Tucson Estates Property Owners Ass'n, Inc. v. McGovern
Tucson, Pima · AZ · Arizona Court of Appeals, Division Two
MIXED · architectural
What happened
Holly McGovern and Donald Sines replaced a shed more than thirty-five years old at Tucson Estates after being told in writing that a moved/replaced shed would have to meet current CC&Rs. TEPOA later sued for injunctive relief and breach of contract (including liquidated damages/fees theories). The trial court decided the injunction and contract claims in the owners’ favor but denied their requests for attorney fees and costs. Owners appealed that denial. On January 15, 2016, the Arizona Court of Appeals (Div. Two) affirmed the denial of attorney fees, reversed the denial of costs, and denied appellate fees in its discretion.
What the court (or agency) held
Mixed but member-favorable overall. On the merits path reflected in the opinion, TEPOA’s injunction and breach claims had already been decided for the owners. On appeal: A.R.S. § 12-341.01(A) permits—but does not mandate—fees to a prevailing party when a contract mandates fees for the other side yet is silent as to the prevailing party; trial court’s denial of fees affirmed. Costs under A.R.S. § 12-341 are treated differently—denial of costs reversed so owners could recover costs as prevailing parties.
Why this matters for members
This result is MIXED — a partial win, not a clean sweep on every claim. Beating an HOA injunction/contract claim is not the same as automatic fee recovery. Arizona distinguishes discretionary contractual/statutory fees (§ 12-341.01) from more mandatory prevailing-party costs (§ 12-341). Owners should still move for costs even if fees are denied, and boards should not assume one-sided fee clauses silence the other side’s fee/cost requests.
What the member did
Defended on approval/estoppel and delay; after beating all claims at trial, sought fees and costs as prevailing parties and appealed the fee/cost denials.
What did not work
No mandatory reciprocal attorney fees under § 12-341.01 when the CC&Rs are one-sided—fees denial affirmed.
Questions for the board
- Was written architectural approval required before replacing an existing shed, and what written notice was given?
- Why pursue injunction and contract damages if the owners ultimately prevailed on those claims?
- Does the association’s fee clause mandate fees only for the association, and has counsel assessed § 12-341.01 symmetry risk?
- What cost bills may be owed when the association loses enforcement claims?
Questions for a lawyer
- How does McGovern’s reading of § 12-341.01(A) affect fee motions under this CC&R fee clause?
- What is the cleanest record for mandatory costs under § 12-341 after a merits win?
- What evidence of verbal vs written approval matters if enforcement is retried or settled?
- Should owners seek appellate fees, understanding the court may deny them as discretionary?
Citation
Tucson Estates Property Owners Ass'n, Inc. v. McGovern, 239 Ariz. 52, 366 P.3d 111 (App. 2016); No. 2 CA-CV 2015-0069 (2016-01-15). Arizona Court of Appeals, Division Two. Outcome chip: MIXED. Flags: MIXED. Source: https://law.justia.com/cases/arizona/court-of-appeals-division-two-published/2016/2-ca-cv-2015-0069.html
_General information, not legal advice. Outcomes turn on facts and current law._
General information, not legal advice. Outcomes turn on facts and current law.