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AZNH Revocable Trust v. Sunland Springs Village Homeowners Association: HOA Court Case Guide

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Open Meetings | A.R.S. § 33-1804 | 1 CA-CV 25-0424

An Arizona homeowner challenged a Sunland Springs HOA board that voted on budgets, spending, age-waivers, and foreclosures behind closed doors. Division One held that boards may deliberate but not vote in closed session, and that closed-meeting agendas must meaningfully describe what will be addressed.

Arizona Court of Appeals | 1 CA-CV 25-0424 | Decided 2026-04-28

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Scope note: This educational page summarizes AZNH Revocable Trust v. Sunland Springs Village Homeowners Association, a Arizona Court of Appeals HOA-related authority. It is not legal advice.

This is a published Arizona open-meetings landmark for planned-community board action under A.R.S. section 33-1804.

The takeaway

Under A.R.S. § 33-1804, a planned-community association must take all votes and formal actions at open meetings; a board may discuss or deliberate on the subsection (A) topics during a closed (executive) portion but may not vote or decide there, because ‘consideration’ means thought and discussion, not voting. The statute’s open-meeting policy in subsection (F) applies to all meetings, so a meeting agenda—including for a closed portion—must contain information reasonably necessary to apprise members of the matters to be addressed; merely citing the subsection (A) paragraph that justifies closure is insufficient, though associations need not disclose personally identifying or attorney-client privileged information. A board may delegate its subsection (C) duty to identify the reason for closing a meeting. The court affirmed that the association’s notices complied with the statute, reversed as to the agendas, and remanded for factual development on whether the board properly delegated the closure-reason duty. Affirmed in part, reversed in part, and remanded; costs awarded to neither party.

Case Participants

Petitioner Side

  • AZNH Revocable Trust (Plaintiff)
    Plaintiff/Appellant/Cross-Appellee; referred to in the opinion as ‘Homeowner.’ Holds residential property in the Sunland Springs Village planned community and brought the declaratory-judgment action alleging open-meeting violations.
  • John F. Sullivan (Counsel)
    Law Offices of John F. Sullivan (Chandler)
    Counsel for Plaintiff/Appellant/Cross-Appellee AZNH Revocable Trust (the Homeowner); listed in the opinion as John Sullivan, Chandler.

Respondent Side

  • Sunland Springs Village Homeowners Association (Defendant)
    Defendant/Appellee/Cross-Appellant; the homeowners association governing the Sunland Springs Village planned community, subject to A.R.S. Title 33, Chapter 16.
  • Lisa M. Lampkin (Counsel)
    Freeman Mathis & Gary, LLP (Scottsdale)
    Co-counsel for Defendant/Appellee/Cross-Appellant Sunland Springs Village HOA.
  • Megan E. Ritenour (Counsel)
    Freeman Mathis & Gary, LLP (Scottsdale)
    Co-counsel for Defendant/Appellee/Cross-Appellant Sunland Springs Village HOA.
  • Chad M. Gallacher (Counsel)
    Maxwell & Morgan, P.C. (Mesa)
    Co-counsel for Defendant/Appellee/Cross-Appellant Sunland Springs Village HOA; Maxwell & Morgan is an Arizona community-association law firm.

Neutral Parties

  • James B. Morse Jr. (Judge)
    Arizona Court of Appeals, Division One
    Authored the opinion of the court.
  • Andrew M. Jacobs (Judge)
    Arizona Court of Appeals, Division One
    Presiding Judge; joined the opinion.
  • Brian Y. Furuya (Judge)
    Arizona Court of Appeals, Division One
    Judge; joined the opinion.
  • Hon. Rodrick J. Coffey (Judge)
    Maricopa County Superior Court
    Trial judge who granted summary judgment in part and denied it in part in No. CV2023-096192.

What happened

Sunland Springs Village is a planned community in Maricopa County, Arizona, subject to Arizona’s Planned Community Act (A.R.S. Title 33, Chapter 16, §§ 33-1801 to 33-1820). The community is governed by a homeowners association that conducts its business through board of directors’ meetings, some of which are closed to residents. The homeowner in this case owns residential property in the community and holds it through the AZNH Revocable Trust.

According to the opinion, Sunland Springs did not permit residents to attend its closed meetings except by invitation, and its board president determined what business would be addressed in closed sessions. Before a closed meeting, the association gave members notice of the date, time, and place and quoted the language of A.R.S. § 33-1804(A) that allows meetings to be closed. Its closed-meeting agendas identified matters only by the paragraph of Section 33-1804(A) corresponding to the topic.

The opinion states that Sunland Springs conducted formal business and voting during its closed meetings. Among other things, the board approved a $917,000 budget item, granted the community manager up to $7,000 in discretionary spending authority, addressed 13 waivers of the community’s minimum-age requirement for residents, and authorized foreclosures against two homeowners—all in closed session.

In December 2023, the homeowner filed a declaratory-judgment action in Maricopa County Superior Court (No. CV2023-096192), alleging that Sunland Springs failed to conduct its meetings in compliance with Section 33-1804. After initial discovery, the homeowner moved for summary judgment on three points: that the board improperly voted and took formal action in closed meetings; that it had to designate closed-meeting agenda items by formal action at open meetings; and that its notices and agendas for closed meetings were deficient.

The superior court, the Honorable Rodrick J. Coffey presiding, granted summary judgment in part and denied it in part. It agreed that Section 33-1804 required votes to occur in open session, but held that the statute did not require the board to select closed-meeting agenda items by formal action at an open meeting, and did not require notices or agendas to describe closed-meeting topics beyond citing the applicable paragraph of Section 33-1804(A). The parties agreed the ruling resolved all claims, the court entered a final judgment under Arizona Rule of Civil Procedure 54(c), and both sides appealed.

On April 28, 2026, Division One of the Arizona Court of Appeals issued a published opinion authored by Judge James B. Morse Jr. and joined by Presiding Judge Andrew M. Jacobs and Judge Brian Y. Furuya. The court affirmed that all votes and formal actions must occur at open meetings and that the content of the association’s notices complied with the statute. It reversed on the agenda issue, holding that closed-meeting agendas must reasonably describe the matters to be addressed, and it remanded for factual development on whether the board properly delegated to its president the duty to identify the reason for closing a meeting.

Because both parties prevailed in part, the court declined to award costs on appeal to either side and remanded for further proceedings consistent with its opinion. As of the opinion’s issuance, a petition for review was pending before the Arizona Supreme Court (No. CV-26-0167-PR), so the decision’s ultimate status could change.

This is a landmark 2026 interpretation of Arizona’s HOA open-meeting statute, A.R.S. § 33-1804, and it draws a bright line for planned-community and condominium boards: they may deliberate on sensitive matters such as legal advice, litigation, personnel, and member appeals behind closed doors, but they may not vote or take formal action there. Approving budgets, granting spending authority, ruling on waivers, or authorizing foreclosures must happen at an open meeting where members can be present and can speak before the vote. Boards that have historically finalized business in executive session will need to move those votes into open session. The decision also reshapes how boards must describe closed-session business. An agenda—even for a closed portion of a meeting—must give members information reasonably necessary to understand what will be addressed, not merely a citation to the statutory paragraph that authorizes closing the meeting, while still protecting personally identifying and privileged information. For homeowners, the ruling strengthens the right to meaningful notice and participation; for associations and managers, it signals a need to revise meeting notices, agendas, and closure procedures, including how the authority to state the reason for a closed meeting is delegated. Because the opinion is published it is binding Arizona precedent, but a petition for review is pending in the Arizona Supreme Court (No. CV-26-0167-PR), so its status could change.

Open-meetings note: the published decision is treated here as a landmark Arizona planned-community open-meetings authority because it distinguishes deliberation from formal board action under A.R.S. section 33-1804.

Litigation record

Step 1 Before December 2023

Sunland Springs Village HOA routinely conducts formal business and voting in closed board meetings—including approving a $917,000 budget item, granting the community manager up to $7,000 in discretionary spending authority, addressing 13 age-requirement waivers, and authorizing foreclosures against two homeowners—with notices that only quote A.R.S. § 33-1804(A) and agendas that identify matters only by the corresponding subsection (A) paragraph.

Filed by: Court record

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

Step 2 2023-12

The homeowner, through the AZNH Revocable Trust, files a declaratory-judgment action in Maricopa County Superior Court (No. CV2023-096192) alleging the association violated the open-meeting requirements of A.R.S. § 33-1804.

Filed by: Court record

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

Step 3 2024

After initial discovery, the homeowner moves for partial summary judgment on three issues: improper voting in closed meetings, the need to designate closed-meeting agenda items by formal action at open meetings, and deficient notices and agendas.

Filed by: Court record

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

Step 4 2025

The superior court (Hon. Rodrick J. Coffey) grants summary judgment in part and denies it in part; the parties agree the ruling resolves all claims, a Rule 54(c) judgment is entered, and the homeowner appeals while the association cross-appeals (docket 1 CA-CV 25-0424).

