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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KAREN BAIRSTOW, Plaintiff/Appellant,

v.

WINDGATE RANCH COMMUNITY ASSOCIATION, et al.,

Defendants/Appellees.

No. 1 CA-CV 23-0645 

Appeal from the Superior Court in Maricopa County

No. CV2020-006657

The Honorable Bradley Astrowsky, Judge

VACATED AND REMANDED

COUNSEL

Sacks Tierney, P.A., Scottsdale

By Brian E. Ditsch, Michael L. Kitchen, James C. Golden, Mea M. Donnelly

Counsel for Plaintiff/Appellant

Tiffany & Bosco, P.A., Phoenix

By Amy D. Sells, William M. Fischbach, David M. Barlow

Counsel for Defendants/Appellees Regina and Justin Ausloos

FILED 09-19-2024
BAIRSTOW v. WINDGATE, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in 

which Judge Daniel J. Kiley and Judge D. Steven Williams joined.

B R O W N, Judge:

¶1 Plaintiff Karen Bairstow appeals from the superior court’s 

grant of summary judgment in favor of her former neighbors, defendants

Regina and Justin Ausloos, on Bairstow’s several claims arising from

improvements constructed on the Auslooses’ property. Bairstow also 

challenges the court’s order awarding attorneys’ fees and costs to the 

Auslooses. For the following reasons, we vacate the court’s ruling and 

remand for further proceedings. 

BACKGROUND

¶2 All lots in the Windgate Ranch Community (“Community”)

are subject to covenants, conditions, and restrictions (“CC&Rs”), and as 

pertinent here, design guidelines (“Guidelines”), which are collectively 

known as the Project Documents. The Community is governed by the 

Windgate Ranch Community Association (“Windgate”), an Arizona 

nonprofit corporation. As provided by the CC&Rs, Windgate (as well as 

any lot owner) has the right to enforce the Project Documents. 

¶3 The CC&Rs require lot owners who desire to make any 

improvements or modifications to their lots to receive written approval 

from the Design Review Committee (“Committee”) before starting such 

construction. Pursuant to the CC&Rs, the Committee adopted the 

Guidelines to evaluate modification requests. Under Section 11.2 of the 

CC&Rs, to receive approval from the Committee a lot owner must submit 

“a written request for approval specifying in detail the nature and extent of 

the [m]odification,” including plans or specifications describing “the 

nature, kind, color, shape, height, materials and location of the 

Improvements and such other information” as may be required by the 

Guidelines. Yet, if the Committee fails to “approve or disapprove a 

complete application” within 45 days, Section 11.2 also states that 

“approval will not be required,” and the lot owner is deemed to have 

complied with Section 11.2’s requirement for Committee approval. 
BAIRSTOW v. WINDGATE, et al.

Decision of the Court

3

¶4 In 2015, Bairstow bought a home in the Community. The 

Auslooses’ home is located directly north of Bairstow’s, and the two lots 

share a common fence. In July 2018, the Auslooses submitted a 

modification application to the Committee for approval to install an 

inground pool, barbeque, and ramada in their backyard, including plans of 

the proposed improvements. The application included a form from the 

Guidelines listing additional matters “which must be adhered to when 

installing a swimming pool, spa, hot tub, or water feature.” The form 

directs the applicant to check boxes next to the listed design requirements 

to “indicate compliance.” The Auslooses checked these boxes and signed 

the form. Despite representing such compliance, Windgate’s architect 

initially disapproved of the plans because the planned waterslide was too 

close to the property line and the plans included plant material that was not 

permitted in the Guidelines. The application also lacked several height 

measurements. Nonetheless, the architect’s recommended denial of the 

plans was not communicated to the Auslooses within Section 11.2’s 45-day 

review period. 

¶5 The Auslooses began constructing their pool and related 

improvements in November of that year. Bairstow became concerned 

because the construction was blocking the view from her kitchen window.

Windgate told the Auslooses to stop construction because the plans were 

never approved, and the Auslooses complied. After investigation of the 

plans and history of the Auslooses’ application, the Committee determined 

there were numerous Guideline violations with the application, including 

some terms that the Auslooses had checked to indicate compliance with 

initially. However, the Committee later determined it could not take any 

action on the proposed project because the application was not denied 

within the 45-day window under the CC&Rs, and apparently on that basis 

the Auslooses were notified of the project’s approval in January 2019. 

