Opinion
No. 2 CA-CV 2018-0142
11-22-2019
MAGIC RANCH ESTATES HOMEOWNERS ASSOCIATION, AN ARIZONA NON-PROFIT CORPORATION, Plaintiff/Counterdefendant/Appellee, v. EVERETT HUFFMAN, AN UNMARRIED MAN, Defendant/Counterclaimant/Appellant.
COUNSEL Hill, Hall & DeCiancio PLC, Phoenix By R. Corey Hill, Ginette M. Hill, and Christopher Robbins Counsel for Plaintiff/Counterdefendant/Appellee Everett Huffman, Florence In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pinal County
No. CV201501738
The Honorable Stephen F. McCarville, Judge
The Honorable Kevin D. White, Judge
The Honorable Robert Carter Olson, Judge
The Honorable Joseph R. Georgini, Judge
AFFIRMED IN PART; APPEAL DISMISSED IN PART
COUNSEL Hill, Hall & DeCiancio PLC, Phoenix
By R. Corey Hill, Ginette M. Hill, and Christopher Robbins
Counsel for Plaintiff/Counterdefendant/Appellee Everett Huffman, Florence
In Propria Persona
MEMORANDUM DECISION
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Chief Judge:
¶1 In this breach-of-contract action brought by Magic Ranch Estates Homeowners Association, homeowner Everett Huffman appeals the trial court's various rulings, including the denial of his motion for summary judgment and the award of attorney fees and costs to Magic Ranch. For the reasons stated below, we affirm in part and dismiss for lack of jurisdiction in part.
As a self-represented party on appeal, Huffman will be held to the same standards as an attorney and entitled to no special consideration due to his pro se status. See Flynn v. Campbell, 243 Ariz. 76, ¶ 24 (2017).
Facts and Procedural Background
¶2 In September 2015, Magic Ranch filed a civil action against Huffman, asserting a breach-of-contract claim and requesting injunctive relief based on Huffman's alleged violations of the association's "Declaration of Covenants, Conditions, and Restrictions" ("CC&Rs"). Specifically, Magic Ranch alleged that Huffman had failed to properly store his car, failed to clean oil stains on his driveway, refused to repaint his home, and inappropriately installed a "makeshift electrical device" on his roof. In January 2016, Huffman filed an answer and counterclaim, denying the allegations in the complaint and alleging intentional infliction of emotional distress by Magic Ranch. He claimed, in part, that Magic Ranch interfered with his enjoyment of his property when it encouraged another person to run for the HOA board of directors. In reply, Magic Ranch noted Huffman's answer and counterclaim were not verified, and argued it was thus "entitled to judgment as a matter of law," and further requested attorney fees pursuant to Rule 11(c), Ariz. R. Civ. P., and A.R.S. § 12-349.
¶3 At an evidentiary hearing in April 2016, on the association's request for a preliminary injunction, the trial court addressed the breach-of-contract claims, finding Huffman's house needed to be repainted, he was repairing his vehicle in the driveway, and his driveway was stained, in violation of the CC&Rs. The court also found Magic Ranch had failed to provide Huffman notice to remove the electrical device from his home and would need to provide notice before any enforcement action could be taken. The court ordered Huffman to remove his vehicle from the driveway of his residence and to clean the stains on his driveway. After the court's ruling, Magic Ranch filed an application and affidavit for attorney fees, as well as a motion to dismiss Huffman's counterclaim. Huffman objected to both. In May 2016, the court heard oral argument only on the issue of attorney fees, which it subsequently granted.
¶4 Huffman appealed the trial court's April and May 2016 injunction and attorney fees rulings. He also filed an "Affidavit of Prejudice" in the court against the assigned judge, Judge McCarville, which the court treated as a request for change of judge for cause. Huffman's request for change of judge was denied by Judge White, who referred the case back to Judge McCarville. Huffman's appeal was dismissed by this court because there was no final judgment as defined by Rule 54(a), Ariz. R. Civ. P., and we explained that the trial court's Rule 54(b) certification of the May 2016 hearing was improper.
We presume that because the motion for change of judge was asserted against Judge McCarville, the presiding judge of the superior court, it was referred to Judge White as his designee. See Ariz. R. Civ. P. 42.2(a), (e).
