                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


         DOUG KULPINS and KIM KULPINS, husband and wife,
               Plaintiffs/Counterdefendants/Appellants,

                                        v.

   LYNNE S. WEAVER, as Trustee of the LYNNE S. WEAVER LIVING
                             TRUST,
               Defendants/Counterclaimants/Appellees.

                             No. 1 CA-CV 15-0707
                               FILED 12-8-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV 2013-000599
                The Honorable Karen A. Mullins, Judge

                                  AFFIRMED


                                   COUNSEL

Law Offices of J. Roger Wood, PLLC, Tempe
By James Roger Wood, Erin S. Iungerich
Counsel for Plaintiffs/Counterdefendants/Appellants

Wong Carter, PC, Phoenix
By Matthew Klopp, Stewart F. Gross
Defendant/Counterclaimant/Appellee
                           KULPINS v. WEAVER
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.


O R O Z C O, Judge:

¶1           Doug and Kim Kulpins (the Kulpins) appeal the superior
court’s judgment in favor of Lynne S. Weaver, as Trustee of the Lynne S.
Weaver Living Trust (Weaver). For the following reasons, we affirm the
superior court’s judgment.

                 FACTS AND PROCEDURAL HISTORY

¶2           The Kulpins and Weaver are neighbors, owning real property
located within the Preserve at Shadow Mountain Homeowners Association
(the HOA). Weaver planted Sissoo, Mesquite, Ficus and Desert Willow
trees in her backyard; these plants and trees were approved and
recommended by the HOA’s Design Review Guidelines (the DRGs).
Weaver’s backyard also had mature Ficus trees planted by the developer.

¶3           The Kulpins complained Weaver’s landscaping blocked the
views from their backyard and sued Weaver for breach of contract and a
permanent injunction directing Weaver to immediately trim and
permanently maintain their landscaping at a height equal to the shared
block wall. The Kulpins also contended Weaver completed her landscaping
project without first having received a written approval by the HOA’s
Architectural Design Review Committee (the DRC), in violation of the
HOA’s recorded deed restrictions (the CC&Rs). The Kulpins also
demanded the original mature Ficus trees be cut down.

¶4            Prior to trial, both parties submitted a stipulated statement of
facts, in which they agreed to the following: (1) neither the CC&Rs nor the
DRGs restrict the heights of trees or other landscaping; (2) the CC&Rs do
not contain any restrictions with respect to owners’ views; (3) neither party
has a view easement with respect to each other’s properties; (4) the DRGs
encourage owners to plant trees and other landscaping from a list of plants
approved by the DRC; (5) trees and bushes of varying heights are planted
in the backyards of almost every home within the HOA; (6) the DRGs




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                            KULPINS v. WEAVER
                            Decision of the Court

govern front and rear yard landscaping; (7) improvements1 visible from
adjacent properties require prior written approval of the DRC; (8) the DRC
approved Weaver’s landscaping project subsequent to its completion, but
without any height or location restrictions; (9) the DRC has “the right to
refuse to approve any plans . . . not suitable . . . [and consider] the effect of
the building or other structure . . . on the outlook from the adjacent or
neighboring Property;” and (10) “[n]o . . . landscaping . . . which in any way
alters . . . any part of a Lot . . . from its natural or improved state existing on
the date such Lot was first conveyed or transferred by . . . Developer to a
Public Purchaser shall be made . . . without the prior written approval of
the [DRC].”

¶5            Before trial, neither party requested that the superior court
issue findings of fact. After a bench trial, the superior court entered
judgment against the Kulpins’ claims for breach of the CC&Rs and
injunctive relief, without making findings of fact. The Kulpins timely
appealed. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections
12-120.21.A.1 and -2101.A.1 (West 2016).2

                                 DISCUSSION

¶6             We review a superior court’s denial of injunctive relief for
abuse of discretion. See Ahwatukee Custom Est. Mgmt. Ass’n, Inc. v. Turner,
196 Ariz. 631, 634, ¶ 5 (App. 2000). A superior court abuses its discretion
when it commits an error of law or fails to consider evidence in reaching a
discretionary conclusion, commits some other substantial error of law, or if,
upon review, “the record fails to provide substantial evidence to support
the trial court’s finding.” Flying Diamond Airpark, LLC v. Meienberg, 215
Ariz. 44, 50, ¶ 27 (App. 2007). In the absence of express findings of fact, we
will presume the superior court found every fact necessary to sustain its
judgment, which we will affirm if reasonable evidence supports it, Fleming
v. Becker, 14 Ariz. App. 347, 350 (1971), even if substantial contradictory
evidence exists. Moore v. Title Ins. Co. of Minn., 148 Ariz. 408, 413 (App.
1985).



