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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

HERITAGE VILLAGE II HOMEOWNERS ASSOCIATION,

Plaintiff/Appellee,

v.

RICHARD WEINBERG, et al., 

Defendants/Appellees.

_________________________________

JOHN L. NORMAN and GERRY MOLOTSKY

Intervenors/Appellants.

No. 1 CA-CV 20-0637 

Appeal from the Superior Court in Maricopa County

No. CV2014-009229

The Honorable M. Scott McCoy, Judge

AFFIRMED IN PART; VACATED IN PART AND REMANDED

COUNSEL

Dickinson Wright, PLLC, Phoenix

By Scott A. Holcomb, Emily Jeffries

Counsel for Plaintiff/Appellee

FILED 10-26-2021
2

Taylor Young Appeals, PLLC, Phoenix

By Taylor C. Young

Counsel for Defendants/Appellees

Fennemore Craig, PC, Phoenix

By Douglas C. Northup, Emily Ayn Ward, Taylor N. Burgoon

Counsel for Intervenors/Appellants

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which 

Presiding Judge D. Steven Williams and Judge David B. Gass joined.

M O R S E, Judge:

¶1 John Norman and Gerry Molotsky (together, "Intervenors") 

appeal the dismissal of their suit against Richard and Laine Weinberg for 

alleged violations of Heritage Village II's Amended and Restated 

Declaration of Covenants, Conditions & Restrictions ("CC&Rs"). For the 

following reasons, we affirm the dismissal, but vacate and remand the 

award of attorneys' fees.

FACTS AND PROCEDURAL BACKGROUND

¶2 The Weinbergs own a home located in Heritage Village II 

("Heritage"), which is part of the McCormick Ranch master-planned 

community in Scottsdale. Beginning in 2013, the Weinbergs undertook to 

replace their home with a larger dwelling. In July 2014, Heritage sued the 

Weinbergs, alleging the changes to their lot violated the CC&Rs. The 

superior court concluded the Weinbergs had violated the CC&Rs, granted 

declaratory relief, and ordered the Weinbergs to take specific remedial 

measures to bring their home into compliance.

¶3 Months later, the superior court noted that the parties 

remained unable to agree on necessary modifications for the Weinbergs' 

home to comply with the CC&Rs. Meanwhile, the membership on 

Heritage's Board of Directors (the "Board") changed and the Board debated 

whether to continue the litigation. In July 2017, the Board voted to settle 

with the Weinbergs.
HERITAGE v. WEINBERG, et al.

Decision of the Court

3

¶4 Intervenors are homeowners and members of Heritage. 

Before Heritage and the Weinbergs filed their notice of settlement, 

Intervenors filed an emergency motion to intervene. Heritage and the 

Weinbergs opposed Intervenors' motion. The superior court denied the 

motion and awarded Heritage and the Weinbergs attorneys' fees. 

Intervenors appealed. This Court reversed the superior court's ruling on 

the motion to intervene, vacated the attorneys' fees award, and denied the 

Weinbergs' and Heritage's requests for fees and costs on appeal. Heritage 

Vill. II Homeowners Ass'n v. Norman ("Heritage I"), 246 Ariz. 567, 573, ¶ 26 

(App. 2019).

¶5 After the appeal, Intervenors filed a complaint in 

intervention, naming only the Weinbergs as defendants. The Weinbergs

filed a motion to dismiss for failure to state a claim, which Heritage joined. 

The superior court granted the motion and awarded Heritage and the 

Weinbergs attorneys' fees. Intervenors timely appealed, and we have 

jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶6 We review a dismissal for failure to state a claim de novo. 

Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). Dismissal for failure 

to state a claim is appropriate if "as a matter of law . . . plaintiffs would not 

be entitled to relief under any interpretation of the facts susceptible of 

proof." Fid. Sec. Life Ins. Co. v. Ariz. Dep't of Ins., 191 Ariz. 222, 224, ¶ 4 (1998). 

In reviewing the dismissal, we "look only to the pleading itself" and 

"assume the truth of the well-pled factual allegations" contained within. 

Cullen v. Auto–Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008). "However, we 

do not accept as true allegations consisting of conclusions of law, inferences 

or deductions that are not necessarily implied by well-pleaded facts, 

unreasonable inferences or unsupported conclusions from such facts, or 

legal conclusions alleged as facts." Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 

389, ¶ 4 (App. 2005). 

