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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

Plaintiff/Appellee,

v.

LENORD H. LANDWEHR, et al., Defendants/Appellants.

No. 1 CA-CV 21-0378

Appeal from the Superior Court in Maricopa County

No. CV2019-095283

The Honorable Janice K. Crawford, Judge

REVERSED AND REMANDED

COUNSEL

Burch & Cracchiolo PA, Phoenix

By Daryl Manhart, Andrew Abraham, Casey S. Blais

Counsel for Defendants/Appellants

Maxwell & Morgan PC, Mesa

By Charles E. Maxwell 

Counsel for Plaintiff/Appellee

FILED 4-21-2022
CROSSROADS v. LANDWEHR, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court, 

in which Judge Randall M. Howe and Judge James B. Morse Jr. joined.

C A M P B E L L, Judge:

¶1 Appellants Lenord and Kimberly Landwehr appeal from the 

superior court’s grant of summary judgment in favor of The Crossroads 

Estates Homeowners Association (Crossroads HOA) on the issue of 

whether their property is subject to the Estates’ covenants, conditions, and 

restrictions (CC&Rs). For CC&Rs or any other real covenant to be 

enforceable there must be a writing which satisfies the Statute of Frauds.

Nickerson v. Green Valley Recreation, Inc., 228 Ariz. 309, 315, ¶ 11 (App. 2011). 

Because neither the Landwehrs nor their predecessors in interest signed the 

CC&Rs or any other satisfactory writing, the court erred by enforcing the 

CC&Rs against the Landwehrs. Consequently, we reverse and remand for 

further proceedings.

BACKGROUND

¶2 The Landwehrs own Lot 11 in the Crossroads Estates. The 

Estates’ CC&Rs were recorded in 1997, and were declared and signed by

40th Street and McLellan L.L.C., which owned Lots 1 through 9 and 12

through 17 at the time. The CC&Rs established Crossroads HOA and 

required each “Lot” owner to, among other things, pay annual assessments 

for common area maintenance and improvements. The CC&Rs define “Lot” 

as “any of Lots 1 through 19 shown upon the Plat of Property,” but a 

separate provision excludes Lots 18 and 19. The only specific mention of 

Lot 11 is a farm animal exemption. The then-owners of Lot 11, the 

Wermuths, did not sign the declaration of CC&Rs, nor did the then-owners 

of Lots 18 and 19. In fact, the document did not even contain designated 

signature lines nor the owners’ names to allow the three lot owners to 

execute the document. 

¶3 The Wermuths subsequently conveyed Lot 11 to Valerie 

Randall, who sold it to the Landwehrs in 2018. Crossroads HOA sued the 

Landwehrs in July 2019, asserting a lien for unpaid assessments dating back 

to the Landwehrs’ date of purchase. In response, the Landwehrs contended
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3

that Lot 11 is not subject to the CC&Rs because they were never signed by 

any owner of Lot 11. 

¶4 On cross-motions for summary judgment, the superior court 

ruled in favor of Crossroads HOA determining that Lot 11 was subject to 

the CC&Rs and HOA assessments. The court reasoned that it was required 

to interpret the CC&Rs, and that if the CC&Rs “intended Lot 11 to be 

excluded,” Lot 11 would have been included in the provision excluding

Lots 18 and 19. The court interpreted the CC&Rs to subject Lots to 

assessments upon conveyance from a “Developer” and found that the 

Wermuths were “Developers” based on a separate agreement for an 

avigation easement. On that basis, the court concluded that Lot 11 became 

subject to regular assessments when the Wermuths conveyed it to Valerie 

Randall and that it remained subject to assessments after Randall’s

conveyance to the Landwehrs. 

¶5 The Landwehrs moved for a new trial, which the court 

denied. The Landwehrs timely appealed. 

DISCUSSION

¶6 On appeal, the Landwehrs challenge the superior court’s 

conclusion that Lot 11 is subject to the CC&Rs and the court’s denial of their 

motion for summary judgment, requesting the dismissal of the HOA’s 

lawsuit. In determining whether either party is entitled to summary

judgment on cross-motions, we review questions of law de novo and view 

the facts in a light most favorable to the party against whom summary 

judgment was granted. Matter of Estate of Podgorski, 249 Ariz. 482, 484, ¶ 8 

(App. 2020). The court should grant summary judgment only if it finds 

there are no genuine issues of material fact and that one party is entitled to 

judgment as a matter of law. Grain Dealers Mut. Ins. Co. v. James, 118 Ariz. 

116, 118 (1978). Summary judgment is inappropriate if the facts, even if 

undisputed, would allow reasonable minds to differ. Nelson v. Phoenix 

Resort Corp., 181 Ariz. 188, 191 (App. 1994). 

