                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                PATRICIA BOCCHINO, Plaintiff/Appellee,

                                   v.

       FOUNTAIN SHADOWS HOMEOWNERS ASSOCIATION,
                    Defendant/Appellant.

                          No. 1 CA-CV 16-0710
                           FILED 4-3-2018


          Appeal from the Superior Court in Maricopa County
                         No. CV2015-012434
               The Honorable Douglas Gerlach, Judge

                              AFFIRMED


                               COUNSEL

Dessaules Law Group, Phoenix
By Jonathan A. Dessaules, Ashley C. Hill
Counsel for Plaintiff/Appellee

Carpenter, Hazlewood, Delgado & Bolen, PLC, Phoenix
By Chad P. Miesen, Charlene Cruz
Counsel for Defendant/Appellant
                  BOCCHINO v. FOUNTAIN SHADOWS
                        Opinion of the Court



                                  OPINION

Judge John C. Gemmill1 delivered the opinion of the Court, in which
Presiding Judge Michael J. Brown and Judge Maria Elena Cruz joined.


G E M M I L L, Judge:

¶1             Fountain     Shadows      Homeowners         Association     (the
“Association”) appeals from summary judgment in favor of Patricia
Bocchino. We affirm the judgment requiring the Association to repay an
amount of attorney fees to Bocchino. The Association was not entitled to
unilaterally assess against her the attorney fees it incurred in obtaining from
justice court an injunction against her, when the Association did not seek
an award of attorney fees from the court and no fees were awarded by the
court.

                 FACTS AND PROCEDURAL HISTORY

¶2             Bocchino previously owned a home located within the
community known as Fountain Shadows. All property owners within
Fountain Shadows are members of the Fountain Shadows Homeowners
Association and are subject to a Declaration of Covenants, Conditions, and
Restrictions (the “Declaration”). A short time after purchasing the
property, Bocchino allegedly began harassing certain members of the
Association board and disrupting Association meetings. Her actions
prompted the Association to video record its meetings and hire an off-duty
police officer to keep the peace at the meetings.

¶3            On December 10, 2014, tensions boiled over at an Association
meeting. According to witnesses at the meeting and responding police
officers, Bocchino demanded copies of certain paperwork after the meeting
and refused to leave after being asked several times. According to
Bocchino, after the off-duty officer present for the meeting “twisted”
Bocchino’s arm, she called police to have that individual prosecuted for
assault. The responding officer viewed the video of the meeting and


1 The Honorable John C. Gemmill, retired Judge of the Arizona Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.



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                       Opinion of the Court

confirmed that after two people asked her to leave, the off-duty officer
walked her out in an “escort hold.” After “several minutes of arguing with
officers on scene,” Bocchino finally left.

¶4            The Association and several of its leaders sought from the
Manistee Justice Court an injunction against workplace harassment by
Bocchino, citing Arizona Revised Statutes (“A.R.S.”) section 12-1810. After
an ex parte hearing without notice to Bocchino, the justice court granted the
injunction. Bocchino did not thereafter contest the injunction. The
Association did not ask the justice court to grant attorney fees when it
sought the injunction, and the court did not award any fees. Instead, the
Association assessed — directly against Bocchino in her Association
account — the attorney fees it incurred ($3,887.28) to obtain the injunction.
To do so, the Association relied primarily on the following provisions in the
Declaration:

      Article XIII, Section 10. No noxious or offensive activity shall
      be carried on upon any Lot or any part of the Properties, nor
      shall anything be done thereupon which may be, or may
      become, an annoyance or nuisance to the neighborhood, or
      which shall in any way interfere with the quiet enjoyment of
      each of the Owners of his respective Townhouse, or which
      shall in any way increase the rate of insurance.

