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Sundance Adult Village Homeowners Association v. Elliott

Posted on June 30, 2026 by [email protected]

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

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

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

Download memorandum decision

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

The takeaway

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

What happened

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

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

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

Video overview of the ruling

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

Listen: audio deep dive on the ruling

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

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

Procedural timeline

Step 2006 Sundance adopts the original Architectural Design Guidelines and Association Rules.

Step 2012 The Architectural Committee amends the Guidelines, adopting Guideline I(h)(7), which assigns lot owners responsibility for maintaining and repairing walls separating a lot from the common area.

Step 2021 Water damage to the wall separating the common area from the Residents' lots is discovered (approximately a year before the complaint).

Step 2022 Sundance files a complaint in Maricopa County Superior Court (No. CV2022090753) seeking a declaration that the owners of eight bordering lots must contribute half the cost of repairing and replacing the wall.

Step 2023 Both parties file competing motions for summary judgment.

Step 2024 After a hearing, the superior court grants the Residents' motion for summary judgment and denies Sundance's motion, holding Sundance responsible for repairing the entire wall absent proof the Residents caused the damage.

Step 2026-01-06 Division Two of the Arizona Court of Appeals files a memorandum decision affirming the superior court.

Complete source-document index

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

Source 1 2026-01-06

Memorandum Decision

Type: Decision or judgment

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

Download source file

2026-01-06_001_memorandum-decision.pdf

FAQ

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

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

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

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

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

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

Did the homeowners cause the wall damage in this case?

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

Who pays attorney fees after this appeal?

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

Case Dossier

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

Case Summary

Case ID / citation	2 CA-CV 2024-0314
Court / tribunal	Court of Appeals
Decision / key date	January 6, 2026
Judge / panel	Hon. Kelly, Hon. Vásquez, Hon. Gard
Parties	Sundance Adult Village Homeowners Association (Plaintiff/Appellant) v. Bill and Mary Elliott, Robert and Sharon Lamb, Helen and Edward Horne, Jason Joseph, Mike Martin, Kathleen Lamont, Leland Pinney, Carolina Alcala, and David and LeAnn Otis as trustees of the Dave and LeAnn Otis Family Trust (Defendants/Appellees)
Governing law	A.R.S. § 12-120.21(A)(1) A.R.S. § 12-2101(A)(1) A.R.S. § 12-341 A.R.S. § 12-341.01
Topics	CC&RsArchitectural ReviewAttorney FeesProcedure
Outcome / holding	The Court of Appeals held that the wall is a structure located on the common area under Section 1.17 of the Declaration, so Section 5.01 makes the Association responsible for repairing the entire wall absent proof that the homeowners caused the damage; the conflicting 2012 Architectural Committee guideline shifting repair costs to owners could not be enforced because it would effectively amend the Declaration without the required 75% vote, and the Architectural Committee lacked authority to impose new financial obligations not found in the original Declaration. Affirmed.
Primary public source	View source opinion/order

Parties, Court, and Research Coverage

Reviewed source package	1 PDF
Step-by-step docket roadmap	7 roadmap entries
Video overview	Sundance Adult Village Homeowners Association v. Elliott
Study / briefing material	1 section
FAQ / homeowner questions	5 questions
Featured download links	1 download link

Key Issues & Findings

Case Summary

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

Key Issues & Findings

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

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

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

Why It Matters

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

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Chula Vista Homeowners Association v. Olson

Posted on June 30, 2026 by [email protected]

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

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

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

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

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

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

The takeaway

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

What happened

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

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

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

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

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

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

Procedural timeline

Step 2007 The Chula Vista CC&Rs are amended to include the "First Class Private Dwelling" provision later at issue.

Step 2009 The Olsons obtain a permit to build a 6,000-square-foot steel structure on their Cochise County property.

Step 2011 The HOA rejects the Olsons' plan to convert the structure into a residence but grants a three-year variance to live in it while building a home.

Step 2015 The HOA declares the Olsons in violation of the CC&Rs, records (and removes, then re-records) a Notice of Violation, imposes fines, and denies their appeal.

Step 2016-02 The Olsons sue the HOA in Cochise County Superior Court (No. CV201600084), alleging invalid CC&R amendment, open-meeting-law violations, and slander of title.

Step 2016 After trial, the respondent judge rules for the Olsons on all counts and enters an amended judgment totaling $40,318 ($5,000 statutory damages, $318 costs, $35,000 attorney fees).

Step 2018-07-27 Division Two of the Court of Appeals accepts special-action jurisdiction, holds the attorney fees are not damages for the supersedeas bond, and vacates the bond order.

Complete source-document index

This index contains 0 PDFs, 1 other source file 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 2018-07-27

Courtlistener Opinion

Type: Decision or judgment

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

Download source file

2018-07-27_001_courtlistener-opinion.txt

FAQ

What did the Court of Appeals decide in this case?

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

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

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

What were the underlying claims the homeowners won?

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

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

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

Is this decision binding precedent in Arizona?

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

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

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

Case Dossier

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

Case Summary

Case ID / citation	2 CA-SA 2018-0031, 426 P.3d 1228 (App. 2018)
Court / tribunal	Court of Appeals
Decision / key date	July 27, 2018
Judge / panel	Hon. Peter J. Eppich (author), Hon. Garye L. Vásquez (Presiding Judge, concurring), Hon. Philip G. Espinosa (concurring)
Parties	Chula Vista Homeowners Association (petitioner) sought special-action relief from a Cochise County order setting a supersedeas bond; Rodney and Gloria Olson, the prevailing homeowners below, were the real parties in interest.
Governing law	A.R.S. § 12-2108 Ariz. R. Civ. App. P. 7 A.R.S. § 33-420(A) A.R.S. § 33-1804 A.R.S. § 12-341.01 A.R.S. § 12-341
Topics	ProcedureAttorney FeesMeetings & RecordsCC&Rs
Outcome / holding	Attorney fees awarded on the homeowners' declaratory-relief, open-meeting-law, and slander-of-title claims under fee-authorizing statutes (A.R.S. § 33-420(A) and § 12-341.01) are not "damages" for purposes of calculating a supersedeas bond under A.R.S. § 12-2108 and Rule 7, Ariz. R. Civ. App. P. The trial court abused its discretion by including those fees in the bond, so the bond order was vacated.
Primary public source	View source opinion/order

Parties, Court, and Research Coverage

Reviewed source package	1 other source file
Step-by-step docket roadmap	7 roadmap entries
Video overview	Temporarily unavailable while the expanded case record is reviewed
Study / briefing material	1 section
FAQ / homeowner questions	6 questions
Featured download links	0 download links

Key Issues & Findings

Case Summary

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

Key Issues & Findings

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

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

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

Why It Matters

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

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

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

Posted on June 30, 2026 by [email protected]

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

In this 2026 unpublished decision, Division One applied Kalway v. Calabria Ranch to affirm that a homeowners’ association could not impose a new $300 capital-improvement assessment tied to a golf course its CC&Rs had previously excluded from association responsibility, and it upheld the fee award to the homeowner.

Last updated June 30, 2026. Case: Jimmie Klatt v. SunBird Golf Resort Homeowners Association Inc., 1 CA-CV 25-0709.

Download memorandum decision

Current-status note: This page is published as a litigation record based on the source files available through 2026-06-11. Later filings, appeals, mandates, settlements, or dismissal orders may change the posture; the linked court records control.

Scope note: This page covers Jimmie Klatt v. SunBird Golf Resort Homeowners Association Inc. (1 CA-CV 25-0709) as a public Arizona Court of Appeals HOA case guide. The source decision came from Division One. The downloadable source-document index below is generated from local raw source files when a PDF opinion is available. This page is educational and is not legal advice.

The takeaway

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

What happened

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

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

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

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

The superior court granted summary judgment for Klatt, applied Kalway, and found the Amendment was not foreseeable. It later entered final judgment declaring the Amendment void, invalid, and of no force and effect, and awarded Klatt attorneys’ fees plus costs. The Association appealed.

The Arizona Court of Appeals, Division One, affirmed. It held the Association had waived any standing challenge and that, in any event, Klatt had standing and a justiciable controversy, and it concluded the Amendment was an unforeseeable new obligation under Kalway. The court denied the Association’s fee request because it did not prevail and awarded Klatt reasonable attorneys’ fees and taxable costs under A.R.S. § 12-341.01, subject to ARCAP 21.

Video overview of the case record

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

Listen: audio deep dive on the case record

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

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

Procedural timeline

Step 1999 Several SunBird homeowners' associations join and adopt the 1999 CC&Rs creating the Association; the CC&Rs state the Golf Course does not constitute a common area.

Step 2015 The 2015 CC&Rs are adopted; Subsection 9.2 and Section 6.3(A) exclude the Golf Course from the association's and members' cost and common-expense responsibilities.

Step 2018 Jimmie Klatt buys a home in SunBird, becoming subject to the 2015 CC&Rs.

Step 2021 A majority of SunBird owners approve three amendments (the Amendment) creating a fund covering the Golf Course and imposing a $300 capital-improvement assessment on future lot owners.

Step 2023-09 Klatt sues the Association seeking a declaratory judgment and injunction, invoking Kalway.

Step Date not specified The superior court grants summary judgment for Klatt and later enters final judgment declaring the Amendment void and awarding Klatt attorneys' fees and costs.

Step 2026-06-11 The Arizona Court of Appeals, Division One, files its memorandum decision affirming and awarding Klatt fees and costs.

Complete source-document index

Source 1 2026-06-11

Memorandum Decision

Type: Decision or judgment

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

Download source file

2026-06-11_001_memorandum-decision.pdf

FAQ

What did the SunBird 2021 amendment do?

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

Why did the homeowner win?

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

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

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

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

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

Who paid attorneys' fees?

The superior court awarded Klatt attorneys’ fees and costs, and the Court of Appeals affirmed. On appeal, the court denied the Association’s fee request because it did not prevail and, in its discretion, awarded Klatt reasonable attorneys’ fees and taxable costs under A.R.S. § 12-341.01, subject to ARCAP 21.

Is this decision binding precedent?

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

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 25-0709
Court / tribunal	Court of Appeals
Decision / key date	June 11, 2026
Judge / panel	Brown, Fabian, Howe
Parties	Jimmie Klatt (Plaintiff/Appellee) v. SunBird Golf Resort Homeowners' Association, Inc. (Defendant/Appellant)
Governing law	A.R.S. § 12-1832 A.R.S. § 12-341.01
Topics	AssessmentsCC&RsAttorney FeesProcedure
Outcome / holding	The Court of Appeals affirmed summary judgment for the homeowner, holding that the 2021 amendment—which imposed a $300 capital-improvement assessment and authorized association funding for the golf course—was an unforeseeable new obligation under Kalway because the 2015 CC&Rs plainly excluded golf-course expenses, and that the homeowner had standing and raised a justiciable controversy.
Primary public source	View source opinion/order

Parties, Court, and Research Coverage

Reviewed source package	1 PDF
Step-by-step docket roadmap	7 roadmap entries
Video overview	Jimmie Klatt v. SunBird Golf Resort Homeowners Association Inc.
Study / briefing material	1 section
FAQ / homeowner questions	6 questions
Featured download links	1 download link

Key Issues & Findings

Case Summary

A homeowner in the age-restricted SunBird community sued his homeowners' association after a 2021 amendment to the CC&Rs created a fund to maintain and improve common areas including the separately owned SunBird Golf Course, and imposed a $300 capital-improvement assessment on people who buy SunBird lots after the amendment. The 2015 CC&Rs in effect when the homeowner bought his home expressly stated that neither the association nor its members would be responsible for golf-course costs and excluded the golf course from common areas and expenses. The superior court granted summary judgment for the homeowner, declared the amendment void under Kalway v. Calabria Ranch HOA, LLC, and awarded him attorneys' fees and costs. Division One of the Arizona Court of Appeals affirmed, holding the homeowner had standing and a justiciable controversy and that the amendment was unforeseeable because the earlier CC&Rs plainly barred using association funds for the golf course.

Key Issues & Findings

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

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

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

Why It Matters

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

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

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Laveen Meadows Homeowners Association v. Mejia: HOA Foreclosure Right Fixed at Filing

Posted on June 29, 2026 by [email protected]

HOA Foreclosure | A.R.S. § 33-1807 | 1 CA-CV 18-0276

This landmark Arizona case establishes that a homeowner cannot defeat an HOA foreclosure action by bringing delinquent assessments current after the lawsuit is filed. The court ruled that the right to foreclose is fixed at filing, allowing the HOA to proceed to collect outstanding legal fees.

Last updated June 29, 2026. Case: Laveen Meadows, appellate No. 1 CA-CV 18-0276; opinion affirming.

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

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

Scope note: This page covers the trial and appellate litigation history of Laveen Meadows v. Mejia, a precedential Arizona decision holding that a homeowner’s post-filing payment of delinquent assessments does not eliminate an association’s statutory right to foreclose for unawarded attorneys’ fees. This page is educational and is not legal advice.

The takeaway

The Arizona Court of Appeals held that under A.R.S. § 33-1807(A), an association’s statutory right to foreclose its assessment lien is determined as of the date the foreclosure action is filed, and a homeowner’s subsequent partial payment of delinquent assessments does not divest the court of jurisdiction or eliminate the association’s right to pursue foreclosure for remaining fees and costs.

Case Participants

Petitioner Side

Laveen Meadows Homeowners Association, Inc. (Plaintiff)
Laveen Meadows Homeowners Association, Inc.
Arizona nonprofit corporation that initiated the foreclosure action for delinquent assessments.
Chad M. Gallacher (Counsel)
Maxwell & Morgan, P.C.
Lead counsel representing Laveen Meadows Homeowners Association, Inc. throughout the case and appeal.
W. William Nikolaus (Counsel)
Maxwell & Morgan, P.C.
Counsel representing Laveen Meadows Homeowners Association, Inc. in trial and appellate proceedings.
Brian W. Morgan (Counsel)
Maxwell & Morgan, P.C.
Counsel representing Laveen Meadows Homeowners Association, Inc., participated in default and evidentiary hearings.
Samuel C. Richardson (Counsel)
Maxwell & Morgan, P.C.
Counsel representing Laveen Meadows Homeowners Association, Inc. in drafting default-related and appellate briefs.
Heather Yearack (Witness)
Laveen Meadows Homeowners Association, Inc.
Witness/representative for Laveen Meadows who testified regarding Mejia's assessment ledger and late fees at the evidentiary hearing.
Mohammed al Sayed (Board Member)
Laveen Meadows Homeowners Association, Inc.
Laveen Meadows board member who attended the June 2, 2017 superior court hearing.
Lisa Riesland (Other)
Laveen Meadows Homeowners Association / Management Company
Community manager for Laveen Meadows, mentioned by witness Yearack in testimony.

