Contract vs. Tort | CC&R Indemnity | LC2018-000210
When an owner sued an HOA for breach of contract after landscapers damaged his wall and killed his vegetation, Judge Patricia Ann Starr held that CC&Rs; do not provide contractual indemnity for vendor negligence, vacating the owner’s award and assessing over $18,800 in fees and costs.
Last updated September 17, 2026. Case: Town Square Homeowners Association v. Robert A. Tomiczek, Maricopa County Superior Court No. LC2018-000210 (minute entries use LC2018-000210-001 DT); originating Moon Valley Justice Court No. CC2015-144356RC; Hon. Patricia Ann Starr.
Scope note: This page covers Maricopa County Superior Court No. LC2018-000210, an appeal from Moon Valley Justice Court. Town Square Homeowners Association sued homeowner Robert A. Tomiczek for assessment breach, and Tomiczek counterclaimed for damage to his block wall and vegetation caused by HOA landscapers, winning damages at trial. Represented by appellate counsel Lori L. Voepel, the association appealed. Superior Court Judge Patricia Ann Starr vacated the judgment on the counterclaims, holding that CC&Rs; create servitudes rather than an indemnity contract for vendor negligence, and barred the owner from converting contract counterclaims to tort negligence on appeal. The court awarded the HOA $14,000.00 in attorney fees and $4,816.90 in costs. This page is educational and is not legal advice.
The takeaway
Vacated and remanded. An HOA declaration does not impose a contractual duty on the association to indemnify a homeowner for property damage caused by vendor negligence; a litigant who pleads and tries counterclaims solely under a breach of contract theory cannot change theories on appeal to assert tort negligence. Counterclaim judgment vacated and fees awarded to the HOA under A.R.S. § 12-341.01.
Case Participants
Petitioner Side
- Town Square Homeowners Association (Plaintiff/Appellant)
Arizona nonprofit corporation
HOA plaintiff/appellant; represented by Lori L. Voepel; successfully vacated counterclaim judgment and won fee award. - Lori L. Voepel (Counsel)
Jones, Skelton & Hochuli, P.L.C.
Appellate counsel for Plaintiff/Appellant Town Square Homeowners Association.
Respondent Side
- Robert A. Tomiczek (Defendant/Appellee)
Homeowner; counterclaimed for wall and plant damage; damages award vacated on appeal and assessed $14,000.00 in attorney fees and $4,816.90 in costs. - Christopher J. Berry (Counsel)
Counsel for Defendant/Appellee Robert A. Tomiczek.
Neutral Parties
- Hon. Patricia Ann Starr (Judge)
Maricopa County Superior Court
Superior Court Judge who authored the ruling vacating the counterclaim judgment and entered the fee order. - Moon Valley Justice Court (Originating Court)
Trial court (Case No. CC2015-144356RC) whose counterclaim judgment was vacated.
What happened
In August 2015, Town Square Homeowners Association sued homeowner Robert A. Tomiczek in Moon Valley Justice Court for breach of contract, alleging failure to pay assessments.
Tomiczek answered and asserted counterclaims for breach of contract, claiming that the HOA’s landscaping contractors negligently operated machinery against his private block wall and sprayed toxic fertilizer into his front yard bender box, destroying plants.
Following a bench trial on April 26, 2017, the justice court found for the HOA on assessments ($3,559.00) and found for Tomiczek on counterclaims D and E, awarding him $1,477.50 for wall repair and $6,402.78 for destroyed vegetation.
Town Square HOA, represented by appellate specialist Lori L. Voepel, appealed to Maricopa County Superior Court. On December 13, 2018, Judge Patricia Ann Starr issued a formal ruling vacating the counterclaim awards, holding that CC&Rs; create servitudes rather than an indemnity contract for vendor negligence and that Tomiczek could not pivot to tort on appeal. On March 12, 2019, Judge Starr entered an order awarding the HOA $14,000.00 in attorney fees and $4,816.90 in costs against Tomiczek.
