THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
RUTH A. WILLINGHAM,
IN THE COURT OF APPEALS
STATE OF ARIZONA
ALLEN and CAROLYN RODGERS,
ANTHEM COMMUNITY COUNCIL, INC.,
1 CA-CV 10-0539
(Not for Publication Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2010-002792
The Honorable J. Richard Gama, Judge
REVERSED AND REMANDED
Dessaules Law Group
Jonathan A. Dessaules
Douglas C. Wigley
Attorneys for Plaintiffs/Appellants
Meagher & Geer, P.L.L.P.
Thomas H. Crouch
Attorneys for Defendant/Appellee
P O R T L E Y, Judge
For the following reasons, we reverse and remand the
case for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The ACC is a non-profit corporation which was created
Easements for Anthem (“Master Declaration”).
Lot 2 into Anthem in 2003.
The lot, which is owned by the St.
The ACC annexed
Declaration 1 between the Church and the ACC.
towers on the lot. 2
They sued both the ACC and the Church, and sought
The ACC filed a motion to dismiss and successfully
asserted that Plaintiffs lacked standing to sue.
appealed, and we have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) section 12-2101(B) (2003).
The Master Declaration defines a Supplemental Declaration as
“[a] Recorded instrument which subjects additional property to
this [Master Declaration] . . . or which imposes additional
restrictions and obligations on property within Anthem which is
not subject to an Association Declaration.”
The Church erected one tower but removed it after discovering
that all the necessary county building permits had not been
Plaintiffs argue that the trial court erred because
(1) they are beneficiaries under the declarations, (2) they have
We review de novo dismissal for failure to state a
Phelps Dodge Corp. v. El Paso Corp., 213 Ariz. 400, 402,
relief under any facts susceptible of proof in the statement of
Mohave Disposal, Inc. v. City of Kingman, 186 Ariz.
343, 346, 922 P.2d 308, 311 (1996). 3
Plaintiffs first contend that the trial court erred
when it ruled that they did not have standing to sue under the
Restrictive declarations or covenants are a “contract
individual lot owners.”
Ahwatukee Custom Estates Mgmt. Ass’n,
Inc. v. Turner, 196 Ariz. 631, 634, ¶ 5, 2 P.3d 1276, 1279 (App.
Although Plaintiffs attached pleadings in response to the
motion to dismiss, we will not treat the motion to dismiss as a
motion for summary judgment because the pleadings are public
records. See Strategic Dev. & Constr., Inc. v. 7th & Roosevelt
Partners, LLC, 224 Ariz. 60, 64, ¶ 13, 226 P.3d 1046, 1050 (App.
generally a question of law that we review de novo.
Voicestream Wireless Corp. II, 207 Ariz. 393, 395-96, ¶ 11, 87
P.3d 81, 83-84 (App. 2004).
And, we interpret such declarations
“to give effect to the intention of the parties as determined
purpose for which the [declarations] were created.”
Washburn, 211 Ariz. 553, 554, ¶ 1, 125 P.3d 373, 374 (2006).
enforcement of the declarations to the ACC and that declaration
court found that Plaintiffs did not have standing to challenge
The provisions, however, do not bind Plaintiffs
because the Supplemental Declaration was only between the Church
additional limitations outlined in the Supplemental Declaration.
Because Plaintiffs did not sign or otherwise assent to be bound
Declaration, see Muchesko v. Muchesko, 191 Ariz. 265, 268, 955
essential element of any enforceable contract), those additional
Declaration of Covenants, Conditions, Restrictions and Easements
for Lot 2 of Anthem Meridian Drive.”
restrictions do not apply to them.
have standing to challenge the variance. 5
determination that they did not have standing to sue because the
ACC is not a homeowners association (“HOA”).
They assert that
they have standing because A.R.S. § 10-3304(B)(2) (Supp. 2010)
questions of statutory interpretation de novo.
Kromko v. City
of Tucson, 202 Ariz. 499, 501, ¶ 4, 47 P.3d 1137, 1139 (App.
Section 10-3304(B)(2) provides that any member 6 of a
corporate action if the corporation lacked the power to act.
Declaration disclaims any association status and states that the
We need not address Plaintiffs’ argument that they have common
law standing. We also do not address Plaintiffs’ argument that
the trial court erred by refusing to allow them to amend their
The ACC also argues that is not an HOA because, as a non-profit
corporation, it has no members.
“Member” is not defined in
“When the legislature has not defined a word or
phrase in a statute, we may consider the definitions of
Rigel Corp. v. State, 225 Ariz. 65,
69, ¶ 19, 234 P.3d 633, 637 (App. 2010). “Member” means “[o]ne
who belongs to a group or organization.”
Webster’s II New
Riverside University Dictionary 740 (1994).
homeowners in Anthem, pay assessments to the ACC and vote to
elect the board of the ACC pursuant to the bylaws; they are
members of the ACC.
A.R.S. § 33-1801, et. seq. (1997).”
The ACC, however, is an
An HOA is statutorily defined as:
a nonprofit corporation or unincorporated
pursuant to a declaration to own and operate
portions of a planned community and that has
the power under the declaration to assess
association members to pay the costs and
expenses incurred in the performance of the
A.R.S. § 33-1802(1) (2007).
The ACC meets this definition.
is a non-profit corporation.
The Master Declaration provides
that the ACC can own and maintain property, has the power to
levy assessments against owners, and enforce liens to secure
payment for delinquent assessments.
Health v. Med. Sav. Ins. Co., 216 Ariz. 146, 150, ¶ 15, 163 P.3d
Consequently, because of the ACC’s statutory status, Plaintiffs
have standing to seek to enjoin the variance.
remanding this matter, the trial court can consider awarding
appeal to Plaintiffs upon compliance with ARCAP 21.
For the foregoing reasons, we reverse the dismissal of
Plaintiffs’ complaint and remand for further proceedings.
MAURICE PORTLEY, Presiding Judge
LAWRENCE F. WINTHROP Judge
ROGER BRODMAN, JUDGE ∗
Pursuant to Article VI, Section 3 of the Arizona Constitution,
the Arizona Supreme Court designated the Honorable Roger
Brodman, Judge of the Maricopa County Superior Court, to sit in