Tag Archives: good-faith-and-fair-dealing

Eli v. Procaccianti AZ II LP: HOA Court Case Guide

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Arizona Court of Appeals – Division One (Unpublished)

Homeowners at the Scottsdale Hilton Casitas claimed a global settlement had been reached at a meeting. Because nothing was signed or stated in open court, the court held there was no enforceable agreement and upheld a six-figure fee award against them.

Arizona Court of Appeals | 1 CA-CV 20-0476 (Ariz. Ct. App. Aug. 24, 2021) (mem. decision) | Decided 2021-08-24 | Nonprecedential / citation-limited

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Scope note: This educational page summarizes Eli v. Procaccianti AZ II LP, a Arizona Court of Appeals HOA-related authority. It is not legal advice.

The takeaway

A disputed settlement of pending litigation is unenforceable under Arizona Rule of Civil Procedure 80(a) and the Statute of Frauds (A.R.S. § 44-101) unless it is reduced to a signed writing or made orally in open court and entered in the minutes; opposing counsel’s discarded notes merely listing one side’s demands do not satisfy the writing requirement where the other party never assented. Parties who jointly defend and rely on an alleged settlement (rather than moving to be dismissed) are proper parties to the resulting declaratory judgment and may be held jointly and severally liable for attorneys’ fees under A.R.S. § 12-341.01.

Case Participants

Petitioner Side

  • Zadok Eli (Plaintiff/Appellant)
    Casita owner and ground lessee; stated the monetary and lease demands at the January 2018 settlement meeting.
  • Hana Eli (Plaintiff/Appellant)
    Casita owner and ground lessee at the Scottsdale Hilton Casitas.
  • Lamar Whitmer (Plaintiff/Appellant)
    Asked to leave the settlement meeting because the Whitmers’ claims concerned only the HOA; still held jointly liable for fees for defending the alleged settlement.
  • Colleen London (Plaintiff/Appellant)
    Casita owner grouped with Lamar Whitmer as the “Whitmers.”
  • Robert S. Porter (Counsel)
    Porter Law Firm
    Counsel for Plaintiffs/Appellants (the Homeowners); repeatedly asserted after the meeting that a settlement had been reached.

Respondent Side

  • Procaccianti AZ II LP (Defendant/Appellee)
    The Hotel and ground lessor; filed the declaratory-judgment action and prevailed on the settlement-enforceability issue.
  • Andrew M. Federhar (Counsel)
    Spencer Fane LLP
    Counsel for Defendant/Appellee Procaccianti (the Hotel).
  • Jessica Anne Gale (Counsel)
    Spencer Fane LLP
    Counsel for Defendant/Appellee Procaccianti (the Hotel).

Neutral Parties

  • Jennifer B. Campbell (Judge)
    Authored the memorandum decision of the Court of Appeals, Division One.
  • D. Steven Williams (Judge)
    Presiding Judge; joined the decision.
  • James B. Morse Jr. (Judge)
    Judge of the Court of Appeals; joined the decision.
  • Theodore Campagnolo (Judge)
    Maricopa County Superior Court
    Superior court judge who found no settlement existed and awarded fees; his judgment was affirmed.

What happened

The Elis, the Whitmers, and Diana Shaffer (collectively the “Homeowners”) own or previously owned casitas at the Scottsdale Hilton Casitas. Although they own their houses, they lease the ground on which the houses sit from Procaccianti AZ II LP (the “Hotel”). Since at least 2012 the Homeowners, the Hilton Casitas Homeowners Association (the “HOA”), and the Hotel had been locked in litigation over the price of the ground lease and related disputes, generating several prior appeals.

In January 2018 the Hotel asked to meet with the Homeowners to negotiate a global settlement resolving all pending litigation, including appeals. The Homeowners agreed but demanded that no litigation counsel attend. The HOA said its representative, Mike Bengson, would attend and would convey the HOA’s non-negotiable terms beforehand. The Elis then demanded that Bengson not attend, asserting he lacked real authority, and warned they would walk out if he did. Per the Elis’ demand, Bengson did not attend; the HOA did not convey its demands to the Homeowners but did disclose them to the Hotel, and those demands sought a global settlement of all pending litigation involving the Whitmers, the Elis, and Mrs. Shaffer.

At the meeting, the Hotel’s general counsel, Ron Hadar, and its CFO attended. After Zadoc Eli, Tim Shaffer (for Mrs. Shaffer), and Lamar Whitmer arrived, the Hotel asked Mr. Whitmer to leave because the Whitmers’ claims concerned only the HOA, which was not present; Whitmer left, and the Hotel did not pass along the HOA’s demands. Mr. Eli and Mr. Shaffer each stated their demands. Mr. Eli demanded that the Hotel pay him $228,829, set his ground lease at $690 per month until 2036, and waive more than $500,000 in fees awarded against the Homeowners in prior cases. Hadar wrote down each demand and recited them back at the end of the meeting. The parties exchanged no draft agreements and signed nothing, and Hadar discarded his notes soon after.

The Homeowners promptly asserted that an enforceable settlement had been reached. The Hotel disagreed and filed a complaint seeking a declaratory judgment that no settlement existed (the “Declaratory Action”). The Homeowners answered, asserted counterclaims, and filed a separate complaint (the “Tort Action”) raising substantially the same claims as their counterclaims. On the Homeowners’ motion, the court consolidated the two cases.

The parties filed cross-motions for summary judgment on the declaratory-relief claim. The Hotel argued that no valid settlement existed under Rule 80(a) and the Statute of Frauds, A.R.S. § 44-101. The Elis argued that Hadar’s notes evidenced a binding agreement. The Hotel acknowledged Hadar had written down the Elis’ demands but argued it never acquiesced, contending Hadar had told the Homeowners that no agreement could be made without meeting conditions, including the approval of the Hotel’s owner, Procaccianti. For the first time in the cross-motion, the Whitmers argued they should be dismissed because they had been excluded from the meeting. Meanwhile, Mrs. Shaffer settled, leaving the Elis and the Whitmers.

The superior court ruled there was no settlement agreement. It reserved the Declaratory Action counterclaims for resolution in the Tort Action, entered declaratory judgment for the Hotel with Rule 54(b) finality language, and awarded attorneys’ fees jointly and severally against the Homeowners in the amount of $114,255.70. The court denied the Elis’ and Whitmers’ motion for a new trial, and they timely appealed.

The Court of Appeals affirmed. It held Rule 80(a) applied because there was a genuine dispute over whether the Hotel had imposed conditions precedent, and remanding for a trial on added oral conditions would eviscerate the rule’s anti-fraud purpose. Hadar’s notes recorded only the Elis’ demands and did not show the Hotel’s assent, so no enforceable writing existed. The Whitmers were proper parties because they defended the alleged settlement and asserted counterclaims dependent on the contract’s existence rather than moving to be dismissed; because a dispute over the existence of a contract is a contract matter, they were jointly and severally liable for fees, and the court granted the Hotel its appellate fees under A.R.S. § 12-341.01.

For HOA communities and their members, this decision is a reminder that settlements of pending litigation carry a heightened formality requirement. Even when the parties meet, discuss numbers, and one side writes them down, there is no enforceable deal unless it is reduced to a signed writing or stated orally in open court and entered in the minutes. Rule 80(a) exists precisely to prevent later disputes about what was agreed, so homeowners, boards, and their counsel should insist on a signed term sheet before treating a negotiation as resolved and should be wary of relying on an opponent’s informal notes. The decision also shows the fee exposure that flows from how a party litigates. The Whitmers, who were not even in the room, still faced joint and several liability for the Hotel’s fees because they answered, defended the alleged settlement, and pressed counterclaims that depended on the contract existing, instead of promptly moving to be dismissed. Because a fight over whether a contract exists is treated as a contract action, A.R.S. § 12-341.01 allowed a fee award to the prevailing party. As an unpublished memorandum decision under Arizona Supreme Court Rule 111(c), the ruling is not precedential and may be cited only as that rule allows, but it illustrates well-settled Arizona principles on settlement enforceability and fees.

Litigation record

Step 1 2012

The Homeowners, the Hilton Casitas Homeowners Association, and the Hotel begin litigating over ground-lease pricing and related disputes, spawning several appeals.

Filed by: Court record

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

Step 2 2018-01

The Hotel requests a global settlement meeting; the Homeowners agree on the condition that litigation counsel be excluded, and the Elis demand that the HOA’s representative not attend.

Filed by: Court record

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

Step 3 2018-01

The settlement meeting is held. Lamar Whitmer is asked to leave; Mr. Eli and Mr. Shaffer state their demands; general counsel Hadar records and recites the demands. No draft is exchanged or signed, and Hadar later discards his notes.

Filed by: Court record

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

Step 4 2018

The Homeowners assert an enforceable settlement was reached; the Hotel files a declaratory-judgment action (Maricopa County No. CV2018-014021).

Filed by: Court record

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

Step 5 2018

The Homeowners answer, assert counterclaims, and file a separate tort action (No. CV2018-055021); the cases are consolidated.

Filed by: Court record

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

Step 6 2019

On cross-motions for summary judgment, the superior court (Hon. Theodore Campagnolo) finds no settlement existed; Mrs. Shaffer settles her claims separately.

Filed by: Court record

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

Step 7 2020

The court enters declaratory judgment for the Hotel with Rule 54(b) finality and awards $114,255.70 in attorneys’ fees jointly and severally; the Elis and Whitmers appeal (1 CA-CV 20-0476).

Filed by: Court record

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

Step 8 2021-08-24

The Arizona Court of Appeals, Division One, affirms the judgment and fee award and grants the Hotel its attorneys’ fees on appeal.

Filed by: Court record

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

Download source
2026-07-01_001_opinion.pdf

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/eli-v-procaccianti/raw/: 1 PDF. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2026-07-01

Opinion

Type: Decision or judgment

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

Download source file
2026-07-01_001_opinion.pdf

FAQ

What was Eli v. Procaccianti about?

