                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


      WATER WORKS CONDOMINIUM ASSSOCIATION, INC.,
                    Plaintiff/Appellee,

                                        v.

                  DWAYNE JONAS, Defendant/Appellant.

                             No. 1 CA-CV 18-0502
                               FILED 1-9-2020


           Appeal from the Superior Court in Maricopa County
                          No. CV2017-093015
            The Honorable David M. Talamante, Judge Retired

                                  AFFIRMED


                                   COUNSEL

Goodman Holmgren Law Group, L.L.P., Mesa
By Clint G. Goodman, Ashley N. Moscarello, Daniel S. Francom
Counsel for Plaintiff/Appellee

Dwayne Jonas, Casa Grande
Defendant/Appellant


                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Diane M. Johnsen joined.
                         WATER WORKS v. JONAS
                          Decision of the Court

J O N E S, Judge:

¶1           Dwayne Jonas appeals the trial court’s orders granting
summary judgment to Water Works Condominium Association, Inc. (the
Association) on its complaint to foreclose a condominium association
assessment lien and denying his motion to vacate the judgment. For the
following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             In July 2015, Jonas acquired property in Mesa (the Property)
subject to the Association’s covenants, conditions, and restrictions (CC&Rs)
from Perren R. In May 2017, the Association filed a complaint alleging
Jonas had violated the CC&Rs by failing to pay assessments on the
Property. The Association sought a monetary judgment and an order
foreclosing the assessment lien. After the Association moved for summary
judgment, Jonas received an extension of time to respond, but did not do
so. The trial court entered a judgment of foreclosure that identified an
indebtedness secured by the Property and separately awarded the
Association attorneys’ fees, the costs of collection, and interest. Jonas timely
appealed.

¶3              This Court stayed the appeal at Jonas’s request to allow him
to pursue relief from the judgment under Arizona Rule of Civil Procedure
60(b)(2), (5), and (6). In his January 2019 motion, Jonas alleged that newly
discovered evidence proved a portion of the assessments at issue had been
paid by Perren. The trial court denied Jonas’s motion, and he again timely
appealed. We have jurisdiction pursuant to Arizona Revised Statutes
(A.R.S.) §§ 12-120.21(A)(1),1 -2101(A)(1), and (A)(2). See M & M Auto Storage
Pool, Inc. v. Chem. Waste Mgmt., Inc., 164 Ariz. 139, 141 (App. 1990) (noting
an order denying a motion to vacate a judgment is appealable as a “special
order made after final judgment”).

                               DISCUSSION

I.     Summary Judgment

¶4          Jonas argues the trial court erred in entering summary
judgment for the Association. Summary judgment is proper when “there
is no genuine dispute as to any material fact and the moving party is

1      Absent material changes from the relevant date, we cite the current
version of rules and statutes.



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                        WATER WORKS v. JONAS
                         Decision of the Court

entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). We review
both the grant of summary judgment and the court’s application of the law
de novo, Parkway Bank & Tr. Co. v. Zivkovic, 232 Ariz. 286, 289, ¶ 10 (App.
2013) (citing L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz.
178, 180 (App. 1997)), and will affirm if the ruling is correct on any basis
supported by the record, Mutschler v. City of Phoenix, 212 Ariz. 160, 162, ¶ 8
(App. 2006) (citing Glaze v. Marcus, 151 Ariz. 538, 540 (App. 1986)).

¶5            Because the Association is a condominium owners’
association, the lien is governed by A.R.S. § 33-1256(A). That statute
provides:

       The association has a lien on a unit for any assessment levied
       against that unit from the time the assessment becomes due.
       The association’s lien for assessments, for charges for late
       payment of those assessments, for reasonable collection fees
       and for reasonable attorney fees and costs incurred with
       respect to those assessments may be foreclosed in the same
       manner as a mortgage on real estate but may be foreclosed
       only if the owner has been delinquent in the payment of
       monies secured by the lien, excluding reasonable collection
       fees, reasonable attorney fees and charges for late payment of
       and costs incurred with respect to those assessments, for a
       period of one year or in the amount of $1,200 or more,
       whichever occurs first, as determined on the date the action is
       filed. . . . The association has a lien for fees, charges, late
       charges, other than charges for late payment of assessments,
       monetary penalties [and] interest charged . . . after the entry
       of judgment in a civil suit for those fees . . . from a court of
       competent jurisdiction and the recording of that judgment in
       the office of the county recorder . . . . The association’s lien
       for monies other than for assessments, for charges for late
       payment of those assessments, for reasonable collection fees
       and for reasonable attorney fees and costs incurred with
       respect to those assessments may not be foreclosed and is
       effective only on conveyance of any interest in the real
       property.

A.R.S. § 33-1256(A). By its terms, A.R.S. § 33-1256(A) authorizes a
condominium owners’ association to pursue two liens.

