.S. § 33-1227(A) as adopted by the Declaration, noted that A.R.S. § 33-1260.01(A) lets owners rent their units only “unless prohibited in the Declaration” and in accordance with the Declaration’s rental time period restrictions, found the six-month rule not unreasonable, and dismissed the case with prejudice.

Last updated July 1, 2026. Case: Richard J. Murtland, et al. v. Astragal Condominium Unit Owners Association, Maricopa County Superior Court No. CV2015-091102.

Download summary-judgment ruling

Current-status note: 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 Richard J. Murtland, et al. v. Astragal Condominium Unit Owners Association (Maricopa County Superior Court No. CV2015-091102) as a public Arizona superior-court HOA case guide. It is built from the court’s own filed minute entries, including the January 12, 2016 under-advisement ruling on the cross-motions for summary judgment (downloadable above) and the February 24, 2016 judgment entry; the procedural timeline below tracks each collected minute entry. Currency caveat: the court entered a final judgment under Rule 54(c) on February 24, 2016, stating that no further matters remained in the case, and the collected minute entries show no later activity — this page does not track whether any appeal was taken. Superior-court rulings bind only the parties and are not precedent. This page is educational and is not legal advice.

The takeaway

The superior court upheld the Association’s amendment imposing a six-month minimum rental period on all residences. It held the rental restriction was not subject to the unanimous-consent requirement of A.R.S. § 33-1227(D) — which applies to amendments that, among other things, change “the use to which any unit is restricted” — but instead to the 67% amendment rule of A.R.S. § 33-1227(A) as adopted by the Astragal Declaration. The court also pointed to A.R.S. § 33-1260.01(A), which lets a unit owner rent a unit only “unless prohibited in the Declaration” and in accordance with the Declaration’s rental time period restrictions. Finding the six-month restriction not unreasonable, with potential benefits for the community at large, and finding no due-process violation because the owners had ample notice the Declaration could be amended, the court denied the owners’ motion for summary judgment, granted the Association’s cross-motion, and dismissed the case with prejudice. Final judgment including the Association’s attorneys’ fees followed in February 2016.

Case Participants

Petitioner Side

Richard J. Murtland (Plaintiff)
Condominium owner in the Scottsdale Astragal community who challenged the six-month minimum rental amendment, contending he was damaged because he could not generate income through short-term rentals.
Barbara Bergfield (Plaintiff)
Co-plaintiff condominium owner. The court found both plaintiffs owned condominiums in the Scottsdale Astragal Condominium Unit Owners Association.
Erin Selene Iungerich (Counsel)
Substituted in as the plaintiffs' attorney of record in July 2015 (a substitution within the same firm as J. Roger Wood) and appeared for the plaintiffs at the January 8, 2016 oral argument.
J. Roger Wood (Counsel)
The plaintiffs' original attorney of record, replaced by Erin S. Iungerich in a within-firm substitution in July 2015; he also appeared for the plaintiffs at the January 8, 2016 oral argument.

Respondent Side

Astragal Condominium Unit Owners Association (Defendant)
Scottsdale condominium association whose owners voted, under the Declaration's 67% amendment provision, to impose a six-month minimum rental period on all residences; it prevailed on cross-summary judgment and recovered its attorneys' fees.
J. Gary Linder (Counsel)
Counsel for the Association, appearing on its behalf at the January 8, 2016 oral argument.

Neutral Parties

David K. Udall (Judge)
Maricopa County Superior Court judge who heard the cross-motions for summary judgment, issued the January 12, 2016 under-advisement ruling, and signed the February 2016 final judgment.

What happened

Astragal is a Scottsdale condominium community governed by a Declaration. The Declaration includes a provision allowing 67% of the Association’s owners to vote to change the governing Declaration. Using that mechanism, the Astragal Condominium Unit Owners Association amended its Declaration to impose a six-month minimum rental period on all of its residences whenever owners lease or rent their units to third parties.

Richard J. Murtland and Barbara Bergfield, both owners of condominiums in the community, sued the Association in Maricopa County Superior Court (CV2015-091102). Their position was that they had been damaged because the amendment prevented them from generating income through short-term rentals. In July 2015 the court granted a notice of substitution of counsel within the plaintiffs’ firm, allowing attorney Erin S. Iungerich to substitute for J. Roger Wood as attorney of record.

The dispute was resolved on paper rather than at trial. The plaintiffs moved for summary judgment and the Association filed a cross-motion for summary judgment; the court found that neither party disputed the significant facts. After full briefing, the court set oral argument, which Judge David K. Udall heard on January 8, 2016, with Iungerich and Wood appearing for the plaintiffs and J. Gary Linder for the Association. The court took the matter under advisement.

In an under-advisement ruling issued January 12, 2016, the court rejected the owners’ central statutory argument. A.R.S. § 33-1227(D) provides that, except as expressly permitted or required elsewhere in the Condominium Act, an amendment may not “change the boundaries of any unit, the allocated interest of the unit or the use to which any unit is restricted, in the absence of unanimous consent of the unit owners.” The court found the rental restriction was not subject to that unanimous-consent requirement; it was instead subject to the 67% rule in A.R.S. § 33-1227(A) as adopted by the Astragal Declaration. The court also noted A.R.S. § 33-1260.01(A), under which “[a] unit owner may use the unit owner’s unit as a rental property unless prohibited in the Declaration and shall use it in accordance with the Declaration’s rental time period restrictions.”

The court then distinguished the plaintiffs’ lead case, Dreamland Villa Community Club Inc. v. Raimey, 224 Ariz. 42, 226 P.3d 411 (App. 2010). In Dreamland, a community used a majority vote to force non-members of a homeowners association to become members subject to its CC&Rs, fees, and assessments. Here, by contrast, the plaintiffs were already members of the Astragal Association and, in the court’s words, “knew full well their Declaration potentially could be amended by a 67% majority vote at some point in the future.” The court further found the six-month leasing restriction “is not unreasonable, and it has potential benefits for the community at large,” and that the plaintiffs’ due-process rights were not violated because they had ample notice of a potential change in short-term lease restrictions when they purchased their properties. It denied the plaintiffs’ motion for summary judgment, granted the Association’s cross-motion, and dismissed the case with prejudice.

The endgame was brief. On February 24, 2016, after reviewing the Association’s application for attorneys’ fees and the plaintiffs’ response, the court granted the application and awarded judgment in favor of the Association, in accordance with a formal written judgment signed February 22 and entered February 24, 2016. The court noted that no further matters remained in the case, making it a final judgment under Rule 54(c) of the Arizona Rules of Civil Procedure.

Video overview of the ruling

An AI-generated video overview of Richard J. Murtland, et al. v. Astragal Condominium Unit Owners Association (CV2015-091102 (Maricopa County Superior Court)). A declaration amendment imposing a six-month minimum rental period was not subject to the unanimous-consent… 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 Richard J. Murtland, et al. v. Astragal Condominium Unit Owners Association. 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

Step Before suit The Astragal Condominium Unit Owners Association amends its Declaration — under the Declaration's provision allowing amendment by a 67% vote of owners — to impose a six-month minimum rental period on all residences leased or rented to third parties.

Step 2015 Condominium owners Richard J. Murtland and Barbara Bergfield sue the Association in Maricopa County Superior Court (CV2015-091102), claiming damages because they cannot generate income through short-term rentals.

Step 2015-07-06 The court grants the plaintiffs' notice of substitution of counsel (within firm), allowing Erin S. Iungerich to substitute for J. Roger Wood as attorney of record.

Step 2015-10-23 With the plaintiffs' motion for summary judgment and the Association's cross-motion fully briefed, the court sets oral argument for January 8, 2016 before Judge David K. Udall.

Step 2016-01-08 Oral argument is held on the cross-motions for summary judgment; the court takes the matter under advisement.

Step 2016-01-12 Under-advisement ruling: the rental restriction is not subject to A.R.S. § 33-1227(D)'s unanimous-consent requirement but to the 67% rule of § 33-1227(A) as adopted by the Declaration; Dreamland Villa is distinguished; the plaintiffs' motion is denied, the Association's cross-motion is granted, and the case is dismissed with prejudice.

Step 2016-02-24 The court grants the Association's application for attorneys' fees and awards judgment in its favor; the formal written judgment, signed February 22 and entered February 24, 2016, is a final judgment under Rule 54(c), with no further matters remaining.

Complete source-document index

This index contains 5 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 2015-07-06

Minute Entry

Type: Court order/minute entry

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

Download source file

2015-07-06_001_minute-entry.pdf

Source 2 2015-10-23

Oral Argument 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

2015-10-23_002_oral-argument-set.pdf

Source 3 2016-01-08

Minute Entry

Type: Court order/minute entry

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

Download source file

2016-01-08_003_minute-entry.pdf

Source 4 2016-01-12

Under Advisement Ruling

Type: Court order/minute entry

Under-advisement ruling denying the owners’ summary-judgment motion, granting the association summary judgment, and dismissing the rental-restriction challenge with prejudice.

Download source file

2016-01-12_004_under-advisement-ruling.pdf

Source 5 2016-02-24

Minute Entry

Type: Court order/minute entry

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

Download source file

2016-02-24_005_minute-entry.pdf

FAQ

Can a condominium association restrict short-term rentals by amending its CC&Rs?

In this case, yes. The Astragal Declaration allowed 67% of the Association’s owners to vote to change the governing Declaration, and the owners used that provision to impose a six-month minimum rental period on all residences. The court upheld the amendment, holding it was subject to the 67% rule of A.R.S. § 33-1227(A) as adopted by the Declaration, and found the six-month restriction was not unreasonable and had potential benefits for the community at large.

Didn't changing how units can be used require unanimous consent under A.R.S. § 33-1227(D)?

That was the owners’ central argument. Section 33-1227(D) requires the unanimous consent of unit owners for amendments that create or increase special declarant rights, increase the number of units, or change unit boundaries, allocated interests, or “the use to which any unit is restricted.” The court found the six-month rental restriction was not subject to that unanimous-consent requirement — it fell under the 67% amendment rule in A.R.S. § 33-1227(A) as the Astragal Declaration adopted it.

What role did A.R.S. § 33-1260.01 play in the ruling?

The court quoted A.R.S. § 33-1260.01(A): “A unit owner may use the unit owner’s unit as a rental property unless prohibited in the Declaration and shall use it in accordance with the Declaration’s rental time period restrictions.” In other words, the statute itself contemplates that a declaration can prohibit rentals or set rental time period restrictions — which is what the Astragal amendment did.

Why didn't Dreamland Villa v. Raimey help the owners?

The plaintiffs relied on Dreamland Villa Community Club Inc. v. Raimey, 224 Ariz. 42, 226 P.3d 411 (App. 2010), but the court found it distinguishable. In Dreamland, a community used a majority vote to require non-members of a homeowners association to become members subject to its CC&Rs, fees, and assessments. The Astragal plaintiffs, by contrast, were already members of the Association and knew when they bought their units that the Declaration could be amended by a 67% majority vote in the future. The court held the Dreamland holding did not apply.

Did the owners recover anything?

No. The court denied their motion for summary judgment, granted the Association’s cross-motion, and dismissed the case with prejudice on January 12, 2016. It then granted the Association’s application for attorneys’ fees and, on February 24, 2016, entered a final judgment in the Association’s favor under Rule 54(c).

Is this decision binding on other Arizona HOA disputes?

No. Superior-court rulings bind only the parties to the case and are not precedent. The case is still useful reading: it shows how a Maricopa County judge applied the Condominium Act’s amendment rules — the 67% supermajority in A.R.S. § 33-1227(A) versus the unanimous-consent triggers in § 33-1227(D) — to a rental-restriction amendment, and it illustrates the fee-shifting risk owners face when a challenge to a CC&R amendment fails.

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 / citation	CV2015-091102 (Maricopa County Superior Court)
Court / tribunal	Superior Court
Decision / key date	January 12, 2016
Judge / panel	Hon. David K. Udall
Parties	Richard J. Murtland and Barbara Bergfield (Plaintiffs, condominium owners) v. Astragal Condominium Unit Owners Association (Defendant)
Governing law	A.R.S. § 33-1227 A.R.S. § 33-1260.01
Topics	AmendmentsCC&RsCovenantsRental RestrictionsAttorney Fees
Outcome / holding	The superior court granted the association summary judgment on its cross-motion and dismissed the owners' case with prejudice, holding that a declaration amendment imposing a six-month minimum rental period was not subject to the unanimous-consent requirement of A.R.S. § 33-1227(D) but to the 67% amendment rule of A.R.S. § 33-1227(A) as adopted by the declaration, that the restriction was not unreasonable, and that the owners' due-process rights were not violated because they had ample notice the declaration could be amended.
Primary public source	View source opinion/order

Parties, Court, and Research Coverage

Reviewed source package	5 PDFs
Step-by-step docket roadmap	7 roadmap entries
Video overview	Richard J. Murtland, et al. v. Astragal Condominium Unit Owners Association
Study / briefing material	1 section
FAQ / homeowner questions	6 questions
Featured download links	1 download link

Key Issues & Findings

Case Summary

Two owners of condominiums in the Scottsdale Astragal community sued their association after the owners amended the Declaration, under its 67%-vote amendment provision, to impose a six-month minimum rental period on all residences leased or rented to third parties. The owners claimed they were damaged because they could not generate income through short-term rentals, and argued the amendment changed the use to which their units were restricted and therefore required unanimous consent under A.R.S. § 33-1227(D). On cross-motions for summary judgment, with the significant facts undisputed, the court held in a January 12, 2016 under-advisement ruling that the rental restriction was not subject to the unanimous-consent requirement but to the 67% rule of A.R.S. § 33-1227(A) as adopted by the Declaration. It distinguished Dreamland Villa Community Club Inc. v. Raimey, found the six-month restriction not unreasonable, denied the owners' motion, granted the association's cross-motion, and dismissed the case with prejudice. A final Rule 54(c) judgment awarding the association its attorneys' fees was entered February 24, 2016.

Key Issues & Findings

The court began from undisputed facts: both plaintiffs owned condominiums in the Scottsdale Astragal community, the Declaration allowed 67% of the Association's owners to vote to change the governing Declaration, and the Association used that provision to amend the Declaration to impose a six-month minimum rental period on all residences leased or rented to third parties. The plaintiffs claimed damage because they could not generate income through short-term rentals. The court set the statutory frame with A.R.S. § 33-1227(D), which — except as expressly permitted or required elsewhere in the Condominium Act — bars amendments that create or increase special declarant rights, increase the number of units, or change unit boundaries, allocated interests, or "the use to which any unit is restricted" absent the unanimous consent of the unit owners. It also quoted A.R.S. § 33-1260.01(A): a unit owner may use the unit as a rental property "unless prohibited in the Declaration and shall use it in accordance with the Declaration's rental time period restrictions." On that framework the court found the rental restriction was not subject to § 33-1227(D)'s unanimous-consent requirement; it was instead subject to the 67% rule in § 33-1227(A) as adopted by the Astragal Declaration.

The court then rejected the plaintiffs' reliance on Dreamland Villa Community Club Inc. v. Raimey, 224 Ariz. 42, 226 P.3d 411 (App. 2010). In Dreamland, a community used a majority vote to require non-members of a homeowners association to become members subject to its CC&Rs, fees, and assessments. The Astragal plaintiffs, by contrast, were already members of the Association and "knew full well their Declaration potentially could be amended by a 67% majority vote at some point in the future," so the Dreamland holding did not apply. The court further found the six-month leasing restriction not unreasonable, with potential benefits for the community at large, and found no due-process violation because the plaintiffs had ample notice of a potential change in short-term lease restrictions when they purchased their properties.

On those findings the court denied the plaintiffs' motion for summary judgment, granted judgment for the Association on its cross-motion, and dismissed the case with prejudice. After reviewing the Association's application for attorneys' fees and the plaintiffs' response, the court granted the application and awarded judgment in the Association's favor in a formal written judgment signed February 22 and entered February 24, 2016 — a final judgment under Rule 54(c), with no further matters remaining in the case.

Why It Matters

Short-term-rental restrictions are one of the most common flashpoints in Arizona condominium communities, and this case shows how a Maricopa County judge sorted the key statutory question: which amendments require every owner's consent under A.R.S. § 33-1227(D), and which need only the supermajority the declaration itself sets under § 33-1227(A). Owners challenging a rental-restriction amendment often assume that limiting rentals "changes the use to which the unit is restricted" and so demands unanimity; here the court held a six-month minimum rental period adopted by the Declaration's 67% vote was valid without unanimous consent.

The ruling also illustrates two recurring themes. First, courts weigh what buyers signed up for: because the plaintiffs bought into a community whose Declaration could be amended by a 67% vote, the court found they had ample notice that rental rules could change, and it distinguished Dreamland Villa, where a majority vote forced obligations onto people who had never joined the association. Second, losing a challenge like this can be expensive — the case ended with a final judgment awarding the association its attorneys' fees. As a superior-court decision, the ruling binds only the parties and is not precedent, but it is a clean, compact example of how these disputes get resolved on cross-motions for summary judgment.

← Back to Superior Court cases

Rene Bishop v. Sunland Village Community Association: Arizona HOA Superior Court Case Guide

Posted on July 1, 2026 by [email protected]

Assessments & CC&R Amendments | A.R.S. § 33-1803 | CV2016-051857

In this Maricopa County Superior Court case, a homeowner whose annual assessment payment rose from $328 to $425 after her community voted to charge every residential unit the same amount argued that the reallocation was invalid because the board did not fix the specific dollar amount before the vote, put it on the ballot, and implement it immediately. The court held that A.R.S. § 33-1803(A) requires only the approval of a majority of the association’s members — which the January 2015 vote supplied — and that no reasonable jury could find a material breach of the CC&Rs where the members received a fair vote on accurate, carefully explained ballot information.

Last updated July 1, 2026. Case: Rene Bishop v. Sunland Village Community Association, Maricopa County Superior Court No. CV2016-051857.

Download summary-judgment ruling

Current-status note: 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 Rene Bishop v. Sunland Village Community Association (Maricopa County Superior Court No. CV2016-051857) as a public Arizona superior-court HOA case guide. It is built from the court’s own filed minute entries, including the August 15, 2016 ruling dismissing the individually named defendants and the June 12, 2017 under-advisement summary-judgment ruling; the complete set of collected minute entries is available in the source-document index below. Currency caveat: after the June 2017 ruling the parties filed a joint notice of settlement, and a formal stipulated judgment against the plaintiff was signed and entered on August 28, 2017 — the final entry in the collected record. No appeal appears in these minute entries. Superior-court rulings bind only the parties and are not precedent. This page is educational and is not legal advice.

The takeaway

The superior court granted the Association summary judgment on every claim. Assuming without deciding that A.R.S. § 33-1803(A) and Article XI, Section 3 of the CC&Rs even applied to a reallocation of the existing assessment, the court held the 2015 resolution satisfied both: the statute’s plain language requires only “the approval of the majority of the members of the association,” which the HOA obtained when its members voted in January 2015 to charge every residential unit the same amount, and the statute says nothing about ballot wording, the timing of the vote relative to the effective date, or separate board approval of the ballot document. The breach-of-contract and good-faith claims failed because no jury could find a material breach — the members received a fair vote on ballot information that was neither incorrect nor materially misleading — and a refund remedy would have forced the Association to disgorge revenues it had already spent, an outcome tantamount to a forfeiture. The class-certification motion was denied as moot.

Case Participants

Petitioner Side

Rene Bishop (Plaintiff)
Sunland Village member who had benefitted from the old occupancy-based assessment formula; her annual payment rose about thirty percent, from $328 to $425, when the equalized allocation took effect in January 2016.
Jeffrey Miller (Counsel)
Counsel for Plaintiff Rene Bishop; appeared with her at the May 26, 2016 and April 14, 2017 oral arguments.