I. Alleged CC&Rs Violations.

¶7 We consider on appeal whether Intervenors failed to state a 

claim that the Weinbergs are in violation of the CC&Rs. Covenants and 

deed restrictions constitute a contract between a subdivision's property 

owner and individual lot owners. Ariz. Biltmore Estates Ass'n v. Tezak, 177 

Ariz. 447, 448 (1993). The interpretation of a contract is a matter of law that 

we review de novo. Id. 
HERITAGE v. WEINBERG, et al.

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¶8 Pertinent here, Article III of the CC&Rs provides that "no 

addition, improvement, or any modification which alters the exterior 

appearance of the Lot, whether a building, fence, wall, or other structure 

shall be commenced, erected or maintained on any Lot until the plans . . . 

have been submitted to and approved in writing by the Architectural 

Committee, and the Board of Directors." The Board and Architectural 

Committee ("Committee") have discretion to approve or deny these 

requests. The Board and Committee can consider "the harmony and 

conformity of the building with the surrounding area and the effect of such 

structure or building as seen from adjacent or neighboring properties" and 

"deny approval of any plans or specifications which are not, in its opinion 

suitable or desirable for aesthetic or any other reasons." 

¶9 The CC&Rs warn that "[a]ny exterior changes, modifications 

additions or deletions must have the approval of the Architectural 

Committee and Board of Directors or be subject to removal or change at the 

Owner's expense." In July 2017, the Board approved a settlement 

agreement with the Weinbergs. The settlement agreement required the 

Weinbergs to make changes to their home, pay for cosmetic modifications 

to the adjoining lot, and consent to various provisions. Upon completion 

of these requirements, the Weinbergs' lot would be "deemed in compliance" 

with the CC&Rs. 

¶10 Intervenors argue that, despite the settlement agreement, the 

Weinbergs' home will not comply with the CC&Rs because: (1) the changes 

were not properly approved; and (2) the Board may not approve home 

modifications that are expressly prohibited by the CC&Rs. 

A. Approval of the Weinbergs' Home. 

¶11 The CC&Rs give the Board final approval of home 

modifications, providing that "[t]he Architectural Committee shall make its 

recommendations to the Board of Directors for final approval or 

disapproval." The Board voted and approved the settlement agreement. 

Upon compliance with the terms of the settlement agreement, the 

Weinbergs' lot would be "deemed in compliance" with the CC&Rs. The 

Weinbergs have complied with the settlement agreement. Therefore, the 

superior court properly found that the Board approved the Weinbergs' 

home and deemed it compliant with the CC&Rs. 
HERITAGE v. WEINBERG, et al.

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5

B. The Weinbergs' Home Does Not Violate Article II Section 

6(A) of the CC&Rs.

¶12 The Board has "the right and duty" to enforce the restrictions 

in the CC&Rs and does not have discretion to approve a violation of the 

CC&Rs. Thus, the Board's approval would be invalid if the Weinbergs' 

home violates the CC&Rs. See Gfeller v. Scottsdale Vista N. Townhomes Ass'n, 

193 Ariz. 52, 54, ¶ 11 (App. 1998) ("[W]hichever means [of enforcement] it 

chooses, the Association may not forsake its express duty to enforce the 

CC & Rs."). Intervenors allege the Weinbergs' home violates Article II 

Section 6(A) of the CC&Rs,

1 which states: 

Except in the individual patio areas, no individual planting or 

gardening shall be done. No hedges or walls shall be erected 

or maintained upon said premises, except such as were 

installed in accordance with the original construction of the 

buildings. Any exterior changes, modifications additions or 

deletions must have the approval of the Architectural 

Committee and Board of Directors or be subject to removal or 

change at the Owner's expense.

¶13 This provision restricts individual planting or gardening 

outside individual patio areas as well as the erection or maintenance of 

hedges or walls that were not installed in accordance with the original 

construction of the buildings. The Weinbergs tore down the original 

building on their property and reconstructed their new home to be larger 

than the old structure. Because the rear perimeter wall of their new home 

is approximately one foot beyond the rear perimeter wall of the original 

building, Intervenors argue it is not "in accordance with the original 

construction" of the building. 

¶14 We disagree that Section 6(A) of the CC&Rs provides the 

categorical prohibition urged by Intervenors. The "cardinal principle in 

construing restrictive covenants is that the intention of the parties to the 

instrument is paramount." Tezak, 177 Ariz. at 449. The intention of the 

parties is determined by construing the document as a whole. Newmont 

1 Appellees assert that this argument was waived. In Intervenors'

Reply in Support of Motion for Entry of Final Judgement, they quoted 

Section 6(A) and argued the remedial measures previously ordered by the 

superior court were expressly required by the CC&Rs. In the exercise of 

our discretion, see Dombey v. Phx. Newspapers, Inc., 150 Ariz. 476, 482 (1986), 

we do not find this argument waived.
HERITAGE v. WEINBERG, et al.

