Nickerson v. Danielson
| Decision Date | 30 November 2011 |
| Docket Number | No. 2 CA–CV 2010–0197.,2 CA–CV 2010–0197. |
| Citation | 228 Ariz. 309,622 Ariz. Adv. Rep. 23,265 P.3d 1108 |
| Parties | William G. NICKERSON and Regina J. Nickerson, husband and wife; Larry W. Aho and Patricia Thompson, husband and wife; Lorraine Alves, Trustee of the Alves Revocable Trust; Andrew G. Anderson and Leiann Anderson, husband and wife; Kent Jay Anderson and Trinidad Anderson, husband and wife; Sandra G. Barrett, a single woman; Dolores M. Beard and O.A. Beard, Trustees of the Beard Revocable Trust; David P. Bell and Helen R. Bell, husband and wife; Sharon M. Berg, a single woman; Donald Bjorkman and Pamela Bjorkman, husband and wife; Jack L. Blackstone and Norma Jean Blackstone, husband and wife; Gisela Branson Revocable Living Trust; Philip G. Brennan, a single man; Mary C. Brown, a single woman; Patricia Ann Byers, a single woman; Gerald Callis and M. Bunny Callis, husband and wife; Frank Carella and Edna Carella, husband and wife; Larry Cederholm, a single man; Phyllis A. Conley, a single woman; Thomas Cooke, a single man; Pamela A. Wise Currier, also known as Pamela A. Wise, solely and separately; Howard V. Danielson and Gloria M. Danielson, husband and wife; Jerry A. Doughty and Eva L. Doughty, husband and wife; Carolyn B. Eddington, a single woman; Sally A. Elliott and Charles F. Elliott, husband and wife; Robert A. Fallon and Helen L. Fallon, husband and wife; Sandra Frances, a single woman; Helen F. Gawrilow, Trustee of the Gawrilow Living Trust; Richard H. Goheen and Frankie E. Goheen; Wayne C. Granger and Winifred M. Granger Revocable Living Trust; Robert Gregory and Beverly Gregory, husband and wife; John H. Guldan, a married man in his individual capacity; Paul B. Hamm and Jane M. Hamm, husband and wife; Diane J. Handlon, a single woman; Katherina Harder, a single woman; Harvey E. Hastrup, a single man; Ronald W. Hawkins and Roberta J. Hawkins, Trustees of the Hawkins Living Trust; David D. Haynes and Alice Garn Haynes, husband and wife; Michael Jenson and Jacqueline Jensen, husband and wife; Eugene H. Keene and Alice L. Keene, husband and wife; Jane D. Killilea, a single woman; Kenneth Kime and Betty Kime, husband and wife; Albert W. Kroska and Marjorie A. Kroska, husband and wife; Barbara Lemay, a single woman; Albert D. Lepage and Sally Lepage, husband and wife; Patricia A. Ledford, a single woman; John A. Lietzke and Florice K. Lietzke, husband and wife; Justin Loveless and Carrel Eileen Loveless, husband and wife; Catherine M. Manley Revocable Trust; Fredrick W. Marine and Gloria M. Marine, husband and wife; Curtis E. Martin and Maryanne Martin, husband and wife; Ron Martinesi, a single man; Joseph McMahon and Christine McMahon, husband and wife; John B. Milland, a single man; Alan D. Mills and Carol E. Mills, husband and wife; Richard M. Oltman and Patricia E. Oltman, husband and wife; Hansi R. Patience, a single woman and her daughter Pamela P. McGonigal; Susan A. Pickrell, a single woman; Charles K. Poe, a single man; Mary F. Riina, a single woman; Gregory D. Schoenberg, a married man in his individual capacity; Peter W. Schuler and Suzanne G. Schuler, husband and wife; Eleanor G. Snyder, a single woman; Larry H. Stanford and Josy Stanford, husband and wife; Frank I. Supan and Connie L. Supan, husband and wife; Esperanza Walker, a single woman; Thomas J. Wasil, a single man; Charles Wheelock, a married man in his individual capacity; Mary L. Williams, a single woman; Sandra Zarlengo–Albers, a single woman; Leo A. Zehrer and Mary V. Zehrer, husband and wife; John Beers and Dorothy Beers, husband and wife; Roy Bevers; Marilyn Gibbs and Ivan Gibbs; John Hovey and Karen Hovey; Greg Nelson, Steve Raney, Robert Sartain; Carol Wilson and Robert Wilson, husband and wife; Helen Storm, a single woman; and Darryl L. Simmons and Kathleen M. Simmons, husband and wife, Plaintiffs/Appellants/Cross–Appellees, v. GREEN VALLEY RECREATION, INC., an Arizona corporation, Defendant/Appellee/ Cross–Appellant. |
| Court | Arizona Court of Appeals |
OPINION TEXT STARTS HERE
Law Office of Brian Laird, PLLC By Brian A. Laird, Tucson, and Weeks Law Firm, PLLC By Stephen M. Weeks, Tucson, Attorneys for Plaintiffs/Appellants/Cross–Appellees.
