Duffy v. Pearson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DENNIS DUFFY and KATHLEEN DUFFY, Plaintiffs/Appellants,

v.

RONALD PEARSON and YVONNE PEARSON, Defendants/Appellees.

No. 1 CA-CV 21-0452
FILED 5-5-2022

Appeal from the Superior Court in Apache County
No. S0100CV202000157
The Honorable Garrett L. Whiting, Judge Pro Tempore

AFFIRMED

COUNSEL

Cheri L. McCracken Attorney at Law, Phoenix
By Cheri L. McCracken
Counsel for Plaintiffs/Appellants

Larson & Simpson, PLC, Lakeside
By John Salskov, Gregory J. Larson
Counsel for Defendants/Appellees
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Decision of the Court

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Vice Chief Judge David B. Gass
joined.

P A T O N, Judge:

¶1 Dennis and Kathleen Duffy (“Duffy”) appeal the entry of
judgment for Ronald and Yvonne Pearson (“Pearson”). We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The subdivision of Pinecrest Mesa, located in Nutrioso,
Arizona, is subject to Covenants, Conditions, and Restrictions (“CC&Rs”)
recorded in 1965. Pearson purchased a lot in the subdivision in August
2016, acknowledging the CC&Rs. Pearson ordered a new manufactured
home that was delivered to the lot in 2020.

¶3 Pearson hired Black Pearl Construction, LLC (“BPC”) to place
the home on the lot. BPC used concrete and cinder blocks to create a
foundation and stem wall reinforced by rebar, connecting the home to the
foundation. In October 2020, Pearson recorded an Affidavit of Affixture
certifying that the manufactured home was permanently affixed to the lot.
After inspecting the home’s slab and footing, an Apache County inspector
issued Pearson a Certificate of Occupancy.

¶4 Meanwhile, in September 2020, Duffy, who owned a lot in the
same subdivision, filed a complaint against Pearson, alleging Pearson
violated the CC&Rs by “fail[ing] to construct or assemble a permanent
residential structure on the lot” and that Pearson’s “mobile home can be
removed at any time.” Duffy requested a preliminary injunction seeking,
among other things, “[r]emoval of [the] mobile home or conversion to [a]
permanent residence complying with the requirements in the CC&Rs.”
After a hearing, the superior court denied the preliminary injunction,
noting that construction was essentially complete.

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¶5 In January 2021, Pearson filed a motion to dismiss the
complaint and asked that it be treated as a motion for summary judgment.
See Ariz. R. Civ. P. 12(d) (when a motion to dismiss includes matters outside
the pleadings, it must be converted to a motion for summary judgment).
Pearson argued that the home complied with the CC&Rs and that Duffy’s
claim was based on the incorrect notion that no foundation was constructed
under it. Duffy filed a response arguing that “a mobile home simply
surrounded by concrete” does not comply with the CC&Rs and does not
constitute a foundation.

¶6 The superior court held oral argument on Pearson’s motion,
at which time Pearson again asked the court to treat it as a motion for
summary judgment. Pearson argued that Duffy was trying to insert the
word “mobile home” into the CC&Rs where it did not exist. Duffy
contended the home violated the CC&Rs because it was attached to a
“decorative wall” rather than a foundation.

¶7 The superior court granted Pearson’s motion for summary
judgment, finding the home complied with the CC&Rs and noting the
CC&Rs did not mention or attempt to regulate “mobile” or “manufactured”
homes. See Ariz. R. Civ. P. 12(d); see also Smith v. CIGNA HealthPlan of Ariz.,
203 Ariz. 173, 176, ¶ 8 (App. 2002) (motion converted when extrinsic matters
presented and considered in the superior court’s ruling) (citation omitted).
The court later entered judgment for Pearson and awarded Pearson
attorneys’ fees and costs.

¶8 Duffy timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶9 We review a grant of summary judgment de novo and view
the evidence and reasonable inferences in the light most favorable to the
opposing party. Brookover v. Roberts Enters., 215 Ariz. 52, 55, ¶ 8 (App. 2007)
(citation omitted). We review the record and consider only evidence
presented when the superior court considered the motion. Id. (citation
omitted).

¶10 Summary judgment is warranted if the movant “shows that
there is no genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). The motion
should be granted if the facts supporting the claim have so little probative

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value given the quantum of evidence necessary, such that a reasonable
person would not concur with the proponent’s asserted conclusions. See
Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990).