¶5 In October 2016, Magic Ranch filed a motion for partial summary judgment concerning the penalty assessments for Huffman's violations, attorney fees, and costs related to the breach of contract claims and request for injunctive relief. Huffman responded that summary judgment was improper because "many" material factual issues remain. In December 2016, the trial court granted, in part, Magic Ranch's motion for partial summary judgment, and later resolved the outstanding penalty-assessment issue in a March 2017 partial final order.
¶6 Additionally, in February 2017, the trial court granted, in part, Magic Ranch's motion to dismiss Huffman's counterclaim. The court dismissed his claims relating to the CC&R violations alleged by Magic Ranch. But the court granted Huffman leave to amend his counterclaim as it related to his remaining allegations. In October 2017, after reviewing Huffman's amended counterclaim, the court granted Magic Ranch's motion to dismiss. It ruled the amended counterclaim generally was procedurally deficient, "improperly interject[ed] completely new factual allegations," and "fail[ed] to state an actionable claim."
¶7 In December 2017, Huffman filed a motion for summary judgment, alleging Magic Ranch had failed to notify a board member when it "file[d] this suit against [him]," and to follow its written policy and A.R.S. § 33-1803 for providing Huffman with a hearing as required by the CC&Rs. The trial court issued its under-advisement ruling, denying Huffman's motion for summary judgment, granting Magic Ranch attorney fees and costs, and finding all other matters moot. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Breach-of-Contract Claims
¶8 Huffman argues the trial court erred by finding that he violated the CC&Rs by working on his vehicle, that he had failed to remove the oil stains from his driveway, and refused to paint his house. These issues, however, are moot.
¶9 "A decision becomes moot for purposes of appeal where as a result of a change of circumstances before the appellate decision, action by the reviewing court would have no effect on the parties." Bank of New York Mellon v. De Meo, 227 Ariz. 192, ¶ 8 (App. 2011) (quoting Vinson v. Marton & Assocs., 159 Ariz. 1, 4 (App. 1988)); see also Flores v. Cooper Tire & Rubber Co., 218 Ariz. 52, ¶ 24 (App. 2008). Arizona courts typically decline to consider moot or abstract questions as a matter of judicial restraint. See Fraternal Order of Police Lodge 2 v. Phx. Emp. Relations Bd., 133 Ariz. 126, 127 (1982). In other words, "[i]t is not an appellate court's function to declare principles of law which cannot have any practical effect in settling the rights of litigants." Kondaur Capital Corp. v. Pinal County, 235 Ariz. 189, ¶ 8 (App. 2014) (quoting Progressive Specialty Ins. Co. v. Farmers Ins. Co. of Ariz., 143 Ariz. 547, 548 (App. 1985)).
¶10 That said, we may exercise discretionary review of moot issues on appeal if it concerns "an issue of great public importance" or is "capable of repetition yet evading review." Cardoso v. Soldo, 230 Ariz. 614, ¶ 5 (App. 2012). An issue is of great public importance if it "involves an issue that will have broad public impact beyond resolution of the specific case." Id. ¶ 6. And an issue is capable of repetition if there is a "'reasonable expectation' . . . that the same controversy will recur involving the same complaining party." Murphy v. Hunt, 455 U.S. 478, 482 (1982); see also Cardoso, 230 Ariz. 614, ¶ 7.
¶11 Huffman's arguments challenging the trial court's order to remedy the breach-of-contract claims are moot because he cleaned the oil stains, removed his car from the driveway, and painted his home. Further, Huffman's arguments do not have any potential for broad public impact nor are they capable of repetition. See Cardoso, 230 Ariz. 614, ¶¶ 6-7. Because any relief we could provide "cannot have any practical effect," Kondaur Capital Corp., 235 Ariz. 189, ¶ 8 (quoting Progressive Specialty Ins. Co., 143 Ariz. at 548), as these particular issues are "no longer in existence," Flores, 218 Ariz. 52, ¶ 24, Huffman's arguments are moot, and we will not address them.