¶6           The first lien (the assessment lien) includes past-due
assessments, charges for late payment of those assessments, reasonable


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                         Decision of the Court

collection fees, and reasonable attorneys’ fees and costs incurred with
respect to those assessments. Id. This lien is automatically levied against
the unit “from the time the assessment becomes due” and may be
foreclosed “if the owner has been delinquent in the payment of monies
secured by the lien,” excluding certain fees and charges, “for a period of
one year or in the amount of $1,200 or more, whichever occurs first.” Id.

¶7             The association may obtain a second lien for fees, charges,
penalties, and interest, other than those included in the first lien. Id. The
second lien is effective “after the entry of judgment in a civil suit for those
fees . . . from a court of competent jurisdiction and the recording of that
judgment in the office of the county recorder.” Id. This lien cannot be
foreclosed but may be satisfied “on conveyance of any interest in the real
property.” Id.

¶8             Jonas argues entry of summary judgment was error because
the Association failed to satisfy the statutory prerequisites to foreclosure.
Because Jonas did not challenge the ledger for the Property that the
Association produced in support of its motion, we presume it to be
accurate. See Tilley v. Delci, 220 Ariz. 233, 237, ¶ 11 (App. 2009) (citing
Choisser v. State ex rel. Herman, 12 Ariz. App. 259, 261 (1970)). The ledger
reflects that Jonas never paid any monthly assessment owed to the
Association. By May 2017, when the Association sued, the past-due
monthly assessments, accruing at around $200 per month, totaled far more
than the $1,200 statutory threshold. The ledger further reflects that the
indebtedness had persisted since at least July 2015, far longer than the one-
year period outlined in the statute. Thus, the foreclosure did not violate the
statutory constraints.

¶9            Jonas also argues the trial court erred in entering summary
judgment for the Association because “the right to foreclose [wa]s
extinguished altogether” when the Association failed to enforce the lien in
a timely fashion. At the time, A.R.S. § 33-1256(F) provided: “A lien for an
unpaid assessment is extinguished unless proceedings to enforce the lien
are instituted within three years after the full amount of the assessment
becomes due.”2 Here, the undisputed evidence reflects that the Association
acted in May 2017 to recover assessments that began accruing in June 2014
— within the three-year period.



2      The legislature recently enlarged the enforcement period to six years.
See 2019 Ariz. Sess. Laws, ch. 200, § 1 (1st Reg. Sess.).



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                         WATER WORKS v. JONAS
                          Decision of the Court

¶10           Jonas next argues the trial court miscalculated the amount of
the assessment lien that justified the foreclosure judgment and erred in
failing to identify the amounts Jonas owed personally in a separate lien.
The judgment reflects otherwise. Moreover, Jonas does not present any
convincing argument suggesting that the indebtedness identified in the
judgment is erroneous. See infra n.3. To the contrary, our independent
review of the undisputed evidence reveals substantial support for the
court’s calculations of both the secured and unsecured portions of the
judgment.

¶11            Finally, Jonas argues the trial court erred by failing to apply
equitable principles to deny foreclosure.3 Even assuming the court has
discretion to deny a judgment of foreclosure to a condominium owners’
association proceeding under A.R.S. § 33-1256(A) based upon equitable
principles, Jonas waived this argument by failing to raise it to the trial court.
See Allstate Indem. Co. v. Ridgely, 214 Ariz. 440, 442, ¶ 7 (App. 2007)
(collecting cases).

II.    Motion to Vacate

¶12             As a preliminary matter, Jonas argues the trial court ruled
upon the motion to vacate prematurely, before he had an opportunity to
reply. Although the court ruled before his reply was due, see Ariz. R. Civ.
P. 6(a), (c), 7.1(a)(3) (collectively explaining the applicable time limits and
how they should be calculated), Jonas did not seek reconsideration of the
ruling or object to the entry of judgment after the court denied his motion.
He does not argue he was prejudiced by the premature ruling and cites no
authority to support his suggestion that the court was required to treat the
allegations of his motion as true if it did not give him an adequate
opportunity to reply. The circumstances do not provide a basis for reversal.
See Ariz. R. Civ. P. 61 (“At every stage of the proceeding, the court must
disregard all errors and defects that do not affect any party’s substantial
rights.”); Creach v. Angulo, 189 Ariz. 212, 214-15 (1997).

¶13           Jonas also argues the trial court erred by denying the motion
to vacate on the merits. We review an order denying a motion to vacate for
an abuse of discretion. City of Phoenix v. Geyler, 144 Ariz. 323, 328 (1985)
(citing Coconino Pulp & Paper Co. v. Marvin, 83 Ariz. 117, 121 (1957)). A court


3     This argument is largely premised upon Jonas’s assertion that the
past-due assessments total only $630. It is unclear how Jonas calculated this
sum, and it finds no support in the record.