Respondent Side

Sunland Village Community Association (Defendant)
Homeowners' association that placed the 2014 board resolution amending the CC&Rs on the annual ballot, obtained majority member approval in January 2015, and prevailed on summary judgment on every claim.
Graydon Mathison (Defendant)
Individually named defendant; the court's August 15, 2016 ruling dismissed all claims against the defendants other than the Association.
Marianne Mathison (Defendant)
Individually named defendant; dismissed from the case by the August 15, 2016 ruling.
Jon Holter (Defendant)
Individually named defendant; dismissed from the case by the August 15, 2016 ruling.
Yvonne Holter (Defendant)
Individually named defendant; dismissed from the case by the August 15, 2016 ruling.
Kevin Tracy (Defendant)
Individually named defendant; dismissed from the case by the August 15, 2016 ruling.
Bonnie Tracy (Defendant)
Individually named defendant; dismissed from the case by the August 15, 2016 ruling.
Kathryn Trebus (Defendant)
Individually named defendant; dismissed from the case by the August 15, 2016 ruling.
Ron Trebus (Defendant)
Individually named defendant; dismissed from the case by the August 15, 2016 ruling.
Paul Meiners (Defendant)
Individually named defendant; dismissed from the case by the August 15, 2016 ruling.
Susan Meiners (Defendant)
Individually named defendant; dismissed from the case by the August 15, 2016 ruling.
Jim Matre (Defendant)
Individually named defendant; dismissed from the case by the August 15, 2016 ruling.
Bonnie Sims (Defendant)
Individually named defendant; dismissed from the case by the August 15, 2016 ruling.
Carl Sims (Defendant)
Individually named defendant; dismissed from the case by the August 15, 2016 ruling.
Augustus H. Shaw IV (Counsel)
Appeared on behalf of Defendants Sunland Village Community Association, et al., at the May 26, 2016 and April 14, 2017 oral arguments; listed in the case-party records as counsel for the individually named defendants.
Nicole Payne (Counsel)
Listed in the case-party records as counsel for Defendant Sunland Village Community Association; appears on the defense side of most minute-entry captions in the case.

Neutral Parties

John R. Hannah Jr. (Judge)
Maricopa County Superior Court judge who presided throughout the case; issued the August 2016 dismissal ruling and the June 2017 summary-judgment ruling, and signed the August 2017 stipulated judgment.

What happened

Sunland Village Community Association formerly allocated its annual assessment among members using a formula based in part on the number of residents in each unit. Rene Bishop was one of the members who benefitted from that formula — her share of the common expenses was less than what some of her neighbors paid. In late 2014 the Association’s board adopted a resolution placing on the annual ballot an amendment to the community’s CC&Rs under which every residential unit would pay the same amount regardless of the number of occupants. A “ballot document” explained the effect: using the 2015 budget, a single residential unit’s assessment would be about $414, meaning a single occupant would pay roughly $86 more per year (about $7 per month) and a two-occupant unit about $59 less. Copies went to every member who requested an early ballot and were placed in each voting booth. The members approved the resolution by majority vote in January 2015.

The reallocated assessment was collected for the first time in January 2016, and Bishop’s payment rose about thirty percent, from $328 to $425. She sued the Association and thirteen individually named defendants in Maricopa County Superior Court, alleging breach of the CC&Rs — Article XI, Section 3, which refers any per-unit regular assessment increase of more than ten percent to a vote of the members — along with breach of the implied duty of good faith and fair dealing and violation of A.R.S. § 33-1803, which bars a regular assessment more than twenty percent greater than the prior year’s without majority member approval. In her view, those rules required the board to determine her specific payment amount before the vote, to put that specific amount on the ballot, and to put the increase into effect immediately upon approval.

The early motion practice split. On May 26, 2016, after oral argument, Judge John R. Hannah Jr. denied the Association’s motion to dismiss, finding that homeowners who are not similarly situated to Bishop were proper parties who could appear and argue their position if they chose, but were not necessary parties. On August 15, 2016, however, the court dismissed all claims against the defendants other than the Association. The contract claim failed against the directors individually because they are not parties to the contract between the plaintiff and the Association, and the statutory claim failed because A.R.S. § 33-1803 limits the power of the association but creates no cause of action against individual directors. The court acknowledged that an HOA director can be personally liable for dishonest or bad-faith actions on behalf of the association, citing Albers v. Edelson Technology Partners L.P., but found the amended complaint alleged no specific facts supporting an inference of dishonesty or bad faith — a letter from the plaintiff’s lawyer opining that the directors’ actions were illegal was “not enough.”

In January 2017 the court referred the parties to a mandatory settlement conference and set oral argument on the Association’s motion for summary judgment and Bishop’s cross-motion for summary judgment; in March it added Bishop’s motion to certify the case as a class action to the same hearing. On April 14, 2017 the court heard argument on all three motions and took them under advisement.

The June 12, 2017 under-advisement ruling resolved the case. Assuming for the sake of discussion that A.R.S. § 33-1803(A) and Article XI, Section 3 applied at all — the Association had argued that merely reallocating the existing assessment is not an “increase,” a question the court found unnecessary to decide — the 2015 resolution satisfied both provisions. The statute’s plain language requires only “the approval of the majority of the members of the association,” which the HOA obtained, and it says nothing about the timing of the vote, the ballot language, or board approval of the ballot document; Bishop cited nothing in election law or Title 33 mandating the steps she said were required. The contract and good-faith claims failed for lack of any evidence of a material breach: the reasonable expectation under the CC&Rs was that a substantial assessment increase would be submitted to a fair vote of adequately informed members, which is what happened, and nothing in the ballot document was incorrect or materially misleading. The one-year delay before the new allocation took effect, if anything, benefitted Bishop, and the refund she sought would have forced the Association to disgorge revenues already received and spent — an outcome the court called tantamount to a forfeiture. The court granted the Association summary judgment, denied Bishop’s cross-motion, and denied the class-certification motion as moot.

The endgame was brief. On July 6, 2017 the court noted a joint notice of settlement and a stipulation extending the attorneys’-fees application deadline, placed the case on the dismissal calendar, and vacated all pending hearings. On August 28, 2017 the court approved and entered a formal stipulated judgment against Plaintiff Rene Bishop — the final entry in the collected minute-entry record.

Video overview of the ruling

An AI-generated video overview of Rene Bishop v. Sunland Village Community Association (CV2016-051857 (Maricopa County Superior Court)). Member vote validly approved equalizing annual assessments under A.R.S. § 33-1803 and the CC&Rs. 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 Rene Bishop v. Sunland Village Community Association. 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

Step 2014 (late) The Association's board adopts a resolution placing a CC&R amendment on the annual ballot to charge every residential unit the same assessment regardless of the number of occupants.

Step 2015-01 The members approve the resolution by majority vote; a ballot document had explained the estimated per-unit effect.

Step 2016-01 The reallocated assessment is collected for the first time; Bishop's payment rises about thirty percent, from $328 to $425.

Step 2016-03-24 Bishop sues the Association and thirteen individually named defendants in Maricopa County Superior Court (CV2016-051857; docket filing date).

Step 2016-04-04 The Association files a motion to dismiss.

Step 2016-05-26 After oral argument, the court denies the Association's motion to dismiss, finding homeowners not similarly situated to Bishop are proper but not necessary parties.

Step 2016-08-15 Ruling dismisses all claims against the defendants other than the Association: the directors are not parties to the CC&R contract, A.R.S. § 33-1803 creates no cause of action against individual directors, and no specific facts of dishonesty or bad faith are alleged.

Step 2017-01-17 The court orders a mandatory settlement conference through the ADR office and sets oral argument on the cross-motions for summary judgment.

Step 2017-03-31 On its own motion, the court adds Bishop's motion to certify a class action to the April 14 argument.

Step 2017-04-14 Oral argument on the class-certification motion and the cross-motions for summary judgment; all three are taken under advisement.

Step 2017-06-12 Under-advisement ruling grants the Association summary judgment on the statutory, contract, and good-faith claims, denies Bishop's cross-motion, and denies class certification as moot.

Type: Decision or judgment

Judgment entry approving and settling the formal stipulated judgment against Rene Bishop.

Download source file

2017-08-28_010_judgment-entered.pdf

FAQ

Why did one homeowner's assessment go up about thirty percent if the total assessment never increased?

Because the community changed how the same total was divided. Sunland Village formerly allocated its annual assessment using a formula based in part on how many residents lived in each unit, and Bishop was among those who paid less under it. The 2015 amendment made every residential unit pay the same amount, so members of smaller households — like Bishop, whose payment went from $328 to $425 — paid more while multi-occupant units paid less. The court emphasized that the 2015 resolution “merely reallocated the total annual assessment, without increasing it.”

Didn't A.R.S. § 33-1803 limit how much the assessment could rise?

The statute bars a regular assessment more than twenty percent greater than the prior year’s “without the approval of the majority of the members of the association.” The court held the HOA obtained exactly that approval when the members adopted the 2015 resolution, and that nothing more was required. The statute says nothing about the timing of the vote relative to the effective date, the ballot wording, or whether the board separately approved the ballot document — details Bishop tried to read into the statute without any textual basis. The court noted, without deciding, the Association’s argument that the statute might not apply at all to a mere reallocation.

Why did the breach-of-contract claim under the CC&Rs fail?

Because a contract claim requires a material breach, and the court found no evidence from which a jury could find one. The reasonable expectation under Article XI, Section 3 of the CC&Rs was that a substantial assessment increase would be submitted to a fair vote of adequately informed members — which happened. The ballot document carefully explained how the resolution would affect assessments and contained nothing incorrect or materially misleading. The court also weighed forfeiture: refunding the excess to everyone in Bishop’s position would force the HOA to disgorge revenues it had already received and spent, leaving it poorer than if the resolution had never passed.

Why were the individually named defendants dismissed?

In its August 15, 2016 ruling the court dismissed all claims against the defendants other than the Association. The directors individually are not parties to the contract between the homeowner and the Association, so the CC&R claim failed against them, and A.R.S. § 33-1803 limits the power of the association but does not create a cause of action against individual directors. While a director can be personally liable for dishonest or bad-faith actions on behalf of the association — the court cited Albers v. Edelson Technology Partners L.P. — the complaint alleged no specific facts supporting that inference; receiving a demand letter from the plaintiff’s lawyer calling the board’s actions illegal was “not enough.”

What happened to the class-action motion?

Bishop moved to certify the case as a class action, and the court heard argument on that motion together with the cross-motions for summary judgment on April 14, 2017. Because the June 12, 2017 ruling granted the Association summary judgment on every claim, the court denied the class-certification motion as moot — there were no surviving claims left to certify.

How did the case end, and is the ruling binding on other Arizona HOA disputes?

After the summary-judgment ruling, the parties filed a joint notice of settlement, and on August 28, 2017 the court approved and entered a stipulated judgment against Bishop — the last entry in the collected minute-entry record; no appeal appears in these minutes. Superior-court rulings bind only the parties and are not precedent, but the case remains useful reading on when a member vote satisfies A.R.S. § 33-1803, how courts assess materiality for CC&R breach claims, and the limits of personal liability for HOA directors.

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 / citation	CV2016-051857 (Maricopa County Superior Court)
Court / tribunal	Superior Court
Decision / key date	June 12, 2017
Judge / panel	Hon. John R. Hannah Jr.
Parties	Rene Bishop (Plaintiff, homeowner) v. Sunland Village Community Association and thirteen individually named defendants (Defendants)
Governing law	A.R.S. § 33-1803
Topics	AssessmentsCC&RsBoard GovernanceElections
Outcome / holding	The superior court granted the Association summary judgment on all claims, holding that — assuming A.R.S. § 33-1803(A) and Article XI, Section 3 of the CC&Rs applied to a reallocation of the existing assessment — the January 2015 majority member vote satisfied both provisions, that the statute's plain language requires nothing beyond majority member approval, and that no reasonable jury could find a material breach of the CC&Rs where the members received a fair vote on ballot information that was neither incorrect nor materially misleading; the class-certification motion was denied as moot.
Primary public source	View source opinion/order

Parties, Court, and Research Coverage

Reviewed source package	10 PDFs
Step-by-step docket roadmap	13 roadmap entries
Video overview	Rene Bishop v. Sunland Village Community Association
Study / briefing material	1 section
FAQ / homeowner questions	6 questions
Featured download links	1 download link

Key Issues & Findings

Case Summary

Sunland Village Community Association formerly allocated its annual assessment using a formula based in part on the number of residents in each unit. In late 2014 the board placed a CC&R amendment on the annual ballot equalizing the assessment across all residential units; a ballot document explained the estimated per-unit effect, and the members approved the amendment by majority vote in January 2015. When the reallocation took effect in January 2016, Rene Bishop's payment rose about thirty percent, from $328 to $425. She sued the Association and thirteen individually named defendants for breach of the CC&Rs (Article XI, Section 3), breach of the implied covenant of good faith and fair dealing, and violation of A.R.S. § 33-1803, arguing the board had to fix the specific amount before the vote, put it on the ballot, and implement it immediately upon approval. The court dismissed all claims against the individual defendants in August 2016, and in a June 12, 2017 under-advisement ruling granted the Association summary judgment on every claim, denied Bishop's cross-motion, and denied her class-certification motion as moot. After a joint notice of settlement, a stipulated judgment against Bishop was entered on August 28, 2017.

Key Issues & Findings

The court resolved the case in two written rulings. First, in its August 15, 2016 ruling, it dismissed all claims against the defendants other than the Association. The breach-of-contract claim failed against the directors individually because they are not parties to the contract between the plaintiff and the Association, and the statutory claim failed because A.R.S. § 33-1803 limits the power of the association but does not create a cause of action against individual directors. The court acknowledged, citing Albers v. Edelson Technology Partners L.P. and the Restatement (Third) of Property (Servitudes) § 6.14, that an HOA director can be personally liable for dishonest or bad-faith actions on behalf of the association, but found the amended complaint alleged no specific facts supporting an inference of dishonesty or bad faith — a letter from the plaintiff's lawyer opining that the directors' actions were illegal was "not enough."

On the merits, the June 12, 2017 under-advisement ruling began from the statute's plain language, citing North Valley Emergency Specialists, L.L.C. v. Santana for the rule that clear statutory text must be applied without resort to other interpretive methods. A.R.S. § 33-1803(A) requires "the approval of the majority of the members of the association" before a regular assessment more than twenty percent greater than the prior year's may be imposed. The HOA obtained that approval when the members adopted the 2015 resolution equalizing the allocation; nothing more was required. The statute says nothing about the timing of the members' approval relative to the effective date, the ballot language, or board approval of the ballot document, and Bishop cited nothing in election law or Title 33 mandating the steps she claimed were required. The court noted, without deciding, the Association's argument that the statute and the CC&R provision might not apply at all because the total assessment was merely reallocated, not increased.

The contract and good-faith claims failed on materiality. Citing Ry-Tan Construction and Foundation Development Corp. v. Loehmann's, the court explained that a material breach must defeat the very purpose of the contract, weighing the injured party's expected benefit against the breaching party's forfeiture. Bishop's reasonable expectation under Article XI, Section 3 was that a substantial assessment increase would be submitted to a fair vote of adequately informed members — which occurred. The ballot document carefully explained the resolution's effect on members' assessments and contained nothing incorrect or materially misleading, and no alleged irregularity fundamentally compromised the fairness of the election. The one-year delay before the new allocation took effect, if anything, benefitted Bishop. Finally, the refund she sought would force the HOA to disgorge revenues already received and spent, leaving it poorer than if the resolution had never passed — an outcome tantamount to a forfeiture. The court granted the Association summary judgment, denied the cross-motion, and denied class certification as moot; after a joint notice of settlement, a stipulated judgment against Bishop was entered on August 28, 2017.

Why It Matters

This case answers a recurring question in Arizona planned communities: what does it take to validly change who pays how much? The ruling shows that when an assessment change is put to the members and approved by a majority vote, A.R.S. § 33-1803(A) is satisfied — courts will not read extra procedural requirements (specific dollar amounts on the ballot, immediate implementation, separate board approval of ballot materials) into the statute's plain text. It also illustrates that a reallocation of the same total assessment is analytically different from an increase, a distinction the Association pressed and the court flagged without needing to decide.

For homeowners weighing a lawsuit over CC&R procedure, the decision is a caution on two fronts. Breach-of-contract claims against an association require a material breach — one that defeats the purpose of the provision — and courts will weigh the forfeiture a refund remedy would impose on the association and its other members. And claims against board members personally face a high bar: directors are not parties to the CC&R contract, A.R.S. § 33-1803 creates no cause of action against them individually, and personal liability requires specific facts showing dishonesty or bad faith, not just a demand letter calling the board's conduct illegal. As a superior-court decision, the ruling binds only the parties and is not precedent.

← Back to Superior Court cases

Merrick Avenue Management, LLC v. Troon Village Association: Arizona HOA Superior Court Case Guide

Posted on July 1, 2026 by [email protected]

Common Areas & Negligence | CC&R-Based Duty | CV2023-008406

In this Maricopa County Superior Court case, homeowners in a gated Scottsdale community — and a visitor who was shot in their driveway — alleged that homeowners associations, board members, and property companies were negligent because the community’s entrance gate was inoperative and left open. The court held that a recorded declaration’s allocation of common-area maintenance to an association creates a negligence duty running to owners and even their invitees, but granted the moving association and individual defendants summary judgment because the undisputed security-camera evidence would not let a jury reasonably infer that the shooter entered through the gate.

Last updated July 1, 2026. Case: Merrick Avenue Management, LLC v. Troon Village Association, et al., Maricopa County Superior Court No. CV2023-008406 (consolidated with CV2023-012338).

Download summary-judgment ruling

Current-status note: This page is published as a litigation record based on the source files available through 2025-06-19. 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 Merrick Avenue Management, LLC v. Troon Village Association, et al. (Maricopa County Superior Court No. CV2023-008406, consolidated with CV2023-012338) as a public Arizona superior-court HOA case guide. It is built from the court’s own filed minute entries, including the September 18 and October 12, 2023 rulings on motions to dismiss and the April 30, 2025 under-advisement ruling granting summary judgment; the complete set of collected minute entries is available in the source-document index below. Currency caveat: the collected minute entries run through June 19, 2025, when the case was still active — the April 2025 summary-judgment ruling resolved the claims against Troon Fairways Homeowners’ Association and the individual defendants only, Amcor’s own summary-judgment motion had been noted but not decided, claims involving Troon Village Association and Cornerstone Properties, Inc. remained, and default judgments against two consolidated defendants had just been entered. Later docket activity may not be reflected here. Superior-court rulings bind only the parties and are not precedent. This page is educational and is not legal advice.

The takeaway

In an April 30, 2025 under-advisement ruling, the court granted summary judgment to Troon Fairways Homeowners’ Association and all of the moving individual defendants on every count. Every claim rested on the allegation that the community’s inoperative gate at the Happy Valley Road entrance — left open at the direction of the board president — allowed the shooter in. Because undisputed security-camera evidence showed the shooter approaching from the north, fleeing to the north, and riding away on a bicycle from the north, and the plaintiffs admitted they had no evidence he came through the gate, the court concluded that no reasonable jury could infer gate entry, so causation failed. At the same time, the court held — following Gfeller v. Scottsdale Vista North Townhomes Association — that a declaration’s allocation of common-area maintenance to an association creates a negligence duty running to owners and their invitees. The defense won on causation, not on the absence of a duty.

Case Participants

Petitioner Side

Merrick Avenue Management, LLC (Plaintiff)
Lead plaintiff in CV2023-008406, suing alongside homeowners Edward Trenton Albarracin and Gretchen Marie Zamjahn on negligence claims arising from the open community gate.
Edward Trenton Albarracin (Plaintiff)
Co-owner of the Scottsdale residence where the February 18, 2023 shooting occurred; a plaintiff in this case and, per the January 2024 consolidation hearing, a defendant in Douglas Cordano's pre-consolidation case. Docketed in the party records as Trenton Edward Albarricin.
Gretchen Marie Zamjahn (Plaintiff)
Co-owner of the residence where the shooting occurred; a plaintiff in this case and, per the January 2024 consolidation hearing, a defendant in Douglas Cordano's pre-consolidation case.
Douglas J. Cordano (Consolidated Plaintiff)
Shooting victim. He went to the residence on February 18, 2023 to administer IV injections to the owners and was shot at close range in the driveway. His separate case, CV2023-012338, was consolidated into this case in January 2024; he later obtained default judgments against Patrick Gruchala and Carrie A. Luikens.
Cody J. Jess (Counsel)
Counsel listed in the minute-entry captions and party records for plaintiffs Merrick Avenue Management, LLC, Edward Trenton Albarracin, and Gretchen Marie Zamjahn.
Joshua Taylor Greer (Counsel)
Counsel appearing for the Merrick Avenue plaintiffs, including at the January 2024 consolidation hearing, the December 2024 order-to-show-cause hearing, and the April 30, 2025 summary-judgment argument.
Steven A. Cohen (Counsel)
Counsel of record for consolidated plaintiff Douglas J. Cordano throughout the collected minute entries.