Video overview of the case record
An AI-generated video overview of Town Square Homeowners Association v. Robert A. Tomiczek (Maricopa County Superior Court No. LC2018-000210). Vacated. CC&Rs; do not create an indemnity duty for vendor negligence; owner barred from converting contract to tort. This plain-language summary was generated from the court’s filings; the court’s own records control.
Listen: audio deep dive on the case record
An AI-generated audio deep dive walking through the case record in Town Square Homeowners Association v. Robert A. Tomiczek. Generated from the case filings; verify against the linked records below.
Procedural timeline
Town Square HOA files collection complaint in Moon Valley Justice Court (CC2015-144356RC).
Homeowner Robert A. Tomiczek files answer and counterclaims for breach of CC&Rs.
Justice court conducts bench trial on complaint and counterclaims.
Justice court enters judgment awarding HOA $3,559.00 and awarding Tomiczek $7,880.28 on counterclaims.
Association appeals to Maricopa County Superior Court (LC2018-000210).
Judge Patricia Ann Starr issues ruling vacating judgment on counterclaims D and E.
Judge Starr signs final order awarding Town Square HOA $14,000.00 in attorney fees and $4,816.90 in costs.
Complete source-document index
This index contains 10 PDFs from the reviewed public source packet. Byte-identical copies are listed once. Files are ordered by the date and sequence in the public filename, and party filings or research materials are labeled separately from court rulings.
Minute Entry Setting Schedule
Type: Court order/minute entry
Initial minute entry establishing appellate briefing schedule before Judge Patricia Ann Starr.
Minute Entry Initial Record Review
Type: Court order/minute entry
Minute entry reviewing justice court record transmissions and filing deadlines.
Minute Entry Briefing Deadlines
Type: Court order/minute entry
Minute entry confirming briefing schedule and receipt of opening memorandum.
Minute Entry Extending Time Answering Brief
Type: Court order/minute entry
Minute entry granting homeowner extension of time to file answering brief.
Minute Entry Record Transmission
Type: Court order/minute entry
Minute entry ordering transmission of justice court trial exhibits and audio records.
Minute Entry Setting Oral Argument
Type: Court order/minute entry
Minute entry scheduling oral argument on the lower court appeal.
Minute Entry Transcript Transmission
Type: Court order/minute entry
Minute entry acknowledging filing of official trial transcript of proceedings.
Record Appeal Ruling Vacating Counterclaim Judgment
Type: Decision or judgment
Comprehensive ruling by Judge Patricia Ann Starr vacating justice court judgment on counterclaims.
Minute Entry Fee Application Under Advisement
Type: Court order/minute entry
Minute entry taking HOA application for attorney fees under advisement.
Final Order Awarding Attorney Fees And Costs
Type: Court order/minute entry
Final formal order awarding Town Square HOA $14,000.00 in attorney fees and $4,816.90 in costs under A.R.S. § 12-341.01.
FAQ
What happened at trial in the Moon Valley Justice Court?
Town Square HOA sued homeowner Robert A. Tomiczek for unpaid assessments. Tomiczek counterclaimed for breach of contract, alleging HOA landscapers damaged his block wall with machinery and killed vegetation with improper chemicals. The justice court awarded the HOA $3,559.00 on its claim and awarded Tomiczek $7,880.28 on his counterclaims.
Why did Judge Patricia Ann Starr vacate the homeowner's damages award?
Judge Starr held that Tomiczek chose to plead and try his claims strictly as breach of contract under the CC&Rs.; The declaration required party wall repairs to be shared equally and tasked the HOA with common landscaping, but contained no contractual duty to indemnify an owner for vendor negligence. Having tried the case in contract, the owner was precluded from switching to a tort negligence theory on appeal.
Can an HOA be sued for breach of contract when its vendors damage private property?
Generally no. CC&Rs; govern property use, assessments, and maintenance duties; they do not function as a general liability insurance policy or indemnity contract. Claims for physical property damage caused by contractors must be brought as tort claims (negligence or trespass) rather than breach of declaration.
What financial penalty did the homeowner face as a result of the appeal?