"Ambush" Evidence
¶12 Huffman also argues the trial court erred in admitting "evidence and testimony" presented by Magic Ranch during the "[s]how cause [h]earing" relating to Huffman "'working on his vehicle' when [Magic Ranch's notices and pleadings] alleged only that [Huffman] had an 'inoperable vehicle' on his property." We review a court's evidentiary rulings for an abuse of discretion. BNCCORP, Inc. v. HUB Int'l Ltd., 243 Ariz. 1, ¶ 35 (App. 2017).
Huffman refers to the evidentiary hearing as a show cause hearing.
¶13 "Arizona follows a notice pleading standard, the purpose of which is to 'give the opponent fair notice of the nature and basis of the claim and indicate generally the type of litigation involved.'" Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, ¶ 6 (2008) (quoting Mackey v. Spangler, 81 Ariz. 113, 115 (1956)); see also Verduzco v. Am. Valet, 240 Ariz. 221, ¶ 9 (App. 2016) (notice pleading rules do not require complaint to include every evidentiary detail of plaintiff's claim for relief). Further, admissibility of evidence is solely within the discretion of the court, "and we will not disturb its decision absent an abuse of that discretion and resulting prejudice." Crackel v. Allstate Ins. Co., 208 Ariz. 252, ¶ 59 (App. 2004).
¶14 At the evidentiary hearing, Paul Jackson, President of the Magic Ranch Board of Directors, testified that the association is legally required to enforce the CC&Rs and that its board of directors determines whether violations exist. According to Jackson, Huffman was not permitted to construct, reconstruct, or repair any vehicle in the visible vicinity of neighboring properties, and he had, in fact, "been operating and working on his vehicle in violation of 3.22 of the CC&Rs for almost three years." Huffman argued "[t]he [relevant] issue is [an] inoperable vehicle," not whether he was "working on the vehicle." The trial court disagreed with Huffman, overruled his objection, and permitted Jackson to continue his testimony.
¶15 As we understand his argument, Huffman contends that he was "ambush[ed]" by Jackson's testimony because he had not been given notice that "working on his vehicle" amounted to a violation and he was not prepared to defend himself on that issue. We disagree.
¶16 Huffman has been the record owner of Magic Ranch Estates Lot 128 since 2008 and subject to its CC&Rs. Magic Ranch's CC&Rs were recorded with Pinal County Recorder, and included provision 3.22.1 which states:
Except for emergency vehicle repair, no automobile or other motor vehicle may be constructed, reconstructed or repaired upon a Lot or other property in the Project, and no inoperable vehicle may be stored or parked on such Lot or other property in the Project so as to be Visible From Neighboring Property or be visible from any Common Area or any street.
¶17 In November 2014, Magic Ranch sent Huffman a letter that summarized the relevant CC&R provisions he was violating, which included 3.22.1, and specifically stated, "An inoperable vehicle was parked on your driveway, and had been reconstructed and repaired on your driveway in a manner that made it Visible From Neighboring Property." In July 2015, Magic Ranch sent Huffman another letter to notify him that he was still in violation of provision 3.22.1. Magic Ranch subsequently filed its complaint in September 2015 and alleged Huffman was, in part, in breach of provision 3.22.1. Although Magic Ranch's complaint did not include all of the language within 3.22.1, Huffman knew he was required to adhere to the CC&Rs as a Magic Ranch Estates lot owner, had been provided prior notice that he was in breach of provision 3.22.1 for both the inoperable vehicle and reconstructing and repairing the vehicle, and was provided fair notice of the nature and basis of Magic Ranch's claim when it included provision 3.22.1 in its complaint. See Cullen, 218 Ariz. 417, ¶ 6. And further, it was within the trial court's discretion to determine the relevancy of Jackson's testimony—whether Huffman's working on his vehicle, sitting inoperable in the driveway, constituted a violation under the CC&Rs. See Crackel, 208 Ariz. 252, ¶ 59. As such, Huffman was provided fair notice of the general nature and basis of Magic Ranch's claim, and the court did not abuse its discretion in admitting Jackson's testimony. See BNCCORP, Inc., 243 Ariz. 1, ¶ 35.