Decision of the Court

6

Expl. Ltd. v. Siskon Corp., 125 Ariz. 267, 269 (App. 1980). And "a covenant 

should not be read in such a way that defeats the plain and obvious 

meaning of the restriction." Tezak, 177 Ariz. at 449. Further, where 

provisions are conflicting, those "apparently conflicting provisions must be 

reconciled, if possible by any reasonable interpretation." Employer's Liab. 

Assur. Corp. v. Lunt, 82 Ariz. 320, 327 (1957); see also Gfeller, 193 Ariz. at 54, 

¶ 13 ("We will, if possible, interpret a contract in such a way as to reconcile 

and give meaning to all of its terms, if reconciliation can be accomplished 

by any reasonable interpretation."). 

¶15 Article II of the CC&Rs contains various use restrictions. The 

restrictions fall into two categories. Some restrictions provide that certain 

activities and actions are prohibited without exception. For example, 

Section 4 prohibits the display of "clotheslines, equipment, service yards, 

[and] woodpiles" and does not provide any avenue for attaining an 

exemption or waiver. Other restrictions provide that certain activities and 

actions are prohibited unless the Board approves. For instance, Section 8 

provides that "[n]o other exterior television, internet, radio antenna or 

antenna of any sort shall be placed, allowed, or maintained upon any 

portion of the improvements to be located upon the Properties, nor upon 

any structure situated upon the real property, without the prior written 

approval of the Board of Directors." 

¶16 Moreover, Article III of the CC&Rs provides broad authority 

for the Board and Committee to approve any "addition, improvement, or 

any modification which alters the exterior appearance of the Lot, whether a 

building, fence, wall, or other structure . . . on any Lot." Construing the 

entire document, Article III and Section 6(A) of the CC&Rs permit a new 

"building, fence, wall, or other structure," and "exterior changes, 

modifications additions or deletions" if they are approved by the 

Committee and the Board. Because the Board approved the Weinbergs' 

home, it does not violate Section 6(A). 

C. Other Alleged CC&Rs Violations. 

¶17 The other issues alleged by Intervenors do not implicate 

express provisions of the CC&Rs. The violations previously found by the 

superior court were based on a failure to attain proper approval, not 

express restrictions in the CC&Rs. For example, Intervenors complain the 

Weinbergs' roof height is 19 feet rather than 17 feet. However, a 17-foot 

requirement is not included in the CC&Rs. Instead, it is derived from the 

superior court's 2015 finding that the Board and Committee had 

preliminarily approved a building height of only 17 feet for the Weinbergs. 
HERITAGE v. WEINBERG, et al.

Decision of the Court

7

Intervenors' argument ignores the superior court's subsequent order that 

the parties could agree to keep the current height of 19 feet and create an 

"aesthetic transition" between the Weinbergs' and their neighbors' rooflines. 

Consistent with that invitation, the settlement agreement addressed issues 

related to the Weinbergs' and an adjoining lot's rooflines. 

¶18 The CC&Rs also do not expressly prohibit enlarging the 

footprint of a dwelling. And, although the Board previously found the 

Weinbergs' home "not aesthetically pleasing" or "consistent with the 

harmony and conformity of the surrounding area" the Board-approved 

changes provided in the settlement agreement addressed some of those 

concerns. 

¶19 Although the CC&Rs give Intervenors the right to enforce the 

CC&Rs' provisions, it does not give them the ability to substitute their 

evaluation and approval for that of the Board. As we noted in Heritage I, 

"whether the actions to be taken pursuant to the proposed settlement 

between Heritage and the Weinbergs would or would not cure any 

noncompliance with the CC&Rs [was] left to the superior court in the first 

instance." 246 Ariz. at 573, ¶ 24 n.5. The CC&Rs give the Committee and 

the Board, not individual homeowners, the authority to approve home 

modifications. Because the Weinbergs' home has now been approved by 

the Board, it does not violate any express provisions of the CC&Rs, and the 

superior court properly granted the Weinbergs' motion to dismiss. 

