Assessments & Fines | A.R.S. § 33-1803(B) | 1 CA-CV 16-0455 (depublished)
Division One affirmed an injunction to fix property violations but reversed the HOA’s daily fines and attorneys’ fees, holding an association must promulgate its fine schedule before imposing fines and prove they are reasonable. The Arizona Supreme Court later depublished the opinion.
Arizona Court of Appeals | 1 CA-CV 16-0455 (243 Ariz. 294, 406 P.3d 824 (App. 2017), later depublished) | Decided 2017-10-26 | Nonprecedential / citation-limited
Scope note: This educational page summarizes Turtle Rock III Homeowners Association v. Fisher, a Arizona Court of Appeals HOA-related authority. It is not legal advice.
Citation caveat: This opinion was later depublished. Treat it as historical, nonprecedential guidance rather than binding Arizona precedent.
The takeaway
Even where an HOA has authority under state statute and its CC&Rs to fine members, it must promulgate a schedule of fines before imposing them and must prove the fines are reasonable. Absent competent record evidence of a timely promulgated fee schedule (and proof of resulting damages), ad hoc daily monetary penalties are per se unreasonable under A.R.S. § 33-1803(B) and Villas at Hidden Lakes Condos Ass’n v. Geupel Constr. Co. The HOA, as the plaintiff, bore the burden of proof; the best-evidence rule (Ariz. R. Evid. 1002) required it to produce the writing itself, and the trial court’s reduction of the fines by 58% could not cure the missing schedule. The Court of Appeals affirmed the injunction requiring the property maintenance and repairs (Fisher’s interior objection was waived and the missing transcript was presumed to support the ruling) but reversed the $3,850 penalty award and the associated attorneys’ fee award, and awarded neither side fees on appeal. The Arizona Supreme Court later ordered the opinion depublished, so it is persuasive only and is not binding precedent.
Case Participants
Petitioner Side
- Lynne A. Fisher (Party)
Defendant/Appellant. Homeowner cited for exterior disrepair and interior clutter; did not appear at the hearing, but her counsel appeared and challenged the fines. She prevailed on the penalties and fees but lost on the injunction. - James Roger Wood (Counsel)
The Law Offices of J. Roger Wood, PLLC
Counsel for Defendant/Appellant Fisher (Tempe). - Erin S. Iungerich (Counsel)
The Law Offices of J. Roger Wood, PLLC
Counsel for Defendant/Appellant Fisher (Tempe).
Respondent Side
- Turtle Rock III Homeowners Association (Party)
Plaintiff/Appellee. Planned-community HOA that sued to enforce the CC&Rs, obtain an injunction, and collect $25-per-day fines; prevailed on the injunction but lost the penalty and fee awards on appeal. - Clint G. Goodman (Counsel)
Goodman Law Group, LLP
Counsel for Plaintiff/Appellee Turtle Rock III HOA (Mesa). - Ashely N. Moscarello (Counsel)
Goodman Law Group, LLP
Counsel for Plaintiff/Appellee Turtle Rock III HOA (Mesa). - Maura A. Abernathy (Counsel)
Goodman Law Group, LLP
Counsel for Plaintiff/Appellee Turtle Rock III HOA (Mesa).
Neutral Parties
- Jon W. Thompson (Judge)
Arizona Court of Appeals, Division One
Authored the Opinion of the Court. - Kent E. Cattani (Judge)
Arizona Court of Appeals, Division One
Presiding Judge; joined the opinion. - Paul J. McMurdie (Judge)
Arizona Court of Appeals, Division One
Joined the opinion. - David M. Talamante (Judge)
Maricopa County Superior Court
Trial judge (No. CV2015-095897) who entered the injunction, penalties, fees, and costs later reviewed on appeal.
What happened
Fisher’s home sat in a planned community governed by recorded CC&Rs that required owners to keep their property in a “clean and attractive condition” and allowed the HOA board to fine an owner who failed to cure a violation within thirty days of written notice.
Beginning in January 2014, the HOA sent Fisher a large number of violation notices—roughly ninety over about two years—complaining that she was using the home as a storage facility, that exterior components were broken, missing, or dilapidated, and that clutter visible from neighboring property blocked her blinds and posed a claimed health and safety concern. The HOA assessed fines at $25 per day.
In November 2015 the HOA sued in Maricopa County Superior Court (No. CV2015-095897) for breach of the CC&Rs, seeking an injunction to compel the repairs and a judgment for the accrued penalties.