Filed by: Court record

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

Step 5 2026-04-28

Division One of the Arizona Court of Appeals issues a published opinion affirming in part (open-meeting voting; notice content), reversing in part (closed-meeting agenda content), and remanding (delegation of the closure-reason duty); no costs awarded to either party.

Filed by: Court record

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

Step 6 2026

A petition for review is pending before the Arizona Supreme Court (No. CV-26-0167-PR); the decision’s ultimate status could change.

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/aznh-revocable-trust-v-sunland-springs-village-hoa/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

Is AZNH Revocable Trust v. Sunland Springs Village HOA binding precedent in Arizona?

Yes. It is a published opinion of the Arizona Court of Appeals, Division One, filed April 28, 2026, so it is binding precedent in Arizona. However, a petition for review is pending in the Arizona Supreme Court (No. CV-26-0167-PR), which means the decision could be affected if the higher court agrees to review it.

Can an Arizona HOA board vote or take formal action during a closed (executive) session?

No. The court held that A.R.S. § 33-1804 allows a board to close a portion of a meeting only to ‘consider’—that is, to think about and discuss—certain sensitive topics such as legal advice, litigation, personnel, and member appeals. Voting and other formal actions are decisions, not consideration, and must take place at an open meeting.

What must a closed-meeting agenda include under this decision?

The court held that an agenda, even for a closed portion of a meeting, must contain information reasonably necessary to apprise members of the matters to be addressed. Simply citing the paragraph of Section 33-1804(A) that justifies closing the meeting is not enough. Associations still do not have to reveal personally identifying information or attorney-client privileged information.

Does Arizona’s HOA open-meeting policy apply to closed meetings too?

Yes. The court held that the legislative policy statement in A.R.S. § 33-1804(F) refers back to ‘all meetings’ of an association, so it applies to closed meetings as well as open ones. Courts must construe the open-meeting provisions in favor of open meetings.

Who decides the reason for closing an HOA meeting—the full board or the president?

The court held that A.R.S. § 33-1804(C) does not require the full board to identify the reason for a closed meeting by formal action at an open meeting; under A.R.S. § 10-3801(B), a nonprofit board may delegate that duty, for example to its president. Because the record was unclear on whether Sunland Springs had formally delegated the duty, the court remanded that question to the trial court.

What was the outcome of the appeal?

The Court of Appeals affirmed in part (votes and formal actions must occur at open meetings, and the association’s notice content complied with the statute), reversed in part (closed-meeting agendas must reasonably describe the matters to be addressed), and remanded for factual development on the delegation issue. Because both sides prevailed in part, the court awarded appellate costs to neither party.

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 25-0424
Court / tribunalCourt of Appeals
Decision / key dateApril 28, 2026
Judge / panelHon. James B. Morse Jr. (author), Hon. Andrew M. Jacobs (Presiding Judge), Hon. Brian Y. Furuya
PartiesAZNH Revocable Trust (Plaintiff/Appellant/Cross-Appellee; the ‘Homeowner’) v. Sunland Springs Village Homeowners Association (Defendant/Appellee/Cross-Appellant)
Governing law
Topics
open-meetingsproceduremembershiprecords-inspection
Outcome / holding

Under A.R.S. § 33-1804, a planned-community association must take all votes and formal actions at open meetings; a board may discuss or deliberate on the subsection (A) topics during a closed (executive) portion but may not vote or decide there, because ‘consideration’ means thought and discussion, not voting. The statute’s open-meeting policy in subsection (F) applies to all meetings, so a meeting agenda—including for a closed portion—must contain information reasonably necessary to apprise members of the matters to be addressed; merely citing the subsection (A) paragraph that justifies closure is insufficient, though associations need not disclose personally identifying or attorney-client privileged information. A board may delegate its subsection (C) duty to identify the reason for closing a meeting. The court affirmed that the association’s notices complied with the statute, reversed as to the agendas, and remanded for factual development on whether the board properly delegated the closure-reason duty. Affirmed in part, reversed in part, and remanded; costs awarded to neither party.

Primary public sourceView source opinion/order

Parties, Court, and Research Coverage

Uploaded source package1 PDF
Step-by-step docket roadmap6 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

AZNH Revocable Trust v. Sunland Springs Village Homeowners Association is a published 2026 opinion of the Arizona Court of Appeals, Division One, interpreting the open-meeting requirements of the Planned Community Act, A.R.S. § 33-1804. A homeowner in the Sunland Springs Village planned community, acting through the AZNH Revocable Trust, filed a declaratory-judgment action contending that the association’s board did not provide statutorily compliant meeting notices and agendas and improperly conducted formal business—including votes—during closed (executive) sessions. The superior court granted summary judgment in part to each side, and both parties appealed. Writing for a unanimous panel, Judge James B. Morse Jr. reached three conclusions. First, Section 33-1804 lets a board ‘consider’ certain sensitive topics during a closed portion of a meeting, but ‘consideration’ means thought and discussion, not voting, so all votes and formal actions must occur at open meetings. Second, the statute’s policy of open governance in subsection (F) applies to all meetings, and a meeting agenda—even for a closed portion—must contain information reasonably necessary to apprise members of the matters to be addressed, though it need not disclose personally identifying or attorney-client privileged information; merely citing the subsection (A) paragraph that justifies closure is not enough. Third, a board may delegate its subsection (C) duty to identify the reason for closing a meeting, so the court remanded for factual development on whether the board properly delegated that duty to its president. The court affirmed that the association’s notices complied with the statute, reversed on the agenda issue, and remanded. Because both sides prevailed in part, it awarded costs to neither. A petition for review is pending in the Arizona Supreme Court.

Key Issues & Findings

Reviewing the questions of statutory interpretation de novo, the court read Section 33-1804 according to the plain meaning of its words in their broader statutory context and gave weight to the legislative policy statement in subsection (F), which directs that the section’s provisions be construed in favor of open meetings. On voting, subsection (A) allows a portion of a meeting to be closed only for ‘consideration’ of enumerated sensitive topics. The court held that ‘consideration’—though undefined and, as the association conceded at oral argument, ambiguous—denotes thought, reflection, and discussion that precede a decision, not the formal act of voting. Reading it otherwise would nullify the statutory guarantee that a member may speak after the board discusses an agenda item but before it takes formal action, and would conflict with subsection (F)’s open-meeting mandate.

The court rejected the association’s argument that requiring open votes would clash with A.R.S. § 33-1805(B), which permits withholding minutes of a closed session. Minutes are not kept solely to record votes; a board may take minutes of a meeting even when it takes no formal action, much as public bodies may keep minutes of an executive session despite being barred from voting there. Section 33-1805 therefore does not authorize closed-session voting and does not conflict with Section 33-1804.

On notices and agendas, the court held that subsection (F)’s reference to ‘those meetings’ relates back to ‘all meetings,’ so the open-meeting policy reaches closed meetings too. The association’s notices—containing the date, time, and place plus the subsection (A) paragraph justifying closure—satisfied the specific notice requirements of subsections (C) and (D). But because the statute does not detail what an agenda must contain, the court looked to subsection (F) and held that an agenda must reasonably advise members of the items to be addressed, even for a closed meeting, so that members can speak meaningfully before formal action; a bare citation to the subsection (A) paragraph is not enough, though personally identifying and attorney-client privileged information need not be disclosed. Finally, because Section 33-1804(C) does not dictate how a board must identify the reason for closing a meeting, and A.R.S. § 10-3801(B) allows a nonprofit board to act through delegation, the board could delegate that duty; the record was unclear whether Sunland Springs had formally delegated it to the president, requiring remand.

Why It Matters

This is a landmark 2026 interpretation of Arizona’s HOA open-meeting statute, A.R.S. § 33-1804, and it draws a bright line for planned-community and condominium boards: they may deliberate on sensitive matters such as legal advice, litigation, personnel, and member appeals behind closed doors, but they may not vote or take formal action there. Approving budgets, granting spending authority, ruling on waivers, or authorizing foreclosures must happen at an open meeting where members can be present and can speak before the vote. Boards that have historically finalized business in executive session will need to move those votes into open session.

The decision also reshapes how boards must describe closed-session business. An agenda—even for a closed portion of a meeting—must give members information reasonably necessary to understand what will be addressed, not merely a citation to the statutory paragraph that authorizes closing the meeting, while still protecting personally identifying and privileged information. For homeowners, the ruling strengthens the right to meaningful notice and participation; for associations and managers, it signals a need to revise meeting notices, agendas, and closure procedures, including how the authority to state the reason for a closed meeting is delegated. Because the opinion is published it is binding Arizona precedent, but a petition for review is pending in the Arizona Supreme Court (No. CV-26-0167-PR), so its status could change.

