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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


  SURPRISE FARMS COMMUNITY ASSOCIATION, Plaintiff/Appellee,

                                        v.

             RANDOLPH D. OAKMAN, Defendant/Appellant.

                             No. 1 CA-CV 16-0467
                               FILED 6-8-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV 2015-050969
               The Honorable Aimee L. Anderson, Judge

                                  AFFIRMED


                                   COUNSEL

Randolph D. Oakman, Surprise
Defendant/Appellant

Stratman Law Firm PLC, Phoenix
By Troy B. Stratman, Emily H. Mann
Counsel for Plaintiff/Appellee
                      SURPRISE FARMS v. OAKMAN
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Acting Presiding Judge Peter B. Swann and Judge Maria Elena Cruz
joined.


D O W N I E, Judge:

¶1             Randolph D. Oakman appeals from a judgment and decree
of foreclosure and order of sale, as well as from the denial of his motions
to set aside. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2           Oakman owns real property in Surprise that is subject to a
Declaration of Covenants, Conditions and Restrictions (the “Declaration”).
Pursuant to the Declaration, Oakman was obligated to pay assessments to
Surprise Farms Community Association (the “Association”). In 2015, the
Association filed a civil complaint against Oakman, alleging claims for
breach of contract and foreclosure.

¶3            The Association moved for summary judgment. Oakman
filed a response that did not comply with Arizona Rule of Civil Procedure
56, stating in conclusory fashion that the Association lacked a valid lien
and had erroneously calculated the amounts he owed. The superior court
granted summary judgment to the Association “on liability,” but
concluded there were “material questions of fact as to damages (including
the amount of reasonable attorney fees) and the amount of the lien.”

¶4             Several months later, the Association moved for summary
judgment on the remaining issue of damages. Oakman again filed a
response that did not comply with Rule 56, and he submitted no statement
of facts or evidence controverting the Association’s properly documented
motion.1 See GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 5 (App.



1     The Association’s damage itemizations were not accompanied by a
foundational affidavit. Oakman, though, admitted that he “failed to pay
assessments due [to] the HOA” and did not challenge the Association’s



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                    SURPRISE FARMS v. OAKMAN
                        Decision of the Court

1990) (if party opposing motion for summary judgment fails to present,
either by affidavit or other competent evidence, facts that controvert
moving party’s evidence, facts alleged by the moving party may be
considered as true). After oral argument, the superior court granted the
Association’s motion. Oakman filed motions to set aside that were
denied. Oakman timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and
-2101(A)(1).

                             DISCUSSION

¶5             “On appeal from a grant of summary judgment, we view all
facts and reasonable inferences therefrom in the light most favorable to
the party against whom judgment was entered.” Villa De Jardines Ass’n v.
Flagstar Bank, FSB, 227 Ariz. 91, 94, ¶ 2 (App. 2011). We will affirm “if
there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law.” Id. at 94–95, ¶ 5.

¶6            Oakman contends the Association’s failure to notify and join
the first mortgage holder prevents foreclosure. In rejecting this same
contention, the superior court ruled:

      Defendant argues that the June 13, 2016 Judgment must be
      set aside because the existence of a first mortgage on
      Defendant’s Property prevents the Plaintiff from foreclosing
      its assessment lien against Defendant’s property pursuant to
      A.R.S. §33-1807. Defendant is mistaken. The existence of a
      first mortgage on Defendant’s property does not prevent
      Plaintiff from foreclosing its assessment lien.

      Pursuant to A.R.S. §33-1807(A), Plaintiff may foreclose its
      assessment lien against Defendant’s property in the same
      manner as a mortgage on the property. Moreover, pursuant
      to A.R.S. §33-1807(B), Plaintiff’s lien against Defendant’s
      property is inferior to a recorded first mortgage, if any, that
      may be attached to the property. Therefore, the individual
      or entity who purchases Defendant’s property at the
      Sheriff’s sale, whether it be Plaintiff, or an unrelated third


calculations when opposing the motion for summary judgment. Oakman
does not challenge the damage calculations on appeal either.




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                     SURPRISE FARMS v. OAKMAN
                         Decision of the Court

      party, will take title to the property in question subject to
      any first mortgage on the property.

We agree with the superior court.

¶7            The existence of a first mortgage does not prevent the
Association from foreclosing.        Section 33-1807(A) states that an
association’s lien for assessments and related charges “may be foreclosed
in the same manner as a mortgage on real estate.” And pursuant to A.R.S.
§ 33-1807(B)(2), an association’s lien is “prior to all other liens” except a
“recorded first mortgage on the unit.” The Association has repeatedly
acknowledged that its lien is inferior to a recorded first mortgage.
Oakman’s reliance on Villa De Jardines, 227 Ariz. at 94, 96–97, ¶¶ 2, 15, and
Cypress on Sunland Homeowners Ass’n v. Orlandini, 227 Ariz. 288, 292, ¶¶ 4–
6 (App. 2011), is unavailing. The homeowners’ associations in those cases
named the first mortgage holders as defendants, asserting that they were
subordinate to the assessment liens. The Association here has made no
such claim.2

¶8             Finally, Oakman argues the Association perpetrated a fraud
on the court because its “attorneys did not present a ‘legitimate’ legal
argument supporting the [Association’s] position and therefore, as a
matter of law, committed a fraud upon the court.” This argument is
meritless, as the Association’s legal position was, in fact, correct.

                             CONCLUSION3

¶9           For the foregoing reasons, we affirm the judgment of the
superior court. The Association has requested its attorneys’ fees and costs
on appeal pursuant to the Declaration and A.R.S. § 12-341.01. The
Association is entitled to recover its taxable costs on appeal, as well as

2     The Association’s amended complaint named three defendants with
allegedly inferior liens against the property, none of whom are the first
mortgage holder.
3      We do not separately address rulings on Oakman’s motion to set
aside the superior court judgment because it raised the same arguments
we have discussed and rejected supra. And in the context of this litigation,
the superior court lacked jurisdiction to vacate judgments issued by the
justice courts in separate matters.




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                   SURPRISE FARMS v. OAKMAN
                       Decision of the Court

reasonable attorneys’ fees, upon compliance with Arizona Rule of Civil
Appellate Procedure 21.




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




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