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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THE FOREST HIGHLANDS ASSOCIATION,

an Arizona non-profit corporation,

Plaintiff/Counter-Defendant/Appellee,

v.

CLIFFORD E. ALEXANDER, III; and JEANNE FISHER, 

Defendants/Counter-Claimants/Appellants.

No. 1 CA-CV 16-0714

Appeal from the Superior Court in Coconino County

No. S0300CV201600118

The Honorable Mark R. Moran, Judge

AFFIRMED

COUNSEL

Mangum, Wall, Stoops & Warden, P.L.L.C., Flagstaff

By Brandon J. Kavanagh, Thomas E. Dietrich

Counsel for Plaintiff/Counter-Defendant/Appellee

Clifford E. Alexander, III, Jeanne Fisher, Flagstaff

Defendants/Counter-Claimants/Appellants

FILED 11-9-2017
FOREST HIGHLANDS v. ALEXANDER, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.

C R U Z, Judge:

¶1 The Forest Highlands Association (“Forest Highlands”) 

brought a complaint against Clifford E. Alexander, III and Jeanne Fischer 

(the “Alexanders”), claiming breach of contract and unjust enrichment 

based on the Alexanders’ failure to pay fees according to Forest Highlands’

Covenants, Conditions, and Restrictions (“CC&Rs”). The Alexanders 

appeal from the superior court’s order granting summary judgment in 

favor of Forest Highlands. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 The Alexanders bought real property in Forest Highlands, a 

housing association located in Coconino County, in 2005. All property in 

the Forest Highlands development is acquired subject to the CC&Rs, which 

were recorded in 2000. In addition to the CC&Rs, Forest Highlands has 

adopted the Forest Highlands Golf Club 2014 Rules, Information and Fees 

(“Association Rules”) and the Forest Highlands Association Enforcement 

Policies and Procedures, both of which are applicable to and regulate the 

conduct and obligations of the members.

¶3 On May 29, 2014, Mr. Alexander was involved in an incident 

in which, according to Forest Highlands, he intimidated a group of 

children, threatened to chase them with a gun, chased them with his 

vehicle, and stole one of the children’s bicycles. Coconino County Sheriff’s 

Office deputies responded, and after investigation arrested Mr. Alexander, 

although he claims he was later only charged with misdemeanors. The 

Alexanders do not dispute that Mr. Alexander was involved in the incident, 

although in their answer they deny he did anything wrong.

¶4 Based on that incident, the Forest Highlands Board of 

Directors (“Board”) charged Mr. Alexander with violating Forest 

Highlands’ code of conduct contained within Association Rule 2.2, which 

prohibits flagrant misconduct such as: verbally abusing, harassing, and 

intimidating another; driving a vehicle in a reckless manner; theft; and 
FOREST HIGHLANDS v. ALEXANDER, et al.

Decision of the Court

3

endangering the safety, health, and welfare of other individuals in the 

community. The Board issued a notice to Mr. Alexander and set a hearing, 

advising the Alexanders they faced potential fines and assessments under 

CC&R section 6.4.1

¶5 The hearing proceeded as scheduled, and the Alexanders 

attended and participated. After the hearing, the Board assessed the 

Alexanders a $250 fine for Mr. Alexander’s violation of Forest Highlands’

code of conduct, and $2,707.90 in attorneys’ fees and costs associated with 

its investigation of the violation (collectively, the “special assessment,” 

totaling $2,957.90). The Alexanders refused to pay the special assessment. 

In addition, the Alexanders also stopped paying their regular monthly 

homeowner association fee assessments.

¶6 After the Alexanders failed to pay the special assessment and 

past due account balance, Forest Highlands recorded a lien against their

property as allowed by CC&R section 6.1.2 Forest Highlands then sued the 

Alexanders alleging breach of contract and seeking damages in the amount 

of the Alexanders’ outstanding regular and special assessment balances 

and, in the alternative, unjust enrichment, based on membership benefits 

the Alexanders received without paying their dues.