Respondent Side

Troon Village Association (Defendant)
Association whose CC&Rs the complaint alleged apply to the plaintiffs' property and make it responsible in part for Common Areas, including the gates at issue. Its motion to dismiss (joint with Cornerstone) was denied in September 2023; it was not among the defendants granted summary judgment in April 2025.
Cornerstone Properties, Inc. (Defendant)
Co-defendant that moved to dismiss jointly with Troon Village Association; the motion was denied in September 2023. Not among the defendants granted summary judgment in April 2025.
Troon Fairways Homeowners Association (Defendant)
The association (called "the HOA" in the summary-judgment ruling) whose common areas include the Happy Valley Road entrance gate. It moved for summary judgment with the individual defendants on January 29, 2025 and prevailed on all counts on April 30, 2025; it withdrew its motions for entry of judgment and attorneys' fees in June 2025.
Jeffrey D. Kinney (Defendant)
Troon Fairways board president who, per the undisputed facts in the summary-judgment ruling, directed that the non-functioning gate be left open. One of only two individual defendants on the board on February 18, 2023, and the only one the evidence linked to the gate decision; summary judgment was nonetheless granted in his favor.
Pamela D. North (Defendant)
Individual defendant identified in the summary-judgment ruling as Mr. Kinney's spouse; granted summary judgment.
Shari L. Weintraub (Defendant)
The other individual defendant who served on the board on February 18, 2023; the court found no evidence linking her to any action. Listed pro per in the party records; granted summary judgment.
Sanford L. and Amy J. Friedman; Richard S. and Linda K. Jaffee; Eric and Melissa Mack Gold; Todd D. Weintraub (Defendants)
Individual defendants the court found had no facts tying them to the allegations; the ruling states summary judgment was appropriate for them regardless of the gate-entry analysis.
Amcor Property Professionals, Inc. (Defendant)
Defendant whose Rule 12(b)(6) motion to dismiss was denied in October 2023 without prejudice to a later summary-judgment motion; at the April 30, 2025 argument the court noted Amcor's own motion for summary judgment had been filed but it was not decided in that ruling.
MC General Contracting, LLC (Defendant)
Defendant in the consolidated litigation that appeared through counsel at the January 2024 consolidation hearing and the December 2024 order-to-show-cause hearing.
Patrick Gruchala (Defendant (consolidated))
Identified in the April 2025 summary-judgment ruling as the shooter. A pro per defendant in the consolidated case; Commissioner Albrecht entered a default judgment against him on June 19, 2025.
Carrie A. Luikens (Defendant (consolidated))
Pro per defendant in the consolidated case; ordered in December 2024 to appear for a deposition, and a default judgment was entered against her on June 19, 2025.
Quinten T. Cupps (Counsel)
Counsel of record for Troon Village Association and Cornerstone Properties, Inc. through the January 2024 consolidation hearing.
Christina N. Morgan (Counsel)
Attorney listed for Troon Village Association and Cornerstone Properties, Inc. in the party records and minute-entry captions from September 2024 onward.
DeeAnn Marie Barnes (Counsel)
Counsel appearing for Troon Village Association and Cornerstone Properties, Inc. at the December 2024 hearing and the April 30, 2025 summary-judgment argument.
Geoffrey G. Collins (Counsel)
Counsel of record for Troon Fairways Homeowners' Association and individual defendants Kinney, North, the Friedmans, the Jaffees, and the Golds.
Tessa Knueppel (Counsel)
Counsel of record for Amcor Property Professionals, Inc.

Neutral Parties

Jay Ryan Adleman (Judge)
Maricopa County Superior Court judge originally assigned to the case; disqualified himself in September 2023.
Katherine Cooper (Judge)
Maricopa County Superior Court judge who received the case on reassignment, denied the Troon Village/Cornerstone and Amcor motions to dismiss in 2023, and granted consolidation in January 2024.
Scott Minder (Judge)
Maricopa County Superior Court judge who assumed the calendar effective June 21, 2024 and issued the April 30, 2025 under-advisement ruling granting summary judgment.
Richard Albrecht (Commissioner)
Maricopa County Superior Court commissioner who handled the default proceedings and entered the June 19, 2025 default judgments against Patrick Gruchala and Carrie A. Luikens.

What happened

Edward Trenton Albarracin and Gretchen Marie Zamjahn own a home in Scottsdale inside the Troon Fairways Homeowners Association; the complaint alleged the property is also part of Troon Village Association and subject to its CC&Rs. Under the governing CC&Rs, the association is contractually obligated to maintain the common areas, including the gate at the community’s entrance off Happy Valley Road. On February 18, 2023, Douglas J. Cordano went to the residence to administer IV injections to the owners. Security cameras recorded Patrick Gruchala — who in the preceding days had entered a business deal regarding his own home with Mr. Albarracin or Mr. Albarracin’s company — walking southbound past the driveway, then running into the driveway and shooting into Mr. Cordano’s driver’s-side window eight times at point-blank range before fleeing north on foot and, moments later, riding a bicycle south on Alma School Road. It is undisputed that the entrance gate was not functioning that day, had been inoperative for days or weeks, and had been left open at the direction of board president Jeffrey Kinney.

Merrick Avenue Management, LLC, Mr. Albarracin, and Ms. Zamjahn sued Troon Village Association, Cornerstone Properties, Inc., Troon Fairways Homeowners’ Association, individual owners and board members, and Amcor Property Professionals, Inc. in Maricopa County Superior Court (CV2023-008406), asserting negligence claims that all related to the open gate. Mr. Cordano brought his own case (CV2023-012338), in which Mr. Albarracin and Ms. Zamjahn appeared as defendants. The originally assigned judge, Jay Ryan Adleman, disqualified himself in September 2023, and the case was reassigned to Judge Katherine Cooper. On September 18, 2023, Judge Cooper denied Troon Village Association and Cornerstone’s motion to dismiss, finding the complaint adequately alleged that the TVA CC&Rs are the source of a contractual duty to maintain Common Areas, including the gates. On October 12, 2023, she denied Amcor’s Rule 12(b)(6) motion as well, while noting the ruling did not decide that Amcor actually owed a duty and did not preclude a later summary-judgment motion. In January 2024, all counsel stipulated to consolidating the two cases under CV2023-008406.

Through 2024 the case moved through amended scheduling orders: the trial-setting conference originally set for November 2024 was reset several times, ultimately to August 12, 2025, and Judge Scott Minder assumed the calendar effective June 21, 2024. Meanwhile, default applications against consolidated defendants Patrick Gruchala and Carrie A. Luikens were referred to Commissioner Richard Albrecht, and at a December 2024 order-to-show-cause hearing Ms. Luikens was ordered to appear for a deposition the following January.

On January 29, 2025, Troon Fairways Homeowners’ Association and individual defendants Kinney, North, Friedman, Weintraub, Jaffe, and Gold moved for summary judgment on all counts. After oral argument on April 30, 2025, Judge Minder granted the motion the same day in an under-advisement ruling. The court explained that the inoperative gate underlay every claim, so the plaintiffs had to be able to show a jury that Mr. Gruchala entered the community through the Happy Valley Road gate. The undisputed video evidence pointed the other way: he approached the residence from the north, fled north after the shooting, and was recorded moments later on a bicycle on Alma School Road. The plaintiffs admitted they had no evidence he came through the gate and relied on a jury inference, but the court walked through the implausible alternative scenarios such an inference would require and concluded it was not reasonable on the record. A fallback theory — that the long-open gate let the shooter scout the area on an earlier date — was rejected as pure speculation.

The ruling is notable for what the defense did not win. On duty, the court followed Gfeller v. Scottsdale Vista North Townhomes Association and held that the CC&Rs’ allocation of common-area maintenance to the association creates a negligence duty — the association owed the owner plaintiffs, and their invitees, a duty to maintain the gate as part of the common areas. Citing Perez v. Circle K, the court refused the defendants’ invitation to define the duty narrowly as one to prevent an unforeseeable shooting, because that would intertwine duty with breach and causation. It rejected Mr. Cordano’s separate business-invitee theory against the association, since the association had not invited him for business purposes, but still extended the maintenance duty to residents’ invitees. On causation, the court said that if there had been a reasonable basis to conclude the shooter came through the gate, causation would have been for the jury — evidence suggested the association knew of prior security incidents potentially related to the open gate. And among the individual defendants, only Mr. Kinney and Shari Weintraub served on the board on the day of the shooting; the evidence linked only Mr. Kinney to the decision to leave the gate open, so all individual defendants except Mr. Kinney (and Ms. North as his spouse) would have been dismissed in any event. The court also observed that no complaint pleaded a negligent-infliction-of-emotional-distress claim.

The collected minute entries end in mid-2025 with the case still active. The Troon Fairways defendants filed motions for entry of judgment and attorneys’ fees in May 2025 but withdrew them in June. On June 19, 2025, after an evidentiary default hearing at which Mr. Cordano testified, Commissioner Albrecht entered default judgments against Mr. Gruchala and Ms. Luikens. The claims involving Troon Village Association, Cornerstone Properties, and Amcor — whose own summary-judgment motion had been noted at the April 30 argument — were not resolved in the collected minute entries.

Procedural timeline

Step 2023-02-18 Douglas Cordano is shot in the driveway of the Albarracin/Zamjahn residence inside the Troon Fairways community; the Happy Valley Road entrance gate is inoperative and has been left open at the board president's direction.

Step 2023 Merrick Avenue Management, LLC, Edward Trenton Albarracin, and Gretchen Marie Zamjahn sue Troon Village Association, Cornerstone Properties, Troon Fairways Homeowners' Association, individual defendants, and Amcor (CV2023-008406); Douglas Cordano files a separate case (CV2023-012338).

Step 2023-09-14 Judge Jay Ryan Adleman disqualifies himself; the case is reassigned to Judge Katherine Cooper.

Step 2023-09-18 Judge Cooper denies Troon Village Association and Cornerstone's motion to dismiss: the complaint adequately alleges the TVA CC&Rs as the source of a duty to maintain Common Areas, including the gates.

Step 2023-10-12 Judge Cooper denies Amcor's Rule 12(b)(6) motion to dismiss, without deciding that Amcor actually owed a duty and without precluding a later summary-judgment motion.

Step 2024-01-19 By stipulation of all counsel, CV2023-008406 and CV2023-012338 are consolidated under CV2023-008406.

Step 2024-03-04 to 2024-11-15 Scheduling orders are amended several times; the trial-setting conference is reset from November 2024 ultimately to August 12, 2025, and Judge Scott Minder assumes the calendar effective June 21, 2024.

Step 2024-10-04 Plaintiff's default applications against consolidated defendants Patrick Gruchala and Carrie A. Luikens are referred to Commissioner Richard Albrecht.

Step 2024-12-02 At an order-to-show-cause hearing on Cordano's failure-to-appear motion, Ms. Luikens is ordered to appear for a January deposition.

Step 2025-01-29 Troon Fairways Homeowners' Association and individual defendants Kinney, North, Friedman, Weintraub, Jaffe, and Gold move for summary judgment on all counts.

Step 2025-04-30 After oral argument, Judge Minder issues an under-advisement ruling granting the Troon Fairways defendants summary judgment on all counts: a jury could not reasonably infer the shooter entered through the gate, so causation fails, although the CC&Rs did create a duty to maintain the gate for owners and their invitees.

Type: Decision or judgment

Shows the filer trying to move the case forward because the opposing party had not timely appeared.

Download source file

2025-06-19_020_default-judgment.pdf

FAQ

Why did the case turn on how the shooter entered the community?

Because every negligence claim against the association defendants rested on the allegation that the inoperative, open gate at the Happy Valley Road entrance let the shooter in. The court held the plaintiffs therefore had to give a jury some basis to find that Mr. Gruchala actually entered through that gate. The undisputed security video showed him approaching the residence from the north, fleeing north, and riding a bicycle away on Alma School Road moments later; the plaintiffs admitted they had no evidence of gate entry. The court concluded a jury could not reasonably infer gate entry without setting aside that video evidence, so summary judgment was granted.

Did the court decide the HOA owed no duty to anyone?

No — the opposite. Following Gfeller v. Scottsdale Vista North Townhomes Association, the court held that the CC&Rs’ allocation of common-area maintenance to the association creates a duty for negligence purposes, and it extended that duty not only to owners but also to their invitees, like Mr. Cordano. Citing Perez v. Circle K, it refused to define the duty narrowly as one to prevent an unforeseeable shooting, because that would improperly mix duty with breach and causation. The association won on causation, not duty.

What happened to the individual board members and homeowners who were sued?

All of the moving individual defendants were granted summary judgment. The court also explained that most of them would have exited the case anyway: only Jeffrey Kinney and Shari Weintraub served on the board on the day of the shooting, the evidence linked only Mr. Kinney to the decision to leave the gate open, and no facts tied the Friedmans, the Jaffees, the Golds, or Todd Weintraub to the allegations at all. Neither plaintiff disputed that result.

Did the April 2025 ruling end the whole case?

No. It resolved all counts against Troon Fairways Homeowners’ Association and the moving individual defendants only. Troon Village Association and Cornerstone Properties — whose 2023 motion to dismiss had been denied — were not part of the motion, and Amcor’s own summary-judgment motion was noted at the April 30 argument but not decided in the ruling. In June 2025, default judgments were entered against consolidated defendants Patrick Gruchala and Carrie A. Luikens. The collected minute entries end on June 19, 2025 with the case still active.

What is an under-advisement ruling?

When an Arizona superior-court judge takes a motion “under advisement” after briefing or argument, the later written decision is filed as an under-advisement ruling in the court’s minute entries. The April 30, 2025 ruling in this case is that kind of decision: after the morning’s oral argument, the court issued a written order the same day setting out the undisputed facts, the summary-judgment standard, and its analysis of duty, causation, and the individual defendants. These rulings are public records available through the Clerk of the Superior Court.

Is this decision binding on other Arizona HOA disputes?

No. Superior-court rulings bind only the parties and are not precedent. The case is still useful reading for two reasons: it applies Gfeller to hold that CC&R maintenance obligations create a negligence duty running to owners and their invitees, and it shows that duty alone does not carry a case — a plaintiff must still produce evidence from which a jury could reasonably find that the association’s alleged failure actually caused the harm. Note also that the case remained active against other defendants when the collected minute entries end in June 2025, so later rulings may exist.

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 / citation	CV2023-008406 (Maricopa County Superior Court)
Court / tribunal	Superior Court
Decision / key date	April 30, 2025
Judge / panel	Hon. Scott Minder, Hon. Katherine Cooper
Parties	Merrick Avenue Management, LLC; Edward Trenton Albarracin; Gretchen Marie Zamjahn (Plaintiffs) and Douglas J. Cordano (Consolidated Plaintiff) v. Troon Village Association; Cornerstone Properties, Inc.; Troon Fairways Homeowners Association; Amcor Property Professionals, Inc.; individual board members and homeowners; and consolidated defendants (Defendants)
Topics	CC&RsBoard GovernanceProcedureNegligence
Outcome / holding	The superior court granted Troon Fairways Homeowners' Association and the moving individual defendants summary judgment on all counts because no reasonable jury could infer that the shooter entered the community through the Happy Valley Road gate — the central allegation underlying every claim — while holding that the CC&Rs' allocation of common-area maintenance to the association creates a negligence duty running to owners and their invitees under Gfeller, and that causation would otherwise have been a jury question.
Primary public source	View source opinion/order

Parties, Court, and Research Coverage

Reviewed source package	20 PDFs
Step-by-step docket roadmap	13 roadmap entries
Video overview	Temporarily unavailable while the expanded case record is reviewed
Study / briefing material	1 section
FAQ / homeowner questions	6 questions
Featured download links	1 download link

Key Issues & Findings

Case Summary

After Douglas Cordano was shot eight times at point-blank range on February 18, 2023 while parked in the driveway of a Scottsdale home inside the Troon Fairways community, the homeowners (with Merrick Avenue Management, LLC) and Cordano brought negligence suits against Troon Village Association, Cornerstone Properties, Troon Fairways Homeowners' Association, individual board members and homeowners, and Amcor Property Professionals. Every claim rested on the allegation that the community's entrance gate off Happy Valley Road — inoperative for days or weeks and left open at the direction of board president Jeffrey Kinney — allowed the shooter, Patrick Gruchala, into the community. In 2023 the court denied motions to dismiss by Troon Village/Cornerstone and Amcor, holding the complaint adequately alleged CC&R-based duties to maintain common areas including the gates, and the two cases were consolidated in January 2024. On April 30, 2025, the court granted the Troon Fairways defendants summary judgment on all counts: undisputed security video showed Gruchala approaching from and fleeing to the north, the plaintiffs admitted they had no evidence of gate entry, and a jury could not reasonably infer he came through the gate — so causation failed even though the court, following Gfeller, found the CC&Rs created a duty to maintain the gate for owners and their invitees. Default judgments against consolidated defendants Gruchala and Carrie Luikens were entered June 19, 2025; the case remained active against other defendants when the collected minute entries end.

Key Issues & Findings

Applying the Orme School standard, the court found the burden shifted to the plaintiffs once the defendants pointed to the undisputed security-camera evidence: Gruchala walked southbound on 104th Way from north of the residence, ran back north immediately after shooting Cordano, and was recorded moments later riding a bicycle southbound on Alma School Road. The plaintiffs admitted they had no evidence he came through the gate and relied entirely on a jury inference. The court walked through the alternative scenarios that inference would require — stashing or retrieving a bicycle over a wall, walking exposed along busy streets, passing the same cameras without triggering them — and concluded no jury could reasonably draw it, particularly given short walls and an ungated golf-cart opening beside the gate. A fallback theory that the long-open gate let Gruchala scout the area on an earlier day was rejected as pure speculation, noting he had searched the address online and no evidence showed any prior entry.

On duty, the court followed Gfeller v. Scottsdale Vista North Townhomes Association and held that the CC&Rs — which obligate the association to manage, maintain, repair, replace, and improve the Common Areas, with assessments used to promote the recreation, health, safety and welfare of the Owners — create a negligence duty to owner-members to maintain the common areas, including the entrance gate. Citing Perez v. Circle K, it refused to define the duty narrowly as one to prevent an unforeseeable targeted shooting, because framing duty that way would improperly intertwine it with breach and causation. The court rejected Cordano's business-invitee theory against the association, since the association had not invited him for any business purpose, but nonetheless found the maintenance duty ran to residents' invitees as well. Summary judgment therefore could not rest on absence of duty as to any plaintiff.

On causation, the court held the plaintiffs' inability to show gate entry was dispositive: without it, the open gate could not have caused any damages. It emphasized that if a reasonable basis for gate entry existed, causation would have gone to the jury, because evidence suggested the association knew of prior security incidents potentially related to the open gate and of the security value of a working gate. Separately, only Kinney and Shari Weintraub served on the board on the day of the shooting; evidence linked only Kinney to the decision to leave the gate open, so all individual defendants except Kinney (and North as his spouse) were entitled to judgment regardless — a result neither plaintiff disputed. The court also noted that no complaint pleaded negligent infliction of emotional distress and declined to limit the recoverable damages on the summary-judgment record. In June 2025 the Fairways defendants withdrew their motions for entry of judgment and attorneys' fees, and default judgments were entered against consolidated defendants Gruchala and Luikens.

Why It Matters

This case is a clear illustration of how Arizona courts treat an association's CC&R maintenance obligations in tort. Following Gfeller, the court held that when a declaration assigns common-area maintenance — here, a community entrance gate — to an association, that assignment creates a negligence duty for purposes of a lawsuit, and the duty runs not only to owner-members but to their invitees. Boards cannot assume that a criminal act by a third party, or the fact that an injury happened on a private driveway, erases the basic duty to maintain what the CC&Rs put in their charge; under Perez v. Circle K, those arguments go to breach and causation, not duty.

At the same time, the ruling shows that duty alone does not decide a case. The plaintiffs lost because they could not produce evidence from which a jury could reasonably find the open gate actually mattered — the shooter's recorded movements pointed to a different entry route, and speculation could not fill the gap. For individual board members, the decision is also instructive: directors who were not on the board at the relevant time, or whom no evidence ties to the challenged decision, were entitled to exit the case, while the board president who directed that the broken gate be left open was the one individual with potential exposure. As a superior-court decision it binds only these parties, and the case remained active against other defendants — including Troon Village Association, Cornerstone Properties, and Amcor Property Professionals — when the collected minute entries end in June 2025.

← Back to Superior Court cases

Pat Mah v. Canterra at Squaw Peak Condominium Association, Inc.: Arizona HOA Superior Court Case Guide

Posted on July 1, 2026 by [email protected]

Assessments & Records | A.R.S. §§ 33-1255, 33-1258 | CV2021-018876

In this Maricopa County Superior Court case, a condominium owner whose unit has no balcony argued she could not be assessed for balcony repairs and that the association mishandled her records requests. The court held the recorded Declaration—not the Condominium Act’s default rule—controls how limited-common-element costs are allocated, found the 2020 balcony work was repair rather than structural alteration, and rejected the records claim because A.R.S. § 33-1258 creates no private right of action and no specific withheld document was identified.

