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Bocchino v. Fountain Shadows Homeowners Association

Court of Appeals of Arizona, First Division

April 3, 2018

PATRICIA BOCCHINO, Plaintiff/Appellee,

          Appeal from the Superior Court in Maricopa County No. CV2015-012434 The Honorable Douglas Gerlach, Judge

          Dessaules Law Group, Phoenix By Jonathan A. Dessaules, Ashley C. Hill Counsel for Plaintiff/Appellee

          Carpenter, Hazlewood, Delgado & Bolen, PLC, Phoenix By Chad P. Miesen, Charlene Cruz Counsel for Defendant/Appellant

          Judge John C. Gemmill [1] delivered the opinion of the Court, in which Presiding Judge Michael J. Brown and Judge Maria Elena Cruz joined.


          GEMMILL, Judge

         ¶1 Fountain Shadows Homeowners Association (the "Association") appeals from summary judgment in favor of Patricia Bocchino. We affirm the judgment requiring the Association to repay an amount of attorney fees to Bocchino. The Association was not entitled to unilaterally assess against her the attorney fees it incurred in obtaining from justice court an injunction against her, when the Association did not seek an award of attorney fees from the court and no fees were awarded by the court.


         ¶2 Bocchino previously owned a home located within the community known as Fountain Shadows. All property owners within Fountain Shadows are members of the Fountain Shadows Homeowners Association and are subject to a Declaration of Covenants, Conditions, and Restrictions (the "Declaration"). A short time after purchasing the property, Bocchino allegedly began harassing certain members of the Association board and disrupting Association meetings. Her actions prompted the Association to video record its meetings and hire an off-duty police officer to keep the peace at the meetings.

         ¶3 On December 10, 2014, tensions boiled over at an Association meeting. According to witnesses at the meeting and responding police officers, Bocchino demanded copies of certain paperwork after the meeting and refused to leave after being asked several times. According to Bocchino, after the off-duty officer present for the meeting "twisted" Bocchino's arm, she called police to have that individual prosecuted for assault. The responding officer viewed the video of the meeting and confirmed that after two people asked her to leave, the off-duty officer walked her out in an "escort hold." After "several minutes of arguing with officers on scene, " Bocchino finally left.

         ¶4 The Association and several of its leaders sought from the Manistee Justice Court an injunction against workplace harassment by Bocchino, citing Arizona Revised Statutes ("A.R.S.") section 12-1810. After an ex parte hearing without notice to Bocchino, the justice court granted the injunction. Bocchino did not thereafter contest the injunction. The Association did not ask the justice court to grant attorney fees when it sought the injunction, and the court did not award any fees. Instead, the Association assessed - directly against Bocchino in her Association account - the attorney fees it incurred ($3, 887.28) to obtain the injunction. To do so, the Association relied primarily on the following provisions in the Declaration:

Article XIII, Section 10. No noxious or offensive activity shall be carried on upon any Lot or any part of the Properties, nor shall anything be done thereupon which may be, or may become, an annoyance or nuisance to the neighborhood, or which shall in any way interfere with the quiet enjoyment of each of the Owners of his respective Townhouse, or which shall in any way increase the rate of insurance.
Article XVII, Section I. Attorneys' Fees. In the event the Association employs an attorney or attorneys to enforce the collection of any amounts due pursuant to this Declaration or in connection with any lien provided for herein, or the foreclosure thereof, or to enforce compliance with or specific performance of the terms and conditions of this Declaration, the Owner . . . against whom the action is brought shall pay all attorneys' fees . . . thereby incurred by the Association in the event the Association prevails in any such action.

          ¶5 In making the assessment, the Association reasoned that Bocchino's conduct violated Article XIII, Section 10 of the Declaration; the Association took legal action to enforce the Declaration; the Association incurred attorney fees, costs and expenses in doing so; Article XVII, Section I of the Declaration provides that the Association is entitled to recover all attorney fees, costs and expenses incurred in such an action if it prevails; and the Association prevailed by obtaining the relief it sought-the issuance of the injunction.

         ¶6 Bocchino sold her Fountain Shadows home in September 2015. Five days prior to closing, the Association notified the title company of the balance remaining on Bocchino's account, including the attorney fees. The title company withheld that ...

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