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Joan Tober, Plaintiff/Appellant, v. Civano 1: Neighborhood Association, Inc., an Arizona nonprofit corporation; and Rick Hanson, Mark Levine, George Luis, Lee Rayburn, Bob Small, Chris Shipley, and Les Shipley, Defendants/Appellees: HOA Court Case Guide

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Elections & Open Meetings | A.R.S. §§ 33-1812, 10-3304 | 2 CA-CV 2012-0129

How an Arizona planned community lawfully elected its board entirely by mail-in ballot, and why a homeowner’s after-the-fact challenge to the procedure failed on standing and justiciability grounds.

Last updated July 1, 2026. Case: Joan Tober, Plaintiff/Appellant, v. Civano 1: Neighborhood Association, Inc., an Arizona nonprofit corporation; and Rick Hanson, Mark Levine, George Luis, Lee Rayburn, Bob Small, Chris Shipley, and Les Shipley, Defendants/Appellees; 2 CA-CV 2012-0129.

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

Under A.R.S. section 33-1812, a planned community association may conduct its board election exclusively by mail-in ballots counted before the annual meeting; the statute does not require in-person voting at every election or that elections be held at the annual meeting, and the open-meeting law, A.R.S. section 33-1804, does not require elections to occur at an open meeting. A member’s suit against the board challenging such procedures is derivative, and, absent a justiciable controversy, it cannot support injunctive relief, so summary judgment and the attorney-fee award for the association were affirmed.

Case Participants

Neutral Parties

  • Joan Tober (Plaintiff/Appellant)
    Mandatory member of Civano 1 who challenged the 2011 board election conducted exclusively by mail-in ballot.
  • Civano 1: Neighborhood Association, Inc. (Defendant/Appellee)
    Arizona nonprofit corporation managing a Tucson planned community; conducted the challenged mail-in board election.
  • Rick Hanson (Defendant/Appellee)
    Individual Civano board member named as a defendant/appellee.
  • Mark Levine (Defendant/Appellee)
    Individual Civano board member named as a defendant/appellee.
  • George Luis (Defendant/Appellee)
    Individual Civano board member named as a defendant/appellee.
  • Lee Rayburn (Defendant/Appellee)
    Individual Civano board member named as a defendant/appellee.
  • Bob Small (Defendant/Appellee)
    Individual Civano board member named as a defendant/appellee.
  • Chris Shipley (Defendant/Appellee)
    Individual Civano board member named as a defendant/appellee.
  • Les Shipley (Defendant/Appellee)
    Individual Civano board member named as a defendant/appellee.
  • Elizabeth D. Bushell (Counsel)
    Elizabeth D. Bushell, P.L.C.
    Tucson attorney for Plaintiff/Appellant Joan Tober.
  • Carolyn B. Goldschmidt (Counsel)
    Monroe, McDonough, Goldschmidt & Molla, P.L.L.C.
    Tucson attorney for Defendants/Appellees Civano and its board.
  • Philip G. Espinosa (Judge)
    Court of Appeals judge who authored the memorandum decision.
  • Garye L. Vasquez (Judge)
    Presiding Judge on the Court of Appeals panel; concurred.
  • Virginia C. Kelly (Judge)
    Judge on the Court of Appeals panel; concurred.

What happened and why it matters

Joan Tober, a mandatory member of the Civano 1: Neighborhood Association, a Tucson planned community, sued the association and the members of its board of directors after the 2011 board election was conducted exclusively by mail-in ballots that were counted before the association’s annual meeting. She alleged the board breached its statutory obligations under A.R.S. section 33-1812 by not allowing votes to be cast in person and by absentee ballot, and she sought injunctive relief under A.R.S. section 10-3304 after withdrawing her breach-of-contract and breach-of-fiduciary-duty claims. The trial court granted summary judgment for the association and board and awarded them attorney fees and costs, and Tober appealed only the ruling on her breach-of-statutory-duty claim. Division Two of the Arizona Court of Appeals affirmed. It held that Tober’s claim against the individual board members was derivative and could not proceed as a direct action because she alleged no injury unique to herself, that neither the CC&Rs nor section 10-3304 authorized her particular statutory claim as pleaded, and that her challenge to the completed 2011 election and to speculative future elections presented no justiciable controversy for injunctive relief. The court added that, in any event, section 33-1812 does not require in-person voting at every election or that elections be held at the annual meeting. It also upheld the attorney-fee award and awarded the association its fees and costs on appeal.

The court reviewed the summary judgment de novo because the material facts were undisputed, and it treated capacity to sue as a question of law. It first held that Tober’s claim against the individual board members was derivative rather than direct. An action by an association member is derivative when the gravamen is injury to the corporation or to the whole body of members without any severance among individual holders. A member may sue directly only if she has a relationship with the wrongdoer apart from her membership, the wrongdoer owes her a duty for a reason other than membership, or her injury is unique to her rather than shared by the association. Tober alleged none of these; she asserted only a “personal stake in how her community is run,” and her theory was that Civano members as a whole were disadvantaged by the mail-in procedure. Because she did not follow the demand and standing requirements for a derivative suit under A.R.S. sections 10-3631 and 10-3632, that claim was properly dismissed.

The court next rejected the two authorities Tober said permitted her direct statutory claim. The CC&Rs’ section 16.1 gives owners a right to enforce the community documents, but Tober conceded her statutory claim was independent of the contract, and A.R.S. section 33-1812 could not be read into the CC&Rs because it was enacted after the CC&Rs were executed. A.R.S. section 10-3304 does let a planned community member sue the association to enjoin an ultra vires act, and the court agreed Tober could in theory bring such a claim. But injunctive relief was unavailable: she did not try to enjoin the 2011 election before it was finalized, and a completed election cannot be undone on that ground; her request to control future elections was speculative, unsupported by any showing of likely future harm, and therefore not a justiciable controversy.

Finally, and in any event, the court held the mail-in procedure did not violate section 33-1812. The statute’s phrase “if absentee ballots are used” shows absentee voting is optional, and the statute expressly allows voting by “some other form of delivery” such as mail; it does not require in-person voting at every election or that elections occur at the annual meeting, and section 33-1804 requires only that meetings be open, not that elections happen at them. The court affirmed the attorney-fee award under A.R.S. section 12-341.01 and section 16.2 of the CC&Rs, noting that voluntarily dismissing the contract claims did not defeat a contract-based fee award and that the missing hearing transcripts were presumed to support the trial court’s discretion.

For Arizona homeowners and boards, the decision illustrates how planned community election procedures are measured against A.R.S. section 33-1812 and the open-meeting law, A.R.S. section 33-1804. The court read section 33-1812 to permit an association to elect directors entirely by mail-in ballot, with ballots counted before the annual meeting, and concluded the statute does not compel in-person voting at every election or require that the election itself take place at the annual meeting. It also underscores a practical timing lesson: a member who believes an election procedure is unlawful generally must seek to enjoin it before the vote is finalized, because courts are reluctant to unwind a completed election or to issue advisory relief about future, speculative elections.

The opinion is an unpublished memorandum decision, so under Rule 28 of the Arizona Rules of Civil Appellate Procedure it is not precedent and generally may not be cited as legal authority; it is offered here only as a neutral, educational illustration of how these HOA-governance statutes have been applied. The decision also highlights procedural mechanics that recur in HOA disputes, including the derivative-versus-direct distinction for suits against a board and the risk that a member who loses such a suit may owe the association’s attorney fees under A.R.S. section 12-341.01 and a fee-shifting provision in the CC&Rs. The homeowner was represented by Elizabeth D. Bushell of Elizabeth D. Bushell, P.L.C., and the association and its board by Carolyn B. Goldschmidt of Monroe, McDonough, Goldschmidt & Molla, P.L.L.C.

Step-by-step litigation record

Step 2011-03-01 The board mailed election ballots to all members with notice of the annual membership meeting, ballot instructions, and the election timeline; ballots were to be returned by mail or hand delivery by 5:00 p.m. on March 21.
Step 2011-03-15 The board adopted an administrative resolution for the 2011 election authorizing the (apparently exclusive) use of written mail-in ballots to elect board members.
Step 2011-03-21 The association’s election committee counted all ballots by the 5:00 p.m. deadline and certified the results to the board.
Step 2011-03-22 The election results were announced at the annual membership meeting; Tober had mailed her ballot and attended the meeting.
More than a month after the election was finalized, Tober sued Civano and the individual board members for breach of contract, breach of fiduciary duty, breach of statutory obligation, and election tampering.
Tober amended her complaint to add requests for injunctive relief under A.R.S. section 10-3304 (the section 10-3304 reference was added more than five months after the election).
Tober withdrew her breach-of-contract and breach-of-fiduciary-duty claims, conceding no individual damages and no disenfranchisement.
After a hearing on cross-motions for summary judgment, the trial court ruled that A.R.S. sections 10-3708 and 33-1812 did not prohibit an exclusively mail-in election counted before the annual meeting and entered final judgment for Civano and the board with attorney fees and costs.
Step 2013-03-12 Division Two of the Arizona Court of Appeals issued its memorandum decision affirming the trial court’s judgment.