Homeowners at the Scottsdale Hilton Casitas, who own their casitas but lease the ground from Procaccianti AZ II LP (the “Hotel”), claimed they had reached a global settlement of years of litigation at a January 2018 meeting. The Hotel disagreed and sought a declaratory judgment that no settlement existed. The superior court agreed with the Hotel and awarded attorneys’ fees, and the Court of Appeals affirmed.

Why did the court find there was no enforceable settlement?

Under Arizona Rule of Civil Procedure 80(a), a disputed agreement to resolve pending litigation is binding only if it is in writing or made orally in open court and entered in the minutes. Nothing was said in open court, and the only “writing” was the Hotel general counsel’s notes listing the homeowners’ demands, which he later discarded. Those notes did not show the Hotel’s assent, and the Hotel maintained no deal could close without its owner’s approval, so Rule 80(a) and the Statute of Frauds barred enforcement.

Do informal notes from a settlement meeting count as a binding agreement?

Not here. The court explained that notes recording one side’s demands do not satisfy the writing requirement unless they reflect mutual assent to all terms. Because the Hotel disputed that any agreement existed and denied assenting, the notes were insufficient. The safest practice is to reduce any settlement to a signed term sheet or to place it on the record in open court.

Why were the Whitmers held liable for fees when they were not even at the meeting?

Although the Whitmers were asked to leave the meeting, they answered the declaratory action, defended the alleged settlement alongside the other homeowners, and asserted counterclaims that depended on a contract having been formed. The court held that a party who actively defends an alleged settlement, rather than promptly moving to be dismissed, is a proper party to the judgment and can be held jointly and severally liable for the prevailing party’s attorneys’ fees under A.R.S. section 12-341.01.

Is this decision precedential in Arizona?

No. This is an unpublished memorandum decision. Under Arizona Supreme Court Rule 111(c), it is not precedential and may be cited only as that rule allows. It nonetheless illustrates how Arizona courts apply Rule 80(a), the Statute of Frauds, and the fee statute to disputed settlements.

What is the practical takeaway for HOAs and homeowners?

Do not treat a negotiation as resolved until there is a signed writing or an on-the-record statement of the terms. Relying on an opponent’s informal notes or a verbal recap is risky. And be deliberate about how you litigate: defending an alleged settlement and pressing contract-dependent counterclaims can expose you to the other side’s attorneys’ fees if you lose, because a dispute over whether a contract exists is treated as a contract action.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation1 CA-CV 20-0476 (Ariz. Ct. App. Aug. 24, 2021) (mem. decision)
Court / tribunalCourt of Appeals
Decision / key dateAugust 24, 2021
Judge / panelJennifer B. Campbell (author), D. Steven Williams (Presiding Judge), James B. Morse Jr.
PartiesHomeowners (Zadok & Hana Eli and Lamar Whitmer & Colleen London) v. Procaccianti AZ II LP (Hotel and ground lessor at the Scottsdale Hilton Casitas)
Governing law
Topics
attorneys-feesproceduregood-faith-and-fair-dealing
Outcome / holding

A disputed settlement of pending litigation is unenforceable under Arizona Rule of Civil Procedure 80(a) and the Statute of Frauds (A.R.S. § 44-101) unless it is reduced to a signed writing or made orally in open court and entered in the minutes; opposing counsel’s discarded notes merely listing one side’s demands do not satisfy the writing requirement where the other party never assented. Parties who jointly defend and rely on an alleged settlement (rather than moving to be dismissed) are proper parties to the resulting declaratory judgment and may be held jointly and severally liable for attorneys’ fees under A.R.S. § 12-341.01.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package1 PDF
Step-by-step docket roadmap8 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

Zadok and Hana Eli and Lamar Whitmer and Colleen London (the “Homeowners”) own or once owned casitas at the Scottsdale Hilton Casitas, a community where residents lease the underlying ground from Procaccianti AZ II LP (the “Hotel”). Since 2012 the Homeowners, the Hilton Casitas Homeowners Association, and the Hotel had litigated over ground-lease pricing and related disputes. In January 2018 the parties met to negotiate a global settlement of all pending litigation. At the Elis’ insistence the HOA’s representative was excluded, and Lamar Whitmer was asked to leave because the Whitmers’ claims concerned only the HOA. During the meeting the Hotel’s general counsel wrote down the remaining Homeowners’ monetary and lease demands and read them back, but no drafts were exchanged, nothing was signed, and counsel discarded his notes afterward. When the Homeowners claimed an enforceable settlement had been reached, the Hotel filed a declaratory-judgment action. On cross-motions for summary judgment the superior court found no settlement existed, entered declaratory judgment for the Hotel, and awarded $114,255.70 in attorneys’ fees jointly and severally against the Homeowners. The Court of Appeals affirmed. Because the existence of the agreement was disputed and it was neither reduced to a signed writing nor stated in open court, Rule 80(a) and the Statute of Frauds barred enforcement, and counsel’s notes did not show mutual assent. The court also held the Whitmers were proper parties jointly liable for fees because they defended the alleged settlement and asserted dependent counterclaims instead of moving to be dismissed, and it granted the Hotel its appellate fees.

Key Issues & Findings

Reviewing summary judgment de novo, the court applied Rule 80(a), which makes a disputed agreement to resolve pending litigation unenforceable unless it is in writing or made orally in open court and entered in the minutes. Because the Hotel disputed that any agreement existed, asserting that its general counsel told the Homeowners no deal could close without owner Procaccianti’s approval, and because nothing was pronounced in open court, the Homeowners could prevail only by producing a writing showing mutual assent on all terms. General counsel Hadar’s discarded notes merely recorded the Elis’ demands and did not evidence the Hotel’s assent, so Rule 80(a) and the Statute of Frauds barred enforcement. The court refused to remand for a trial on whether oral conditions were added, reasoning that doing so would eviscerate Rule 80(a)’s purpose of preventing disputes over the existence and terms of settlements. The Whitmers were proper parties because, although absent from the meeting, they answered and defended the alleged settlement and asserted counterclaims dependent on the contract’s existence rather than moving under Rule 12(b)(6) to be dismissed; a dispute over whether a contract exists is a contract matter, so they were jointly and severally liable for fees under A.R.S. § 12-341.01.

Why It Matters

For HOA communities and their members, this decision is a reminder that settlements of pending litigation carry a heightened formality requirement. Even when the parties meet, discuss numbers, and one side writes them down, there is no enforceable deal unless it is reduced to a signed writing or stated orally in open court and entered in the minutes. Rule 80(a) exists precisely to prevent later disputes about what was agreed, so homeowners, boards, and their counsel should insist on a signed term sheet before treating a negotiation as resolved and should be wary of relying on an opponent’s informal notes.

The decision also shows the fee exposure that flows from how a party litigates. The Whitmers, who were not even in the room, still faced joint and several liability for the Hotel’s fees because they answered, defended the alleged settlement, and pressed counterclaims that depended on the contract existing, instead of promptly moving to be dismissed. Because a fight over whether a contract exists is treated as a contract action, A.R.S. § 12-341.01 allowed a fee award to the prevailing party. As an unpublished memorandum decision under Arizona Supreme Court Rule 111(c), the ruling is not precedential and may be cited only as that rule allows, but it illustrates well-settled Arizona principles on settlement enforceability and fees.

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

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Arizona HOA case (non-precedential)

The Court of Appeals reversed summary judgment for a lot owner over a saguaro-with-sunglasses sculpture, ruling that CC&R silence on ‘sculptures’ was not dispositive and that the association must apply its governing documents reasonably.

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

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

Reversing summary judgment entered for the lot owner, the Court of Appeals held that genuine issues of material fact remained as to whether the yard sculpture was subject to the Association’s CC&R approval and architectural-control provisions. The absence of the word ‘sculpture’ in the CC&Rs was not dispositive, and the Association and any reviewing committee must apply the governing documents reasonably. The matter was remanded for further proceedings.

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 a recorded Declaration of Covenants, Conditions and Restrictions (CC&Rs). The company’s principal, Arvin Bernstein, lived on the property. In 2006 the owner installed a metal yard sculpture in the shape of a saguaro cactus wearing sunglasses.

Roughly two years after the sculpture went up, the Pinnacle Peak Vistas III Homeowners’ Association sent the owner a letter treating the sculpture as an unapproved modification of the property. The Association demanded that the sculpture be removed, taking the position that it violated the community’s CC&Rs and its architectural or design-review requirements.

When the dispute was not resolved, the Association filed suit against Derailed, LLC in the Maricopa County Superior Court seeking to enforce the governing documents. Derailed defended on the ground, among others, that the CC&Rs did not specifically address sculptures and therefore did not authorize the Association to compel removal of this particular yard feature.

The Superior Court granted summary judgment in favor of Derailed, ending the case at the trial level in the owner’s favor. The Association appealed that ruling to the Arizona Court of Appeals, Division One, arguing that the sculpture was subject to the community’s approval and architectural-control provisions and that, at a minimum, disputed facts should have prevented summary judgment.

The Court of Appeals, in a unanimous memorandum decision authored by Judge Sheldon Weisberg, reversed. The panel acknowledged that the CC&Rs do not use the word ‘sculpture,’ but held that this omission did not entitle the owner to judgment as a matter of law. The court framed the real question as whether the sculpture fell within the Declaration’s broader provisions on structures, exterior changes, and design review.

Because material factual questions remained about whether and how the CC&Rs and community rules reached the sculpture, the court concluded that summary judgment was improper. It emphasized that the Association and any committee reviewing the sculpture must act reasonably in applying the governing documents, and it expressly declined to decide whether the sculpture was ‘unsightly,’ leaving those issues for the trial court.

The Court of Appeals reversed the summary judgment and remanded the case to the Superior Court for further proceedings consistent with its decision. Because the ruling is an unpublished memorandum decision, it is non-precedential and may be cited only as permitted by the applicable rules of the Arizona courts.

