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,
EDWARD A. TIMMINS, JR. and ANN M. TIMMINS, Defendants/Appellants.
from the Superior Court in Apache County No. S0100CV201600124
The Honorable C. Allan Perkins, Judge.
Candelaria Law Office, P.C., Concho By Criss E. Candelaria
Counsel for Defendants/Appellants
& Brown Law Offices, P.C., Eagar By Douglas E. Brown
Counsel for Plaintiffs/Appellees
Jennifer M. Perkins delivered the opinion of the Court, in
which Presiding Judge Diane M. Johnsen and Judge Kent E.
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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.
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.
The statutory provisions at issue here are A.R.S. §
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