Change of Judge
¶18 Huffman next argues Judge McCarville and Judge Georgini, to whom the matter was re-assigned by stipulation of the parties, erred in "continuing to preside in a case where there was the appearance of impropriety," claiming their actions were "bias[ed]" and "unfair[]." "We review for an abuse of discretion the denial of a motion for change of judge based on a claim of judicial bias." Stagecoach Trails MHC, L.L.C. v. City of Benson, 232 Ariz. 562, ¶ 21 (App. 2013).
¶19 "A party seeking a change of judge for cause must establish grounds by affidavit as required by A.R.S. § 12-409." Ariz. R. Civ. P. 42.2(b). A party may file an affidavit for cause if he has reason to believe "he cannot obtain a fair and impartial trial" because of "the bias, prejudice, or interest of the judge." § 12-409(B)(5). The challenging party, however, must prove bias, prejudice, or interest by a preponderance of the evidence, Ariz. R. Civ. P. 42.2(b), (e)(4), "overcom[ing] the presumption that trial judges are 'free of bias and prejudice,'" Simon v. Maricopa Med. Ctr., 225 Ariz. 55, ¶ 29 (App. 2010) (quoting State v. Rossi, 154 Ariz. 245, 247 (1987)); see also In re Guardianship of Styer, 24 Ariz. App. 148, 151 (1975) ("Bias and prejudice means a hostile feeling or spirit of ill-will, or undue friendship or favoritism, towards one of the litigants."). A change of judge for cause cannot be granted on mere "speculation, suspicion, apprehension, or imagination." Costa v. Mackey, 227 Ariz. 565, ¶ 12 (App. 2011) (quoting State v. Ellison, 213 Ariz. 116, ¶ 37 (2006)). Moreover, "the bias and prejudice necessary to disqualify a judge must arise from an extra-judicial source and not from what the judge has done in his participation in the case." In re Aubuchon, 233 Ariz. 62, ¶ 16 (2013) (quoting Smith v. Smith, 115 Ariz. 299, 303 (App. 1977)); see also Stagecoach Trails MHC, 232 Ariz. 562, ¶ 21 (judicial rulings alone cannot establish finding of partiality or bias). "A party must file an affidavit seeking a change of judge for cause within 20 days after discovering that grounds exist for a change of judge." Ariz. R. Civ. P. 42.2(d).
¶20 In his June 2016 motion for change of judge, Huffman claimed Judge McCarville was "biased and . . . exhibit[ed] a personal interest in helping out [Magic Ranch] and [its] counsel." Judge White concluded that Huffman's motion had been filed untimely and that he had "waived his right to seek a change of judge for cause." Judge White also determined that, had the motion been timely filed, Huffman's "request fail[ed] . . . to make a prima facie showing of grounds for disqualification" because he relied solely on "subjective beliefs" and did not assert any facts to support his assertion that Judge McCarville was "biased, prejudiced or ha[d] an interest in the proceedings such that [Huffman could not] obtain a fair and impartial trial."
The trial court refers to Rule 42(f)(1)(C), Ariz. R. Civ. P., for the proposition that Huffman's "affidavit shall be timely if filed and served within 20 days after discovery that grounds exist for change of judge." This appears to be a typographical error as this language was found within Rule 42(f)(2)(C), which was renumbered to Rule 42.2(d) in 2017. See Ariz. Sup. Ct. Order R-16-0010 (Sept. 2, 2016).
¶21 In January 2017, Huffman filed a second "Affidavit of Prejudice," contending that Judge McCarville "as presiding Judge exerts undue influence over Pinal County Judges in cases involving [Huffman] and is prejudiced against self represented litigants," and "[i]t would be hard if not impossible for [another assigned judge] to be fair and impartial." Thereafter, as stated above, the matter was re-assigned to Judge Georgini in May 2017. This second affidavit was treated as a request for change of judge for cause directed at both Judge McCarville and Judge Georgini, and was denied by Judge Olson, presumably as the presiding judge's designee. Judge Olson found, as with the earlier request, that Huffman's affidavit did not comply with Rule 42.2(d) and, because Huffman failed to show that he had properly served his affidavit, it was untimely and he had waived the ability to challenge either judge for cause. Additionally, Judge Olson concluded that Huffman's affidavit failed to even minimally meet the requirements of Rule 42.2(b) and § 12-409 because he only asserted "conclusory allegations of bias, prejudice, or interest," which did not establish that he "cannot obtain a fair and impartial trial before the assigned trial judge."