For Arizona homeowners and boards, this decision illustrates that a community’s authority to regulate what appears on a lot is not necessarily limited to the exact objects listed in the CC&Rs. The court declined to treat the Declaration’s silence on ‘sculptures’ as a loophole; instead it asked whether the item fell within broader categories such as structures, exterior modifications, or matters subject to architectural or design review. Owners considering a distinctive yard feature, and boards deciding whether to enforce, should read the governing documents as a whole rather than searching for a single missing word. At the same time, the opinion underscores a limit on association power: the Association and any reviewing committee must apply the CC&Rs reasonably, and courts will not simply defer to a subjective label like ‘unsightly.’ Just as important is the case’s procedural posture. Because disputed facts remained about how the documents applied, summary judgment was inappropriate and the dispute had to be developed further below. Finally, this is an unpublished memorandum decision, so it is non-precedential and carries no binding authority; it is useful here only as a neutral, educational illustration of how these CC&R and architectural-review questions can arise.

Counsel note: Carpenter Hazlewood represented the association in this architectural-review appeal.

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, Division One, reverses the summary judgment and remands, holding fact questions remain and that the Association must apply the CC&Rs reasonably.

Filed by: Court record

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

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 a split outcome by stage. The trial court granted summary judgment to the owner, but the Arizona Court of Appeals reversed that ruling in favor of the Association and sent the case back for further proceedings. The appellate decision did not finally decide whether the sculpture had to be removed; it decided only that the dispute could not be resolved on summary judgment.

Did the CC&Rs specifically ban sculptures?

No. The court acknowledged that the CC&Rs did not use the word ‘sculpture.’ It held, however, that this silence did not automatically entitle the owner to win. The key question was whether the sculpture fell within the CC&Rs’ broader provisions on structures, exterior modifications, and design or architectural review, which remained a disputed factual issue.

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?

‘Reversed’ means the Court of Appeals overturned the trial court’s summary judgment for the owner. ‘Remanded’ means the case was sent back to the Maricopa County Superior Court to continue, because genuine issues of material fact remained that a court could not resolve without further proceedings.

What is the practical takeaway for homeowners and boards?

Read the governing documents as a whole. A community’s authority may extend to items not named word-for-word in the CC&Rs if they fall within broader categories like structures or exterior modifications. At the same time, associations and their review committees must apply the documents reasonably, and courts will not simply accept a subjective label such as ‘unsightly.’ Homeowners and boards facing a similar issue should consult a qualified Arizona attorney about their specific facts.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citationNo. 1 CA-CV 10-0604 (Ariz. Ct. App. Div. One May 31, 2011) (mem. decision)
Court / tribunalCourt of Appeals
Decision / key dateMay 31, 2011
Judge / panelSheldon H. Weisberg
PartiesA Scottsdale homeowners’ association sued a lot owner over an unapproved metal yard sculpture; the Court of Appeals reversed summary judgment for the owner, holding fact questions remained on whether the CC&Rs and architectural-review rules reached the sculpture.
Topics
architectural-reviewcc-and-rscovenantsproceduregood-faith-and-fair-dealing
Outcome / holding

Reversing summary judgment entered for the lot owner, the Court of Appeals held that genuine issues of material fact remained as to whether the yard sculpture was subject to the Association’s CC&R approval and architectural-control provisions. The absence of the word ‘sculpture’ in the CC&Rs was not dispositive, and the Association and any reviewing committee must apply the governing documents reasonably. The matter was remanded for further proceedings.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source packageNo raw source-folder files found for this slug
Step-by-step docket roadmap4 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases0 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. The sculpture was erected in 2006; about two years later the Association sent a letter declaring it an unapproved modification and demanding its removal, contending it violated the community’s Declaration of Covenants, Conditions and Restrictions (CC&Rs) and the community’s architectural or design-review requirements. The Maricopa County Superior Court granted summary judgment to Derailed, and the Association appealed. The Arizona Court of Appeals, Division One, reversed and remanded in an unpublished memorandum decision authored by Judge Sheldon Weisberg. The court noted that the CC&Rs do not specifically mention ‘sculptures,’ but rejected the idea that this omission entitled the owner to judgment as a matter of law. Factual questions remained about whether the sculpture qualified as a structure or exterior change subject to the approval provisions and how the Association’s rules applied. The court emphasized that the Association and any reviewing committee must act reasonably in applying the governing documents, while declining to decide whether the sculpture itself was ‘unsightly.’ Because disputed issues of material fact precluded summary judgment, the case was remanded for further proceedings. As a memorandum decision, the opinion is non-precedential and may be cited only as authorized by applicable court rules.

Key Issues & Findings

The court reviewed the grant of summary judgment de novo, viewing the evidence in the light most favorable to the Association as the party opposing the motion. It reasoned that the CC&Rs’ silence on the specific word ‘sculpture’ did not, by itself, place the yard installation outside the Declaration’s reach; the operative question was whether the sculpture fell within the CC&Rs’ broader provisions governing structures, exterior modifications, and design or architectural review. Because the record left open whether the sculpture was a modification subject to approval and how the community’s rules applied to it, those were disputed factual issues for the trial court rather than questions the appellate court could resolve as a matter of law. The court also stressed that the Association and any committee charged with reviewing the sculpture must exercise their authority reasonably when applying the governing documents, and it expressly declined to opine on whether the sculpture was ‘unsightly,’ leaving aesthetic judgments and the reasonableness of enforcement to be developed on remand.

Why It Matters

For Arizona homeowners and boards, this decision illustrates that a community’s authority to regulate what appears on a lot is not necessarily limited to the exact objects listed in the CC&Rs. The court declined to treat the Declaration’s silence on ‘sculptures’ as a loophole; instead it asked whether the item fell within broader categories such as structures, exterior modifications, or matters subject to architectural or design review. Owners considering a distinctive yard feature, and boards deciding whether to enforce, should read the governing documents as a whole rather than searching for a single missing word.

At the same time, the opinion underscores a limit on association power: the Association and any reviewing committee must apply the CC&Rs reasonably, and courts will not simply defer to a subjective label like ‘unsightly.’ Just as important is the case’s procedural posture. Because disputed facts remained about how the documents applied, summary judgment was inappropriate and the dispute had to be developed further below. Finally, this is an unpublished memorandum decision, so it is non-precedential and carries no binding authority; it is useful here only as a neutral, educational illustration of how these CC&R and architectural-review questions can arise.

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Swain v. Bixby Village Golf Course, Inc.: HOA Court Case Guide

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CC&R Enforcement & Amenity Covenants | Powell v. Washburn / Decker v. Hendricks | 247 Ariz. 405 (1 CA-CV 18-0397)

Division One holds that a recorded community covenant can compel an owner to affirmatively operate a golf course, and that self-created economic hardship is not a “material change in circumstances” that lets a buyer escape the restriction.

Arizona Court of Appeals | 247 Ariz. 405, 450 P.3d 270 (App. 2019) (No. 1 CA-CV 18-0397) | Decided 2019-09-19

Read the source opinion FAQ

Scope note: This educational page summarizes Swain v. Bixby Village Golf Course, Inc., 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

A restrictive covenant in a community declaration can impose an affirmative duty, here a duty to actually operate a golf course, and not merely prohibit other uses. Covenants are construed under Powell v. Washburn to effectuate the parties’ intent and the covenant’s purposes. A “material change in circumstances” is measured by the common-law standard of Decker v. Hendricks, which requires changes so fundamental that they defeat the covenant’s purpose; mere economic hardship, especially self-created hardship incurred by a buyer who took title with notice, is insufficient. The Court of Appeals affirmed a mandatory permanent injunction to restore and operate the course and rejected the owner’s Thirteenth Amendment involuntary-servitude challenge.

Case Participants

Petitioner Side

  • Bixby Village Golf Course, Inc. (Defendant-Appellant)
    Bought both Ahwatukee golf courses in 2006 and in 2013 closed and dismantled the Lakes course before selling the parcel to TTLC; defendant/appellant.
  • TTLC Ahwatukee Lakes Investors, LLC (Defendant-Appellant)
    Development entity that bought the Lakes parcel with notice of the covenant and pending litigation, sought residential redevelopment, and counterclaimed material change in circumstances; defendant/appellant.
  • Chris R. Baniszewski (Counsel)
    Warner, Angle, Hallam, Jackson & Formanek PLC
    Counsel for defendants/appellants TTLC Ahwatukee Lakes Investors, LLC and Bixby Village Golf Course, Inc. (Phoenix).

Respondent Side

  • Linda W. Swain (Plaintiff-Appellee)
    Ahwatukee homeowner and enforcing “Benefitted Person” under the Declaration; sued to enforce the golf-course covenant. Reportedly paid roughly a $26,000 premium for a golf-course-adjacent lot.
  • Eileen Breslin (Plaintiff-Appellee)
    Ahwatukee homeowner and co-plaintiff/appellee who joined Swain in the CC&R enforcement action.
  • Timothy H. Barnes (Counsel)
    Timothy H. Barnes PC (now Fletcher Barnes Law)
    Counsel for plaintiffs/appellees Swain and Breslin (Phoenix).
  • Daniel D. Maynard (Counsel)
    Maynard, Cronin, Erickson, Curran & Reiter PLC
    Counsel on the homeowner/appellee side (Phoenix); FindLaw lists him for a co-appellee, likely in connection with a cross-appeal.

Neutral Parties

  • Randall M. Howe (Judge)
    Presiding Judge, Arizona Court of Appeals, Division One; authored the opinion.
  • Jennifer M. Perkins (Judge)
    Judge, Arizona Court of Appeals, Division One; joined the opinion.
  • David D. Weinzweig (Judge)
    Judge, Arizona Court of Appeals, Division One; joined the opinion.

What happened

Ahwatukee is a large master-planned community in the Phoenix area, roughly 5,200 homes developed around two golf courses, including the Ahwatukee Lakes course. Beginning in 1986 the original developer recorded deed restrictions on the golf-course land, and in 1992 those restrictions were memorialized in a Declaration of CC&Rs limiting the Lakes parcel to golf-course use. The restriction served the community twice over: it helped secure favorable Arizona golf-course property-tax valuation, and it protected the value and setting of the surrounding homes, whose owners were expressly named as enforcing “Benefitted Persons” under the Declaration.

