NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

DOUG KULPINS and KIM KULPINS, husband and wife, 

Plaintiffs/Counterdefendants/Appellants,

v.

LYNNE S. WEAVER, as Trustee of the LYNNE S. WEAVER LIVING 

TRUST, 

Defendants/Counterclaimants/Appellees.

No. 1 CA-CV 15-0707

Appeal from the Superior Court in Maricopa County

No. CV 2013-000599

The Honorable Karen A. Mullins, Judge

AFFIRMED

COUNSEL

Law Offices of J. Roger Wood, PLLC, Tempe

By James Roger Wood, Erin S. Iungerich

Counsel for Plaintiffs/Counterdefendants/Appellants

Wong Carter, PC, Phoenix

By Matthew Klopp, Stewart F. Gross

Defendant/Counterclaimant/Appellee
KULPINS v. WEAVER

Decision of the Court

2

MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which 

Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.

O R O Z C O, Judge:

¶1 Doug and Kim Kulpins (the Kulpins) appeal the superior 

court’s judgment in favor of Lynne S. Weaver, as Trustee of the Lynne S. 

Weaver Living Trust (Weaver). For the following reasons, we affirm the 

superior court’s judgment. 

FACTS AND PROCEDURAL HISTORY

¶2 The Kulpins and Weaver are neighbors, owning real property 

located within the Preserve at Shadow Mountain Homeowners Association 

(the HOA). Weaver planted Sissoo, Mesquite, Ficus and Desert Willow

trees in her backyard; these plants and trees were approved and 

recommended by the HOA’s Design Review Guidelines (the DRGs).

Weaver’s backyard also had mature Ficus trees planted by the developer.

¶3 The Kulpins complained Weaver’s landscaping blocked the 

views from their backyard and sued Weaver for breach of contract and a 

permanent injunction directing Weaver to immediately trim and 

permanently maintain their landscaping at a height equal to the shared 

block wall. The Kulpins also contended Weaver completed her landscaping

project without first having received a written approval by the HOA’s 

Architectural Design Review Committee (the DRC), in violation of the 

HOA’s recorded deed restrictions (the CC&Rs). The Kulpins also

demanded the original mature Ficus trees be cut down. 

¶4 Prior to trial, both parties submitted a stipulated statement of 

facts, in which they agreed to the following: (1) neither the CC&Rs nor the 

DRGs restrict the heights of trees or other landscaping; (2) the CC&Rs do 

not contain any restrictions with respect to owners’ views; (3) neither party 

has a view easement with respect to each other’s properties; (4) the DRGs 

encourage owners to plant trees and other landscaping from a list of plants 

approved by the DRC; (5) trees and bushes of varying heights are planted 

in the backyards of almost every home within the HOA; (6) the DRGs 
KULPINS v. WEAVER

Decision of the Court

3

govern front and rear yard landscaping; (7) improvements1 visible from 

adjacent properties require prior written approval of the DRC; (8) the DRC 

approved Weaver’s landscaping project subsequent to its completion, but 

without any height or location restrictions; (9) the DRC has “the right to 

refuse to approve any plans . . . not suitable . . . [and consider] the effect of 

the building or other structure . . . on the outlook from the adjacent or 

neighboring Property;” and (10) “[n]o . . . landscaping . . . which in any way 

alters . . . any part of a Lot . . . from its natural or improved state existing on 

the date such Lot was first conveyed or transferred by . . . Developer to a 

Public Purchaser shall be made . . . without the prior written approval of 

the [DRC].”

¶5 Before trial, neither party requested that the superior court 

issue findings of fact. After a bench trial, the superior court entered 

judgment against the Kulpins’ claims for breach of the CC&Rs and

injunctive relief, without making findings of fact. The Kulpins timely 

appealed. We have jurisdiction pursuant to Article 6, Section 9, of the 

Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 

12-120.21.A.1 and -2101.A.1 (West 2016).2

DISCUSSION

¶6 We review a superior court’s denial of injunctive relief for 

abuse of discretion. See Ahwatukee Custom Est. Mgmt. Ass’n, Inc. v. Turner, 

196 Ariz. 631, 634, ¶ 5 (App. 2000). A superior court abuses its discretion 

when it commits an error of law or fails to consider evidence in reaching a 

discretionary conclusion, commits some other substantial error of law, or if, 

upon review, “the record fails to provide substantial evidence to support 

the trial court’s finding.” Flying Diamond Airpark, LLC v. Meienberg, 215 

Ariz. 44, 50, ¶ 27 (App. 2007). In the absence of express findings of fact, we 

will presume the superior court found every fact necessary to sustain its 

judgment, which we will affirm if reasonable evidence supports it, Fleming 

v. Becker, 14 Ariz. App. 347, 350 (1971), even if substantial contradictory 

evidence exists. Moore v. Title Ins. Co. of Minn., 148 Ariz. 408, 413 (App. 