Because the association successfully reversed the counterclaims, the Superior Court deemed the association the prevailing party on appeal and awarded Town Square HOA $14,000.00 in attorney fees and $4,816.90 in costs under A.R.S. § 12-341.01 against Tomiczek.
What is the key takeaway for Arizona homeowners from this case?
Pleading the correct legal theory is critical. Suing an HOA under the CC&Rs; for tortious conduct by third-party vendors risks dismissal, appellate reversal, and catastrophic attorney fee exposure under contractual and statutory prevailing party provisions.
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 | Maricopa County Superior Court No. LC2018-000210 |
|---|---|
| Court / tribunal | Superior Court |
| Decision / key date | December 13, 2018 |
| Judge / panel | Hon. Patricia Ann Starr |
| Parties | Town Square HOA (Appellant) v. Robert A. Tomiczek (Appellee) |
| Governing law |
|
| Topics | CC&RsAttorney FeesProcedure |
| Outcome / holding | Vacated and remanded. An HOA declaration does not impose a contractual duty on the association to indemnify a homeowner for property damage caused by vendor negligence; a litigant who pleads and tries counterclaims solely under a breach of contract theory cannot change theories on appeal to assert tort negligence. Counterclaim judgment vacated and fees awarded to the HOA under A.R.S. § 12-341.01. |
| Primary public source | View hosted source opinion/order |
Parties, Court, and Research Coverage
| Reviewed source package | 10 PDFs |
|---|---|
| Step-by-step docket roadmap | 7 roadmap entries |
| Video overview | Town Square Homeowners Association v. Robert A. Tomiczek |
| Study / briefing material | 1 section |
| FAQ / homeowner questions | 5 questions |
| Featured download links | 2 download links |
Key Issues & Findings
Town Square Homeowners Association sued homeowner Robert A. Tomiczek in Moon Valley Justice Court for assessment breach of contract. Tomiczek counterclaimed for breach of contract, asserting that HOA landscapers damaged his block wall with heavy machinery and sprayed fertilizer that killed his front-yard vegetation. After a bench trial, the justice court awarded the HOA $3,559.00 on its complaint, but awarded Tomiczek $7,880.28 on his counterclaims. The HOA appealed. Superior Court Judge Patricia Ann Starr vacated the judgment on the counterclaims. Judge Starr held that Tomiczek tried his claims exclusively under a contract theory (the CC&Rs), but the declaration contained no contractual indemnity duty requiring the HOA to pay for vendor negligence. Barring Tomiczek from converting his contract claims into tort negligence claims on appeal, the court vacated the damage award and ordered Tomiczek to pay the association $14,000.00 in attorney fees and $4,816.90 in costs.
On appeal, Judge Starr analyzed the trial court record and the governing declaration. At trial, Tomiczek specifically affirmed that he was proceeding on the theory that the board breached its contractual obligations under the declaration to maintain property. Having chosen to litigate his claims as breach of contract, Tomiczek was barred from altering his theory on appeal to negligence, which would unfairly prejudice the association.
Reviewing contract interpretation de novo (Grosvenor Holdings v. Figueroa, 222 Ariz. 588), the court examined the CC&Rs. Regarding the block wall, Article II, Section 13(A) provided that common wall repairs necessitated by causes other than party negligence would be shared equally; it created no indemnity obligation. Regarding vegetation, Article IX, Section 1(A) assigned front-yard maintenance to the association, but did not address vendor negligence or establish contractual liability for plant damage caused during maintenance. Because the declaration imposed no contractual duty of indemnification, Tomiczek failed to prove breach of contract as a matter of law. On March 12, 2019, Judge Starr awarded Town Square HOA $14,000.00 in attorney fees and $4,816.90 in costs under A.R.S. § 12-341.01.
This case serves as a vital warning for homeowners and legal practitioners dealing with HOA disputes. When an association or its third-party contractors cause physical damage to an owner's home, wall, or landscaping, the owner must plead tort claims—such as negligence or trespass—rather than relying on the CC&Rs. Framing vendor property damage as a breach of the association's contractual declaration is fatal under Arizona law, leaving the homeowner vulnerable to total reversal and crippling fee awards under A.R.S. § 12-341.01.