At the evidentiary hearing, the HOA filed a pretrial statement and presented one witness (board member Ms. Curtiss) and five exhibits—photographs, a voluminous set of notice letters, a ledger of accrued fines, and the CC&Rs—but it did not put its written fine schedule into evidence. Fisher filed no pretrial statement and did not appear; her counsel attended, waived testimony, and offered no evidence, but argued that no fine schedule was in the record and that the HOA had not honored the thirty-day cure period.
The trial court entered an injunction requiring the exterior repairs and the interior changes (moving items that kept the blinds from closing and replacing dilapidated blinds), found the HOA had complied with the thirty-day notice requirement, and found the witness’s testimony sufficient to support the $25-per-day assessment. On its own motion the court reduced the requested $9,165.25 in penalties to $3,850—counting only fines that accrued after the HOA’s September 16, 2015 attorney letter—and awarded $10,839.70 in attorneys’ fees and $474 in costs under Rule 54(c).
Fisher appealed. Division One affirmed the injunction, including the interior items, holding that her interior-repair objection was raised for the first time on appeal and was therefore waived, and that the missing hearing transcript had to be presumed to support the trial court’s ruling.
The court reversed the penalties. It held that under A.R.S. § 33-1803(B) monetary penalties must be reasonable, that ad hoc fines are per se unreasonable under Villas at Hidden Lakes, and that an HOA must promulgate its fine schedule before imposing fines and prove reasonableness. Because no schedule was in evidence (best-evidence rule, Ariz. R. Evid. 1002) and the HOA bore the burden of proof, the $3,850 award could not stand, and the 58% reduction did not cure the defect. The attorneys’ fee award fell with the penalties, and the court awarded neither side fees on appeal. The Arizona Supreme Court later depublished the opinion, leaving it persuasive only.
For Arizona HOAs and homeowners, Turtle Rock III illustrates the practical difference between having the power to fine and being able to collect a fine. The decision reads A.R.S. § 33-1803(B) and Villas at Hidden Lakes together to require two things before a monetary penalty will hold up: the association must promulgate a written fine schedule before it imposes the fine, and, if the fine is challenged, it must prove both that the schedule existed and that the amount is reasonable. Because the association is the plaintiff in a collection or breach action, that burden is its own; a homeowner does not have to disprove the fines, and the best-evidence rule means the actual schedule (not a board member’s recollection) generally has to be in the record. The opinion also shows that a court’s willingness to cut an excessive fine does not rescue an otherwise unsupported penalty, and that daily or per-diem fines fixed in advance can look like an unenforceable penalty rather than a reasonable charge. An important caveat frames how much weight this case can carry: it was originally published at 243 Ariz. 294, 406 P.3d 824 (App. 2017), but the Arizona Supreme Court later ordered it depublished. A depublished opinion is not binding precedent and generally may not be cited as authority; it survives only as persuasive commentary and as a window into how one appellate panel applied the governing statute and the still-binding Villas decision. The underlying rule it relied on, however, comes from Villas at Hidden Lakes, which remains good law, so the core lesson about promulgating and proving a reasonable fine schedule continues to reflect Arizona law even though this particular opinion cannot be cited for it.
Litigation record
The HOA began sending Fisher violation notices and levying $25-per-day fines for maintenance violations under the CC&Rs.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
The HOA’s attorney wrote to Fisher; the trial court later counted only penalties that accrued after this date.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
The HOA filed its complaint in Maricopa County Superior Court (No. CV2015-095897) alleging breach of the CC&Rs and seeking an injunction and penalties.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
The superior court (Hon. David M. Talamante) held an evidentiary hearing and entered judgment for the HOA: the injunction, $3,850 in penalties (reduced sua sponte from $9,165.25), $10,839.70 in attorneys’ fees, and $474 in costs. Fisher appealed.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
The Arizona Court of Appeals, Division One, filed its opinion (No. 1 CA-CV 16-0455), affirming the injunction but reversing the monetary penalties and the attorneys’ fee award.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
The Arizona Supreme Court ordered the opinion (originally published at 243 Ariz. 294, 406 P.3d 824) depublished, so it is persuasive only and is not binding precedent.
Filed by: Court record
Part of the record summarized for homeowners, boards, and counsel.
Complete uploaded source-document index
This index is generated from every public-facing source file currently present in assets/court_case_downloads/turtle-rock-iii-hoa-v-fisher/raw/: 1 PDF. Files are ordered by the date/sequence embedded in the normalized filename; AI-generated review materials are labeled separately and should not be treated as court filings.
Opinion
Type: Decision or judgment
Decision document; read it to understand the controlling result before moving to later filings.
FAQ
Can an Arizona HOA fine a homeowner without a written fine schedule?