¶7 In their answer to the complaint, the Alexanders admitted 

they purchased their property subject to the CC&Rs, denied Mr. Alexander 

harassed or intimidated the children but admitted his participation in the 

incident, acknowledged the violations hearing but contested its legality, 

disputed the grant of attorneys’ fees as a special assessment in investigating 

 

1 CC&R section 6.4 permits Forest Highlands to charge a special 

assessment against a member for costs incurred in bringing the member 

into compliance with its CC&Rs, Articles, Bylaws, Association Rules or 

Development Standards, as well as associated attorneys’ fees, interest, and 

other costs.

2 CC&R section 6.1 states that each member, upon acquiring property, 

“covenants and agrees to pay to [Forest Highlands] Regular Assessments, 

Special Assessments, Capital Improvement Assessments . . . from time to 

time as provided in [the CC&Rs],” and provides that all unpaid 

assessments, costs, fees, and interest operate as a continuing lien on the 

member’s property against which those charges are made.
FOREST HIGHLANDS v. ALEXANDER, et al.

Decision of the Court

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the violation, and challenged the calculation of past due regular 

assessments owed. The Alexanders also requested a jury trial.

¶8 Forest Highlands moved for summary judgment, which the 

superior court granted over the Alexanders’ objection. The court entered 

judgment in the amount of $25,131.25 on the unpaid assessments and late 

fees incurred on those assessments, plus attorneys’ fees of $24,278.50. The 

Alexanders timely appealed.

¶9 We have jurisdiction pursuant to Arizona Revised Statutes 

(“A.R.S.”) section 12-2101(A)(1).

DISCUSSION

¶10 Summary judgment is appropriate only if there is no genuine 

dispute of material fact and the moving party is entitled to judgment as a 

matter of law. Ariz. R. Civ. P. 56(a). We review de novo the superior court’s 

grant of summary judgment, viewing the facts in the light most favorable 

to the party against whom judgment was entered. Great Am. Mortg., Inc. v. 

Statewide Ins. Co., 189 Ariz. 123, 124-25 (App. 1997). 

¶11 The Alexanders raise two arguments on appeal, claiming: (1) 

the superior court erred by not granting them a jury trial pursuant to their 

request under the Seventh Amendment of the United States Constitution; 

and (2) the court violated the Alexanders’ due process rights by granting 

summary judgment without any further proceedings. The Alexanders’ 

arguments challenge the propriety of the procedural tool of summary 

judgment in general, not its application to this particular case. In fact, they 

cite no facts in support of their contention that a genuine issue of material 

fact exists to be resolved by a jury.

¶12 The arguments the Alexanders raise on appeal were rejected 

by the Arizona Supreme Court in Orme School v. Reeves, 166 Ariz. 301, 308-

09 (1990). In Orme, the Court considered whether a rule granting a superior 

court judge the power to enter judgment without trial usurps the jury’s 

function and interferes with a constitutional right to a jury trial. Id. at 308. 

The Orme Court held it did not, recognized that federal law granted the 

federal courts the power to direct verdicts, citing Galloway v. United States, 

319 U.S. 372, 389 (1943), and held that allowing summary judgment in civil 

cases would “do no violence to our guarantee of trial by jury under article 

2, § 23 of the Arizona Constitution.” Orme, 166 Ariz. at 308-09. The right to 

a jury trial only attaches if the case presents a genuine factual question, and 

as such, summary judgment operates “as an efficient instrumentality to 
FOREST HIGHLANDS v. ALEXANDER, et al.

Decision of the Court

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expedite the business of the court by permitting the summary adjudication 

of meritless claims without the necessity of trial.” Id. at 305, 308.

¶13 Although we view the facts in the light most favorable to the 

Alexanders, they have failed to identify any material issue of fact in the 

record sufficient to preclude summary judgment. 

CONCLUSION

¶14 We affirm the superior court’s grant of summary judgment.

¶15 Forest Highlands seeks attorneys’ fees and costs, pursuant to 

Arizona Rule of Civil Appellate Procedure 21 and A.R.S. § 12-341.01. 

Because Forest Highlands is the successful party, we award its costs and 

reasonable attorneys’ fees.3

 

3 The Alexanders filed a separate Statement of Costs on April 24, 2017. 

This decision resolves that request. Because we award Forest Highlands its 

costs and reasonable attorneys’ fees as the successful party, we deny the 

Alexanders’ request for costs.