¶6 Bairstow claimed the improvements to the Auslooses’ 

property caused her significant distress. For example, she explained that 

the Auslooses’ children were on the newly constructed waterslide in the 

backyard almost every night, “screaming and shouting at the top of their 

lungs” from early to late evening, which she claims made it impossible to 

sleep in her home. Bairstow also asserted that the waterslide created a 

vantage point from which anyone standing on it could see into her 

backyard and home, making her feel unable to comfortably swim or 

sunbathe. Bairstow further claimed that the ramada wall obstructed a 

window in her kitchen. The loss of this window replaced her “blue sky” 

view with that of a concrete wall and prevented natural light from entering 

her home. As a result, her great room was now “dark and dingy.” These 
BAIRSTOW v. WINDGATE, et al.

Decision of the Court

4

conditions, according to Bairstow, were so intolerable that she was forced 

to sell her home prematurely in June 2019. Bairstow acknowledged, 

however, that she never disclosed any concerns about noise, privacy, or 

lighting/view when she sold the home.

¶7 In June 2020, Bairstow sued the Auslooses and Windgate for 

breaching the CC&Rs. She amended her complaint twice, adding claims of 

nuisance and breach of the implied covenant of good faith and fair dealing 

against the Auslooses, and additional claims against Windgate. The 

Auslooses moved to dismiss the nuisance claim, asserting it was based on 

inconsequential annoyances that fell short of the substantial harm required 

to support a private nuisance claim. The superior court denied the motion,

noting that while “the nuisance claim as pled is light” it was “not without 

sufficient facts which, if true, could support the claim.” 

¶8 Following discovery, the Auslooses moved for summary 

judgment on each of Bairstow’s claims, which the superior court granted.

As to the breach of contract claim, the court found (1) the Auslooses 

complied with the CC&Rs’ requirements to submit a modification proposal, 

and (2) Bairstow did not provide any authority for how “Windgate’s failure 

to communicate a timely denial . . . is attributable to the Auslooses.”

Finding that the Auslooses complied with the CC&Rs and did not start

construction until the 45-day period for Windgate’s approval had lapsed, 

the court determined summary judgment was proper in the Auslooses’

favor on the breach of contract claim. The court also concluded that because 

the Auslooses “did not breach any contract, summary judgment is proper 

on [Bairstow’s] claim for breach of the covenant of good faith and fair 

dealing.” As to Bairstow’s claim of nuisance, the court determined that 

Bairstow’s allegations were unsupported by the evidence, specifically 

noting that Bairstow’s failure to disclose the issues allegedly causing a 

nuisance was a tacit admission that the modifications did not cause her 

substantial harm. 

¶9 After awarding attorneys’ fees and costs to the Auslooses, the 

court issued a judgment under Arizona Rule of Civil Procedure 54(b).1 

Bairstow timely appealed. We have jurisdiction under A.R.S. § 12-2101(A).

1 Bairstow’s claims against Windgate were scheduled for trial, but 

have since been stayed pending the outcome of this appeal. 
BAIRSTOW v. WINDGATE, et al.

Decision of the Court

5

DISCUSSION

¶10 Bairstow argues the superior court erred in granting 

summary judgment on her claims of breach of contract, breach of the 

implied covenant of good faith and fair dealing, and private nuisance. We 

review the superior court’s ruling summary judgment de novo, viewing the 

facts in a light most favorable to the non-moving party, construing all 

reasonable inferences in favor of that party. Tilley v. Delci, 220 Ariz. 233, 

236, ¶ 7 (App. 2009). A party seeking summary judgment must 

demonstrate 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). 

A. Breach of Contract

¶11 Bairstow contends there are genuine issues of material fact on

whether the Auslooses breached the CC&Rs. To establish breach of a 

contract, the plaintiff must show the existence of a contract, breach of that 

contract, and resulting damages. Graham v. Asbury, 112 Ariz. 184, 185 

(1975). “CC&Rs form a contract between individual landowners and all the 

landowners bound by the restrictions, as a whole.” Kalway v. Calabria Ranch 

HOA, LLC, 252 Ariz. 532, 538, ¶ 14 (2022). We therefore review de novo the 

interpretation of CC&Rs. Powell v. Washburn, 211 Ariz. 553, 555–56, ¶ 8 

(2006). In interpreting CC&Rs, we are mindful that “each part of a contract 

must be read together, ‘to bring harmony, if possible, between all parts of 

the writing.’” Elm Ret. Ctr. LP v. Callaway, 226 Ariz. 287, 291 ¶ 18 (App. 

2010) (quotation omitted).