II. The Superior Court's Attorneys' Fees Award. 

¶20 Generally, we review a determination regarding the amount 

of fees awarded for an abuse of discretion, Fisher v. Nat'l Gen. Ins. Co., 192 

Ariz. 366, 370, ¶ 13 (App. 1998), and will not disturb an award of attorneys'

fees if "any reasonable basis exists" to support it, Sanborn v. Brooker & Wake 

Prop. Mgmt., Inc., 178 Ariz. 425, 430 (App. 1994). However, we review the 

superior court's authority to grant attorneys' fees de novo. Bennett Blum, 

M.D., Inc. v. Cowan, 235 Ariz. 204, 205, ¶ 5 (App. 2014).

A. Weinbergs' Attorneys' Fees. 

¶21 When a contract provides for attorneys' fees, the contract 

provision will be enforced according to its terms. Berry v. 352 E. Virginia, 

LLC, 228 Ariz. 9, 13, ¶ 17 (App. 2011). Further, when the contractual 

provision calls for an award of attorneys' fees to the prevailing party, the 

award is mandatory. See Castle v. Barrett-Jackson Auction Co., LLC, 229 Ariz. 

471, 475, ¶ 17 (App. 2012). 
HERITAGE v. WEINBERG, et al.

Decision of the Court

8

¶22 The CC&Rs provide that "any Owner or Owners shall have 

the standing and right to enforce the provisions of [the CC&Rs] against any 

other Owner or Owners, and the prevailing party or parties in action to 

enforce any such provisions shall be entitled to recover from the other party 

or parties its . . . reasonable attorneys' fees." Intervenors sued the 

Weinbergs to enforce provisions of the CC&Rs. The Weinbergs successfully 

dismissed Intervenors' claims, becoming the prevailing party. Therefore, 

the award to the Weinbergs was mandatory under the terms of the CC&Rs.

B. Heritage's Attorneys' Fees. 

¶23 Regarding Heritage's fees, the CC&Rs provide that "[i]f the 

Association takes . . . enforcement action . . . reasonable attorneys' fees, 

court costs . . . shall also be the personal obligation of the Owner or Owners 

against whom such action is taken." The CC&Rs further provide that "in 

the event suit is filed, the Association as the prevailing party shall be 

entitled to recover . . . reasonable attorneys' fees . . . related to the 

enforcement, said amounts being . . . the personal obligation of the Owner 

or Owners against whom such action is taken." This provision does not 

provide for an award of attorneys' fees to Heritage because Intervenors are 

not "owners against whom such action is taken." Therefore, the CC&Rs do 

not mandate an attorneys' fees award to Heritage. 

¶24 Nonetheless, A.R.S. § 12-341.01 authorizes such an award.2 

The statute provides that "in any contested action arising out of a contract, 

express or implied, the court may award the successful party reasonable 

attorney fees." The statute permits an award to the successful party when 

the parties are adverse. Heritage asserted the Weinbergs' home was 

compliant with the CC&Rs, sought to enforce the settlement agreement, 

and end the litigation. Intervenors did not. See Pioneer Roofing Co. v. 

Mardian Const. Co., 152 Ariz. 455, 466 (App. 1986) (noting that adverse 

parties have "opposing positions or interests"); Fulton Homes Corp. v. BBP

Concrete, 214 Ariz. 566, 571–72, ¶¶ 17–22 (App. 2007) (finding a third-party 

defendant and a plaintiff adverse for purposes of attorneys' fees awards 

even though the plaintiff did not assert a claim directly against the third 

party); Nationwide Res. Corp. v. Ngai, 129 Ariz. 226, 232 (App. 1981) (finding 

parties adverse when their positions were "completely opposite"). Heritage 

prevailed, and the superior court had discretion to award Heritage fees 

pursuant to A.R.S. § 12-341.01. See McAlister v. Citibank, 171 Ariz. 207, 216 

2 The superior court awarded fees to both parties under the CC&Rs 

but noted that the fees it awarded would be the same whether granted 

under the CC&Rs or § 12-341.01. 
HERITAGE v. WEINBERG, et al.

Decision of the Court

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(App. 1992) (noting that a court considers "the totality of the circumstances 

and the relative success of the litigants" in determining who is a successful 

party). 