In 2006 Bixby Village Golf Course, Inc. purchased both Ahwatukee golf courses. In 2013 Bixby closed the Ahwatukee Lakes course and dismantled it, draining the lakes, removing turf and irrigation, and installing barbed-wire fencing. What had been a manicured amenity backing dozens of homes became a fenced-off, weed-covered expanse, and the surrounding owners lost the golf-course views and setting they had relied on and, in some cases, paid a premium to obtain.

Homeowners Linda W. Swain and Eileen Breslin sued to enforce the CC&Rs, contending the Declaration obligated the owner not just to refrain from other uses but to actually operate a golf course on the Lakes parcel. Because the Declaration designated adjoining owners as “Benefitted Persons” with enforcement rights, the homeowners were able to bring the covenant-enforcement action directly, without an HOA entity as the named plaintiff.

While the litigation was pending, Bixby sold the Lakes parcel to TTLC Ahwatukee Lakes Investors, LLC, a development entity that wanted to redevelop the land for residential housing. The Declaration allowed the golf-course restriction to be modified only with the approval of at least 51% of the affected homeowners. TTLC could not obtain that approval. It instead counterclaimed, arguing that a “material change in circumstances” had rendered continued golf-course operation impractical and justified judicial modification or termination of the covenant.

The superior court sided with the homeowners. It granted summary judgment and entered a mandatory permanent injunction ordering the golf course to be restored and operated in compliance with the CC&Rs. The court rejected TTLC’s changed-circumstances theory and its constitutional defense, and TTLC and Bixby appealed to Division One of the Arizona Court of Appeals.

On September 19, 2019, Division One affirmed in a published opinion authored by Presiding Judge Randall M. Howe, joined by Judges Jennifer M. Perkins and David D. Weinzweig. The panel held the covenant imposed an affirmative operating duty under Powell v. Washburn; that under Decker v. Hendricks the owner’s self-created economic hardship was not a material change in circumstances; that compelling a buyer who took encumbered land with notice to comply did not violate the Thirteenth Amendment; and that the prevailing homeowners could recover attorneys’ fees under the Declaration. The United States Supreme Court denied certiorari on November 9, 2020.

Swain confirms that Arizona restrictive covenants can compel affirmative action, not merely forbid it. An owner who takes land burdened by a recorded continuous-use or “shall operate” covenant may be ordered to actually perform, here to restore and run a shuttered golf course, rather than simply pay damages. For residents of communities built around amenities such as golf courses, lakes, open space, or clubhouses, the decision is a powerful tool: where the governing documents designate them as “Benefitted Persons,” individual owners can enforce amenity covenants directly, even when no HOA entity is a party to the suit. The case also narrows the “changed circumstances” escape hatch. A developer or investor cannot dismantle an amenity, declare that the market has changed, and expect a court to rewrite the covenant, particularly after buying with full notice and failing to secure the homeowner vote the documents require for an amendment. The ruling underscores that self-created economic hardship is not a material change, that recorded restrictions run with the land against successors, and that fee-shifting clauses can make covenant enforcement financially viable for ordinary owners. Boards and buyers alike should treat amenity-use covenants as durable, affirmative obligations that survive changes in ownership and market conditions.

Litigation record

Step 1 1986

The original developer records deed restrictions on the Ahwatukee golf-course land, limiting the Lakes parcel to golf-course use.

Filed by: Court record

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

Step 2 1992

The restrictions are memorialized in a Declaration of CC&Rs that ties the Lakes parcel to golf-course use, references favorable golf-course tax valuation, and designates adjoining homeowners as enforcing “Benefitted Persons.”

Filed by: Court record

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

Step 3 2006

Bixby Village Golf Course, Inc. purchases the two Ahwatukee golf courses.

Filed by: Court record

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

Step 4 2013

Bixby closes and dismantles the Ahwatukee Lakes course, draining the lakes and installing barbed-wire fencing.

Filed by: Court record

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

Step 5 2015

Homeowners Linda W. Swain and Eileen Breslin sue to enforce the CC&Rs; Bixby sells the Lakes parcel to TTLC Ahwatukee Lakes Investors, LLC, which seeks residential redevelopment.

Filed by: Court record

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

Step 6

TTLC fails to obtain the 51% homeowner approval the Declaration requires to amend the golf-course covenant and counterclaims that a “material change in circumstances” justifies modifying it.

Filed by: Court record

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

Step 7 2018

The Maricopa County Superior Court grants summary judgment for the homeowners and enters a mandatory permanent injunction to restore and operate the course; TTLC and Bixby appeal (docketed 1 CA-CV 18-0397).

Filed by: Court record

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

Step 8 2019-09-19

Division One of the Arizona Court of Appeals affirms in a published opinion by Presiding Judge Howe, joined by Judges Perkins and Weinzweig.

Filed by: Court record

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

Step 9 2020-11-09

The United States Supreme Court denies certiorari, leaving the affirmed injunction in place.

Filed by: Court record

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

FAQ

What was Swain v. Bixby Village Golf Course about?

It was a dispute over the Ahwatukee Lakes golf course in Phoenix. Recorded CC&Rs limited the parcel to golf-course use and named surrounding homeowners as enforcing “Benefitted Persons.” After the course was closed and dismantled in 2013, homeowners Linda Swain and Eileen Breslin sued to enforce the covenant. The parcel’s new owner, TTLC Ahwatukee Lakes Investors, wanted to build housing and argued the covenant should be modified. The courts ordered the course restored and operated.

Can an Arizona covenant force a property owner to actually operate an amenity?

Yes. The Court of Appeals held that a properly drafted, recorded covenant can impose an affirmative duty, such as a duty to operate a golf course, not just prohibit other uses. Reading the Declaration under Powell v. Washburn to effectuate the drafters’ intent and purposes, the court affirmed a mandatory injunction requiring the owner to restore and run the course.

Why didn’t the “material change in circumstances” argument work?

Under the common-law standard from Decker v. Hendricks, only changes so fundamental that they defeat the covenant’s purpose will excuse performance. The court found continued golf-course operation remained economically feasible, and TTLC’s hardship was economic and largely self-created: it bought the land with notice of the covenant and pending litigation and failed to obtain the 51% homeowner approval the Declaration required to amend the restriction.

How could individual homeowners sue when no HOA was a party?

The Declaration expressly designated adjoining owners as enforcing “Benefitted Persons.” That gave individual homeowners the right to enforce the golf-course covenant directly, so Swain and Breslin could bring the action themselves without an HOA entity as the named plaintiff.

Did the Thirteenth Amendment prevent the court from ordering the owner to operate the course?

No. The court rejected TTLC’s involuntary-servitude argument. Because TTLC voluntarily acquired land already encumbered by the recorded covenant, and with notice of it, an order compelling compliance with the restriction did not amount to involuntary servitude under the Thirteenth Amendment.

Is Swain v. Bixby Village binding precedent, and who paid the attorneys’ fees?

Yes. It is a published opinion of the Arizona Court of Appeals, reported at 247 Ariz. 405, 450 P.3d 270 (App. 2019), and the U.S. Supreme Court denied certiorari in November 2020, so it remains citable authority. The court confirmed that the prevailing homeowners were entitled to recover their attorneys’ fees under the fee-shifting provision in the Declaration.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation247 Ariz. 405, 450 P.3d 270 (App. 2019) (No. 1 CA-CV 18-0397)
Court / tribunalCourt of Appeals
Decision / key dateSeptember 19, 2019
Judge / panelRandall M. Howe (Presiding Judge, author), Jennifer M. Perkins, David D. Weinzweig
PartiesLinda W. Swain and Eileen Breslin (neighboring homeowners / CC&R “Benefitted Persons”; Plaintiffs/Appellees) v. Bixby Village Golf Course, Inc. and TTLC Ahwatukee Lakes Investors, LLC (golf-course/property owners; Defendants/Appellants)
Governing law
  • A.R.S. §§ 42-13151 to -13154 (golf-course property-tax valuation; referenced in the CC&Rs)
  • U.S. Const. amend. XIII (involuntary servitude)
Topics
cc-and-rscovenantsamendmentsgood-faith-and-fair-dealingattorneys-fees
Outcome / holding

A restrictive covenant in a community declaration can impose an affirmative duty, here a duty to actually operate a golf course, and not merely prohibit other uses. Covenants are construed under Powell v. Washburn to effectuate the parties’ intent and the covenant’s purposes. A “material change in circumstances” is measured by the common-law standard of Decker v. Hendricks, which requires changes so fundamental that they defeat the covenant’s purpose; mere economic hardship, especially self-created hardship incurred by a buyer who took title with notice, is insufficient. The Court of Appeals affirmed a mandatory permanent injunction to restore and operate the course and rejected the owner’s Thirteenth Amendment involuntary-servitude challenge.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source packageNo raw source-folder files found for this slug
Step-by-step docket roadmap9 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases0 download links

Key Issues & Findings

Case Summary

Ahwatukee is a Phoenix master-planned community of roughly 5,200 homes built around two golf courses. Starting in 1986 the developer recorded deed restrictions, later memorialized in a 1992 Declaration of Covenants, Conditions & Restrictions, limiting the Ahwatukee Lakes parcel to golf-course use. The restriction served two purposes: it secured favorable Arizona golf-course property-tax valuation, and it protected adjoining homeowners, who were expressly designated as enforcing “Benefitted Persons.” In 2006 Bixby Village Golf Course, Inc. bought both courses, and in 2013 it closed and dismantled the Lakes course, draining its lakes and installing barbed-wire fencing. Homeowners Linda W. Swain and Eileen Breslin sued for breach of the CC&Rs. Bixby then sold the parcel to TTLC Ahwatukee Lakes Investors, LLC, which wanted to redevelop the land for housing. After failing to obtain the 51% homeowner approval needed to amend the covenant, TTLC counterclaimed that a “material change in circumstances” justified modifying it. The trial court granted summary judgment to the homeowners and entered a mandatory permanent injunction ordering the course restored and operated. Division One of the Arizona Court of Appeals affirmed. It held the covenant imposed an affirmative duty to operate the course, construed under Powell v. Washburn to effectuate the drafters’ intent and purposes. Applying Decker v. Hendricks, it rejected the material-change defense because operation remained feasible and TTLC bought with notice of the restriction and pending litigation. The court also rejected a Thirteenth Amendment involuntary-servitude challenge and confirmed the prevailing homeowners’ right to recover attorneys’ fees under the Declaration.