Respondent Side

Carlos Mejia (Defendant)
Homeowner of Lot 63, Laveen Meadows Parcel 2
Homeowner who appealed the denial of his motion to set aside the default judgment of foreclosure.
Jonathan A. Dessaules (Counsel)
Dessaules Law Group
Lead counsel representing Defendant Carlos Mejia on appeal.
Jacob A. Kubert (Counsel)
Dessaules Law Group
Co-counsel representing Carlos Mejia in both the trial court and the Court of Appeals.
David E. Wood (Counsel)
Dessaules Law Group
Additional in-firm counsel representing Carlos Mejia during the appellate proceedings.
Paul Monaghan (Witness)
Dessaules Law Group
Witness for Carlos Mejia who testified at the evidentiary hearing regarding Mejia's assessment payment of $5,000.
Davina Bressler (Counsel)
Maricopa County Attorney's Office
Deputy County Attorney representing Defendant State of Arizona, which disclaimed interest and was dismissed.
State of Arizona (Defendant)
State of Arizona, Maricopa County Finance Department Collections Unit
Named as defendant due to a criminal restitution lien; filed a Disclaimer of Interest and was dismissed.
Lexington National Insurance Corporation (Defendant)
Lexington National Insurance Corporation
Named as defendant due to a recorded Deed of Trust; failed to appear and defaulted.
US Immigration Bonds and Insurance Services, Inc. (Defendant)
US Immigration Bonds and Insurance Services, Inc.
Named as defendant due to a recorded Deed of Trust; failed to appear and defaulted.
United States of America (Defendant)
Department of the Treasury – Internal Revenue Service
Named as defendant due to a federal tax lien; filed a Disclaimer of Interest and was dismissed with prejudice.

Neutral Parties

Hon. Margaret E. Benny (Judge)
Maricopa County Superior Court
Judge Pro Tempore/Commissioner who presided over the trial court proceedings, entered default judgment, and denied Rule 60(b) motion.
Hon. Maria Elena Cruz (Judge)
Arizona Court of Appeals, Division One
Presiding Judge who delivered the decision of the appellate court affirming the foreclosure judgment.
Hon. Kenton D. Jones (Judge)
Arizona Court of Appeals, Division One
Appellate judge on the panel who joined the majority opinion affirming the foreclosure judgment.
Hon. Kent E. Cattani (Judge)
Arizona Court of Appeals, Division One
Appellate judge who dissented, arguing that Mejia's payment of assessments precluded foreclosure.
Hon. Michael J. Brown (Judge)
Arizona Court of Appeals, Division One
Appellate judge who was substituted for Judge Jones on the panel for the subsequent attorneys' fees order.
Hon. Peter B. Swann (Judge)
Arizona Court of Appeals, Division One
Chief Judge of the Court of Appeals who signed the administrative memorandum substituting Judge Brown on the panel.
Hon. James P. Beene (Judge)
Arizona Court of Appeals / Arizona Supreme Court
Signed appellate procedural orders as Presiding Judge of Department M and Supreme Court orders as Duty Justice.
Hon. Melina Brill (Judge)
Arizona Court of Appeals, Division One
Judge Pro Tempore who signed initial procedural and dismissal orders on appeal.

What happened

In May 2016, Laveen Meadows Homeowners Association filed a judicial foreclosure complaint against homeowner Carlos Mejia, alleging that he was delinquent on assessments for over a year and in an amount exceeding $1,200. Mejia failed to file a timely answer, and the Association obtained an entry of default in December 2016.

Before the court entered default judgment, Mejia retained counsel and paid $5,000 – an amount that exceeded his delinquent assessments and late fees but did not cover the substantial attorneys’ fees the Association had incurred. Mejia moved to set aside the default, arguing that his payment eliminated the statutory basis for foreclosure under A.R.S. § 33-1807(A). The trial court denied the motion and entered a judgment of foreclosure, recording a negative principal balance of -$2,152.08 (reflecting Mejia’s overpayment of assessments) but ordering foreclosure of the lien to satisfy $11,190.00 in attorneys’ fees and $1,012.25 in costs. Mejia appealed, and the Court of Appeals affirmed the judgment.

Video overview of the ruling

An AI-generated video overview of Laveen Meadows Homeowners Association v. Mejia (1 CA-CV 18-0276). HOA lien foreclosure judgment properly included assessments, fees, and statutory lien priorities. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the ruling

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

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

Procedural timeline

Step 2016-05-11 Complaint filed in Maricopa County Superior Court seeking foreclosure of assessment lien.

Step 2016-05-12 Carlos Mejia served with the Summons and Complaint by a private process server.

Step 2016-07-13 Laveen Meadows files Notice of Dismissal of Defendant State of Arizona.

Step 2016-08-22 IRS files Disclaimer of Interest; Laveen Meadows files Notice of Dismissal of Defendant United States of America.

Step 2016-10-12 Superior Court enters 150-Day Order Minute Entry.

Step 2016-12-08 Laveen Meadows files Application and Affidavit for Entry of Default against Carlos Mejia.

Step 2017-04-03 Laveen Meadows files Motion and Affidavit for Entry of Default Judgment, China Doll fee affidavit, and Statement of Costs.

Step 2017-04-14 Dessaules Law Group files Notice of Appearance for Carlos Mejia; Mejia files Motion to Set Aside Entry of Default, Answer, and Notice of Payment of $5,000 assessments.

Step 2017-04-17 Default hearing held; Superior Court resets hearing to June 2, 2017 to allow briefing on Mejia's Motion to Set Aside Default.

Step 2017-04-28 Laveen Meadows files Response in Opposition to Motion to Set Aside Default.

Step 2017-05-10 Mejia files Reply in Support of Motion to Set Aside Entry of Default.

Step 2017-05-19 Laveen Meadows files Motion to Strike Mejia's Reply for improperly citing unpublished trial court rulings.

Step 2017-05-24 Mejia files Response to Motion to Strike and attaches copies of the cited trial court rulings.

Step 2017-05-26 Laveen Meadows files Reply to Motion to Strike and Notice of Exhibits for the damages hearing.

Step 2017-06-02 Hearing held; Superior Court grants Laveen Meadows' Motion to Strike and denies Mejia's Motion to Set Aside Default; schedules evidentiary hearing on damages.

Step 2017-06-06 Superior Court signs Order formally denying Mejia's Motion to Set Aside Default.

Step 2017-06-09 Mejia files Defendant's Hearing Memorandum regarding damages and right of foreclosure.

Step 2017-06-19 Laveen Meadows files Pre-Hearing Memorandum, Supplemental China Doll Fee Affidavit, and Supplemental Application for Attorney Fees.

Step 2017-06-20 Default Evidentiary Hearing on damages held; Heather Yearack and Paul Monaghan testify; Court takes matter under advisement.

Step 2017-07-03 Mejia files Objection to Proposed Judgment, Objection to Statement of Costs, and Response to Fee Application.

Step 2017-07-14 Laveen Meadows files Replies in support of its Proposed Judgment, Fee Application, and Statement of Costs.

Step 2017-08-04 Superior Court signs and files Judgment of Foreclosure, awarding -$2,152.08 principal, $11,190.00 in attorney's fees, and $1,012.25 in costs.

Step 2017-08-16 Mejia files Notice of Appeal, initiating case 1 CA-CV 17-0539.

Step 2017-08-17 Mejia files Motion to Set Supersedeas Bond and Stay Enforcement of Judgment in Superior Court.

Step 2017-08-31 Laveen Meadows files Notice of Cross-Appeal.

Step 2017-09-28 Superior Court sets Mejia's supersedeas bond at $0.00 and stays enforcement of the judgment pending appeal.

Step 2017-12-07 Court of Appeals issues Order terminating stay and dismissing appeal 1 CA-CV 17-0539 for lack of jurisdiction because a direct appeal cannot be taken from a default judgment without first seeking Rule 60(b) relief.

Step 2017-12-20 Mejia files Motion to Set Aside Default Judgment under Rule 60(b) in Superior Court; Court of Appeals dismisses the Association's cross-appeal.

Step 2018-01-10 Laveen Meadows files Response in Opposition to Mejia's Motion to Set Aside Default Judgment.

Step 2018-01-30 Mejia files Reply in Support of Motion to Set Aside Default Judgment.

Step 2018-03-28 Superior Court enters signed Minute Entry denying Mejia's Motion to Set Aside Default Judgment and permitting Association to apply for post-judgment fees.

Step 2018-04-05 Laveen Meadows files Post-Judgment Application for Attorney Fees ($7,680.00) and Statement of Costs ($98.51).

Step 2018-04-20 Superior Court signs Order granting Laveen Meadows' post-judgment attorney's fees and costs.

Step 2018-04-25 Mejia files Notice of Appeal, initiating case 1 CA-CV 18-0276.

Step 2018-05-16 Mejia files Motion to Set Supersedeas Bond and Stay Enforcement of Judgment in Superior Court.

Step 2018-05-31 Appellate clerk files Index of Record from Superior Court for case 1 CA-CV 18-0276.

Step 2018-06-12 Court of Appeals dismisses appeal 1 CA-CV 18-0276 for lack of jurisdiction, believing the Superior Court's April 20, 2018 fees order had not been resolved or signed.

Step 2018-06-14 Mejia files Motion for Reconsideration and to Reinstate Appeal in Court of Appeals, attaching the signed April 20 order; also files duplicate Motion to Set Supersedeas Bond in Superior Court.

Step 2018-07-10 Mejia files Reply in Support of Motion for Reconsideration in the Court of Appeals.

Step 2018-07-13 Court of Appeals enters Order vacating its dismissal and reinstating appeal 1 CA-CV 18-0276; Mejia files Notice of No Response to his bond motion in Superior Court.

Step 2018-07-23 Mejia files Case Management Statement and Notice of Transcript Order in the Court of Appeals.

Step 2018-09-12 Mejia files Appellant's Opening Brief.

Step 2018-11-21 Laveen Meadows files Appellee's Answering Brief.

Step 2018-11-26 Laveen Meadows files Motion for Leave to Have Clerical Error Corrected by the Trial Court.

Step 2019-01-07 Mejia files Response opposing Laveen Meadows' Motion to Correct Clerical Error.

Step 2019-01-14 Laveen Meadows files Reply in Support of Motion to Correct Clerical Error.

Step 2019-01-28 Court of Appeals enters Order denying Laveen Meadows' Motion to Correct Clerical Error.

Step 2019-03-26 Mejia files Appellant's Reply Brief.

Step 2019-04-23 Mejia files Request for Oral Argument.

Step 2019-05-01 Court of Appeals enters Order granting the request for oral argument.

Step 2019-07-24 Laveen Meadows files Notice of New Binding Authority regarding the 2019 legislative amendment to A.R.S. § 33-1807.

Step 2019-07-29 Mejia files Motion to Strike Notice of New Authority or, alternatively, to order supplemental briefing.

Step 2019-08-07 Laveen Meadows files Response in Opposition to Mejia's Motion to Strike Notice of New Authority.

Step 2019-08-13 Court of Appeals enters Order granting request for supplemental briefs on the meaning and application of newly-amended A.R.S. § 33-1807.

Step 2019-08-27 Both parties file simultaneous Supplemental Briefs in the Court of Appeals.

Step 2019-09-03 Oral argument held before Court of Appeals Department A.

Step 2020-05-01 Court of Appeals enters Order amending the short caption to 'Laveen Meadows v. Mejia.'

Step 2020-05-05 Court of Appeals files its published Opinion affirming the trial court's denial of the motion to set aside the default judgment of foreclosure.

Step 2020-05-20 Mejia files Motion for Reconsideration in the Court of Appeals.

Step 2020-05-26 Court of Appeals enters Order denying Mejia's Motion for Reconsideration.

Step 2020-06-04 Mejia files Petition for Review in the Arizona Supreme Court, assigned No. CV-20-0167-PR.

Step 2020-06-18 Court of Appeals enters Order granting Laveen Meadows' appellate attorney's fees ($33,005.00) and costs ($512.00).

Step 2020-09-22 Arizona Supreme Court enters Order denying Mejia's Petition for Review and granting Laveen Meadows' request for Supreme Court attorney's fees.

Step 2020-11-25 Laveen Meadows files Notice of Settlement in the Arizona Supreme Court.

Type: Decision or judgment

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

Download source file

2020-12-03_237_0000-civil-mandate.pdf

FAQ

Does paying off delinquent assessments after an HOA foreclosure lawsuit is filed stop the foreclosure under Arizona law?

No. In the binding precedent of Laveen Meadows v. Mejia, the Arizona Court of Appeals held that an association’s statutory right to foreclose is determined as of the date the lawsuit is filed. Bringing the assessment balance current after filing does not eliminate the HOA’s right to proceed with foreclosure to recover outstanding attorneys’ fees and costs.

What is the statutory threshold for an HOA to file a foreclosure lawsuit in Arizona?

Under A.R.S. § 33-1807(A), an HOA can only foreclose its assessment lien if the owner has been delinquent in the payment of assessments (excluding collection fees, late charges, and attorneys’ fees) for a period of one year or in the amount of $1,200 or more, whichever occurs first.

Can an HOA foreclose on a home solely to collect unpaid attorneys' fees and costs?

Yes, if the statutory foreclosure threshold for assessments was met on the date the lawsuit was filed. While attorneys’ fees alone are not foreclosable assessments, if a foreclosure action is properly initiated based on delinquent assessments, the HOA can continue the foreclosure process to recover its reasonable collection fees, attorneys’ fees, and late charges.

Is the Laveen Meadows v. Mejia ruling binding precedent for all Arizona HOAs and homeowners?

Yes. This decision is a published, precedential opinion from the Arizona Court of Appeals, Division One. It was subsequently clarified and codified by the Arizona Legislature in amendments to A.R.S. § 33-1807(A), confirming that eligibility for foreclosure is determined on the date the action is filed.

How can a homeowner stop an HOA foreclosure once a lawsuit has been filed?

