Nolan v. Starlight Pines Homeowners Ass'n

• Decision Date: 09 October 2007
• Docket Number: No. 1 CA-CV 06-0572.,1 CA-CV 06-0572.
• Parties: Richard B. NOLAN and Patricia E. Nolan, husband and wife, Plaintiffs/Appellants, v. STARLIGHT PINES HOMEOWNERS ASSOCIATION, an Arizona non-profit corporation, Defendant/Appellee.
• Court: Arizona Court of Appeals

167 P.3d 1277

216 Ariz. 482

Richard B. NOLAN and Patricia E. Nolan, husband and wife, Plaintiffs/Appellants, v. STARLIGHT PINES HOMEOWNERS ASSOCIATION, an Arizona non-profit corporation, Defendant/Appellee.

No. 1 CA-CV 06-0572.

Court of Appeals of Arizona, Division 1, Department D.

October 9, 2007.

Jackson White PC, By James L. Tanner, Clint G. Goodman, Mesa, Attorneys for Plaintiffs/Appellants.

Israel & Gerity PLLC, By Kyle A. Israel, Scott A. Alles, Phoenix, Attorneys for Defendant/Appellee.

JOHNSEN, Judge.

¶ 1 Plaintiffs-Appellants Richard B. and Patricia E. Nolan appeal the trial court's entry of summary judgment in favor of Defendant-Appellee Starlight Pines Homeowners Association ("Starlight") on the Nolans' claims that by failing to make certain common areas of the Starlight Pines development accessible to Richard in his wheelchair, Starlight engaged in discrimination, breached its contract with the Nolans and created a nuisance that damaged the Nolans' property value. For the following reasons, we affirm.

BACKGROUND

¶ 2 The Nolans own two lots in the Starlight Pines subdivision located in Happy Jack: Lot 469, on which they built a home, and Lot 596, which is separated from Lot 469 by a greenbelt area.¹ The Nolans' property and the greenbelt both border the Coconino National Forest; a fence separates that property from the forest land.

¶ 3 The Nolans alleged that Starlight discriminated against Richard, who is wheelchair-bound, on the basis of his disability. They alleged that Starlight's installation of gates along the fences bordering the greenbelt areas did not allow Richard access because (1) the gate latches required the user to grasp and pull the handle up at least two inches, (2) large boulders were placed along the greenbelt paths that intersected with public roads, and (3) the surface area surrounding the gates was uneven in grade. In addition, the Nolans complained that (1) Starlight held its community meetings in a building with limited and unsuitable parking for the disabled, and that the building could only be accessed by negotiation of at least one step, (2) Starlight's communal trash collection area had an inaccessible entry and Richard could not reach the trash receptacles, and (3) Starlight's communal mailbox and bulletin board area required Richard to negotiate uneven surfaces and did not provide sufficient room to allow Richard to turn his wheelchair. The Nolans alleged that Starlight had refused to make appropriate accommodations that would allow Richard to access the greenbelts, the community center, the communal trash collection area, and the mailbox and bulletin board area (collectively, the "Common Areas").

¶ 4 The Nolans charged that Starlight had committed discriminatory housing practices in violation of the Arizona Fair Housing Act (the "FHA"), Arizona Revised Statutes ("A.R.S.") sections 41-1491 to -1491.37 (2004), by refusing to make reasonable accommodations in its rules, policies, practices or services in order to afford Richard an equal opportunity to use and enjoy the Nolans' property. The Nolans further alleged that Starlight violated the Arizonans with Disabilities Act (the "ADA"), A.R.S. §§ 41-1492 to -1492.11 (2004), and discriminated against Richard on the basis of his disability by denying him the opportunity to participate in or benefit from Starlight's goods, services, facilities, advantages, privileges and accommodations.

¶ 5 In addition, the Nolans alleged that the Declaration of Covenants, Conditions and Restrictions ("CC & Rs") recorded on the Nolans' property constituted a contract between Starlight and the Nolans and claimed that Starlight breached Article IX, Section 9.1 of the CC & Rs, which granted the Nolans the "right and easement of enjoyment" of their property, by discriminating against Richard on the basis of his disability. The Nolans also asserted that Starlight breached the implied covenant of good faith and fair dealing. Finally, the Nolans alleged that Starlight created a nuisance by installing a gate in the fence along the greenbelt bordering the Nolans' property, which they alleged dramatically increased the noise and traffic along the greenbelt, and by discriminating against Richard on the basis of his disability.