FAQ

What was the dispute in Tober v. Civano 1: Neighborhood Association?

Joan Tober, a mandatory member of the Civano 1 planned community in Tucson, challenged the association’s 2011 board election, which was conducted exclusively by mail-in ballots that were counted before the annual meeting. She argued the board violated A.R.S. section 33-1812 by not allowing votes to be cast in person and by absentee ballot, and she sought injunctive relief. The trial court granted summary judgment for the association and board, and Tober appealed only her breach-of-statutory-duty claim.

Did A.R.S. section 33-1812 require the HOA to hold in-person voting?

No. The Court of Appeals held that section 33-1812 does not require in-person voting at every election. The statute’s phrase ‘if absentee ballots are used’ shows absentee voting is optional, and the statute expressly allows voting by ‘some other form of delivery,’ such as mail-in ballot. The court also held the statute does not require the election to be held at the annual meeting, and that the open-meeting law (A.R.S. section 33-1804) requires only that meetings be open to members, not that elections occur at them.

Why was Tober’s claim against the board members treated as derivative?

The court explained that a member’s suit is derivative when the gravamen is injury to the corporation or to the whole body of members rather than an injury unique to the individual. A member can sue directly only if she has a relationship with the wrongdoer apart from membership, is owed a duty for a reason other than membership, or suffered a unique injury. Tober alleged none of these, asserting only a ‘personal stake in how her community is run,’ so her claim was derivative and, because she did not follow the derivative-suit procedures in A.R.S. sections 10-3631 and 10-3632, it was properly dismissed.

Why did the request for an injunction fail?

Although the court agreed a planned community member may in theory sue the association under A.R.S. section 10-3304 to enjoin an unauthorized act, Tober was not entitled to an injunction. She did not seek to enjoin the 2011 election before it was finalized, and a completed election cannot be undone on that ground. Her attempt to control future elections was speculative, unsupported by any showing of likely future harm, and therefore presented no justiciable controversy; courts do not issue advisory relief about hypothetical future conduct.

Why did the homeowner have to pay the association’s attorney fees?

The trial court awarded the association and board their attorney fees under A.R.S. section 12-341.01 (fees in a contract action) and section 16.2 of the CC&Rs, which provides that the successful party in litigation to enforce the Declaration is entitled to fees. The Court of Appeals found no abuse of discretion, noting that voluntarily dismissing the contract claims did not defeat a contract-based fee award and that the missing hearing transcripts were presumed to support the trial court. It also awarded the association its fees and costs on appeal.

Is this decision binding precedent in Arizona?

No. This is an unpublished memorandum decision from Division Two of the Arizona Court of Appeals. Under Rule 28 of the Arizona Rules of Civil Appellate Procedure, it does not create legal precedent and generally may not be cited as authority except as the rules allow. It is presented here only as a neutral, educational illustration of how these HOA-governance statutes have been applied.

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 2012-0129
Court / tribunalCourt of Appeals
Decision / key dateMarch 12, 2013
Judge / panelPhilip G. Espinosa, Garye L. Vasquez, Virginia C. Kelly
PartiesJoan Tober (Plaintiff/Appellant) v. Civano 1: Neighborhood Association, Inc., and its individual board members (Defendants/Appellees)
Governing law
Topics
electionsopen-meetingscc-and-rsprocedureattorneys-fees
Outcome / holding

Under A.R.S. section 33-1812, a planned community association may conduct its board election exclusively by mail-in ballots counted before the annual meeting; the statute does not require in-person voting at every election or that elections be held at the annual meeting, and the open-meeting law, A.R.S. section 33-1804, does not require elections to occur at an open meeting. A member’s suit against the board challenging such procedures is derivative, and, absent a justiciable controversy, it cannot support injunctive relief, so summary judgment and the attorney-fee award for the association were affirmed.

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

Joan Tober, a mandatory member of the Civano 1: Neighborhood Association, a Tucson planned community, sued the association and the members of its board of directors after the 2011 board election was conducted exclusively by mail-in ballots that were counted before the association’s annual meeting. She alleged the board breached its statutory obligations under A.R.S. section 33-1812 by not allowing votes to be cast in person and by absentee ballot, and she sought injunctive relief under A.R.S. section 10-3304 after withdrawing her breach-of-contract and breach-of-fiduciary-duty claims. The trial court granted summary judgment for the association and board and awarded them attorney fees and costs, and Tober appealed only the ruling on her breach-of-statutory-duty claim. Division Two of the Arizona Court of Appeals affirmed. It held that Tober’s claim against the individual board members was derivative and could not proceed as a direct action because she alleged no injury unique to herself, that neither the CC&Rs nor section 10-3304 authorized her particular statutory claim as pleaded, and that her challenge to the completed 2011 election and to speculative future elections presented no justiciable controversy for injunctive relief. The court added that, in any event, section 33-1812 does not require in-person voting at every election or that elections be held at the annual meeting. It also upheld the attorney-fee award and awarded the association its fees and costs on appeal.

Key Issues & Findings

The court reviewed the summary judgment de novo because the material facts were undisputed, and it treated capacity to sue as a question of law. It first held that Tober’s claim against the individual board members was derivative rather than direct. An action by an association member is derivative when the gravamen is injury to the corporation or to the whole body of members without any severance among individual holders. A member may sue directly only if she has a relationship with the wrongdoer apart from her membership, the wrongdoer owes her a duty for a reason other than membership, or her injury is unique to her rather than shared by the association. Tober alleged none of these; she asserted only a “personal stake in how her community is run,” and her theory was that Civano members as a whole were disadvantaged by the mail-in procedure. Because she did not follow the demand and standing requirements for a derivative suit under A.R.S. sections 10-3631 and 10-3632, that claim was properly dismissed.

The court next rejected the two authorities Tober said permitted her direct statutory claim. The CC&Rs’ section 16.1 gives owners a right to enforce the community documents, but Tober conceded her statutory claim was independent of the contract, and A.R.S. section 33-1812 could not be read into the CC&Rs because it was enacted after the CC&Rs were executed. A.R.S. section 10-3304 does let a planned community member sue the association to enjoin an ultra vires act, and the court agreed Tober could in theory bring such a claim. But injunctive relief was unavailable: she did not try to enjoin the 2011 election before it was finalized, and a completed election cannot be undone on that ground; her request to control future elections was speculative, unsupported by any showing of likely future harm, and therefore not a justiciable controversy.

Finally, and in any event, the court held the mail-in procedure did not violate section 33-1812. The statute’s phrase “if absentee ballots are used” shows absentee voting is optional, and the statute expressly allows voting by “some other form of delivery” such as mail; it does not require in-person voting at every election or that elections occur at the annual meeting, and section 33-1804 requires only that meetings be open, not that elections happen at them. The court affirmed the attorney-fee award under A.R.S. section 12-341.01 and section 16.2 of the CC&Rs, noting that voluntarily dismissing the contract claims did not defeat a contract-based fee award and that the missing hearing transcripts were presumed to support the trial court’s discretion.

Why It Matters

For Arizona homeowners and boards, the decision illustrates how planned community election procedures are measured against A.R.S. section 33-1812 and the open-meeting law, A.R.S. section 33-1804. The court read section 33-1812 to permit an association to elect directors entirely by mail-in ballot, with ballots counted before the annual meeting, and concluded the statute does not compel in-person voting at every election or require that the election itself take place at the annual meeting. It also underscores a practical timing lesson: a member who believes an election procedure is unlawful generally must seek to enjoin it before the vote is finalized, because courts are reluctant to unwind a completed election or to issue advisory relief about future, speculative elections.

The opinion is an unpublished memorandum decision, so under Rule 28 of the Arizona Rules of Civil Appellate Procedure it is not precedent and generally may not be cited as legal authority; it is offered here only as a neutral, educational illustration of how these HOA-governance statutes have been applied. The decision also highlights procedural mechanics that recur in HOA disputes, including the derivative-versus-direct distinction for suits against a board and the risk that a member who loses such a suit may owe the association’s attorney fees under A.R.S. section 12-341.01 and a fee-shifting provision in the CC&Rs. The homeowner was represented by Elizabeth D. Bushell of Elizabeth D. Bushell, P.L.C., and the association and its board by Carolyn B. Goldschmidt of Monroe, McDonough, Goldschmidt & Molla, P.L.L.C.

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Cheryl Marie McCoy, et al., Plaintiffs/Appellants, v. Leslie Johnson, Defendant/Appellee: HOA Court Case Guide

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Defamation & HOA Elections | A.R.S. § 33-1804 | 1 CA-CV 21-0676

How Arizona treats HOA board members who sue critics over election-related statements — and why they must plead actual malice as limited-purpose public figures.

Last updated July 1, 2026. Case: Cheryl Marie McCoy, et al., Plaintiffs/Appellants, v. Leslie Johnson, Defendant/Appellee; 1 CA-CV 21-0676; CV2020-010557.