Once a foreclosure action is filed, a homeowner cannot unilaterally stop the process merely by paying the delinquent assessments. To completely stop the foreclosure and redeem the property, the homeowner must satisfy the entire secured debt, which includes all delinquent assessments, late fees, costs, and the HOA’s reasonable attorneys’ fees.

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 18-0276
Court / tribunal	Court of Appeals
Decision / key date	May 5, 2020
Judge / panel	Hon. Margaret E. Benny, Hon. Maria Elena Cruz, Hon. Kenton D. Jones, Hon. Kent E. Cattani
Parties	Laveen Meadows Homeowners Association, Inc. (Plaintiff/Appellee) v. Carlos Mejia (Defendant/Appellant)
Governing law	A.R.S. § 33-1807 A.R.S. § 33-1807(A) A.R.S. § 33-1807(C) A.R.S. § 33-1807(F) A.R.S. § 33-1807(H)
Topics	ForeclosureAssessmentsAttorney FeesProcedure
Outcome / holding	The Arizona Court of Appeals held that under A.R.S. § 33-1807(A), an association's statutory right to foreclose its assessment lien is determined as of the date the foreclosure action is filed, and a homeowner's subsequent partial payment of delinquent assessments does not divest the court of jurisdiction or eliminate the association's right to pursue foreclosure for remaining fees and costs.

Parties, Court, and Research Coverage

Reviewed source package	234 PDFs
Step-by-step docket roadmap	66 roadmap entries
Video overview	Laveen Meadows Homeowners Association v. Mejia
Study / briefing material	1 section
FAQ / homeowner questions	5 questions
Featured download links	3 download links

Key Issues & Findings

Case Summary

Laveen Meadows Homeowners Association filed a judicial foreclosure action against homeowner Carlos Mejia for delinquent assessments exceeding $1,200. Mejia subsequently paid $5,000, which covered the delinquent assessments and late fees but did not cover the HOA's unawarded attorney's fees. Mejia argued that bringing the assessments current eliminated the statutory basis for foreclosure under A.R.S. § 33-1807(A). The trial court denied Mejia's motion to set aside the default judgment of foreclosure, holding that the statutory threshold delinquency must exist when the action is filed, and subsequent partial payments do not divest the court of jurisdiction or extinguish the foreclosure right. The Arizona Court of Appeals affirmed the trial court's decision in a 2-1 opinion, holding that under A.R.S. § 33-1807(A), the right to foreclose is determined at the inception of the lawsuit, and subsequent payments towards delinquent assessments do not eliminate the association's right to proceed with foreclosure to recover its outstanding collection fees and attorney's fees.

Key Issues & Findings

The Court of Appeals focused on the plain language of A.R.S. § 33-1807(A), concluding that the statutory conditions permitting foreclosure—such as delinquency for one year or in the amount of $1,200 or more—act as a triggering event or ripeness element required to initiate the foreclosure action. Once this threshold is met at the time of filing, jurisdiction is established, and subsequent actions or partial payments by the homeowner do not divest the court of jurisdiction or extinguish the association's lien foreclosure right.

The court distinguished the Arizona statute from California's negative phrasing, which explicitly limits the ongoing right to foreclose. It also noted that the Arizona Legislature's post-dispute amendment to § 33-1807(A), adding the phrase 'as determined on the date the action is filed,' serves as a clarifying declaration of the original statute's intent.

The dissenting opinion argued that the majority's decision leads to an absurd result where a homeowner who has paid all delinquent assessments can still have their home foreclosed upon solely to satisfy unawarded and unadjudicated attorney's fees, which are otherwise non-foreclosable under the statute.

Why It Matters

For Arizona homeowners, this case emphasizes the critical risk of allowing HOA assessment delinquencies to reach the statutory thresholds of $1,200 or one year. Once a foreclosure lawsuit is filed, homeowners cannot unilaterally stop the foreclosure process merely by paying the outstanding assessments; they must pay the entire debt, including the HOA's substantial and often unadjudicated attorney's fees, to protect their homes from a sheriff's sale.

For HOA boards and managers, the ruling confirms their leverage in collection actions but also reinforces the necessity of strict compliance with statutory thresholds on the exact date of filing. For legal counsel, it highlights the importance of maintaining an accurate accounting of assessments versus attorney's fees and demonstrates that contractual attorney's fees provisions in CC&Rs do not merge with a default judgment, allowing the recovery of post-judgment collection costs.

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

Posted on June 29, 2026 by [email protected]

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

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

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

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

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

The takeaway

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

What happened

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

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

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

Video overview of the ruling

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

Listen: audio deep dive on the ruling

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

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

Procedural timeline

Step 2015-11-04 Turtle Rock III Homeowners Association files a Complaint for breach of contract and injunctive relief against record owner Lynne A. Fisher in Maricopa County Superior Court.

Step 2015-11-20 Superior Court issues an Order to Show Cause setting a preliminary return hearing.

Step 2015-11-30 Defendant Lynne Fisher is personally served with the summons, complaint, and application for injunction.

Step 2015-12-11 Counsel enters a Notice of Appearance for Fisher and files a Notice of Change of Judge as a Matter of Right.

Step 2015-12-16 The case is reassigned from Judge David Udall to Judge David Talamante.

Step 2015-12-30 Plaintiff files an Affidavit and Application for Entry of Default after Fisher fails to file a timely response.

Step 2016-01-04 Court enters a minute entry noting default paperwork issues regarding a default coversheet.

Step 2016-01-05 Court sets a return hearing on the application for preliminary injunction.

Step 2016-01-08 Fisher files her Answer admitting residency but denying CC&R violation allegations, alongside a Demand for Jury Trial.

Step 2016-01-12 HOA files an Objection to Defendant's Demand for Jury Trial, arguing no jury right exists in equitable enforcement actions.

Step 2016-01-20 Court holds a status conference where it sets an evidentiary hearing.

Step 2016-02-26 Court issues an order scheduling an evidentiary hearing for April 15, 2016.

Step 2016-03-01 HOA files a Request for Clarification regarding whether the evidentiary hearing will be consolidated with a trial on the merits.

Step 2016-03-11 Court clarifies that the evidentiary hearing will address both injunctive relief and monetary penalties.

Step 2016-03-23 Court issues a 100-day notice directing the parties to submit a Joint Report and Scheduling Order.

Step 2016-04-02 Court issues a 150-day order providing scheduling directives.

Step 2016-04-08 HOA files its trial exhibits, including the CC&Rs, deed, account ledger, photographs, and warning letters.

Step 2016-04-12 The parties submit a Joint Pretrial Statement outlining uncontested facts and issues for trial.

Step 2016-04-15 Evidentiary hearing is held before Judge David Talamante; Fisher's counsel is present, but Fisher fails to appear.

Step 2016-04-21 HOA files its Application for Monetary Penalties seeking $9,165.25 and Application for Attorney Fees and Costs seeking $10,839.70.

Step 2016-05-11 Fisher files her Objection to the Application for Monetary Penalties, arguing lack of proper notice under A.R.S. § 33-1803(B).

Step 2016-05-12 Fisher files a Response and Objection to the HOA's Application for Attorney Fees and Costs.

Step 2016-05-25 HOA files replies defending its applications for fees and monetary penalties.

Step 2016-06-07 Judge David Talamante signs the final Order and Judgment, awarding the HOA injunctive relief, $3,850 in penalties, $10,839.70 in attorney fees, and $474 in costs.

Step 2016-06-23 HOA files a Petition and Declaration for Supplemental Proceedings to discover Fisher's assets.

Step 2016-07-03 Fisher files her Notice of Appeal to the Arizona Court of Appeals.

Step 2016-07-26 The parties file a Stipulation to Post Supersedeas Bond of $15,163.70 to stay execution of judgment during the appeal.

Step 2016-08-09 Court signs the order approving the supersedeas bond stay.

Step 2016-08-30 Fisher deposits a cashier's check of $15,163.00 with the court as a supersedeas bond.

Step 2016-11-21 Fisher files her Appellant's Opening Brief in the Court of Appeals (1 CA-CV 16-0455).

Step 2017-02-08 HOA files its Appellee's Answering Brief.

Step 2017-03-06 Fisher's counsel J. Roger Wood files a Notice of Disbarment attaching his Judgment of Disbarment in case PDJ-2016-9132.

Step 2017-10-26 The Arizona Court of Appeals issues its Opinion affirming the injunction but reversing the monetary penalties and attorney fees.

Step 2017-11-01 HOA files a Motion for Reconsideration challenging the Court of Appeals' opinion on fines and damages.

Step 2017-11-02 Court of Appeals denies the HOA's Motion for Reconsideration.

Step 2017-11-27 HOA files a Petition for Review with the Arizona Supreme Court.

Step 2018-05-08 The Arizona Supreme Court grants the Petition for Review on reframed issues regarding ad hoc penalties (No. CV-17-0327-PR).

Type: Court/source PDF

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2018-08-01_097_0000-returned-us-mail-letter-re-return-of.pdf

Source 97 2018-08-01

0000 Returned Us Mail Letter Re Return Of 2

Type: Court/source PDF

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2018-08-01_098_0000-returned-us-mail-letter-re-return-of-2.pdf

FAQ

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

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

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

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

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

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

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

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

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

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

Case Dossier

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

Case Summary

Case ID / citation	1 CA-CV 16-0455
Court / tribunal	Court of Appeals
Decision / key date	October 26, 2017
Judge / panel	Hon. Jon W. Thompson, Hon. Kent E. Cattani, Hon. Paul J. McMurdie
Parties	Turtle Rock III Homeowners Association (Plaintiff/Appellee) v. Lynne A. Fisher (Defendant/Appellant)
Governing law	A.R.S. § 33-1803(B) A.R.S. § 12-341.01
Topics	CC&RsFinesAttorney FeesProcedure
Outcome / holding	The trial court's injunction ordering property repairs is affirmed because the homeowner waived her interior maintenance objections by failing to raise them below, but the award of monetary penalties and attorneys' fees is reversed because the association failed to present competent evidence of a pre-existing, promulgated fee schedule.

Parties, Court, and Research Coverage

Reviewed source package	97 PDFs
Step-by-step docket roadmap	39 roadmap entries
Video overview	Turtle Rock III HOA v. Fisher
Study / briefing material	1 section
FAQ / homeowner questions	5 questions
Featured download links	3 download links

Key Issues & Findings

Case Summary

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

Key Issues & Findings

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

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

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

Why It Matters

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

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

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

Posted on June 29, 2026 by [email protected]

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

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

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

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

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

The takeaway

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

What happened

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

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

Video overview of the case record

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

Listen: audio deep dive on the case record

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

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

Procedural timeline

Step 2003-12-02 Architectural Committee approves Kitchukovs' initial plans in writing.

Step 2004-12-17 Kitchukovs submit modified plans showing reduced northern setback for the detached garage.

Step 2005-01-05 Architectural Committee disapproves modified location of the detached garage.

Step 2005-04-01 Kitchukovs resume construction of the garage without approval, prompting daily fines.

Step 2005-05-16 Tierra Ranchos files a complaint seeking injunctive and declaratory relief in Maricopa County Superior Court.

Step 2006-01-27 Special Master files site visit report with the trial court.

Step 2006-03-27 Trial court reconvenes oral argument on the parties' cross-motions for summary judgment.

Step 2006-05-23 Trial court enters signed judgment and award of attorneys' fees in favor of the Kitchukovs.

Step 2006-08-04 Court of Appeals issues civil notice to counsel regarding docketing and appellant's opening brief.

Step 2006-08-11 Tierra Ranchos pays appellant's filing fee in the Court of Appeals.

Step 2006-08-14 Court of Appeals issues fee notice to appellees and sets deadline for answering briefs.

Step 2007-01-09 Court of Appeals orders Clerk of Superior Court to transmit the record on appeal.

Step 2007-01-24 Record inventory filed with Court of Appeals.

Step 2007-04-20 Court of Appeals issues Notice of Oral Argument.

Step 2007-05-30 Oral argument held; Court of Appeals takes the matter under advisement.

Step 2007-08-09 Court of Appeals files opinion reversing summary judgment and remanding the case.

Step 2007-08-27 Motion for Reconsideration is filed.

Step 2007-11-14 Court of Appeals denies Motion for Reconsideration.

Step 2007-12-12 Kitchukovs file a Petition for Review with the Arizona Supreme Court.

Step 2007-12-18 Record is transmitted to the Arizona Supreme Court.

Type: Decision or judgment

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

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2008-04-04_010_0000-div-1-civil-mandate-package.pdf

Source 11 2008-04-04

0000 Div 1 Westmeadbureau Package Lette

Type: Court/source PDF

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

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FAQ

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

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

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

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

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

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

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

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

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

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

Case Dossier

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

Case Summary

Case ID / citation	1 CA-CV 06-0474
Court / tribunal	Court of Appeals
Decision / key date	August 9, 2007
Judge / panel	Hon. Philip Hall, Hon. Diane M. Johnsen, Hon. Lawrence F. Winthrop
Parties	Tierra Ranchos Homeowners Association (Plaintiff/Counter-Defendant/Appellant) v. Todor Kitchukov and Mariana Kitchukov (Defendants/Counter-Claimants/Appellees)
Governing law	A.R.S. § 12-2101
Topics	Architectural ReviewCC&RsFinesProcedure
Outcome / holding	The Arizona Court of Appeals held that a community association's discretionary decisions regarding property modifications are subject to a standard of reasonableness, and the challenging homeowner bears the burden of proving that the association breached its duty. Because genuine issues of material fact existed regarding the reasonableness of the Association's disapproval of the garage's location and the uniqueness of the lot, summary judgment was inappropriate.

Parties, Court, and Research Coverage

Reviewed source package	11 PDFs
Step-by-step docket roadmap	22 roadmap entries
Video overview	Tierra Ranchos HOA v. Kitchukov
Study / briefing material	1 section
FAQ / homeowner questions	5 questions
Featured download links	3 download links

Key Issues & Findings

Case Summary

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

Key Issues & Findings

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

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

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

Why It Matters

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

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

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Cypress on Sunland HOA v. Orlandini: First Mortgage Priority Over HOA Assessment Liens

Posted on June 29, 2026 by [email protected]

Assessments & Foreclosure | A.R.S. § 33-1807 | 1 CA-CV 10-0142 & 10-0235

This landmark Arizona case demonstrates that HOA assessment liens cannot extinguish senior first mortgages or deeds of trust, regardless of when they are recorded. It also serves as a critical warning to HOA attorneys regarding their duty of candor to the court, particularly during ex parte hearings where all material facts must be disclosed.