¶22 Huffman does not argue any error by the reviewing judges in denying his two motions for change of judge for cause. Instead, he focuses his argument solely on the alleged biases of Judge McCarville and Judge Georgini. Despite his failure to include any argument that the reviewing judges erred in their denial of his motions, we deem it implied by his argument and review the matter as such. See Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984) ("We recognize that courts prefer to decide each case upon its merits rather than to dismiss summarily on procedural grounds.").
Huffman's first motion for change of judge for cause was also denied because he had failed to timely file his affidavits within the statutory time period. See Ariz. R. Civ. P. 42.2(d) (affidavit for cause must be filed "within 20 days after discovering that grounds exist for a change of judge"). After reviewing the record, we agree with this reasoning, which provides another basis for us to affirm the ruling. See Forszt v. Rodriguez, 212 Ariz. 263, ¶ 9 (App. 2006).
¶23 Huffman continues to rely on the same speculative assertions that Judge McCarville's and Judge Georgini's adverse rulings were based on ulterior motives. Specifically, he maintains that Judge McCarville "was only going through the facade of a fair and full hearing" when he set an "arbitrary time limit" for the evidentiary hearing, "advocated" for Magic Ranch, did not address Magic Ranch's "stall[]" tactics, and did not acknowledge the "fraudulent statements" and "fraudulent attorney fees affidavit" that Magic Ranch submitted. And further, he asserts that Judge Georgini used to work with and was recommended by Judge McCarville, which led to his unwillingness to overrule Judge McCarville's decisions. He also contends that Judge Georgini "refused to enforce the law" and generally was not an "independent think[er]" but "someone who rubber stamps" Magic Ranch in his decisions. Nothing in the record supports these conclusory statements. And, in any event, Judge McCarville's and Judge Georgini's rulings in the matter alone cannot be grounds for a change of judge for cause. See Aubuchon, 233 Ariz. 62, ¶ 16; Stagecoach Trails MHC, 232 Ariz. 562, ¶ 21.
¶24 Huffman relies solely on the judges' rulings and relationship as Pinal County judges to insinuate bias and prejudice, but he was required to present additional information to prove an "extra-judicial source," Simon, 225 Ariz. 55, ¶ 29 (quoting State v. Emanuel, 159 Ariz. 464, 469 (App. 1989)), of "hostile feeling[s] or spirit of ill-will" by either Judge McCarville or Judge Georgini that influenced their decision making, Guardianship of Styer, 24 Ariz. App. at 151. These allegations are based on "speculation, suspicion, apprehension, or imagination." Costa, 227 Ariz. 565, ¶ 12 (quoting Ellison, 213 Ariz. 116, ¶ 37). In our review of the record, contrary to Huffman's assertions, each judge provided Huffman a fair and equal opportunity to be heard throughout the three-year litigation. Our review revealed no apparent favoritism by the judges for or hostility toward either party. As such, we conclude the reviewing courts did not abuse their discretion in denying Huffman's two motions for change of judge for cause. See Stagecoach Trails MHC, 232 Ariz. 562, ¶ 21.
Motion for Partial Summary Judgment
¶25 Huffman argues the trial court erred in granting Magic Ranch's motion for partial summary judgment because "there are issues of material fact" as he "did not have an 'inoperable' vehicle, did not work on his vehicle, cleaned up the oils stains, and requested to paint his house." However, we lack jurisdiction to review this issue.
¶26 "[I]t is settled in Arizona that the perfecting of an appeal within the time prescribed is jurisdictional; and, hence, where the appeal is not timely filed, the appellate court acquires no jurisdiction other than to dismiss the attempted appeal." James v. State, 215 Ariz. 182, ¶ 11 (App. 2007) (quoting Edwards v. Young, 107 Ariz. 283, 284 (1971)). A notice of appeal must be filed within thirty-days after entry of final judgment. Ariz. R. Civ. App. P. 9(a); see also Ariz. R. Civ. App. P. 8(a). There are two types of final judgments: (1) when the trial court enters a final judgment specifically under Rule 54(b), Ariz. R. Civ. P., for "one or more, but fewer than all, claims or parties" and determines "there is no just reason for delay" to appeal, and (2) when the court "recites that no further matters remain pending" specifically under Rule 54(c), Ariz. R. Civ. P.