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

Members and candidates of a large homeowners’ association’s board are limited-purpose public figures for defamation and false light purposes as to statements about their board service and HOA elections, so they must plead and prove actual malice. Because the plaintiffs failed to plead actual malice, and because limited-purpose public figures cannot maintain false light claims arising from their public duties, the Rule 12(b)(6) dismissal was affirmed.

Case Participants

Neutral Parties

  • Cheryl Marie McCoy (“Cher”) (Plaintiff/Appellant)
    Former Val Vista Lakes Community Association Board president; brought defamation and false light claims against Leslie Johnson.
  • Marcianne Johnson (“Marci”) (Plaintiff/Appellant)
    Val Vista Lakes Board member re-elected in November 2019 and chosen as Board president; removed in the June 2020 recall election.
  • Melissa Wilson (Scovel) (“Melissa”) (Plaintiff/Appellant)
    Val Vista Lakes Board member and former Board president; removed in the June 2020 recall election.
  • Leslie Johnson (Defendant/Appellee)
    Fellow Val Vista Lakes Association member who authored the challenged social-media posts and meeting comment.
  • Val Vista Lakes Community Association (Non-party association)
    The approximately 2,280-member Gilbert, Arizona homeowners’ association whose board and elections were the subject of the challenged statements; not a party to the suit.
  • Bradley R. Jardine (Counsel)
    Jardine, Baker, Hickman & Houston, P.L.L.C.
    Co-counsel for Plaintiffs/Appellants.
  • Michael Warzynski (Counsel)
    Jardine, Baker, Hickman & Houston, P.L.L.C.
    Co-counsel for Plaintiffs/Appellants.
  • Venessa J. Bragg (Counsel)
    Elardo, Bragg, Rossi & Palumbo, P.C.
    Co-counsel for Plaintiffs/Appellants.
  • Nathan Brown (Counsel)
    Brown Patent Law
    Counsel for Defendant/Appellee Leslie Johnson.
  • Cynthia J. Bailey (Judge)
    Court of Appeals judge; authored the memorandum decision.
  • Samuel A. Thumma (Judge)
    Presiding Judge on the Court of Appeals panel.
  • David B. Gass (Judge)
    Vice Chief Judge on the Court of Appeals panel.
  • Andrew J. Russell (Judge)
    Maricopa County Superior Court judge who dismissed the complaint below.

What happened and why it matters

Three current or former members of the Val Vista Lakes Community Association Board — Cheryl “Cher” McCoy, Marcianne “Marci” Johnson, and Melissa Wilson (Scovel) — sued a fellow homeowner, Leslie Johnson, for defamation and false light invasion of privacy over social-media posts and a comment at an August 2020 board meeting. The challenged statements accused board members affiliated with The Church of Jesus Christ of Latter-day Saints (LDS) of religiously motivated favoritism in selecting the board’s management committee (calling applicants “LDS hand-picked”) and questioned board members’ religion around the November 2019 board election and the June 2020 recall election that removed Marci and Melissa. The Maricopa County Superior Court dismissed the claims under Ariz. R. Civ. P. 12(b)(6), holding the plaintiffs were limited-purpose public figures by reason of their board service and that the statements were non-actionable opinion. On appeal, Division One affirmed. It reasoned that the boards of large homeowners’ associations perform quasi-governmental functions and that their activities are matters of public concern to the community — reinforced by the Planned Communities Act’s open-meeting policy in A.R.S. § 33-1804 — so board members and candidates who inject themselves into HOA elections are limited-purpose public figures who must plead and prove actual malice. Because the plaintiffs failed to plead actual malice, and because limited-purpose public figures cannot maintain false light claims arising from their public duties, the court affirmed dismissal of both claims and denied Johnson’s unsupported request for appellate attorneys’ fees.

Reviewing the Rule 12(b)(6) dismissal de novo, the Court of Appeals began with the settled rule that a court may decide as a matter of law whether a person is a public figure. Persons may be deemed public figures based on their positions, their purposeful activity in thrusting themselves into matters of public controversy, or their close involvement with the resolution of matters of public concern, and a person may become a limited-purpose public figure by voluntarily injecting themselves into, or being drawn into, a particular public controversy. Although Arizona courts had not decided in a written opinion whether board members of a large homeowners’ association can be limited-purpose public figures, the court found persuasive out-of-state authority holding that they can (Cabrera, Metge, Gulrajaney, Verna, and Martin). The superior court had relied on Verna, which viewed an association board position as essentially indistinguishable from membership on a town’s governing body because the board performs many quasi-municipal functions.

Applying that framework, the court observed that all three plaintiffs had been board candidates, had served on the Board, and had served as Board president at one time or another, so they either voluntarily injected themselves or were drawn into matters of concern to the Val Vista Lakes community. The court rejected the argument that a private association cannot produce public figures, citing Agar and Gulrajaney, and rejected the contention that plaintiffs did not start the “conversation” about their religion, explaining that voluntarily engaging in activity calculated to invite public scrutiny is enough. It also rejected the argument that the open-meeting provision of the Planned Communities Act shows HOAs are not governmental: the policy statement in A.R.S. § 33-1804(F) — that meetings be conducted openly and members be able to speak after discussion of agenda items — strongly suggests that board activities and decisions are matters of public concern. The court distinguished private business boards because the legislature extended First Amendment-type protections to HOA members (A.R.S. §§ 33-1804, -1808).

Because the plaintiffs were limited-purpose public figures, the false light claim failed under Godbehere, which bars such claims that relate to the performance of public duties; plaintiffs did not dispute that the statements related to their board service. On defamation, a public-figure plaintiff must plead and prove actual malice, and conclusory characterizations without supporting factual specificity fail Arizona’s notice-pleading standard, especially in defamation actions (BLK III; Cullen). Plaintiffs conceded two of the three statements were not actionable, and the remaining “LDS hand-picked” post was not in the record and was not pleaded with the specificity needed to show it made a verifiable factual assertion about Marci or Melissa. The court therefore affirmed the dismissal and denied Johnson’s request for appellate attorneys’ fees because she cited no legal basis for the award.

This memorandum decision addresses a recurring tension in community-association life: robust, sometimes bitter, debate about board elections and governance can collide with individual board members’ desire to protect their reputations. By treating board members and candidates of a large HOA as limited-purpose public figures, the court placed HOA electoral speech on a footing similar to speech about local government, requiring a defamation plaintiff to plead and prove actual malice and barring false light claims tied to public duties. In practice, that raises the pleading bar substantially for board members who sue critics over election-related statements, and it protects members’ ability to comment publicly on candidates and board decisions.

The decision also underscores how Arizona’s Planned Communities Act frames HOA governance as a matter of community-wide public concern. The court read the open-meeting policy of A.R.S. § 33-1804 (with A.R.S. § 33-1808) as evidence that board activities are open, participatory, and quasi-governmental, distinguishing HOA boards from ordinary private business boards. Because this is an unpublished memorandum decision under Arizona Rule of the Supreme Court 111(c), it is not precedential and may be cited only as authorized by rule; even so, it illustrates how Arizona courts are likely to analyze defamation and false light claims arising from HOA elections, recall campaigns, and board management decisions. A separately docketed memorandum decision arising from the same community, McCoy v. Hassen, 1 CA-CV 21-0524, addresses related disputes.

Step-by-step litigation record

Step 2019 Before the November 2019 board election, Leslie Johnson allegedly published a social-media post inquiring about people’s religion and implying religious belief was affecting their actions.
Step 2019-11 The Association held its regular Board election; Melissa and Marci were re-elected, and Marci was chosen to serve as Board president.
Step 2020-06 A recall election removed Marci and Melissa from the Board.
Step 2020 After the recall, Leslie allegedly posted on social media that management-committee applicants were “LDS hand-picked” by LDS-affiliated board members.
Step 2020-08 At an August 2020 Board meeting, Leslie allegedly yelled a comment referencing a director’s religion (“Because you’re a MORMON . . .”) while director Dustin Snow was answering a question.
Step 2020 Shortly after the August 2020 meeting, plaintiffs sued Leslie and other defendants in Maricopa County Superior Court (No. CV2020-010557), alleging defamation, false light, intentional infliction of emotional distress, private nuisance, and a Fair Housing Act claim later conceded.
Several defendants, including Leslie, moved to dismiss under Rule 12(b)(6); plaintiffs filed a written response and Leslie filed no reply.
Forty-five days after plaintiffs’ response, the superior court granted most of the motions, including Leslie’s, finding plaintiffs were limited-purpose public figures and the statements non-actionable opinion, and dismissing the false light and emotional-distress claims.
The superior court entered a final Rule 54(b) judgment dismissing the complaint against Leslie; plaintiffs appealed, and co-defendant James Rosebrough was removed from the appeal by stipulation.
Step 2022-12-08 The Arizona Court of Appeals, Division One, issued its memorandum decision affirming the dismissal and denying Leslie’s request for appellate attorneys’ fees.

