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Turtle Rock III Homeowners Association v. Fisher

Court of Appeals of Arizona, First Division

October 26, 2017

TURTLE ROCK III HOMEOWNERS ASSOCIATION, Plaintiff/Appellee,
v.
LYNNE A. FISHER, Defendant/Appellant.

         Appeal from the Superior Court in Maricopa County No. CV2015-095897 The Honorable David M. Talamante, Judge

          The Law Offices of J. Roger Wood, PLLC, Tempe By James Roger Wood, Erin S. Iungerich Counsel for Defendant/Appellant

          Goodman Law Group, LLP, Mesa By Clint G. Goodman, Ashely N. Moscarello, Maura A. Abernathy Counsel for Plaintiff/Appellee

          Judge Jon W. Thompson delivered the Opinion of the Court, in which Presiding Judge Kent E. Cattani and Judge Paul J. McMurdie joined.

          OPINION

          THOMPSON, JUDGE

         ¶1 This matter involves a dispute between the Turtle Rock III Homeowners Association (HOA) and homeowner Lynne A. Fisher (Fisher). Fisher appeals from an injunction requiring her to clean up or repair certain parts of her property and from a judgment in favor of the HOA for penalties in the amount of $3850. The injunction is affirmed. The award of monetary penalties and attorneys' fees against Fisher below is reversed.

         FACTUAL AND PROCEDURAL HISTORY

         ¶2 Fisher's home is in a planned community with recorded deed restrictions (CC&Rs). The CC&Rs require owners to maintain their property in a "clean and attractive condition." The CC&Rs provide that the failure to maintain the property in a manner satisfactory to the HOA Board will result in a notice specifying the nature of the violation and, in the event the violation is not cured within thirty days, the HOA has the right to fine the owner. The HOA sent Fisher many such notices and statements of fines being levied beginning in January 2014.

         ¶3 In November 2015, the HOA filed a complaint in superior court asserting breach of the CC&Rs and requesting an injunction after Fisher failed to keep up maintenance on her property. The HOA asserted that Fisher was using the home as a storage facility and she had allowed parts of the exterior to become broken, missing, or dilapidated. The HOA further asserted that Fisher had "excessive items within the home that can be viewed from neighboring property and/or constitute a health and safety hazard to the rest of the members in the community." It asserted that Fisher was accumulating fines at a rate of $25 per day.

         ¶4 An evidentiary hearing was scheduled to address both the monetary penalties and the ongoing maintenance violations. The HOA submitted a pretrial statement; Fisher did not. HOA officers attended the hearing with counsel; Fisher's counsel attended the hearing, but Fisher did not. The HOA presented one witness and five exhibits, including photographs of the property, a voluminous number of letters to Fisher from the HOA, a ledger of the accrued fines, and the HOA CC&Rs. The HOA did not provide the fine schedule. Fisher's counsel waived any presentation of testimony and did not introduce any evidence.

         ¶5 The trial court entered an order that stated there was no objection by Fisher to the HOA's requested exterior maintenance repairs or to the requested interior changes-namely, moving any interior items that prevent the blinds from closing properly and replacing the dilapidated blinds. On the issue of the monetary penalties, the court addressed Fisher's counsel's apparent objection that there was no written fine schedule in evidence and that the HOA had deviated from the CC&Rs' requirement that a homeowner have thirty days' notice to cure any defect before the assessment of any fines. The court's order concluded the HOA had complied with the thirty day notice requirement and that the HOA's witness had presented sufficient testimony as to the fine assessment.

         ¶6 The trial court issued a judgment in favor of the HOA. It ordered all the requested maintenance, $10, 839.70 in attorneys' fees, $3850 in penalties, and $474 in costs against Fisher. The order was signed and was issued pursuant to Arizona Rule of Civil Procedure 54(c). Fisher timely appealed.

         DISCUSSION

         ¶7 On appeal, Fisher raises two issues: (1) whether the trial court erred in issuing an injunction requiring her to make changes to the interior of her property, and (2) whether the award of penalties against Fisher ignored the express ...


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