Opinion text
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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
TRAILS AT AMBER RIDGE HOMEOWNERS ASSOCIATION, Plaintiff,
v.
GERARDO MACIAS, Defendant/Appellee.
__________________________________
MARICOPOLY LLC, Intervenor/Appellee.
__________________________________
WINDTBERG LAW PLC, et al., Appellants.
__________________________________
No. 1 CA-CV 25-0867
FILED 07-10-2026
Appeal from the Superior Court in Maricopa County
No. CV2017-092698
The Honorable Brian Kaiser, Judge Pro Tempore
VACATED
COUNSEL
Windtberg Law, PLC, Phoenix
By Marc Windtberg
Counsel for Appellants
Law Offices of Kyle A. Kinney, PLLC, Scottsdale
By Kyle A. Kinney
Counsel for Intervenor/Appellee
MACIAS, et al. v. WINDTBERG
Decision of the Court
MEMORANDUM DECISION
Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Michael J. Brown joined.
P A T O N, Judge:
¶1 Marc Windtberg and Windtberg Law, PLC (collectively “the
Windtberg parties”), appeal the superior court’s order to return $37,916.36
in excess proceeds to the Maricopa County Superior Court Clerk of Court.
For the following reasons, we vacate the order.
FACTS AND PROCEDURAL HISTORY
¶2 In May 2017, Trails at Amber Ridge Homeowners Association
(the “Association”) sought to foreclose on its lien against Gerardo Macias’s
home (the “Property”). The court foreclosed Macias’s interests in the
Property via a sheriff’s sale, which left nearly $60,000 in excess sale
proceeds (“excess proceeds”) after the Association’s lien was satisfied.
¶3 Maricopoly moved to intervene as a real party in interest to
the judicial foreclosure and asserted a claim to the excess proceeds.
Another lienholder, the Arizona Home Foreclosure Prevention Funding
Corporation (“AZ Home”), objected and argued it was entitled to the excess
proceeds.
¶4 Maricopoly filed an amended application for distribution of
the excess proceeds. After briefing and oral argument, the court found
Maricopoly was entitled to the excess proceeds. AZ Home and Macias
appealed the judgment. On appeal, we found Maricopoly was not entitled
to the excess proceeds because it did not establish it had an equitable
assignment of senior lien rights, and we vacated and remanded for further
proceedings. Ariz. Home Foreclosure Prevention Funding Corp. v. Maricopoly
LLC, No. 1 CA-CV 20-0254, 2021 WL 1098578, at *1, ¶ 1 (Ariz. App. March
23, 2021).
¶5 AZ Home applied for release of the excess proceeds in the
amount of $21,902.81, which the superior court granted. Maricopoly
appealed, and we affirmed. See Trails at Amber Ridge Homeowners Ass’n v.
Macias, No. 2 CA-CV 2022-0096, 2022 WL 10208498, at *3, ¶ 12 (Ariz. App.
Oct. 17, 2022).
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Decision of the Court
¶6 Macias then moved for release of the remaining $37,916.36 in
excess proceeds after AZ Home received its distribution. The court granted
Macias’s motion, and the remaining funds were deposited in his client trust
account with Windtberg Law, PLC. Maricopoly appealed this order as well.
¶7 We vacated the superior court’s order awarding Macias the
excess proceeds and ordered Macias to return the excess proceeds to the
clerk of court. Macias v. Maricopoly, LLC, No. 1 CA-CV 23-0624, 2024 WL
2831842, at *1, ¶ 1 (Ariz. App. June 4, 2024). In August 2024, the superior
court, responding to our mandate, ordered Macias to return the excess
proceeds, deliver the same to the clerk of court, and pay Maricopoly’s
attorneys’ fees and costs on appeal.
¶8 The next month, Maricopoly filed a motion to compel and
asked the court to set an order to show cause hearing (“OSC hearing”)
because Macias did not return the excess proceeds. Macias appeared at the
hearing and told the court that Windtberg was never his attorney and he
did not know who Windtberg was. Windtberg was not present at the OSC
hearing, so the court continued it, and ordered Maricopoly’s counsel to
personally serve Windtberg with notice of the next scheduled hearing.