      Article XVII, Section I. Attorneys’ Fees. In the event the
      Association employs an attorney or attorneys to enforce the
      collection of any amounts due pursuant to this Declaration or
      in connection with any lien provided for herein, or the
      foreclosure thereof, or to enforce compliance with or specific
      performance of the terms and conditions of this Declaration,
      the Owner . . . against whom the action is brought shall pay
      all attorneys’ fees . . . thereby incurred by the Association in
      the event the Association prevails in any such action.

¶5            In making the assessment, the Association reasoned that
Bocchino’s conduct violated Article XIII, Section 10 of the Declaration; the
Association took legal action to enforce the Declaration; the Association
incurred attorney fees, costs and expenses in doing so; Article XVII, Section
I of the Declaration provides that the Association is entitled to recover all
attorney fees, costs and expenses incurred in such an action if it prevails;
and the Association prevailed by obtaining the relief it sought—the
issuance of the injunction.




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                        Opinion of the Court

¶6             Bocchino sold her Fountain Shadows home in September
2015. Five days prior to closing, the Association notified the title company
of the balance remaining on Bocchino’s account, including the attorney fees.
The title company withheld that balance from Bocchino’s sale proceeds and
remitted it to the Association.

¶7              Bocchino then filed a complaint in superior court alleging,
inter alia, breach of contract and breach of the covenant of good faith and
fair dealing. After the Association answered, Bocchino moved for
summary judgment. The Association responded to Bocchino’s motion with
a cross-motion for summary judgment. After briefing and argument, the
superior court ruled Bocchino was entitled to damages of $3,887.28, the
amount of the fees the Association assessed against her. The court
considered the issue of the Association’s entitlement to attorney fees as
turning on whether the injunction was enforceable, and the court concluded
that the injunction was unconstitutionally vague and overbroad. The court
also ruled that the Association could not have been the “prevailing party”
in an uncontested injunction against workplace harassment when Bocchino
was not given notice and did not participate.

¶8           The Association timely appeals. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21 and -2101.

                               DISCUSSION

¶9              “We review the grant of summary judgment de novo and
view the evidence in the light most favorable to [the Association], the party
against whom summary judgment was entered.” Espinoza v. Schulenburg,
212 Ariz. 215, 216, ¶ 6 (2006). We will affirm a summary judgment ruling if
it is correct for any reason. Hawkins v. State, 183 Ariz. 100, 103 (App. 1995).

¶10           As noted, the superior court found the injunction was
unenforceable as a matter of law because, as written, it was
unconstitutionally vague and overbroad. We decline to reach this
constitutional issue, however, because we can resolve this appeal on non-
constitutional grounds. See Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 6 (App. 2005)
(“Courts should decide cases on nonconstitutional grounds if possible,
avoiding resolution of constitutional issues, when other principles of law
are controlling and the case can be decided without ruling on the
constitutional questions.”) (citation omitted).

¶11            Although conceding it did not seek attorney fees from the
justice court that issued the injunction, the Association argues it was not
required to do so because the Declaration authorized the unilateral


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                        Opinion of the Court

imposition of the fees it incurred in seeking the injunction. Bocchino argues
the statute allowing an injunction against workplace harassment, A.R.S. §
12-1810, provided the “exclusive basis” for the Association to request and
receive its fees, and because the Association did not comply with the
statute’s requirements, it is barred from recovering an award of fees.

¶12           We conclude the superior court’s judgment should be
affirmed for two primary reasons.

¶13            First, A.R.S. § 12-1810 governs injunctions against workplace
harassment, and the Association relied on the statute when seeking its
injunction in justice court. Subsection 12-1810 (O) provides that “[o]n notice
to the affected party and after a hearing, the court may enter an order that
requires any party to pay the costs of the action, including reasonable
attorney fees.” (Emphasis added.) Therefore, we conclude the Association
waived its claim for attorney fees incurred in this judicial proceeding by not
requesting an award of fees from the justice court that issued the
injunction.2 This conclusion is also consistent with other Arizona rules and
statutes. See Ariz. R. Prot. Order Proc. 2(C)(1) (2015) (“After a hearing with
notice to the affected party, a judicial officer may order any party to pay the
costs of the action, including reasonable attorneys’ fees . . . .”) (emphasis
added); Ariz. R. Civ. P. 54(g)(1) (2015) (“A claim for attorneys’ fees shall be
made in the pleadings.”); Ariz. R. Just. Ct. P. 139(e) (“If a party has made a
claim for attorneys’ fees in a pleading, the party may request that attorneys’
fees be included in the amount of the judgment.”); A.R.S. § 12-341.01(A)
(“In any contested action arising out of a contract . . . the court may award
the successful party reasonable attorney fees.”) (emphasis added).

