IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

HERITAGE VILLAGE II HOMEOWNERS ASSOCIATION, 

Plaintiff/Appellee,

_________________________________

RICHARD WEINBERG, et al., Defendants/Appellees-Cross-Appellants,

v.

JOHN L. NORMAN; GERRY MOLOTSKY, Intervenors/Appellants-CrossAppellees.

No. 1 CA-CV 18-0193

Appeal from the Superior Court in Maricopa County

No. CV2014-009229

The Honorable Hugh E. Hegyi, Judge, Retired

REVERSED IN PART, VACATED IN PART, AND REMANDED

COUNSEL

Dickinson Wright, PLLC, Phoenix

By Scott A. Holcomb, David J. Ouimette

Counsel for Plaintiff/Appellee

Mandel Young, PLC, Phoenix

By Taylor C. Young, Robert A. Mandel

Counsel for Defendants/Appellees-Cross-Appellants

Fennemore Craig, P.C., Phoenix

By Douglas C. Northup, Emily Ayn Ward

Counsel for Intervenors/Appellants-Cross-Appellees

FILED 5-21-2019
HERITAGE v. WEINBERG, et al.

Opinion of the Court

2

OPINION 

Presiding Judge James B. Morse Jr. delivered the opinion of the Court, in 

which Judge Jon W. Thompson and Vice Chief Judge Peter B. Swann joined.

M O R S E, Judge:

¶1 John L. Norman and Gerry Molotsky ("Movants") appeal the 

superior court's denial of their motion to intervene and corresponding 

award of attorneys' fees to Heritage Village II Homeowners' Association 

("Heritage") and Richard and Laine Weinberg. The Weinbergs cross-appeal 

the court's partial denial of their application for attorneys' fees. The 

superior court denied intervention for two reasons: (1) Movants did not 

seek intervention in a timely manner, and (2) Movants' ability to protect 

their interests would not be impaired or impeded because they could 

pursue a separate cause of action. For the reasons set forth below, we 

conclude that Movants were not untimely and that the availability of a 

separate cause of action does not create a per se prohibition to intervention 

of right. Accordingly, we reverse the superior court's order denying the 

motion to intervene and vacate the orders awarding fees and dismissing the 

lawsuit. We remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 The Weinbergs own a home located in Heritage Village II, 

which is part of the McCormick Ranch master-planned community in 

Scottsdale. In July 2014, Heritage sued the Weinbergs alleging they violated

the applicable covenants, conditions, and restrictions ("CC&Rs") in building 

their new home. The complaint included claims for declaratory relief, 

breach of contract, and breach of the duty of good faith and fair dealing.

¶3 After a three-day hearing, the superior court granted

declaratory relief, concluding the Weinbergs had violated the CC&Rs and 

ordering them to bring their home into compliance. Thereafter, the court 

awarded Heritage $111,711.53 in attorneys' fees and $3,932.22 in costs.

1

 

1 The Weinbergs appealed from the attorneys' fee award, but this 

court dismissed their appeal for lack of jurisdiction. See generally Heritage 
HERITAGE v. WEINBERG, et al.

Opinion of the Court

3

¶4 The superior court then entered an order directing the

Weinbergs to take specific remedial measures to bring their home into 

compliance with the CC&Rs. Nine months later, Heritage moved to compel

compliance with the order. Granting the motion in part, the superior court 

noted that the parties were still unable to agree on modifications necessary 

to bring the Weinbergs' home into compliance with the CC&Rs.

¶5 Meanwhile, Heritage's Board of Directors (the "Board") began 

to disagree on litigation strategy, dividing into a four-member majority and 

a three-member minority. In July 2017, the Board majority voted to settle 

with the Weinbergs, who agreed to make minor changes to their home in 

exchange for Heritage's promise to release them from liability for all 

attorneys' fees, including the $111,711.53 already awarded. The majority 

reasoned that there was "no end in sight" to the litigation and that Heritage 

was not financially able to further pursue the litigation.

¶6 Movants are homeowners and members of Heritage. One day 

before Heritage and the Weinbergs filed their notice of settlement, Movants

filed an emergency motion to intervene pursuant to Arizona Rule of Civil 

Procedure ("Rule") 24(a)(2), and filed an independent lawsuit in superior 

court against the Weinbergs. See generally Maricopa County Superior Court 

Case No. CV2017-009249.