Complete uploaded source-document index

This index is generated from every public-facing source file currently present in assets/court_case_downloads/mccoy-v-johnson/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 2022-12-08

Opinion

Type: Decision or judgment

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

Download source file
2022-12-08_001_opinion.pdf

FAQ

What was McCoy v. Johnson about?

Three current or former members of the Val Vista Lakes Community Association Board sued a fellow homeowner, Leslie Johnson, for defamation and false light invasion of privacy. The claims arose from social-media posts and a comment at an August 2020 board meeting that questioned board members’ religion and accused LDS-affiliated board members of favoring “LDS hand-picked” applicants for the board’s management committee, made around the November 2019 board election and the June 2020 recall election.

What is a “limited-purpose public figure,” and why did it matter?

A limited-purpose public figure is someone who voluntarily injects themselves into, or is drawn into, a particular public controversy. Such a plaintiff must prove “actual malice” — that the speaker knew a statement was false or recklessly disregarded its falsity — to win a defamation claim, and cannot bring a false light claim arising from the performance of their public duties. The court held the board members were limited-purpose public figures as to their board service and HOA elections.

Why did the court treat HOA board members like public figures?

The court relied on out-of-state authority (including the New Jersey Verna decision) holding that boards of large homeowners’ associations perform quasi-municipal functions, making board members comparable to members of a town’s governing body. Because the three plaintiffs had run for the board, served on it, and served as board president, the court found they had voluntarily entered matters of public concern to the roughly 2,280-member Val Vista Lakes community.

What role did the Planned Communities Act play?

The plaintiffs argued the Planned Communities Act’s open-meeting provision showed HOAs are not governmental. The court disagreed, reasoning that the policy statement in A.R.S. § 33-1804(F) — requiring meetings to be conducted openly and members to be able to speak after discussion of agenda items — strongly suggests board activities and decisions are matters of public concern. The court also noted the Legislature extended First Amendment-type protections to HOA members (A.R.S. §§ 33-1804, -1808), distinguishing HOA boards from private business boards.

Why were the defamation and false light claims dismissed?

Because the plaintiffs were limited-purpose public figures, their false light claim about their public duties was barred, and their defamation claim required pleading actual malice. The court found the complaint offered only conclusory characterizations of the statements. Plaintiffs conceded two of three statements were not actionable, and the remaining “LDS hand-picked” post was not in the record and was not pleaded with the specificity needed to show a verifiable factual assertion about the plaintiffs.

Is this decision binding precedent, and who represented the parties?

No. It is an unpublished memorandum decision under Arizona Rule of the Supreme Court 111(c), so it is not precedential and may be cited only as authorized by rule. The plaintiffs/appellants were represented by Bradley R. Jardine and Michael Warzynski of Jardine, Baker, Hickman & Houston, P.L.L.C., and by Venessa J. Bragg of Elardo, Bragg, Rossi & Palumbo, P.C. Leslie Johnson was represented by Nathan Brown of Brown Patent Law.

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 21-0676
Court / tribunalCourt of Appeals
Decision / key dateDecember 8, 2022
Judge / panelCynthia J. Bailey, Samuel A. Thumma, David B. Gass
PartiesCheryl Marie McCoy, et al. (Plaintiffs/Appellants) v. Leslie Johnson (Defendant/Appellee)
Governing law
Topics
electionsprocedureopen-meetings
Outcome / holding

Members and candidates of a large homeowners’ association’s board are limited-purpose public figures for defamation and false light purposes as to statements about their board service and HOA elections, so they must plead and prove actual malice. Because the plaintiffs failed to plead actual malice, and because limited-purpose public figures cannot maintain false light claims arising from their public duties, the Rule 12(b)(6) dismissal was affirmed.

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

Three current or former members of the Val Vista Lakes Community Association Board — Cheryl “Cher” McCoy, Marcianne “Marci” Johnson, and Melissa Wilson (Scovel) — sued a fellow homeowner, Leslie Johnson, for defamation and false light invasion of privacy over social-media posts and a comment at an August 2020 board meeting. The challenged statements accused board members affiliated with The Church of Jesus Christ of Latter-day Saints (LDS) of religiously motivated favoritism in selecting the board’s management committee (calling applicants “LDS hand-picked”) and questioned board members’ religion around the November 2019 board election and the June 2020 recall election that removed Marci and Melissa. The Maricopa County Superior Court dismissed the claims under Ariz. R. Civ. P. 12(b)(6), holding the plaintiffs were limited-purpose public figures by reason of their board service and that the statements were non-actionable opinion. On appeal, Division One affirmed. It reasoned that the boards of large homeowners’ associations perform quasi-governmental functions and that their activities are matters of public concern to the community — reinforced by the Planned Communities Act’s open-meeting policy in A.R.S. § 33-1804 — so board members and candidates who inject themselves into HOA elections are limited-purpose public figures who must plead and prove actual malice. Because the plaintiffs failed to plead actual malice, and because limited-purpose public figures cannot maintain false light claims arising from their public duties, the court affirmed dismissal of both claims and denied Johnson’s unsupported request for appellate attorneys’ fees.

Key Issues & Findings

Reviewing the Rule 12(b)(6) dismissal de novo, the Court of Appeals began with the settled rule that a court may decide as a matter of law whether a person is a public figure. Persons may be deemed public figures based on their positions, their purposeful activity in thrusting themselves into matters of public controversy, or their close involvement with the resolution of matters of public concern, and a person may become a limited-purpose public figure by voluntarily injecting themselves into, or being drawn into, a particular public controversy. Although Arizona courts had not decided in a written opinion whether board members of a large homeowners’ association can be limited-purpose public figures, the court found persuasive out-of-state authority holding that they can (Cabrera, Metge, Gulrajaney, Verna, and Martin). The superior court had relied on Verna, which viewed an association board position as essentially indistinguishable from membership on a town’s governing body because the board performs many quasi-municipal functions.

Applying that framework, the court observed that all three plaintiffs had been board candidates, had served on the Board, and had served as Board president at one time or another, so they either voluntarily injected themselves or were drawn into matters of concern to the Val Vista Lakes community. The court rejected the argument that a private association cannot produce public figures, citing Agar and Gulrajaney, and rejected the contention that plaintiffs did not start the “conversation” about their religion, explaining that voluntarily engaging in activity calculated to invite public scrutiny is enough. It also rejected the argument that the open-meeting provision of the Planned Communities Act shows HOAs are not governmental: the policy statement in A.R.S. § 33-1804(F) — that meetings be conducted openly and members be able to speak after discussion of agenda items — strongly suggests that board activities and decisions are matters of public concern. The court distinguished private business boards because the legislature extended First Amendment-type protections to HOA members (A.R.S. §§ 33-1804, -1808).

Because the plaintiffs were limited-purpose public figures, the false light claim failed under Godbehere, which bars such claims that relate to the performance of public duties; plaintiffs did not dispute that the statements related to their board service. On defamation, a public-figure plaintiff must plead and prove actual malice, and conclusory characterizations without supporting factual specificity fail Arizona’s notice-pleading standard, especially in defamation actions (BLK III; Cullen). Plaintiffs conceded two of the three statements were not actionable, and the remaining “LDS hand-picked” post was not in the record and was not pleaded with the specificity needed to show it made a verifiable factual assertion about Marci or Melissa. The court therefore affirmed the dismissal and denied Johnson’s request for appellate attorneys’ fees because she cited no legal basis for the award.

Why It Matters

This memorandum decision addresses a recurring tension in community-association life: robust, sometimes bitter, debate about board elections and governance can collide with individual board members’ desire to protect their reputations. By treating board members and candidates of a large HOA as limited-purpose public figures, the court placed HOA electoral speech on a footing similar to speech about local government, requiring a defamation plaintiff to plead and prove actual malice and barring false light claims tied to public duties. In practice, that raises the pleading bar substantially for board members who sue critics over election-related statements, and it protects members’ ability to comment publicly on candidates and board decisions.

The decision also underscores how Arizona’s Planned Communities Act frames HOA governance as a matter of community-wide public concern. The court read the open-meeting policy of A.R.S. § 33-1804 (with A.R.S. § 33-1808) as evidence that board activities are open, participatory, and quasi-governmental, distinguishing HOA boards from ordinary private business boards. Because this is an unpublished memorandum decision under Arizona Rule of the Supreme Court 111(c), it is not precedential and may be cited only as authorized by rule; even so, it illustrates how Arizona courts are likely to analyze defamation and false light claims arising from HOA elections, recall campaigns, and board management decisions. A separately docketed memorandum decision arising from the same community, McCoy v. Hassen, 1 CA-CV 21-0524, addresses related disputes.

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Greenberg v. McGowan: HOA Court Case Guide

Posted on by

Arizona Court of Appeals – Division One (Memorandum Decision)

A Yavapai County covenant dispute over whether a neighbor’s structure was a barn or garage, and whether donkeys were allowed, ends with the Court of Appeals affirming summary judgment and a prevailing-party fee award.