1      The CC&Rs include “plantings, planted trees and shrubs” in their
definition of Improvement. CC&R, Art. I, Sec. 18.

2     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.



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                            KULPINS v. WEAVER
                            Decision of the Court

I.            Findings of Fact

¶7           The Kulpins argue the superior court’s final order does not
comply with Arizona Rules of Civil Procedure 52(a) and 65(h) and
substantive law because the court did not make findings of fact. They
contend that the case should be remanded for the superior court to make
such findings.

¶8            Rule 52(a) requires that “[i]n all actions tried upon the facts
without a jury[,] . . . the court, if requested before trial, shall find the facts
specially and state separately its conclusions of law thereon.” (emphasis
added); Elliott v. Elliott, 165 Ariz. 128, 134 (App. 1990) (requiring the trial
court to make findings of all ultimate facts when a party submits a timely
request pursuant to Rule 52(a)). “Because a trial court and opposing
counsel should be afforded the opportunity to correct any asserted defects
before error may be raised on appeal, absent extraordinary circumstances,
errors not raised in the trial court cannot be raised on appeal.” Trantor v.
Fredrikson, 179 Ariz. 299, 300 (1994) (citation omitted).

¶9          Weaver argues the Kulpins should have requested the
superior court issue findings of fact either prior to or after trial. She
contends that because the Kulpins did not request findings of fact the
judgment must be affirmed.

¶10          The Kulpins concede that they did not request any findings of
fact pursuant to Rule 52(a). Therefore, the superior court was not required
to make findings of fact.

¶11           The Kulpins also argue that the superior court was required
to make findings of fact because a preliminary injunction was requested.
Rule 65(h) states that “[e]very order granting an injunction . . . shall set forth
the reasons for its issuance and shall be specific in terms.” (emphasis
added). Because the injunction requested was denied, the Rule 65(h)
requirement for findings of fact does not apply.

¶12           Finally, the Kulpins challenge the superior court’s denial of
their claims for a permanent injunction and breach of contract. In the
absence of express findings of fact, we review the record and determine
whether reasonable evidence supports the superior court’s judgment.

¶13            We find no error. The record shows that the Kulpins possess
no easement protecting their views. The CC&Rs do not restrict the height
of trees or landscaping. Weaver used trees pre-approved by the DRGs. The
CC&Rs prohibit the alteration and removal of trees that were installed in


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                          KULPINS v. WEAVER
                          Decision of the Court

the Weaver’s backyard by the original developer. Moreover, the DRC’s
approval of Weaver’s landscaping project, after the fact, was not an
unreasonable exercise of its discretionary design-control powers, see Tierra
Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 202, ¶ 28 (App. 2007),
which we may presume the superior court concluded as well. See Fleming,
14 Ariz. App. at 350. The record thus provides substantial evidence to
support the superior court’s decision and we find no abuse of its discretion.

II.          Attorney Fees

¶14           Both parties requested an award of attorney fees and costs on
appeal. The Kulpins state no basis for their request in their opening brief.
See ARCAP 21(a)(1) (“A party claiming attorney[] fees must do so in an
opening or an answering brief on appeal.”). Weaver makes her request
pursuant to Arizona Rule of Civil Appellate Procedure 21, the CC&Rs,3 and
A.R.S. § 12-341.01. Section 12-341.01.A provides a court with discretion to
award reasonable attorney fees to a prevailing party “[i]n any contested
action arising out of a contract.” Id. As Weaver is the prevailing party on
appeal, we will award her a reasonable amount of attorney fees and costs
incurred on appeal upon compliance with ARCAP 21.

                              CONCLUSION

¶15          For the foregoing reasons, we affirm the superior court’s
judgment in favor of Weaver.




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




3     “[A]ny Owner shall have the right to . . . recover its attorney[] fees
and costs in connection with [a proceeding in law or equity] if it prevails.”
CC&R, Art. IX, Sec. 2.


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