Anthem Parkside v. Chabrowski

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANTHEM PARKSIDE COMMUNITY ASSOCIATION, INC.,
Plaintiff/Appellant,

v.

ANNA CHABROWSKI, et al., Defendants/Appellees.

No. 1 CA-CV 22-0630
FILED 8-15-2023

Appeal from the Superior Court in Maricopa County
No. CV2020-009624
The Honorable Bradley H. Astrowsky, Judge

REMANDED

COUNSEL

Carpenter, Hazlewood, Delgado & Bolen, LLP, Tempe
By Kellie J. Callahan, Katherine J. Merolo
Counsel for Plaintiff/Appellant

Anna Chabrowski, Derek Chabrowski, Anthem
Defendants/Appellees
 ANTHEM PARKSIDE v. CHABROWSKI, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Michael S. Catlett joined.

C R U Z, Judge:

¶1 Anthem Parkside Community Association, Inc. (“Anthem”)
appeals the superior court’s order denying it attorneys’ fees after granting
it injunctive relief against Anna and Derek Chabrowski (collectively
“Chabrowski”). For the following reasons, we remand to the superior court
for an award of attorneys’ fees.

FACTUAL AND PROCEDURAL HISTORY

¶2 Chabrowski owned a home in Anthem Parkside, a planned
community. Owners of lots within the planned community are subject to
recorded deed restrictions, including a Declaration of Covenants,
Conditions and Restrictions for Anthem Parkside (“Declaration”) and the
Anthem Parkside Community Association Residential Design Guidelines
(“Guidelines”). In 2017, Anthem observed that the exterior paint on
Chabrowski’s home had fallen into disrepair in violation of the Declaration
and needed to be repainted. It sent Chabrowski multiple letters regarding
the condition of the paint, but they failed to repaint the home. In 2020,
Anthem filed suit against Chabrowski in superior court seeking injunctive
relief.

¶3 In December 2021, Anthem moved for summary judgment. It
sought its attorneys’ fees and costs incurred under the Declaration and
Arizona Revised Statutes (“A.R.S.”) section 12-341.01. The superior court
granted the motion for summary judgment. It granted Anthem injunctive
relief and ordered Chabrowski to repaint the home within forty-five days.
It awarded Anthem, as the “successful party,” costs in the amount of
$630.44. Without explanation, it awarded Anthem no attorneys’ fees.

¶4 Anthem moved for reconsideration of the denial of an award
of attorneys’ fees. The court did not rule on the motion, but later entered a
final judgment under Arizona Rule of Civil Procedure 54(c). Anthem
timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

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 ANTHEM PARKSIDE v. CHABROWSKI, et al.
Decision of the Court

DISCUSSION

¶5 On appeal, Anthem argues the superior court erred as a
matter of law by declining to award attorneys’ fees to it pursuant to the
Declaration. We review de novo the superior court’s interpretation of a fee
provision. Murphy Farrell Dev., LLLP v. Sourant, 229 Ariz. 124, 133, ¶ 31
(App. 2012).

¶6 A contractual provision for attorneys’ fees will be enforced
according to its terms. Heritage Heights Home Owners Ass’n v. Esser, 115 Ariz.
330, 333 (App. 1977). “CC & Rs constitute a contract between the
subdivision’s property owners as a whole and individual lot owners.”
Ahwatukee Custom Ests. Mgmt. Ass’n v. Turner, 196 Ariz. 631, 634, ¶ 5 (App.
2000). Unlike attorneys’ fees awarded under A.R.S. § 12-341.01(A), which
are permissive, the superior court lacks discretion to refuse to award fees
under a contractual provision. McDowell Mountain Ranch Cmty. Ass’n v.
Simons, 216 Ariz. 266, 269, ¶ 14 (App. 2007); A.R.S. § 12-341.01(A) (“This
section shall not be construed as altering, prohibiting or restricting present
or future contracts . . . that may provide for attorney fees.”).

¶7 Declaration Article XIV section 14.7 provides:

Attorneys’ Fees

In the event of an action instituted to enforce any of the
provisions contained in the Governing Documents, the party
prevailing in such action shall be entitled to recover from the
other party thereto as part of the judgment, reasonable
attorneys’ fees and costs, including administrative and lien
fees, of such suit.

Here, the superior court granted Anthem’s motion for summary judgment
and ordered Chabrowski to repaint the home. The court specifically found
Anthem was the “successful party.” It was therefore obligated to assess
attorneys’ fees and costs in favor of Anthem as the prevailing party
pursuant to the contractual Declaration. Accordingly, we remand to the
superior court for a determination of Anthem’s reasonable attorneys’ fees
upon its submission of an application for attorneys’ fees.

¶8 Anthem requests attorneys’ fees and costs on appeal pursuant
to Article XIV, Section 14.7 of the Declaration. Because it is the prevailing
party, we award Anthem its costs and reasonable attorneys’ fees upon
compliance with ARCAP 21.

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 ANTHEM PARKSIDE v. CHABROWSKI, et al.
Decision of the Court

CONCLUSION

¶9 For the foregoing reasons, we remand to the superior court
for further proceedings consistent with this decision.

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

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