¶12 Bairstow argues the Auslooses breached the CC&Rs in two 

ways. First, the clause under which the Auslooses’ project was “deemed”

to be approved also required the Auslooses to acquire written approval 

before constructing their modifications. Section 11.2 of the CC&Rs 

prohibits a homeowner from making any modification “without the prior 

written approval of the [] Committee.” But that section also states:

In the event that the [] Committee fails to approve or 

disapprove a complete application for approval within fortyfive (45) days after the application, together with any fee 

payable pursuant to Section 11.7 and all supporting 

information, plans and specifications requested by the [] 

Committee, have been submitted to the [] Committee, 

approval will not be required and this Section will be deemed 

to have been complied with by the Owner who requested 

approval of such plans. 
BAIRSTOW v. WINDGATE, et al.

Decision of the Court

6

According to Bairstow, the “deemed to have been complied with” clause 

does not exempt a homeowner from also receiving separate written 

approval before beginning construction on improvements, or that at the 

least the provision is ambiguous as to whether written approval is required, 

which is a jury question. Focus Point Props., LLC v. Johnson, 235 Ariz. 170, 

177, ¶ 32 (App. 2014). That interpretation, however, overlooks the language 

that “approval will not be required” for applications that have not been 

approved or disapproved in 45 days. Thus, the “prior written approval” 

clause cannot be reasonably interpreted as requiring separate, written 

approval once an application has been deemed approved. See In re Estate of 

Lamparella, 210 Ariz. 246, 250, ¶ 21 (App. 2005) (“A contract is not 

ambiguous just because the parties . . . disagree about its meaning.”).

¶13 Our analysis does not stop there, however, because the 

“deemed to have been complied with” clause only applies to complete

applications. Nothing in the CC&Rs defines a “complete” application, but 

an ordinary meaning of that term means “having all necessary parts, 

elements, or steps.” Complete, Meriam-Webster.com Dictionary,

https://www.merriam-webster.com/dicitionary/complete; see also 

Centerpoint Mech. Lien Claims, LLC v. Commonwealth Land Title Ins. Co., 255 

Ariz. 261, 270, ¶ 45 (App. 2023) (“As when construing statutes, in the 

absence of express definitions within a contract, we may consider 

dictionary definitions to assist in determining the ordinary meaning of 

words.”).

¶14 Also, Section 11.2 of the CC&Rs provides that modification 

applications must include “the nature, kind, color, shape, height, materials 

and location of the [i]mprovements and such other information as may be 

required by the [] Guidelines.” But nothing in the record shows that the 

plans attached to the Auslooses’ application contained all the required

elements. Instead, the evidence provided in the summary judgment filings 

show that the issue remains disputed. For example, Bairstow presented 

testimony from Windgate’s architect, who noted that the plans lacked

measurements required for the modifications the Auslooses requested. We

recognize that Section 11.4 of the CC&Rs allows the Committee to 

“authorize variances from compliance with any provision of the [] 

Guidelines,” but only if that variance is “in writing and signed by an 

authorized representative of the [] Committee.” Genuine disputes of 

material fact exist as to whether the Auslooses’ application was “complete” 

as required by the “deemed to have been complied with” clause, as well as 
BAIRSTOW v. WINDGATE, et al.

Decision of the Court

7

whether the Auslooses requested a variance from the Guidelines requiring 

written approval before they could begin construction.

2

¶15 Bairstow also argues the Auslooses breached the CC&Rs by 

submitting a modification application that did not comply with the 

Guidelines, and later representing that the application did meet those 

requirements. The Auslooses counter that the CC&Rs contain no express 

provision requiring applications to comply with the Guidelines, and so 

falsely representing compliance cannot constitute a breach. That position 

conflicts with Section 9.1 of the CC&Rs, which states that either an owner’s 

or Windgate’s failure “to take enforcement action with respect to a violation 

of the Project Documents shall not constitute or be deemed a waiver of the 

right of the Association or any Owner to enforce the Project Documents in 

the future.” Granted, neither Windgate nor Bairstow has sought 

“enforcement” of the Project Documents in this litigation in the sense of 

compelling compliance, but that does not mean a lot owner can falsely 

represent compliance with the Guidelines without consequence. 

¶16 The Guidelines specifically require any lot owner requesting 

improvements, involving pools or water features, to indicate compliance 

with numerous terms. Among these terms include requirements that pool

slides not exceed eight feet in height and that any slide be set back at least 

15 feet from any fence. The plans included in the record before us are not 

clear whether the submitted application met those terms or other necessary 

criteria. Moreover, deposition testimony from the architect that reviewed 

the plans and the communications from the Committee after their 

investigation of the Auslooses’ application shows there were violations of 

some terms for which the Auslooses had indicated compliance. Genuine 

2 The Auslooses argue we should not consider Bairstow’s arguments 

addressing the requirement of a “complete” application because this issue 

was not, in their view, sufficiently developed in the opening brief and thus 

waived. They also argue Bairstow’s claims related to Section 11.4

(variances) are waived because they were raised for the first time on appeal. 