Key Issues & Findings

The court construed the covenant under Powell v. Washburn, reading the Declaration as a whole to give effect to the drafters’ intent and the covenant’s purposes. Because the restriction existed to preserve golf-course use for the benefit of adjoining owners and to secure favorable golf-course tax valuation, it imposed an affirmative duty to operate the course, not merely a passive limitation on other uses. The court rejected the argument that a covenant can only forbid conduct: nothing in Arizona law prevents a properly drafted, recorded covenant from compelling an owner to maintain and run an amenity.

On the counterclaim, the court applied the common-law changed-conditions standard from Decker v. Hendricks. Only changes so radical that they defeat the essential purpose of the restriction will excuse performance. Continued operation of the Lakes course remained economically feasible, and the hardship TTLC identified was economic and largely self-created: it bought the parcel with record notice of the golf-course covenant and with the homeowners’ enforcement litigation already pending, and it failed to obtain the 51% homeowner approval the Declaration required to amend the restriction. Self-inflicted economic disadvantage is not a material change in circumstances.

Equitable considerations supported the mandatory injunction. The homeowners had reasonably relied on the golf-course setting and paid for it, with one plaintiff having paid roughly a $26,000 premium for a golf-course-adjacent lot, and Arizona policy protects reasonable reliance on recorded residential restrictions. Finally, because TTLC voluntarily acquired encumbered land with notice, an order compelling compliance did not amount to involuntary servitude under the Thirteenth Amendment, and the fee-shifting provision in the Declaration entitled the prevailing homeowners to recover their attorneys’ fees.

Why It Matters

Swain confirms that Arizona restrictive covenants can compel affirmative action, not merely forbid it. An owner who takes land burdened by a recorded continuous-use or “shall operate” covenant may be ordered to actually perform, here to restore and run a shuttered golf course, rather than simply pay damages. For residents of communities built around amenities such as golf courses, lakes, open space, or clubhouses, the decision is a powerful tool: where the governing documents designate them as “Benefitted Persons,” individual owners can enforce amenity covenants directly, even when no HOA entity is a party to the suit.

The case also narrows the “changed circumstances” escape hatch. A developer or investor cannot dismantle an amenity, declare that the market has changed, and expect a court to rewrite the covenant, particularly after buying with full notice and failing to secure the homeowner vote the documents require for an amendment. The ruling underscores that self-created economic hardship is not a material change, that recorded restrictions run with the land against successors, and that fee-shifting clauses can make covenant enforcement financially viable for ordinary owners. Boards and buyers alike should treat amenity-use covenants as durable, affirmative obligations that survive changes in ownership and market conditions.

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Robert Jashinsky v. Dorada Estates Community Association, Inc.: HOA Court Case Guide

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Architectural Review & CC&Rs | A.R.S. §§ 12-2102(C), 12-1831 to -1845 | 1 CA-CV 24-0721

In this 2025 unpublished decision, Division One held that an HOA’s broad, “sole and absolute” design-review discretion remains constrained by the implied duty of good faith and fair dealing and the duty to act reasonably, and that whether those duties were breached was a jury question.

Last updated July 1, 2026. Case: Robert Jashinsky v. Dorada Estates Community Association, Inc.; 1 CA-CV 24-0721; CV2022-006735.

Download the ruling PDF

Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

Even where a community association’s governing documents grant its design review committee broad, “sole and absolute” discretion, that discretion is constrained by the association’s implied duty of good faith and fair dealing and its duty to treat members fairly and act reasonably in exercising discretionary design-control powers (Restatement (Third) of Property (Servitudes) section 6.13; Tierra Ranchos). Whether the association breached those duties is a question of fact for the jury, and the trial court did not abuse its discretion in awarding equitable relief compelling the association to allow the proposed construction. Affirmed.

Case Participants

Neutral Parties

  • Robert Jashinsky (Appellee)
    Dorada Estates homeowner (bought in 2019) whose backyard casita/pergola proposal was repeatedly denied by the DRC; plaintiff below and prevailing appellee.
  • Dorada Estates Community Association, Inc. (Appellant)
    Homeowners association whose Design Review Committee denied the proposal; defendant below and appellant.
  • Angelika O. Doebler (Counsel)
    Galbut Beabeau, P.C.
    Counsel for Plaintiff/Appellee Robert Jashinsky.
  • Olivier A. Beabeau (Counsel)
    Galbut Beabeau, P.C.
    Counsel for Plaintiff/Appellee Robert Jashinsky.
  • Nicholas C. Nogami (Counsel)
    CHDB Law LLP
    Counsel for Defendant/Appellant Dorada Estates Community Association, Inc.
  • Tessa Knueppel (Counsel)
    CHDB Law LLP
    Counsel for Defendant/Appellant Dorada Estates Community Association, Inc.
  • Cynthia J. Bailey (Judge)
    Presiding Judge, Court of Appeals Division One; authored the memorandum decision.
  • Randall M. Howe (Judge)
    Vice Chief Judge, Court of Appeals Division One; joined the decision.
  • Andrew M. Jacobs (Judge)
    Judge, Court of Appeals Division One; joined the decision.
  • Timothy J. Ryan (Judge)
    Maricopa County Superior Court judge who presided over the trial and entered judgment (below).

What happened and why it matters

Homeowner Robert Jashinsky sued his homeowners’ association, Dorada Estates Community Association, Inc., after its Design Review Committee (DRC) repeatedly denied his proposal to build an 879-square-foot backyard casita with an attached pergola. The community’s recorded Declaration gave the DRC “sole and absolute discretion” over design proposals, but internal board emails suggested the committee was searching for a reason to deny the project and ultimately relied on Design Guidelines adopted after Jashinsky’s submission. A three-day Maricopa County jury trial produced a $52,740 damages award for breach of the covenant of good faith and fair dealing and breach of the association’s duty to act reasonably, and the superior court separately granted equitable and declaratory relief ordering the association to permit the construction. On appeal, Division One affirmed. It held that the homeowner’s testimony about estimated building costs was admissible (not hearsay under State v. Printz); that the court lacked jurisdiction to review the sufficiency of the evidence because the association never moved for a new trial or renewed judgment as a matter of law (A.R.S. section 12-2102(C)); that whether the HOA acted reasonably was a fact question for the jury; that the failure to plead injunctive relief was cured by raising the issue in the joint pretrial statement; and that the equitable remedy was within the trial court’s discretion. This is an unpublished memorandum decision and is not precedential under Ariz. R. Sup. Ct. 111(c).

The Court of Appeals addressed five arguments. First, on the evidentiary challenge, the court reviewed for abuse of discretion and held that Jashinsky’s testimony about the casita’s estimated $200-per-square-foot building cost was not inadmissible hearsay. Applying State v. Printz, 125 Ariz. 300 (1980), the court explained that knowledge of value does not necessarily rest on hearsay; when a witness acquires first-hand knowledge of value through multiple negotiations or consultations rather than a single out-of-court assertion offered for its truth, the resulting estimate is admissible. Because Jashinsky derived his estimate from consultations with an architect and a contractor, the superior court did not abuse its discretion in overruling the hearsay objection.

Second, the court held it lacked jurisdiction to review the sufficiency of the evidence supporting the damages award. Under A.R.S. section 12-2102(C) and Marquette Venture Partners II, L.P. v. Leonesio, an appellant who made a Rule 50(a) motion at the close of evidence must move for a new trial or for renewed judgment as a matter of law to preserve a sufficiency challenge on appeal. Because Dorada Estates did neither, appellate jurisdiction over that issue was absent.

Third, and most significant for HOA law, the court held that whether the association acted reasonably was a factual question reserved for the jury. Even where governing documents afford broad discretion, that discretion is constrained by duties the association owes its members: the implied covenant of good faith and fair dealing (Restatement (Second) of Contracts section 205; Restatement (Third) of Property (Servitudes) section 4.1) and the duty under Restatement (Third) of Property (Servitudes) section 6.13(1)(b), (c) to treat members fairly and act reasonably in exercising discretionary powers, including design-control powers. Arizona adopted this approach in Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195 (App. 2007), and whether an association breached those duties is a question of fact (Maleki; Est. of Reinen). By awarding damages, the jury implicitly found Dorada Estates breached both duties, and the record supported that finding: the jury could have concluded the DRC gave only pretextual reasons and denied the revised request based on Design Guidelines not in effect when Jashinsky submitted it.

Fourth, the court rejected the argument that Jashinsky’s failure to plead injunctive relief barred his equitable recovery. Under Murphy Farrell Development and Carlton v. Emhardt, listing a claim as a material contested issue in the joint pretrial statement effectively amends the complaint; Jashinsky’s estoppel questions in the joint pretrial statement asked for essentially the relief he obtained. Fifth, the court held the equitable remedy was not an abuse of discretion. Whether to decline enforcement of a covenant turns on equitable considerations such as relative hardship, misconduct, the public interest, and the adequacy of other remedies (Swain; Ahwatukee; Loiselle). The court could weigh the association’s misconduct and the inadequacy of damages, because Jashinsky’s ultimate goal was permission to build, not money. The declaratory and equitable-estoppel judgment ordering the association to allow the construction was therefore affirmed, and the court awarded Jashinsky his appellate attorneys’ fees and costs under the Declaration and A.R.S. section 12-341.

