Avalon Hills v. Lang

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

AVALON HILLS CONDOMINIUM ASSOCIATION, Plaintiff/Appellee,

v.

ROGER M. LANG, et al., Defendants/Appellants.

No. 1 CA-CV 21-0505
FILED 7-28-2022

Appeal from the Superior Court in Maricopa County
No. CV2020-051042
The Honorable Sara J. Agne, Judge

AFFIRMED

COUNSEL

McKeddie Cooley GP, Scottsdale
By Melanie C. McKeddie, Justin R. Cooley
Counsel for Defendants/Appellants

Phillips Maceyko and Battock PLLC, Scottsdale
By Kathryn A. Battock, Emily H. Mann
Counsel for Plaintiff/Appellee
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MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.

B R O W N, Judge:

¶1 Defendants Roger M. and Valeria Lang (“Langs”) appeal
from the superior court’s judgment (1) awarding damages to plaintiff
Avalon Hills Condominium Association (“Association”), and (2) finding
that the damages could be assessed against the Langs’ condominium unit.
Because the Langs have not shown the court erred, we affirm.

BACKGROUND

¶2 The Langs own Unit 270 in the Avalon Hills Condominiums
development located in Phoenix, Arizona. Unit 270 is subject to the
Condominium Declaration for the development (“Declaration”), which
authorizes the Association to enforce its terms.

¶3 In January 2020, the Association sued the Langs, alleging
several Declaration violations, including allowing (1) the accumulation of
debris on and damage to their balcony, (2) transients to sleep on the patio,
and (3) illegal activities on the premises. The Langs answered, contending
“each complaint was acted on and resolved” and the Association “had the
knowledge, authority, and ability to prevent subsequent infractions.”

¶4 The Association moved for summary judgment, but the Langs
did not respond. The superior court granted the motion and, in October
2020, entered a final judgment under Arizona Rule of Civil Procedure
(“Rule”) 54(c) (the “Original Judgment”) that (1) included a permanent
injunction directing the Langs to “bring Unit 270 into compliance with the
Declaration on or before August 31, 2020, and then to continue keeping Unit
270 in compliance;” (2) granted the Association the ability to bring Unit 270
into compliance should the Langs not do so; (3) determined that “any
monies expended” to bring Unit 270 into compliance “are, per Articles 5
and 7 of the Declaration, not only the personal obligation of [the Langs], but
also, secured by a lien against Unit 270, and treated in the same manner as
a past due Assessment as per Article 7.2.4 of the Declaration;” and (4)
awarded the Association attorneys’ fees and costs. The Langs did not

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respond to the Association’s subsequent attorneys’ fees application or
statement of costs.

¶5 Several weeks later, the Association moved to supplement the
Original Judgment, alleging the Langs were not complying with its terms.
Specifically, the Association sought to recover fees it paid to a private
security company to monitor the Langs’ unit “in an effort to abate the illegal
and nuisance causing activities caused by those occupying [the unit] and
their guests/invitees.” The Langs did not respond to that motion.

¶6 The superior court entered a supplemental judgment
awarding the private security costs and additional attorneys’ fees (the “First
Supplemental Judgment”). Consistent with the Original Judgment, the
court ordered that the private security costs “shall be the personal
obligation of [the Langs], and shall be secured by a lien against Unit 270,
and treated in the same manner as a past due Assessment as per Article
7.4.2 of the [Declaration].” The court added that the First Supplemental
Judgment’s terms “shall not replace, but rather be incorporated into the
amounts and terms awarded and entered in the [Original] Judgment.” It
also certified the First Supplemental Judgment as final under Rule 54(c).

¶7 About a month later, the Association moved for an order to
show cause and sanctions, contending the Langs had still had not complied
with the Original Judgment. The Association sought to recover additional
private security costs and attorneys’ fees. Roger Lang attended the show
cause hearing, at which the court continued the hearing and granted his
request for additional time to file a written response to the Association’s
motion. In that response, the Langs argued they did not know about the
Association’s summary judgment motion or the Original Judgment. They
also contended the Original Judgment was improper because they had
answered the Association’s complaint.

¶8 The day before oral argument, the Association filed a separate
motion asking the court to take judicial notice of an injunction against
harassment entered against Cedrick Hamilton (the “Hamilton Injunction”),
who the Association alleged was staying at the Langs’ unit. The Langs filed
a written response to that motion but did not challenge the substance of the
Hamilton Injunction. They instead argued that the Association sued in bad
faith in part because (1) Mr. Lang had “responded to every call from the
[Association]” between 2015 and 2019, and (2) the Association had not
called him at any point in 2020 about any problems. The Langs further
contended the Association gave them “no opportunity to challenge the

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claim for extra security – and no notice that security was even an issue, only
a bill afterwards.”