The Shiaras Law Firm, PC By Robert Mackenzie, Scottsdale, Attorneys for Defendant/Appellee/Cross–Appellant.
John E. Droeger, Green Valley, In Propria Persona Amicus Curiae.
¶ 1 This appeal presents a novel issue in Arizona involving the enforceability of real covenants requiring membership in a recreational association. Plaintiffs/appellants/cross-appellees, homeowners in the town of Green Valley, challenge the trial court's entry of summary judgment in favor of defendant/appellee/cross-appellant Green Valley Recreation, Inc. (GVR) in the plaintiffs' action seeking to quiet title, declaratory relief, and damages in connection with these covenants. They also challenge the court's denial of their motions for new trial and reconsideration. GVR cross-appeals from the court's denial of its request for attorney fees. We affirm for the reasons set forth below.
¶ 2 On appeal from a summary judgment, “[w]e view the facts and any inferences drawn from those facts in the light most favorable to the part[ies] against whom judgment was entered.” Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, ¶ 15, 165 P.3d 173, 177 (App.2007). In 1978, two nonprofit corporations merged to form GVR, a nonprofit corporation whose purpose, according to its articles of incorporation and bylaws, is to serve its members' recreational needs, operate and maintain recreational and social facilities, and sponsor cultural and civic activities in Green Valley. Since the merger, there have been two means by which homeowners may be members of GVR. The great majority of members own homes in subdivisions whose declarations of covenants, conditions, and restrictions (CC & Rs) require all homeowners in the development to be GVR members.
¶ 3 Other homeowners have become GVR members through private membership agreements between GVR and either the homeowner or a previous owner of the subject property. These signed membership agreements have been recorded against the signers' respective properties and refer to a separate document, the Master Deed Restriction (MDR). The MDR, which also has been recorded, makes homeowners and “their heirs, personal representatives, successors and assigns” GVR members and requires them “to pay the dues and assessments established by [GVR].” The MDR applies almost exclusively to homeowners who have membership agreements and whose homes are not within member subdivisions, although there is a small minority whose homes are subject to CC & Rs that refer to the MDR and thereby require these homeowners to maintain membership. Most of the plaintiffs in this action are members subject to the MDR.1
¶ 4 In 2000, following a vote by GVR members, GVR's board of directors amended its bylaws to impose on all members a “new member capital fee,” which, according to GVR's executive director, is assessed “to a person who purchases a property requiring GVR membership when that person has not been a GVR member within the preceding year.” The MDR was modified to reflect the change and mandated the assessment for each owner of a membership property subject to the MDR, as well as “his or her personal representatives, successors and assigns.” In January 2009 the plaintiffs sued GVR, seeking to quiet title, damages, and declaratory relief, and alleging the deed restrictions had been recorded illegally, the agreements were unconscionable and lacked mutuality of obligation, and the agreements did not create valid deed restrictions that run with the land.2 The plaintiffs also filed an application for a preliminary injunction seeking to bar GVR from initiating collection efforts or placing liens on their properties during the course of the litigation. The trial court denied the application, ruling that “the Master Deed Restriction and subject Agreement(s) are enforceable as equitable servitudes” and the plaintiffs “ha[d] not shown a strong likelihood of success on the merits.”
¶ 5 GVR subsequently filed a motion for summary judgment as to all six counts, and the plaintiffs moved for partial summary judgment on several of the counts. The trial court granted GVR's motion, agreeing with its assertion that the ruling on the preliminary injunction constituted “law of the case” and the recorded agreements therefore were valid contracts that created servitudes that run with the land. The court additionally ruled that the plaintiffs' challenge to the new-member fee was “unripe” because it was “based on [a] hypothetical future event” and, in any case, the fee was valid “[a]s a transfer fee for the purpose of building a reserve fund for the maintenance and rehabilitation of GVR facilities.” The plaintiffs filed a motion for reconsideration and a new trial, arguing the court had erred in applying the law-of-the-case doctrine, Arizona requires that servitudes touch and concern the land in order to run with the land, the new member fee violated A.R.S. § 33–442, and the MDR could not have been amended legally. The court denied the motion and also denied GVR's request for attorney fees.
¶ 6 The plaintiffs appeal from various rulings of the trial court, including its rulings on the motions for summary judgment and new trial. GVR cross-appeals from the court's denial of its request for attorney fees. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1) and 12–2101(A).
¶ 7 The entry of summary judgment is appropriate “if the pleadings, Deposition [s], answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(c)(1). “In reviewing a motion for summary judgment, we determine de novo...
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