This decision is a clear application of the principle that an HOA’s architectural-review discretion, even when the governing documents describe it as “sole and absolute,” is not unlimited. Division One reaffirmed that Arizona associations owe their members an implied duty of good faith and fair dealing and a duty to act reasonably in exercising design-control powers, and that a jury may find those duties breached where the record shows pretextual denials or reliance on guidelines adopted after a member’s application. For boards and design committees, the practical lesson is that broad discretionary language does not immunize a denial that a factfinder could view as arbitrary, unreasonable, or applied retroactively.

The case also illustrates important procedural and remedial points. On the procedural side, it shows that a Rule 50(a) motion alone does not preserve a sufficiency-of-the-evidence challenge for appeal; a party must also move for a new trial or renewed judgment as a matter of law under A.R.S. section 12-2102(C). On the remedial side, it shows that a court may order an association to permit a proposed modification as equitable relief, and that failing to formally plead injunctive relief is not fatal when the issue is raised in the joint pretrial statement. Although unpublished and non-precedential under Ariz. R. Sup. Ct. 111(c), the decision is a useful illustration of how Arizona courts police the outer limits of HOA architectural discretion.

Step-by-step litigation record

Step 2019 Robert Jashinsky purchases a home in the Dorada Estates community, subject to the recorded Declaration (CC&Rs).
Step 2021-04-16 Jashinsky submits his plan for an 879-square-foot backyard casita and attached pergola to the Design Review Committee after obtaining architect drawings and Town of Queen Creek approval.
Step 2021-04-19 DRC chair Byron Applegate emails the board and community manager (“HUGE REAR YARD CASITA REQUEST!”) noting the committee could deny under the current “visually connected” guideline.
Step 2021 Community manager Shana Morton sends Jashinsky a disapproval notice citing the “visually connected to the main building” requirement; DRC member Bill Monaccio emails that the association “may not have a leg to stand on if we get sued.”
Step 2021-05-04 Jashinsky submits a Revised Architectural Request connecting the casita to the house with a travertine walkway.
Step 2021-05-20 The board approves Revised Design Guidelines (max 1,200 sq ft; rear wall may not extend past the home’s original rear wall); Jashinsky is denied again days later based on the updated guidelines.
Step 2021-10 Board members walk the proposed site with Jashinsky; he is denied again, with the association reiterating the casita must be on the side of the home.
Step 2022-05 Jashinsky files suit asserting breach of the covenant of good faith and fair dealing, promissory and equitable estoppel, negligent misrepresentation, and declaratory relief (Maricopa County Superior Court No. CV2022-006735).
After a three-day jury trial and denial of Dorada Estates’ Rule 50(a) motion, the jury awards Jashinsky $52,740; the court later grants equitable/declaratory relief ordering the association to allow the construction.
Step 2025-05-29 The Arizona Court of Appeals, Division One, files its memorandum decision affirming and awarding Jashinsky appellate attorneys’ fees and costs.

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/jashinsky-v-dorada-estates/raw/: 1 PDF. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.

Source 1 2025-05-29

Opinion

Type: Decision or judgment

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

Download source file
2025-05-29_001_opinion.pdf

FAQ

What was the dispute in Jashinsky v. Dorada Estates about?

A Dorada Estates homeowner, Robert Jashinsky, wanted to build an 879-square-foot casita with an attached pergola in his backyard. The association’s Design Review Committee denied the proposal several times, and Jashinsky sued, claiming the denials breached the association’s duties of good faith and fair dealing and its duty to act reasonably. A jury awarded him $52,740 and the court ordered the association to allow the construction.

Does an HOA’s “sole and absolute discretion” over design allow it to deny anything?

No. The court explained that even when governing documents grant broad, “sole and absolute” discretion, that discretion is constrained by the association’s implied duty of good faith and fair dealing and its duty under the Restatement (Third) of Property (Servitudes) section 6.13 to treat members fairly and act reasonably in exercising design-control powers. Arizona adopted this approach in Tierra Ranchos Homeowners Ass’n v. Kitchukov.

Why did the appeals court refuse to review whether the evidence supported the damages?

Under A.R.S. section 12-2102(C), a party that moves for judgment as a matter of law at the close of evidence must also move for a new trial or a renewed judgment as a matter of law to preserve a sufficiency-of-the-evidence challenge on appeal. Because Dorada Estates did neither, the Court of Appeals lacked jurisdiction to review that issue.

Was the homeowner’s testimony about building costs improper hearsay?

No. The court held that Jashinsky’s estimate of roughly $200 per square foot, based on consultations with an architect and a contractor, was admissible under State v. Printz. Knowledge of value acquired first-hand through such consultations is not hearsay, so the trial court did not abuse its discretion in allowing the testimony.

Could the court order the HOA to allow the project even though the homeowner did not formally plead injunctive relief?

Yes. Under Murphy Farrell Development and Carlton v. Emhardt, listing a claim as a material contested issue in the joint pretrial statement effectively amends the complaint. Jashinsky’s estoppel questions in the joint pretrial statement sought essentially the relief he obtained, so the equitable remedy ordering the association to permit construction was proper and within the trial court’s discretion.

Is this decision binding precedent in Arizona?

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

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation1 CA-CV 24-0721
Court / tribunalCourt of Appeals
Decision / key dateMay 29, 2025
Judge / panelBailey, Howe, Jacobs
PartiesRobert Jashinsky (Plaintiff/Appellee) v. Dorada Estates Community Association, Inc. (Defendant/Appellant)
Governing law
Topics
cc-and-rsarchitectural-reviewgood-faith-and-fair-dealingattorneys-feesprocedure
Outcome / holding

Even where a community association’s governing documents grant its design review committee broad, “sole and absolute” discretion, that discretion is constrained by the association’s implied duty of good faith and fair dealing and its duty to treat members fairly and act reasonably in exercising discretionary design-control powers (Restatement (Third) of Property (Servitudes) section 6.13; Tierra Ranchos). Whether the association breached those duties is a question of fact for the jury, and the trial court did not abuse its discretion in awarding equitable relief compelling the association to allow the proposed construction. Affirmed.

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Key Issues & Findings

Case Summary

Homeowner Robert Jashinsky sued his homeowners’ association, Dorada Estates Community Association, Inc., after its Design Review Committee (DRC) repeatedly denied his proposal to build an 879-square-foot backyard casita with an attached pergola. The community’s recorded Declaration gave the DRC “sole and absolute discretion” over design proposals, but internal board emails suggested the committee was searching for a reason to deny the project and ultimately relied on Design Guidelines adopted after Jashinsky’s submission. A three-day Maricopa County jury trial produced a $52,740 damages award for breach of the covenant of good faith and fair dealing and breach of the association’s duty to act reasonably, and the superior court separately granted equitable and declaratory relief ordering the association to permit the construction. On appeal, Division One affirmed. It held that the homeowner’s testimony about estimated building costs was admissible (not hearsay under State v. Printz); that the court lacked jurisdiction to review the sufficiency of the evidence because the association never moved for a new trial or renewed judgment as a matter of law (A.R.S. section 12-2102(C)); that whether the HOA acted reasonably was a fact question for the jury; that the failure to plead injunctive relief was cured by raising the issue in the joint pretrial statement; and that the equitable remedy was within the trial court’s discretion. This is an unpublished memorandum decision and is not precedential under Ariz. R. Sup. Ct. 111(c).

Key Issues & Findings

The Court of Appeals addressed five arguments. First, on the evidentiary challenge, the court reviewed for abuse of discretion and held that Jashinsky’s testimony about the casita’s estimated $200-per-square-foot building cost was not inadmissible hearsay. Applying State v. Printz, 125 Ariz. 300 (1980), the court explained that knowledge of value does not necessarily rest on hearsay; when a witness acquires first-hand knowledge of value through multiple negotiations or consultations rather than a single out-of-court assertion offered for its truth, the resulting estimate is admissible. Because Jashinsky derived his estimate from consultations with an architect and a contractor, the superior court did not abuse its discretion in overruling the hearsay objection.

Second, the court held it lacked jurisdiction to review the sufficiency of the evidence supporting the damages award. Under A.R.S. section 12-2102(C) and Marquette Venture Partners II, L.P. v. Leonesio, an appellant who made a Rule 50(a) motion at the close of evidence must move for a new trial or for renewed judgment as a matter of law to preserve a sufficiency challenge on appeal. Because Dorada Estates did neither, appellate jurisdiction over that issue was absent.

Third, and most significant for HOA law, the court held that whether the association acted reasonably was a factual question reserved for the jury. Even where governing documents afford broad discretion, that discretion is constrained by duties the association owes its members: the implied covenant of good faith and fair dealing (Restatement (Second) of Contracts section 205; Restatement (Third) of Property (Servitudes) section 4.1) and the duty under Restatement (Third) of Property (Servitudes) section 6.13(1)(b), (c) to treat members fairly and act reasonably in exercising discretionary powers, including design-control powers. Arizona adopted this approach in Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195 (App. 2007), and whether an association breached those duties is a question of fact (Maleki; Est. of Reinen). By awarding damages, the jury implicitly found Dorada Estates breached both duties, and the record supported that finding: the jury could have concluded the DRC gave only pretextual reasons and denied the revised request based on Design Guidelines not in effect when Jashinsky submitted it.

Fourth, the court rejected the argument that Jashinsky’s failure to plead injunctive relief barred his equitable recovery. Under Murphy Farrell Development and Carlton v. Emhardt, listing a claim as a material contested issue in the joint pretrial statement effectively amends the complaint; Jashinsky’s estoppel questions in the joint pretrial statement asked for essentially the relief he obtained. Fifth, the court held the equitable remedy was not an abuse of discretion. Whether to decline enforcement of a covenant turns on equitable considerations such as relative hardship, misconduct, the public interest, and the adequacy of other remedies (Swain; Ahwatukee; Loiselle). The court could weigh the association’s misconduct and the inadequacy of damages, because Jashinsky’s ultimate goal was permission to build, not money. The declaratory and equitable-estoppel judgment ordering the association to allow the construction was therefore affirmed, and the court awarded Jashinsky his appellate attorneys’ fees and costs under the Declaration and A.R.S. section 12-341.