¶9 After taking judicial notice of the Hamilton Injunction, the
superior court granted the Association’s motion for sanctions and found the
Langs in civil contempt. In July 2021, the court entered a Second
Supplemental Judgment awarding the Association additional private
security costs and attorneys’ fees. The court stated that the Second
Supplemental Judgment would not “replace, but rather be incorporated
into” the Original Judgment and certified the Second Supplemental
Judgment under Rule 54(c). It also again ruled that the damages would be
“the personal obligation of [the Langs], and shall be secured by a lien
against Unit 270, and treated in the same manner as a past due Assessment
as per Article 7.4.2 of the [Declaration].”

¶10 The Langs appealed the Second Supplemental Judgment
“and all related findings, minute entries, rulings, orders and judgments.”1

JURISDICTION

¶11 We have an independent duty to determine whether we have
jurisdiction over an appeal. Dabrowski v. Bartlett, 246 Ariz. 504, 511, ¶ 13
(App. 2019). We must dismiss those portions of an appeal over which we
lack jurisdiction. Natale v. Natale, 234 Ariz. 507, 509, ¶ 8 (App. 2014).

¶12 The failure to timely appeal deprives us of jurisdiction to
review the superior court’s decision. Dowling v. Stapley, 221 Ariz. 251, 264,
¶ 38 n.13 (App. 2009). The Association contends the Langs cannot challenge
the Original Judgment or the First Supplemental Judgment because they
did not timely appeal either one. Relying in part on Maganas v. Northroup, 135 Ariz. 573 (1983) and In re the Gen. Adjudication of All Rights to Use Water
In Gila River Sys. & Source, 212 Ariz. 64 (2006), the Langs argue they can
challenge the Original Judgment and First Supplemental Judgment because
the Second Supplemental Judgment incorporates them by reference.
Neither of these cases hold that incorporating or referencing an earlier Rule
54(c) judgment in a later Rule 54(c) judgment or order allows an untimely
challenge to the earlier judgment.

1 After the notice of appeal was filed, Avalon Hills filed a “First
Supplemental Complaint” seeking to foreclose on its lien and impose a
personal judgment against the Langs. The Langs’ motion to dismiss the
First Supplemental Complaint, filed in March 2022, remains pending.

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¶13 Moreover, Rule 54(c) certification was not necessary for either
supplemental judgment. Both state that their terms “shall not replace, but
rather be incorporated into the amounts and terms awarded” in the
Original Judgment. Both also required the Langs to pay private security
costs the Association had incurred to date, and the Second Supplemental
Judgment also found the Langs in contempt of the Original Judgment. As
such, both were entered to enforce the Original Judgment and are “special
order[s] made after final judgment” under A.R.S. § 12-2101(A)(2). See Yee
v. Yee, 251 Ariz. 71, 75, ¶ 10 (App. 2021) (special orders made after final
judgment must “affect ‘the underlying judgment by enforcing it or staying
its execution’” (quoting Arvizu v. Fernandez, 183 Ariz. 224, 226–27 (App.
1995))); Williams v. Williams, 228 Ariz. 160, 164, ¶ 14 (App. 2011) (an
appealable special order “alters the legal rights or responsibilities of the
parties” without “need for later court action”).

¶14 Special orders entered after final judgment do not require
Rule 54(c) certification to become final and appealable. Brumett v. MGA
Home Healthcare, L.L.C., 240 Ariz. 420, 429, ¶ 15 (App. 2016). As the Langs
did not timely appeal the Original Judgment or the First Supplemental
Judgment, they cannot challenge those judgments in this appeal. To the
extent they seek to do so, this court lacks jurisdiction over such arguments.
The Langs’ notice of appeal was, however, timely as to the Second
Supplemental Judgment. We therefore consider their arguments as they
relate to the Second Supplemental Judgment.

DISCUSSION

A. Waiver

¶15 The Langs raise four issues on appeal: (1) whether the
superior court could award private security costs under the Declaration; (2)
whether the Langs were given notice and an opportunity to be heard before
the court awarded the private security costs; (3) whether the court properly
determined the private security costs could be assessed against the Langs’
unit, resulting in a lien; and (4) whether the court erred in taking judicial
notice of and relying on the Hamilton Injunction.

¶16 The Association contends the Langs waived each of these
issues by not raising them in the superior court. “Because a trial court and
opposing counsel should be afforded the opportunity to correct any
asserted defects before error may be raised on appeal, absent extraordinary
circumstances, errors not raised in the trial court cannot be raised on
appeal.” Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994). But we do not

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rigidly apply waiver; we instead may exercise discretion in determining
whether to address waived arguments. See, e.g., Azore, LLC v. Bassett, 236
Ariz. 424, 427, ¶ 7 (App. 2014).