                                       5
                         WATER WORKS v. JONAS
                          Decision of the Court

abuses its discretion if it acts arbitrarily or inequitably, makes a decision
unsupported by facts or sound legal policy, or misapplies the law. Id.
(citing Bowman v. Hall, 83 Ariz. 56, 59-61 (1957), and Johnson v. Howard, 275
P.2d 736, 739 (Wash. 1954)). We will affirm if the decision is correct for any
reason. Delbridge v. Salt River Project Agric. Imp. & Power Dist., 182 Ariz. 46,
54 (App. 1994) (citing Rancho Pescado v. Nw. Mut. Life Ins., 140 Ariz. 174, 178
(App. 1984)). Reviewing each ground for relief Jonas alleged in his motion,
we find no abuse of discretion.4

       A.     Rule 60(b)(2): Newly Discovered Evidence

¶14           Jonas first asked the trial court to vacate the judgment based
upon “newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial.” Ariz. R. Civ. P.
60(b)(2). We defer to the court’s evaluation of a party’s diligence. Delbridge,
182 Ariz. at 54 (citing Ashton v. Sierrita Mining & Ranching, 21 Ariz. App.
303, 304 (1974)).

¶15          To support his motion, Jonas claimed he recently discovered
a ledger indicating payments were made against the debt before the
Association pursued foreclosure. The ledger is for Jonas’s own account
with the Association — a document he could have obtained in discovery,
had he asked for it — and is dated August 17, 2017 — nearly a year before
final judgment was entered.

¶16           Jonas also relies upon a filing in justice court indicating a
judgment the Association obtained against Perren, the prior owner of the
Property, had been satisfied in April 2015. The document is public record,
identifies Perren by the same name stated upon the deed transferring his
ownership to Jonas, and predates the judgment by more than three years.

¶17           Given the nature and availability of the documents and
Jonas’s assertion that he only discovered the documents through “a chance
discussion with [Perren],” the trial court could have concluded he was not


4       Jonas suggests for the first time on appeal that relief may have been
warranted under Arizona Rule of Civil Procedure 60(b)(3) (authorizing
relief from a judgment based upon “fraud . . . misrepresentation, or other
misconduct of an opposing party”) because the evidence underlying the
judgment “was literally a fraud.” Jonas did not assert Rule 60(b)(3) as a
ground for relief in the trial court, so the argument is waived. See supra
¶ 11.



                                       6
                         WATER WORKS v. JONAS
                          Decision of the Court

reasonably diligent in his pursuit of them. This finding is supported by the
record, and we find no abuse of discretion.

       B.     Rule 60(b)(5): Satisfaction of Judgment

¶18           Jonas also asked the trial court to vacate the judgment upon
the grounds that “the judgment ha[d] been satisfied, released, or
discharged.” Ariz. R. Civ. P. 60(b)(5). The parties dispute whether the
judgment the Association obtained against Jonas included some portion of
assessments Perren paid in satisfying the earlier judgment. That factual
issue could have been explored if relief under Rule 60(b)(2) was warranted.
Because it was not, see supra Part II(A), we cannot say the court abused its
discretion in rejecting Jonas’s belated claim under Rule 60(b)(5) that some
unspecified portion of the debt had been satisfied.

       C.     Rule 60(b)(6): Catchall

¶19            Finally, Jonas asked the trial court to vacate the judgment
under Rule 60(b)(6) for “any other reason justifying relief.” Sometimes
referred to as the “catchall,” this clause applies only where none of the other
subsections of Rule 60(b) apply and the motion raises “extraordinary
circumstances of hardship or injustice.” Stewart v. Travers (Estate of Travers),
192 Ariz. 333, 336, ¶ 24 (App. 1998) (quoting Webb v. Erickson, 134 Ariz. 182,
186-87 (1982)).

¶20            Although Jonas’s motion cited several subsections of Rule
60(b), the gist of his claim was that newly discovered evidence suggested
Perren had paid a portion of the debt underlying the Association’s
judgment against him. This claim falls squarely within the provisions of
Rule 60(b)(2). Travers, 192 Ariz. at 336-37, ¶ 24. Thus, there is no
independent reason justifying relief under Rule 60(b)(6), and the trial court
did not abuse its discretion in denying the motion to vacate on that ground.

                               CONCLUSION

¶21           The trial court’s orders are affirmed.

¶22          The Association requests an award of attorneys’ fees and costs
incurred on appeal pursuant A.R.S. § 12-341.01 and the CC&Rs, which
create an automatic lien against an owner who causes the Association to
incur attorneys’ fees and costs in the enforcement of the CC&Rs or
foreclosure of its lien. Upon review of the CC&Rs, we award the
Association its reasonable attorneys’ fees and costs incurred on appeal
upon compliance with ARCAP 21(b). See Chase Bank of Ariz. v. Acosta, 179


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                        WATER WORKS v. JONAS
                         Decision of the Court

Ariz. 563, 575 (App. 1994) (“A contractual provision for attorneys’ fees will
be enforced according to its terms.”).




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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