Spanish Hills v. Wollner

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THE SPANISH HILLS CONDOMINIUMS ASSOCIATION,
Plaintiff/Appellee,

v.

ROBERT WOLLNER, Defendant/Appellant.

No. 1 CA-CV 18-0344
FILED 2-19-2019

Appeal from the Superior Court in Maricopa County
No. CV2016-090516
The Honorable David King Udall, Judge

AFFIRMED

APPEARANCES

Robert Wollner, Phoenix
Defendant/Appellant Pro Se

Maxwell & Morgan, P.C., Mesa
By Chad M. Gallacher
Counsel for Plaintiff/Appellee
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MEMORANDUM DECISION

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

M O R S E, Judge:

¶1 Appellant Robert Wollner ("Wollner") appeals the judgment
entered in favor of Spanish Hills Condominium Association ("Association")
following a bench trial on the Association's claims for judicial foreclosure.
For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The Association is a non-profit corporation whose members
are the owners of dwelling units ("Property") within the Spanish Hills
Condominiums community ("Community"). All Property within the
Community is subject to the Declaration of Horizontal Property Regime
Together with Covenants, Conditions and Restrictions for the Spanish Hills
Condominiums ("Declaration").

¶3 Between July 2014 and January 2015, Wollner failed to pay
assessments and fees owed to the Association by virtue of his ownership
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of Property within the Community subject to the Declaration.2 Wollner was
put on "auto debit" and resumed paying monthly payments in amounts
equal to the then-current months' assessments ("Assessments"). He was
notified, however, that although the Association agreed to put him on auto
pay "to pre[c]lude [his] account going further into debt," the Association
would take separate measures to collect the outstanding debt. In April
2015, after sending multiple demand letters and notices of delinquency to

1 Out of the assessments charged during this time—totaling
$1,072.00—Wollner made only one payment, which was delivered on
September 23, 2014, in the amount of $653.00.

2 Under Article V Section 1 of the Declaration, each owner of Property
within the Community "is deemed to covenant and agree to pay" to the
Association: (1) annual assessments; (2) special assessments; and (3)
supplemental assessments.

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Wollner, the Association filed and recorded a Notice of Claim of Lien and
claimed a lien ("Assessment Lien") on Wollner's Property, pursuant to the
Declaration.3 The Association claimed that as of April 22, 2015, Wollner "is
delinquent in the amount of not less than $9,133.23 in amounts secured by
the assessment lien," which does not include other amounts due to the
Association.

¶4 In January 2016, the unpaid portion of Wollner's Assessments
imposed between July 2014 and January 2015 became one-year delinquent.
In February 2016, the Association filed suit against Wollner to foreclose the
Assessment Lien against his Property pursuant to the Declaration and
Arizona Revised Statutes ("A.R.S.") section 33-1256(A).

¶5 In November 2016, a special trash collection assessment
("Special Assessment") was approved by vote of the members of the
Association, pursuant to the Declaration. Wollner challenged the Special
Assessment by filing a lawsuit, which was dismissed. As such, the Special
Assessment remained due and payable by each member of the Association.
Wollner did not pay any of the monthly installments required by the Special
Assessment.

¶6 Before trial, Wollner continued to file various motions with
the superior court asserting that he believed all Assessments and Special
Assessments had been paid. By the time the date of the trial came on March
6, 2018, the unpaid Special Assessments were more than one-year
delinquent.

¶7 At trial, the Association presented Wollner's accounting
records ("Account Summary"), which disclosed the Assessments and
Special Assessments that Wollner failed to pay. Wollner acknowledged
that the Account Summary was accurate, but he claimed that all
assessments were paid. He argued that his sister purchased his property
and thus pays the assessments "every year" and diligently pays "month
after month."

3 Under Article V Section 9 of the Declaration, "[a]ny assessment, or
any installment of an assessment, which is delinquent shall become a
continuing lien on the [Property] against which such assessment was made.
The lien shall be perfected by the recordation of a 'Notice of Claim of Lien.'
. . . Before recording a lien against any [Property] the Association shall make
a written demand for payment to the defaulting [o]wner."

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¶8 After taking the matter under advisement, the superior court
found that Wollner failed to pay all Assessments imposed between the
months of July 2014 and January 2015, and all Special Assessments imposed
beginning in November 2016. The court further found that Wollner's
delinquency secured by the Assessment Lien against his Property is
$23,489.44. Accordingly, in a later judgment, the court ordered the
Assessment Lien be foreclosed on. Wollner timely appealed. We have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶9 On appeal, we are bound by the superior court's findings of
fact unless they are clearly erroneous. FL Receivables Trust 2002-A v. Ariz.
Mills, L.L.C., 230 Ariz. 160, 166, ¶ 24 (App. 2012). "A finding of fact is not
clearly erroneous if substantial evidence supports it, even if substantial
conflicting evidence exists." Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51-52,
¶ 11 (App. 2009) (quoting Kocher v. Dep't of Revenue of Ariz., 206 Ariz. 480,
482, ¶ 9 (App. 2003)). "Evidence is substantial if it allows 'a reasonable
person to reach the trial court's result.'" Id. at 52, ¶ 11 (quoting Davis v.
Zlatos, 211 Ariz. 519, 524, ¶ 18 (App. 2005)). Furthermore, we consider
issues of statutory interpretation and the interpretation of restrictive
covenants and other contracts de novo. Ariz. Bank & Tr. v. James R. Barrons
Tr., 237 Ariz. 401, 403-04, ¶ 7 (App. 2015); Dunn v. FastMed Urgent Care PC,
245 Ariz. 35, 38, ¶ 10 (App. 2018).

