HERITAGE VILLAGE II HOMEOWNERS ASSOCIATION, Plaintiff/Appellee, Richard Weinberg, et al., Defendants/Appellees-Cross-Appellants,
John L. NORMAN; Gerry Molotsky, Intervenors/Appellants-Cross-Appellees.
[Copyrighted Material Omitted]
from the Superior Court in Maricopa County, No.
CV2014-009229, The Honorable Hugh E. Hegyi, Judge,
Retired . REVERSED IN PART, VACATED IN PART, AND
Wright, PLLC, Phoenix, By Scott A. Holcomb, David J.
Ouimette, Counsel for Plaintiff/Appellee
Young, PLC, Phoenix, By Taylor C. Young, Robert A. Mandel,
Counsel for Defendants/Appellees-Cross-Appellants
Craig, P.C., Phoenix, By Douglas C. Northup, Emily Ayn Ward,
Counsel for Intervenors/Appellants-Cross-Appellees
Judge James B. Morse Jr. delivered the opinion of the Court,
in which Judge Jon W. Thompson and Vice Chief Judge Peter B.
John L. Norman and Gerry Molotsky ("Movants")
appeal the superior courts denial of their motion to
intervene and corresponding award of attorneys fees to
Heritage Village II Homeowners Association
("Heritage") and Richard and Laine Weinberg. The
Weinbergs cross-appeal the courts partial denial of their
application for attorneys fees. The superior court denied
intervention for two reasons: (1) Movants did not seek
intervention in a timely manner, and (2) Movants ability to
protect their interests would not be impaired or impeded
because they could pursue a separate cause of action. For the
reasons set forth below, we conclude that Movants were not
untimely and that the availability of a separate cause of
action does not create a per se prohibition to intervention
of right. Accordingly, we reverse the superior courts order
denying the motion to intervene and vacate the orders
awarding fees and dismissing the lawsuit. We remand for
FACTS AND PROCEDURAL HISTORY
The Weinbergs own a home located in Heritage Village II,
which is part of the McCormick Ranch master-planned community
in Scottsdale. In July 2014, Heritage sued the Weinbergs
alleging they violated the applicable covenants, conditions,
("CC&Rs") in building their new home. The complaint
included claims for declaratory relief, breach of contract,
and breach of the duty of ...