Why It Matters

This decision is a clear application of the principle that an HOA’s architectural-review discretion, even when the governing documents describe it as “sole and absolute,” is not unlimited. Division One reaffirmed that Arizona associations owe their members an implied duty of good faith and fair dealing and a duty to act reasonably in exercising design-control powers, and that a jury may find those duties breached where the record shows pretextual denials or reliance on guidelines adopted after a member’s application. For boards and design committees, the practical lesson is that broad discretionary language does not immunize a denial that a factfinder could view as arbitrary, unreasonable, or applied retroactively.

The case also illustrates important procedural and remedial points. On the procedural side, it shows that a Rule 50(a) motion alone does not preserve a sufficiency-of-the-evidence challenge for appeal; a party must also move for a new trial or renewed judgment as a matter of law under A.R.S. section 12-2102(C). On the remedial side, it shows that a court may order an association to permit a proposed modification as equitable relief, and that failing to formally plead injunctive relief is not fatal when the issue is raised in the joint pretrial statement. Although unpublished and non-precedential under Ariz. R. Sup. Ct. 111(c), the decision is a useful illustration of how Arizona courts police the outer limits of HOA architectural discretion.

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Keith and Kathy Campbell, husband and wife, Plaintiffs/Appellants/Cross-Appellees, v. Florence Gardens Mobile Home Association, an Arizona non-profit corporation; Gail and Steven Haskett; Nick and JoAnn Treinen; Emily J. Webster; Gerald C. and Patricia M. Palmatier; Judith A. and Martin C. Weber, Defendants/Appellees/Cross-Appellants: HOA Court Case Guide

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CC&R Amendments & Pleading Procedure | A.R.S. §§ 33-1804, 33-1812, 33-1817 | 2 CA-CV 2021-0091

An unpublished Division Two decision affirming dismissal of a homeowner fiduciary-duty claim while reviving CC&R-amendment claims, holding a court cannot order a more definite statement of a meeting the HOA concedes never happened.

Last updated July 1, 2026. Case: Keith and Kathy Campbell, husband and wife, Plaintiffs/Appellants/Cross-Appellees, v. Florence Gardens Mobile Home Association, an Arizona non-profit corporation; Gail and Steven Haskett; Nick and JoAnn Treinen; Emily J. Webster; Gerald C. and Patricia M. Palmatier; Judith A. and Martin C. Weber, Defendants/Appellees/Cross-Appellants; 2 CA-CV 2021-0091; S1100CV201901839.

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Scope note: This educational case page summarizes a court ruling for Arizona HOA homeowners, boards, and counsel. It is not legal advice.

The rule in one sentence

The court affirmed dismissal of the homeowners’ breach-of-fiduciary-duty claim, holding the allegations were conclusory and the challenged conduct — counting written CC&R concurrences after the 30-day window — did not involve any collection or misuse of funds giving rise to a fiduciary duty. It held, however, that the trial court erred in ordering a more definite statement, because the Association’s own motion admitted no membership or board meeting ever occurred, so it was impossible for the homeowners to supply a meeting date; the striking of the amended complaint and dismissal of the remaining claims were therefore vacated and remanded.

Case Participants

Neutral Parties

  • Florence Gardens Mobile Home Association (Appellee)
    Arizona non-profit corporation and mobile-home community HOA (Defendant below; Appellee/Cross-Appellant); counted the written concurrences and adopted the amended CC&Rs.
  • Keith Campbell (Appellant)
    Homeowner and former board president (Plaintiff below; Appellant/Cross-Appellee) who objected to counting late concurrences and resigned from the board.
  • Kathy Campbell (Appellant)
    Homeowner and co-plaintiff (Appellant/Cross-Appellee); Keith Campbell’s wife.
  • Gail Haskett (Appellee)
    Individual board-member defendant named in the caption.
  • Steven Haskett (Appellee)
    Individual defendant named in the caption (spouse of Gail Haskett).
  • Nick Treinen (Appellee)
    Individual board-member defendant named in the caption.
  • JoAnn Treinen (Appellee)
    Individual defendant named in the caption (spouse of Nick Treinen).
  • Emily J. Webster (Appellee)
    Individual board-member defendant named in the caption.
  • Gerald C. Palmatier (Appellee)
    Individual board-member defendant named in the caption.
  • Patricia M. Palmatier (Appellee)
    Individual defendant named in the caption (spouse of Gerald C. Palmatier).
  • Judith A. Weber (Appellee)
    Individual board-member defendant named in the caption.
  • Martin C. Weber (Appellee)
    Individual defendant named in the caption (spouse of Judith A. Weber).
  • Melanie C. McKeddie (Counsel)
    McKeddie Cooley G.P. (Scottsdale)
    Counsel for Plaintiffs/Appellants/Cross-Appellees (the Campbells).
  • Justin R. Cooley (Counsel)
    McKeddie Cooley G.P. (Scottsdale)
    Counsel for Plaintiffs/Appellants/Cross-Appellees (the Campbells).
  • Edith I. Rudder (Counsel)
    Carpenter Hazlewood Delgado & Bolen LLP (Tempe)
    Counsel for Defendants/Appellees/Cross-Appellants (the Association and board members).
  • Nicholas C. S. Nogami (Counsel)
    Carpenter Hazlewood Delgado & Bolen LLP (Tempe)
    Counsel for Defendants/Appellees/Cross-Appellants (the Association and board members).
  • Brearcliffe (Judge)
    Arizona Court of Appeals, Division Two
    Judge who authored the memorandum decision.
  • Eppich (Judge)
    Arizona Court of Appeals, Division Two
    Presiding Judge who concurred in the decision.
  • Staring (Judge)
    Arizona Court of Appeals, Division Two
    Vice Chief Judge who concurred in the decision.
  • Steven J. Fuller (Judge)
    Pinal County Superior Court
    Trial judge who ordered a more definite statement, struck the amended complaint, and dismissed the suit with prejudice.

What happened and why it matters

Keith and Kathy Campbell own property in the Florence Gardens Mobile Home Association community, a Pinal County non-profit governed by CC&Rs recorded in 1998. In March 2019 the board mailed owners a letter, a proposed Amended and Restated Declaration, and a written-concurrence form, explaining that adoption required the written concurrence of 878 owners (two-thirds of the assessed lots) and asking owners to return the form within thirty days. The Association reached the required number of concurrences “shortly after the 30-day window” and counted them all; Keith Campbell, then board president, objected that late concurrences should not count, and resigned. The Campbells sued for breach of contract, negligence per se under the Planned Community Act, breach of the duty of good faith and fair dealing, and breach of fiduciary duty. The trial court dismissed the fiduciary-duty claim under Rule 12(b)(6), ordered a more definite statement identifying the specific meeting date, then struck the amended complaint and dismissed the case with prejudice when no date was supplied. Division Two affirmed dismissal of the fiduciary-duty claim as conclusory and outside the fund-related duty recognized in Divizio, but held that ordering a more definite statement was error because the Association’s own motion admitted no relevant meeting ever occurred, making a meeting date impossible to provide. The court vacated the striking and dismissal, remanded, and awarded no fees or costs on appeal.

Reviewing the dismissals de novo under Coleman v. City of Mesa, the court analyzed the two rulings separately. On the fiduciary-duty claim, dismissal under Rule 12(b)(6) is proper only where, as a matter of law, plaintiffs could not obtain relief under any provable interpretation of the facts, and the court may look only to the pleading itself. The Campbells alleged the Association “acts as a fiduciary with the fees collected from its members” and breached that duty by labeling the vote a “concurrence” and counting it past the statutory time frames. The court held these were merely conclusory statements insufficient under Cullen v. Auto-Owners Insurance: even assuming the collection of member fees could create a fiduciary relationship, the Campbells never alleged how the Association’s actions amounted to an improper use of funds. It distinguished Divizio v. Kewin Enterprises, where mobile-home-park members were entitled to accountings of dues collected for community upkeep; here the challenged conduct — collecting signed concurrences after the 30-day deadline — did not involve the collection or use of funds to which the Divizio duty would extend. Merely paying dues does not convert every alleged wrong into a breach of fiduciary duty.

On the striking of the amended complaint, the court explained that a defendant may move for a more definite statement under Rule 12(e) only when a pleading is so vague or ambiguous that it cannot frame a response, and a court may strike a pleading for disobeying such an order. But the Association’s own motion, while demanding that the Campbells identify the meeting date of the alleged statutory violations, candidly admitted that “there was no such meeting” and “no meeting of the membership related to the collection of the concurrences.” Because it was clear from the Association’s own filing that it was impossible for the Campbells to state a meeting date that never existed, ordering a more definite statement was error — and, that order being error, striking the amended complaint and dismissing the remaining claims for noncompliance with it was likewise error. Because neither party completely prevailed, the court declined to award appellate fees or costs and left the Association’s fee cross-appeal for the trial court on remand.

The decision is a mixed result that highlights two recurring HOA-litigation pressure points: whether a board owes homeowners a fiduciary duty, and how much factual specificity a complaint about governance procedures must contain. On the fiduciary-duty question, the court did not announce a categorical rule that HOA boards never owe fiduciary duties; instead it treated the claim as a pleading failure, distinguishing Divizio and emphasizing that a fiduciary theory tied to member dues requires concrete allegations of improper use of funds, not a general assertion that the board mishandled a vote. Homeowners advancing fiduciary-duty claims should therefore plead specific, fund-related misconduct rather than relabeling a covenant or voting dispute.