I. Enforceability of CC&Rs Against Lot 11

¶7 Regardless of whether the CC&Rs were intended to apply to 

Lot 11, they are only enforceable against Lot 11 if the elements for the 

creation of a real covenant are met. Four prerequisites must be met to create

a covenant that runs with the land in perpetuity:

(1) there must be a writing which satisfies the Statute of 

Frauds; 
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(2) the parties must intend that the covenant run with the 

land; 

(3) the covenant must touch and concern the land, i.e. make 

the land itself more useful or valuable to the benefited party; 

and

(4) privity of estate must exist between the original grantor 

and the grantee at the time the covenant is made.

Nickerson, 228 Ariz. at 315, ¶ 11. The Landwehrs focus on the first 

prerequisite, contending that no owner of Lot 11 ever agreed in writing that 

Lot 11 would be subject to the CC&Rs. See Ahwatukee Custom Estates Mgmt. 

Ass’n, Inc. v. Turner, 196 Ariz. 631, 634, ¶ 5 (App. 2000) (“CC&Rs constitute 

a contract between the subdivision’s property owners as a whole and 

individual lot owners.”); see also Phillips v. Hatfield, 624 S.W.3d 464, 475 

(Tenn. 2021) (“[A] person cannot restrict the use of another’s land simply 

by recording restrictive covenants that purport to apply to that land.”). 

Crossroads HOA contends that multiple documents, when read together, 

establish the intent that Lot 11 be bound. 

¶8 Multiple writings may satisfy the memorandum requirement 

if (1) one of the writings is signed and (2) the writings clearly indicate that 

they relate to the same transaction. Nowell v. Andrew Wright Enters., 143 

Ariz. 79, 83 (App. 1984) (quoting Restatement (Second) of Contracts § 132

(1979)). Crossroads HOA identifies three writings they believe satisfy the 

multiple writing requirements: the CC&Rs themselves, an “H.O.A. . . .

Addendum” included in the Landwehrs’ purchase documents, and a 1996 

“Avigation Easement” signed by the Wermuths. 

¶9 As for the CC&Rs, the superior court concluded that the 

Wermuths were “Developers” thereunder. This finding is not supported in 

the document itself. While the CC&Rs refer to “Developers” more than 

once, there is no definition of who is a “Developer.” Moreover, the 

Wermuths, the original owners of Lot 11, did not sign the CC&Rs, and no 

other record evidence shows that they agreed to accept that role. 

¶10 The HOA Addendum is signed by the Landwehrs and shows 

they were aware of Crossroads HOA and the assessments set forth in the 

CC&Rs. The Addendum does not show, however, that the Landwehrs

agreed that Lot 11 would be subject to the CC&Rs, as it states that “this 

property is ‘grandfathered in’ and may have certain privileges associated 

with that. Buyer to investigate what those privileges are.”
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¶11 The superior court also relied on the Avigation Easement

because it identifies the Wermuths as “Owners” and states that the 

“Owner[s] desire[] to subdivide and develop [the property known as 

Crossroads Estates] for residential purposes.” (Emphasis added). The

Avigation Easement has nothing to do with the CC&Rs; it simply served to

grant the City of Mesa “an easement for avigation purposes over and across 

[Crossroads Estates].” Indeed, the Avigation Easement was executed 

several months before the CC&Rs. It therefore does not evidence any intent

to bind Lot 11 to anything other than an aviation easement which has no 

relation to the CC&Rs. 

¶12 Crossroads HOA also cited a “Subdivision Report” prepared 

by the Arizona Department of Real Estate that identified the Wermuths as 

“SUBDIVIDER[S]” for Crossroads Estates and stated that “[a]ll lot owners 

will be members of the association.” Assuming without deciding the report 

is admissible evidence, it also fails to show the intent of the owners of Lot 

11 because it was not signed by the then-owners of Lot 11, the Wermuths, 

nor was it signed by anyone else. See Ariz. R. Civ. P. 56(c)(6) (“Affidavits 

may be supplemented or opposed by . . . other materials that would be 

admissible in evidence.”). The report also states that “not all of the 

information in this report has been verified” and that “certain information 

has been accepted . . . as true and accurate based on attestation of the 

subdivider and/or the subdivider’s agents.” As such, while this report may

be evidence that the Wermuths knew Crossroads HOA existed, it does not 

show that they “acknowledged Lot 11 was subject to the CC&Rs” as 

Crossroads HOA contends. 