¶27 Huffman failed to timely file his appeal from the trial court's ruling granting Magic Ranch's motion for partial summary judgment. See Ariz. R. Civ. App. P. 9(a). The court granted the motion, in part, on January 10, 2017, leaving the issue of penalties outstanding. Subsequently, on March 2, 2017, the court resolved the penalty assessments issue and included Rule 54(b), Ariz. R. Civ. P., finality language in its order. Huffman was required to file an appeal from the ruling within thirty days, April 3, 2017, but he failed to do so. See Ariz. R. Civ. App. P. 9(a). Accordingly, we lack jurisdiction to consider any argument based on the court's ruling granting Magic Ranch's motion for partial summary judgment. See James, 215 Ariz. 182, ¶ 11.
Motion to Dismiss Counterclaim
¶28 Huffman also argues the trial court erred in dismissing his counterclaim because he had alleged facts sufficient to support intentional infliction of emotional distress, negligent infliction of emotional distress, or negligence. We review de novo orders granting a motion to dismiss. Premier Physicians Grp., PLLC v. Navarro, 240 Ariz. 193, ¶ 6 (2016). "In reviewing a trial court's decision to dismiss a complaint for failure to state a claim," we will not affirm unless we are "satisfied as a matter of law that plaintiff[] would not be entitled to relief under any interpretation of the facts susceptible of proof." Fid. Sec. Life Ins. Co. v. Ariz. Dep't of Ins., 191 Ariz. 222, ¶ 4 (1998).
Notably, Magic Ranch's answering brief did not address Huffman's opening brief on this issue, and instead focused on Huffman's first amended counterclaim and its deficiencies. Huffman contends Magic Ranch has "waived and conceded" at least the issue of intentional infliction of emotional distress by failing to address it. But only the failure to respond in an answering brief to "a debatable issue" may constitute a confession of error, see Chalpin v. Snyder, 220 Ariz. 413, n.7 (App. 2008), and, as discussed below, Huffman failed to state a claim upon which relief may be granted, see Premier Physicians Grp., PLLC v. Navarro, 240 Ariz. 193, ¶ 6 (2016).
¶29 A party alleging intentional infliction of emotional distress must show: (1) the defendant's conduct is extreme and outrageous, (2) the defendant intended to cause emotional distress or acted with a reckless disregard that, with near certainty, distress would result from the defendant's conduct, and (3) the plaintiff suffered severe emotional distress as a result. McKee v. State, 241 Ariz. 377, ¶ 25 (App. 2016). Extreme and outrageous conduct is such that it "go[es] beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Shepherd v. Costco Wholesale Corp., 246 Ariz. 470, ¶ 19 (App. 2019) (quoting Mintz v. Bell Atl. Sys. Leasing Int'l, Inc., 183 Ariz. 550, 554 (App. 1995)); see also Restatement (Second) of Torts § 46 cmt. d (1965) ("The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. . . . There is no occasion for the law to intervene in every case where some one's feelings are hurt."). As a preliminary matter, "[t]he trial court must determine whether the acts complained of are sufficiently extreme and outrageous to state a claim for relief." Mintz, 183 Ariz. at 554.
¶30 A claim of negligent infliction of emotional distress "requires a showing that the plaintiff witnessed an injury to a closely related person, suffered mental anguish manifested as physical injury, and was within the zone of danger so as to be subjected to an unreasonable risk of bodily harm created by the defendant." Rodriguez v. Fox News Network, L.L.C., 238 Ariz. 36, ¶ 7 (App. 2015). And "[a] negligence claim requires proof of four elements: '(1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages.'" Noriega v. Town of Miami, 243 Ariz. 320, ¶ 23 (App. 2017) (quoting Sanders v. Alger, 242 Ariz. 246, ¶ 7 (2017)).