Last updated July 1, 2026. Case: Pat Mah v. Canterra at Squaw Peak Condominium Association, Inc., Maricopa County Superior Court No. CV2021-018876.

Download summary-judgment ruling

Current-status note: This page is published as a litigation record based on the source files available through 2026-05-18. Later filings, appeals, mandates, settlements, or dismissal orders may change the posture; the linked court records control.

Video/audio is held or de-promoted until its title and description clearly carry the same non-final/current-status posture as this page.

Scope note: This page covers Pat Mah v. Canterra at Squaw Peak Condominium Association, Inc. (Maricopa County Superior Court No. CV2021-018876) as a public Arizona superior-court HOA case guide. It is built from the court’s own filed minute entries, including the September 26, 2022 under-advisement ruling and the December 29, 2025 summary-judgment ruling; the complete set of collected minute entries is available in the source-document index below. Currency caveat: final judgment was entered April 30, 2026 and the homeowner’s appeal was pending when this page was last updated — the outcome could change on appeal. Superior-court rulings bind only the parties and are not precedent. This page is educational and is not legal advice.

The takeaway

The superior court granted the Association summary judgment on every remaining claim. It held that the recorded Declaration makes maintenance, repair, and replacement of limited common elements such as balconies a Common Expense shared equally by all unit owners — a permissible deviation from the default allocation in A.R.S. § 33-1255(C) — and that the 2020 balcony work was repair rather than a structural alteration requiring a special assessment. The homeowner’s records claim failed because A.R.S. § 33-1258 does not create a private right of action and, in any event, most requested documents had already been disclosed and no specific improperly withheld document was identified.

Case Participants

Petitioner Side

Pat Mah (Plaintiff)
Condominium owner in the Canterra at Squaw Peak community whose unit has patios rather than a balcony; represented by counsel for most of the case and self-represented by the time of the 2025 summary-judgment ruling.
John Sud (Counsel)
Counsel for Plaintiff Pat Mah in the early phase of the case, including the 2022 motion-to-dismiss briefing and argument.
Andrew B. Turk (Counsel)
Counsel appearing for Plaintiff Pat Mah at the September 26, 2022 oral argument.
Jonathan A. Dessaules (Counsel)
Dessaules Law Group
Counsel of record for Plaintiff Pat Mah during the 2024 amended-complaint phase.

Respondent Side

Canterra at Squaw Peak Condominium Association, Inc. (Defendant)
Phoenix condominium association that assessed the 2020 balcony repair work to all unit owners as a Common Expense and prevailed on every claim.
Henry Nickolas Eicher (Counsel)
Counsel of record for the Association through the motion-to-dismiss and amended-complaint phases.
Jonathan D. Ebertshauser (Counsel)
Counsel appearing for the Association, including at the September 26, 2022 oral argument.
Kyle Banfield (Counsel)
Counsel for the Association in the summary-judgment and post-judgment phase, including the fee application.

Neutral Parties

Scott A. Blaney (Judge)
Maricopa County Superior Court judge who issued the September 2022 under-advisement ruling, the December 2025 summary-judgment ruling, and the post-judgment rulings.
Margaret R. Mahoney (Judge)
Maricopa County Superior Court judge assigned earlier in the case; set the 2022 oral argument on the partial motion to dismiss.

What happened

Canterra at Squaw Peak is a Phoenix condominium community governed by a recorded Declaration (CC&Rs). Some units have balconies and walk decks, which the Declaration classifies as limited common elements serving a single unit; other units, including Pat Mah’s, have patios instead. Under Section 4.2 of the Declaration, the Association is responsible for maintaining, repairing, and replacing the limited common elements as part of the community’s Common Expenses, and under Section 6.7 all regular assessments are fixed at an equal amount for every unit.

In 2020 the Association performed repair work on certain balconies and walk decks and assessed the cost against all unit owners. Mah sued the Association in late 2021. She sought a declaratory judgment that she could not be assessed for balcony repairs — arguing that a 1996 amendment to the CC&Rs limited those costs to the owners who actually benefit from the balconies — and that the work should have been funded through a special assessment on the benefited owners.

The Association moved to dismiss. After full briefing and an oral argument at which the court struck improper attachments from both sides, Judge Scott Blaney issued an under-advisement ruling on September 26, 2022. The court found that the Declaration allocates limited-common-element repair costs to all owners as a Common Expense, and that this deviation from the default allocation in A.R.S. § 33-1255(C) — which would assign such costs to the benefited units — is expressly permitted by the statute’s opening qualifier, “[u]nless otherwise provided for in the declaration.” The court dismissed the 1996-amendment claim and ordered the parties to meet and confer or mediate.

In February 2024 the court granted Mah leave to file a first amended complaint, but only in part: the dismissed 1996-amendment claim could not be revived. The amended complaint asserted declaratory relief, breach of contract, breach of the implied covenant of good faith and fair dealing, and a claim that the Association violated A.R.S. § 33-1258 by failing to allow reasonable access to association records. The claims rested on allegations that the Association paid for balcony repairs without authority, owed her reimbursement for window and door maintenance, and used improper budgeting to create a “slush fund.”

The Association moved for summary judgment on all remaining claims. After an October 29, 2025 oral argument, the court granted the motion in a December 29, 2025 under-advisement ruling. It found the 2020 balcony work was “repair, maintenance, and/or replacement” rather than a structural alteration or addition, so the Association was authorized to pay for it with regular assessments; the contract and good-faith claims failed for the same reasons, and the slush-fund arguments were “confusing and unsupported by the record.” On the records claim, the court held that A.R.S. § 33-1258 does not create a private right of action, that most of the requested documents had already been disclosed before and during the litigation, and that Mah identified no specific document the Association improperly withheld.

The endgame ran through spring 2026. The court denied Mah’s Rule 60(b)(6) motion for relief in January, rejected her attempt to supplement it in February, and on April 30, 2026 entered a formal judgment against her that included the Association’s attorneys’ fees and costs. In May 2026 the court denied her motion for a stay pending appeal and to set a bond, and her appeal remained pending when this page was last updated.

Procedural timeline

Step 2020 The Association performs repair work on certain balconies and walk decks and assesses the cost to all unit owners as a Common Expense.

Step 2021 (late) Pat Mah sues the Association in Maricopa County Superior Court (CV2021-018876), seeking a declaratory judgment on the balcony-repair assessments.

Step 2022-01-26 The Association files a partial motion to dismiss.

Step 2022-09-26 After oral argument, the court issues an under-advisement ruling: the Declaration controls the allocation of limited-common-element costs, the 1996-amendment claim is dismissed, and the parties are ordered to meet and confer or mediate.

Step 2024-02-13 The court grants Mah leave to file a first amended complaint in part; the dismissed 1996-amendment claim may not be revived.

Step 2025-10-29 Oral argument on the Association's motion for summary judgment.

Step 2025-12-29 Under-advisement ruling grants the Association summary judgment on all remaining claims, including the A.R.S. § 33-1258 records claim, and orders Rule 54(c) judgment procedures.

Step 2026-01-20 The court denies Mah's Rule 60(b)(6) motion for relief; her later motion to supplement it is rejected in February.

Type: Court order/minute entry

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

Download source file

2026-05-18_024_ruling.pdf

FAQ

Why did a unit owner without a balcony have to help pay for balcony repairs?

Because the community’s recorded Declaration says so. The Declaration classifies balconies and walk decks as limited common elements, makes their maintenance, repair, and replacement a Common Expense of the Association, and fixes regular assessments at an equal amount for every unit. The court held that this allocation is a permissible deviation from A.R.S. § 33-1255(C), whose default rule assigning limited-common-element costs to the benefited units applies only “[u]nless otherwise provided for in the declaration.”

What is the difference between a regular assessment and a special assessment in this case?

Under the Declaration, ordinary maintenance, repair, and replacement of common and limited common elements is funded through equal regular assessments on all units. Structural alterations or additions to a building require prior approval by a majority of owners and first mortgagees and are funded through a special assessment allocated by ownership interest. The case turned in part on this line: the court found the 2020 balcony work was repair, maintenance, and/or replacement — not a structural alteration — so regular assessments were the proper funding mechanism.

Why did the records claim under A.R.S. § 33-1258 fail?

Two independent reasons. First, the court held the statute does not create a private right of action for an allegedly aggrieved party. Second, the Association showed through the record that most of the documents Mah sought had already been disclosed to her before and during the litigation, and her remaining requests were vague, broad categories; she identified no specific document that was improperly withheld.

What is an under-advisement ruling?

When an Arizona superior-court judge takes a motion “under advisement” after briefing or argument, the later written decision is filed as an under-advisement ruling in the court’s minute entries. These rulings are the trial court’s substantive written decisions — the September 2022 and December 2025 rulings in this case each set out findings, legal analysis, and orders — and they are public records available through the Clerk of the Superior Court.

Did the homeowner recover anything?

No. The court dismissed her core declaratory theory in 2022, granted the Association summary judgment on every remaining claim in December 2025, denied her Rule 60(b)(6) motion, and in April 2026 entered judgment against her that included the Association’s attorneys’ fees and costs. In May 2026 the court also denied her request for a stay pending appeal.

Is this decision binding on other Arizona HOA disputes?

No. Superior-court rulings bind only the parties to the case and are not precedent. The case is still useful reading: it shows how courts apply a condominium declaration’s cost-allocation provisions over the Condominium Act’s defaults, and what a records-access claim under A.R.S. § 33-1258 needs to survive. Note that an appeal was pending when this page was last updated, so the outcome could still change.

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 / citation	CV2021-018876 (Maricopa County Superior Court)
Court / tribunal	Superior Court
Decision / key date	December 29, 2025
Judge / panel	Hon. Scott A. Blaney, Hon. Margaret R. Mahoney
Parties	Pat Mah (Plaintiff, condominium owner) v. Canterra at Squaw Peak Condominium Association, Inc. (Defendant)
Governing law	A.R.S. § 33-1255 A.R.S. § 33-1258
Topics	AssessmentsCC&RsRecords RequestsProcedureAttorney Fees
Outcome / holding	The superior court granted the association summary judgment on all remaining claims, holding that the Declaration permissibly allocates limited-common-element repair costs to all unit owners as an equal Common Expense notwithstanding A.R.S. § 33-1255(C)'s default rule, that the 2020 balcony work was repair rather than a structural alteration requiring a special assessment, and that the A.R.S. § 33-1258 records claim failed both because the statute creates no private right of action and because no specific improperly withheld document was identified.
Primary public source	View source opinion/order

Parties, Court, and Research Coverage

Reviewed source package	24 PDFs
Step-by-step docket roadmap	10 roadmap entries
Video overview	Temporarily unavailable while the expanded case record is reviewed
Study / briefing material	1 section
FAQ / homeowner questions	6 questions
Featured download links	1 download link

Key Issues & Findings

Case Summary

A Phoenix condominium owner whose unit has patios rather than a balcony sued her association after it assessed 2020 balcony and walk-deck repair costs against all unit owners. She sought a declaratory judgment that a 1996 CC&R amendment limited those costs to the owners who benefit from the balconies, and later added claims for breach of contract, breach of the implied covenant, and denial of records access under A.R.S. § 33-1258. In a September 2022 under-advisement ruling the court dismissed the core declaratory theory, holding that the recorded Declaration makes limited-common-element repairs a Common Expense shared equally by all units and that this deviation from A.R.S. § 33-1255(C)'s default allocation is expressly permitted by the statute. In a December 2025 under-advisement ruling the court granted the association summary judgment on all remaining claims, finding the 2020 balcony work was repair rather than structural alteration and that the records claim failed because the statute creates no private right of action and no specific withheld document was identified. Judgment with attorneys' fees and costs was entered against the owner in April 2026; her appeal is pending.

Key Issues & Findings

On the assessment question, the court's September 2022 under-advisement ruling walked through the Declaration: Section 3.5 classifies balconies and walk decks as limited common elements; Section 4.2 makes their maintenance, repair, and replacement part of the Common Expenses the association bears; and Section 6.7 fixes all regular assessments at an equal amount for every unit. The court acknowledged that the Arizona Condominium Act's default rule, A.R.S. § 33-1255(C), would allocate limited-common-element expenses to the units that benefit from their exclusive use, but held the Declaration's different allocation controls because the statute applies only "[u]nless otherwise provided for in the declaration." On that basis the court dismissed the claim that a 1996 amendment restricted balcony-repair costs to benefited owners, adopting the association's interpretation of the Declaration and declining to reach its res judicata and collateral estoppel defenses.

At summary judgment in December 2025, the court found the association had established through competent record evidence — and the court's own earlier rulings — that the 2020 balcony work was repair, maintenance, and/or replacement rather than a structural alteration or addition, so the association was authorized to fund it through regular assessments rather than the special-assessment mechanism reserved for structural changes. The declaratory, breach-of-contract, and implied-covenant claims all failed on that same footing, and the court found the plaintiff's "slush fund" budgeting arguments confusing and unsupported by the record.

On the records claim, the court gave two independent grounds: A.R.S. § 33-1258 does not create a private right of action for an allegedly aggrieved party, and the record showed most of the requested documents had already been disclosed before and during the litigation while the remaining requests were vague, broad categories. Because the plaintiff identified no specific document improperly withheld, summary judgment was warranted. The court then denied her Rule 60(b)(6) motion for lack of good cause, entered judgment including the association's attorneys' fees and costs in April 2026, and denied a stay pending appeal in May 2026.

Why It Matters

This case is a clear, recent illustration of two recurring Arizona condominium fights. First, cost allocation: owners often assume the Condominium Act guarantees that only the units that benefit from a limited common element — a balcony, a walk deck — pay for its upkeep. The ruling shows that A.R.S. § 33-1255(C) is only a default; a recorded declaration that spreads those costs equally across all units controls, even for owners whose units lack the element entirely.

Second, records access: the court held A.R.S. § 33-1258 creates no private right of action and that a records plaintiff must point to specific documents actually withheld — broad categorical demands, or requests for material already produced, will not survive summary judgment. The decision also shows the financial risk of pressing weak claims: the owner ended the case with a judgment against her for the association's attorneys' fees and costs. As a superior-court decision it binds only the parties, and an appeal was pending as of mid-2026.

← Back to Superior Court cases

In re Shawn Burgueno, Debtor: HOA Court Case Guide

Posted on July 1, 2026 by [email protected]

Bankruptcy & Assessments | 11 U.S.C. § 523(a)(16) | 451 B.R. 1 (Bankr. D. Ariz. 2011)

In this 2011 published decision, Bankruptcy Judge Randolph J. Haines held that an individual Chapter 11 debtor stays personally liable for post-petition homeowner- and condominium-association assessments—and the CC&R-based attorneys’ fees for collecting them—for as long as the debtor retains title, because neither stay relief nor plan confirmation transfers legal title.

Federal court | 451 B.R. 1 (Bankr. D. Ariz. 2011) | Decided 2011-05-26

Read the source opinion FAQ

Scope note: This educational page summarizes In re Shawn Burgueno, Debtor, a Federal court HOA-related authority. It is not legal advice.

Source note: The page keeps the public source URL but does not provide a local ruling PDF because no source PDF passed the file gate.

This federal bankruptcy authority was issued by the U.S. Bankruptcy Court for the District of Arizona.

The takeaway

Post-petition homeowners’ and condominium-association assessments, and the attorneys’ fees incurred in collecting them, remain nondischargeable under 11 U.S.C. § 523(a)(16) for as long as the debtor or trustee retains a legal, equitable, or possessory ownership interest in the property. Neither relief from the automatic stay nor confirmation of a Chapter 11 plan transfers legal title or terminates that liability, which continues until title actually transfers—by foreclosure, a quit-claim deed, or a plan transfer. Attorneys’ fees provided for in the CC&Rs qualify as a nondischargeable “fee” within § 523(a)(16).

Case Participants

Petitioner Side

Shawn Burgueno (Debtor)
Individual Chapter 11 debtor and record owner of the Scottsdale condominium; moved to have the associations' post-petition claims limited to their allowed pre-petition amounts under the confirmed plan; motion denied.
D. Lamar Hawkins (Counsel)
Aiken Schenk Hawkins & Ricciardi PC
Counsel for the debtor, Shawn Burgueno; the only attorney named in the published opinion.

Respondent Side

Edge at Grayhawk Condominium Association (Creditor)
Condominium association that continued to bill the debtor for post-petition assessments; argued the plan could not discharge those assessments while the debtor held title. Its counsel is not identified in the published opinion, so no Carpenter Hazlewood/CHDB Law connection could be verified.
Grayhawk Community Association (Creditor)
Master community association that likewise sought post-petition assessments and collection attorneys' fees. Its counsel is not identified in the published opinion, so no Carpenter Hazlewood/CHDB Law connection could be verified.

Neutral Parties

Randolph J. Haines (Judge)
United States Bankruptcy Judge for the District of Arizona; authored the Opinion and Order denying discharge of the post-petition HOA fees and attorneys' fees.

What happened

Shawn Burgueno, a Phoenix-area loan officer, filed an individual Chapter 11 case (No. 2:09-bk-10375-RJH) in the U.S. Bankruptcy Court for the District of Arizona in 2009. His scheduled assets included his home, a vacant lot, and five single-family residential investment properties; according to his schedules, all of the investment properties were worth less than the debts secured by them. One investment property was a condominium in Scottsdale, subject to assessments by two associations—the Edge at Grayhawk Condominium Association and the Grayhawk Community Association.

In February 2010, Burgueno stipulated with Wells Fargo Bank for relief from the automatic stay so the bank could immediately foreclose on the condominium. The stipulation terminated the § 362 automatic stay as to the bank’s interest in the property and waived the 14-day stay under Bankruptcy Rule 4001(a)(3). The bankruptcy court approved the stipulation on March 8, 2010.

Burgueno’s Chapter 11 plan was confirmed in August 2010. The order confirming the plan expressly incorporated the Wells Fargo stipulation for treatment of the bank’s claim regarding the Scottsdale condominium.

Despite obtaining stay relief, Wells Fargo did not conduct a foreclosure or trustee’s sale of the condominium for more than a year. In the meantime, the two associations continued to bill Burgueno for post-petition assessments, which totaled roughly $8,000 by April 2011.

In April 2011, Burgueno filed motions seeking orders determining that the associations were bound by his confirmed plan and therefore limited to their allowed pre-petition claims. The associations responded that the plan neither did nor could discharge their post-petition assessments so long as Burgueno held legal title, and that neither the stipulated stay relief nor the plan confirmation terminated that title.

On May 26, 2011, Bankruptcy Judge Randolph J. Haines denied the motion. He held the post-petition assessments—and the attorneys’ fees incurred in collecting them—nondischargeable under §§ 523(a)(16) and 1141(d) for as long as Burgueno retained a legal, equitable, or possessory interest in the unit. Because the associations had not requested a money judgment and the dispute was a contested matter rather than an adversary proceeding, the court entered no judgment but denied the debtor’s motion to compel plan compliance.

This published bankruptcy decision is frequently cited for the proposition that an individual debtor’s personal liability for homeowner- and condominium-association assessments does not stop at the bankruptcy filing or at stay relief—it continues, post-petition, for as long as the debtor holds legal title to the unit. For Arizona associations, it confirms that assessments (and the CC&R-based attorneys’ fees for collecting them) keep accruing as nondischargeable obligations until title actually transfers by foreclosure or conveyance, even where the lender has obtained relief from the automatic stay but delays foreclosing. For owners and their counsel, the case is a cautionary lesson about “surrendering” investment property in bankruptcy: giving up possession and consenting to foreclosure does not, by itself, cut off assessment liability. To stop the clock, the debtor generally must affirmatively transfer title—through a court-approved quit-claim deed under § 363(b)(1) or a plan transfer under § 1123(a)(5)(B)—rather than wait for a lender that may take a year or more to foreclose. The decision also underscores that a Chapter 11 plan will not discharge post-petition HOA fees unless it says so expressly and the association fails to object.

Video overview of the case record

AI-generated video overview of In re Shawn Burgueno, Debtor. This is a bankruptcy assessment-liability authority. The written opinion and linked source note control.

The written case page and linked court records are the controlling source for legal posture and accuracy.

Listen: audio deep dive on the case record

AI-generated audio deep dive for In re Shawn Burgueno, Debtor. This is a bankruptcy assessment-liability authority. The written opinion and linked source note control.

