Comanche v. Pollard

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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

COMANCHE HEIGHTS HOMEOWNERS ASSOCIATION, an Arizona
non-profit corporation, Plaintiff/Appellee,

v.

MONTE D. POLLARD, a married man, Defendant/Appellant.

No. 1 CA-CV 15-0031
FILED 4-21-2016

Appeal from the Superior Court in Maricopa County
No. CV2012-016280
The Honorable James T. Blomo, Judge

AFFIRMED

COUNSEL

The Travis Law Firm, PLC, Phoenix
By Chandler W. Travis
Counsel for Plaintiff/Appellee

Law Offices of J. Roger Wood, PLLC, Tempe
By James Roger Wood and Erin S. Iungerich
Counsel for Defendant/Appellant
 COMANCHE v. POLLARD
Decision of the Court

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.

J O N E S, Judge:

¶1 Monte Pollard appeals the trial court’s judgment awarding
Comanche Heights Homeowners Association (Comanche Heights)
injunctive relief on its claims for breach of contract. For the following
reasons, we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 Comanche Heights is a non-profit corporation that operates a
planned community in Chandler. See Ariz. Rev. Stat. (A.R.S.) § 33-1802(4)2
(defining “planned community”). Pollard owns a home in the planned
community and, by virtue of his home ownership, is a member of
Comanche Heights. See id. (providing that owners are “mandatory
members” of a planned community).

¶3 Pursuant to its rule-making authority, Comanche Heights
adopted a rule requiring that dogs remain on leashes while on common
area property. Comanche Heights sent letters to Pollard notifying him he
was in violation of the rule and requesting he keep his Labrador retriever,
Thunder, on a leash while within the common areas. However, Pollard
continued to allow Thunder onto common area property without a leash,
and Comanche Heights ultimately filed a complaint asserting breach of
contract and seeking injunctive relief.

1 “We view the facts in the light most favorable to upholding the
court’s ruling.” Bennett v. Baxter Grp., Inc., 223 Ariz. 414, 417, ¶ 2 (App.
2010) (citing Sabino Town & Country Estates Ass’n v. Carr, 186 Ariz. 146, 148
(App. 1996)).

2 Absent material changes from the relevant date, we cite a statute’s
current version.

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¶4 The parties filed cross-motions for summary judgment, and
the trial court granted Comanche Heights’ motion, in part, finding it had
the “requisite rule-making authority” to issue the leash rule. The court
denied the remainder of Comanche Heights’ motion and Pollard’s cross-
motion. After a bench trial, the court found Pollard had indeed violated the
leash rule and awarded Comanche Heights injunctive relief requiring
Pollard comply with the rule. The court also awarded Comanche Heights
$27,497.71 in attorneys’ fees and costs. Pollard timely appealed, and we
have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1),
(5)(b).

DISCUSSION

¶5 As a preliminary matter, we note that Pollard did not provide
this Court with a trial transcript. As the appellant, Pollard bears the burden
to ensure “the record on appeal contains all transcripts or other documents
necessary for us to consider the issues raised on appeal.” Baker v. Baker, 183
Ariz. 70, 73 (App. 1995); see also ARCAP 11(b)(c). In the absence of a
transcript, we “presume that the record supports the trial court’s rulings.”
Kohler v. Kohler, 211 Ariz. 106, 108 n.1, ¶ 8 (App. 2005) (citing Baker, 183 Ariz.
at 73).

I. Breach of Contract

¶6 Pollard argues the trial court “misinterpreted and misapplied
the language of the deed restrictions and related rules.” Because the
interpretation of a restrictive covenant is a matter of law, we apply de novo
review. See Coll. Book Ctrs., Inc. v. Carefree Foothills Homeowners’ Ass’n, 225
Ariz. 533, 537, ¶ 11 (App. 2010) (citing Powell v. Washburn, 211 Ariz. 553,
555-56, ¶ 8 (2006)).

¶7 When a property owner accepts a deed containing property
restrictions, the owner becomes contractually bound by those restrictions.
See Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz. 330, 333 (App.
1977) (citations omitted). Courts may enforce property restrictions by
granting injunctive relief. See Ariz. Biltmore Estates Ass’n v. Tezak, 177 Ariz.
447, 448 (App. 1993) (citing Divizio v. Kewin Enters., Inc., 136 Ariz. 476, 481
(App. 1983)). When Pollard purchased a home in the planned community,
he accepted a deed subject to property restrictions set forth in the duly
recorded “Declaration of Covenants, Conditions, Restrictions, Reservations
and Easements for Comanche Heights” (the Declaration). See A.R.S. § 33-

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1802(3) (defining “declaration” as “any instrument[], however
denominated, that establish[es] a planned community and any amendment
to th[at] instrument[]”). Pollard concedes that the restrictions contained in
the Declaration run with the land and “form a contract between the
subdivision’s property owners as a whole and the individual lot owners.”
Tezak, 177 Ariz. at 448.

¶8 The Declaration established Comanche Heights and granted
it authority to adopt rules and regulations to “restrict and govern the use of
any Common Area by any Member, Occupant or Resident.” Pursuant to
that authority, Comanche Heights adopted the leash rule.3

¶9 The trial court found that “Mr. Pollard conceded that his dog
was off leash in the common areas in violation of the HOA rules.” The court
also found that “the underlying behavior has been occurring since May
2011 and continued to take place as recently as [August 2014].” As noted,
without a trial transcript, we assume the evidence offered at trial was
sufficient to support the court’s finding of fact that Pollard repeatedly
violated the leash rule. Having established that Pollard violated the rule,
we conclude the court properly awarded Comanche Heights injunctive
relief.