¶31 Huffman argues that he discovered Magic Ranch's "property manager Snow [P]roperty Services was stealing monies from [Magic Ranch]." Because of his discovery and his efforts to "protect the funds," he claims Magic Ranch "targeted" him for "violations[ and] fines" and "refused to give [him] a hearing" to address the violations, which further increased the fines. Additionally, Huffman asserts that Magic Ranch placed mailboxes and park benches under his bedroom window and threw away his ballot. Huffman further contends that Magic Ranch's actions were nothing short of "burning his house down and killing his pets."
¶32 Although Huffman alleged that he suffered from "loss of sleep, anxiety, high blood pressure, stress, worry, nausea, grief, nervousness, mental anguish, [and] anger," he failed to allege any facts that Magic Ranch's conduct was extreme and outrageous when it implemented its CC&R violation and fine-enforcement policy or that Magic Ranch intentionally or recklessly enforced its CC&R violation and fine policy and placed items near Huffman's home to cause him distress. See McKee, 241 Ariz. 377, ¶ 25. Huffman recounts what are, at worst, "annoyances" or "petty oppressions," Restatement § 46 cmt. d, by Magic Ranch instead of the required "atrocious and utterly intolerable," extreme and outrageous behavior, see Shepherd, 246 Ariz. 470, ¶ 19.
¶33 Further, Huffman raises his negligent infliction of emotional distress claim for the first time on appeal, and we consider it waived. See Banales v. Smith, 200 Ariz. 419, ¶ 8 (App. 2001) (failure to raise an issue below waives the issue on appeal). And, regardless of whether Huffman pled a negligence theory under breach of fiduciary duty or "a breach of (generic) duty," Huffman failed to develop either negligence theory on appeal, and we consider it waived as well. See Aubuchon, 233 Ariz. 62, ¶ 6 ("[W]e consider waived those arguments not supported by adequate explanation, citations to the record, or authority.").
Even if Huffman raised his negligent infliction of emotional distress claim below, he did not present any facts consistent with such a claim to warrant relief—he does not allege he witnessed the injury of a closely related person, suffered a physical injury as a result, and was within the zone of danger of being harmed. See Rodriguez, 238 Ariz. 36, ¶ 7.
Huffman further argues that "[Magic Ranch's] actions also violate the duties under the Restatement [Third] of Property Servitudes" and also contends that Magic Ranch "fail[ed] . . . to file their motions within the 10 day limit under [Rule 15(a), Ariz. R. Civ. P.]." These arguments were not raised below and are presented for the first time on appeal, and we consider them waived. See Englert v. Carondelet Health Network, 199 Ariz. 21, ¶ 13 (App. 2000) (issues not raised below may not be considered if raised for first time on appeal).
¶34 As detailed above, we conclude that Huffman would not be entitled to relief based on the factual allegations in his amended counterclaim to support his intentional infliction of emotional distress claim, see Fid. Sec. Life Ins. Co., 191 Ariz. 222, ¶ 4, or his negligence theories, and negligent infliction of emotional distress is inapplicable to this particular matter. Thus, we agree with the trial court's conclusion that Huffman failed to state a claim upon which relief could be granted. See Premier Physicians Grp., 240 Ariz. 193, ¶ 6.
Motion for Summary Judgment on Affirmative Claims
¶35 Huffman argues the trial court erred in denying his motion for summary judgment because he presented "uncontroverted" evidence that Magic Ranch had "failed and refused to give [Huffman] a hearing of the issues . . . that are the basis for [Magic Ranch's] Complaint" and failed to generally adhere to Magic Ranch Board bylaws. To the extent this issue is independent from the court's summary judgment on Magic Ranch's underlying CC&R violation claims, we lack jurisdiction in any event to consider it.
¶36 "We do not have jurisdiction for the denial of a motion for summary judgment absent extraordinary circumstances . . . ." State v. Jackson, 210 Ariz. 466, ¶ 10 (App. 2005). Such circumstances may exist if the denial of a motion for summary judgment was based on a point of law. Saban Rent-A-Car LLC v. Ariz. Dep't of Revenue, 244 Ariz. 293, ¶ 8 (App. 2018); see also Strojnik v. Gen. Ins. Co. of Am., 201 Ariz. 430, ¶ 11 (App. 2001) (court's interpretation of statutory and common law considered point of law and reviewable on appeal).