C. Attorneys' Fees Incurred Opposing Intervention. 

¶25 In Heritage I, we determined "that [Intervenors] have met the 

minimal burden for intervention of right under Rule 24(a)(2)." 246 Ariz. at 

573, ¶ 24 n.5. Our prior decision vacated the previous award of attorneys'

fees to Heritage and the Weinbergs and "den[ied] the Weinbergs' and 

Heritage's requests for fees and costs on appeal." Id. at ¶ 26. Nothing in 

that decision prevented the superior court from granting attorneys' fees in 

the future, except for the denied fees and costs incurred on that appeal. See 

Raimey v. Ditsworth, 227 Ariz. 552, 561, ¶ 26 (App. 2011) (noting that upon 

remand, a trial court normally has the power to determine attorneys' fees 

questions and express direction in the mandate is not required for the trial 

court to award fees); Nielson v. Patterson, 204 Ariz. 530, 533, ¶ 12 (2003) ("A 

vacated judgment lacks force or effect and places parties in the position they 

occupied before entry of the judgment.").

¶26 However, in granting Heritage's and Weinbergs' attorneys' 

fees, the superior court awarded fees incurred opposing intervention. The 

superior court has discretion to determine who is a successful party when 

multiple claims are brought with varied success. City of Cottonwood v. James 

L. Fann Contracting, Inc., 179 Ariz. 185, 194 (App. 1994). Nonetheless, we 

have held that "[w]here claims could have been litigated separately, fees 

should not be awarded for those unsuccessful separate and distinct claims 

which are unrelated to the claim upon which the [requesting party] 

prevailed." Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 189 (App. 1983). 

Separate and distinct claims include those claims based upon "different 

facts or legal theories." Id.; see also City of Cottonwood, 179 Ariz. at 194–95. 

Generally, "where a party has accomplished the result sought in the 

litigation, fees should be awarded for time spent even on unsuccessful legal 

theories," but "[w]here a party has achieved only partial or limited 

success . . . it would be unreasonable to award compensation for all hours 

expended, including time spent on the unsuccessful issues or claims." 

Schweiger, 138 Ariz. at 189. 

¶27 Intervention is a distinct procedural right to become involved 

in a case. See Ariz. R. Civ. P. 24(a)(2). The question of whether a party may 

intervene is separate from whether the intervenor will succeed on the 

merits of the case. Here, the motion to intervene was separate and distinct 

from the merits of the underlying action. Because Heritage and the 
HERITAGE v. WEINBERG, et al.

Decision of the Court

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Weinbergs were unsuccessful in opposing intervention, the superior court 

abused its discretion in granting fees for work done opposing the motion to 

intervene. See Mills by Mills v. Freeman, 118 F.3d 727, 733 (11th Cir. 1997) 

(affirming the denial of fees incurred in unsuccessful opposition to 

intervention because the "intervention claim was distinct from appellant's 

success" on the underlying substantive claims); see also Rum Creek Coal Sales, 

Inc. v. Caperton, 31 F.3d 169, 176–77 (4th Cir. 1993) (affirming exclusion of 

intervention-related fees and expenses under 42 U.S.C. § 1988 to a party 

who unsuccessfully opposed intervention but later succeeded on the 

merits); cf. also Summers Grp., Inc. v. Tempe Mech., LLC, 231 Ariz. 571, 574, 

¶ 15 (App. 2013) (noting that "in multi-issue litigation, it is common for 

attorney fees to be apportioned between successful and unsuccessful 

efforts").

¶28 For these reasons, we vacate the superior court's award of

attorneys' fees.

3

III. Attorneys' Fees on Appeal.

¶29 Intervenors, Heritage, and the Weinbergs request an award of 

their attorneys' fees incurred on this appeal. In our discretion, we deny 

both Heritage's and Intervenors' requests for fees under A.R.S. § 12-341.01.

Under the CC&Rs, as the substantially prevailing party, an award of 

attorney fees to the Weinbergs is mandatory. Supra ¶ 23; see also Castle, 229 

Ariz. at 475, ¶ 17 (noting "we have no discretion to deny an award 

mandated by the parties' contract"). Accordingly, we award the Weinbergs 

their reasonable fees upon timely compliance with ARCAP 21. 

3 The record indicates that, although the superior court denied fees the 

Weinbergs incurred on the prior appeal, it may have granted fees Heritage 

incurred on appeal in Heritage I. On remand, the superior court should not 

award attorneys' fees incurred in opposing intervention at the superior 

court or on appeal.
HERITAGE v. WEINBERG, et al.

Decision of the Court

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CONCLUSION

¶30 For the foregoing reasons, we affirm the superior court's 

decision granting the Weinbergs' motion to dismiss. The awards of 

attorneys' fees to Heritage and the Weinbergs are vacated and that matter 

is remanded to the superior court for further proceedings consistent with 

this decision.