Under this opinion, no—at least not enforceably. Applying A.R.S. § 33-1803(B) and Villas at Hidden Lakes, the court held that even where an HOA has authority to fine, it must promulgate a schedule of fines before imposing them, and ad hoc fines are per se unreasonable. Because Turtle Rock III never put its fine schedule into evidence, the court reversed the $3,850 penalty award.
Who has the burden to prove a fine is reasonable—the HOA or the homeowner?
The HOA. As the plaintiff bringing a breach-of-contract action, the association had the burden to prove the elements of its claim, including that a fine schedule existed and that the fines were reasonable. The court held Fisher was not required to introduce evidence disproving the fines, and the best-evidence rule (Ariz. R. Evid. 1002) meant the HOA generally had to produce the actual schedule, not just testimony about it.
Why was the maintenance injunction affirmed but the fines reversed?
These were separate issues. The injunction was affirmed because Fisher’s objection to the interior repairs was raised for the first time on appeal (and thus waived), she offered no evidence below, and the missing hearing transcript was presumed to support the trial court. The fines were reversed on the legal ground that the HOA never proved a promulgated, reasonable fine schedule.
Did the trial court’s decision to cut the fines make them reasonable?
No. The trial court reduced the requested $9,165.25 in penalties to $3,850 on its own motion—a roughly 58% cut. The Court of Appeals said that slashing the fines did not establish that the fine scheme was reasonable; if anything, it confirmed the overreach. A stipulated damages amount fixed in advance of a breach can operate as an unenforceable penalty.
Why were the HOA’s attorneys’ fees reversed too?
The attorneys’ fee award below was tied to the HOA’s success on the penalties. When the Court of Appeals reversed the $3,850 penalty award, the associated attorneys’ fee award was reversed with it. On appeal, the court awarded neither party its fees under A.R.S. § 12-341.01 because neither side was wholly successful.
Is Turtle Rock III v. Fisher binding precedent in Arizona?
No. Although it was originally published at 243 Ariz. 294, 406 P.3d 824 (App. 2017), the Arizona Supreme Court later ordered the opinion depublished. A depublished opinion is not binding precedent and generally may not be cited as authority; it is persuasive only. The rule it applied, however, comes from Villas at Hidden Lakes, which remains good law.
Case Dossier
This generated dossier mirrors the structured data surfaced on the OAH/ADRE case pages. It is added from the curated court-case record and the custom page source package, while the hand-authored analysis below remains intact.
Case Summary
| Case ID / citation | 1 CA-CV 16-0455 (243 Ariz. 294, 406 P.3d 824 (App. 2017), later depublished) |
|---|---|
| Court / tribunal | Court of Appeals |
| Decision / key date | October 26, 2017 |
| Judge / panel | Jon W. Thompson (author), Kent E. Cattani (Presiding Judge), Paul J. McMurdie |
| Parties | A planned-community homeowners association (Turtle Rock III) sued homeowner Lynne A. Fisher for breaching the CC&Rs and sought an injunction plus accrued daily fines; the Court of Appeals affirmed the maintenance injunction but reversed the monetary penalties and attorneys’ fees because the HOA never put its fine schedule into evidence. |
| Governing law |
|
| Topics | assessmentscc-and-rsattorneys-feescovenantsprocedure |
| Outcome / holding | Even where an HOA has authority under state statute and its CC&Rs to fine members, it must promulgate a schedule of fines before imposing them and must prove the fines are reasonable. Absent competent record evidence of a timely promulgated fee schedule (and proof of resulting damages), ad hoc daily monetary penalties are per se unreasonable under A.R.S. § 33-1803(B) and Villas at Hidden Lakes Condos Ass’n v. Geupel Constr. Co. The HOA, as the plaintiff, bore the burden of proof; the best-evidence rule (Ariz. R. Evid. 1002) required it to produce the writing itself, and the trial court’s reduction of the fines by 58% could not cure the missing schedule. The Court of Appeals affirmed the injunction requiring the property maintenance and repairs (Fisher’s interior objection was waived and the missing transcript was presumed to support the ruling) but reversed the $3,850 penalty award and the associated attorneys’ fee award, and awarded neither side fees on appeal. The Arizona Supreme Court later ordered the opinion depublished, so it is persuasive only and is not binding precedent. |
| Primary public source | View source opinion/order |
Parties, Court, and Research Coverage
| Uploaded source package | 1 PDF |
|---|---|
| Step-by-step docket roadmap | 6 roadmap entries |
| Video overview | No video embed currently configured |
| Study / briefing material | 1 section |
| FAQ / homeowner questions | 6 questions |
| Curated download aliases | 1 download link |
Key Issues & Findings