Last updated June 29, 2026. Case: Cypress on Sunland, appellate No. 1 CA-CV 10-0142 and 1 CA-CV 10-0235; reversing reinstatement of default foreclosure judgment.

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

Scope note: This page covers the Arizona Court of Appeals’ decision regarding the absolute priority of first mortgages over homeowners association assessment liens and the standards for finding fraud on the court. This page is educational and is not legal advice.

The takeaway

Under A.R.S. § 33-1807(B)(2), a recorded first deed of trust has priority over a homeowners association’s assessment lien regardless of when the two instruments were recorded. Obtaining an ex parte default foreclosure judgment by concealing the existence of a senior first deed of trust and misrepresenting the priority of the HOA assessment lien constitutes a fraud upon the court, justifying setting aside the judgment under Rule 60(c).

Case Participants

Petitioner Side

James V. Orlandini, II (Defendant)
Intervenor who purchased the property from the bank following the senior trustee's sale.
First American Title Insurance Company (Defendant)
Intervenor and title insurer that issued the lender's title policy on the senior first deed of trust.
HSBC Bank, USA (Defendant)
Assignee bank holding the senior first deed of trust on the property.
Scott A. Malm (Counsel)
Gust Rosenfeld, P.L.C.
Attorney representing Intervenors/Appellants James V. Orlandini, II and First American Title Insurance Company.
Ari Ramras (Counsel)
Ramras Law Offices, P.C.
Attorney representing Intervenors/Appellants James V. Orlandini, II and First American Title Insurance Company.
David N. Ramras (Counsel)
Ramras Law Offices, P.C.
Attorney representing Intervenors/Appellants James V. Orlandini, II and First American Title Insurance Company.

Respondent Side

Cypress on Sunland Homeowners Association (Plaintiff)
Homeowners association that initiated the original lien foreclosure action.
Scott Jacoby (Plaintiff)
Subsequent buyer of the property who filed the quiet title action.
Derrick Spearman (Defendant)
Original homeowner who defaulted on homeowners association assessments.
American Lending Corporation (Defendant)
Original lender of Spearman's first and second deeds of trust.
Robert Draper (Other)
Purchaser of the property at the HOA sheriff's sale who later sold it to Scott Jacoby.
Charles E. Maxwell (Counsel)
Maxwell & Morgan, P.C.
Attorney representing Plaintiff/Appellee Cypress on Sunland Homeowners Association.
Brian W. Morgan (Counsel)
Maxwell & Morgan, P.C.
Attorney representing Plaintiff/Appellee Cypress on Sunland Homeowners Association.
Paul R. Neil (Counsel)
Maxwell & Morgan, P.C.
Attorney representing Plaintiff/Appellee Cypress on Sunland Homeowners Association.
Warren Nikolaus (Counsel)
Maxwell & Morgan, P.C.
Attorney with Maxwell & Morgan, P.C. who wrote the January 2, 2008 letter.
Mark E. Lines (Counsel)
Shaw & Lines, LLC
Attorney representing Plaintiff/Appellee Scott Jacoby.
Michael C. Lamb (Counsel)
Shaw & Lines, LLC
Attorney representing Plaintiff/Appellee Scott Jacoby.

Neutral Parties

Alliance Bancorp (Other)
Intermediate assignee of the senior first deed of trust.
Sheldon H. Weisberg (Judge)
Arizona Court of Appeals, Division One
Appellate judge who authored the court's opinion.
Donn Kessler (Judge)
Arizona Court of Appeals, Division One
Presiding appellate judge on Department B.
Diane M. Johnsen (Judge)
Arizona Court of Appeals, Division One
Appellate judge on Department B.
Edward O. Burke (Judge)
Maricopa County Superior Court
Trial judge who vacated the default judgment and sheriff's sale for fraud on the court.
Kirby D. Kongable (Judge)
Maricopa County Superior Court
Superior Court Commissioner / Judge Pro Tempore who consolidated the actions and reinstated the default judgment.
M. Scott McCoy (Judge)
Maricopa County Superior Court
Superior Court Commissioner who signed the original ex parte default foreclosure judgment.
Philip G. Urry (Other)
Arizona Court of Appeals, Division One
Clerk of the Court of Appeals who issued several civil notices and records orders.
Ruth Willingham (Other)
Arizona Court of Appeals, Division One
Clerk / Acting Clerk of the Court of Appeals who issued notices, opinions, and mandates.
Rachelle M. Resnick (Other)
Arizona Supreme Court
Clerk of the Arizona Supreme Court who sent notifications regarding the denial of petition for review.
Michael K. Jeanes (Other)
Maricopa County Superior Court
Clerk of the Maricopa County Superior Court.
Patricia Sanderman (Other)
Maricopa County Superior Court
Supervisor of the Appeals Section of the Maricopa County Superior Court.
Marcus Reinkensmeyer (Other)
Maricopa County Superior Court
Court Administrator listed on various court notifications.

What happened

Derrick Spearman owned a home in Phoenix subject to the CC&Rs of the Cypress on Sunland Homeowners Association, which were recorded in 2003. In 2006, Spearman obtained two loans from American Lending Corporation secured by first and second deeds of trust. Spearman subsequently failed to pay his HOA assessments. In April 2007, the HOA, represented by Maxwell & Morgan, P.C., filed a foreclosure lawsuit against Spearman and American Lending Corporation. The complaint failed to disclose that one of the loans was a senior first deed of trust and falsely asserted that the HOA’s assessment lien had priority over all other interests.

American Lending Corporation did not answer the complaint, having already assigned the first deed of trust. At an ex parte default hearing in June 2007, the HOA’s attorney obtained a default judgment declaring the assessment lien a ‘valid first lien’ and purporting to foreclose all other interests. The property was sold at a sheriff’s sale to Robert Draper for $5,599 (compared to its $190,000 appraisal value), who later sold it to Scott Jacoby for $110,000. Meanwhile, the assignee bank foreclosed its senior first deed of trust and sold the property to James Orlandini for $80,550. When Jacoby filed a quiet title action against the bank, Orlandini intervened and sought to vacate the default foreclosure judgment. Although Judge Burke initially vacated the judgment for fraud on the court, Commissioner Kongable later consolidated the cases and reinstated the judgment. The Court of Appeals ultimately reversed Commissioner Kongable, vacating the default judgment due to the HOA attorneys’ fraud on the court.

Video overview of the ruling

An AI-generated video overview of Cypress on Sunland HOA v. Orlandini (1 CA-CV 10-0142 and 1 CA-CV 10-0235 (Consolidated)). Under A.R.S. § 33-1807(B)(2), a recorded first deed of trust has priority over a homeowners association’s assessment… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the ruling

An AI-generated audio deep dive walking through the court’s reasoning and disposition in Cypress on Sunland HOA v. Orlandini. Generated from the case filings; verify against the linked ruling below.

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

Procedural timeline

Step 2003-01-15 Cypress on Sunland HOA CC&Rs are recorded in Maricopa County.

Step 2006-06-02 Derrick Spearman obtains loans of $190,400 (first deed of trust) and $23,900 (second deed of trust) from American Lending Corporation (ALC).

Step 2006-06-06 ALC assigns the first deed of trust to Alliance Bancorp via an unrecorded assignment.

Step 2006-06-08 First and second deeds of trust are recorded in Maricopa County.

Step 2006-06-12 First deed of trust is assigned to HSBC Bank, USA, as trustee (the Bank).

Step 2007-02-09 The HOA records a money judgment against Spearman in the amount of $748.21.

Step 2007-04-09 The HOA files a lien foreclosure complaint against Spearman and ALC.

Step 2007-06-04 Commissioner M. Scott McCoy enters an ex parte default judgment of foreclosure in favor of the HOA.

Step 2007-07-26 Robert Draper purchases the property at a sheriff's sale for $5,599.

Step 2007-10-09 The successor trustee of the Bank notices a trustee's sale to foreclose on the first deed of trust.

Step 2008-01-02 Attorney for the Bank/Wells Fargo writes to Maxwell & Morgan requesting confirmation of the first deed of trust's priority.

Step 2008-03-15 Robert Draper sells the property by warranty deed to Scott Jacoby for $110,000.

Step 2008-05-22 The Bank obtains a trustee's deed upon sale following the trustee's sale foreclosure.

Step 2008-09-22 Scott Jacoby files a complaint to quiet title against the Bank.

Step 2008-09-26 James V. Orlandini purchases the property from the Bank for $80,550.

Step 2008-11-10 The assignment of the first deed of trust to HSBC Bank, USA is recorded.

Step 2009-03-15 James V. Orlandini and First American Title Insurance Company file a motion to intervene in the quiet title action.

Step 2009-07-22 Judge Edward O. Burke issues a minute entry granting the Intervenors' cross-motion for summary judgment, finding fraud on the court, and vacating the default judgment and sheriff's sale.

Step 2009-11-17 The court grants the HOA's motion to consolidate the lien foreclosure and quiet title actions.

Step 2009-11-25 The Intervenors file a notice of change of judge and a motion to stay proceedings.

Step 2009-12-10 Commissioner Kirby Kongable denies the Intervenors' notice of change of judge.

Step 2009-12-15 Commissioner Kongable enters a final order reinstating the default foreclosure judgment nunc pro tunc.

Step 2010-02-02 Commissioner Kongable enters an order awarding attorneys' fees of $8,710 to the HOA as sanctions under A.R.S. §§ 12-349 and 12-350.

Step 2010-03-02 The Arizona Court of Appeals issues a Civil Notice to Counsel in 1 CA-CV 10-0142.

Step 2010-03-09 The Appellants' filing fee in 1 CA-CV 10-0142 is paid.

Step 2010-03-15 The Court of Appeals issues a Notice to Counsel regarding Appellees' fees due in 1 CA-CV 10-0142.

Step 2010-04-09 The Court of Appeals issues a Civil Notice to Counsel in 1 CA-CV 10-0235.

Step 2010-04-14 The Appellants' filing fee in 1 CA-CV 10-0235 is paid.

Step 2010-04-15 The Court of Appeals issues a Notice to Counsel regarding Appellee's fee due in 1 CA-CV 10-0235.

Step 2010-04-28 Clerk of the Court Philip G. Urry issues a letter notifying Jacoby's counsel that his filing fee is past due.

Step 2010-06-02 The Court of Appeals issues an order directing the Clerk of Maricopa County Superior Court to transmit the record on appeal.

Step 2010-12-03 The Court of Appeals issues a Notice of Oral Argument setting the consolidated cases for hearing on January 4, 2011.

Step 2011-01-04 The Court of Appeals hears oral arguments and takes both consolidated cases under advisement.

Step 2011-05-19 The Arizona Court of Appeals Division One files its Opinion reversing the reinstatement of the default judgment and the award of attorneys' fees.

Step 2011-07-06 Division One transmits the record and Petition for Review to the Arizona Supreme Court.

Step 2011-09-22 Counsel for the HOA files a Notice of Change of Address.

Type: Decision or judgment

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

Download source file

2011-11-14_016_0000-civil-mandate-package.pdf

FAQ

Does an Arizona HOA assessment lien have priority over a first mortgage or deed of trust?

No. Under A.R.S. § 33-1807(B)(2), a recorded first mortgage or first deed of trust always maintains priority over an HOA assessment lien, regardless of when the mortgages or CC&Rs were recorded. An HOA cannot foreclose its lien to extinguish a senior first mortgage.

Is the Cypress HOA v. Orlandini decision binding precedent in Arizona?

Yes. The decision was issued as a published opinion by Division One of the Arizona Court of Appeals, and the Arizona Supreme Court denied the petition for review. It serves as binding legal precedent across the state of Arizona.

What is 'fraud on the court' in the context of an HOA foreclosure?

In this case, the HOA’s attorneys committed fraud on the court by failing to disclose to the judge in an ex parte default hearing that the bank held a senior first deed of trust, claiming instead that the HOA’s assessment lien had absolute priority and requesting a judgment that purported to extinguish the bank’s interest.

What happens to a buyer who purchases a property at an HOA foreclosure sale?

A purchaser at an HOA lien foreclosure sale takes the property subject to any existing senior liens, such as a first mortgage or deed of trust. The buyer must satisfy the senior debt to avoid losing the property if the senior lender later forecloses.

Can an HOA recover attorneys' fees from a non-owner who challenges a foreclosure?

No. The Court of Appeals ruled that statutory fee-shifting under A.R.S. § 33-1807(H) did not apply because neither party obtained a foreclosure judgment against each other. Furthermore, CC&R provisions allowing attorneys’ fees for collections do not apply to third-party purchasers who are not defaulting lot owners.

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 10-0142 and 1 CA-CV 10-0235 (Consolidated)
Court / tribunal	Court of Appeals
Decision / key date	May 19, 2011
Judge / panel	Hon. Sheldon H. Weisberg, Hon. Donn Kessler, Hon. Diane M. Johnsen
Parties	Cypress on Sunland Homeowners Association (HOA) and Scott Jacoby (subsequent purchaser) v. James V. Orlandini, II (purchaser under trustee sale) and First American Title Insurance Company (intervenors)
Governing law	A.R.S. § 33-1807(B)(2) A.R.S. § 33-1807(E) A.R.S. § 33-1807(A) A.R.S. § 33-805 A.R.S. § 12-349 A.R.S. § 12-350
Topics	AssessmentsForeclosureProcedureAttorney Fees
Outcome / holding	Under A.R.S. § 33-1807(B)(2), a recorded first deed of trust has priority over a homeowners association's assessment lien regardless of when the two instruments were recorded. Obtaining an ex parte default foreclosure judgment by concealing the existence of a senior first deed of trust and misrepresenting the priority of the HOA assessment lien constitutes a fraud upon the court, justifying setting aside the judgment under Rule 60(c).