Use the linked court records and written page for the exact legal posture.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

FAQ

What did In re Burgueno decide?

The bankruptcy court held that an individual Chapter 11 debtor’s personal liability for post-petition homeowner- and condominium-association assessments—and the attorneys’ fees incurred in collecting them—remains nondischargeable under 11 U.S.C. § 523(a)(16) for as long as the debtor retains a legal, equitable, or possessory ownership interest in the unit. Neither relief from the automatic stay nor confirmation of the debtor’s plan ended that liability, so the court denied the debtor’s motion to limit the associations to their pre-petition claims.

What is 11 U.S.C. § 523(a)(16)?

Section 523(a)(16) is a bankruptcy discharge exception for homeowner- and condominium-association fees and assessments. Before the 2005 BAPCPA amendments it applied only while the debtor occupied the property, but the amendment expanded it so that it applies regardless of possession as long as the debtor or the trustee retains a legal or equitable ownership interest in the unit. The exception covers not only “assessments” but also “a fee,” which the court read to include collection attorneys’ fees.

Why didn't stay relief or plan confirmation end the debtor's liability for HOA fees?

The court explained that nothing in § 523(a)(16) or § 1141 terminates post-petition liability when a debtor obtains stay relief or confirms a plan, because neither event transfers legal title. Stay relief may signal that the debtor has surrendered possession, but the debtor remained the record owner of the condominium. As long as the debtor holds title, post-petition assessments continue to accrue as nondischargeable obligations.

Are an association's attorneys' fees for collecting assessments also nondischargeable?

Yes. The court held that attorneys’ fees the associations incurred collecting the assessments are themselves a nondischargeable “fee” under § 523(a)(16). The CC&Rs—which Arizona treats as a contract—expressly provided for collection fees, and even a narrow reading of the discharge exception could not exclude attorneys’ fees. The court relied on Ninth Circuit BAP and Seventh Circuit authority reaching the same conclusion.

How could the debtor have stopped the post-petition assessments from accruing?

The court explained that to end the liability the debtor would have had to transfer legal title rather than wait for the lender to foreclose. Options included conveying the unit by quit-claim deed—an out-of-the-ordinary-course transaction requiring a motion, notice, hearing, and court order under § 363(b)(1)—or transferring title through the plan under § 1123(a)(5)(B). Until title actually passed, the nondischargeable liability continued.

Is this decision binding precedent?

It is a published, precedential decision of the U.S. Bankruptcy Court for the District of Arizona (451 B.R. 1 (Bankr. D. Ariz. 2011)), authored by Bankruptcy Judge Randolph J. Haines. As a trial-level bankruptcy opinion it binds the parties and is persuasive, frequently cited authority on the post-petition, nondischargeable nature of HOA and condominium assessments; it is not an appellate decision, so other courts are not strictly bound by it.

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 / citation	451 B.R. 1 (Bankr. D. Ariz. 2011)
Court / tribunal	Federal Court
Decision / key date	May 26, 2011
Judge / panel	Haines
Parties	Edge at Grayhawk Condominium Association and Grayhawk Community Association (Creditors/Respondents) v. Shawn Burgueno (Debtor/Movant)
Governing law	11 U.S.C. § 523(a)(16) 11 U.S.C. § 1141(d) (incl. (a), (d)(2), (d)(5)) 11 U.S.C. § 1129(a)(9)(A) 11 U.S.C. § 362 (automatic stay) 11 U.S.C. § 363(b)(1) 11 U.S.C. § 1123(a)(5)(B) A.R.S. § 12-341.01 (attorneys' fees) A.R.S. § 33-401(B) A.R.S. § 33-402 (quit-claim deed) Fed. R. Bankr. P. 4001(a)(3) Fed. R. Bankr. P. 7001(6)
Topics	BankruptcyLiensAssessmentsAttorney FeesCC&RsForeclosure
Outcome / holding	Post-petition homeowners' and condominium-association assessments, and the attorneys' fees incurred in collecting them, remain nondischargeable under 11 U.S.C. § 523(a)(16) for as long as the debtor or trustee retains a legal, equitable, or possessory ownership interest in the property. Neither relief from the automatic stay nor confirmation of a Chapter 11 plan transfers legal title or terminates that liability, which continues until title actually transfers—by foreclosure, a quit-claim deed, or a plan transfer. Attorneys' fees provided for in the CC&Rs qualify as a nondischargeable "fee" within § 523(a)(16).
Primary public source	View source opinion/order

Parties, Court, and Research Coverage

Reviewed source package	1 other source file
Step-by-step docket roadmap	6 roadmap entries
Video overview	In re Shawn Burgueno, Debtor – 451 B.R. 1
Study / briefing material	1 section
FAQ / homeowner questions	6 questions
Featured download links	0 download links

Key Issues & Findings

Case Summary

In re Burgueno arose from the individual Chapter 11 bankruptcy of Shawn Burgueno, a Phoenix-area loan officer whose properties included a Scottsdale condominium subject to assessments by two associations, the Edge at Grayhawk Condominium Association and the Grayhawk Community Association. In February 2010 Burgueno stipulated to relief from the automatic stay so that Wells Fargo Bank could foreclose on the condominium, and his Chapter 11 plan was confirmed in August 2010. Wells Fargo, however, did not foreclose for more than a year, and during that time the two associations kept billing Burgueno for post-petition assessments, which reached roughly $8,000 by April 2011. Burgueno moved for orders declaring that the associations were bound by his confirmed plan and limited to their allowed pre-petition claims. Bankruptcy Judge Randolph J. Haines denied the motion. Applying 11 U.S.C. § 523(a)(16) as expanded by the 2005 BAPCPA amendments, the court held that an individual debtor's personal liability for homeowner- and condominium-association fees continues after the bankruptcy filing for as long as the debtor or trustee retains a legal, equitable, or possessory ownership interest in the unit. Because neither stay relief nor plan confirmation transfers legal title, Burgueno remained personally liable until title actually passed—by foreclosure, a quit-claim deed, or a plan transfer of title. The court further held that the attorneys' fees the associations incurred in collecting the assessments are themselves a nondischargeable "fee" under § 523(a)(16), supported both by the CC&Rs (a contract under Arizona law) and A.R.S. § 12-341.01. Because the associations sought no money judgment and this was not an adversary proceeding, the court entered no judgment but denied the debtor's motion to compel plan compliance.

Key Issues & Findings

The court began with the plain language of § 523(a)(16). Before the 2005 BAPCPA amendments the exception applied only when the debtor occupied the property; as the Ninth Circuit Bankruptcy Appellate Panel explained in In re Foster, the amendment expanded the exception so it applies regardless of possession, so long as the debtor or trustee retains a legal, equitable, or possessory ownership interest in the unit. Nothing in § 523(a)(16) or § 1141 terminates that post-petition liability upon stay relief or plan confirmation.

The court acknowledged that post-petition, pre-confirmation fees are administrative expenses that § 1129(a)(9)(A) requires be paid in full on the effective date, but that plan treatment did not apply here because the associations filed neither a proof of claim nor an application for allowance of an administrative expense; and § 1141(d)(2) makes clear that individual Chapter 11 debtors are not discharged from debts excepted under § 523. Had the plan expressly discharged the post-petition fees and the associations failed to object despite adequate notice, that provision would be res judicata under the Supreme Court's decision in Espinosa—but this plan did not so provide, and the court cautioned that the "specter" of Rule 11 penalties should deter bad-faith attempts to discharge otherwise nondischargeable debts by such an ambush.

The core problem was that the bank failed to foreclose for more than a year after obtaining stay relief—an increasingly frequent occurrence. While stay relief may signal the debtor's surrender of possession, surrender does not terminate legal title; following the Massachusetts bankruptcy court in In re Ames, the court held that post-petition assessments remain nondischargeable while the debtor remains the record owner. To end the liability, the debtor would have to convey title—by quit-claim deed (an out-of-the-ordinary-course transaction requiring a motion, notice, hearing, and order under § 363(b)(1)) or by a plan transfer of title under § 1123(a)(5)(B).

On attorneys' fees, the court noted that Arizona treats the CC&Rs as a contract (Pinetop Lakes Ass'n v. Hatch), and that while A.R.S. § 12-341.01 might not apply because the contract was not the central issue in the litigation, the CC&Rs themselves expressly provided for collection fees. Moreover, § 523(a)(16) excepts not only "assessments" but also "a fee," and even a narrow construction of the exception cannot exclude attorneys' fees; the Ninth Circuit BAP (Foster) and the Seventh Circuit (In re Busson-Sokolik) reached the same conclusion. The court therefore held the fees nondischargeable but declined to enter a money judgment, because the associations had not requested one and the matter was a contested motion rather than an adversary proceeding under Bankruptcy Rule 7001(6).

Why It Matters

This published bankruptcy decision is frequently cited for the proposition that an individual debtor's personal liability for homeowner- and condominium-association assessments does not stop at the bankruptcy filing or at stay relief—it continues, post-petition, for as long as the debtor holds legal title to the unit. For Arizona associations, it confirms that assessments (and the CC&R-based attorneys' fees for collecting them) keep accruing as nondischargeable obligations until title actually transfers by foreclosure or conveyance, even where the lender has obtained relief from the automatic stay but delays foreclosing.

For owners and their counsel, the case is a cautionary lesson about "surrendering" investment property in bankruptcy: giving up possession and consenting to foreclosure does not, by itself, cut off assessment liability. To stop the clock, the debtor generally must affirmatively transfer title—through a court-approved quit-claim deed under § 363(b)(1) or a plan transfer under § 1123(a)(5)(B)—rather than wait for a lender that may take a year or more to foreclose. The decision also underscores that a Chapter 11 plan will not discharge post-petition HOA fees unless it says so expressly and the association fails to object.

← Back to Federal Court cases

Bergeson v. West Frontier Condominiums HOA, Inc.: HOA Court Case Guide

Posted on July 1, 2026 by [email protected]

Arizona HOA Case Summary

Division Two held that a condominium association was entitled to judgment as a matter of law on a wrongful-death claim because there was no evidence it created, knew of, or had reason to suspect the hidden ceiling-wiring defect that caused a fatal fire.

Arizona Court of Appeals | No. 2 CA-CV 2019-0117 (Ariz. Ct. App. Oct. 30, 2020) (mem. decision) | Decided 2020-10-30 | Nonprecedential / citation-limited

Download the ruling PDF FAQ

Current-status note: This page is published as a litigation record based on the source files available through 2026-07-01. Later filings, appeals, mandates, settlements, or dismissal orders may change the posture; the linked court records control.

Scope note: This educational page summarizes Bergeson v. West Frontier Condominiums HOA, Inc., a Arizona Court of Appeals HOA-related authority. It is not legal advice.

The takeaway

The condominium association was entitled to judgment as a matter of law on the wrongful-death negligence claim. The plaintiffs presented no evidence that the association created the defective ceiling wiring, had actual or constructive notice of it, or was vicariously liable for another’s negligence. The trial court reversibly erred by admitting irrelevant and unfairly prejudicial testimony about unrelated kitchen code violations discovered only after the fire, and by giving an erroneous non-delegable-duty (Ft. Lowell) instruction, which together permitted the jury to hold the association to a standard approaching strict liability contrary to Arizona premises-liability law. Judgment vacated and remanded for entry of judgment in favor of the association.

Case Participants

Petitioner Side

West Frontier Condominiums HOA, Inc. (Defendant/Appellant)
Arizona corporation; the unit owners' association for the Frontier Condominiums in Payson.
Lynn M. Allen (Counsel)
Tyson & Mendes LLP (Phoenix)
Counsel for Defendant/Appellant. Carpenter Hazlewood / CHDB was not involved in this case.

Respondent Side

Christopher Bo Bergeson (Plaintiff/Appellee)
Surviving child of Lynn Renee Bergeson; wrongful-death plaintiff.
Amy Lynn Bergeson (Plaintiff/Appellee)
Surviving child of Lynn Renee Bergeson; wrongful-death plaintiff.
Arthur E. Lloyd (Counsel)
Lloyd Law Group of Arizona P.L.L.C. (Payson)
Counsel for Plaintiffs/Appellees.
Stanley G. Feldman (Counsel)
Miller, Pitt, Feldman & McAnally P.C. (Tucson)
Counsel for Plaintiffs/Appellees.
Timothy P. Stackhouse (Counsel)
Miller, Pitt, Feldman & McAnally P.C. (Tucson)
Counsel for Plaintiffs/Appellees.

Neutral Parties

Philip G. Espinosa (Judge)
Authored the memorandum decision.
Sean E. Eppich (Judge)
Presiding Judge; concurred.
Peter J. Eckerstrom (Judge)
Concurred.

What happened

West Frontier Condominiums HOA, Inc. is the unit owners’ association for the Frontier Condominiums in Payson, Arizona. In October 2005, unit owners David and Joan Levengood rented their unit to Lynn Bergeson.

In 2006, with the Levengoods’ permission but without seeking permission from or notifying the association, Lynn replaced an overhead light fixture in the unit with a ceiling fan. In 2007, a smoldering fire ignited in the wiring above the fan, producing lethal levels of carbon monoxide that killed Lynn.

Lynn’s children, Christopher and Amy Bergeson, brought a wrongful-death action against the Levengoods and West Frontier, claiming the association had negligently failed to use reasonable care to discover and fix faulty wiring above the ceiling fan. The Court of Appeals twice reversed the trial court’s entry of summary judgment in the association’s favor, and in 2019 the case proceeded to a jury trial on the negligence claim.

The jury returned a verdict for the Bergesons, apportioning seventy-five percent of the fault to West Frontier and twenty-five percent to non-parties. After the trial court entered an amended judgment for the Bergesons, the association filed a renewed motion for judgment as a matter of law or, alternatively, for a new trial. The trial court denied the motions, and West Frontier appealed.

On appeal, the association argued the plaintiffs had presented no evidence it breached any duty to Lynn. The court agreed there was no evidence the association created the defect: the units were built in the mid-1980s and the electrical work passed Town of Payson inspection in 1984-85, years before the HOA incorporated in March 2007. The plaintiffs’ ‘mere continuation’ successor-liability theory, resting solely on A.R. Teeters & Associates, failed because they showed no assumption of liabilities and no genuine continuation, and even a continuation would not have created a defect that pre-dated the association.

On the question of notice, the court held the trial court abused its discretion by admitting testimony about kitchen code violations (missing nail plates, exposed wiring behind the range, and a misplaced outlet) that were discovered only after the fire. That evidence was irrelevant and unfairly prejudicial: it was unrelated to the living-room ceiling wiring, one of the plaintiffs’ own experts admitted the kitchen defects had nothing to do with the fire, and it allowed the jury to impute notice the association never had. A duty to inspect arises only when there is a reason to suspect a defect, and no prior similar incident provided one.

Finally, the court held the non-delegable-duty instruction (drawn from Ft. Lowell-NSS Ltd. Partnership v. Kelly and Restatement (Second) of Torts Section 422) was erroneous. It reached ‘third parties’ who were neither employees nor independent contractors, no association employee or contractor was shown to be negligent, and the doctrine could not be used to make the association liable for a unit owner’s own alteration of a fixture the recorded Declaration made the owner responsible to maintain. Because the irrelevant evidence and the flawed instruction together held the association to a standard approaching strict liability, the court vacated the judgment and remanded for entry of judgment in favor of West Frontier.

This decision illustrates that an Arizona condominium association is not an insurer of its members’ safety. Under the Arizona Condominium Act (A.R.S. Section 33-1247(A)) and Martinez v. Woodmar IV Condominiums Homeowners Ass’n, an association owes a duty of reasonable care to maintain the common elements, but ordinary premises-liability principles still require proof that the association created a dangerous condition, actually knew of it, or should have discovered it in the exercise of reasonable care. A duty to inspect arises only when the association has some reason to suspect a latent defect. The court refused to let a tragic outcome, standing alone, convert that reasonable-care standard into strict liability for a hidden wiring condition the association had no way to know about, especially where a unit owner altered a fixture without the notice or permission the recorded Declaration required. Just as important, this is an unpublished memorandum decision. Under Ariz. R. Sup. Ct. 111(c) and Ariz. R. Civ. App. P. 28, it does not create legal precedent and may be cited only as authorized by rule; it is persuasive at most, not binding. It is useful as an educational illustration of how notice, relevance, and non-delegable-duty doctrines are applied to a condominium association, and of the practical value of the maintenance-and-alteration allocations in a condominium Declaration, but it should not be treated as a controlling statement of Arizona law. It also shows how evidentiary and jury-instruction errors can independently require reversal even after a jury verdict.

Video overview of the case record

An AI-generated video overview of Bergeson v. West Frontier Condominiums HOA, Inc. (No. 2 CA-CV 2019-0117 (Ariz. Ct. App. Oct. 30, 2020) (mem. decision)). The condominium association was entitled to judgment as a matter of law on the wrongful-death negligence claim. 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 Bergeson v. West Frontier Condominiums HOA, Inc.. Generated from the case filings; verify against the linked case records below.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 13 2021-05-04

The Arizona Supreme Court denies the petition for review (per docket minutes).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Download source

2026-07-01_001_opinion.pdf

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 2026-07-01

Opinion

Type: Decision or judgment

Opinion holding that the condominium association was entitled to judgment as a matter of law on the wrongful-death negligence claim.

Download source file

2026-07-01_001_opinion.pdf

FAQ

What was Bergeson v. West Frontier Condominiums HOA, Inc. about?

A tenant, Lynn Bergeson, died in 2007 from carbon monoxide caused by a smoldering fire in the wiring above a ceiling fan she had installed in her rented condominium. Her children sued the condominium association for wrongful death, claiming it negligently failed to discover and repair faulty ceiling wiring. The case reached the Arizona Court of Appeals after a jury found the association 75% at fault.

Why did the Court of Appeals rule in favor of the HOA?

The court held the association was entitled to judgment as a matter of law because the plaintiffs presented no evidence it created the wiring defect, actually knew of it, or had any reason to suspect it. The building’s electrical work had passed inspection in 1984-85, years before the HOA incorporated in 2007, and nothing gave the association a reason to open ceilings or walls to look for hidden defects.

Is this decision binding precedent in Arizona?

No. It is an unpublished memorandum decision. Under Ariz. R. Sup. Ct. 111(c) and Ariz. R. Civ. App. P. 28, it does not create legal precedent and may be cited only as authorized by the rules. It is at most persuasive authority and is presented here for educational purposes only.

What duty does an Arizona condominium association owe for common-area maintenance?

Under A.R.S. Section 33-1247(A) and Martinez v. Woodmar IV Condominiums Homeowners Ass’n, an association owes a duty of reasonable care to maintain the common elements. That is not strict liability: a plaintiff must still prove the association created a dangerous condition, actually knew of it, or should have discovered it through reasonable care, and a duty to inspect arises only when there is a reason to suspect a defect.

Why was the kitchen code-violation evidence a problem at trial?

The kitchen violations (missing nail plates, exposed wiring behind the range, and a misplaced outlet) were discovered only after the fire and were unrelated to the living-room ceiling wiring; one of the plaintiffs’ own experts admitted they had nothing to do with the fire. The Court of Appeals held that admitting this irrelevant and unfairly prejudicial testimony, which let the jury infer notice the association never had, was reversible error.

What is a 'non-delegable duty,' and why didn't it apply here?

A non-delegable duty is one a premises owner keeps responsibility for even when it properly hires an independent contractor to do the work. The court held the jury instruction was erroneous because no association employee or independent contractor was shown to be negligent, and the doctrine cannot be stretched to make an association liable for a unit owner’s own alteration of a fixture the recorded Declaration made the owner responsible to maintain.

