Arizona Court of Appeals – Division One (Unpublished)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 decision) | Decided 2021-08-24 | Nonprecedential / citation-limited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.
View all 1 source document for this case ↓
Complete source-document index
This index contains 1 PDF from the reviewed public source packet. Byte-identical copies are listed once. Files are ordered by the date and sequence in the public filename, and party filings or research materials are labeled separately from court rulings.
Source 1
2026-07-01
Opinion
Type: Decision or judgment
Opinion holding that 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.
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 dossier combines the case metadata, linked court sources, and the explanatory sections below. It distinguishes court rulings from party filings, allegations, and requested relief.
Case Summary
| Case ID / citation | 1 CA-CV 20-0476 (Ariz. Ct. App. Aug. 24, 2021) (mem. decision) |
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| Court / tribunal | Court of Appeals |
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| Decision / key date | August 24, 2021 |
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| Judge / panel | Jennifer B. Campbell (author), D. Steven Williams (Presiding Judge), James B. Morse Jr. |
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| Parties | Homeowners (Zadok & Hana Eli and Lamar Whitmer & Colleen London) v. Procaccianti AZ II LP (Hotel and ground lessor at the Scottsdale Hilton Casitas) |
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| Governing law | - A.R.S. § 44-101 (Statute of Frauds)
- A.R.S. § 12-1831 (Uniform Declaratory Judgments Act)
- A.R.S. § 12-341.01 (attorneys' fees in contract actions)
- A.R.S. § 12-349
- Ariz. R. Civ. P. 80(a)
- Ariz. R. Civ. P. 56(a)
- Ariz. R. Civ. P. 54(b)
- Ariz. R. Civ. P. 12(b)(6)
- ARCAP 21, 25
|
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| Topics | Attorney FeesProcedureGood Faith & Fair Dealing |
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| 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. |
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| Primary public source | View source opinion/order |
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Parties, Court, and Research Coverage
| Reviewed source package | 1 PDF |
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| Step-by-step docket roadmap | 8 roadmap entries |
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| Video overview | Temporarily unavailable while the expanded case record is reviewed |
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| Study / briefing material | 1 section |
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| FAQ / homeowner questions | 6 questions |
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| Featured download links | 1 download link |
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Key Issues & Findings
Case SummaryZadok 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 & FindingsReviewing 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 MattersFor 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.