Parties, Court, and Research Coverage

Reviewed source package	16 PDFs
Step-by-step docket roadmap	38 roadmap entries
Video overview	Cypress on Sunland HOA v. Orlandini
Study / briefing material	1 section
FAQ / homeowner questions	5 questions
Featured download links	2 download links

Key Issues & Findings

Case Summary

This consolidated appeal arose from a dispute over residential property in Phoenix, Arizona. A homeowner fell delinquent on HOA assessments, leading the Cypress on Sunland Homeowners Association to file a foreclosure action. Although the property was encumbered by a senior first deed of trust, the HOA's attorneys obtained an ex parte default judgment of foreclosure by asserting that the assessment lien was a superior 'first lien' that extinguished all other interests. A third party purchased the property at a sheriff's sale and sold it to Scott Jacoby. Meanwhile, the bank foreclosed its first deed of trust and sold the property to James Orlandini. Jacoby filed a quiet title action, and Orlandini intervened to set aside the default judgment. The trial court initially set aside the default judgment for fraud on the court, but later reinstated it. The Court of Appeals reversed, holding that a first deed of trust has priority over an assessment lien regardless of recording dates, and that the HOA attorneys' failure to disclose this priority in the ex parte proceeding constituted a fraud on the court.

Key Issues & Findings

The Court of Appeals analyzed the plain language and legislative history of A.R.S. § 33-1807(B)(2), rejecting the HOA's 'first-in-time' argument. The court determined that 'first' in 'first deed of trust' designates the relative priority between mortgages or deeds of trust, not the timing of their recording relative to an HOA's covenants. The 1997 statutory amendment explicitly removed the requirement that a first mortgage or deed of trust be recorded prior to the assessment delinquency to maintain priority, proving the legislature's intent to keep first mortgages senior. To hold otherwise would lead to absurd results where no lender would provide condominium or HOA home loans if they could not secure a first-priority position over assessment liens. Furthermore, the court held that deeds of trust are legally equivalent to mortgages under A.R.S. § 33-805, thereby subordinating the HOA's assessment lien under both statutory law and Section 7.9 of the CC&Rs.

Regarding the fraud claim, the court emphasized that attorneys owe a strict duty of candor to the tribunal, particularly in ex parte proceedings under Arizona Supreme Court Rule 42, ER 3.3. The HOA's attorneys failed to disclose that one of the encumbrances was a senior first deed of trust, failed to cite the statutory priority exception under A.R.S. § 33-1807(B)(2), and drafted a default judgment declaring the assessment lien a 'valid first lien' that extinguished the first deed of trust. The court concluded this was not an innocent mistake or excusable zealousness, as evidenced by a post-judgment letter in which the attorneys admitted they knew the first deed of trust had priority. Suppressing these material facts to obtain the default judgment compromised the court's impartial functioning and constituted a fraud on the court, requiring the judgment to be set aside.

Why It Matters

For Arizona homeowners and HOA boards, this decision cements the absolute priority of first mortgages and deeds of trust over HOA assessment liens, providing clarity for real estate transactions, foreclosures, and mortgage lending. HOAs cannot extinguish a senior mortgage through an assessment foreclosure, and any attempts to claim absolute priority in court filings without legal basis are invalid and subject to severe scrutiny.

For legal counsel, the case is a stark warning regarding the duty of candor under ER 3.3, especially during ex parte hearings. Attorneys must disclose all material facts and adverse legal authority to the court. Misleading a judge or commissioner—even by omission or by presenting overly broad drafted orders—undermines the integrity of the judicial process, constitutes fraud on the court, and exposes counsel to disciplinary action and the loss of judgments.

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Vales v. Kings Hill Condominium Association: Procedural Milestones in an HOA Appeal

Posted on June 29, 2026 by [email protected]

Procedure | A.R.S. § 12-322A | 1 CA-CV 04-0816

This case illustrates the complex procedural path of an Arizona homeowners association dispute on appeal. It highlights key milestones including docketing, record transmission, and the final mandate. Homeowners and boards can observe how appellate courts govern procedural compliance and cost recovery.

Last updated June 29, 2026. Case: Vales, appellate No. 1 CA-CV 04-0816; mandate issued.

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

Scope note: This page covers the procedural history, timeline, and cost awards of the Arizona HOA appeal in Janet Vales v. Kings Hill Condominium Association, including its precedential posture. This page is educational and is not legal advice.

The takeaway

The Court of Appeals issued its opinion and memorandum decision on December 22, 2005, and subsequently issued a mandate on March 29, 2006, commanding the Maricopa County Superior Court to comply with its decision and awarding appellate costs of $297.80.

Case Participants

Petitioner Side

Janet Vales (Plaintiff)
A married woman dealing with her sole and separate property; Plaintiff/Appellant.
Melody K. Seal (Counsel)
Jackson White PC
Represented Plaintiff/Appellant Janet Vales.
James L. Tanner (Counsel)
Jackson White PC
Represented Plaintiff/Appellant Janet Vales.

Respondent Side

Kings Hill Condominium Association (Defendant)
An unincorporated condominium association; Defendant/Appellee.
Michael A. Ludwig (Counsel)
Jones Skelton & Hochuli PLC
Represented Defendant/Appellee Kings Hill Condominium Association.
Randall H. Warner (Counsel)
Jones Skelton & Hochuli PLC
Represented Defendant/Appellee Kings Hill Condominium Association.

Neutral Parties

Hon. J. Richard Gama (Judge)
Maricopa County Superior Court
Trial Court Judge on Appeal.
Hon. Philip Hall (Judge)
Arizona Court of Appeals, Division One
Presiding Judge, Department D.
Hon. G. Murray Snow (Judge)
Arizona Court of Appeals, Division One
Judge, Department D.
Hon. Patricia K. Norris (Judge)
Arizona Court of Appeals, Division One
Judge, Department D.
Philip G. Urry (Other)
Arizona Court of Appeals, Division One
Clerk of Court of Appeals, Division One.
Michael K. Jeanes (Other)
Maricopa County Superior Court
Clerk of Maricopa County Superior Court.
Patricia Sanderman (Other)
Maricopa County Superior Court
Supervisor, Appeals Section, Maricopa County Superior Court.

What happened

Janet Vales filed an appeal (No. 1 CA-CV 04-0816) in the Arizona Court of Appeals, Division One, from a judgment of the Maricopa County Superior Court (No. CV2003-009786) presided over by Judge J. Richard Gama. The case was docketed in December 2004, with Vales paying the $140.00 filing fee on January 3, 2005.

Following the docketing, the Court of Appeals ordered the Clerk of the Maricopa County Superior Court to transmit the record on appeal. The Superior Court compiled and transmitted a record consisting of one volume of instruments and minute entries, with no transcripts or exhibits, in April 2005. The appeal was submitted without oral argument to Department D, consisting of Presiding Judge Philip Hall and Judges G. Murray Snow and Patricia K. Norris, who took the matter under advisement in October 2005. The court issued an opinion and memorandum decision on December 22, 2005, and, after denying a motion for reconsideration, issued its mandate on March 29, 2006, awarding $297.80 in costs.

Video overview of the ruling

An AI-generated video overview of Vales v. Kings Hill Condominium Association (1 CA-CV 04-0816). The Court of Appeals issued its opinion and memorandum decision on December 22, 2005, and subsequently issued a… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the ruling

An AI-generated audio deep dive walking through the court’s reasoning and disposition in Vales v. Kings Hill Condominium Association. Generated from the case filings; verify against the linked ruling below.

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

Procedural timeline

Step 2004-11-30 A docketing statement was received from Appellant Janet Vales.

Step 2004-12-21 The index of record from the Superior Court was filed, and the case was assigned docket number 1 CA-CV 04-0816 in the Court of Appeals, Division One.

Step 2004-12-21 Clerk Philip G. Urry issued a Civil Notice to Counsel regarding the $140.00 filing fee deadline and the opening brief due date.

Step 2005-01-03 Appellant paid the filing fee of $140.00.

Step 2005-01-12 Clerk Philip G. Urry issued a Notice to Counsel setting the appellee's $70.00 filing fee deadline and reminding appellant of the January 31, 2005 opening brief due date.

Step 2005-04-19 Court of Appeals issued an order directing the Clerk of the Maricopa County Superior Court to transmit the record on appeal within 15 days.

Step 2005-04-27 Maricopa County Superior Court filed the inventory of the record on appeal, consisting of one volume of instruments and minute entries, and no transcripts or exhibits.

Step 2005-10-05 The Court of Appeals Department D ordered the appeal taken under advisement without oral argument.

Step 2005-12-22 The Court of Appeals filed its Opinion and Memorandum Decision.

Step 2005-12-22 Clerk Philip G. Urry transmitted the court's slip opinion to West Publishing and LEXIS for immediate online availability.

Type: Court/source PDF

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

Download source file

2005-12-21_006_0000-div-1-westmead-package-letters.pdf

Source 7 2006-03-29

0000 Div 1 Civil Mandate Package

Type: Decision or judgment

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

Download source file

2006-03-29_007_0000-div-1-civil-mandate-package.pdf

FAQ

What is the precedential value of the decision in Vales v. Kings Hill Condominium Association?

The Court of Appeals issued both an ‘Opinion’ and a ‘Memorandum Decision’ on December 22, 2005. Under Arizona court rules, memorandum decisions are non-precedential, while opinions are published and binding. Because the mandate references both, parties must check which parts of the decision were officially published as precedential.

What is the penalty if an appellant fails to pay the filing fee on time?

If the appellant fails to pay the required filing fee ($140.00 in this case) within the timeframe specified by the court, the appeal will be deemed abandoned in accordance with A.R.S. § 12-322A.

How does the Arizona Court of Appeals obtain the trial court record?

Under Arizona Rules of Civil Appellate Procedure (ARCAP) Rule 11(a)(3), the Court of Appeals issues an order directing the Clerk of the Superior Court to transmit the record on appeal (including instruments, minute entries, transcripts, and exhibits) within 15 days.

Can an HOA appeal be decided without oral argument?

Yes. If the appeal is deemed ‘at issue,’ the court may submit the case without oral argument. In this case, Department D took the matter under advisement after conference on October 5, 2005.

Are attorneys' fees or costs awarded at the end of an HOA appeal?

Yes, the prevailing party on appeal can recover taxable costs. Upon issuing the final mandate on March 29, 2006, the Court of Appeals awarded costs of $297.80 to be complied with by the Maricopa County Superior Court.

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 04-0816
Court / tribunal	Court of Appeals
Decision / key date	December 22, 2005
Judge / panel	Hon. Philip Hall, Hon. G. Murray Snow, Hon. Patricia K. Norris, Hon. J. Richard Gama
Parties	Janet Vales (Plaintiff/Appellant, homeowner) vs. Kings Hill Condominium Association (Defendant/Appellee, unincorporated condominium association)
Topics	ProcedureCondominiums
Outcome / holding	The Court of Appeals issued its opinion and memorandum decision on December 22, 2005, and subsequently issued a mandate on March 29, 2006, commanding the Maricopa County Superior Court to comply with its decision and awarding appellate costs of $297.80.

Parties, Court, and Research Coverage

Reviewed source package	7 PDFs
Step-by-step docket roadmap	12 roadmap entries
Video overview	Vales v. Kings Hill Condominium Association
Study / briefing material	1 section
FAQ / homeowner questions	5 questions
Featured download links	2 download links

Key Issues & Findings

Case Summary

This appeal arises from a dispute between homeowner Janet Vales and the Kings Hill Condominium Association. Following a trial court decision in Maricopa County Superior Court under Judge J. Richard Gama, Vales appealed to the Arizona Court of Appeals, Division One. The appellate court docketed the case in December 2004, received briefing throughout early 2005, and ordered the transmission of the record on appeal. The matter was submitted to Department D (consisting of Judges Philip Hall, G. Murray Snow, and Patricia K. Norris) without oral argument and taken under advisement. On December 22, 2005, the Court of Appeals filed its opinion and memorandum decision. After denying a motion for reconsideration on March 7, 2006, and with no petition for review filed with the Arizona Supreme Court, the Court of Appeals issued its mandate on March 29, 2006, commanding the Superior Court to comply with its decision and awarding $297.80 in costs.

Key Issues & Findings

The available record for this matter is procedural rather than substantive: it documents the docketing, filing-fee deadlines, transmission of the record on appeal, submission of the appeal to Department D under advisement without oral argument, and the issuance of the opinion, memorandum decision, and final mandate, but it does not reproduce the court's merits analysis. Accordingly, this page summarizes the procedural posture and disposition rather than the substantive legal reasoning. The Court of Appeals resolved the appeal through a combination of a published opinion and a non-precedential memorandum decision, denied a motion for reconsideration, and then issued its mandate commanding the Superior Court to comply and awarding appellate costs.

Why It Matters

Because the substantive merits of the decision are not detailed in the procedural record, the primary takeaway is procedural. It highlights the structured, multi-step nature of the Arizona appellate process for homeowners and HOA boards, including strict deadlines for filing fees, the compilation of the record on appeal, the submission under advisement without oral argument, and the finality of the mandate. Additionally, it underscores that prevailing parties on appeal in Arizona HOA disputes can recover taxable costs (here, $297.80) upon issuance of the mandate.

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College Book Centers v. Carefree Foothills HOA: Enforceability of CC&R Non-Waiver Clauses and Property Access Rights

Posted on June 29, 2026 by [email protected]

CC&Rs & Private Condemnation | A.R.S. § 12-1202(A) | 1 CA-CV 08-0450

This case illustrates the high legal threshold required to prove that an Arizona homeowners’ association has waived its CC&Rs. It also highlights how a landlocked property owner may still use statutory private condemnation to bypass restrictive covenants, provided they pay just compensation to affected owners.

Last updated June 29, 2026. Case: College Book Centers, appellate No. 1 CA-CV 08-0450; reversed in part, affirmed in part, and remanded.

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

Current-status note: This page is published as a litigation record based on the source files available through 2011-06-15. Later filings, appeals, mandates, settlements, or dismissal orders may change the posture; the linked court records control.

Scope note: This page details the Arizona Court of Appeals’ published, precedential decision regarding the enforceability of CC&R non-waiver clauses, the requirements for establishing common law implied easements of necessity, and the framework for statutory private condemnation of restrictive covenants. This page is educational and is not legal advice.

The takeaway

The Arizona Court of Appeals held that the homeowners’ association did not waive its CC&R restrictions because two prior roadway easements in a seventy-six-lot subdivision did not constitute frequent violations, and the CC&Rs contained an enforceable non-waiver clause. It also held that Vanyo failed to establish a common law implied way of necessity because there was no historical evidence that the property was landlocked when it was patented and severed from federal land in 1912.