The issue of completeness sufficiently alerted the Auslooses what was 

being argued, especially when Bairstow repeatedly asserted in the superior 

court that the Auslooses’ submittal did not comply with the Guidelines. 

Concerning Section 11.4, to determine the appropriate meaning and 

application of a contract, we review related provisions together, not in 

isolation. See Elm Ret. Ctr. LP, 226 Ariz. at 291 ¶ 18. Even so, “the doctrine 

of waiver is discretionary.” Noriega v. Town of Miami, 243 Ariz. 320, 326,

¶ 27 (App. 2017). In our discretion, we decline to apply waiver as to either 

of these arguments. 
BAIRSTOW v. WINDGATE, et al.

Decision of the Court

8

disputes of material fact exist on whether the Auslooses complied with the 

Guidelines.

B. Covenant of Good Faith and Fair Dealing

¶17 Bairstow asserts that because the Auslooses falsely certified 

that their application complied with the Guidelines, the superior court 

erred in granting summary judgment on her claim of breach of the implied 

covenant of good faith and fair dealing. 

¶18 The covenant of good faith and fair dealing is a term implied 

in all contracts, and “prohibits a party from doing anything to prevent other 

parties . . . from receiving the benefits and entitlements of the agreement.” 

Wells Fargo Bank v. Ariz. Laborers, Teamsters, & Cement Masons Local No. 395 

Pension Tr. Fund, 201 Ariz. 474, 490, ¶ 59 (2002). A party breaches this 

covenant by “exercising express discretion in a way inconsistent with a 

party’s reasonable expectations and by acting in ways not expressly 

excluded by the contract’s terms but which nevertheless bear adversely on 

the party’s reasonably expected benefits of the bargain.” Bike Fashion Corp. 

v. Kramer, 202 Ariz. 420, 435, ¶ 14 (App. 2002). A party can breach this 

covenant even if it has technically complied with the express terms of a 

contract. United Dairymen of Ariz. v. Schugg, 212 Ariz. 133, 137–38, ¶ 15 

(App. 2006).

¶19 In determining whether a party’s expectations are reasonable, 

“the relevant inquiry always will focus on the contract itself, to determine 

what the parties did agree to.” Wagenseller v. Scottsdale Mem’l Hosp., 147 

Ariz. 370, 385 (1985). According to the Auslooses, regardless of whether 

they falsely represented compliance with the Guidelines, the CC&Rs 

foreclosed any expectation that all modification applications would be 

compliant. The Auslooses base this assertion on the fact that the express 

terms of the CC&Rs grant the Committee discretion to approve or 

disapprove applications within 45 days, and if no action is taken, then the 

applications will be automatically approved. Thus, the Auslooses contend

that Bairstow should have expected that some noncompliant applications

would nonetheless be approved. 

¶20 Certainly, the CC&Rs do not guarantee all home 

improvements will comply with the Guidelines, as the Committee can 

affirm applications that vary from the Guidelines. But these variances are 

reserved for specific circumstances. Section 11.4 of the CC&Rs states:

The [] Committee may authorize variances from compliance 

with any provision of the Design Guidelines in circumstances 
BAIRSTOW v. WINDGATE, et al.

Decision of the Court

9

where the design meets the intent of the provision sought to 

be varied and where granting of the variance would enhance 

design innovation and excellence, or when circumstances 

such as topography, natural obstructions, hardship, or 

aesthetic or environmental considerations so require, and the 

Design Review Committee determines, in its sole discretion, 

that the objective of the particular requirement can still be 

achieved. 

Moreover, the Guidelines themselves state that they are binding on all 

homeowners seeking modifications. Nothing in the CC&Rs or Guidelines 

indicate that the possibility of the Committee failing to timely act on 

applications somehow relieves homeowners of their obligations to comply 

with those requirements. See supra, ¶ 15. Based on these terms, Bairstow 

has at the least raised a genuine dispute as to whether she had a reasonable 

expectation that other lot owners will not falsely represent to the 

Committee that their applications to construct improvements comply with 

the Guidelines. The court erred in granting summary judgment on 

Bairstow’s claim for breach of the implied covenant of good faith and fair 

dealing. See County of La Paz v. Yakima Compost Co. Inc., 224 Ariz. 590, 604, 

¶ 38 (App. 2010) (“Whether a party breached the covenant is a question of 

fact for the jury.”). 

