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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Margaret H. Downie joined.
G E M M I L L, Judge:
1
Appellant Arizona Biltmore Hotel Villas Condominium
Association (Villas) contests the trial courts declaratory judgment
resolving a dispute over Villas owners parking rights. For the reasons set
forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
2
Villas is the homeowners association for Villas
Condominiums, a group of 78 condominium units located on the Arizona
Biltmore Hotel property. Appellee ABR Property LLC (Owner) owns the
Arizona Biltmore Hotel, and Appellee Arizona Biltmore Hotel Master
Association is the master association for the entire Hotel property.1 Most
condominium owners make their units available to Hotel guests for the
majority of the year under a rental pool agreement. The rental pool
agreement authorizes Villas to designate 78 parking spaces in the parking
lot nearest the units, while Master Association uses the remainder of the lot
for the benefit of the Hotel and its guests.
3
This appeals stems from a declaratory relief action brought by
Villas seeking a declaration of its rights to designate parking spaces for its
owners use.2 The relevant provision of the Villas Condominiums
Covenants, Conditions and Restrictions (the Villas CC&Rs) provides:
Each [Villas] Unit shall have the right to the exclusive use of
one parking space on Parcel 2, the location of which shall be
determined and assigned by the Association. Such parking
rights are appurtenant to each Owners ownership of his Unit
Owner and Master Association take the same positions on appeal. To
avoid repetition, we refer to them collectively as Master Association.
1
Villas also asserted unrelated claims against Salt River Project that are not
at issue in this appeal.
2
The Second Trial Judge Did Not Abuse Her Discretion in Denying
Villas Motion to Alter or Amend the Judgment.
9
We review the denial of a motion to alter or amend a
judgment under Rule 59(l) for an abuse of discretion. See Mullin v. Brown,
210 Ariz. 545, 547, 2 (App. 2005); see also Zimmerman v. City of Oakland, 255
F.3d 734, 736 (9th Cir. 2001) (applying abuse of discretion standard to
review of a denial of a motion to alter or amend under the federal
4
THE COURT:
And when I say in use, if the person is
not in the rental pool we assume its in use full-time?
5
Villas argues in its reply brief that the Judgment contained other issues
the parties agreed to . . . during the course of the litigation, including (1)
that the Villas is permitted to designate its parking spaces in the north half
of the lot, (2) that Master Association and Villas CC&Rs apply to the north
half of the lot, and (3) that Master Association is the party responsible for
managing the north half of the lot. The key distinction, as the Judgment
points out, is that these issues were disputed and agreed upon during the
litigation. This presumably is why both Villas and Master Association
chose to include all three of these issues in their proposed forms of
judgment.
3
The Third Trial Judge Did Not Abuse Her Discretion in Denying
Leave to Amend.
17
We review the denial of a motion to amend the complaint for
an abuse of discretion. Timmons v. Ross Dress For Less, Inc., 234 Ariz. 569,
572, 17 (App. 2014). Leave to amend should be liberally granted,
MacCollum v. Perkinson, 185 Ariz. 179, 185 (App. 1996), but is properly
denied in cases of undue delay, bad faith, dilatory motive, repeated failure
to cure deficiencies by previous amendments, or undue prejudice to the
opposing party, Carranza v. Madrigal, 237 Ariz. 512, 515, 13 (2015). We
presume the facts alleged in the proposed amended complaint are true.
Alosi v. Hewitt, 229 Ariz. 449, 452, 13 (App. 2012). We will affirm the trial
courts ruling if it is correct for any reason. Tumacacori Mission Land Dev.,
Ltd. v. Union Pac. R. Co., 231 Ariz. 517, 519, 4 (App. 2013).
Villas also contends the second trial judge improperly found the motion
to alter or amend was a horizontal appeal, citing the judges comment at the
close of oral argument that if this issue was already put before [the first
trial judge], I think my hands are tied . . . . The second trial judges order
did not mention the horizontal appeal doctrine. Nonetheless, even if we
assume the second trial judge relied on this doctrine, we need not reach this
issue in light of our findings above. See Parkinson v. Guadalupe Pub. Safety
Ret. Local Bd., 214 Ariz. 274, 277, 12 (App. 2007) (Court of Appeals can
affirm the trial courts ruling if it is correct for any reason).
4
23
Owner and Master Association request attorney fees under
A.R.S. 12-341.01(A), which authorizes an award of reasonable fees to the
prevailing party in a matter arising out of contract. The parties agree that
this appeal arose out of the applicable CC&Rs, which constitute contracts
between the parties. See McDowell Mountain Ranch Cmty. Assn, Inc. v.
Simons, 216 Ariz. 266, 269, 14 (App. 2007). Because Owner and Master
Association are the prevailing parties on appeal, we will award them a
reasonable amount of attorney fees and their taxable costs incurred on
appeal upon compliance with Arizona Rule of Civil Appellate Procedure
21.
CONCLUSION
24
For the reasons set forth above, we affirm the denials of Villas
motion to alter or amend the Judgment and motion for leave to amend its
complaint. We also award Owner and Master Association their reasonable
attorney fees and taxable costs on appeal.
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