Case Participants

Petitioner Side

David B. Vanyo (Plaintiff)
College Book Centers, Inc. 401 Profit Sharing Plan and Trustee
Trustee of the College Book Centers 401 Profit Sharing Plan and purchaser of Lot 24 and the Mamie Maude Mining Claim.
College Book Centers, Inc. 401 Profit Sharing Plan and Trust (Plaintiff)
The 401 profit sharing plan and trust entity holding title to Lot 24 and the landlocked Mamie Maude Mining Claim.
Jeffrey D. Gross (Counsel)
Gallagher & Kennedy, P.A.
Attorney representing the plaintiff/appellee David B. Vanyo and the College Book Centers Profit Sharing Plan.
Timothy Berg (Counsel)
Co-counsel representing the plaintiff/appellee David B. Vanyo on appeal and in the petition for review.
Valerie Biederbeck (Other)
Vanyo's predecessor-in-interest who sold Lot 24 and the Mamie Maude Mining Claim to Vanyo's pension plan.
Richard Biederbeck (Other)
Vanyo's predecessor-in-interest who sold Lot 24 and the Mamie Maude Mining Claim to Vanyo's pension plan.
James Farris Murphy (Witness)
Vanyo's former real estate transaction attorney who testified at trial regarding pre-closing meetings and notice from the HOA.
Donald Duncan (Witness)
Licensed real estate appraiser called by Vanyo who testified on valuation and lack of financial impact of the road on subdivision lots.
Greg Gentsch (Witness)
Licensed professional engineer called by Vanyo who testified on the road design and infeasibility of constructing a road across the steep slope.

Respondent Side

Carefree Foothills Homeowners’ Association (Defendant)
The homeowners' association for the subdivision, serving as the certified class representative of the subdivision lot owners.
John P. Dwyer, Jr. (Defendant)
Carefree Foothills Homeowners’ Association
Homeowner who initially opted out of the defendant class, participated individually at trial, and rejoined the class post-trial.
Janet G. Dwyer (Defendant)
Carefree Foothills Homeowners’ Association
Homeowner who initially opted out of the defendant class, participated individually at trial, and rejoined the class post-trial.
Thomas H. Crouch (Counsel)
Meagher & Geer, P.L.L.P.
Attorney representing the defendant/appellant Carefree Foothills Homeowners' Association.
Kevin T. Minchey (Counsel)
Meagher & Geer, P.L.L.P.
Attorney representing the defendant/appellant Carefree Foothills Homeowners' Association.
Kurt M. Zitzer (Counsel)
Meagher & Geer, P.L.L.P.
Attorney representing the defendant/appellant Carefree Foothills Homeowners' Association.
Ralph W. Applegate, Jr. (Association President)
Carefree Foothills Corporation
Original subdivision developer who drafted the CC&Rs and acted as the HOA board prior to its official formation; granted historical easements.
Denton L. Ingle (Other)
Carefree Foothills Corporation
Partner of developer Ralph Applegate, subdivision manager, original owner of Lot 43, and draftsman of the Thiele easement.
Barbara L. Ingle (Other)
Subdivision homeowner and co-owner of Lot 43 who signed the reciprocal 1987 Applegate roadway agreement.
Fo O. Buck (Other)
Subdivision homeowner and owner of Lot 42 who signed the reciprocal 1987 Applegate roadway agreement.
Deborah R. Buck (Other)
Subdivision homeowner and co-owner of Lot 42 who signed the reciprocal 1987 Applegate roadway agreement.
Jack Anderson (Board Member)
Carefree Foothills Homeowners’ Association
Subdivision homeowner, principal of Calver Capital, and Architectural Control Committee chair responsible for denying Vanyo's road proposal.
Whitney Smelser (Witness)
Licensed Land Surveyor and expert witness called by the HOA who testified on historical physical access to the mining claims.

Neutral Parties

John A. Buttrick (Judge)
Maricopa County Superior Court
The trial court judge who presided over the jury trial and entered final judgment in favor of Vanyo.
Michael J. Brown (Judge)
Arizona Court of Appeals, Division One
Appellate judge who authored the court's opinion reversing the waiver and implied easement claims.
Patricia A. Orozco (Judge)
Arizona Court of Appeals, Division One
Presiding appellate judge on Department B who concurred with the court's opinion.
Patricia K. Norris (Judge)
Arizona Court of Appeals, Division One
Appellate judge on Department B who concurred with the court's opinion.
Philip G. Urry (Other)
Arizona Court of Appeals, Division One
Clerk of the Court of Appeals who issued docketing notices and orders to transmit the superior court record.
Ruth Willingham (Other)
Arizona Court of Appeals, Division One
Acting Clerk of the Court of Appeals who issued electronic notifications of the opinion and the final civil mandate.
Rachelle M. Resnick (Other)
Arizona Supreme Court
Clerk of the Arizona Supreme Court who processed the petition for review and issued letters on the denial of review.
Heinrich J. Thiele (Other)
The Heinrich J. Thiele and Gertrude A. Thiele Trust
Co-grantee of the perpetual 1984 access and utility easement across Lot 7 to access an adjacent unsubdivided parcel.
Gertrude A. Thiele (Other)
The Heinrich J. Thiele and Gertrude A. Thiele Trust
Co-grantee of the perpetual 1984 access and utility easement across Lot 7 to access an adjacent unsubdivided parcel.
Jefferrey Rybarszyk (Witness)
Professional engineer whose deposition testimony was entered into the court record.
John Ratliff (Witness)
Developer of the adjacent Carefree Vistas subdivision who offered Vanyo a limited roadway easement for $50,000.
Michael K. Jeanes (Other)
Maricopa County Superior Court
Clerk of Maricopa County Superior Court.
Patricia Sanderman (Other)
Maricopa County Superior Court
Supervisor of the Appeals Section of Maricopa County Superior Court.

What happened

In March 2005, David B. Vanyo, acting as trustee of the College Book Centers, Inc. 401 Profit Sharing Plan, purchased Lot 24 in the seventy-six-lot Carefree Foothills residential subdivision in Maricopa County, Arizona, alongside an adjacent nine-acre rectangular parcel called the Mamie Maude Mining Claim. Lot 24 is subject to the subdivision’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which restrict lot use exclusively to single-family residential purposes and prohibit non-residential structures. Mamie Maude, which is not part of the subdivision, is bisected by a steep, impassable slope that prevents building a safe roadway connecting its elevated northern portion to its lower southern portion. Seeking to develop the lower portion into four residential lots, Vanyo’s predecessors-in-interest and later Vanyo himself proposed building a fifty-foot roadway across Lot 24 to connect the cul-de-sac of Languid Lane to Mamie Maude. The HOA rejected both proposals, advising that a roadway is a non-residential structure that violates the CC&Rs.

In August 2006, Vanyo filed a class action lawsuit in Maricopa County Superior Court against all subdivision property owners, naming the HOA as the class representative. Vanyo sought a declaratory judgment that the HOA had waived its right to enforce the CC&R restriction because it had previously permitted two roadway easements (the Thiele roadway in 1984 and the Applegate roadway in 1987) to cross subdivision lots. Vanyo also claimed he possessed a common law implied way of necessity over Lot 24, or alternatively, that he was entitled to privately condemn the CC&R restriction under Arizona’s private way of necessity statute (A.R.S. § 12-1202(A)). Following a trial in November 2007, the jury returned a verdict in Vanyo’s favor on the waiver claim without reaching the other two claims. The trial court entered judgment for Vanyo, awarded him $100,000 in attorneys’ fees, and denied the HOA’s motions for judgment as a matter of law (JMOL) and a new trial.

The HOA appealed, arguing that the trial court erred in denying its motions for JMOL. The Arizona Court of Appeals reversed the trial court’s denial of JMOL on Vanyo’s waiver and implied way of necessity claims. It held that the two prior roadway easements did not constitute frequent violations to establish a waiver, and that the clear non-waiver provision in the CC&Rs barred Vanyo’s waiver claim because the subdivision covenants had not been completely abandoned. The court also held that Vanyo failed to prove an implied way of necessity because he provided no evidence that Mamie Maude was landlocked when it was patented and severed from federal land in 1912. However, the court affirmed the denial of JMOL on the statutory private condemnation claim, remanding it for a new trial because the jury had never reached a verdict on whether removing the CC&R restriction was reasonably necessary and what just compensation was due. Vanyo filed a petition for review with the Arizona Supreme Court, which was denied on May 24, 2011, and the Court of Appeals issued its civil mandate package to the Superior Court on June 15, 2011.

Video overview of the case record

An AI-generated video overview of College Book Centers v. Carefree Foothills HOA (1 CA-CV 08-0450). The homeowners’ association did not waive its CC&R restrictions because two prior roadway easements in a… This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the case record

An AI-generated audio deep dive walking through the court record and procedural posture in College Book Centers v. Carefree Foothills HOA. Generated from the case filings; verify against the linked case records below.

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

Procedural timeline

Step 1912-04-01 The United States Government issues a land patent for the Mamie Maude Mining Claim to Charles W. Cheney and F.H. Summeril, severing it from federal land.

Step 1956-06-15 The United States Government issues land patents for adjacent property including what is now the Carefree Foothills subdivision.

Step 1983-11-23 CC&Rs containing a single-family residential use restriction and a non-waiver clause are executed and recorded for the Carefree Foothills subdivision.

Step 1984-09-12 Developer Ralph Applegate causes Carefree Foothills Corporation to grant a perpetual access and utility easement across Lot 7 to the Thiele Trust.

Step 1987-01-21 Lot owners (including Ralph Applegate) execute the Mutual Ingress and Egress Agreement and Easement over Lots 42, 43, and 44, which is recorded on April 2, 1987.

Step 2005-03-22 David B. Vanyo, as trustee of the College Book Centers 401 Profit Sharing Plan, purchases Lot 24 and the Mamie Maude Mining Claim.

Step 2005-11-14 Carefree Foothills HOA formally rejects David Vanyo's written proposal to build a roadway across Lot 24 to access Mamie Maude.

Step 2006-08-08 David B. Vanyo files a putative class action complaint against Carefree Foothills HOA in Maricopa County Superior Court (Cause No. CV2006-011927).

Step 2006-11-02 Maricopa County Superior Court certifies the case as a defendant class action, appointing the HOA as the class representative.

Step 2007-11-13 A three-day jury trial begins in Maricopa County Superior Court.

Step 2007-11-20 The jury returns a unanimous verdict in Vanyo's favor, finding the HOA waived enforcement of the CC&R single-family use restriction.

Step 2008-04-17 Maricopa County Superior Court enters final judgment in favor of Vanyo, declaring the CC&R restriction waived and awarding $100,000 in attorneys' fees.

Step 2008-04-25 Carefree Foothills HOA files a post-trial Motion for New Trial or Motion for Judgment as a Matter of Law (JMOL).

Step 2008-06-24 Maricopa County Superior Court Judge John A. Buttrick enters an order denying the HOA's motion for JMOL and new trial.

Step 2008-07-03 Carefree Foothills HOA files a Notice of Appeal to the Arizona Court of Appeals and posts a supersedeas bond.

Step 2008-08-13 The Arizona Court of Appeals denies the HOA's motion to challenge the supersedeas bond amount.

Step 2008-08-20 The Court of Appeals Division One issues a Notice to Counsel docketing the appeal as Case No. 1 CA-CV 08-0450.

Step 2008-11-10 College Book Centers / David Vanyo files Appellee's Answering Brief.

Step 2008-11-18 Court of Appeals Clerk Philip G. Urry enters an order directing the Clerk of Maricopa County Superior Court to transmit the record on appeal.

Step 2008-12-03 Clerk of the Court of Appeals files the Inventory of Record on Appeal.

Step 2008-12-05 Carefree Foothills HOA files Appellant's Reply Brief.

Step 2009-04-01 The Court of Appeals issues a Notice of Oral Argument setting the hearing for May 5, 2009.

Step 2009-05-05 Court of Appeals Department B hears oral argument and enters an order taking the appeal under advisement.

Step 2010-10-26 The Arizona Court of Appeals Division One Department B files its Opinion, reversing the waiver and implied easement rulings but remanding the statutory condemnation claim for a new trial.

Step 2010-10-27 Court of Appeals Clerk sends electronic notification of the opinion filing.

Step 2010-12-30 David Vanyo files an untimely Petition for Review in the Arizona Supreme Court (No. CV-11-0003-PR).

Step 2011-01-03 Court of Appeals Clerk transmits the Petition for Review and record to the Arizona Supreme Court.

Step 2011-05-24 The Arizona Supreme Court enters an order denying Vanyo's Petition for Review, the HOA's Amended Cross-Petition for Review, and both parties' attorney fee requests.

Type: Decision or judgment

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

Download source file

2011-06-15_012_0000-civil-mandate-package.pdf

FAQ

Is this Arizona Court of Appeals ruling binding precedent?

Yes, this is a published, precedential opinion by the Arizona Court of Appeals. It establishes binding legal rules across Arizona regarding the strict enforceability of CC&R non-waiver clauses, the high evidentiary hurdles for common law implied easements of necessity, and the framework for statutory private condemnation of restrictive covenants.

Can an HOA waive its right to enforce CC&Rs if it allowed past violations?

Generally, no, if the CC&Rs contain a clear non-waiver clause. The Court of Appeals held that an unambiguous non-waiver clause remains enforceable despite past violations unless the restrictions have been so thoroughly disregarded as to constitute a ‘complete abandonment’ that destroys the fundamental character of the neighborhood.

How many past violations are needed to prove that an HOA has waived a covenant restriction?

The court ruled as a matter of law that two historical roadway violations over a twenty-year period in a seventy-six-lot subdivision do not constitute ‘frequent’ violations. To establish waiver in the absence of a non-waiver clause, violations must be frequent, habitual, or regular, occurring often or at close intervals.

What must a property owner prove to establish a common law implied way of necessity?

The claimant must prove that the dominant and servient properties were under common ownership, followed by a severance, and that the landlocked property had no outlet at the exact time of that original severance. Silence regarding access in a 1912 federal land patent is legally insufficient to prove that the property lacked an outlet.

Can a landlocked owner condemn an HOA's CC&R restriction to build an access road?

Yes. Arizona law allows a landlocked property owner to utilize statutory private condemnation under A.R.S. § 12-1202(A) to condemn a restrictive covenant on an adjacent lot. Because this statutory right only arises if no common law implied easement exists, the court remanded this claim for a new trial to let a jury determine if the road is reasonably necessary and to decide the ‘just compensation’ owed to the subdivision lot owners.