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 / citation	No. 2 CA-CV 2019-0117 (Ariz. Ct. App. Oct. 30, 2020) (mem. decision)
Court / tribunal	Court of Appeals
Decision / key date	October 30, 2020
Judge / panel	Philip G. Espinosa (author), Sean E. Eppich (Presiding), Peter J. Eckerstrom
Parties	Surviving children of a deceased tenant (wrongful-death plaintiffs/appellees) v. the condominium unit owners' association (defendant/appellant).
Governing law	A.R.S. Section 33-1247(A) (Arizona Condominium Act) A.R.S. Section 12-120.21(A)(1) A.R.S. Section 12-2101(A)(1), (5)(a) Restatement (Second) of Torts Sections 343, 422
Topics	ProcedureCC&RsCovenants
Outcome / holding	The condominium association was entitled to judgment as a matter of law on the wrongful-death negligence claim. The plaintiffs presented no evidence that the association created the defective ceiling wiring, had actual or constructive notice of it, or was vicariously liable for another's negligence. The trial court reversibly erred by admitting irrelevant and unfairly prejudicial testimony about unrelated kitchen code violations discovered only after the fire, and by giving an erroneous non-delegable-duty (Ft. Lowell) instruction, which together permitted the jury to hold the association to a standard approaching strict liability contrary to Arizona premises-liability law. Judgment vacated and remanded for entry of judgment in favor of the association.
Primary public source	View source opinion/order

Parties, Court, and Research Coverage

Reviewed source package	1 PDF
Step-by-step docket roadmap	13 roadmap entries
Video overview	Bergeson v. West Frontier Condominiums HOA, Inc.
Study / briefing material	1 section
FAQ / homeowner questions	6 questions
Featured download links	1 download link

Key Issues & Findings

Case Summary

West Frontier Condominiums HOA, Inc. is the unit owners' association for the Frontier Condominiums in Payson, Arizona. In October 2005 the unit owners, David and Joan Levengood, rented their unit to Lynn Bergeson. In 2006, with the Levengoods' permission but without notifying the association, Lynn replaced an overhead light fixture with a ceiling fan. In 2007 a smoldering fire ignited in the wiring above the fan, producing lethal levels of carbon monoxide that killed Lynn. Her surviving children, Christopher and Amy Bergeson, sued the Levengoods and the association for wrongful death, alleging the HOA had negligently failed to discover and repair faulty ceiling wiring. After the Court of Appeals twice reversed summary judgment for the association, a 2019 Gila County jury found for the Bergesons and apportioned seventy-five percent of the fault to West Frontier. The trial court denied the association's renewed motion for judgment as a matter of law, and West Frontier appealed. Reviewing de novo, Division Two of the Court of Appeals held the association was entitled to judgment as a matter of law. The plaintiffs offered no evidence that the HOA created the wiring defect, actually knew of it, or had any reason to suspect it; the building's electrical work had passed municipal inspection in 1984-85, years before the HOA incorporated in March 2007. The court further held the trial court reversibly erred by admitting irrelevant, unfairly prejudicial testimony about unrelated kitchen code violations discovered only after the fire, and by giving a non-delegable-duty instruction unsupported by the evidence. Together these errors effectively imposed a standard approaching strict liability. The judgment was vacated and remanded for entry of judgment in favor of the association.

Key Issues & Findings

Reviewing the denial of judgment as a matter of law de novo but in the light most favorable to the Bergesons, the court analyzed the negligence elements of duty, breach, and proximate cause. A premises owner is liable only for dangerous conditions it created, actually knew of, or should have discovered through reasonable care. On creation, the record showed the units were built in the mid-1980s and the electrical work passed Town of Payson inspection in 1984-85, before the HOA incorporated in 2007; the plaintiffs' 'mere continuation' successor-liability theory under A.R. Teeters failed for lack of any evidence of an assumption of liabilities, and even a continuation would not have created the pre-existing defect. On notice, the court held the trial court abused its discretion by admitting testimony about kitchen code violations found only after the fire: that evidence was irrelevant under Rule 401/402 (one of the plaintiffs' own experts conceded the kitchen defects had nothing to do with the fire), unrelated to the living-room ceiling wiring, and unfairly prejudicial because it let the jury infer notice the association never had. A duty to inspect arises only when there is 'reason to suspect' a defect (Piccola), and no prior similar incident supplied one. Finally, the non-delegable-duty instruction under Ft. Lowell and Restatement (Second) of Torts Section 422 was erroneous: it reached 'third parties' who were neither employees nor independent contractors, no association employee or contractor was shown to be negligent, and the doctrine cannot be stretched to make an association liable for a unit owner's own alterations. Together the irrelevant evidence and the flawed instruction held the association to a near-strict-liability standard that Arizona law does not recognize.

Why It Matters

This decision illustrates that an Arizona condominium association is not an insurer of its members' safety. Under the Arizona Condominium Act (A.R.S. Section 33-1247(A)) and Martinez v. Woodmar IV Condominiums Homeowners Ass'n, an association owes a duty of reasonable care to maintain the common elements, but ordinary premises-liability principles still require proof that the association created a dangerous condition, actually knew of it, or should have discovered it in the exercise of reasonable care. A duty to inspect arises only when the association has some reason to suspect a latent defect. The court refused to let a tragic outcome, standing alone, convert that reasonable-care standard into strict liability for a hidden wiring condition the association had no way to know about, especially where a unit owner altered a fixture without the notice or permission the recorded Declaration required.

Just as important, this is an unpublished memorandum decision. Under Ariz. R. Sup. Ct. 111(c) and Ariz. R. Civ. App. P. 28, it does not create legal precedent and may be cited only as authorized by rule; it is persuasive at most, not binding. It is useful as an educational illustration of how notice, relevance, and non-delegable-duty doctrines are applied to a condominium association, and of the practical value of the maintenance-and-alteration allocations in a condominium Declaration, but it should not be treated as a controlling statement of Arizona law. It also shows how evidentiary and jury-instruction errors can independently require reversal even after a jury verdict.

← Back to Court of Appeals cases

Pinnacle Peak Vistas III Homeowners’ Association v. Derailed, LLC: HOA Court Case Guide

Posted on July 1, 2026 by [email protected]

Arizona HOA case (non-precedential)

The Court of Appeals affirmed that the yard sculpture was not landscaping or a structure under the cited provisions, but reversed and remanded on whether it could be regulated as an unsightly object or nuisance.

Arizona Court of Appeals | No. 1 CA-CV 10-0604 (Ariz. Ct. App. Div. One May 31, 2011) (mem. decision) | Decided 2011-05-31 | Nonprecedential / citation-limited

Read the source opinion FAQ

Current-status note: This page is published as a litigation record based on the source files available through 2011-05-31. Later filings, appeals, mandates, settlements, or dismissal orders may change the posture; the linked court records control.

Scope note: This educational page summarizes Pinnacle Peak Vistas III Homeowners’ Association v. Derailed, LLC, a Arizona Court of Appeals HOA-related authority. It is not legal advice.

Citation caveat: This unpublished memorandum decision is included for practical architectural-review context; no local ruling PDF is provided for this page.

Carpenter Hazlewood represented the homeowners association on appeal.

The takeaway

The Court of Appeals affirmed that the sculpture was not landscaping and was not a structure under the cited CC&R provisions, but reversed summary judgment on the narrower question whether the sculpture could be regulated as an ‘unsightly object’ or nuisance. The case was remanded for further proceedings; the appellate decision did not decide whether the sculpture had to be removed.

Case Participants

Petitioner Side

Pinnacle Peak Vistas III Homeowners' Association (Plaintiff-Appellant)
Community association that sought removal of the yard sculpture under the CC&Rs; prevailed on appeal, obtaining reversal and remand.
Joshua M. Bolen (Counsel)
Carpenter Hazlewood Delgado & Wood, P.L.C.
Appellate counsel for the Association; Carpenter Hazlewood served as counsel in this matter (the firm is a frequent HOA-side firm in Arizona).
Kellie J. Callahan (Counsel)
Carpenter Hazlewood Delgado & Wood, P.L.C.
Appellate counsel for the Association, with Carpenter Hazlewood Delgado & Wood, P.L.C.

Respondent Side

Derailed, LLC (Defendant-Appellee)
Lot owner in the Pinnacle Peak Vistas III subdivision; won summary judgment below, which the Court of Appeals reversed.
Arvin Bernstein (Principal of Defendant-Appellee / homeowner)
Principal of Derailed, LLC and resident of the property where the saguaro-with-sunglasses sculpture was installed.
Steven R. Rensch (Counsel)
Rensch Law
Appellate counsel for Derailed, LLC.

Neutral Parties

Sheldon H. Weisberg (Judge)
Judge of the Arizona Court of Appeals, Division One; authored the unanimous memorandum decision. Other panel members are not identified in available sources.

What happened

Derailed, LLC owned a lot in the Pinnacle Peak Vistas III subdivision in Scottsdale, Arizona, a planned community governed by recorded CC&Rs and Architectural Committee Rules. The company’s principal, Arvin Bernstein, lived on the property. In 2006 the owner installed a metal yard sculpture of a saguaro cactus wearing sunglasses and holding an electric guitar.

Roughly two years later, the Association sent notices treating the sculpture as an unapproved modification and demanding removal. The notices did not clearly identify the exact provisions allegedly violated. The Association later pointed to landscaping language, structure/exterior-review provisions, and provisions barring signs, billboards, unsightly objects, or nuisances.

The superior court granted summary judgment to Derailed, concluding that the governing documents did not require approval for, or prohibit, this sculpture. The Association appealed.

The Court of Appeals affirmed part of the owner’s win. It agreed that the sculpture was not landscaping: ordinary landscaping means plantings, ground cover, grading, or similar treatment of land, and the Association offered no evidence that the sculpture damaged vegetation or conflicted with the desert environment. The court also agreed that the sculpture was not a structure or dwelling under the cited provisions, which in context referred to buildings or constructed things that can be entered into or walked upon.

The court reversed only on a narrower theory. Article I section 13 and Rule 2.28 prohibited signs, billboards, unsightly objects, or nuisances. Because the Association had cited those provisions and an unsightly-object clause could include a sculpture, summary judgment for the owner was premature on that issue.

The appellate court did not decide that the cactus sculpture was unsightly, did not order it removed, and did not give the Association a final merits win. It remanded for further proceedings, including factual questions about reasonableness, delay, and alleged selective enforcement.

Because this is an unpublished memorandum decision, it is non-precedential and may be cited only as allowed by Arizona court rules. It is useful here as a practical example of how architectural-control disputes can turn on the exact words a community chose in its governing documents.

This decision cuts both ways. For homeowners, it rejects an association’s attempt to stretch landscaping and structure provisions beyond their ordinary meaning just because a board dislikes a yard object. Silence in the CC&Rs mattered on those theories, and the court would not defer to the Association’s broad interpretation. For associations, the case preserves a narrower enforcement path when governing documents separately prohibit unsightly objects or nuisances. But that path still requires reasonable application, factual development, and attention to defenses such as delay and selective enforcement. The decision is unpublished and non-precedential, so it is best treated as a practical illustration rather than binding law. Counsel note: Carpenter Hazlewood represented the Association in this architectural-review appeal.

Video overview of the case record

An AI-generated video overview of Pinnacle Peak Vistas III Homeowners’ Association v. Derailed, LLC (No. 1 CA-CV 10-0604 (Ariz. Ct. App. Div. One May 31, 2011) (mem. decision)). Court affirmed owner wins on landscaping/structure theories but remanded the narrower unsightly-object issue. This plain-language summary was generated from the court’s filings; the court’s own records control.

Listen: audio deep dive on the case record

An AI-generated audio deep dive walking through the case record in Pinnacle Peak Vistas III Homeowners’ Association v. Derailed, LLC. Generated from the case filings; verify against the linked records below.

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

Litigation record

Step 1 2006

The lot owner (Derailed, LLC, principal Arvin Bernstein) installs a metal yard sculpture of a saguaro cactus wearing sunglasses in the Pinnacle Peak Vistas III subdivision.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 2 2008

About two years later, the Homeowners' Association sends a letter declaring the sculpture an unapproved modification and demanding its removal under the CC&Rs and architectural-review requirements.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 3 2010

The Association sues Derailed, LLC in Maricopa County Superior Court; the trial court grants summary judgment to the owner, and the Association appeals (No. 1 CA-CV 10-0604).

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 4 2011-05-31

The Arizona Court of Appeals affirms the owner wins on landscaping and structure theories, but reverses and remands on the narrower unsightly-object/nuisance provisions.

Filed by: Court record

This prevents the case from being described as a broad association victory; the remand was limited and did not decide removal.

FAQ

What was the dispute in Pinnacle Peak Vistas III Homeowners' Association v. Derailed, LLC about?

A homeowners’ association in a Scottsdale subdivision objected to a metal yard sculpture, shaped like a saguaro cactus wearing sunglasses, that a lot owner (Derailed, LLC, whose principal was Arvin Bernstein) had installed. The Association treated the sculpture as an unapproved property modification and sued to have it removed under the community’s CC&Rs and architectural-review requirements.

Who won the case?

It was split. The owner kept the appellate win on the Association’s landscaping and structure theories, but the Association revived the narrower unsightly-object/nuisance theory and obtained a remand. The appellate decision did not finally decide whether the sculpture had to be removed.

Did the CC&Rs specifically ban sculptures?

No. The court held the sculpture was not landscaping and not a structure under the cited provisions. It allowed only the separate unsightly-object/nuisance provisions to proceed because those words could potentially include a sculpture, depending on facts developed on remand.

Is this decision binding precedent in Arizona?

No. This is an unpublished memorandum decision, which means it is non-precedential. It does not establish binding law and may be cited only as authorized by the applicable Arizona court rules. It is presented here purely as a neutral, educational illustration of how CC&R and architectural-review disputes can arise.

What does 'reversed and remanded' mean here?

The Court of Appeals reversed only part of the summary judgment and sent that part back for further proceedings. The owner still won on the landscaping and structure theories; the remand concerned the narrower unsightly-object/nuisance provisions and related reasonableness/equitable issues.

What is the practical takeaway for homeowners and boards?

Read the governing documents precisely. Associations cannot automatically stretch landscaping or structure language to cover every disfavored yard object. If a document has a separate unsightly-object or nuisance clause, that may create a narrower enforcement theory, but the association still must act reasonably and deal with delay or selective-enforcement defenses.

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 / citation	No. 1 CA-CV 10-0604 (Ariz. Ct. App. Div. One May 31, 2011) (mem. decision)
Court / tribunal	Court of Appeals
Decision / key date	May 31, 2011
Judge / panel	Sheldon H. Weisberg
Parties	A Scottsdale homeowners' association sued a lot owner over a metal saguaro-with-sunglasses sculpture; the Court of Appeals affirmed that the sculpture was not landscaping or a structure under the cited provisions, but reversed and remanded on whether it could be treated as an unsightly object or nuisance.
Topics	Architectural ReviewCC&RsCovenantsProcedureGood Faith & Fair Dealing
Outcome / holding	The Court of Appeals affirmed that the sculpture was not landscaping and was not a structure under the cited CC&R provisions, but reversed summary judgment on the narrower question whether the sculpture could be regulated as an 'unsightly object' or nuisance. The case was remanded for further proceedings; the appellate decision did not decide whether the sculpture had to be removed.
Primary public source	View source opinion/order

Parties, Court, and Research Coverage

Reviewed source package	1 PDF, 1 other source file
Step-by-step docket roadmap	4 roadmap entries
Video overview	Pinnacle Peak Vistas III Homeowners' Association v. Derailed, LLC
Study / briefing material	1 section
FAQ / homeowner questions	6 questions
Featured download links	0 download links

Key Issues & Findings

Case Summary

Pinnacle Peak Vistas III Homeowners' Association sued Derailed, LLC, a lot owner in a Scottsdale subdivision whose principal was homeowner Arvin Bernstein, after Derailed installed a metal yard sculpture depicting a saguaro cactus wearing sunglasses and holding an electric guitar. The superior court granted summary judgment to Derailed. On appeal, the Arizona Court of Appeals affirmed part of that ruling and reversed part of it. The court agreed with the owner that the sculpture was not 'landscaping' under the CC&Rs and was not a 'structure' or dwelling under the provisions the Association relied on. But it reversed summary judgment on the separate provisions barring 'unsightly objects or nuisances,' holding that those provisions could include a sculpture and that the issue could not be resolved for the owner on summary judgment. The case was remanded for further proceedings on that narrower theory, including whether the Association acted reasonably and whether delay or selective enforcement affected equitable relief. As a memorandum decision, the opinion is non-precedential and may be cited only as authorized by Arizona court rules.

Key Issues & Findings

The court reviewed summary judgment de novo. It first rejected the Association's landscaping theory because the governing documents did not define landscaping broadly enough to cover a metal cactus sculpture, and ordinary landscaping refers to plantings, ground cover, grading, or similar land treatment. It then rejected the structure theory because, in context, the CC&R references to structures and dwellings pointed to buildings or constructed things that can be entered into or walked upon, not freestanding art objects. The court also found Rule 2.5 on architectural style and decorative concrete products did not reach the sculpture. The court reached a different result on Article I section 13 and Rule 2.28, which prohibited signs, billboards, unsightly objects, or nuisances. The record showed the Association had cited those provisions before summary judgment, and 'unsightly objects' could include a sculpture. Because the appellate court did not decide whether this sculpture was actually unsightly, and because reasonableness, delay, and selective-enforcement defenses remained for remand, summary judgment for the owner was premature only on that narrower theory.

Why It Matters

This decision cuts both ways. For homeowners, it rejects an association's attempt to stretch landscaping and structure provisions beyond their ordinary meaning just because a board dislikes a yard object. Silence in the CC&Rs mattered on those theories, and the court would not defer to the Association's broad interpretation.

For associations, the case preserves a narrower enforcement path when governing documents separately prohibit unsightly objects or nuisances. But that path still requires reasonable application, factual development, and attention to defenses such as delay and selective enforcement. The decision is unpublished and non-precedential, so it is best treated as a practical illustration rather than binding law.

← Back to Court of Appeals cases

Gelb v. Department of Fire, Building & Life Safety: HOA Court Case Guide

Posted on July 1, 2026 by [email protected]

Arizona HOA Case Explainer

A Sedona CC&R dispute became the vehicle for striking down Arizona’s first administrative process for HOA disputes — and reshaping where those disputes are heard.

Arizona Court of Appeals | 225 Ariz. 515, 241 P.3d 512 (App. 2010) | Decided 2010-10-28

Read the source opinion FAQ

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

Scope note: This educational page summarizes Gelb v. Department of Fire, Building & Life Safety, a Arizona Court of Appeals HOA-related authority. It is not legal advice.

Source note: The page keeps the public source URL but does not provide a local ruling PDF because no source PDF passed the file gate.

Carpenter Hazlewood represented the homeowner in the administrative-hearing dispute that produced this separation-of-powers ruling.

The takeaway

The statutory administrative-hearing process in A.R.S. sections 41-2198 to -2198.05 — which empowered the Department of Fire, Building and Life Safety to adjudicate disputes between homeowners and planned-community/condominium associations — violates the separation-of-powers provision of Article 3 of the Arizona Constitution. The court vacated the superior court’s judgment and directed the DFBLS to dismiss Gelb’s complaint without prejudice for lack of jurisdiction.

Video overview of the ruling

An AI-generated video overview of Gelb v. Department of Fire, Building & Life Safety (225 Ariz. 515, 241 P.3d 512 (App. 2010)). The statutory administrative-hearing process in A.R.S. sections 41-2198 to -2198.05 — which empowered the Department of Fire, Building and Life Safety to adjudicate disputes between homeowners and planned-community/condominium associations — violates the separation-of-powers provision of Article 3 of the Arizona Constitution. The court vacated the superior court’s judgment and directed the DFBLS to dismiss Gelb’s complaint without prejudice for lack of jurisdiction. This plain-language summary was generated from public court records; the court’s own ruling controls. Because this decision vacated the administrative judgment and directed dismissal without prejudice for lack of jurisdiction, treat the video as legal-history context rather than a final merits ruling on the underlying HOA dispute.

Listen: audio deep dive on the ruling

An AI-generated audio deep dive walking through the court’s reasoning and disposition in Gelb v. Department of Fire, Building & Life Safety. Generated from public court records; verify against the linked ruling below.

Audio overview generated with Google NotebookLM from the case source materials.

Case Participants

Petitioner Side

Chris Gelb (Appellant)
Homeowner in the Sedona Casa Contenta planned community; plaintiff/appellant who invoked the administrative process against her HOA.
Frederick M. "Fritz" Aspey (Counsel)
Aspey, Watkins & Diesel, P.L.L.C.
Counsel for plaintiff/appellant Chris Gelb.
Carson T.H. Emmons (Counsel)
Aspey, Watkins & Diesel, P.L.L.C.
Counsel for plaintiff/appellant Chris Gelb.
Diana J. Elston (Counsel)
Aspey, Watkins & Diesel, P.L.L.C.
Counsel for plaintiff/appellant Chris Gelb.