¶13 The HOA also cites about a dozen documents attached to its 

cross motion for summary judgment, contending these “independently and 

collectively” satisfy the Statute of Frauds requirement. The superior court 

did not consider these documents because it found they were inadmissible 

due to a lack of proper custodial affidavits. See Ariz. R. Civ. P. 56(c)(5)

(requiring supporting affidavit to be based on personal knowledge, to set 

out admissible facts, to show the affiant’s competency to testify on those 

facts, and to attach or serve documents referenced therein). Crossroads 

HOA argues we should consider the documents on appeal because “almost 

all of [them] were either produced by the Landwehrs in response to 

discovery requests and/or were supported by appropriate custodial 

affidavits.” 

¶14 Documents produced in discovery are not automatically 

admissible, however. See Ariz. R. Civ. P. 26(b)(1) (“Information within this 

scope of discovery need not be admissible in evidence to be discoverable.”); 
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Catrone v. Miles, 215 Ariz. 446, 454, ¶ 25 (App. 2007) (differentiating between 

the standard for discoverability and the standard for admissibility).

Moreover, the HOA’s affidavits plainly fail to comply with Rule 56(e) of the 

Arizona Rules of Civil Procedure because they do not demonstrate personal 

knowledge of the documents at issue. In fact, the affidavits only specifically 

identify one of the documents at issue—a ledger showing payments from 

the Landwehr’s predecessors in interest to the HOA—but that document is 

identified and described only by its bates number. Cf. Wells Fargo Bank, N.A. 

v. Allen, 231 Ariz. 209, 213–14, ¶¶ 18–19 (App. 2012) (holding affidavit 

insufficient to invoke business-records hearsay exception or support 

motion for summary judgement because it did not describe or attach 

records at issue and because affiant did not describe his personal 

knowledge of specific records or manner in which they were prepared and 

stored). The superior court was correct to decline consideration of these 

additional documents.

¶15 For these reasons, the writings offered by Crossroads HOA 

do not satisfy the Statute of Frauds. Therefore, the CC&Rs are not 

enforceable covenants with respect to Lot 11. 

II. Unjust Enrichment

¶16 Crossroads HOA contends we can affirm based on unjust 

enrichment, asserting that the Landwehrs “have taken full advantage of all 

of the services and benefits” it provides. See, e.g., Pi’Ikea, LLC v. Williamson, 

234 Ariz. 284, 289, ¶ 15 n.7 (App. 2014) (“[W]e may affirm a trial court’s 

grant of summary judgment if it is correct for any reason.”). Crossroads 

HOA cites no record evidence to show this matter was even addressed in

the superior court. Their statement of facts in support of their motion for 

summary judgment asserted only that the Landwehrs “acknowledged they 

received at least irrigation benefits at the expense of [Crossroads HOA],”

citing correspondence between the parties’ counsel. 

¶17 In any event, this appeal arises from a stipulated judgment for 

foreclosure of a homeowners’ association lien, and the superior court only 

granted summary judgment regarding “whether Lot 11 is subject to the 

CC&Rs including payment of assessments.” Moreover, the parties dispute 

whether Crossroads HOA properly pleaded an unjust enrichment claim. 

As such, whether the Crossroads HOA can prevail on an unjust enrichment 

claim and, if so, what their recovery would be remains unresolved. 
CROSSROADS v. LANDWEHR, et al.

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III. Attorneys’ Fees and Costs 

¶18 Both sides request their attorneys’ fees and costs incurred in 

this appeal. The Landwehrs also request that we “direct[] the superior court 

[on] remand to . . . award their costs and attorneys’ fees incurred in the 

superior court proceedings.” We grant the Landwehrs’ request under 

A.R.S. § 12-341.01(A), but only as to attorneys’ fees and taxable costs 

incurred in this appeal. See Lacer v. Navajo Cnty., 141 Ariz. 392, 394 (App. 

1984) (“A party is entitled to an award of its attorney’s fees under A.R.S. 

§ 12-341.01 if judgment in its favor is based upon the absence of the contract 

sued upon by the adverse party.”). The superior court may consider 

whether to award attorneys’ fees and costs at the conclusion of the case. See

Schwab Sales, Inc. v. GN Constr. Co., Inc., 196 Ariz. 33, 37, ¶ 11 (App. 1998)

(party may recover attorneys’ fees under A.R.S. § 12-341.01(A) on an unjust 

enrichment claim if the claim “would not exist but for a contract”). 

CONCLUSION

¶19 We reverse the grant of summary judgment for Crossroads 

HOA and remand with instructions to enter judgment for the Landwehrs 

on Crossroads HOA’s lien foreclosure claim. We vacate the associated 

attorneys’ fees and costs award and remand for further proceedings

consistent with this decision.