¶10 Pollard urges us, however, to conclude his breach was not
material because his violation of the leash rule was de minimis. While
conceding that Comanche Heights “made its case for breach,” Pollard
argues the trial court should have weighed “the type and time duration of
that breach.” See Restatement (Second) of Contracts § 241 (1981) (listing
factors to consider in determining “whether a failure to render or to offer
performance is material”). In making his argument, Pollard relies heavily
upon this Court’s decision in Johnson v. Pointe Community Ass’n, Inc., in
which we noted that courts “afford a neutral interpretation of a [planned
community’s] declaration and ‘significant protection against overreaching’
by either homeowners or their association.” 205 Ariz. 485, 490, ¶ 25 (App.
2003) (quoting Lamden v. La Jolla Shores Clubdominium Homeowners Ass’n, 980
P.2d 940, 952 (Cal. 1999)). In the absence of a trial transcript, we have no
basis upon which to conclude Comanche Heights acted inappropriately.
And, indeed, the record reflects more than a de minimis transgression.
Evidence was apparently presented that Pollard repeatedly violated the

3 Comanche Heights’ bylaws define “common area” as “all real
property owned by Comanche Heights for the common use and enjoyment
of the Owners as defined in the Declaration.”

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rule over a three-year period, despite warnings from Comanche Heights.
We therefore conclude Comanche Heights did not overreach and the trial
court did not err in finding Pollard materially breached his contract with
Comanche Heights.

¶11 Pollard also argues the leash rule is unreasonable and
unenforceable because it contains no “temporal restrictions.” To
successfully challenge a rule in the Declaration, Pollard bears the burden of
proving Comanche Heights breached its duty “to ‘treat members fairly’ and
the duty to ‘act reasonably in the exercise of its discretionary powers
including rulemaking, enforcement, and design-control powers.’” Tierra
Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 201, ¶ 25 (App. 2007)
(quoting Restatement (Third) of Property: Servitudes § 6.13 (2000)).
Additionally, because the rule involves an exercise of discretion, Pollard
must prove the breach “‘caused, or threatens to cause, injury to the member
individually or to the interests of the common-interest community.’” Id.
(quoting Restatement (Third) of Property: Servitudes § 6.13(2)). On this
record, Pollard has not met his burden, and we cannot say the rule is
unreasonable or unenforceable.

II. Attorneys’ Fees

¶12 Pollard also argues the trial court abused its discretion in
awarding Comanche Heights attorneys’ fees. The trial court is authorized
to award reasonable attorneys’ fees to the successful party “[i]n any
contested action arising out of a contract, express or implied.” A.R.S. § 12-
341.01(A). The court has broad discretion in awarding and determining the
amount of fees under A.R.S. § 12-341.01, and we will not disturb an award
absent an abuse of that discretion. See Vortex Corp. v. Denkewicz, 235 Ariz.
551, 562, ¶ 39 (App. 2014) (citations omitted).

¶13 As noted earlier, Pollard conceded the deed restrictions
formed a contract between himself and Comanche Heights. See supra ¶ 7.
After concluding Pollard breached that contract, the trial court instructed
Comanche Heights to file an application for attorneys’ fees, which it did.
Pollard filed a cross-application for fees and costs. After reviewing the
applications, the court awarded Comanche Heights $27,497.71 in fees and
costs. It reasoned:

The Court finds that the attorneys’ fees sought by [Comanche
Heights] are a direct result of the actions of [Pollard].
[Pollard] was the only person who had the [wherewithal] to
comply with the requirements placed on all homeowners in

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the covered area. [Pollard] chose to not comply with the rules
and his efforts to resolve the matter by negotiating/
demanding that [Comanche Heights] acquiesce that there
exists an envelope around his property are not persuasive.

THE COURT FINDS that but for [Pollard’s] actions and the
choices he made, this matter would have never proceeded to
litigation much less trial. [Pollard] is now asking that his
neighbors not only pay the attorney fees for [Comanche
Heights] but also his attorney fees by somehow contending
that he was the prevailing party after the trial. The Court
finds that [Pollard’s] position is contrary to the facts, law, and
the findings of the Court.

¶14 Pollard argues the trial court erred in failing to consider that
the Declaration lacked a fee-shifting provision. A successful litigant in a
contract action, however, can recover attorneys’ fees either pursuant to the
contract or pursuant to A.R.S. § 12-341.01. See Atkinson v. Valley Nat’l Bank
of Ariz., 22 Ariz. App. 297, 301 (1974). Accordingly, the absence of a
contractual provision did not prevent Comanche Heights from recovering
fees under A.R.S. § 12-341.01.

¶15 Pollard further argues that he is the successful party.
However, Comanche Heights succeeded on its claims for both breach of
contract and injunctive relief. Therefore, the trial court did not abuse its
discretion in finding Comanche Heights was the prevailing party. See Hall
v. Read Dev., Inc., 229 Ariz. 277, 279, ¶ 7 (App. 2012) (holding a trial court
has broad discretion to determine which party was successful for purposes
of awarding attorneys’ fees).

¶16 Finally, Pollard argues the trial court failed to consider the
impact of the parties’ settlement discussions. The court’s minute entry,
however, indicates that it did consider the parties’ settlement discussions.
We therefore conclude the trial court properly exercised its discretion in
awarding Comanche Heights attorneys’ fees.

CONCLUSION

¶17 For the foregoing reasons, we affirm the judgment of the trial
court. We deny Comanche Heights’ request for attorneys’ fees on appeal
because it failed to provide a statutory basis for the request. See ARCAP
21(a)(2); Roubos v. Miller, 214 Ariz. 416, 420, ¶ 21 (2007) (noting a party’s
request for attorneys’ fees must include the statutory or contractual basis

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for the award). As the prevailing party, Comanche Heights is awarded its
costs on appeal upon compliance with ARCAP 21(b).

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