1985). 

 

1 The CC&Rs include “plantings, planted trees and shrubs” in their 

definition of Improvement. CC&R, Art. I, Sec. 18. 

2 We cite the current version of applicable statutes when no revisions 

material to this decision have since occurred. 
KULPINS v. WEAVER

Decision of the Court

4

I. Findings of Fact

¶7 The Kulpins argue the superior court’s final order does not 

comply with Arizona Rules of Civil Procedure 52(a) and 65(h) and 

substantive law because the court did not make findings of fact. They 

contend that the case should be remanded for the superior court to make

such findings.

¶8 Rule 52(a) requires that “[i]n all actions tried upon the facts 

without a jury[,] . . . the court, if requested before trial, shall find the facts 

specially and state separately its conclusions of law thereon.” (emphasis 

added); Elliott v. Elliott, 165 Ariz. 128, 134 (App. 1990) (requiring the trial 

court to make findings of all ultimate facts when a party submits a timely 

request pursuant to Rule 52(a)). “Because a trial court and opposing 

counsel should be afforded the opportunity to correct any asserted defects 

before error may be raised on appeal, absent extraordinary circumstances, 

errors not raised in the trial court cannot be raised on appeal.” Trantor v. 

Fredrikson, 179 Ariz. 299, 300 (1994) (citation omitted). 

¶9 Weaver argues the Kulpins should have requested the 

superior court issue findings of fact either prior to or after trial. She 

contends that because the Kulpins did not request findings of fact the 

judgment must be affirmed. 

¶10 The Kulpins concede that they did not request any findings of 

fact pursuant to Rule 52(a). Therefore, the superior court was not required 

to make findings of fact. 

¶11 The Kulpins also argue that the superior court was required 

to make findings of fact because a preliminary injunction was requested. 

Rule 65(h) states that “[e]very order granting an injunction . . . shall set forth 

the reasons for its issuance and shall be specific in terms.” (emphasis 

added). Because the injunction requested was denied, the Rule 65(h) 

requirement for findings of fact does not apply.

¶12 Finally, the Kulpins challenge the superior court’s denial of 

their claims for a permanent injunction and breach of contract. In the 

absence of express findings of fact, we review the record and determine

whether reasonable evidence supports the superior court’s judgment. 

¶13 We find no error. The record shows that the Kulpins possess

no easement protecting their views. The CC&Rs do not restrict the height 

of trees or landscaping. Weaver used trees pre-approved by the DRGs. The 

CC&Rs prohibit the alteration and removal of trees that were installed in 
KULPINS v. WEAVER

Decision of the Court

5

the Weaver’s backyard by the original developer. Moreover, the DRC’s 

approval of Weaver’s landscaping project, after the fact, was not an 

unreasonable exercise of its discretionary design-control powers, see Tierra 

Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 202, ¶ 28 (App. 2007), 

which we may presume the superior court concluded as well. See Fleming, 

14 Ariz. App. at 350. The record thus provides substantial evidence to 

support the superior court’s decision and we find no abuse of its discretion.

II. Attorney Fees 

¶14 Both parties requested an award of attorney fees and costs on 

appeal. The Kulpins state no basis for their request in their opening brief.

See ARCAP 21(a)(1) (“A party claiming attorney[] fees must do so in an 

opening or an answering brief on appeal.”). Weaver makes her request 

pursuant to Arizona Rule of Civil Appellate Procedure 21, the CC&Rs,

3 and 

A.R.S. § 12-341.01. Section 12-341.01.A provides a court with discretion to 

award reasonable attorney fees to a prevailing party “[i]n any contested 

action arising out of a contract.” Id. As Weaver is the prevailing party on 

appeal, we will award her a reasonable amount of attorney fees and costs 

incurred on appeal upon compliance with ARCAP 21. 

CONCLUSION

¶15 For the foregoing reasons, we affirm the superior court’s 

judgment in favor of Weaver. 

 

3 “[A]ny Owner shall have the right to . . . recover its attorney[] fees 

and costs in connection with [a proceeding in law or equity] if it prevails.” 

CC&R, Art. IX, Sec. 2.