C. Nuisance 

¶21 Bairstow argues the court erroneously granted summary 

judgment on her private nuisance claim, asserting her deposition testimony 

was sufficient to create triable issues of fact as to whether the Auslooses’ 

conduct constituted a nuisance. A private nuisance is “a nontrespassory 

invasion of another’s interest in the private use and enjoyment of land.” 

Armory Park Neighborhood Ass’n v. Episcopal Comm. Serv. in Ariz., 148 Ariz. 1, 

4 (1985). For another’s actions to rise to the level of nuisance, the 

interference with another’s use and enjoyment of land must be “substantial, 

intentional and unreasonable under the circumstances.” Nolan v. Starlight 

Pines Homeowners Ass’n, 216 Ariz. 482, 489, ¶ 32 (App. 2007). 

¶22 Our supreme court has recognized that on a motion for

summary judgment, a superior court “must evaluate the evidence to some 

extent.” Orme School v. Reeves, 166 Ariz. 301, 309 (1990). Summary judgment 

is appropriate if the proponent of the claim has produced facts that “have 

so little probative value . . . that reasonable people could not agree with the 

conclusion advanced.” Id. We cannot say that Bairstow’s testimony 

through her deposition and declaration are, as a matter of law, insufficient 
BAIRSTOW v. WINDGATE, et al.

Decision of the Court

10

to establish a claim of nuisance. Bairstow testified that the noise arising 

from the Auslooses’ backyard after construction of the waterslide occurred 

through the evening, several times per week, consistently interrupting her 

ability to sleep. Excessive noise can constitute a nuisance depending on the 

“character, volume, [and] duration” of the noise. City of Phoenix v. Harlan, 

75 Ariz. 290, 296 (1953).3 As the superior court noted in its prior denial of 

the Auslooses’ motion to dismiss, the claim as presented may be light, but 

it is not so deficient that a reasonable person would be unable to believe 

Bairstow’s testimony and conclude that the noise constituted a substantial 

and unreasonable invasion on Bairstow’s use and enjoyment of her home.

¶23 The Auslooses contend that Bairstow’s testimony is not 

sufficient evidence because Bairstow did not list the issues with noise or 

other conditions in her property disclosure statement when she sold her 

home, a fact which the superior court interpreted as a tacit admission that 

the conditions were not as intolerable as Bairstow claimed. Bairstow’s 

omission does not demand that inference. Such information may be 

probative for purposes of impeachment or undermining Bairstow’s 

credibility, but summary judgment is not the proper venue to resolve those 

concerns. See Orme School, 166 Ariz. at 309 (“Credibility determinations, the 

weighing of the evidence, and the drawing of legitimate inferences from the 

facts are jury functions, not those of the judge.” (quotation omitted)). 

¶24 The Auslooses also suggest that Bairstow’s testimony about 

her experience is not sufficient to overcome summary judgment because 

nuisance is an objective inquiry. See Restatement (Second) of Torts § 826 

cmt. c (1979). But even under that standard, her firsthand knowledge of 

what occurred on the Auslooses property is highly relevant as to whether 

the conditions she observed or presented an unreasonable impairment of 

the use and enjoyment of her property. And if a jury finds Bairstow’s 

testimony credible, there is no reason her testimony would be insufficient 

as a matter of law to establish her nuisance claim. Cf. State v. Montano, 121 

3 Bairstow acknowledges that no Arizona case has specifically 

addressed nuisance claims based on acts constituting an invasion of 

privacy, but points to decisions from other jurisdictions supporting such a 

theory. The Auslooses likewise note that no Arizona case has determined 

that the loss of sunlight or a scenic view constitute a nuisance, and direct us 

to several jurisdictions that indicate it is not. Because Bairstow presented 

sufficient evidence of noise to overcome summary judgment, we need not 

address whether the additional conduct she complained of also constitutes 

a nuisance.
BAIRSTOW v. WINDGATE, et al.

Decision of the Court

11

Ariz. 147, 149 (App. 1978) (noting that “one witness, if relevant and 

credible, is sufficient” evidence to support a conviction).

CONCLUSION

¶25 We vacate the superior court’s grant of summary judgment 

on Bairstow’s three claims and also vacate the court’s award of attorneys’

fees and costs to the Auslooses. The superior court may award fees after 

the case has been resolved on the merits. See Tierra Ranchos Homeowners 

Ass'n v. Kitchukov, 216 Ariz. 195, 204, ¶ 37 (App. 2007). We deny Bairstow’s 

claim for attorneys’ fees on appeal, deferring the request to the superior 

court’s discretion. See id. As the successful party on appeal, Bairstow is 

awarded taxable costs incurred on appeal subject to compliance with 

ARCAP 21.