NOTICE:
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
DIVISION ONE
FILED: 06/30/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
ALLEN and CAROLYN RODGERS,
)
)
Plaintiffs/Appellants, )
)
v.
)
)
ANTHEM COMMUNITY COUNCIL, INC.,
)
)
Defendant/Appellee. )
__________________________________)
1 CA-CV 10-0539
DEPARTMENT E
MEMORANDUM DECISION
(Not for Publication Rule 28, Arizona Rules of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
by
Jonathan A. Dessaules
Douglas C. Wigley
Attorneys for Plaintiffs/Appellants
Phoenix
Meagher & Geer, P.L.L.P.
by
Thomas H. Crouch
Attorneys for Defendant/Appellee
Scottsdale
P O R T L E Y, Judge
¶1
Allen
and
of
their
dismissal
declaratory
judgment
Carolyn
Rodgers
complaint
against
(“Plaintiffs”)
seeking
the
Anthem
an
appeal
injunction
Community
the
and
Council
(“ACC”).
For the following reasons, we reverse and remand the
case for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
¶2
The ACC is a non-profit corporation which was created
and
is
governed
by
the
1999
Declaration
of
Easements for Anthem (“Master Declaration”).
Lot 2 into Anthem in 2003.
Rose
Philippine
became
Duchesne
subject
to
the
granted
the
The lot, which is owned by the St.
Roman
Master
Church
a
and
The ACC annexed
Catholic
Parish
Declaration
by
Declaration 1 between the Church and the ACC.
ACC
Covenants
variance
to
erect
a
(“Church”),
Supplemental
Subsequently, the
five
cell
phone
towers on the lot. 2
¶3
Plaintiffs
Declaration.
a
declaratory
nuisance.
own
a
home
subject
to
the
Master
They sued both the ACC and the Church, and sought
judgment,
injunctive
relief
and
damages
for
The ACC filed a motion to dismiss and successfully
asserted that Plaintiffs lacked standing to sue.
Plaintiffs
appealed, and we have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) section 12-2101(B) (2003).
1
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.”
2
The Church erected one tower but removed it after discovering
that all the necessary county building permits had not been
secured.
2
DISCUSSION
¶4
Plaintiffs argue that the trial court erred because
(1) they are beneficiaries under the declarations, (2) they have
a
statutory
cause
of
action,
and
(3)
they
have
common
law
standing.
¶5
We review de novo dismissal for failure to state a
claim.
¶
8,
Phelps Dodge Corp. v. El Paso Corp., 213 Ariz. 400, 402,
142
P.3d
708,
“dismissal
only
if
710
the
(App.
2006).
plaintiffs
would
We
will
not
affirm
the
be
entitled
to
relief under any facts susceptible of proof in the statement of
the claim.”
Mohave Disposal, Inc. v. City of Kingman, 186 Ariz.
343, 346, 922 P.2d 308, 311 (1996). 3
I.
¶6
Plaintiffs first contend that the trial court erred
when it ruled that they did not have standing to sue under the
declarations.
¶7
between
We agree.
Restrictive declarations or covenants are a “contract
the
subdivision’s
individual lot owners.”
property
owners
as
a
whole
and
Ahwatukee Custom Estates Mgmt. Ass’n,
Inc. v. Turner, 196 Ariz. 631, 634, ¶ 5, 2 P.3d 1276, 1279 (App.
3
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.
2010).
3
2000).
The
interpretation
of
a
restrictive
declaration
generally a question of law that we review de novo.
is
Burke v.
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
from
the
language
of
the
documents
in
its
entirety
purpose for which the [declarations] were created.”
and
the
Powell v.
Washburn, 211 Ariz. 553, 554, ¶ 1, 125 P.3d 373, 374 (2006).
¶8
Because
the
Supplemental
Declaration
gave
exclusive
enforcement of the declarations to the ACC and that declaration
explicitly
abrogated
the
rights
of
third
parties,
the
trial
court found that Plaintiffs did not have standing to challenge
the variance.
The provisions, however, do not bind Plaintiffs
because the Supplemental Declaration was only between the Church
and
ACC.4
the
The
Master
Declaration
does
not
have
the
additional limitations outlined in the Supplemental Declaration.
Because Plaintiffs did not sign or otherwise assent to be bound
to
the
additional
property
restrictions
in
the
Supplemental
Declaration, see Muchesko v. Muchesko, 191 Ariz. 265, 268, 955
P.2d
21,
24
(App.
1997)
(holding
that
mutual
assent
is
an
essential element of any enforceable contract), those additional
4
The
Supplemental
Declaration
is
titled
“Supplemental
Declaration of Covenants, Conditions, Restrictions and Easements
for Lot 2 of Anthem Meridian Drive.”
4
restrictions do not apply to them.
Consequently, Plaintiffs
have standing to challenge the variance. 5
II.
¶9
Plaintiffs
also
challenge
the
trial
court’s
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)
provides a
statutory
cause
of
action.
We
review
questions of statutory interpretation de novo.
underlying
Kromko v. City
of Tucson, 202 Ariz. 499, 501, ¶ 4, 47 P.3d 1137, 1139 (App.
2002).
Section 10-3304(B)(2) provides that any member 6 of a
¶10
planned
community
can
seek
an
injunction
to
challenge
any
corporate action if the corporation lacked the power to act.
The
ACC
argued
that
it
was
not
an
HOA
because
the
Master
Declaration disclaims any association status and states that the
5
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
complaint.
6
The ACC also argues that is not an HOA because, as a non-profit
corporation, it has no members.
“Member” is not defined in
Title 33.
“When the legislature has not defined a word or
phrase in a statute, we may consider the definitions of
respected dictionaries.”
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).
Plaintiffs are
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.
5
ACC is
not
“subject
to
the
Arizona
Planned
A.R.S. § 33-1801, et. seq. (1997).”
Communities
Act,
The ACC, however, is an
HOA.
¶11
An HOA is statutorily defined as:
a nonprofit corporation or unincorporated
association
of
owners
that
is
created
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
association’s
obligations
under
the
declaration.
A.R.S. § 33-1802(1) (2007).
The ACC meets this definition.
is a non-profit corporation.
It
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.
¶12
Despite
association,
the
its
attempt
statutory
to
disclaim
definition
that
is
See
controls.
it
an
Banner
Health v. Med. Sav. Ins. Co., 216 Ariz. 146, 150, ¶ 15, 163 P.3d
1096,
1100
(App.
automatically
2007)
part
(explaining
of
any
that
a
contract
valid
statute
affected
by
is
it).
Consequently, because of the ACC’s statutory status, Plaintiffs
have standing to seek to enjoin the variance.
¶13
appeal
Both
under
parties
A.R.S.
request
§
attorneys’
12-341.01
(2003).
fees
and
costs
on
Because
we
are
remanding this matter, the trial court can consider awarding
6
Plaintiffs’
conclusion
attorneys’
of
this
fees,
case.
if
We
they
will,
are
successful
however,
award
at
the
costs
on
appeal to Plaintiffs upon compliance with ARCAP 21.
CONCLUSION
¶14
For the foregoing reasons, we reverse the dismissal of
Plaintiffs’ complaint and remand for further proceedings.
/s/
________________________________
MAURICE PORTLEY, Presiding Judge
CONCURRING:
/s/
_____________________________
LAWRENCE F. WINTHROP Judge
/s/
______________________________
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
this matter.
7