¶11 On appeal, Duffy argues (1) the superior court erred in
determining Pearson’s home complied with the CC&Rs and in granting
summary judgment in Pearson’s favor and (2) improperly awarded
Pearson attorneys’ fees and costs.

I. The superior court did not err in finding the home did not
violate the CC&Rs and granting summary judgment in
Pearson’s favor.

¶12 A person who purchases property subject to CC&Rs enters a
contract with other lot owners in the subdivision. Ahwatukee Custom Ests.
Mgmt. Ass’n v. Turner, 196 Ariz. 631, 634, ¶ 5 (App. 2000) (citation omitted).
Although we are bound by the superior court’s findings of fact, absent a
determination that such findings are clearly erroneous, we review contract
interpretation de novo because it presents questions of law. Id. (citation
omitted); see ELM Ret. Ctr., LP v. Callaway, 226 Ariz. 287, 290, ¶ 15 (App.
2010) (citation omitted).

¶13 “[W]hen a restrictive covenant is unambiguous, it is enforced
so as to give effect to the intent of the parties.” Powell v. Washburn, 211 Ariz.
553, 556, ¶ 9 (2006) (citation omitted). When construing contractual
language, this court presumes “the parties intended to give the words
employed their ordinary meaning and that the language used was placed
in the contract for a specific purpose.” Tucker v. Byler, 27 Ariz. App. 704,
707 (1976) (citation omitted). This court must give effect to the
unambiguous language of a contract. Hadley v. S.W. Props., Inc., 116 Ariz.
503, 506 (1977) (citation omitted).

a. CC&R #4

¶14 Duffy argues the Pearson home violates CC&R #4, which
outlines various foundational and structural requirements. Two provisions
of CC&R #4 provide the basis for Duffy’s argument.

¶15 The first provision requires that “[a]ll buildings shall be of
new construction and shall be constructed or assembled on the lot.” Duffy
claims the home violated this requirement because it was delivered in two
pre-assembled parts and thus was not constructed or assembled on the lot.

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¶16 The CC&Rs do not define “constructed” or “assembled.”
Although Duffy and Pearson disagree on the meaning of the terms, this
does not create ambiguity. See Shanks v. Davey Tree Surgery Co., 173 Ariz.
557, 560 (App. 1992) (“The fact that the parties disagree as to the meaning
of [a contract’s] provisions, however, does not in itself create an ambiguity
in the contract.”) (citation omitted). As such, we turn to a dictionary to
determine the plain meaning of the terms. W. Corr. Grp., Inc. v. Tierney, 208
Ariz. 583, 587, ¶ 17 (App. 2004) (“To determine the plain meaning of a term,
we refer to established and widely used dictionaries.”) (citation omitted).

¶17 “Construct” is defined as “to build or form by putting
together parts; [to] frame; [to] devise.” Construct, Random House Webster’s
Unabridged Dictionary (2d ed. 2001). “Assemble” means “to put or fit
together; [to] put together the parts of.” Assemble, Webster’s, supra. Here,
delivery of the home did not complete construction because the two halves
had to be put together and the structure affixed to the foundation. The
record reflects BPC constructed or assembled the two parts of the
manufactured home after they were delivered to the lot. See Kelly v.
NationsBanc Mortg. Corp., 199 Ariz. 284, 287, ¶ 15 (App. 2000) (a party
opposing a motion for summary judgment must identify specific facts
indicating a genuine issue for trial) (citation omitted). Thus, the first
provision of CC&R #4 was met.

¶18 The second provision of CC&R #4 provides that “[m]ain
dwelling houses are to be constructed with footings and solid concrete or
cinder-block foundations.” Duffy argues the stem wall did not meet the
foundation requirements of the CC&Rs or the Apache County building
codes.

¶19 Concerning the footing requirement, nothing in CC&R #4
requires footers to be either constructed before the assembly of the home or
to be 18-inches deep, as Duffy contends. Duffy appears to rely on Apache
County building codes, but they are not incorporated by reference into the
CC&Rs. See United Cal. Bank v. Prudential Ins. Co. of Am., 140 Ariz. 238, 258
(App. 1983) (to incorporate a writing by reference, “the incorporating
instrument must clearly evidence an intent that the writing be made part of
the contract.”) (citation omitted). The CC&Rs require the home to be
constructed with footings, which the evidence shows occurred here.