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 08-0450
Court / tribunal	Court of Appeals
Decision / key date	October 26, 2010
Judge / panel	Hon. Michael J. Brown, Hon. Patricia A. Orozco, Hon. Patricia K. Norris
Parties	College Book Centers, Inc. 401 Profit Sharing Plan and Trustee David B. Vanyo (Plaintiffs/Appellees) v. Carefree Foothills Homeowners' Association (Defendants/Appellants)
Governing law	A.R.S. § 12-1202(A) A.R.S. § 12-341.01 A.R.S. § 33-416
Topics	CC&RsSelective EnforcementAttorney FeesProcedure
Outcome / holding	The Arizona Court of Appeals held that the homeowners' association did not waive its CC&R restrictions because two prior roadway easements in a seventy-six-lot subdivision did not constitute frequent violations, and the CC&Rs contained an enforceable non-waiver clause. It also held that Vanyo failed to establish a common law implied way of necessity because there was no historical evidence that the property was landlocked when it was patented and severed from federal land in 1912.

Parties, Court, and Research Coverage

Reviewed source package	12 PDFs
Step-by-step docket roadmap	30 roadmap entries
Video overview	College Book Centers v. Carefree Foothills HOA
Study / briefing material	1 section
FAQ / homeowner questions	5 questions
Featured download links	3 download links

Key Issues & Findings

Case Summary

This case arose when David B. Vanyo, as trustee of the College Book Centers 401 Profit Sharing Plan, purchased undeveloped Lot 24 within the Carefree Foothills subdivision and an adjacent landlocked nine-acre parcel known as the Mamie Maude Mining Claim. To develop the lower portion of Mamie Maude into residential lots, Vanyo requested the homeowners' association's (HOA) permission to build a short roadway across Lot 24. The HOA denied the request because the subdivision's CC&Rs prohibited non-residential structures. Vanyo sued the HOA, claiming that the HOA waived this restriction by previously allowing two other roadways (the Thiele and Applegate easements), and that he was entitled to a common law implied easement or statutory private way of necessity. A jury found in Vanyo's favor on waiver, and the trial court entered judgment with attorneys' fees. On appeal, the Arizona Court of Appeals reversed the waiver and implied easement rulings, remanding the statutory private condemnation claim for a new trial.

Key Issues & Findings

The court's reasoning on the waiver claim turned on the frequency of violations and the effect of the CC&R non-waiver clause. It concluded that two prior roadway easements granted in the 1980s did not constitute frequent violations in a seventy-six-lot subdivision to establish waiver of the non-residential structure restriction. Furthermore, the court held that the CC&Rs contained an unambiguous non-waiver clause that remained fully enforceable since the subdivision covenants had not been completely abandoned. Complete abandonment occurs only when restrictions have been so thoroughly disregarded that the fundamental character of the neighborhood has been destroyed, which Vanyo did not argue. The court also rejected Vanyo's action versus inaction distinction, holding that both act as a failure to enforce that is covered by the non-waiver clause.

On Vanyo's common law implied way of necessity claim, the court held that Vanyo failed to establish a prima facie case. Under Arizona law, a claimant must prove that the dominant and servient properties were under common ownership, followed by severance, that the dominant property had no outlet at the time of severance, and that access was reasonably necessary when severance occurred. The court found no evidence in the record establishing that Mamie Maude was landlocked in 1912 when the land patent was issued. Silence regarding access in the 1912 land patent was insufficient to prove the lack of an outlet, particularly since a historical 1909 survey depicted roads crossing the mining claims.

Finally, the court addressed the statutory private condemnation claim under A.R.S. § 12-1202(A). Because private condemnation only comes into existence if no other access exists by common law implication, Vanyo's failure to establish an implied way of necessity cleared the path for statutory condemnation. Since the jury, having found for Vanyo on the waiver claim, did not decide whether removing the CC&R restriction was reasonably necessary for Vanyo's proper use and enjoyment of Mamie Maude, or what just compensation was due, the court remanded the statutory private condemnation claim for a new trial.

Why It Matters

This decision is highly significant for Arizona homeowners' associations, boards, and their legal counsel because it strongly reinforces the enforceability of clear and unambiguous non-waiver clauses within CC&Rs. The ruling establishes that an HOA's prior failure to enforce a covenant, or even its affirmative granting of historical variances, does not constitute a wholesale waiver of those covenants unless the violations are so rampant as to completely destroy the neighborhood's character. At the same time, it reminds associations that their discretionary design-control and enforcement powers are always constrained by duties of fairness and reasonableness, which protects members against arbitrary or discriminatory enforcement.

For property litigation counsel, the case highlights the high evidentiary hurdles required to establish a common law implied way of necessity in Arizona. Specifically, it confirms that silence in a century-old federal land patent is legally insufficient to prove that a parcel was historically landlocked at severance. Lastly, the case confirms that restrictive covenants represent valid property rights that can be privately condemned under A.R.S. § 12-1202(A), opening a potential, though costly, pathway for landlocked owners to acquire access by paying just compensation to all affected lot owners in the subdivision.

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Cao v. PFP Dorsey Investments: Arizona Supreme Court Limits on Condominium Termination Forced Sales

Posted on June 29, 2026 by [email protected]

cc-and-rs | A.R.S. § 33-1228 | 257 Ariz. 82 (2024)

This Arizona Supreme Court decision sets the constitutional and statutory ground rules for forcing the buyout of minority condominium owners after a supermajority votes to terminate. It upholds the termination statute against a takings challenge but requires that the entire condominium — not individual holdout units — be sold.

Last updated June 30, 2026. Case: Cao, Arizona Supreme Court No. CV-22-0228-PR, 257 Ariz. 82 (2024); Court of Appeals decision vacated, superior court affirmed in part and remanded. A later order (No. CV-25-0071-PR, Aug. 20, 2025) sent the unit’s valuation to binding arbitration.

Download the Arizona Supreme Court opinion (2024) Download the Supreme Court order on remand (Aug. 2025) Download the Court of Appeals opinion (now vacated) Download the record index Source-file index FAQ

Current-status note: This page is published as a litigation record based on the source files available through 2025-08-20. Later filings, appeals, mandates, settlements, or dismissal orders may change the posture; the linked court records control.

Scope note: This page covers the Arizona Supreme Court’s resolution of a condominium-termination forced sale — the March 22, 2024 opinion (257 Ariz. 82), which vacated the Court of Appeals decision, and the follow-on August 20, 2025 per curiam order (No. CV-25-0071-PR) sending the unit’s valuation to binding arbitration. The Court of Appeals’ 2022 opinion has been vacated and is no longer controlling. This page is educational and is not legal advice.

The takeaway

The Arizona Supreme Court held that a forced sale following a supermajority condominium termination under A.R.S. § 33-1228 does not violate the eminent-domain (private-takings) provision of the Arizona Constitution as applied to owners who agreed to a recorded declaration incorporating the Condominium Act. However, the Court also held that, under these circumstances, § 33-1228 required the sale of the entire condominium upon termination, not the sale of only the minority owners’ individual unit. It vacated the Court of Appeals’ decision, affirmed the superior court except as to that issue, and remanded.

Case Participants

Petitioner Side

Jie Cao (Plaintiff)
Minority condominium unit owner of Unit 106 at Dorsey Place Condominiums who challenged the condominium termination and forced sale.
Haining "Frazer" Xia (Plaintiff)
Minority condominium unit owner of Unit 106, husband of Jie Cao, who challenged the termination and forced sale.
Stone Xia (Plaintiff)
Son of Jie Cao and Haining Xia, residing in Fountain Hills, Arizona, named as a plaintiff in the complaints.
Dennis I. Wilenchik (Counsel)
Wilenchik & Bartness, P.C.
Trial counsel representing Plaintiffs Jie Cao, Haining Xia, and Stone Xia in Maricopa County Superior Court.
John "Jack" D. Wilenchik (Counsel)
Wilenchik & Bartness, P.C.
Trial counsel representing Plaintiffs Jie Cao, Haining Xia, and Stone Xia in Maricopa County Superior Court.
Ross P. Meyer (Counsel)
Wilenchik & Bartness, P.C.
Trial and appellate counsel representing Plaintiffs in both Superior Court and Court of Appeals proceedings.
Eric M. Fraser (Counsel)
Osborn Maledon, P.A.
Appellate counsel representing Plaintiffs/Appellants Jie Cao and Haining Xia before the Court of Appeals and Supreme Court.
John S. Bullock (Counsel)
Osborn Maledon, P.A.
Appellate counsel representing Plaintiffs/Appellants Jie Cao and Haining Xia before the Court of Appeals and Supreme Court.
Thomas L. Hudson (Counsel)
Osborn Maledon, P.A.
Appellate attorney with Osborn Maledon, P.A. who assisted on the appellate briefing and oral argument preparation.
James M. Manley (Counsel)
Pacific Legal Foundation
Amicus curiae counsel representing the Pacific Legal Foundation in support of Plaintiffs/Appellants.

Respondent Side

PFP Dorsey Investments, LLC (Defendant)
Majority investor entity that acquired 90 of the 96 units at Dorsey Place Condominiums and voted to terminate the condominium.
Dorsey Place Condominium Association (Defendant)
The homeowners association for the condominium complex that executed and recorded the termination agreement and warranty deed.
Lorne Polger (Board Member)
Pathfinder Partners / Dorsey Place Condominium Association
Principal of Pathfinder Partners and self-appointed Secretary of the Dorsey Place HOA; initially named as an individual defendant.
Matt Quinn (Association President)
Pathfinder Partners / Dorsey Place Condominium Association
Vice President of Pathfinder Partners and self-appointed President of the Dorsey Place HOA; initially named as an individual defendant.
Michael A. Schern (Counsel)
Schern Richardson Finter, PLC
Trial attorney who represented PFP Dorsey and the individual defendants; initially named as an individual defendant before being dismissed.
Shawna M. Woner (Counsel)
Woner Hoffmaster Peshek & Gintert, PC
Counsel representing Defendant/Appellee PFP Dorsey Investments, LLC.
Stephanie K. Gintert (Counsel)
Woner Hoffmaster Peshek & Gintert, PC
Counsel representing Defendant/Appellee PFP Dorsey Investments, LLC.
Edith I. Rudder (Counsel)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Counsel representing Defendant/Appellee Dorsey Place Condominium Association.
Nicholas C.S. Nogami (Counsel)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Counsel representing Defendant/Appellee Dorsey Place Condominium Association.
Aaron M. Finter (Counsel)
Schern Richardson Finter, PLC
Co-counsel representing defendants Lorne Polger, Matt Quinn, and Michael A. Schern in Superior Court.
Aaron R. Clouse (Counsel)
Schern Richardson Finter, PLC
Co-counsel representing defendants Lorne Polger, Matt Quinn, and Michael A. Schern in Superior Court.
Jennifer Barry (Board Member)
Pathfinder Partners
General Counsel for Pathfinder Partners who coordinated defense strategy, mediation, and client representation.

Neutral Parties

Hon. Theodore Campagnolo (Judge)
Maricopa County Superior Court
Trial court judge originally assigned to the civil action in Maricopa County Superior Court.
Hon. Gary L. Popham Jr. (Judge)
Maricopa County Superior Court
Trial commissioner/judge who heard and ruled on early default and consolidation motions.
Hon. Daniel G. Martin (Judge)
Maricopa County Superior Court
Commercial Court judge who dismissed the second amended complaint with prejudice and awarded taxable costs.
Hon. Paul J. McMurdie (Judge)
Arizona Court of Appeals Division One
Presiding Appellate Judge who delivered the court's published opinion reversing and remanding the case.
Hon. Kent E. Cattani (Judge)
Arizona Court of Appeals Division One
Chief Appellate Judge who sat on the Division One panel and joined the opinion.
Hon. David B. Gass (Judge)
Arizona Court of Appeals Division One
Appellate Judge who sat on the Division One panel and joined the opinion.
Justice Clint Bolick (Judge)
Arizona Supreme Court
Arizona Supreme Court Justice who authored the unanimous March 22, 2024 opinion (257 Ariz. 82).
Amy M. Wood (Other)
Arizona Court of Appeals Division One
Clerk of the Court of Appeals Division One who issued appellate clerk notices, record transmittals, and schedules.
Jeff Fine (Other)
Maricopa County Superior Court
Clerk of the Maricopa County Superior Court who certified and transmitted the electronic record on appeal.
Chief Justice Robert M. Brutinel (Judge)
Arizona Supreme Court
Joined the unanimous 2024 opinion.
Vice Chief Justice Ann A. Scott Timmer (Judge)
Arizona Supreme Court
Joined the 2024 opinion; as Chief Justice, signed the August 20, 2025 per curiam Decision Order.
Justice John R. Lopez IV (Judge)
Arizona Supreme Court
Joined the unanimous 2024 opinion.
Justice James P. Beene (Judge)
Arizona Supreme Court
Joined the unanimous 2024 opinion.
Justice William G. Montgomery (Judge)
Arizona Supreme Court
Joined the unanimous 2024 opinion.
Justice Kathryn H. King (Judge)
Arizona Supreme Court
Joined the unanimous 2024 opinion.

What happened

In January 2018, Jie Cao and Haining Xia purchased Unit 106 of the Dorsey Place Condominiums in Tempe, Arizona, subject to the recorded Condominium Declaration. In November 2018, PFP Dorsey Investments, LLC acquired 90 of the 96 units in the complex, gaining approximately 94% of the voting power.

In March 2019, the Association notified members of a meeting to terminate the condominium, proposing to sell the entire complex to PFP Dorsey. At the April 4, 2019 meeting, the Association presented a modified termination agreement to sell only the minority-owned units to PFP Dorsey. Utilizing its 94% vote, PFP Dorsey ratified the agreement, and the Association recorded a deed transferring the Xias’ unit to PFP Dorsey.

The Xias sued PFP Dorsey and the Association, claiming the forced sale was an unconstitutional private taking and a breach of fiduciary duty. The Maricopa County Superior Court dismissed the complaint with prejudice, and the Court of Appeals reversed on the theory that an older version of the termination statute governed. The Arizona Supreme Court granted review.