¶14         Second, the Declaration does not expressly provide that the
Association may assess, directly against a homeowner, attorney fees

2 We also note that a default judgment cannot exceed the relief requested
in the complaint served upon the defaulting defendant. See Ariz. R. Civ. P.
54(d) (2015) (“A judgment by default shall not be different in kind from or
exceed in amount that prayed for in the demand for judgment.”); Kline v.
Kline, 221 Ariz. 564, 571, ¶ 27 (App. 2009) (Rule 54(d) “serves the goals of
due process by preventing a plaintiff from securing a result in a default
proceeding without giving the defendant notice of the risk he faces.”).
Similarly, the Association did not provide Bocchino notice in the injunction
proceeding that it was seeking attorney fees, which would have allowed
Bocchino to choose whether to contest the validity of the injunction, any
award of fees, or both.



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                 BOCCHINO v. FOUNTAIN SHADOWS
                       Opinion of the Court

incurred in a judicial proceeding that have not been awarded by a qualified
tribunal.

¶15            The Association further contends that because the fee
provision in the Declaration allows the Association to recover “all” the fees
incurred, no judicial approval of fees is necessary. Section 12-1810(O) and
sound policy dictate otherwise. Even a contractual entitlement to “all”
attorney fees incurred can be overcome by an evidentiary showing that the
fees were “clearly excessive.” See McDowell Mountain Ranch Cmty. Ass’n,
Inc. v. Simons, 216 Ariz. 266, 270-71, ¶ 20 (App. 2007). Moreover, the
Association has cited no authority for the proposition that it was
permissible to simply charge Bocchino’s Association account for attorney
fees it incurred without first receiving an award from the court. Requiring
the tribunal that resolves the litigation to evaluate attorney fee claims – as
generally required by our statutes and rules – constitutes sound policy.
Courts play a significant role in assessing and awarding attorney fees
incurred in judicial proceedings.3




3  The parties’ competing contentions in this case underscore the value of
judicial oversight. Bocchino argues that the Association charged her for
attorney fees it incurred after the injunction was issued. And in its ruling,
the superior court observed that the record failed to show why it was
reasonable at all “to retain attorneys given the nature of the conduct
alleged.” Whether the fees the Association incurred were prima facie
reasonable (or clearly excessive) was a question for the court that issued the
injunction.



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                 BOCCHINO v. FOUNTAIN SHADOWS
                       Opinion of the Court

                             CONCLUSION

¶16            On this record, we conclude the Association improperly
assessed attorney fees against Bocchino that had not been awarded by the
justice court. We therefore affirm the judgment of the superior court.4

¶17           The Association has requested its attorney fees and costs on
appeal. Because it has not prevailed, we deny its request. Bocchino has
also requested her fees and costs pursuant to A.R.S. § 12-341.01. In the
exercise of our discretion, we decline to award Bocchino her attorney fees
on appeal. She may, however, recover her taxable costs upon compliance
with Arizona Rule of Civil Appellate Procedure 21.




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




4 We need not address the Association’s argument that the issuance of the
injunction was “conclusive” proof that Bocchino violated the Declaration.
We note, however, that the Declaration was not attached to the petition and
the justice court made no findings regarding Bocchino’s conduct vis-à-vis
the Declaration. Also, we need not address whether the Association
“prevailed” in obtaining, ex parte, the injunction.


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