The striking ruling is the more consequential procedural lesson: a defendant cannot use a motion for a more definite statement to force a plaintiff to allege a fact the defendant itself concedes does not exist. Because the Association admitted no relevant meeting occurred, the trial court could not condition the survival of the suit on the Campbells’ identifying a meeting date, and dismissal on that basis was reversible. The case also confirms that CC&Rs constitute a contract among owners, so disputes over amendment and concurrence procedures can support contract-based claims and fee awards under A.R.S. § 12-341.01 — though here, with neither side fully prevailing, the court awarded no appellate fees. As an unpublished memorandum decision, it is not precedential and may be cited only as authorized by rule.

Step-by-step litigation record

Step 1998-04-16 Amended Declaration of CC&Rs for Florence Gardens dated (and recorded in 1998); governs the community until 2019.
Step 2019-02-08 Board’s proposed Amended and Restated Declaration of CC&Rs is dated.
Step 2019-03 Board mails owners a letter, the amended and restated CC&Rs, a summary, and a written-concurrence form, requiring the written concurrence of 878 owners (two-thirds of assessed lots) and asking for return within 30 days.
“Shortly after the 30-day window,” the Association receives enough concurrences to adopt the amended CC&Rs and counts all of them; board president Keith Campbell objects to counting late concurrences and resigns.
Step 2019-12 Keith and Kathy Campbell file a verified complaint in Pinal County Superior Court (No. S1100CV201901839) alleging breach of contract, negligence per se, breach of good faith and fair dealing, and breach of fiduciary duty.
The Association files a combined Rule 12(b)(6) motion to dismiss the fiduciary-duty claim and a Rule 12(e) motion for a more definite statement, while admitting no relevant meeting occurred.
After a hearing, the trial court grants the more-definite-statement motion (ordering the specific meeting dates) and later grants dismissal of the fiduciary-duty claim.
Step 2020-06-03 The Campbells file an amended complaint that again does not identify any meeting dates.
The Association moves to strike; the trial court strikes the amended complaint, dismisses the suit with prejudice, denies the Association’s fee request, and enters final judgment under Rule 54(c).
Step 2022-07-05 Court of Appeals, Division Two, affirms the fiduciary-duty dismissal, vacates the striking and dismissal of the remaining claims, remands, and awards no fees or costs on appeal.

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Source 1 2022-07-05

Opinion

Type: Decision or judgment

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

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2022-07-05_001_opinion.pdf

FAQ

Who won Campbell v. Florence Gardens?

The result was split. Division Two affirmed the dismissal of the homeowners’ breach-of-fiduciary-duty claim, but it vacated the trial court’s decision to strike the amended complaint and dismiss the remaining claims, remanding those for further proceedings. Because neither side completely prevailed, the court awarded no attorneys’ fees or costs on appeal and left the Association’s fee cross-appeal for the trial court.

What was the dispute about?

The Florence Gardens board circulated written-concurrence forms to adopt amended CC&Rs, asking owners to return them within 30 days. The Association reached the required two-thirds concurrence ‘shortly after the 30-day window’ and counted the late-returned forms. Homeowners Keith and Kathy Campbell — Keith was then board president — sued, alleging breach of contract, negligence per se under the Planned Community Act, breach of good faith and fair dealing, and breach of fiduciary duty.

Why did the breach-of-fiduciary-duty claim fail?

The court held the allegations were merely conclusory. Even assuming the Association’s collection of member fees could create a fiduciary relationship, the Campbells never alleged how the Association improperly used those funds. The challenged conduct — counting concurrences after the 30-day deadline — did not involve the collection or misuse of funds to which the fiduciary duty recognized in Divizio v. Kewin Enterprises would extend.

Why did the court revive the homeowners’ other claims?

The trial court had ordered the Campbells to file a more definite statement identifying the specific meeting date of the alleged violations, then struck their amended complaint and dismissed the case when no date was given. But the Association’s own motion admitted ‘there was no such meeting.’ Because it was impossible for the Campbells to state a meeting date that never existed, ordering a more definite statement was error, and so was dismissing the case for failing to comply with that order.

Does an Arizona HOA board owe homeowners a fiduciary duty?

This decision did not adopt a categorical rule. It treated the claim as a pleading failure, distinguishing Divizio (where mobile-home-park members were entitled to accountings of dues collected for community upkeep) and stressing that a fiduciary theory tied to member dues requires concrete allegations of improper use of funds, not a general assertion that the board mishandled a vote. Because it is an unpublished memorandum decision, it sets no precedent on the issue.

Is this decision precedential?

No. It is an unpublished memorandum decision of the Arizona Court of Appeals, Division Two (Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f)). It does not create legal precedent and may be cited only as authorized by applicable rules.

Case Dossier

This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.

Case Summary

Case ID / citation2 CA-CV 2021-0091
Court / tribunalCourt of Appeals
Decision / key dateJuly 5, 2022
Judge / panelBrearcliffe, Eppich, Staring
PartiesKeith and Kathy Campbell (homeowners / Plaintiffs-Appellants-Cross-Appellees) v. Florence Gardens Mobile Home Association and individual board members (HOA / Defendants-Appellees-Cross-Appellants)
Governing law
Topics
cc-and-rselectionsprocedureattorneys-feesgood-faith-and-fair-dealing
Outcome / holding

The court affirmed dismissal of the homeowners’ breach-of-fiduciary-duty claim, holding the allegations were conclusory and the challenged conduct — counting written CC&R concurrences after the 30-day window — did not involve any collection or misuse of funds giving rise to a fiduciary duty. It held, however, that the trial court erred in ordering a more definite statement, because the Association’s own motion admitted no membership or board meeting ever occurred, so it was impossible for the homeowners to supply a meeting date; the striking of the amended complaint and dismissal of the remaining claims were therefore vacated and remanded.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package1 PDF
Step-by-step docket roadmap10 roadmap entries
Video overviewNo video embed currently configured
Study / briefing material1 section
FAQ / homeowner questions6 questions
Curated download aliases1 download link

Key Issues & Findings

Case Summary

Keith and Kathy Campbell own property in the Florence Gardens Mobile Home Association community, a Pinal County non-profit governed by CC&Rs recorded in 1998. In March 2019 the board mailed owners a letter, a proposed Amended and Restated Declaration, and a written-concurrence form, explaining that adoption required the written concurrence of 878 owners (two-thirds of the assessed lots) and asking owners to return the form within thirty days. The Association reached the required number of concurrences “shortly after the 30-day window” and counted them all; Keith Campbell, then board president, objected that late concurrences should not count, and resigned. The Campbells sued for breach of contract, negligence per se under the Planned Community Act, breach of the duty of good faith and fair dealing, and breach of fiduciary duty. The trial court dismissed the fiduciary-duty claim under Rule 12(b)(6), ordered a more definite statement identifying the specific meeting date, then struck the amended complaint and dismissed the case with prejudice when no date was supplied. Division Two affirmed dismissal of the fiduciary-duty claim as conclusory and outside the fund-related duty recognized in Divizio, but held that ordering a more definite statement was error because the Association’s own motion admitted no relevant meeting ever occurred, making a meeting date impossible to provide. The court vacated the striking and dismissal, remanded, and awarded no fees or costs on appeal.

Key Issues & Findings

Reviewing the dismissals de novo under Coleman v. City of Mesa, the court analyzed the two rulings separately. On the fiduciary-duty claim, dismissal under Rule 12(b)(6) is proper only where, as a matter of law, plaintiffs could not obtain relief under any provable interpretation of the facts, and the court may look only to the pleading itself. The Campbells alleged the Association “acts as a fiduciary with the fees collected from its members” and breached that duty by labeling the vote a “concurrence” and counting it past the statutory time frames. The court held these were merely conclusory statements insufficient under Cullen v. Auto-Owners Insurance: even assuming the collection of member fees could create a fiduciary relationship, the Campbells never alleged how the Association’s actions amounted to an improper use of funds. It distinguished Divizio v. Kewin Enterprises, where mobile-home-park members were entitled to accountings of dues collected for community upkeep; here the challenged conduct — collecting signed concurrences after the 30-day deadline — did not involve the collection or use of funds to which the Divizio duty would extend. Merely paying dues does not convert every alleged wrong into a breach of fiduciary duty.

On the striking of the amended complaint, the court explained that a defendant may move for a more definite statement under Rule 12(e) only when a pleading is so vague or ambiguous that it cannot frame a response, and a court may strike a pleading for disobeying such an order. But the Association’s own motion, while demanding that the Campbells identify the meeting date of the alleged statutory violations, candidly admitted that “there was no such meeting” and “no meeting of the membership related to the collection of the concurrences.” Because it was clear from the Association’s own filing that it was impossible for the Campbells to state a meeting date that never existed, ordering a more definite statement was error — and, that order being error, striking the amended complaint and dismissing the remaining claims for noncompliance with it was likewise error. Because neither party completely prevailed, the court declined to award appellate fees or costs and left the Association’s fee cross-appeal for the trial court on remand.

Why It Matters

The decision is a mixed result that highlights two recurring HOA-litigation pressure points: whether a board owes homeowners a fiduciary duty, and how much factual specificity a complaint about governance procedures must contain. On the fiduciary-duty question, the court did not announce a categorical rule that HOA boards never owe fiduciary duties; instead it treated the claim as a pleading failure, distinguishing Divizio and emphasizing that a fiduciary theory tied to member dues requires concrete allegations of improper use of funds, not a general assertion that the board mishandled a vote. Homeowners advancing fiduciary-duty claims should therefore plead specific, fund-related misconduct rather than relabeling a covenant or voting dispute.

The striking ruling is the more consequential procedural lesson: a defendant cannot use a motion for a more definite statement to force a plaintiff to allege a fact the defendant itself concedes does not exist. Because the Association admitted no relevant meeting occurred, the trial court could not condition the survival of the suit on the Campbells’ identifying a meeting date, and dismissal on that basis was reversible. The case also confirms that CC&Rs constitute a contract among owners, so disputes over amendment and concurrence procedures can support contract-based claims and fee awards under A.R.S. § 12-341.01 — though here, with neither side fully prevailing, the court awarded no appellate fees. As an unpublished memorandum decision, it is not precedential and may be cited only as authorized by rule.

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