¶10 Wollner raises two arguments on appeal. First, Wollner
argues that the superior court erred when it found that Wollner was more
than one-year delinquent on his monthly assessments. He asserts that his
monthly assessments were paid in full and therefore the Association could
not foreclose on his Property. Second, Wollner claims affidavits submitted
before trial contained perjury and that the Association also committed
perjury at trial. Despite the superior court's role in determining the
credibility of testimony, he asks this court to consider this claim.

I. Waiver

¶11 An appellant's opening brief must include, for each
contention, the applicable standard of appellate review with citations to
supporting legal authority and references to the record on appeal. Ariz. R.
Civ. App. P. 13(a)(7). An opening brief must also include contentions
concerning each issue, with supporting reasons for each contention. Id.; cf.
State v. Bolton, 182 Ariz. 290, 298 (1995) (finding claims waived for
insufficient argument on appeal). Here, although Wollner mentions A.R.S.

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§ 33-1256(A) in his opening brief, he does not develop his arguments, state
an applicable standard of review, cite to relevant legal authority, nor
provide any record citations. Notably, Wollner does not cite to or identify
any specific part of the record to support his claims that the superior court
erred. Instead, he offers blanket assertions, without supportive record
citations, that the assessments were paid. Because Wollner's arguments are
not sufficiently developed, he has waived his claims on appeal. See Bennett
v. Baxter Group, Inc., 223 Ariz. 414, 418, ¶ 11 (App. 2010) (holding that a
claim will be waived where it is "wholly without supporting argument or
citation to authority").

II. Foreclosure on the Assessment Lien

¶12 Even if Wollner's arguments were not waived, the superior
court correctly found that the Association could foreclose its Assessment
Lien on Wollner's Property. The Declaration and A.R.S. § 33-1256(A) both
provide authority for the Association to foreclose on an assessment lien.
Article V, Section 9 of the Declaration provides, in pertinent part, the
following:

The Association shall have the right . . . to enforce collection
of any delinquent assessments in any manner allowed by law
including . . . bringing an action to foreclose its lien against
the [Property] in the manner provided by law for the
foreclosure of a realty mortgage.

Similarly, A.R.S. § 33-1256(A) provides that a homeowner's association "has
a lien on a unit for any assessment levied against that unit from the time the
assessment becomes due." The association may foreclose on the lien "in the
same manner as a mortgage on real estate . . . if the owner has been
delinquent in the payment of monies secured by the lien . . . for a period of
one year." Id.

¶13 Wollner argues that because the superior court erred in
determining that he was delinquent in assessment payments for more than
one year, the Assessment Lien was not yet subject to foreclosure under
A.R.S. § 33-1256(A). He asserts that there was "only one assessment
payment shown in the . . . Account Summary that is unpaid" and that "[f]our
years of payments are shown as paid in full from 2014 to 2018." At trial,
however, Wollner testified that the Association's Account Summary was an
accurate accounting. The Account Summary showed Wollner was
delinquent in Assessments—from July 2014 to January 2015—for more than
one year, and delinquent in all Special Assessments starting from

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November 2016. Wollner further testified that his sister is a "millionaire[]"
and paid his "assessments year in and year out out of her bank account."
He also stated that because his sister is a "millionaire[]" she is "a little bit
particular about sending [her] account information out," which is why he
did not provide the court her bank statements showing assessment
payments.

¶14 The superior court weighed the conflicting evidence and we
must defer to those factual findings. FL Receivables Trust 2002-A, 230 Ariz.
at 166, ¶ 24. When the only evidence presented by Wollner is his
unsupported assertion that the assessments were paid, we cannot find that
the superior court committed clear error. Accordingly, under A.R.S.
§ 33-1256(A), the superior court did not err in finding that the Assessment
Lien was perfected by recordation, supra note 3, and subject to foreclosure
by the Association.

III. Perjury Claim

¶15 Wollner alleges that various individuals committed perjury in
the proceedings below, and points to affidavits submitted before and
during trial as containing perjured statements. He first asserted this claim
in a motion for reconsideration following trial. On appeal, we generally do
not consider arguments raised for the first time in a motion for
reconsideration. Evans Withycombe, Inc. v. W. Innovations, Inc., 215 Ariz. 237,
240, ¶ 15 (App. 2006). "[W]hen a new argument is raised for the first time
in a motion for reconsideration, the prevailing party below is routinely
deprived of the opportunity to fairly respond." Id. Here, the superior court
never requested a response to Wollner's motion for reconsideration but
merely denied it. The Association was therefore deprived of the
opportunity to respond to Wollner's arguments. Accordingly, we decline
to consider Wollner's perjury claim. See Ramsey v. Yavapai Family Advocacy
Ctr., 225 Ariz. 132, 137-38, ¶¶ 18, 21 (App. 2010) (declining to consider an
argument raised on appeal when the appellant only raised the issue for the
first time in a motion for reconsideration and the appellees had been
"deprived of the opportunity to respond").

IV. Attorneys' Fees and Costs

¶16 The Association requests an award of attorneys' fees and costs
incurred on appeal pursuant to the Declaration and A.R.S. §§ 12-341.01 and
33-1256. As the successful party in a matter arising under contract, we
award the Association reasonable attorneys' fees and costs incurred on

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appeal upon compliance with Arizona Rule of Civil Appellate Procedure
21.

CONCLUSION

¶17 For the foregoing reasons, we affirm the superior court's final
judgment.

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

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