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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

WATER WORKS CONDOMINIUM ASSSOCIATION, INC.
,

Plaintiff/Appell ee ,

v.

DWAYNE JONAS
, Defendant/Appell ant

.

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/Appell ee

Dwayne Jonas
, Casa Grande Defendant/Appell ant

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 1-9-2020WATER WORKS v. JONAS Decision of the Court

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. T he 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 h ad been paid by Perren . The trial court denied Jonas’s motion, and he again timely appeal ed . 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. Was te 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.WATER WORKS v. JONAS Decision of the Court

3 entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a)

. W e 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 Ph oeni x , 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’
associa tion, the lien is governed by A.R.S. § 3 3

- 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 l ate 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 amoun t 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 ch arges 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

- 1 256 (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, c harges for late payment of those assessments, reasonableWATER WORKS v. JONAS Decision of the Court

4 collec tion fees

, and reasonable attorney s’ fees and costs incurred with respect to those assessments

. Id. This lien is automatically levied against the unit “f r om 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 occur s 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 cou rt 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 judgme nt was error because the Association failed to satisfy the statutory prerequisites to foreclosure.
Because Jonas did not challenge t he ledger for the Property that the Association produced in support of its motion

, we presume it to be

accurate. See Tille y 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. B y 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 one

year 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 Associat ion because “the right to foreclose [wa]s extinguished altogether” w hen the Association failed to enforce the lien in a timely fashion. A t the time, A.R.S. § 33

- 1 256 (F) provide d : “ 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.).WATER WORKS v. JONAS Decision of the Court

5 ¶10 Jonas next argues the trial court miscalculated the amount of the assessment lien that justified the foreclosure judgment and erred i n fail ing to identify the amounts Jonas owed personally in a separate lien

. The judgment reflects otherwise. Moreover, Jonas does not present any
convincin g argument suggesting that the indebtedness identified in the judgment is erroneous. See infra n.3. To the contrary, o ur independent
review of the undisputed evidence reveals substantial support for the court’s calculations of both the secured and unsecu red 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 proceed ing under A.R.S. § 33

- 1 256 (A) based up on 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 prelimin ary matter, Jonas argues the trial court ruled
up on 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 cite s no auth ority 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. T h e 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 me rits. We review an order denying a motion to vacate for an abuse of discretion. City of Ph oeni x 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 up on 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 t he record.WATER WORKS v. JONAS Decision of the Court

6 abuses its discretion if it acts arbitra rily 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 relie f 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
up on “newly discovered evidence that, with reasonable diligence, could not have been di scovered 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 moti on, Jonas claim ed 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 h e asked for it

— and is dated August 17, 2017

— nearly a year before final judgment was entered.

¶16 Jonas also relies up on 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 up on the deed transferring his ownership to Jonas, and predates the judgment by more than three years.

¶17 G iven the nature and availability of the do cuments and Jonas’s assertion that he only discovered the documents through “a chance discussion with [Perren] ,” t he trial court could have concluded he was not

4 Jonas suggest s 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 up on “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 re lief in the trial court, so the argument is waived

. See supra ¶ 11.WATER WORKS v. JONAS Decision of the Court

7 reasonably diligent in his pursuit of them. This finding is supported by the record, and w e fi nd no abuse of discretion.

B. Rule 60(b)(5) : Satisfaction of Judgment

¶18 Jonas also asked the trial court to vacate the judgment up on the grounds that “the judgment ha[d] been satisfied, released, or discharged.” Ariz. R. Civ. P. 60(b)(5). T he parties dispute whether the judgment the Association obtained against Jonas include d some portion of

assessments Perren paid in satisfying the earlier judgment. That factual issue could have been explo red if relief under Rule 60(b)(2) w as warranted. Because it was not, see supra Part II(A), we cannot say the court abused its discretion in rejecting Jonas’s belated claim u nder 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 appl ies 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) (quoti ng Webb v. Erickson , 134 Ariz. 182, 186

- 87 (1982) )

. ¶20 Although Jon a s ’ s motion cited several subsections of Rule 60(b)

, the gist of his claim was that newly discovered evidence suggest ed 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 groun d.

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. § 1 2

- 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 reason able attorneys’ fees and costs incurred on appeal upon compliance with ARCAP 21(b). See Chase Bank of Ariz. v. Acosta , 179WATER WORKS v. JONAS Decision of the Court

8 Ariz. 563, 575 (App. 1994) (“A contractual provision for attorneys’ fees will be enforced according to its terms.”).