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¶20 The evidence also shows the Pearson home was constructed
with a concrete or cinder-block foundation as required by CC&R #4. See
Construct, Webster’s, supra. After reviewing photographs of the lot, the
court asked Duffy’s counsel whether Duffy was disputing that the
photographs depicted concrete and concrete blocks, to which Duffy’s
counsel responded, “[w]e don’t dispute that they’re concrete or concrete
blocks. They don’t meet either the CC&R requirements or the [Apache]
[C]ounty building code for a home that is not a trailer.” Again, any
reference to the Apache County building codes is irrelevant to interpreting
the plain language of the CC&Rs. See United Cal. Bank, 140 Ariz. at 258. The
evidence shows the home has a concrete or cinder-block foundation per the
CC&R #4 requirement.

b. CC&Rs #2, #3, #5, and #9

¶21 “[A] party must timely present his legal theories to the trial
court so as to give the trial court an opportunity to rule properly.” Payne v.
Payne, 12 Ariz. App. 434, 435 (1970) (citation omitted). Arguments not
sufficiently presented below raised for the first time on appeal are waived
due to their untimeliness. Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260,
265, ¶ 15 (App. 2004) (citing Van Loan v. Van Loan, 116 Ariz. 272, 274 (1977)).
“On appeal from summary judgment, the appellant may not advance new
theories or raise new issues to secure a reversal.” Lansford v. Harris, 174
Ariz. 413, 419 (App. 1992) (citation omitted).

¶22 Duffy asserts that the home does not comply with CC&Rs #2,
#3, #5, and #9. Duffy’s complaint alleged the following:

Defendants have failed to construct or assemble a permanent
residential structure on the lot which is adjacent to Plaintiff’s
lot. Defendants’ mobile home can be removed at any time. If
Defendants are permitted to violate the CC&R’s, other mobile
homes will show up and cause additional devaluation of the
property and loss of enjoyment. The CC&R’s clearly intended
to stop the placement of mobile homes regardless of size due
to the specific requirements as set forth in paragraph 10
above.

Paragraph 10 quoted language from CC&R #4. Thus, Duffy’s allegations
were based only on alleged violations of CC&R #4. The remainder of
Duffy’s complaint merely quoted language from CC&Rs #2, #3, #5, and #9
to support this contention but failed to allege any violation of these
provisions. Because Duffy only advanced arguments regarding CC&R #4

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before the superior court, he has waived arguments relating to the other
CC&R provisions here. See Mitchell v. Gamble, 207 Ariz. 364, 369-70, ¶ 16
(App. 2004) (appellate courts have the discretion to address theories raised
for the first time on appeal) (citation omitted).

¶23 The superior court’s ruling discusses the requirements in
CC&R #4, except the issue of “setback.” CC&R #5 outlines the setback
requirements. We do not believe this brief mention supports the conclusion
that Duffy adequately raised the issue below.

¶24 Even assuming it was adequately raised below, however,
Duffy has waived any arguments relating to CC&R #5 on appeal by failing
to develop them in the briefing. See Ritchie v. Krasner, 221 Ariz. 288, 305,
¶ 62 (App. 2009) (“Opening briefs must present and address significant
arguments, supported by authority that set forth the appellant’s position on
the issue in question.”) (citation omitted). Arizona Rule of Civil Appellate
Procedure 13(a)(7)(A) requires that opening briefs contain “appropriate
references to the portions of the record on which the appellant relies.”
Duffy provides none. Specifically, Duffy’s only mention of CC&R #5 in its
opening brief is to quote the language and state in a header that “[t]he
mobile home did not comply with CC&R #5.”

II. Attorneys’ fees and costs were properly awarded to Pearson.

¶25 Reasonable attorneys’ fees and costs are available to the
successful party in a breach of contract action. A.R.S. §§ 12-341, -341.01. We
consider whether the award of attorneys’ fees was an abuse of discretion.
Orfaly, 209 Ariz. at 265, ¶ 18 (citation omitted). An award of fees is not
disturbed “if there is any reasonable basis for it.” Id. (citation and internal
quotation marks omitted).

¶26 Pearson was the prevailing party, and the superior court was
within its discretion to award attorneys’ fees and costs. We find the record
supports this decision and will not disturb it on appeal. See Charles I.
Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17 (App. 2006) (a
superior court does not abuse its discretion unless no evidence supports the
court’s conclusion or the reasons the court provides are “clearly untenable,
legally incorrect, or amount to a denial of justice.”) (citation omitted).

¶27 Pearson requests attorneys’ fees and costs on appeal under
A.R.S. §§ 12-341 and -341.01. We award Pearson attorneys’ fees and costs
upon compliance with Arizona Rule of Civil Appellate Procedure 21. See
A.R.S. § 12-341.

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CONCLUSION

¶28 We affirm.

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

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