Respondent Side

Sedona Casa Contenta Homeowners Association, Inc. (Appellee)
Arizona non-profit homeowners' association; defendant/appellee that raised the separation-of-powers challenge to the administrative process.
Department of Fire, Building and Life Safety (Appellee)
State agency; nominal defendant/appellee that took no position on constitutionality and had discontinued processing such claims in January 2009.
Camila Alarcon (Counsel)
Arizona Attorney General's Office
Assistant Attorney General (office of Terry Goddard) for defendant/appellee DFBLS.
Jason E. Smith (Counsel)
Carpenter, Hazlewood, Delgado & Wood, PLC
Counsel for defendant/appellee HOA. Carpenter Hazlewood (predecessor to CHDB Law) served as HOA counsel in this case.
Mark K. Sahl (Counsel)
Carpenter, Hazlewood, Delgado & Wood, PLC
Counsel for defendant/appellee HOA (Carpenter Hazlewood).
Carrie H. Smith (Counsel)
Carpenter, Hazlewood, Delgado & Wood, PLC
Counsel for defendant/appellee HOA (Carpenter Hazlewood).

Neutral Parties

Samuel A. Thumma (Judge)
Authored the opinion; then a Superior Court judge designated to sit on the Court of Appeals under Ariz. Const. art. 6, sec. 3.
Lawrence F. Winthrop (Judge)
Presiding Judge; concurred.
Patrick Irvine (Judge)
Judge; concurred.

What happened

Chris Gelb began building a home in 2005 in a Sedona subdivision governed by the Sedona Casa Contenta Homeowners Association. As with many planned communities, her property was subject to the community’s covenants, conditions, and restrictions (CC&Rs), and the relationship between owner and association was governed by those documents and Arizona’s planned-community statutes in A.R.S. Title 33.

In 2007, after a dispute arose over Gelb’s landscaping, the HOA placed crushed rock in the common area in front of Gelb’s home without her permission. Gelb viewed the HOA’s conduct as a violation of the CC&Rs, setting up the underlying disagreement between the homeowner and her association.

Rather than file suit in court, Gelb used the administrative option the Legislature had created in 2006. Under A.R.S. sections 41-2198 to -2198.05, a homeowner or association could petition the Department of Fire, Building and Life Safety, which after reviewing the petition and response could refer the matter to the Office of Administrative Hearings for a hearing before an administrative law judge. Gelb filed her petition with the DFBLS in 2008, alleging the HOA had violated the CC&Rs, and the matter was referred to the OAH.

Following a hearing later in 2008, the ALJ issued a decision finding the HOA had not violated the CC&Rs. Under the statute, the ALJ’s decision was final and not subject to review or rehearing by the DFBLS; the only avenue of relief was review in the superior court. Gelb then filed a complaint in superior court seeking review of the ALJ’s decision.

In the superior court, the HOA moved to dismiss, arguing that the entire Administrative Process was unconstitutional because it violated the separation-of-powers provision of Article 3 of the Arizona Constitution. The superior court summarily denied that motion and, after further briefing and oral argument, found the ALJ’s decision was supported by the substantial weight of the evidence and denied Gelb relief. Gelb timely appealed.

On appeal, the Court of Appeals declined to decide the CC&R merits Gelb had raised. It found the constitutional issue was properly before it (rejecting Gelb’s cross-appeal and waiver arguments) and that the appeal could not fairly be decided on nonconstitutional grounds. Applying the four-factor Cactus Wren / J.W. Hancock test, the court held that assigning the DFBLS authority to adjudicate planned-community disputes, with no regulatory nexus or expertise, violated separation of powers.

The court vacated the superior court’s judgment and directed the DFBLS to dismiss Gelb’s complaint without prejudice for lack of jurisdiction, leaving the parties free to pursue their CC&R dispute in court. The court noted the DFBLS had itself stopped processing such claims in January 2009 after other courts reached the same conclusion, and it emphasized that the Legislature remained free to grant a properly connected agency such authority in the future.

For Arizona homeowners and associations, Gelb v. DFBLS is a structural decision about where HOA disputes may be decided, not about who was right in any particular CC&R fight. By holding that the 2006 administrative-hearing process violated separation of powers, the court removed the inexpensive administrative forum homeowners and associations had used since 2006 and, at least temporarily, pushed CC&R and community-document disputes back into the courts. The court was careful to say the Legislature could constitutionally create such a forum, but only if it tied the adjudicating agency to a genuine regulatory framework for community associations, which it had not done for the DFBLS. The practical fallout is the reason the case still matters. The Legislature responded by revising Arizona’s HOA dispute-resolution scheme so that petitions are filed with, and hearings conducted by, the Office of Administrative Hearings, the neutral adjudicative body the constitutional analysis pointed toward. Anyone researching the current A.R.S. section 41-2198 framework should understand that today’s process exists in the shape it does partly because of Gelb, and that the case is a leading Arizona authority on the limits of delegating judicial-type power to executive agencies. This summary is educational and neutral; it is not legal advice, and homeowners or associations facing a dispute should confirm the current statutes and consult a qualified Arizona attorney.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 7 2010-10-28

Court of Appeals holds the Administrative Process unconstitutional under Article 3, vacates the superior court judgment, and directs dismissal without prejudice.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

FAQ

What was Gelb v. Department of Fire, Building & Life Safety about?

Homeowner Chris Gelb had a dispute with her HOA, the Sedona Casa Contenta Homeowners Association, over the community’s CC&Rs after the HOA placed crushed rock in the common area in front of her home. Instead of deciding who was right on the CC&Rs, the Court of Appeals addressed whether the state’s administrative-hearing process for HOA disputes was constitutional, and held that it was not.

What did the court actually decide?

The court held that the administrative process in A.R.S. sections 41-2198 to -2198.05, which let the Department of Fire, Building and Life Safety (DFBLS) route homeowner-versus-association disputes to an administrative law judge, violated the separation-of-powers guarantee in Article 3 of the Arizona Constitution. It vacated the superior court’s judgment and directed the DFBLS to dismiss Gelb’s complaint without prejudice for lack of jurisdiction.

Why did the process violate separation of powers?

Using the four-factor Cactus Wren and J.W. Hancock test, the court found that adjudicating a private CC&R dispute is judicial in nature and that the DFBLS had no regulatory authority over, or special expertise in, planned communities. Because the agency’s adjudication was not tied to any legitimate regulatory purpose, it improperly encroached on the courts, even though superior-court review provided a partial check.

Does this mean HOA disputes can no longer be heard administratively in Arizona?

Not permanently. The court expressly said the Legislature could grant a properly connected agency authority to hear these disputes. In response to decisions like Gelb, the Legislature revised the framework so that HOA dispute petitions are handled through the Office of Administrative Hearings. Anyone dealing with a current dispute should check the present version of the statutes.

Who represented the parties, and was Carpenter Hazlewood involved?

Aspey, Watkins & Diesel represented homeowner Chris Gelb; the Arizona Attorney General’s Office represented the DFBLS; and Carpenter, Hazlewood, Delgado & Wood, PLC (a community-association firm, predecessor to CHDB Law) represented the Sedona Casa Contenta HOA, which raised the successful constitutional challenge.

Is Gelb v. DFBLS still good law, and is this legal advice?

Gelb is a published, precedential Arizona Court of Appeals decision and remains a leading authority on the limits of delegating judicial-type power to executive agencies. This page is a neutral educational summary, not legal advice; the statutory framework has since changed, so confirm the current law and consult a qualified Arizona attorney about any specific situation.

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 / citation	225 Ariz. 515, 241 P.3d 512 (App. 2010)
Court / tribunal	Court of Appeals
Decision / key date	October 28, 2010
Judge / panel	Samuel A. Thumma (author; designated Superior Court judge), Lawrence F. Winthrop (Presiding Judge), Patrick Irvine (Judge)
Parties	Homeowner Chris Gelb challenged an ALJ ruling in her CC&R dispute with the Sedona Casa Contenta HOA; the Court of Appeals instead struck the DFBLS administrative-hearing process on separation-of-powers grounds.
Governing law	A.R.S. sections 41-2198 to 41-2198.05 (HOA/condominium administrative dispute process) Ariz. Const. art. 3 (separation of powers) A.R.S. section 33-1802 (planned-community definitions) A.R.S. section 41-2141 (DFBLS statutory purpose) A.R.S. section 12-2101(B) (appellate jurisdiction)
Topics	CC&RsCovenantsProcedureMembership
Outcome / holding	The statutory administrative-hearing process in A.R.S. sections 41-2198 to -2198.05 — which empowered the Department of Fire, Building and Life Safety to adjudicate disputes between homeowners and planned-community/condominium associations — violates the separation-of-powers provision of Article 3 of the Arizona Constitution. The court vacated the superior court's judgment and directed the DFBLS to dismiss Gelb's complaint without prejudice for lack of jurisdiction.
Primary public source	View source opinion/order

Parties, Court, and Research Coverage

Reviewed source package	1 other source file
Step-by-step docket roadmap	7 roadmap entries
Video overview	Gelb v. Department of Fire, Building & Life Safety – 225 Ariz. 515, 241 P.3d 512
Study / briefing material	1 section
FAQ / homeowner questions	6 questions
Featured download links	0 download links

Key Issues & Findings

Case Summary

Chris Gelb, a homeowner in the Sedona Casa Contenta planned community, fell into a dispute with her homeowners' association over how the community's covenants, conditions, and restrictions (CC&Rs) applied to her property after the HOA placed crushed rock in the common area in front of her home. Rather than sue in court, Gelb used the administrative dispute-resolution process the Arizona Legislature created in 2006 (A.R.S. sections 41-2198 to -2198.05), under which the Department of Fire, Building and Life Safety (DFBLS) refers homeowner-versus-association disputes to an administrative law judge at the Office of Administrative Hearings. The ALJ found the HOA had not violated the CC&Rs, and the superior court, on administrative review, denied Gelb relief. On appeal, the Court of Appeals did not reach the merits of the CC&R dispute. Instead it took up a threshold constitutional question the HOA had raised: whether giving an executive-branch agency authority to adjudicate private disputes over community governing documents violates the separation-of-powers guarantee in Article 3 of the Arizona Constitution. Applying the four-factor test from Cactus Wren and J.W. Hancock, the court held that it does, because the DFBLS has no regulatory authority over, or special expertise in, planned communities, so its adjudication was an untethered exercise of judicial power that threatened the core functions of the courts. The court vacated the superior court's judgment and directed the DFBLS to dismiss Gelb's complaint without prejudice for lack of jurisdiction, leaving the parties to resolve their CC&R dispute in court. The decision helped prompt the Legislature to move HOA dispute hearings to the Office of Administrative Hearings in later legislation.

Key Issues & Findings

The court analyzed the Administrative Process under the four non-exclusive factors from Cactus Wren v. Arizona Department of Building & Fire Safety and J.W. Hancock Enterprises v. Arizona State Registrar of Contractors: (1) the essential nature of the power exercised; (2) the degree of control the agency exercises; (3) the Legislature's objective in establishing the agency's functions; and (4) the practical result of mingling roles. On factor one, adjudicating a dispute between two private parties over CC&Rs is judicial in nature. On factor two, the process did not coerce the judiciary because superior-court review supplies a critical judicial check, so that factor favored constitutionality. Factors three and four proved decisive: an agency may resolve private disputes only when that authority is auxiliary to and dependent upon a legitimate regulatory power. The DFBLS was created to oversee manufactured housing and fire safety and has no regulatory authority over planned communities, cannot review or modify an ALJ's decision, and furnishes no special expertise. Unlike the mobile-home regulation upheld in Cactus Wren or the contractor-licensing discipline in J.W. Hancock, the DFBLS merely processed paperwork in an area with no nexus to its statutory purpose, threatening the core functions of the courts. Because the HOA overcame the strong presumption of constitutionality, the Administrative Process, as applied to planned communities, violated Article 3.

Why It Matters

For Arizona homeowners and associations, Gelb v. DFBLS is a structural decision about where HOA disputes may be decided, not about who was right in any particular CC&R fight. By holding that the 2006 administrative-hearing process violated separation of powers, the court removed the inexpensive administrative forum homeowners and associations had used since 2006 and, at least temporarily, pushed CC&R and community-document disputes back into the courts. The court was careful to say the Legislature could constitutionally create such a forum, but only if it tied the adjudicating agency to a genuine regulatory framework for community associations, which it had not done for the DFBLS.

The practical fallout is the reason the case still matters. The Legislature responded by revising Arizona's HOA dispute-resolution scheme so that petitions are filed with, and hearings conducted by, the Office of Administrative Hearings, the neutral adjudicative body the constitutional analysis pointed toward. Anyone researching the current A.R.S. section 41-2198 framework should understand that today's process exists in the shape it does partly because of Gelb, and that the case is a leading Arizona authority on the limits of delegating judicial-type power to executive agencies. This summary is educational and neutral; it is not legal advice, and homeowners or associations facing a dispute should confirm the current statutes and consult a qualified Arizona attorney.

← Back to Court of Appeals cases

Garden Lakes Community Association, Inc. v. Madigan: HOA Court Case Guide

Posted on July 1, 2026 by [email protected]

Arizona Court of Appeals · Solar Access & Architectural Review

Garden Lakes Community Association v. Madigan explains when an HOA’s solar-screening guidelines cross the line into an unlawful “effective prohibition” under A.R.S. § 33-439(A).

Arizona Court of Appeals | 204 Ariz. 238, 62 P.3d 983 (App. 2003) | Decided 2003-02-18

Read the source opinion FAQ

Scope note: This educational page summarizes Garden Lakes Community Association, Inc. v. Madigan, a Arizona Court of Appeals HOA-related authority. It is not legal advice.

Source note: The page uses verified public opinion text or citation materials. No local ruling PDF is provided because no source PDF passed the file gate.

The takeaway

An HOA architectural restriction is void and unenforceable under A.R.S. § 33-439(A) if it “effectively prohibits” the installation or use of a solar energy device. “Effectively prohibits” does not require absolute impossibility; whether a restriction crosses that line is a fact-intensive, case-by-case inquiry that weighs the practical feasibility of any compliance alternative, its cost relative to community home values, the aesthetic burden imposed, the effect on the device’s solar efficiency, and the association’s own conduct. Because the Garden Lakes guidelines as applied to these homeowners were impractical and cost-prohibitive, they effectively prohibited solar use and were void.

Case Participants

Petitioner Side

Garden Lakes Community Association, Inc. (Plaintiff-Appellant)
Nonprofit community association that sued to enforce its architectural guidelines against the homeowners' rooftop solar panels.
Sun City Grand Community Association, Inc. (Amicus Curiae)
Appeared as amicus curiae addressing the scope of A.R.S. § 33-439(A) for community associations; aligned with the appellant Association's position.
Neal B. Thomas (Counsel)
Thomas & Elardo, P.C.
Counsel for Plaintiff-Appellant Garden Lakes Community Association, Inc.
Beth Mulcahy (Counsel)
Mulcahy Law Firm, P.C.
Counsel for Plaintiff-Appellant Garden Lakes Community Association, Inc.
Curtis S. Ekmark (Counsel)
Ekmark & Ekmark, L.L.C.
Counsel for amicus curiae Sun City Grand Community Association, Inc., aligned with the appellant Association.

Respondent Side

William E. Madigan (Defendant-Appellee)
Homeowner who installed rooftop solar pool-heating panels; prevailed on the A.R.S. § 33-439(A) defense.
Joan M. Madigan (Defendant-Appellee)
Homeowner and co-defendant with William E. Madigan.
Henry T. Speak (Defendant-Appellee)
Homeowner who installed rooftop solar pool-heating panels; prevailed on the A.R.S. § 33-439(A) defense.
Lavonne M. Speak (Defendant-Appellee)
Homeowner and co-defendant with Henry T. Speak.
Hyung S. Choi (Counsel)
Law Office of Hyung S. Choi
Counsel for Defendants-Appellees (the homeowners).
Gerald Pollock (Counsel)
Law Offices of Gerald Pollock
Counsel for Defendants-Appellees (the homeowners).

Neutral Parties

John C. Gemmill (Judge)
Author of the Court of Appeals opinion.
Ann A. Scott Timmer (Judge)
Presiding Judge on the Division One panel.
Noel Fidel (Judge)
Judge on the Division One panel.

What happened

Garden Lakes is a planned community in Avondale, Arizona, whose lots are subject to recorded covenants, conditions, and restrictions (CC&Rs) administered by the Garden Lakes Community Association through an Architectural Review Committee. The Association’s architectural guidelines addressed solar devices, generally requiring that any panels be integrated into the roof design and screened so they would not be visible or detract from the neighborhood’s appearance.

Two homeowner couples — William and Joan Madigan and Henry and Lavonne Speak — installed solar panels on their roofs to heat their swimming pools. They did so without first obtaining Architectural Review Committee approval, and the installed panels were visible rather than screened or flush-mounted as the guidelines contemplated.

The Association treated the visible panels as a violation of its recorded guidelines and demanded that the homeowners bring the installations into compliance. When the homeowners did not remove or conceal the panels, the Association filed suit in Maricopa County Superior Court, seeking an injunction to compel compliance and damages for breach of the architectural restrictions.

The homeowners raised A.R.S. § 33-439(A) as a defense. That statute voids any covenant, restriction, or condition affecting real property that “effectively prohibits” the installation or use of a solar energy device (a term the statute ties to definitions in A.R.S. § 44-1761 and § 43-1083). The homeowners argued that the only ways to comply with the Association’s guidelines were impractical and prohibitively expensive, so the guidelines effectively prohibited their solar use.

After a bench trial, the superior court agreed with the homeowners. It found that the alternatives the Association offered — building a patio cover that would cost more than $5,000 and would violate the municipality’s setback requirements, or constructing an untested roof-line screening wall — were impractical and cost-prohibitive. On those findings it concluded the guidelines effectively prohibited the homeowners’ solar use and were void under § 33-439(A), and it entered judgment for the homeowners.

The Association appealed to Division One of the Arizona Court of Appeals, arguing chiefly that “effectively prohibits” should mean “absolutely precludes” and that the trial court’s findings were inadequate. The court of appeals disagreed. Reviewing the factual findings for clear error under Ariz. R. Civ. P. 52(a), and construing the statute functionally, the panel held that a restriction effectively prohibits solar use when compliance is impractical, cost-prohibitive, or destructive of the device’s efficiency, judged case-by-case against factors including cost relative to community home values, aesthetics, solar efficiency, and the association’s conduct.

The court affirmed the judgment for the homeowners and held the guidelines void as applied. Because the dispute arose out of contract (the recorded CC&Rs), the court also addressed attorneys’ fees under A.R.S. § 12-341.01 and awarded the prevailing homeowners their reasonable fees and costs on appeal. Sun City Grand Community Association appeared as amicus curiae addressing the statute’s scope for associations.

Garden Lakes v. Madigan is one of the anchor decisions defining how Arizona’s solar-access statute, A.R.S. § 33-439(A), limits HOA architectural control. By rejecting the argument that a restriction is void only if it makes solar literally impossible, the court gave the statute practical teeth: a rule can be unenforceable when the community’s demanded alternative is too expensive, too impractical, or too damaging to the panels’ efficiency to be a realistic option. That functional, case-by-case standard shifted the analysis from formal permissibility to real-world burden, and it is regularly cited when homeowners and associations dispute rooftop solar. For associations, the decision does not abolish architectural review of solar devices — associations may still adopt reasonable aesthetic standards — but it warns that guidelines that impose disproportionate cost, defeat the device’s purpose, or lack a workable compliant path risk being struck down as an effective prohibition. For homeowners, it confirms a statutory defense to enforcement actions and a potential basis to install solar even over an ARC’s objection. The case also illustrates that prevailing parties in these contract-based disputes may recover attorneys’ fees under A.R.S. § 12-341.01, raising the stakes of enforcement litigation for both sides.

Video overview of the ruling

An AI-generated video overview of Garden Lakes Community Association, Inc. v. Madigan (204 Ariz. 238, 62 P.3d 983 (App. 2003)). HOA solar restrictions are void if they effectively prohibit solar-energy device installation. 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 Garden Lakes Community Association, Inc. v. Madigan. Generated from the case filings; verify against the linked ruling below.

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

Litigation record

Step 1 c. 1999

The Madigans and the Speaks install rooftop solar panels to heat their swimming pools in the Garden Lakes subdivision without first obtaining Architectural Review Committee approval. (Date approximate; reconstructed from the record.)

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 2 c. 1999-2000

The Association demands that the homeowners bring the panels into compliance and, when they decline to remove or screen them, files suit in Maricopa County Superior Court seeking an injunction and damages. (Date approximate.)

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 3 2000

After a bench trial, the superior court enters judgment for the homeowners, finding the guidelines effectively prohibit solar use under A.R.S. § 33-439(A); the Association appeals (appellate docket 1 CA-CV 00-0570). (Year inferred from docket number.)

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

Step 4 2003-02-18

Division One of the Arizona Court of Appeals issues its published opinion (authored by Judge Gemmill), affirming judgment for the homeowners and awarding the homeowners their attorneys' fees on appeal.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

FAQ

What was Garden Lakes Community Association v. Madigan about?