Last updated July 1, 2026. Case: Greenberg v. McGowan; 1 CA-CV 19-0061; Yavapai County Superior Court No. P1300CV201600734 (Hon. David L. Mackey).

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

The Court of Appeals affirmed summary judgment for the defendants, holding that Greenberg showed no error in the interpretation and enforcement of the recorded CC&Rs — the covenants did not prohibit donkeys and the structure’s undisputed current use was as a permitted barn — that her contract claim failed for lack of any disclosed, computable damages, and that the superior court did not abuse its discretion in denying leave to amend or reconsideration or in awarding attorneys’ fees under the CC&Rs and A.R.S. § 12-341.01.

Case Participants

Neutral Parties

  • Linda H. Greenberg (Party)
    Plaintiff/Appellant; homeowner in Inscription Canyon Ranch who sued over the neighboring structure and donkeys and alleged an open-meetings violation.
  • John McGowan (Party)
    Defendant/Appellee; neighboring homeowner who built the disputed structure and kept donkeys.
  • Eileen McGowan (Party)
    Defendant/Appellee; neighboring homeowner (wife of John McGowan).
  • Inscription Canyon Ranch Architectural Review Committee (ICR ARC) (Party)
    Defendant/Appellee; the community’s architectural review committee that approved the McGowans’ construction.
  • ICR Water Users Association, Inc. (Party)
    Defendant/Appellee; Arizona corporation (association-side entity) named in the suit.
  • William J. O’Leary (Counsel)
    O’Leary Eaton, P.L.L.C.
    Counsel for Plaintiff/Appellant Linda Greenberg (Prescott).
  • Michael P. Thieme (Counsel)
    O’Leary Eaton, P.L.L.C.
    Counsel for Plaintiff/Appellant Linda Greenberg (Prescott).
  • Andrew J. Becke (Counsel)
    Murphy, Schmitt, Hathaway, Wilson & Becke, P.L.L.C.
    Co-Counsel for Defendants/Appellees John and Eileen McGowan (Prescott).
  • Alex B. Vakula (Counsel)
    The Vakula Law Firm, PLC
    Co-Counsel for Defendants/Appellees John and Eileen McGowan (Prescott).
  • Douglas J. Suits (Counsel)
    Suits Law Firm, PLC
    Counsel for Defendant/Appellee ICR Water Users Association, Inc. (Prescott).
  • Samuel A. Thumma (Judge)
    Presiding Judge; authored the memorandum decision.
  • Jennifer M. Perkins (Judge)
    Judge; joined the decision.
  • Paul J. McMurdie (Judge)
    Judge; joined the decision.

What happened and why it matters

Linda Greenberg and her neighbors, John and Eileen McGowan, own adjoining two-acre parcels in Inscription Canyon Ranch, a residential community in Williamson Valley, Arizona, that is governed by longstanding recorded Covenants, Conditions and Restrictions (CC&Rs). After the Inscription Canyon Ranch Architectural Review Committee (ICR ARC) approved the McGowans’ construction of a structure, Greenberg sued the McGowans, the ARC, and the ICR Water Users Association, Inc. The dispute centered on whether the structure was a permitted barn or a prohibited garage and whether the McGowans could keep two donkeys and a foal on their parcel. Greenberg’s operative complaint alleged breach of the CC&Rs and a violation of the homeowners’-association open-meetings statute, A.R.S. § 33-1804, and sought declaratory and injunctive relief and damages. The Yavapai County Superior Court granted summary judgment to all defendants, denied Greenberg’s requests to file a third amended complaint and for reconsideration, and awarded the defendants attorneys’ fees under the CC&Rs and A.R.S. § 12-341.01. On appeal, Division One reviewed the summary judgment de novo and affirmed, finding no genuine issue of material fact, no abuse of discretion in the procedural rulings, and no error in the fee award. The court also awarded the prevailing defendants their reasonable fees and taxable costs on appeal under the CC&Rs. The decision is an unpublished memorandum decision and is not precedential.

Reviewing the grant of summary judgment de novo, the court treated the interpretation of the CC&Rs as a question of law, giving effect to the parties’ intent as shown by the language of the document read in its entirety and the purpose for which the covenants were created (Powell v. Washburn). On the central animal question, the court rejected Greenberg’s premise that Paragraph 10 (“Livestock and Poultry”) created an exclusive list of permitted animals. Paragraph 10 expressly prohibits poultry, fowl, and swine and expressly permits horses and 4-H animal projects, but it never mentions donkeys and contains no catch-all establishing that the listed animals are the only ones allowed. Because the paragraph does not describe a class of prohibited animals, the maxim expressio unius est exclusio alterius did not apply, and reading the covenant to bar donkeys would improperly render its broad references to “livestock,” “animals,” fences, and corrals superfluous. The court reinforced this reading with other provisions: Paragraphs 1, 3, and 4 contemplate barns and outbuildings for animals of all kinds; Paragraph 6 describes a bridle path expressly for horses, mules, and donkeys; and Paragraphs 8, 13, and 19 show the drafters knew how to write comprehensive, all-encompassing prohibitions when they intended one — something Paragraph 10 conspicuously lacks. The court also noted A.R.S. § 3-1201’s definition of “equine” as including donkeys. On the barn-versus-garage issue, Greenberg conceded the structure had to date been used only as a barn (the approved use), so her theory that it might later be used as a garage presented an unripe, hypothetical dispute on which courts do not issue advisory opinions. Her breach-of-contract claim independently failed because she never disclosed a computation or measure of damages as required by Rule 26.1(a)(7); merely stating she would testify at trial could not create a triable issue under Rule 56(e). The court found no abuse of discretion in denying leave to file a third amended complaint filed 20 months into the case after discovery closed and summary judgment was entered — the amendment came late, sought to add long-known parties, would have reopened discovery, and was partly futile — and no error in denying reconsideration that merely repackaged rejected CC&R arguments. Finally, because the CC&Rs entitle the prevailing party to reasonable fees and costs and A.R.S. § 12-341.01 also applies, and because the defendants’ fee affidavits complied with Rule 54(g)(4), the fee award (including to the ARC) was proper.

For Arizona homeowners’ associations and their members, the decision illustrates a recurring principle of covenant interpretation: restrictions on the use of land are construed from the text of the recorded document as a whole, and a list of prohibited or permitted items is not treated as exhaustive unless the drafters said so. Because Paragraph 10 barred only certain animals and lacked any catch-all, the court would not read it to prohibit donkeys, and it pointed to the drafters’ use of sweeping language elsewhere in the CC&Rs as proof they knew how to impose a comprehensive ban when they wanted one. Boards, architectural committees, and owners drafting or enforcing covenants should note that ambiguity and omission tend to be resolved in favor of the free use of property, and that courts will avoid readings that render covenant language superfluous.

The case is also a practical reminder about litigation mechanics in HOA disputes. A breach-of-contract claim, even one tied to CC&Rs, still requires the plaintiff to disclose a computation and measure of damages; a promise to testify at trial will not defeat summary judgment. Motions to amend brought late — after discovery has closed and judgment entered — face steep odds, especially when they add previously known parties and would reopen discovery. And most owners bringing or defending covenant suits should anticipate that the CC&Rs’ prevailing-party fee clause, reinforced by A.R.S. § 12-341.01, can shift substantial attorneys’ fees to the losing side both in the trial court and on appeal. As an unpublished memorandum decision, however, the ruling is not precedential and may be cited only as authorized by rule.

Step-by-step litigation record

Step 2016-05 After ICR ARC approval, the McGowans begin constructing the disputed structure.
Step 2016-10 With the structure nearly complete, Greenberg sues the McGowans, ICR ARC, and ICR WUA to enjoin further construction; the parties stipulate to a preliminary injunction through May 2017.
Step 2017-05 After the defendants’ motion to dismiss is denied, the parties stipulate to extend and modify the injunction through November 2017, allowing ‘equine animals’ permitted under the CC&Rs; the McGowans begin keeping two foster donkeys (a foal arrives later).
Step 2017-10 Greenberg files her second amended (operative) complaint alleging breach of the CC&Rs and a violation of A.R.S. § 33-1804.
Step 2018-03 The defendants move for summary judgment; Greenberg moves for partial summary judgment on her contract and injunctive-relief claims.
Step 2018-05 The superior court grants the defendants’ summary-judgment motions and denies Greenberg’s; Greenberg then moves to amend a third time and for reconsideration, which are denied.
Step 2018-06 Greenberg’s late-filed motion for leave to file a third amended complaint is at issue; the case had been pending about 20 months with discovery closed.
Step 2019-01 Greenberg files her appeal (No. 1 CA-CV 19-0061) after entry of final judgment awarding the defendants fees and costs.
Step 2019-12-24 Division One issues a memorandum decision affirming the judgment and awarding the defendants their fees and costs on appeal under the CC&Rs.