¶17 The Langs’ only response to the Association’s waiver
argument is that they cited in their opening brief “each instance where they
argued in the trial Court that the monetary penalties the Association sought
were excessive and unreasonable.” Whether the private security costs were
excessive or unreasonable does not pertain to any of the four issues listed
above. In any event, the opening brief only cites (1) documents filed before
any private security costs were assessed, and (2) two filings in which the
Langs baldly contended the private security costs were “far in excess of any
actual damages,” “unreasonable,” and “ridiculous.”

¶18 Nonetheless, “[w]e recognize that courts prefer to decide each
case upon its merits rather than to dismiss summarily on procedural
grounds.” Adams v. Valley Nat. Bank of Ariz., 139 Ariz. 340, 342 (App. 1984).
We therefore exercise our discretion to address the merits of the Langs’
appeal.

B. Authority to Assess Private Security Costs

¶19 A recorded declaration that contains restrictive covenants
common to all properties in a development forms a contract between the
property owners as a whole and the individual owners. Johnson v. Pointe
Cmty. Ass’n, Inc., 205 Ariz. 485, 489, ¶ 23 (App. 2003). We review the
interpretation of restrictive covenants and contracts de novo. See ELM Ret.
Ctr., LP v. Callaway, 226 Ariz. 287, 290, ¶ 15 (App. 2010).

¶20 The Langs argue that only “maintenance, repair or
replacement” costs can be assessed against an owner’s unit, citing Section
5.4 of the Declaration:

If a Unit Owner fails to maintain in good condition and repair
his Unit . . . and the required maintenance, repair or
replacement is not performed within fifteen (15) days after
written notice has been given to the Unit Owner by the
Association, the Association shall have the right, but not the
obligation, to perform the required maintenance, repair or
replacement. The cost of any such maintenance, repair or
replacement shall be assessed against the nonperforming unit
Owner pursuant to Subsection 7.2.4 of this Declaration.

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But Section 7.2.4 provides that “[i]f any Common Expense is caused by the
misconduct of any Unit Owner, the Association shall assess that Common
Expense exclusively against [that] Unit.” (Emphasis added.) See A.R.S.
§ 33-1255(E) (identical language). The Declaration defines “Common
Expenses” as “expenditures made by or financial liabilities of the
Association, together with any allocations to reserves,” which is consistent
with A.R.S. § 33-1202(9).

¶21 The Langs did not dispute the Association’s evidence that it
incurred the private security costs to try to remedy the ongoing transient
problems at the Langs’ unit. Thus, it was not error to conclude that the
expenses were common expenses under Section 7.2.4. And while Section
5.4 specifically references maintenance, repair, and replacement costs, it
does not bar the Association from assessing common expenses caused by
the unit owner under Section 7.2.4. See Terrell v. Torres, 248 Ariz. 47, 50, ¶
14 (2020) (“[W]e consider a provision’s meaning in the context of the entire
contract.”). The court did not err in finding the Association could assess
the private security costs against the Langs’ unit.

C. Enforcement of Lien Rights

¶22 The Langs next contend the superior court erred in
concluding that the private security costs would be treated as a past due
assessment, thereby creating a lien in favor of the Association against the
Langs’ unit. They cite A.R.S. § 33-1256(A), which states in relevant part:

Fees, charges, late charges, monetary penalties and interest
charged pursuant to § 33-1242, subsection A, paragraphs 10,
11 and 12, other than charges for late payment of assessments,
are not enforceable as assessments under this section.

The Langs argue the private security costs are “reasonable monetary
penalties on unit owners for violations of the declaration, bylaws and rules
of the association” under A.R.S. § 33-1242(A)(11) and, therefore the
Association “has no statutory lien rights with respect to the security costs.”

¶23 As discussed above, A.R.S. § 33-1255(E) and Section 7.2.4 of
the Declaration allow common expenses caused by an owner’s misconduct
to be assessed against the owner’s unit. Section 1.2.4 defines an
“Assessment Lien” as a “lien granted to the Association by the
Condominium Act to secure the payment of Assessments, monetary
penalties and other charges owed to the Association.” And “assessments”
are defined as “the Common Expense Assessments . . . assessed against
each unit pursuant to Article 7 of this Declaration.”

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¶24 The Langs did not challenge the Association’s evidence that
these security costs were rendered necessary by the Langs’ failure to resolve
ongoing transient issues at their unit; they only claimed the costs were
“artificially created” and “far in excess of any actual damages[ ] and . . .
therefore unreasonable.” Thus, they have not shown the assessment of the
private security costs as “common expenses” violated § 33-1256(A).