Two homeowner couples in the Garden Lakes subdivision in Avondale installed rooftop solar panels to heat their pools without Architectural Review Committee approval. The Association’s guidelines required solar devices to be integrated and screened, and the Association sued to enforce them. The homeowners defended under Arizona’s solar-access statute, A.R.S. § 33-439(A). The trial court and the Court of Appeals both ruled for the homeowners, holding the guidelines void as applied.

What does it mean for an HOA restriction to "effectively prohibit" a solar device?

The Court of Appeals held that “effectively prohibits” in A.R.S. § 33-439(A) does not require the restriction to make solar use literally impossible. A rule can effectively prohibit a solar device when complying with it is so impractical, expensive, or damaging to the device’s efficiency that it deprives the homeowner of the device’s realistic benefit. Courts decide this case-by-case, weighing feasibility, cost relative to community home values, aesthetics, solar efficiency, and the association’s conduct.

Which Arizona statute did the case interpret?

The central statute is A.R.S. § 33-439(A), which declares void and unenforceable any covenant, restriction, or condition affecting real property that effectively prohibits the installation or use of a solar energy device. The court also referenced statutory definitions of a solar energy device (A.R.S. § 44-1761 and § 43-1083), applied the clearly-erroneous review standard of Ariz. R. Civ. P. 52(a), and addressed attorneys’ fees under A.R.S. § 12-341.01.

Does this mean an HOA can never regulate solar panels?

No. The decision does not abolish architectural review of solar installations. Associations may still adopt reasonable aesthetic and design standards for solar devices. The limit is that a guideline cannot be enforced when, as applied, it effectively prohibits solar use — for example, by demanding a compliance alternative that is cost-prohibitive, infeasible, or destructive of the panels’ efficiency. Reasonable regulation is allowed; effective prohibition is not.

Who won, and did the homeowners recover attorneys' fees?

The homeowners won. The Court of Appeals affirmed the superior court’s judgment in their favor and held the Association’s guidelines void as applied. Because the dispute arose from the recorded CC&Rs (a contract), the court awarded the prevailing homeowners their reasonable attorneys’ fees and costs on appeal under A.R.S. § 12-341.01.

Is Garden Lakes v. Madigan still good law in Arizona?

Yes. It is a published, precedential opinion of the Arizona Court of Appeals, Division One (204 Ariz. 238, 62 P.3d 983 (App. 2003)), and it remains a leading authority on how A.R.S. § 33-439(A) limits HOA architectural control over residential solar devices. This page is an educational summary, not legal advice; consult a qualified Arizona attorney about your specific situation.

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 / citation	204 Ariz. 238, 62 P.3d 983 (App. 2003)
Court / tribunal	Court of Appeals
Decision / key date	February 18, 2003
Judge / panel	John C. Gemmill (opinion author), Ann A. Scott Timmer (Presiding Judge), Noel Fidel
Parties	Garden Lakes Community Association sued member homeowners (the Madigans and the Speaks) to enforce its architectural guidelines against their rooftop solar pool-heating panels; the homeowners prevailed under Arizona's solar-access statute, A.R.S. § 33-439(A).
Governing law	A.R.S. § 33-439(A) (2000) A.R.S. § 44-1761(4) A.R.S. § 43-1083 A.R.S. § 12-341.01 Ariz. R. Civ. P. 52(a)
Topics	Solar RightsArchitectural ReviewCovenantsCC&RsAttorney Fees
Outcome / holding	An HOA architectural restriction is void and unenforceable under A.R.S. § 33-439(A) if it "effectively prohibits" the installation or use of a solar energy device. "Effectively prohibits" does not require absolute impossibility; whether a restriction crosses that line is a fact-intensive, case-by-case inquiry that weighs the practical feasibility of any compliance alternative, its cost relative to community home values, the aesthetic burden imposed, the effect on the device's solar efficiency, and the association's own conduct. Because the Garden Lakes guidelines as applied to these homeowners were impractical and cost-prohibitive, they effectively prohibited solar use and were void.
Primary public source	View source opinion/order

Parties, Court, and Research Coverage

Reviewed source package	No raw source-folder files found for this slug
Step-by-step docket roadmap	4 roadmap entries
Video overview	Garden Lakes Community Association, Inc. v. Madigan
Study / briefing material	1 section
FAQ / homeowner questions	6 questions
Featured download links	0 download links

Key Issues & Findings

Case Summary

Garden Lakes Community Association, Inc. v. Madigan arose in the Garden Lakes subdivision of Avondale, Arizona, after two homeowner couples — the Madigans and the Speaks — installed rooftop solar panels to heat their swimming pools without first obtaining approval from the Association's Architectural Review Committee. The Association's recorded architectural guidelines required that solar devices be integrated into the roof design and screened from view. When the visible panels went up, the Association sued for an injunction and damages, alleging the homeowners had breached the recorded guidelines. The homeowners defended under A.R.S. § 33-439(A), Arizona's solar-access statute, which declares void and unenforceable any covenant, restriction, or condition that "effectively prohibits" the installation or use of a solar energy device.

After a bench trial, the superior court ruled for the homeowners. It found that the Association's proposed compliance alternatives — a patio cover costing more than $5,000 that would also violate municipal setback rules, and an untested roof-line screening wall — were impractical and cost-prohibitive, and therefore effectively prohibited the homeowners' solar use. Division One of the Court of Appeals affirmed. Writing for the panel, Judge Gemmill held that "effectively prohibits" does not require absolute impossibility; courts must assess practical feasibility case-by-case, weighing cost relative to community home values, aesthetic demands, effects on solar efficiency, and the association's own conduct. The decision remains a leading published Arizona authority protecting residential solar installations from restrictive HOA architectural rules.

Key Issues & Findings

The court interpreted the phrase "effectively prohibits" in A.R.S. § 33-439(A). The Association urged a narrow reading under which only a restriction making solar use literally impossible would be void. The court rejected that construction, reasoning that the legislature's choice of the word "effectively" signals a functional, practical inquiry rather than a test of absolute impossibility. A restriction can effectively prohibit a solar device when compliance is so impractical, costly, or inefficient that it deprives the homeowner of the device's realistic benefit. Whether that line is crossed is a fact-intensive, case-by-case question, and the court identified relevant considerations: the practical feasibility of any alternative, its cost relative to the value of homes in the community, the aesthetic burden imposed, the effect on the device's solar efficiency, and the association's own conduct. Applying the trial court's findings — reviewed for clear error under Ariz. R. Civ. P. 52(a) — the panel concluded that the guidelines as applied to these homeowners effectively prohibited solar use and were therefore void and unenforceable, and it affirmed the judgment for the homeowners.

Why It Matters

Garden Lakes v. Madigan is one of the anchor decisions defining how Arizona's solar-access statute, A.R.S. § 33-439(A), limits HOA architectural control. By rejecting the argument that a restriction is void only if it makes solar literally impossible, the court gave the statute practical teeth: a rule can be unenforceable when the community's demanded alternative is too expensive, too impractical, or too damaging to the panels' efficiency to be a realistic option. That functional, case-by-case standard shifted the analysis from formal permissibility to real-world burden, and it is regularly cited when homeowners and associations dispute rooftop solar.

For associations, the decision does not abolish architectural review of solar devices — associations may still adopt reasonable aesthetic standards — but it warns that guidelines that impose disproportionate cost, defeat the device's purpose, or lack a workable compliant path risk being struck down as an effective prohibition. For homeowners, it confirms a statutory defense to enforcement actions and a potential basis to install solar even over an ARC's objection. The case also illustrates that prevailing parties in these contract-based disputes may recover attorneys' fees under A.R.S. § 12-341.01, raising the stakes of enforcement litigation for both sides.

← Back to Court of Appeals cases

Heritage Heights Home Owners Ass’n v. Esser: HOA Court Case Guide

Posted on July 1, 2026 by [email protected]

Arizona HOA Case Explainer

How Arizona courts enforce recorded CC&Rs by injunction against a knowing violator — and when a declaration’s attorneys’-fee clause compels a fee award to a prevailing association.

Arizona Court of Appeals | 115 Ariz. 330, 565 P.2d 207 (App. 1977) | Decided 1977-05-24

Read the source opinion FAQ

Scope note: This educational page summarizes Heritage Heights Home Owners Ass’n v. Esser, a Arizona Court of Appeals HOA-related authority. It is not legal advice.

Source note: The page keeps the public source URL but does not provide a local ruling PDF because no source PDF passed the file gate.

The takeaway

A valid, enforceable subdivision deed restriction must be enforced by injunction, and the trial court abused its discretion by granting the violating owner an unsupported five-year delay to remove the offending fence where he built it with actual knowledge that it violated the covenants; once the restriction is valid, no equity justifies postponing removal. Where the recorded declaration expressly provides that a violating owner shall pay the attorneys’ fees and costs of the prevailing enforcing party, the court is contractually obligated to award those fees and costs, including fees on appeal.

Case Participants

Petitioner Side

Heritage Heights Home Owners Association (Appellant (Plaintiff))
Arizona corporation; mandatory homeowners association formed by the subdivision developer in 1970. Enforcing party seeking removal of the fence and its fees and costs.
Jones Osborn II (Counsel)
Martori, Meyer, Hendricks & Victor, P.A.
Phoenix counsel of record for the appellant Heritage Heights Home Owners Association.

Respondent Side

Fred R. Esser (Appellee (Defendant))
Lot owner who built the wooden "grapestake" fence after being told it violated the covenants; appeared in propria persona (self-represented).
Margaret J. Esser (Appellee (Defendant))
Fred Esser's wife; named as a co-defendant/appellee.
Fred R. Esser (Counsel)
Appeared in propria persona (pro se); represented himself and Margaret J. Esser as appellees.

Neutral Parties

Levi Ray Haire (Judge)
Authored the opinion for the Court of Appeals.
Nelson (Judge)
Presiding Judge; concurred in the opinion.
Francis J. Donofrio (Judge)
Judge; concurred in the opinion.

What happened

Heritage Heights Home Owners Association was created by the developer of a residential subdivision in 1970. The development plan made every resident an automatic member of the Association, and membership rights, privileges, and land-use restrictions were embodied as restrictive covenants imposed on every conveyance of a lot in the subdivision.

From 1970 through 1972, while lots were still being sold, the Association remained under the developer’s control and generally did not pursue violations of the deed restrictions, which were usually minor. In 1972 the individual homeowners took control of the Association and began a program of enforcement aimed at eliminating existing violations and preventing new ones.

As part of that program, the Association sent newsletters in March, April, and July of 1973 reminding residents of the restrictions, and it addressed existing violations through negotiation and, where necessary, litigation. The parties stipulated that the Association granted permanent variances for fences that substantially met the purpose of the restrictions (such as brick-and-masonry or wrought-iron-and-block fences) and that, for non-conforming wood fences built before enforcement began, its usual policy was to allow a five-year period to remove them.

In October 1973, after the three newsletters had gone out, Fred Esser began constructing a wooden “grapestake” fence. On October 15, 1973, a member of the Board of Directors saw the construction, told Esser the fence would violate the deed restrictions, and asked him to stop. Esser refused and completed the fence.

The Association sued for an injunction. After preliminary proceedings — including an order requiring the Association to join additional defendants and a later extension of time to do so — the case was tried on stipulated facts. The trial court ordered the Association to grant Esser a five-year variance to remove the fence within 30 days or face dismissal of the suit with prejudice, and it denied the Association any costs or attorneys’ fees.

On appeal, the Arizona Court of Appeals reversed both rulings. It held there was no record support for the five-year postponement and that Esser, who built with actual knowledge of the violation, was reasonably distinguished from good-faith owners; once the restriction was valid, no equity justified delaying removal. It also held that the declaration’s express fee provision contractually required an award of fees and costs to the prevailing Association, including fees on appeal, and it rejected Esser’s Rule 6(b) jurisdictional argument. The court remanded for entry of an injunction ordering immediate removal of the fence and for assessment of costs and attorneys’ fees.

For Arizona community associations and homeowners, Esser is a foundational, pre-Planned Communities Act statement that valid recorded CC&Rs will be enforced by injunction and that a knowing violator generally cannot obtain an open-ended delay to keep a non-conforming structure in place. The decision emphasizes that a board may treat differently those who built in good faith before enforcement and those who built with actual knowledge of a violation, and that equitable “grace periods” are discretionary, must be supported by the record, and cannot be imposed on the association by a court without an evidentiary basis. The case is also frequently cited for the enforceability of a declaration’s attorneys’-fee clause: where the recorded documents require a violating owner to pay the prevailing enforcing party’s fees and costs, the court is contractually bound to award them, including fees incurred on appeal. Homeowners should understand that ignoring a documented warning and completing a non-conforming improvement can expose them not only to a removal order but also to the association’s litigation costs. Because the opinion predates the Arizona Planned Communities Act (A.R.S. Title 33, Chapter 16) and current fee statutes such as A.R.S. section 12-341.01, readers should confirm how later statutes and case law apply to any specific dispute.

Video overview of the ruling

An AI-generated video overview of Heritage Heights Home Owners Ass’n v. Esser (115 Ariz. 330, 565 P.2d 207 (App. 1977)). A valid, enforceable subdivision deed restriction must be enforced by injunction, and the trial court abused its… 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 Heritage Heights Home Owners Ass’n v. Esser. Generated from the case filings; verify against the linked ruling below.

Filed by: Court record

Part of the record summarized for homeowners, boards, and counsel.

FAQ

What was Heritage Heights Home Owners Ass'n v. Esser about?

A mandatory homeowners association sued a lot owner, Fred Esser, to enforce a recorded subdivision deed restriction that barred wooden “grapestake” fences. Esser built the fence after a board member warned him it violated the covenants. The Arizona Court of Appeals held the restriction had to be enforced by injunction, reversed a trial-court order giving Esser five years to remove the fence, and held the association was entitled to its attorneys’ fees and costs under the declaration.

Why did the Court of Appeals reject the five-year variance the trial court ordered?

The court found nothing in the stipulated record that supported a five-year postponement of removal. The association’s informal policy of allowing five years applied only to owners who built fences in good faith before enforcement began, and that policy was not part of the stipulations. Even if it had been, the court said it reasonably distinguished good-faith owners from Esser, who built with actual knowledge that the fence violated the covenants and would be enforced. Once the restriction was valid, the court saw no equitable reason to delay removal.

Did the homeowner have to pay the association's attorneys' fees?

Yes. The recorded declaration expressly provided that an owner against whom a successful enforcement action was brought would pay the prevailing enforcing party’s attorneys’ fees and costs. Because Esser accepted the deed, he was contractually bound by that provision. The court held that contracts for attorneys’ fees are enforced according to their terms, so the trial court was obligated to award the association its fees and costs, including fees on appeal.

Does it matter that the owner built the fence after being warned?

It was central to the outcome. Esser began and completed the fence after receiving three association newsletters about the restrictions and after a board member personally told him the fence would violate the covenants and asked him to stop. The court treated this actual knowledge as the key fact distinguishing him from owners who built in good faith before enforcement, and it concluded he built “at his own risk.”

Is Heritage Heights v. Esser still good law in Arizona?

It remains a published, precedential Arizona Court of Appeals decision that is still cited for enforcing recorded CC&Rs by injunction and for honoring a declaration’s contractual attorneys’-fee provision. However, it was decided in 1977, before the Arizona Planned Communities Act (A.R.S. Title 33, Chapter 16) and modern fee statutes such as A.R.S. section 12-341.01. This page is general educational information, not legal advice; how it applies to a specific dispute should be confirmed with current statutes and a qualified attorney.

What is a "grapestake" fence and why was it a problem?

A grapestake fence is a fence built from rows of narrow, roughly split wooden stakes. In this subdivision, the recorded deed restrictions barred wooden fences of that type. The association had granted permanent variances only for fences it felt substantially met the purpose of the restrictions — such as brick-and-masonry or wrought-iron-and-block fences — so Esser’s wooden grapestake fence did not qualify and had to be removed.

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 / citation	115 Ariz. 330, 565 P.2d 207 (App. 1977)
Court / tribunal	Court of Appeals
Decision / key date	May 24, 1977
Judge / panel	Levi Ray Haire (author), Nelson (Presiding Judge), Francis J. Donofrio
Parties	A mandatory homeowners association sued a lot owner to enforce a recorded subdivision deed restriction barring a wooden "grapestake" fence and to recover its attorneys' fees and costs.
Governing law	Ariz. R. Civ. P. 6(b)
Topics	CC&RsCovenantsAttorney FeesArchitectural ReviewProcedure
Outcome / holding	A valid, enforceable subdivision deed restriction must be enforced by injunction, and the trial court abused its discretion by granting the violating owner an unsupported five-year delay to remove the offending fence where he built it with actual knowledge that it violated the covenants; once the restriction is valid, no equity justifies postponing removal. Where the recorded declaration expressly provides that a violating owner shall pay the attorneys' fees and costs of the prevailing enforcing party, the court is contractually obligated to award those fees and costs, including fees on appeal.
Primary public source	View source opinion/order

Parties, Court, and Research Coverage

Reviewed source package	1 other source file
Step-by-step docket roadmap	10 roadmap entries
Video overview	Heritage Heights Home Owners Ass'n v. Esser
Study / briefing material	1 section
FAQ / homeowner questions	6 questions
Featured download links	0 download links

Key Issues & Findings

Case Summary

Heritage Heights Home Owners Ass'n v. Esser addresses how Arizona courts enforce recorded subdivision deed restrictions and how they treat a declaration's attorneys'-fee provision. Heritage Heights was a mandatory homeowners association created by a developer in 1970; membership and the accompanying covenants were imposed on every conveyance in the subdivision. After homeowners took control from the developer in 1972, the Association began enforcing the restrictions and sent newsletters in March, April, and July 1973 reminding residents of the rules. In October 1973, Fred Esser began building a wooden "grapestake" fence; a board member told him it violated the covenants and asked him to stop, but he finished it. The Association sued for an injunction. Trying the case on stipulated facts, the trial court ordered the Association to grant Esser a five-year variance to remove the fence (or have the suit dismissed with prejudice) and refused to award the Association its costs and attorneys' fees. The Court of Appeals reversed both rulings. It found nothing in the record supporting a five-year postponement, and it distinguished Esser — who built with actual knowledge of the violation — from owners who had built fences in good faith before enforcement began. Once the restriction was valid and enforceable, no equity justified delay. Because the recorded declaration expressly required a violating owner to pay the prevailing enforcing party's fees and costs, the trial court was contractually obligated to award them, including fees on appeal. The court also rejected Esser's jurisdictional argument under Rule 6(b).

Key Issues & Findings

The court reasoned that a grantee who accepts a deed containing restrictions assents to them and is bound as if he had signed them, so the covenants and the fee provision were enforceable against Esser. Enforcement is by injunction, and while a trial court may shape an equitable remedy, nothing in the stipulated record justified a five-year delay in removing the fence. The Association's informal policy of allowing five years to owners who had built in good faith before enforcement began was not in the stipulations and, in any event, reasonably distinguished those owners from Esser, who built with full knowledge that his fence violated the covenants and would be enforced. Allowing knowing violators five years would defeat the development plan to the detriment of all owners, including Esser. Because the declaration expressly required a violating owner to pay the prevailing enforcing party's attorneys' fees and costs, the court was contractually obliged to award them, and contracts for attorneys' fees are enforced according to their terms. Rule 6(b) permitted the earlier extension of time without notice, so appellate jurisdiction was proper.

Why It Matters

For Arizona community associations and homeowners, Esser is a foundational, pre-Planned Communities Act statement that valid recorded CC&Rs will be enforced by injunction and that a knowing violator generally cannot obtain an open-ended delay to keep a non-conforming structure in place. The decision emphasizes that a board may treat differently those who built in good faith before enforcement and those who built with actual knowledge of a violation, and that equitable "grace periods" are discretionary, must be supported by the record, and cannot be imposed on the association by a court without an evidentiary basis.

The case is also frequently cited for the enforceability of a declaration's attorneys'-fee clause: where the recorded documents require a violating owner to pay the prevailing enforcing party's fees and costs, the court is contractually bound to award them, including fees incurred on appeal. Homeowners should understand that ignoring a documented warning and completing a non-conforming improvement can expose them not only to a removal order but also to the association's litigation costs. Because the opinion predates the Arizona Planned Communities Act (A.R.S. Title 33, Chapter 16) and current fee statutes such as A.R.S. section 12-341.01, readers should confirm how later statutes and case law apply to any specific dispute.

← Back to Court of Appeals cases