¶7 Heritage and the Weinbergs opposed Movants' intervention

motion. Following oral argument, the superior court denied the motion to 

intervene and awarded Heritage and the Weinbergs some, but not all, of 

their attorneys' fees incurred in responding to the motion. The court then

entered final judgment approving the settlement and dismissing all claims.

¶8 Movants appealed, and the Weinbergs cross-appealed from 

the partial denial of their request for attorneys' fees. We have jurisdiction 

pursuant to Arizona Revised Statutes sections 12-2101(A)(1) and (A)(3). See 

McGough v. Ins. Co. of N. Am., 143 Ariz. 26, 30 (App. 1984) ("[A]n order 

denying intervention is an appealable order . . . .").

DISCUSSION

¶9 In reviewing the denial of a motion to intervene, we accept 

the allegations of the motion as true. Saunders v. Superior Court, 109 Ariz. 

424, 425 (1973). We review de novo the superior court's ruling on an 

 

Vill. II Homeowners' Ass'n v. Weinberg, 1 CA-CV 15-0547, 2017 WL 929743 

(Ariz. App. Mar. 9, 2017) (mem. decision).
HERITAGE v. WEINBERG, et al.

Opinion of the Court

4

applicant's right to intervene under Rule 24(a)(2). Dowling v. Stapley, 221 

Ariz. 251, 269-70, ¶ 57 (App. 2009). We review the court's ruling on the 

motion's timeliness, however, for an abuse of discretion. State ex rel. 

Napolitano v. Brown & Williamson Tobacco Corp., 196 Ariz. 382, 384, ¶ 5 (2000).

I. Denial of Motion to Intervene

¶10 A third party's ability to intervene as a matter of right is 

governed by Rule 24(a)(2). Under this rule, the superior court must permit 

intervention when four conditions are satisfied: (1) the motion is timely; (2) 

the movants claim an interest relating to the subject of the action; (3) the 

movants show that disposition of the action may, as a practical matter,

impair or impede their ability to protect their interests; and (4) the movants

show that existing parties do not adequately represent their interests. 

Woodbridge Structured Funding, LLC v. Ariz. Lottery, 235 Ariz. 25, 28, ¶ 13 

(App. 2014); Ariz. R. Civ. P. 24(a)(2).

¶11 Movants satisfy condition two and four. As homeowners and 

members of Heritage, they have an interest in ensuring the Weinbergs 

comply with the CC&Rs, which expressly provide that any owner "shall 

have the standing and right to enforce" the restrictions against other 

owners.

2 Likewise, Movants contest the settlement agreement between 

Heritage and the Weinbergs and allege that the settlement permits

violations of the CC&Rs to go forward unremedied. We must accept these 

allegations as true, and agree that Heritage no longer adequately represents 

Movants' interest in enforcing the CC&Rs against the Weinbergs. See 

Woodbridge, 235 Ariz. at 27, ¶ 3 ("[W]e take the allegations of [the] motion to 

intervene as true . . . .").

¶12 The superior court found that Movants failed to satisfy 

conditions one and three. We address these conditions in turn.

A. Timeliness of the Motion

¶13 Intervention as a matter of right requires a "timely motion." 

Ariz. R. Civ. P. 24(a). Timeliness hinges on two discrete questions: "the 

stage at which the action has progressed before intervention is sought and 

whether the applicant was in a position to seek intervention at an earlier 

 

2 The parties do not dispute that individual members have standing 

to enforce the CC&Rs, but they disagree as to how this authority applies in 

the context of architectural approval under the CC&Rs. Because the broad

grant of standing is sufficient to confer an interest in enforcement of the 

CC&Rs, we need not decide how far that interest extends.
HERITAGE v. WEINBERG, et al.

Opinion of the Court

5

stage of the proceedings." Winner Enterprises, Ltd. v. Superior Court

(Hancock), 159 Ariz. 106, 109 (App. 1988).

¶14 Movants argue that timeliness is measured "not from the 

inception of the case, but from when the movant has notice that its interests 

are no longer being adequately represented." Both the text of the Rule and 

the relevant case law support their position.

¶15 The Rule does not allow intervention of right where "existing 

parties adequately represent" the interest of the proposed intervenor. Ariz. 

R. Civ. P. 24(a)(2). Because Movants could not seek intervention of right 

until their interests diverged from those of Heritage, the Rule implicitly 

provides that timeliness must be measured from the stage in the 

proceedings at which Heritage no longer represented Movant's interests.

¶16 Our supreme court reached the same conclusion in 

interpreting an earlier version of the Rule. See John F. Long Homes, Inc. v. 

