Court of Appeals of Arizona, First Division, Department B
COUNTRY CLUB TOWNHOMES HOMEOWNERS ASSOCIATION, INC., Plaintiff/Counterdefendant/Appellee,
GREGORY E. GOODMAN, Defendant/Counterclaimant/Appellant.
Not for Publication – Rule 28, Arizona Rules of Civil Appellate Procedure
Appeal from the Superior Court in Yavapai County Cause No. P1300CV201001609 The Honorable Kenton D. Jones, Judge.
O'Leary Eaton, PLLC Prescott by William J. O'Leary Michael P. Thieme Attorneys for Plaintiff/Counterdefendant/Appellee.
Kimminau Law Firm, PC Tucson by Christian J. Kimminau Attorneys for Defendant/Counterclaimant/Appellant.
RANDALL M. HOWE, Judge.
¶1 Goodman appeals the Rule 54(b) certification of partial summary judgment awarded in favor of Country Club Townhomes Homeowners' Association ("Country Club"). For the reasons that follow, we affirm in part and vacate and remand in part.
FACTS AND PROCEDURAL HISTORY
¶2 Goodman owns eight properties within the subdivision known as Country Club Townhomes. Country Club collects fees and other charges from homeowners. Goodman admittedly did not pay the HOA fees on his units for the months of July, August and September of 2010. Since that time, Goodman has continued to withhold HOA fees.
¶3 Country Club sued Goodman, claiming breach of contract and breach of the duty of good faith and fair dealing. Goodman countersued, presenting his own claims of breach of contract and breach of the duty of good faith. After some discovery, Country Club moved for partial summary judgment on October 24, 2011, only on its claim that Goodman failed to pay HOA fees. Country Club asserted that: certain Covenants, Conditions and Restrictions (CC&R's) applied to the townhomes; Country Club was authorized and obligated to enforce the CC&R's; the CC&R's required Goodman to pay monthly assessments for each unit; Goodman did not pay the assessments from July 2010 to October 2011; and Goodman had admitted that nothing in the CC&R's or in the HOA by-laws permitted him to withhold payment. Country Club asked for (1) judgment in the amount of $19, 880.48 for past due HOA fees; (2) prejudgment interest from October 2010; (3) a determination that no just reason existed for delay and that the judgment was final under Arizona Rule of Civil Procedure ("Rule") 54(b); and (4) attorneys' fees and costs if successful on the motion.
¶4 On December 6, the court granted the motion, noting that Goodman had not responded and that no question of material fact was in dispute for Goodman's withholding HOA fees. The court awarded Country Club past due fees; prejudgment interest from October 2, 2010, until judgment; costs and reasonable attorneys' fees. Further, it stated "FINALLY, and absent objection to [Country Club's] request by [Goodman], the Court finds there to be no reason for delay and that this judgment is a final judgment pursuant to Rule 54(b) of the Arizona Rules of Civil Procedure."
¶5 Country Club subsequently applied for attorneys' fees of $11, 700 on December 13, 2011. Goodman filed a "Notice of Objections" on December 19, objecting to the award of attorneys' fees and the inclusion of the Rule 54(b) language. He argued that Country Club's success on its partial summary judgment motion did not make it the "prevailing party" in the action, and therefore an attorneys' fee award was premature. Goodman argued that an attorneys' fee award was premature also because other claims remained and the court might have to offset the final judgment if Goodman prevailed on the remaining claims. Goodman argued that these issues created a just reason to delay judgment.
¶6 Country Club replied that Goodman's Notice of Objections should be struck because Goodman had waived his right to object to the relief granted in the December 6 ruling by failing to respond to the motion for partial summary judgment. The court signed the judgment on February 24, 2012. The same day, the court ruled that Goodman's Notice of Objections was an untimely attack on the December 6 ruling. The court further noted that Goodman's Notice of Objections addressed "the awarding of attorneys['] fees and Rule 54(b) language being included in the Judgment without any substantive objection being raised in regard to the content of the proposed form of Judgment."
¶7 Goodman timely appeals, and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-120.21(A)(1) ...