Windtberg moved to withdraw as Macias’s counsel, arguing he had no
contact with Macias for over a year, and requesting to be excused from the
OSC hearing. The court denied Windtberg’s motion.
¶9 Windtberg also moved to quash the order to show cause and
vacate the finding that he failed to appear, arguing he could not appear as
“both counsel for Mr. Macias and as a witness in [the] proceeding” and that
he did not receive sufficient notice. Accordingly, the superior court issued
another minute entry, finding his failure to appear was excused because he
lacked notice.
¶10 Maricopoly then moved to join the Windtberg parties and
Rook Foreclosure Solutions, LLC (“RFS”) as necessary parties to compel
them to return the excess funds. Maricopoly argued the Windtberg parties
used the excess funds to pay their own attorneys’ fees in the amount of
$36,177.21 and pay non-lawyer RFS a “fund finder” fee of $2,500 for
soliciting Windtberg as counsel. Maricopoly argued that based on Macias’s
contingency fee agreement, the Windtberg parties were only entitled to
payment of attorneys’ fees if Macias was successful in his excess proceeds
claim, which he was not.
¶11 The court granted Maricopoly’s motion to join the Windtberg
parties and RFS, finding the motion was unopposed and ordering
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Decision of the Court
Windtberg to return $37,916.36 to the clerk of court. Windtberg then moved
to vacate the court’s order granting Maricopoly’s motion to join them,
arguing the court did not give them the opportunity to defend against
Maricopoly’s allegations, they were never summoned to appear, and no
action or claim was asserted against them.
¶12 The court held a hearing on the motion to vacate the joinder
order in September 2025. Windtberg argued joinder was not a procedurally
appropriate mechanism to assert a claim against himself and the firm. The
court responded that Windtberg received the motion, and it did not
understand why Windtberg waited until an order was entered before
responding because doing so left Maricopoly’s motion to join them
uncontested.
¶13 Windtberg further argued that he disbursed the excess
proceeds to his firm to fulfill Macias’s contractual obligation to pay
attorneys’ fees. Windtberg also contended that RFS gave him authority to
apply the excess funds to the outstanding balance owed to the firm.
¶14 After oral argument on Windtberg’s motion to vacate the
joinder order, the court found the Windtberg parties did not receive proper
notice of Maricopoly’s motion to join them, vacated its order joining them,
and ordered Windtberg to return the excess proceeds to the clerk of court.
Windtberg deposited $37,916.36 with the clerk of court to avoid being held
in contempt but appealed the order. We stayed the appeal pending entry
of the signed order, which the superior court entered in December 2025.
DISCUSSION
¶15 Because the Windtberg parties were not named in
Maricopoly’s disgorgement request, we must first examine our own
jurisdiction to consider the merits of this appeal. See Musa v. Adrian, 130
Ariz. 311, 312 (1981) (the appellate court has an independent duty to
determine whether it has jurisdiction). In general, a person who is not a
party to an action cannot appeal from its adverse findings. See ARCAP 1(d)
(limiting right of appeal to an aggrieved party). But we “ha[ve] held that a
non-party with a ‘direct, substantial[,] and immediate’ interest who ‘would
be benefitted by reversal of the judgment’ is entitled to appeal.” MCA Fin.
Grp. Ltd. v. Enter. Bank & Tr. (“MCA”), 236 Ariz. 490, 494, ¶ 8 (App. 2014).
The Windtberg parties are aggrieved non-parties with direct and
substantial interests in the superior court’s order requiring them to return
the excess proceeds. We therefore have jurisdiction to consider their appeal
under Arizona Revised Statutes (“A.R.S.”) Section 12-2101(A)(4).
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Decision of the Court
¶16 According to the Windtberg parties, the superior court lacked
jurisdiction to order them, as non-parties, to return the excess proceeds to
the clerk of court. Maricopoly responds that “[t]he [s]uperior [c]ourt simply
ordered Windtberg to pay the money he stole from his client instead of his
client . . . who no longer had the proceeds and never authorized the release
of those proceeds.” Maricopoly further contends that the superior court
“retained inherent supervisory authority” to enforce this Court’s mandate
that Windtberg return the excess proceeds. We review a superior court’s
exercise of personal jurisdiction de novo. MCA, 236 Ariz. at 493, ¶ 7.
