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Baumgartner v. Timmins

Court of Appeals of Arizona, First Division

August 30, 2018

THOMAS M. BAUMGARTNER and JULIE B. BAUMGARTNER; DANIEL CROSS and CATHY CROSS; CLYDE CUMING and BETSY CUMING; GARY ENGELS and DENISE ENGELS; LARRY PUTNAM and MARTHA PUTNAM; DONALD SGAMBELLURI and PATRICIA SGAMBELLURI, Plaintiffs/Appellees,
v.
EDWARD A. TIMMINS, JR. and ANN M. TIMMINS, Defendants/Appellants.

          Appeal from the Superior Court in Apache County No. S0100CV201600124 The Honorable C. Allan Perkins, Judge.

          Criss Candelaria Law Office, P.C., Concho By Criss E. Candelaria Counsel for Defendants/Appellants

          Brown & Brown Law Offices, P.C., Eagar By Douglas E. Brown Counsel for Plaintiffs/Appellees

          Judge Jennifer M. Perkins delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.

          OPINION

          PERKINS, JUDGE.

         ¶1 Edward A. Timmins Jr. and Ann M. Timmins appeal from a judgment against them, and in favor of fourteen individual property-owner Plaintiffs. The superior court held that affidavits signed by the Timminses and recorded by Ann Timmins created encumbrances against the Plaintiffs' properties, and therefore the Timminses violated Arizona Revised Statutes ("A.R.S.") section 33-420 (2018). The affidavits alleged that the Plaintiffs' properties were in violation of neighborhood covenants, conditions, and restrictions ("CC&Rs"), but did not assert that the violations gave the Timminses or anyone else a claim or interest in the affected properties. Because the affidavits do not claim or purport to create encumbrances, they are not subject to the statute. Therefore, we reverse the judgment and direct entry of judgment in favor of the Timminses.

         FACTUAL AND PROCEDURAL HISTORY

         ¶2 Property-owner Plaintiffs and the Timminses all own real properties in the same subdivision in Apache County. While there is a voluntary homeowners association in this subdivision, as well as an Architectural Committee that considers new building plans, the record in this case does not establish whether either entity has the authority to enforce alleged CC&R violations. In 2015, the individual property-owner Plaintiffs filed a lawsuit against the Timminses, alleging violations of applicable CC&Rs, and obtained a default judgment against the Timminses.

         ¶3 In apparent response to the lawsuit and resulting default judgment, the Timminses created and signed affidavits alleging that the property-owner Plaintiffs were themselves in violation of several provisions of the CC&Rs, such as those regarding parking, on-site signs and tanks, and restrictions against commercial uses. The affidavits asserted that Plaintiffs' own violations of the CC&Rs prevented them from being able to enforce the CC&Rs against the Timminses. Ann Timmins recorded the affidavits in the Apache County Recorder's Office.

         ¶4 The property-owner Plaintiffs brought a special action in the superior court against the Timminses under A.R.S. § 33-420, and the Timminses counterclaimed, raising claims not relevant to this appeal. Plaintiffs alleged the affidavits claimed or purported to create encumbrances against their properties and were groundless because they were not authorized by any statute. Following a show-cause hearing, the superior court ruled that the affidavits created encumbrances against the Plaintiffs' properties under A.R.S. § 33-420. The court subsequently entered final judgment pursuant to Arizona Rule of Civil Procedure 54(b), nullifying the recordings and awarding damages, attorney's fees, and costs to Plaintiffs.

         ¶5 The Timminses appealed from the judgment, arguing that the affidavits were not encumbrances, the affidavits were not groundless, and the superior court's ruling failed to include sufficient findings of fact and conclusions of law as required by Arizona Rule of Civil Procedure 52.

         DISCUSSION

         ¶6 Whether the affidavits are documents subject to A.R.S. § 33- 420 is a matter of statutory interpretation, which we review de novo. Stauffer v. U.S. Bank Nat. Ass'n, 233 Ariz. 22, 25, ¶¶ 8-9 (App. 2013).

         ¶7 The statutory provisions at issue here are A.R.S. ยง 33-420(A) and (C): Plaintiffs allege that Ann Timmins violated subsection (A) by recording the affidavits and that Edward Timmins violated subsection (C) by signing and refusing ...


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