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Tucson Estates Property Owners Association v. Estate of Jenkins

Court of Appeals of Arizona, Second Division

November 12, 2019

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.

          Appeal 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 Plaintiff/Appellant

          Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.



         ¶1 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.

         Factual and Procedural Background

         ¶2 "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").

         ¶3 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").[1]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.[2] The Estate never appeared or contested the Association's complaint.

         ¶4 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)[3] 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.

         ¶5 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.

         ¶6 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.[4] We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).


         ¶7 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."

         ¶8 "[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, ...

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