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Lakewood Cmty. Ass'n v. Orozco

ARIZONA COURT OF APPEALS DIVISION ONE
Feb 27, 2020
No. 1 CA-CV 19-0194 (Ariz. Ct. App. Feb. 27, 2020)

Opinion

No. 1 CA-CV 19-0194

02-27-2020

THE LAKEWOOD COMMUNITY ASSOCIATION, Plaintiff/Appellee, v. CLAUDIA MARIA OROZCO, Defendant/Appellant.

COUNSEL Claudia Maria Orozco, Phoenix Defendant/Appellant Maxwell & Morgan, Mesa By Chad M. Gallacher Counsel for Plaintiff/Appellee


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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2017-096011
The Honorable Janice K. Crawford, Judge

AFFIRMED

COUNSEL Claudia Maria Orozco, Phoenix
Defendant/Appellant Maxwell & Morgan, Mesa
By Chad M. Gallacher
Counsel for Plaintiff/Appellee

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Randall M. Howe and Judge Diane M. Johnsen joined. THUMMA, Judge:

¶1 Lakewood Community Association sued to foreclose an assessment lien against property owned by Claudia Maria Orozco. Lakewood sued Orozco and other defendants, including junior lienholder JP Morgan Chase Bank, N.A. Orozco filed a counterclaim that, on Lakewood's motion, the court dismissed for failure to state a claim. Orozco moved to compel discovery from Lakewood. Meanwhile, JP Morgan tendered payment satisfying Lakewood's assessment lien. Lakewood and JP Morgan then jointly moved to dismiss the complaint, which the court granted over Orozco's objection. The court denied Orozco's motion to compel as moot and because it "was not filed in accordance with the rules."

¶2 This court has jurisdiction over Orozco's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1) (2020).

Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. --------

DISCUSSION

¶3 Orozco argues: (1) there service of process was insufficient; (2) the court should not have addressed Lakewood's motion to dismiss her counterclaim without first granting her motion to compel discovery and (3) the court should not have dismissed the complaint.

¶4 Lakewood argues, with some force, that Orozco's briefs fail to comply with applicable rules, meaning she has waived her arguments. See Ariz. R. Civ. App. P. 13. Because waiver is discretionary, however, the court will address the merits of the issues Orozco raises. See City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 552 ¶ 33 n.9 (2005).

I. Orozco Has Not Shown Service of Process Was Insufficient.

¶5 Orozco argues that the service of process was insufficient because it did not provide her with "adequate time" to respond to the complaint. Although she raised this issue in her answer to the complaint, Orozco did not move to dismiss on this basis. And Orozco filed her answer almost two months after she being served, with no apparent adverse consequences. See Ariz. R. Civ. P. 12(a)(1)(A)(i). She also invoked the court's jurisdiction by asserting a counterclaim. And if service of process was insufficient, the superior court would have lacked jurisdiction, which would moot her appeal. Orozco has shown no error involving service of process.

II. The Court Did Not Err by Granting the Motion to Dismiss Orozco's Counterclaim Before Ruling on Her Motion to Compel Discovery.

¶6 Orozco argues "[t]he [c]ounterclaim was erroneously dismissed in contravention of Arizona law" because the court did not "enforce the discovery process." A motion to dismiss under Rule 12(b)(6) tests the allegations of a pleading by assuming the truth of the well-pleaded facts in the complaint before the parties engage in discovery. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 7 (2008) (citing cases). "[C]ourts look only to the pleading itself when adjudicating a Rule 12(b)(6) motion." Coleman v. City of Mesa, 230 Ariz. 352, 356 ¶ 9 (2012) (quotation omitted). Thus, no discovery was necessary or appropriate before the court ruled on Lakewood's motion to dismiss under Rule 12(b)(6).

¶7 Construing Orozco's request to compel discovery as a motion under Rule 37, the superior court found the motion did not comply with the rules. On appeal, Orozco has not shown that finding was in error. More significantly, any failure to properly provide discovery to Orozco did not, and could not, affect whether the court properly granted the motion to dismiss Orozco's counterclaims, which looked solely at the face of that pleading. Cullen, 218 Ariz. at 419 ¶ 7.

¶8 Orozco's counterclaim alleged common law fraud. A party asserting fraud must "state with particularity the circumstances constituting fraud." Ariz. R. Civ. P. 9(b). Under Arizona law, common law fraud has nine elements. Taeger v. Catholic Family & Comm. Servs., 196 Ariz. 285, 294 ¶ 28 (App. 1999). Orozco's counterclaim did not include particularized factual allegations in support of those elements. She alleged Lakewood "fraudulently and maliciously levied such arbitrary, unreasonable and capricious fines against" her, but did not identify the fines or any of the circumstances surrounding the alleged fraud. Although her complaint cited Lakewood's failure to account for three payments she alleged she made, that alone did not meet the pleading requirements under Rule 9(b). In short, Orozco has not shown how the superior court erred in granting the motion to dismiss her counterclaim.

III. Orozco Has Not Shown the Court Abused Its Discretion in Granting the Motion to Dismiss Lakewood's Complaint.

¶9 Orozco challenges the superior court's grant of the motion to dismiss Lakewood's complaint, issued after it dismissed her counterclaims. As applicable here, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Ariz. R. Civ. P. 41(a)(2). Orozco claims the order granting Lakewood and JP Morgan's motion to dismiss caused "substantial prejudice, hardship and abrogation of [her] legal rights to a just adjudication of her matter on the merits." Orozco, however, has not identified what prejudice or hardship she incurred. Orozco also does not show how she was harmed by the dismissal of the plaintiff's claims against her, nor does she show how she would have benefited if the complaint was not dismissed. On this record, she has not shown how the court abused its discretion in dismissing the complaint under Rule 41(a)(2).

IV. Attorneys' Fees on Appeal.

¶10 Lakewood requests an award of attorneys' fees and costs on appeal under the association's covenants, conditions and restrictions as well as A.R.S. §§ 12-341.01 and 33-1807. Because Lakewood is the prevailing party on appeal, it is awarded reasonable attorneys' fees and taxable costs pursuant A.R.S. §§ 12-341.01 and 33-1807. This award is contingent upon Lakewood's compliance with Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

¶11 The judgment is affirmed.


Summaries of

Lakewood Cmty. Ass'n v. Orozco

ARIZONA COURT OF APPEALS DIVISION ONE
Feb 27, 2020
No. 1 CA-CV 19-0194 (Ariz. Ct. App. Feb. 27, 2020)
Case details for

Lakewood Cmty. Ass'n v. Orozco

Case Details

Full title:THE LAKEWOOD COMMUNITY ASSOCIATION, Plaintiff/Appellee, v. CLAUDIA MARIA…

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Feb 27, 2020

Citations

No. 1 CA-CV 19-0194 (Ariz. Ct. App. Feb. 27, 2020)