Holohan, 97 Ariz. 31 (1964). In that case, a home builder obtained a use 

permit from the City of Phoenix Board of Adjustment to construct a mobile 

home park. Id. at 32. A third party then petitioned the superior court to 

review the Board's decision, and the superior court entered a judgment 

finding the permit void. Id. The builder asked the City of Phoenix, a party 

to the superior court action, to appeal the court's judgment, but the City 

refused. Id. The builder moved to intervene after receiving notice from the 

City that it would not appeal. Id. Our supreme court found the builder's 

motion was timely:

[A]n application to intervene in the lower court under Rule 

24(a) is improper where arguments presented by the city are 

those which would be presented by the applicant. Thus, 

applicant was in no position to intervene under Rule 24(a)

prior to judgment and the receipt of notice by the city that it 

did not intend to prosecute the appeal. Upon receipt of this 

notice petitioner made application to intervene within three 

hours. We are of the opinion that an application made to 

intervene within three hours after the first time an application 

could be entertained has been timely made.

Id. at 34-35; see also United States v. Carpenter, 298 F.3d 1122, 1125 (9th Cir. 

2002) (concluding that a motion to intervene was timely because movants 

"acted as soon as they had notice that the proposed settlement was contrary 

to their interests"); Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) ("The 

crucial date for assessing the timeliness of a motion to intervene is when 
HERITAGE v. WEINBERG, et al.

Opinion of the Court

6

proposed intervenors should have been aware that their interests would 

not be adequately protected by the existing parties.").

¶17 Here, the majority of the Board voted to accept the Weinbergs'

settlement offer on July 7, 2017. Movants filed their emergency motion to 

intervene only five days later, before the Weinbergs and Heritage even filed 

their notice of settlement. Movants acted promptly after realizing that 

Heritage no longer adequately represented their interests. Therefore, the 

superior court abused its discretion in finding that the motion to intervene 

was untimely. See Winner Enterprises, Ltd., 159 Ariz. at 109-10 (finding 

intervention was timely when it was sought at least 21 days after movant 

had notice of the proceedings and entry of a preliminary injunction). 

B. Impaired or Impeded Ability to Protect Interests

¶18 Movants also must show that disposition of the action "may 

as a practical matter impair or impede" their ability to protect their interests.

Ariz. R. Civ. P. 24(a)(2). In denying the motion to intervene, the superior 

court did not determine whether the resolution of this case could possibly 

have an impact on the Movants' interest in enforcing the CC&Rs against the 

Weinbergs. Instead, the superior court relied on its determination that 

Movants "are free to file a separate lawsuit against the . . . Weinbergs 

concerning the matters the instant action raises."

¶19 Arizona cases have not yet opined on whether the availability 

of a separate action acts as a bar to intervention, but Federal Rule of Civil 

Procedure 24 is substantively indistinguishable from Arizona Rule 24, and 

we may look for guidance to federal courts' interpretations of their rules.

See Marquette Venture Partners II, L.P. v. Leonesio, 227 Ariz. 179, 182, ¶ 11, n.6 

(App. 2011).

3 

¶20 There is a split in authority in the federal cases and even 

among courts within the same circuit on this issue. Some courts have found 

that an intervenor's interest is not impaired or impeded unless the 

intervenor will be precluded from protecting its interests in another forum. 

See, e.g., California ex rel. Lockyer v. United States, 450 F.3d 436, 442 (9th Cir. 

 

3 Federal Rule 24 was liberalized to its current form in 1966, and "an 

earlier draft would have required that the judgment 'substantially' impair 

or impede the interest, but that higher barrier was deleted in the course of 

approving the amendment." Nuesse v. Camp, 385 F.2d 694, 701 (D.C. Cir. 

1967) (citing Sherman L. Cohn, The New Federal Rules of Civil Procedure, 54 

GEO. L. J. 1204, 1232 (1966)).
HERITAGE v. WEINBERG, et al.

Opinion of the Court

7

2006) (noting that even if a pending lawsuit "would affect the proposed 

intervenors' interests, their interests might not be impaired if they have 

'other means' to protect them"); Meridian Homes Corp. v. Nicholas W. Prassas 

& Co., 683 F.2d 201, 204 (7th Cir. 1982) (stating that impairment "depends 

on whether the decision of a legal question involved in the action would as 

a practical matter foreclose rights of the proposed intervenors in a 

subsequent proceeding"). However, other cases from those courts 

recognize that an interest may be impaired or impeded even when

alternative forums exist. See Johnson v. San Francisco Unified Sch. Dist., 500 

F.2d 349, 353 (9th Cir. 1974) (allowing intervention even though appellants 

had "the practical alternative of asserting in a subsequent lawsuit that the 

new policies adopted by the school district are unconstitutional");

Commodity Futures Trading Com'n v. Heritage Capital Advisory Services, Ltd., 

736 F.2d 384, 387 (7th Cir. 1984) ("It is true that where a proposed 

intervenor's interest will be prejudiced if it does not participate in the main 

action, the mere availability of alternative forums is not sufficient to justify 

denial of a motion to intervene.").