¶ 6 Starlight moved for summary judgment. After briefing, the trial court held the ADA did not apply to Starlight and dismissed the Nolans' claim for discrimination in public accommodations and services. It further ruled that Starlight was not contractually obligated by the CC & Rs to accommodate Richard's disability and had not interfered with or breached the Nolans' right and easement of enjoyment of their property. The court therefore dismissed the Nolans' claims for breach of contract and breach of the implied covenant of good faith and fair dealing. In addition, the court found that the Nolans had not presented sufficient facts to support a claim for nuisance because they had not alleged any damage to their property and because, as a matter of law, the gates did not constitute a nuisance. The court ruled, however, that the FHA applied to Starlight's maintenance of the Common Areas because these areas were "services" provided by Starlight without which the Nolans could not make full use of their property. The court therefore denied Starlight's motion for summary judgment on the Nolans' FHA claim.

¶ 7 After additional discovery, Starlight again moved for summary judgment on the Nolans' FHA claim. The trial court found that because the Nolans conceded on summary judgment they had not requested any reasonable accommodations as required by the FHA, Starlight was entitled to judgment on this claim.

¶ 8 Thereafter, the trial court denied the Nolans' motion for new trial and awarded Starlight a portion of its attorney's fees pursuant to A.R.S. § 12-341.01 (2003). The Nolans timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003).

DISCUSSION

A. General Principles.

¶ 9 A court may grant summary judgment when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(c). Summary judgment should be granted "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). If the evidence would allow "a jury to resolve a material issue in favor of either party, summary judgment is improper." United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195, 805 P.2d 1012, 1016 (App.1990).

¶ 10 In reviewing the trial court's grant of summary judgment, "we view the evidence in the light most favorable to the [Nolans,] and determine de novo whether there are any genuine issues of material fact and whether the trial court erred in its application of the law." Unique Equip. Co. v. TRW Vehicle Safety Sys., Inc., 197 Ariz. 50, 52, ¶ 5, 3 P.3d 970, 972 (App.1999).

B. The ADA Does Not Apply to the Common Areas.

¶ 11 Arizona law prohibits discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation." A.R.S. § 41-1492.02(A). For purposes of the statute, a public accommodation is defined to include, among other things, places of lodging, restaurants and bars, theaters, stadiums, concert and lecture halls, auditoriums, convention centers, museums, libraries, public transportation stations, retail establishments, service establishments, social service establishments, places of recreation and schools. A.R.S. § 41-1492(9)(a)-(l) (2004).

¶ 12 The Nolans contend the Common Areas constitute public accommodations because they are places of "public gathering" and/or "recreation." A.R.S. § 41-1492(9)(d), -(i). They first argue that because the subdivision is not gated, the mailbox and bulletin board area, trash collection area and the greenbelts are, in fact, open for public use and claim that they presented evidence that Starlight invited the public to use the community center. Starlight argues that the Common Areas are not places of public accommodation because they are not open to the public, but rather are reserved for the use of Starlight Pines homeowners and their guests.²

¶ 13 Signs posted throughout the Starlight Pines subdivision identify it as private property belonging to Starlight Pines. The absence of a gate that would prevent public access to the Common Areas, without more, does not indicate that the general public is invited to use them for purposes of the statute. As the Nolans offered no evidence that these areas are open to the public, the trial court properly ruled that the ADA does not apply to the mailbox and bulletin board and trash collection area and the greenbelts.

¶ 14 We turn next to the Nolans' argument that because Starlight held its community center open to the public, it is a public accommodation that must comply with the requirements of the ADA. In opposition to Starlight's motion for summary judgment, the Nolans submitted portions of Starlight's monthly Board Meeting minutes, which they alleged demonstrated that the community center had been the site of county meetings, various community functions and public notary services.³ The documents cited by the Nolans do not demonstrate that the community center was held open for public events. The minutes evidence that, over the course of four years, Starlight held three fundraising auctions, two sales, one highway clean-up meeting and one potluck dinner at the community center.⁴ Although it is possible that these functions were open to the general public in addition to Starlight's 600 members, the Nolans offered no evidence that any members of the general public were invited to, or attended, any of these...