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This index is generated from every public-facing source file currently present in assets/court_case_downloads/greenberg-v-mcgowan/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 2019-12-24

Opinion

Type: Decision or judgment

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

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2019-12-24_001_opinion.pdf

FAQ

What was Greenberg v. McGowan about?

It was a dispute between neighbors in Inscription Canyon Ranch, a Yavapai County residential community governed by recorded CC&Rs. Linda Greenberg sued the McGowans, the community’s Architectural Review Committee (ICR ARC), and the ICR Water Users Association, arguing the McGowans’ new structure was a prohibited garage rather than a permitted barn and that the CC&Rs did not allow the McGowans to keep donkeys. She alleged breach of the CC&Rs and a violation of the HOA open-meetings statute and sought declaratory and injunctive relief and damages.

Did the CC&Rs prohibit keeping donkeys?

No. The Court of Appeals held that Paragraph 10 of the CC&Rs did not create an exclusive list of permitted animals. It prohibited poultry, fowl, and swine and expressly allowed horses and 4-H animal projects, but it never mentioned donkeys and contained no catch-all barring unlisted animals. Because the covenant did not describe a class of prohibited animals, the court would not read it to ban donkeys, especially since other provisions referenced barns, livestock, and a bridle path for horses, mules, and donkeys.

Was the structure a barn or a garage?

The court did not have to decide the hypothetical. Greenberg conceded the structure had, to date, been used only as a barn — the use the ARC approved. Her concern that it might later be used as a garage presented an unripe, speculative dispute, and Arizona courts do not issue advisory opinions about actions that may never occur. Summary judgment on that claim was therefore proper.

Why did Greenberg’s breach-of-contract claim fail?

Independent of the merits, her contract claim failed because she never disclosed a computation or measure of her damages, as Arizona Rule of Civil Procedure 26.1(a)(7) requires. Simply stating that she would testify at trial did not satisfy the disclosure rules and could not create a genuine issue of material fact to defeat summary judgment under Rule 56(e).

Why were the defendants awarded attorneys’ fees?

The CC&Rs contain a prevailing-party clause entitling the winning side in an enforcement action to recover reasonable attorneys’ fees and costs, and A.R.S. § 12-341.01 also applies to contract disputes. Because the defendants prevailed and their fee affidavits complied with Rule 54(g)(4), the trial court’s fee award — including to the ARC — was proper, and Division One also awarded the defendants their fees and costs on appeal under the CC&Rs.

Is this decision binding precedent in Arizona?

No. Greenberg v. McGowan is an unpublished memorandum decision under Arizona Rule of the Supreme Court 111(c). It is not precedential and may be cited only as authorized by rule. It is useful as an illustration of how Arizona courts interpret CC&Rs and handle summary judgment, amendment, and fee issues, but it does not establish binding law.

Case Dossier

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Case Summary

Case ID / citation1 CA-CV 19-0061
Court / tribunalCourt of Appeals
Decision / key dateDecember 24, 2019
Judge / panelSamuel A. Thumma (Presiding Judge, author), Jennifer M. Perkins, Paul J. McMurdie
PartiesA homeowner sued her neighbors, the community’s Architectural Review Committee, and its water users association over a structure and donkeys, alleging CC&R breaches and an open-meetings violation; the trial court and Court of Appeals ruled for the defendants.
Governing law
Topics
cc-and-rsarchitectural-reviewattorneys-feesprocedureopen-meetings
Outcome / holding

The Court of Appeals affirmed summary judgment for the defendants, holding that Greenberg showed no error in the interpretation and enforcement of the recorded CC&Rs — the covenants did not prohibit donkeys and the structure’s undisputed current use was as a permitted barn — that her contract claim failed for lack of any disclosed, computable damages, and that the superior court did not abuse its discretion in denying leave to amend or reconsideration or in awarding attorneys’ fees under the CC&Rs and A.R.S. § 12-341.01.

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Parties, Court, and Research Coverage

Uploaded source package1 PDF
Step-by-step docket roadmap9 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

Linda Greenberg and her neighbors, John and Eileen McGowan, own adjoining two-acre parcels in Inscription Canyon Ranch, a residential community in Williamson Valley, Arizona, that is governed by longstanding recorded Covenants, Conditions and Restrictions (CC&Rs). After the Inscription Canyon Ranch Architectural Review Committee (ICR ARC) approved the McGowans’ construction of a structure, Greenberg sued the McGowans, the ARC, and the ICR Water Users Association, Inc. The dispute centered on whether the structure was a permitted barn or a prohibited garage and whether the McGowans could keep two donkeys and a foal on their parcel. Greenberg’s operative complaint alleged breach of the CC&Rs and a violation of the homeowners’-association open-meetings statute, A.R.S. § 33-1804, and sought declaratory and injunctive relief and damages. The Yavapai County Superior Court granted summary judgment to all defendants, denied Greenberg’s requests to file a third amended complaint and for reconsideration, and awarded the defendants attorneys’ fees under the CC&Rs and A.R.S. § 12-341.01. On appeal, Division One reviewed the summary judgment de novo and affirmed, finding no genuine issue of material fact, no abuse of discretion in the procedural rulings, and no error in the fee award. The court also awarded the prevailing defendants their reasonable fees and taxable costs on appeal under the CC&Rs. The decision is an unpublished memorandum decision and is not precedential.

Key Issues & Findings

Reviewing the grant of summary judgment de novo, the court treated the interpretation of the CC&Rs as a question of law, giving effect to the parties’ intent as shown by the language of the document read in its entirety and the purpose for which the covenants were created (Powell v. Washburn). On the central animal question, the court rejected Greenberg’s premise that Paragraph 10 (“Livestock and Poultry”) created an exclusive list of permitted animals. Paragraph 10 expressly prohibits poultry, fowl, and swine and expressly permits horses and 4-H animal projects, but it never mentions donkeys and contains no catch-all establishing that the listed animals are the only ones allowed. Because the paragraph does not describe a class of prohibited animals, the maxim expressio unius est exclusio alterius did not apply, and reading the covenant to bar donkeys would improperly render its broad references to “livestock,” “animals,” fences, and corrals superfluous. The court reinforced this reading with other provisions: Paragraphs 1, 3, and 4 contemplate barns and outbuildings for animals of all kinds; Paragraph 6 describes a bridle path expressly for horses, mules, and donkeys; and Paragraphs 8, 13, and 19 show the drafters knew how to write comprehensive, all-encompassing prohibitions when they intended one — something Paragraph 10 conspicuously lacks. The court also noted A.R.S. § 3-1201’s definition of “equine” as including donkeys. On the barn-versus-garage issue, Greenberg conceded the structure had to date been used only as a barn (the approved use), so her theory that it might later be used as a garage presented an unripe, hypothetical dispute on which courts do not issue advisory opinions. Her breach-of-contract claim independently failed because she never disclosed a computation or measure of damages as required by Rule 26.1(a)(7); merely stating she would testify at trial could not create a triable issue under Rule 56(e). The court found no abuse of discretion in denying leave to file a third amended complaint filed 20 months into the case after discovery closed and summary judgment was entered — the amendment came late, sought to add long-known parties, would have reopened discovery, and was partly futile — and no error in denying reconsideration that merely repackaged rejected CC&R arguments. Finally, because the CC&Rs entitle the prevailing party to reasonable fees and costs and A.R.S. § 12-341.01 also applies, and because the defendants’ fee affidavits complied with Rule 54(g)(4), the fee award (including to the ARC) was proper.

Why It Matters

For Arizona homeowners’ associations and their members, the decision illustrates a recurring principle of covenant interpretation: restrictions on the use of land are construed from the text of the recorded document as a whole, and a list of prohibited or permitted items is not treated as exhaustive unless the drafters said so. Because Paragraph 10 barred only certain animals and lacked any catch-all, the court would not read it to prohibit donkeys, and it pointed to the drafters’ use of sweeping language elsewhere in the CC&Rs as proof they knew how to impose a comprehensive ban when they wanted one. Boards, architectural committees, and owners drafting or enforcing covenants should note that ambiguity and omission tend to be resolved in favor of the free use of property, and that courts will avoid readings that render covenant language superfluous.

The case is also a practical reminder about litigation mechanics in HOA disputes. A breach-of-contract claim, even one tied to CC&Rs, still requires the plaintiff to disclose a computation and measure of damages; a promise to testify at trial will not defeat summary judgment. Motions to amend brought late — after discovery has closed and judgment entered — face steep odds, especially when they add previously known parties and would reopen discovery. And most owners bringing or defending covenant suits should anticipate that the CC&Rs’ prevailing-party fee clause, reinforced by A.R.S. § 12-341.01, can shift substantial attorneys’ fees to the losing side both in the trial court and on appeal. As an unpublished memorandum decision, however, the ruling is not precedential and may be cited only as authorized by rule.

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