¶21 Other courts, including the Sixth and Tenth Circuits, take the

broader view that "a would-be intervenor must show only that impairment 

of its substantial legal interest is possible if intervention is denied. This 

burden is minimal." Utah Ass'n of Ctys. v. Clinton, 255 F.3d 1246, 1253 (10th 

Cir. 2001) (emphasis added) (quoting Grutter v. Bollinger, 188 F.3d 394, 399 

(6th Cir. 1999)); W. Energy All. v. Zinke, 877 F.3d 1157, 1167-68 (10th Cir. 

2017) (stating that the possibility of alternative forums is not sufficient to 

deny intervention if the intervenor's interest will be prejudiced if it is not 

allowed to participate in the main action) (citing Commodity Futures Trading 

Com'n, 736 F.2d at 387).

¶22 Our Rule, like its federal counterpart, does not require 

certainty, and only requires that an interest "may" be impaired or impeded. 

Ariz. R. Civ. P. 24(a)(2). Because "[i]t is well settled in Arizona that Rule 24 

'is remedial and should be liberally construed with the view of assisting 

parties in obtaining justice and protecting their rights,'" Bechtel v. Rose, ex 

rel. Dep't of Econ. Sec., 150 Ariz. 68, 72 (1986) (quoting Mitchell v. City of 

Nogales, 83 Ariz. 328, 333 (1958)), we agree with the broader approach. 

Thus, when proposed intervenors meet the minimal burden of showing 

that disposition of the action may impair or impede their ability to protect 

their interest, then the availability of an alternative forum, by itself, does 

not preclude intervention.
HERITAGE v. WEINBERG, et al.

Opinion of the Court

8

¶23 Thus, even if Movants can independently sue to enforce the 

CC&Rs,4 intervention is proper if Movant's ability to enforce the CC&Rs

may be impaired by the resolution of the current action. At a minimum, 

without intervention, Movants are denied the ability to weigh in on the 

merits of any settlement. See Johnson, 500 F.2d at 353 (allowing intervention 

where proposed intervenors sought "to influence the manner in which the 

school district exercises its admitted discretion" in resolving the underlying 

action). In light of the remedial nature of Rule 24 and the minimal burden

placed on proposed intervenors, we conclude that the disposition of the 

underlying case may, as a practical matter, impair or impede Movants'

ability to protect their claimed interests.

¶24 Accordingly, we reverse the superior court's order denying 

intervention and remand for further proceedings. Because we reverse the 

denial of intervention, we must vacate the judgment approving the 

settlement agreement and dismissing all claims. See McGough, 143 Ariz. at

30 (explaining that if an order denying intervention is reversed, the entire 

judgment will be reversed). On remand, Heritage and the Weinbergs may

re-urge whatever settlement agreement they deem appropriate between 

those parties.

5

II. Attorneys' Fees

¶25 Because we reverse the denial of Movants' motion to 

intervene, we also vacate the accompanying award of attorneys' fees, 

thereby mooting the Weinbergs' cross-appeal.

CONCLUSION

¶26 For the foregoing reasons, we reverse the superior court's 

denial of the motion to intervene and vacate the award of fees and the final 

 

4 During oral argument, counsel for both Heritage and the Weinbergs 

expressly reserved the right to assert that Movants could not pursue an 

independent action against the Weinbergs for the alleged violations of the 

CC&Rs at issue in this action.

5 We only determine that Movants have met the minimal burden for 

intervention of right under Rule 24(a)(2). Our decision does not address 

whether the actions to be take pursuant to the proposed settlement between 

Heritage and the Weinbergs would or would not cure any noncompliance 

with the CC&Rs. Such matters are left to the superior court in the first 

instance.
HERITAGE v. WEINBERG, et al.

Opinion of the Court

9

judgment approving the settlement agreement and dismissing all claims. 

We remand for further proceedings. We also deny the Weinbergs' and 

Heritage's requests for fees and costs on appeal.