Publication - Rule 111(c), Rules of the Arizona Supreme Court
from the Superior Court in Maricopa County No. CV2015-051911
The Honorable John R. Hannah, Jr., Judge
& Moore PLLC, Phoenix By Jon L. Phelps, Robert M. Moore,
Shannon A. Lindner Co-Counsel for Plaintiff/Appellee
L. Barry Attorney at Law, Christiansted, Virgin Islands By
Edward L. Barry Co-Counsel for Plaintiff/Appellee
Coppersmith Brockelman, PLC, Phoenix By John E. DeWulf,
Katherine DeStefano Co-Counsel for Defendant/Appellant
& Hostetler, LLP, Orlando, Florida By Brandon T.
Crossland Co-Counsel for Defendant/Appellant
Patricia A. Orozco  delivered the opinion of the Court, in
which Presiding Judge Kenton D. Jones and Judge Jon W.
Premiere Vacation Collection Owners Association, Inc. (the
Association) appeals the superior court's rulings in
favor of Norman Zwicky. For the following reasons, we affirm
the summary judgment in favor of Zwicky enforcing his
statutory right to inspect Association records but vacate the
order modifying the protective order and directing the
Association to send a notice to its members. We remand for
further proceedings relating to the protective order.
AND PROCEDURAL BACKGROUND
The Association is an incorporated association of members
holding an interest in the Premiere Vacation Collection
timeshare plan. See Arizona Revised Statutes
(A.R.S.) section 33-2202(13) (defining timeshare plan). Zwicky
is a member of the Association.
In 2004, Zwicky paid approximately $26, 000 for his timeshare
interest. See A.R.S. § 33-2202(11) (defining
timeshare interest). After a subsidiary of Diamond Resorts
Corporation acquired a substantial portion of the timeshare
assets, Zwicky experienced a significant increase in his
annual assessments. Zwicky alleges that the high assessments
rendered his membership interest "essentially
Zwicky filed a lawsuit in superior court seeking
"judicial enforcement of his right to inspect the books
and records" of the Association pursuant to A.R.S.
§§ 10-11602, 33-2209, and common law. See
A.R.S. § 10-11602 (providing a statutory right of
inspection for members of nonprofit corporations); A.R.S.
§ 33-2209 (providing a statutory right of inspection for
members of timeshare associations). His stated purpose was to
determine whether the Association's board "acted
reasonably and in good faith in calculating and approving the
assessments in question."
In response to discovery, the Association produced some
documents. After reviewing the documents, Zwicky's
counsel determined they were insufficient to "clearly
ascertain and verify the basis for calculating Mr.
Zwicky's annual assessments." Accordingly, Zwicky
moved for summary judgment seeking inspection of additional
documents. The Association cross-moved for summary judgment
asserting that it had already provided the documents
requested in the complaint and all documents to which Zwicky
was entitled under A.R.S. § 33-2209.
Following oral argument on the cross-motions, the superior
court granted summary judgment in favor of Zwicky. In a
subsequent ruling, the court specified the documents Zwicky
could inspect and issued a protective order stating they
"shall be maintained in confidence" and disclosed
only to Zwicky, his attorneys, accountants, and experts.
Thereafter, the Association produced more than one thousand
pages of documents, designating some as "confidential,
" claiming they contained "sensitive personal
information, personnel records, trade secrets, proprietary
business information, or other confidential research,
development, financial, or commercial information."
After reviewing the documents produced, Zwicky moved to
modify the protective order. He explained that the documents
revealed a good faith basis for a federal class action
lawsuit, and asked the superior court to permit him to
"quot[e], refer to, or otherwise utiliz[e]" the
documents in his proposed lawsuit. At the same time, Zwicky
moved for an order requiring the Association to send a letter
or notice to Association members informing them that the
Association was under court order to produce records in
conjunction with Zwicky's lawsuit.
After oral argument, the superior court granted Zwicky's
motion and modified its prior order to authorize Zwicky and
his attorneys to use the documents produced by the
Association "in a complaint or other court filing in the
proposed class action litigation." The court also
ordered the Association to send a Notice of Court Order
(Notice) to timeshare members, pursuant to A.R.S. §
33-2210, advising them of the document production and
providing them with contact information for Zwicky's
Thereafter, the superior court entered final judgment, and
the Association timely appealed. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1) and
The Association first argues the superior court erred in
entering summary judgment on Zwicky's claim to inspect
its documents. We review the court's grant of summary
judgment de novo. See Price v. City of Mesa, 236
Ariz. 267, 269, ¶ 7 (App. 2014). We also review