Turtle Rock III Homeowners Association v. Fisher arose from a Maricopa County dispute between a planned-community HOA and homeowner Lynne A. Fisher. The recorded CC&Rs required owners to keep their property in a “clean and attractive condition” and allowed the board to fine an owner who failed to cure a violation within thirty days of written notice. Beginning in January 2014, the HOA sent Fisher roughly ninety notices about exterior disrepair and interior clutter that blocked blinds visible from outside, and it levied fines of $25 per day. In November 2015 the HOA sued for breach of the CC&Rs and an injunction. At an evidentiary hearing that Fisher’s counsel attended but Fisher did not, the HOA presented one witness and five exhibits but never introduced its written fine schedule; Fisher offered no evidence. The trial court entered the injunction, reduced the requested $9,165.25 in penalties to $3,850 on its own motion, and awarded the HOA $10,839.70 in attorneys’ fees plus $474 in costs. On appeal, Division One affirmed the injunction (Fisher’s interior-repair argument was waived, and the missing hearing transcript was presumed to support the ruling) but reversed the penalties. Applying A.R.S. § 33-1803(B) and Villas at Hidden Lakes, the court held that an HOA must promulgate its fine schedule before imposing fines and prove the fines are reasonable; because no schedule was in evidence, the daily fines were per se unreasonable, and the attorneys’ fee award fell with them. The Arizona Supreme Court later depublished the opinion, so it is persuasive only.
The panel reviewed the injunction for abuse of discretion and questions of law, including the interpretation of deed restrictions, de novo. It affirmed the injunction because Fisher’s objection to the interior repairs was raised for the first time on appeal and therefore waived (Odom v. Farmers Ins. Co.), she had filed no pretrial statement and offered no evidence below, and the trial court noted she had not objected to the enumerated maintenance items; the court also presumed the missing hearing transcript would support the ruling (Myrick v. Maloney). On the penalties, the court applied A.R.S. § 33-1803(B), which permits an HOA board, after notice and an opportunity to be heard, to impose only reasonable monetary penalties. Villas at Hidden Lakes was dispositive: even where an HOA has authority to levy fines, it must promulgate the fine schedule before imposing the fines, and a failure to prove promulgation is fatal because ad hoc fines are per se unreasonable. No fee schedule was introduced into evidence; a bare assertion in the HOA’s brief that a fine policy was provided after the hearing was uncorroborated, and the trial court’s reference to the witness’s testimony did not establish that a schedule existed. As the plaintiff, the HOA bore the burden of proving the elements of its breach claim (Clark v. Compania Ganadera), and the best-evidence rule (Ariz. R. Evid. 1002) required production of the writing itself rather than oral testimony about its terms. There was also no record support that a $25-per-day fine was reasonable; a stipulated damages provision fixed in advance of a breach operates as an unenforceable penalty (Larson-Hegstrom), and the trial court’s 58% reduction of the fines confirmed rather than cured the overreach. Even if a schedule had existed, the HOA still had to prove its damages. Because the penalties were reversed, the attorneys’ fee award below fell with them, and neither party was awarded fees on appeal because neither was wholly successful.
For Arizona HOAs and homeowners, Turtle Rock III illustrates the practical difference between having the power to fine and being able to collect a fine. The decision reads A.R.S. § 33-1803(B) and Villas at Hidden Lakes together to require two things before a monetary penalty will hold up: the association must promulgate a written fine schedule before it imposes the fine, and, if the fine is challenged, it must prove both that the schedule existed and that the amount is reasonable. Because the association is the plaintiff in a collection or breach action, that burden is its own; a homeowner does not have to disprove the fines, and the best-evidence rule means the actual schedule (not a board member’s recollection) generally has to be in the record. The opinion also shows that a court’s willingness to cut an excessive fine does not rescue an otherwise unsupported penalty, and that daily or per-diem fines fixed in advance can look like an unenforceable penalty rather than a reasonable charge.
An important caveat frames how much weight this case can carry: it was originally published at 243 Ariz. 294, 406 P.3d 824 (App. 2017), but the Arizona Supreme Court later ordered it depublished. A depublished opinion is not binding precedent and generally may not be cited as authority; it survives only as persuasive commentary and as a window into how one appellate panel applied the governing statute and the still-binding Villas decision. The underlying rule it relied on, however, comes from Villas at Hidden Lakes, which remains good law, so the core lesson about promulgating and proving a reasonable fine schedule continues to reflect Arizona law even though this particular opinion cannot be cited for it.