LOPRESTO v. WIGWAM

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KEVIN LOPRESTO, et al., Plaintiffs/Appellees,

v.

WIGWAM CREEK SOUTH COMMUNITY ASSOCIATION,
Defendant/Appellant.

No. 1 CA-CV 25-1052
FILED 09-25-2026

Appeal from the Superior Court in Maricopa County
No. CV2025-013626
The Honorable Christopher Whitten, Judge

AFFIRMED

COUNSEL

Sacks Tierney P.A., Scottsdale
By Christopher D. Lonn, Natalie Zarasian
Counsel for Defendant/Appellant

Dessaules Law Group, Phoenix
By Jonathan A. Dessaules, F. Robert Connelly
Counsel for Plaintiffs/Appellees

LOPRESTO, et al. v. WIGWAM
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in
which Judge Brian Y. Furuya and Judge D. Andrew Gaona joined.

P E R K I N S, Judge:

¶1 Wigwam Creek South Community Association dba Wigwam
Creek South Homeowners Association (the “HOA”) appeals the superior
court’s denial of its Motion to Compel Arbitration. For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Kevin and Jennifer LoPresto (the “LoPrestos”) live in the
planned community of Wigwam Creek South, which is managed by the
HOA and operates under a Declaration of Covenants, Conditions and
Restrictions (the “Declaration”). In November 2024, the LoPrestos
submitted a formal request to replace their single gate with a double gate
so “their disabled son [could] park his golf cart in the backyard.” The HOA
denied this request. The LoPrestos challenged the denial, but the HOA
upheld its decision.

¶3 In April 2025, the LoPrestos sued the HOA alleging breach of
contract and breach of the covenant of good faith and fair dealing. They
argued the HOA violated the Declaration by failing to “enforce the rules
and regulations . . . fairly, impartially, and without selective enforcement.”

¶4 The HOA moved to compel arbitration of the LoPrestos’
claims based on arbitration clauses in both the Declaration and a related
document, the Wigwam Creek South Community Association Guidelines
for Community Living (the “Guidelines”). The superior court denied the
motion and the HOA sought clarification and reconsideration. The superior
court clarified, in part, its earlier order but did not reconsider its denial.

¶5 The HOA timely appealed and we have jurisdiction. A.R.S.
§ 12-2101.01(A)(1).

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LOPRESTO, et al. v. WIGWAM
Decision of the Court

DISCUSSION

¶6 We review the denial of a motion to compel arbitration de
novo. Sun Valley Ranch 308 Ltd. P’ship ex rel. Englewood Props., Inc. v. Robson, 231 Ariz. 287, 291 ¶ 9 (App. 2012). “[W]e must defer, absent clear error, to
the factual findings upon which the trial court’s conclusions are based.”
Harrington v. Pulte Home Corp., 211 Ariz. 241, 246–47 ¶ 16 (App. 2005).

I. The Arbitration Clause in the Declaration is Unenforceable.

¶7 Restrictive covenants in deeds are contracts. Saguaro
Highlands Com’ty Ass’n v. Biltis, 224 Ariz. 294, 296 ¶ 6 (App. 2010). Arizona
law favors arbitration as an inexpensive and speedy resolution of matters.
Id. A written arbitration agreement is valid and enforceable under Arizona
law. A.R.S. § 12-3006. But we will not enforce an arbitration agreement that
is substantively unconscionable. Clark v. Renaissance West, 232 Ariz. 510, 512
¶ 8 (App. 2013). A unilateral arbitration provision lacks mutuality and is
thus substantively unconscionable. See Stevens/Leinweber/Sullens, Inc. v.
Holm Dev. and Mgmt., Inc., 165 Ariz. 25, 30 (App. 1990). The HOA makes no
attempt to distinguish Stevens—in fact, it does not cite that binding decision
at all.

¶8 Here, the Declaration contained a unilateral arbitration
provision. While subsection 12.8.2 mandates arbitration of claims brought
by parties bound by the Declaration, subsection 12.8.1(a) exempts the HOA
from that mandate. And subsection 4.2 authorizes the HOA to enforce
compliance with the Declaration through the courts.

¶9 The superior court did not err when it held the arbitration
provision in the Declaration substantively unconscionable and thus
unenforceable.

II. The Arbitration Provision in the Guidelines is Unenforceable.

¶10 The HOA argues that the Guidelines contain a separate, more
specific arbitration provision (“Section V”) that both applies to the
LoPrestos’ claims and is not unconscionable. Thus, the HOA contends, the
superior court erred by failing to enforce arbitration under Section V,
notwithstanding any infirmity in the Declaration’s arbitration provision.

¶11 The superior court, in clarifying its initial denial ruling,
determined the HOA failed to demonstrate Section V was “part of the
original, owner-approved regime or that it is consistent with the ADR
provisions of the Declaration.” And if Section V is not consistent with the

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LOPRESTO, et al. v. WIGWAM
Decision of the Court

Declaration’s provision, the court concluded the committee that adopted
Section V exceeded its authority. The HOA disagrees with both rulings, but
we need not address these concerns. Even assuming the HOA successfully
established that Section V was validly enacted at the same time as the
Declaration, the superior court correctly found that Section V is
unenforceable.

¶12 Section V applies when “any Owner has a dispute” (emphasis
added) with the HOA. Not vice versa. Section V requires owners to submit
to binding arbitration but does not purport to apply to disputes initiated by
the HOA. Section V is unilateral and rendered thereby unconscionable and
unenforceable for the same reason that the Declaration’s provision is
unenforceable. The superior court did not err in denying the HOA’s request
for reconsideration of its earlier denial ruling.

III. Attorney Fees and Costs on Appeal

¶13 The LoPrestos request attorney fees and costs on appeal
under Sections 12-341.01 and -342. Because this action arose out of contract
and the LoPrestos are the successful party, we award the LoPrestos their
reasonable attorney fees and taxable costs on appeal upon their compliance
with ARCAP 21. A.R.S. §§ 12-341.01(A), -342.

CONCLUSION

¶14 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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