Tucson Estates Property Owners Association, an Arizona nonprofit corporation, Plaintiff/Appellant,
Estate of Ross E. Jenkins, Deceased, an unmarried man, reputed owner; Ross E. Jenkins Jr.; Patricia Boileau; and Kathryn Jenkins, Defendants/Appellees.
from the Superior Court in Pima County No. C20181637 The
Honorable Lee Ann Roads, Judge Pro Tempore
Carpenter, Hazlewood, Delgado & Bolen LLP, Tucson By
Jason E. Smith and Kaycee S. Wamsley Counsel for
Eckerstrom authored the opinion of the Court, in which
Presiding Judge Eppich and Judge Espinosa concurred.
Tucson Estates Property Owners Association
("Association") appeals from the trial court's
award of partial attorney fees and costs. The court ordered
that award after entering final default judgment in favor of
the Association. For the reasons that follow, we affirm.
and Procedural Background
"We view the facts in the light most favorable to
upholding the trial court's ruling." Hammoudeh
v. Jada, 222 Ariz. 570, ¶ 2 (App. 2009). The
Association is comprised of owners of real property within a
subdivision in Pima County. The members are subject to the
Association's Covenants, Conditions, and Restrictions
("CC & Rs").
In April 2018, the Association filed a complaint against the
estate of Ross E. Jenkins, a deceased individual who owned
property subject to the CC & Rs, as well as Jenkins's
named and unnamed heirs and devisees (collectively, the
"Estate").The Association sought judicial foreclosure
of the property to enforce an assessment lien imposed against
the property, the principal balance of which totaled $5,
367.56. The Estate never appeared or contested the
In September 2018, the Association applied for an entry of
default against the Estate. In November 2018, the Association
requested attorney fees in the amount of $3, 155.50 and costs
in the amount of $985.71. It based its claim on A.R.S. §
33-1807(H) and the CC & Rs, which provide that
the Association may collect reasonable monthly assessments
against each owner; that delinquent assessments "shall
become a lien" upon the property; and that if the
Association employs attorneys "to enforce said
lien," the property owner and other parties named in
such an action "shall pay all reasonable attorney fees
and costs incurred." The CC & Rs further specify
that "in the event the Association receives judgment
against any person for a violation or threatened
violation," it "shall also be entitled to recover
from such person reasonable legal fees and costs." The
Association filed an affidavit based on its attorneys'
billing records in support of its application.
In December 2018, after a hearing at which the Estate did not
appear, the trial court ordered default judgment in favor of
the Association, but it reduced the fee award to $1, 000. The
court also reduced the cost award to $631.26. The Association
objected and requested the court provide further detail as to
the costs and charges it found excessive or unnecessary,
which the court provided during the hearing.
Judgment was entered in December 2018. This appeal followed.
The Estate did not file a responsive brief. When an appellant
raises a debatable issue in a civil case, we may, in our
discretion, treat the failure to file an answering brief as a
confession of error. See McDowell Mountain Ranch Cmty.
Ass'n v. Simons, 216 Ariz. 266, ¶ 13 (App.
2007). "It is, however, our duty to examine the record
to determine whether there are debatable issues."
Air East, Inc. v. Wheatley, 14 Ariz.App. 290, 292
(1971). Because we agree with the Association's assertion
that the reduction of fees and costs in similar default
judgment cases is a recurring issue in our trial courts, we
exercise our discretion to decide this case on its
merits. We have jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1) and 12-2101(A)(1).
The Association argues the trial court erred by awarding only
a portion of the attorney fees and costs it requested.
Specifically, the Association asserts that, "[a]bsent an
opposing affidavit setting forth reasons why the billing rate
or hours expended are unreasonable," it "is
entitled to its attorneys' fees and costs incurred in
this matter" because it submitted a fees affidavit in
accordance with Schweiger v. China Doll Rest, Inc.,
138 Ariz. 183 (1983). The Association further argues the
court had no reasonable basis for reducing its fees by nearly
seventy percent. And, it contends the court's
determinations that some of the requested fees were excessive
"constitute clear error."
"[A]n award of attorneys' fees is left to the sound
discretion of the trial court and we will not overturn such
an award unless the trial court abused its discretion."
A. Miner Contracting, Inc. v. Toho-Tolani Cty.
Improvement Dist.,233 Ariz. 249, ¶ 40 (App. 2013).
"To find an abuse of discretion, there must either be no
evidence to support the superior court's conclusion or
the reasons given by the court must be 'clearly
untenable, legally incorrect, or amount to a denial of
justice.'" Charles I. Friedman, ...