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Heritage Village II Homeowners Association v. Norman

Court of Appeals of Arizona, First Division

May 21, 2019

HERITAGE VILLAGE II HOMEOWNERS ASSOCIATION, Plaintiff/Appellee, Richard Weinberg, et al., Defendants/Appellees-Cross-Appellants,
v.
John L. NORMAN; Gerry Molotsky, Intervenors/Appellants-Cross-Appellees.

          AS AMENDED 5/22/2019

Page 965

[Copyrighted Material Omitted]

Page 966

          Appeal from the Superior Court in Maricopa County, No. CV2014-009229, The Honorable Hugh E. Hegyi, Judge, Retired . REVERSED IN PART, VACATED IN PART, AND REMANDED

         Dickinson Wright, PLLC, Phoenix, By Scott A. Holcomb, David J. Ouimette, Counsel for Plaintiff/Appellee

         Mandel Young, PLC, Phoenix, By Taylor C. Young, Robert A. Mandel, Counsel for Defendants/Appellees-Cross-Appellants

         Fennemore Craig, P.C., Phoenix, By Douglas C. Northup, Emily Ayn Ward, Counsel for Intervenors/Appellants-Cross-Appellees

         Presiding Judge James B. Morse Jr. delivered the opinion of the Court, in which Judge Jon W. Thompson and Vice Chief Judge Peter B. Swann joined.

          OPINION

         MORSE, Judge:

         [¶1] John L. Norman and Gerry Molotsky ("Movants") appeal the superior court’s 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 court’s 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 court’s order denying the motion to intervene and vacate the orders awarding fees and dismissing the lawsuit. We remand for further proceedings.

          FACTS AND PROCEDURAL HISTORY

         [¶2] 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, and restrictions

Page 967

("CC&Rs") in building their new home. The complaint included claims for declaratory relief, breach of contract, and breach of the duty of ...


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