On March 22, 2024, the Supreme Court vacated the Court of Appeals’ decision. It rejected the owners’ constitutional argument but held that A.R.S. § 33-1228 required selling the entire condominium, not just the Xias’ unit, and remanded. After the parties disputed the meaning of the mandate on remand, the Court issued a per curiam order on August 20, 2025 (No. CV-25-0071-PR) affirming the superior court, limiting the remaining issue to the unit’s fair market value as the owners’ total compensation, and sending that valuation to final and binding arbitration under § 33-1228.

Video overview of the case record

An AI-generated video overview of Cao v. PFP Dorsey Investments (257 Ariz. 82, 545 P.3d 459 (2024)). Condo termination statute allowed forced sale procedures, subject to constitutional compensation limits. This plain-language summary was generated from the court’s filings; the court’s own ruling controls.

Listen: audio deep dive on the case record

An AI-generated audio deep dive walking through the court record and procedural posture in Cao v. PFP Dorsey Investments. Generated from the case filings; verify against the linked case records below.

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

Procedural timeline

Step 2019-11-20 Plaintiffs Jie Cao, Haining Xia, and Stone Xia file their initial Civil Complaint in Maricopa County Superior Court.

Step 2019-12-18 Defendants file a Notice Requesting Assignment to Commercial Court and a Motion for More Definite Statement.

Step 2019-12-20 Defendants file their formal Answer to the initial Complaint.

Step 2020-01-03 Carpenter Hazlewood files a Motion to Withdraw as Counsel for Lorne Polger and Matt Quinn.

Step 2020-01-17 Minute Entry orders the case referred for reassignment to Commercial Court.

Step 2020-01-22 Plaintiffs file a Motion requesting a sheriff lock up of Unit 106 and an injunction on Defendants.

Step 2020-01-24 Case is officially reassigned to the Commercial Court under Hon. Daniel Martin.

Step 2020-02-25 Minute Entry from status conference orders Plaintiffs to file an amended complaint, denies Defendants' MTD as moot, and Plaintiffs withdraw their injunction motion.

Step 2020-03-27 Plaintiffs file their First Amended Complaint.

Step 2020-07-06 Plaintiffs file their Second Amended Complaint.

Step 2020-07-24 Hon. Daniel Martin signs an order dismissing defendants Lorne Polger, Matt Quinn, and Michael A. Schern without prejudice.

Step 2020-08-13 PFP Dorsey and Dorsey Place Condominium Association file separate Motions to Dismiss the Second Amended Complaint.

Step 2020-09-16 Plaintiffs file their Response to the Motions to Dismiss.

Step 2020-10-05 Defendants file their Reply briefs in support of the Motions to Dismiss.

Step 2020-12-15 Virtual Oral Argument is held on the Motions to Dismiss before Hon. Daniel Martin.

Step 2020-12-18 Court files a Minute Entry Under Advisement Ruling dated Dec 15, 2020, granting both Motions to Dismiss with prejudice.

Step 2021-01-07 Defendants file separate Applications for Attorneys' Fees and Costs.

Step 2021-03-15 Hon. Daniel Martin issues a Minute Entry Ruling denying the defendants' fee applications but granting taxable costs.

Step 2021-03-18 Court enters signed judgments in favor of both defendants under Rule 54(b).

Step 2021-04-19 Plaintiffs file their first Notice of Appeal from the March 18 judgments.

Step 2021-04-27 Court enters revised final judgment under Rule 54(c).

Step 2021-05-12 Plaintiffs file a stipulated motion to dismiss the first appeal as moot and file a new Notice of Appeal from the April 27 judgment.

Step 2021-05-18 Arizona Court of Appeals Division One assigns case number 1 CA-CV 21-0275 and issues Appellate Clerk Notice.

Step 2021-06-25 Osborn Maledon, P.A. (Eric M. Fraser) files Notice of Substitution of Counsel and Unopposed Motion for Extension of Time to File Opening Brief.

Step 2021-07-07 Appellants file their Case Management Statement and Notice of Filing Transcript of the December 15, 2020 hearing.

Step 2021-08-18 Appellants file their Opening Brief and Appendix.

Step 2021-09-27 Appellees file their Answering Brief.

Step 2021-11-08 Appellants file their Reply Brief.

Step 2021-11-29 Pacific Legal Foundation files a Motion for Leave to File Amicus Curiae Brief.

Step 2021-12-20 Court of Appeals issues an order accepting the Amicus Curiae brief of Pacific Legal Foundation.

Step 2022-01-10 Appellees file their Response Brief to the Amicus Curiae brief of Pacific Legal Foundation.

Step 2022-02-22 Oral Argument is held before the Court of Appeals Division One.

Step 2022-03-17 Court of Appeals issues an Order for Additional Briefing on the applicability of the 1986 versus the 2018 statutory versions of A.R.S. § 33-1228.

Step 2022-03-23 Court of Appeals issues an Order Re: Supplemental Authority requesting briefing on the impact of the newly issued Supreme Court case Kalway v. Calabria Ranch.

Step 2022-04-15 Parties file simultaneous supplemental briefs.

Step 2022-05-02 Parties file simultaneous responses to the additional briefing.

Step 2022-07-07 Arizona Court of Appeals Division One issues its published Opinion reversing and remanding.

Step 2022-07-22 Appellees file a Motion for Reconsideration and object to Appellants' application for attorneys' fees.

Step 2022-09-14 Court of Appeals denies Appellees' Motion for Reconsideration and awards Appellants $230,000 in attorneys' fees and costs.

Step 2022-09-23 Appellees file a Petition for Review in the Arizona Supreme Court (No. CV-22-0228-PR).

Step 2023-08-22 Arizona Supreme Court grants the Petition and Cross-Petitions for Review in part, rephrasing four statutory and constitutional questions.

Step 2024-03-22 Arizona Supreme Court issues its Opinion (257 Ariz. 82), authored by Justice Bolick for a unanimous Court: vacates the Court of Appeals' decision, affirms the superior court except as to Part II (the single-unit sale), and remands.

Step 2024-05-16 Arizona Supreme Court issues its Mandate and an order awarding the Xias $56,947.00 in fees and $316.32 in costs (denying appellate fees under ARCAP 21(d)).

Step 2024-08-08 On remand, the superior court denies PFP Dorsey's motion to compel arbitration of the unit's valuation (minute entry).

Step 2024-12-03 The superior court grants the Xias' motion for leave to file a Third Amended Complaint realleging previously dismissed claims (minute entry).

Step 2025-02-25 The Court of Appeals declines special-action jurisdiction over PFP Dorsey's petition challenging the remand rulings (No. 1 CA-SA 25-0015).

Type: Decision or judgment

Download source file

2024-03-22_193_0000-supreme-court-opinion.pdf

Source 191 2024-05-16

0000 Asc Order Filed 05162024 Re Awardin

Type: Court order/minute entry

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

Download source file

2024-05-16_194_0000-asc-order-filed-05162024-re-awardin.pdf

Source 192 2024-05-29

0000 Asc Order Filed 05292024 Re Denying

Type: Court order/minute entry

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

Download source file

2024-05-29_195_0000-asc-order-filed-05292024-re-denying.pdf

Source 193 2025-08-20

0000 Supreme Court Decision Order

Type: Decision or judgment

Decision holding that the Arizona Supreme Court held that a forced sale following a supermajority condominium termination under A.R.S. § 33-1228 does not violate the eminent-domain (private-takings) provision of the Arizona Constitution as applied to owners who agreed to a recorded declaration incorporating the Condominium Act.

Download source file

2025-08-20_196_0000-supreme-court-decision-order.pdf

FAQ

Is Cao v. PFP Dorsey Investments binding precedent in Arizona?

Yes. The controlling decision is now the Arizona Supreme Court’s published opinion, Cao v. PFP Dorsey Investments, LLC, 257 Ariz. 82 (2024), which vacated the earlier Court of Appeals decision. The Supreme Court’s opinion is binding statewide; the 2022 Court of Appeals opinion is no longer good law.

Can a supermajority investor force minority condo owners to sell their units?

Under A.R.S. § 33-1228, a supermajority can vote to terminate a condominium. The Supreme Court held this forced sale does not violate Arizona’s constitutional ban on takings for private use, because the owners agreed to the recorded Declaration, which incorporates the Condominium Act. However, the Court held the statute requires the sale of the entire condominium upon termination — not the sale of only the holdout owners’ individual unit.

Did the unit owners win or lose?

It was a split result. The owners (Jie Cao and Haining ‘Frazer’ Xia) lost their constitutional eminent-domain argument but won on the statutory ground: because only their unit was force-sold while the investor kept the other 90 units, the sale was improper under § 33-1228. The case was remanded, and a later order limited the remaining issue to the fair market value of their unit as their total compensation.

What did the August 2025 Supreme Court order decide?

In a per curiam order (No. CV-25-0071-PR, Aug. 20, 2025), the Court clarified its mandate: the superior court was affirmed, the sole remaining issue is the fair market value of the owners’ unit (paid as their total compensation), and the matter was remanded for final and binding arbitration under A.R.S. § 33-1228 and the Condominium Termination Agreement.

What happened to the Court of Appeals' 'older statute governs' reasoning?

The Supreme Court rejected it. The Court of Appeals had held that the 1986 version of § 33-1228 governed because the owners bought before the 2018 amendments. The Supreme Court disagreed: the Declaration incorporated the Condominium Act ‘as amended from time to time,’ that amendment was anticipated, and Kalway v. Calabria Ranch did not apply because the Declaration itself was never amended — so the 2018 version of the statute applied.

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	257 Ariz. 82, 545 P.3d 459 (2024)
Court / tribunal	Arizona Supreme Court
Decision / key date	March 22, 2024
Judge / panel	Justice Clint Bolick (author), Chief Justice Robert M. Brutinel, Vice Chief Justice Ann A. Scott Timmer, Justice John R. Lopez IV, Justice James P. Beene, Justice William G. Montgomery, Justice Kathryn H. King
Parties	Jie Cao and Haining 'Frazer' Xia (condominium unit owners) v. PFP Dorsey Investments, LLC (majority investor) and Dorsey Place Condominium Association (homeowners association)
Governing law	A.R.S. § 33-1228 A.R.S. § 33-1201 Ariz. Const. art. 2, § 17
Topics	CC&RsBoard GovernanceProcedureAttorney Fees
Outcome / holding	The Arizona Supreme Court held that a forced sale following a supermajority condominium termination under A.R.S. § 33-1228 does not violate the eminent-domain (private-takings) provision of the Arizona Constitution as applied to owners who agreed to a recorded declaration incorporating the Condominium Act. However, the Court also held that, under these circumstances, § 33-1228 required the sale of the entire condominium upon termination, not the sale of only the minority owners' individual unit. It vacated the Court of Appeals' decision, affirmed the superior court except as to that issue, and remanded.

Parties, Court, and Research Coverage

Reviewed source package	193 PDFs
Step-by-step docket roadmap	48 roadmap entries
Video overview	Cao v. PFP Dorsey Investments
Study / briefing material	1 section
FAQ / homeowner questions	5 questions
Featured download links	4 download links

Key Issues & Findings

Case Summary

Jie Cao and Haining 'Frazer' Xia owned one of 96 units at Dorsey Place Condominiums. After PFP Dorsey Investments acquired 90 units (about 94% of the vote), it invoked A.R.S. § 33-1228 to terminate the condominium and force the sale of the remaining minority units to itself. The Xias sued, arguing the forced sale was an unconstitutional private taking. The superior court dismissed the complaint; the Court of Appeals reversed on a statutory-retroactivity theory. The Arizona Supreme Court vacated that decision. It held the forced sale did not violate Arizona's eminent-domain clause, because the owners agreed to the recorded Declaration incorporating the Condominium Act, but it also held that § 33-1228 required selling the entire condominium, not just the holdout unit. It remanded; a later 2025 order limited the remaining issue to the unit's fair market value as the owners' total compensation, to be fixed by binding arbitration.

Key Issues & Findings

Writing for a unanimous Court, Justice Bolick first addressed the constitutional challenge. The Xias argued that A.R.S. § 33-1228 — which lets a supermajority terminate a condominium and force the sale of objecting owners' units — authorized an unconstitutional taking of private property for private use under Article 2, Section 17 of the Arizona Constitution. The Court disagreed. The sale authority derived not from the State's eminent-domain power but from the recorded Declaration, a contract to which the Xias voluntarily agreed when they purchased their unit; the Declaration expressly submitted the property to the Condominium Act and provided for partition upon dissolution. Because the arrangement was contractual, it was not a governmental taking.

The Court then held, however, that the forced sale as carried out was not authorized by the statute. Termination under § 33-1228 required the sale of all of the condominium property, not the sale of individual holdout units while the terminating owner retained the rest. Here PFP Dorsey force-sold only the Xias' unit and kept the other ninety units, which the statute did not permit. The Court therefore vacated the Court of Appeals' decision, affirmed the superior court except as to this issue (Part II of the opinion), and remanded.

Finally, the Court rejected the Court of Appeals' premise that an older (1986) version of the statute governed because the Xias purchased before the 2018 amendments. The Declaration incorporated the Condominium Act 'as amended from time to time,' so the possibility of statutory amendment was anticipated; Kalway v. Calabria Ranch — which barred unforeseen amendments to a declaration itself — did not apply because the Declaration was never amended, only the incorporated statutes were. Accordingly, the 2018 version of § 33-1228 controlled. On remand the parties disputed the scope of the mandate, and in a per curiam order dated August 20, 2025 (No. CV-25-0071-PR), the Supreme Court clarified that the superior court was affirmed, the only remaining issue is the fair market value of the Xias' unit as their total compensation, and the matter must proceed to final and binding arbitration under § 33-1228 and the Condominium Termination Agreement.

Why It Matters

For Arizona condominium owners, associations, and investors, this decision sets the ground rules for 'bulk buyout' terminations. It confirms that a supermajority may use A.R.S. § 33-1228 to terminate a condominium and that the resulting forced sale is not an unconstitutional taking, because owners agree to the Condominium Act through their recorded declaration. Investors cannot defeat a buyout simply by labeling it a private taking.

But the decision also imposes a critical limit: on termination, the statute requires selling the entire condominium, not cherry-picking and force-selling only holdout units while the majority owner keeps the rest. And owners who are bought out are entitled to the fair market value of their unit as total compensation, which — per the Court's 2025 order — may be fixed through binding arbitration under the termination agreement. Boards and counsel structuring a termination must follow the whole-property sale mechanism and a defensible valuation process, or risk having the sale undone.

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