¶37 In this case, Huffman's argument on appeal neither is an extraordinary matter factually, nor was it denied because of the trial court's statutory interpretation of a point of law. See Strojnik, 201 Ariz. 430, ¶ 11. Thus, we will not review the court's denial of Huffman's motion for summary judgment. See Jackson, 210 Ariz. 466, ¶ 10.
Attorney Fees Award
¶38 Huffman lastly argues the trial court erred in awarding Magic Ranch attorney fees. Magic Ranch requested attorney fees pursuant to the contractual provision in the CC&Rs and A.R.S. § 12-341.01.
¶39 Under § 12-341.01(A), "[i]n any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney fees." We review these awards for an abuse of discretion. Orfaly v. Tucson Symphony Soc'y, 209 Ariz. 260, ¶ 18 (App. 2004). However, "[a] contractual provision for attorneys' fees will be enforced according to its terms." Mining Inv. Grp., LLC v. Roberts, 217 Ariz. 635, ¶ 26 (App. 2008) (quoting Chase Bank of Ariz. v. Acosta, 179 Ariz. 563, 575 (App. 1994)). Thus, unlike attorney fees awarded under § 12-341.01(A), the trial court "lacks discretion to refuse to award fees under the contractual provision." Id. (quoting Chase Bank, 179 Ariz. at 575). "CC&Rs constitute a contract between the subdivision's property owners as a whole and individual lot owners." Ahwatukee Custom Estates Mgmt. Ass'n, Inc. v. Turner, 196 Ariz. 631, ¶ 5 (App. 2000).
¶40 Huffman seems to suggest that Magic Ranch was not entitled to its attorney fees because it violated § 33-1803, which "requires compliance with appeal [p]rocedure and that the 'person' who observed the violation sign [the notice of violation]." Because he provides no case law or specific provision within § 33-1803 that requires he be provided with a hearing, and otherwise fails to develop this argument on appeal, we consider it waived. See Aubuchon, 233 Ariz. 62, ¶ 6.
Even assuming Huffman developed this argument on appeal, there is no requirement for Magic Ranch to provide Huffman with a hearing before initiating legal actions under § 33-1803 because a properly pled violation contest under this statute only provides a permissive hearing. See § 33-1803(C)-(E).
¶41 Additionally, Huffman argues that Magic Ranch "refused to comply with" Rule 54(g)(4), Ariz. R. Civ. P., because it did not "disclose the terms of any fee agreement" and, as a result, the "amounts and hourly rates are unreasonable and [e]xcessive." He further argues that because of Magic Ranch's refusal to comply, "[t]he Court is left to guess and speculate as to what amounts relate to the issues of this case, which are fraudulent, who did the work e[tc]." But Magic Ranch's affidavit included a description of the fees as well as the work performed, and by whom, as required by Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 188 (App. 1983). Huffman did not explain how the affidavit was deficient or how the attorneys' and paralegals' hourly rates were unreasonable and excessive. Thus, the trial court properly granted Magic Ranch its attorney fees as it was required to enforce the attorney fees contractual provision in the CC&Rs. See Mining Inv. Grp., 217 Ariz. 635, ¶ 26.
Rule 54(g)(4) states, "Unless a statute or court order provides otherwise, a motion for attorney's fees must be supported by affidavit and is governed by Rule 7.1[, Ariz. R. Civ. P.]. The movant's affidavit must disclose the terms of any fee agreement for the services for which the claim is made." --------
Attorney Fees and Costs on Appeal
¶42 Magic Ranch requests its attorney fees and costs on appeal pursuant to the CC&Rs or, alternatively, § 12-341.01. The CC&Rs authorize Magic Ranch to recover attorney fees incurred as a result of "any Common Expense . . . caused by the misconduct of any Owner." Because we must enforce this contractual provision according to its terms, see id., we grant Magic Ranch's request for reasonable attorney fees and costs, upon compliance with Rule 21(b), Ariz. R. Civ. App. P.
Disposition
¶43 For the reasons stated above, we affirm in part and dismiss for lack of jurisdiction in part.