D. Reasonableness of Security Costs

¶25 The Langs argue the Association “offered no proof . . . that the
security costs [awarded in the Second Supplemental Judgment] were
reasonable in relation to the violations the Association claimed existed at
the Langs’ Unit relating to improper balcony storage.” The Association’s
community manager, Sheri Dunn, provided an affidavit that the
Association “continued to receive complaints from Association members
and residents regarding . . . illegal and nuisance-causing activities of the
occupants and other transients coming and going from Units 270.” Dunn
further stated that while the Association had contracted with the Phoenix
Police Department to provide courtesy patrol services, “the occupants of
Unit 270 coordinate[d] their activities to take place when the courtesy patrol
[was] not present.” She also provided a supplemental affidavit in which
she stated that the Association brought private security back because the
“illegal and nuisance causing activities” resumed.

¶26 The Langs did not dispute any of Dunn’s testimony; they
instead blamed the Association for not calling Mr. Lang to resolve the issues
while the litigation was ongoing. They also presented no evidence to
support their contention that the private security costs were unreasonable
or excessive. Thus, the Langs have not shown that the superior court erred
in assessing the Association’s evidence supporting the private security
costs.

E. Notice and an Opportunity to be Heard

¶27 The Langs assert they were not given “the required notice and
opportunity to be heard” before the superior court entered the Second
Supplemental Judgment. But they responded to the Association’s motion
that led to the Second Supplemental Judgment. And the only “notice”
argument they asserted in that response was that Mr. Lang “rel[ied] on the
[Association] to call . . . to resolve any issues.”

¶28 The Langs’ response also reflects an incorrect belief that they
were not required to respond to any Association filings after answering the
complaint. This erroneous belief does not excuse their failure to respond to

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the Association’s earlier motions. See Flynn v. Campbell, 243 Ariz. 76, 84, ¶
25 (2017) (stating that “[i]gnorance of the law” is “not an excuse for
noncompliance with procedural rules”).

F. Second Supplemental Judgment

¶29 The Langs contend the Second Supplemental Judgment
should be set aside because it was based on the Hamilton Injunction. The
Hamilton Injunction, however, was not the only evidence the Association
offered to show the Langs had not complied with the Original Judgment,
nor was it the only evidence the superior court considered.

¶30 We also reject the Langs’ companion argument that the court
did not consider their response to the Association’s request for judicial
notice. The Langs cite the court’s erroneous statement that they did not file
written objections to the Association’s proposed form of judgment. But the
court specifically mentioned the Langs’ response in its minute entry.
Moreover, the Langs did not assert any arguments against the Association’s
judicial notice request in their response; instead, they said they “never want
to see neighbors actually hurt or frightened.”

¶31 The Langs also contend the court improperly “weighed the
affidavits submitted by the Association” against “the Langs’ testimony.”
Even assuming the arguments they raised in their responses constituted
sworn testimony, those arguments largely pertained to events between
2015 and 2019 before the Association filed suit. They offered no evidence
to show the private security fees, which the Association incurred while this
case was ongoing, were excessive or unreasonable under the circumstances.

¶32 The Langs next argue that the court could not enter civil
contempt sanctions without holding a hearing. The court held a show cause
hearing and an oral argument before finding the Langs in civil contempt in
the Second Supplemental Judgment. Mr. Lang attended both. The Langs
also filed written responses to the Association’s application and its request
that the court take judicial notice of the Hamilton Injunction.

¶33 The Langs claim they did not receive notice or an opportunity
to be heard before the Original Judgment was entered, citing Rule
65(f)(3)(B). As noted above, they did not timely appeal from the Original
Judgment. Moreover, their superior court filings reflect their erroneous
belief that they did not have to respond to any Association filings after
answering the complaint. Regardless, Rule 65(f)(3)(B) would not apply
because the Original Judgment did not hold the Langs in contempt or
impose contempt sanctions. See Ariz. R. Civ. P. 65(f).

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G. Attorneys’ Fees and Costs on Appeal

¶34 The Association requests attorneys’ fees on appeal under
Section 12.17 of the Declaration:

In the event the Declarant, the Association or any Unit Owner
employs an attorney or attorneys to enforce a lien or to collect
any amounts due from a Unit Owner or to enforce compliance
with or recover damages for any violation or noncompliance
with the condominium documents, the prevailing party in
any such action shall be entitled to recover from the other
party his reasonable attorneys’ fees incurred in the action.

Generally, we enforce a contractual attorneys’ fees provision according to
its terms. Harle v. Williams, 246 Ariz. 330, 333, ¶ 10 (App. 2019). The
Association is the prevailing party in this appeal. It therefore may recover
reasonable attorneys’ fees and taxable costs incurred in this appeal upon
compliance with ARCAP 21. See A.R.S. § 12-341.

CONCLUSION

¶35 We affirm the Second Supplemental Judgment.

AMY M. WOOD • Clerk of the Court
FILED: JT

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