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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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.

FILED 1-9-2020
WATER WORKS v. JONAS

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2

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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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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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 oneyear 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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¶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.
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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.
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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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Ariz. 563, 575 (App. 1994) (“A contractual provision for attorneys’ fees will 

be enforced according to its terms.”).