¶17 “It is well established that a court may in the exercise of its
summary jurisdiction compel an attorney to pay over or account for
moneys or property belonging to his client.” Brown v. Superior Court, 78
Ariz. 120, 123 (1954). In Brown, the husband had paid his wife’s attorneys’
fees during the parties’ dissolution proceeding. Id. at 121-22. The question
before our supreme court was whether the superior court had jurisdiction
to order the wife’s attorney to pay the attorneys’ fees back to the husband.
Id. at 121. The court reasoned that while a court may exercise summary
jurisdiction to order an attorney to pay or account for monies belonging to
his own client, a court does not have jurisdiction to order an attorney to pay
monies to someone the attorney does not have an attorney-client
relationship with. Id. at 122-23. Because the wife’s attorney did not have
an attorney-client relationship with the husband, the superior court did not
have jurisdiction to order the wife’s attorney to disgorge payment back to
the husband. Id. at 123.
¶18 Likewise, here, we previously held that the excess proceeds
did not belong to Macias, which led to the superior court ordering Macias
to return them to the clerk of court. Macias, 2024 WL 2831842, at *1, ¶ 1.
The superior court, however, ordered Windtberg, not Macias, to “return the
excess proceeds in the amount of $37,916.36” to the clerk of court for
distribution to Maricopoly. But Windtberg did not have an attorney-client
relationship with Maricopoly, and so the superior lacked personal
jurisdiction over the Windtberg parties to order them to return the money
to Maricopoly.
¶19 Similarly, in MCA, we considered whether a court had
jurisdiction to order a third party to disgorge fees paid to it. 236 Ariz. at
492, ¶ 1. There, a lender requested a receiver be appointed when the
borrower defaulted on its loan obligations. Id. at ¶ 2. An individual
working for MCA was appointed as the receiver, but he later left the firm.
Id. at ¶¶ 3-4. When the individual filed his receivership report, the lender
objected and requested MCA disgorge the fees paid to it because the
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Decision of the Court
individual’s fees were excessive. Id. at 493, ¶ 5. MCA argued it was a non-
party who had never been joined in the lawsuit. Id. Although the
individual who worked for MCA served as the receiver, MCA itself did not
serve as the receiver. Id. The superior court nevertheless ordered MCA to
disgorge over $100,000 in fees to the lender. Id. We found the superior
court lacked jurisdiction over MCA because it was not served, did not have
a full opportunity to contest the allegations against it, and had never served
as the named receiver in the lawsuit. Id. at 495-96, ¶¶ 12, 15.
¶20 Here, Windtberg was the attorney of record for Macias. But
like appellant in MCA, he was not given proper notice of Maricopoly’s
motion to join himself and his law firm as necessary parties to the action.
And while the court initially granted Maricopoly’s motion to join
Windtberg, it later vacated its order after finding the Windtberg parties
were not given proper notice. Because the Windtberg parties lacked proper
notice of the action and were never properly joined, the superior court did
not have jurisdiction to order them to disgorge the excess funds. Given our
ruling that the superior court lacked jurisdiction to order Windtberg to
return the funds to Maricopoly, we need not resolve the other issues the
Windtberg parties raise on appeal.
¶21 Both parties request attorneys’ fees on appeal under Section
12-349. In the exercise of our discretion, we decline both parties’ requests.
As the prevailing party, the Windtberg parties are entitled to their costs on
appeal upon compliance with Arizona Rule of Civil Appellate Procedure
21(b).
CONCLUSION
¶22 For the foregoing reasons, we vacate the superior court’s
order requiring Windtberg to return $37,916.26 excess proceeds to the
Maricopa County Clerk of the Court for distribution to Maricopoly.
MATTHEW J. MARTIN • Clerk of the Court
FILED: JR
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