Clerk of the Superior Court

*** Electronically Filed ***

D. Hill, Deputy
1/26/2024 10:27:24 AM
1 Louis D. Lopez, SBN 021191 Filing ID 17249344
Louis.Lopez@Gtlaw.Com
2 GREENBERG TRAURIG, LLP
3 2375 East Camelback Road
Suite 800
4 Phoenix, AZ 85016
(602) 445-8000
5
Attorneys for Plaintiff
6

7 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

8 IN AND FOR THE COUNTY OF MARICOPA
9 AZ Management & Investments, LLC, CV2024-001657
No.
10 Plaintiff,
VERIFIED COMPLAINT
11 v.
(Declaratory Relief)
12 The Foothills Community Association, an
Arizona not for profit corporation; Red (Tier II)
13 Corporations I-X, Black Limited Liability
Companies I-X, Blue Partnerships I-X, and
14 Jane and John Does I-X,
15 Defendants.
16

17 Plaintiff AZ Management & Investments, LLC (“Golf Club Owner”) for its

18 Complaint alleges as follows:

19 1. Golf Club Owner is an Arizona limited liability company that is authorized

20 to do business in the State of Arizona and is doing business in Maricopa County, Arizona.

21 2. Defendant The Foothills Community Association (the “Association”) is an

22 Arizona not for profit corporation that is authorized to do business in the State of Arizona

23 and is doing business in Maricopa County, Arizona.

24 3. Defendants Red Corporations I-X, Black Limited Liability Companies I-X,

25 Blue Partnerships I-X, and Jane and John Does I-X are fictitiously named defendants that

26 may be liable to Golf Club Owner. When the name of these defendants are known to Golf

27 Club Owner their true names will be added through amendment or otherwise.

28 4. The real property at issue is in Maricopa County, Arizona.

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 1 5. The covenants, conditions, and restrictions at issue are recorded in
2 Maricopa County, Arizona.
3 6. Venue in the Superior Court for the State of Arizona for Maricopa County
4 is proper.
5 7. Golf Club Owner solely seeks declaratory relief to declares the parties’
6 duties and obligations with respect to the property and covenants, conditions, and
7 restrictions at issue.
8 8. If judgment is entered by default for not answering then Golf Club Owner
9 will seek attorneys’ fees not to exceed $25,000.
10 9. This case is a Tier II case.
11 10. The case qualifies for the commercial court.
12 11. Golf Club Owner requests expedited relief pursuant to Rule 58, Arizona
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13 Rules of Civil Procedure.

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12. Declarant Foothills Joint Venture recorded covenants, conditions, and

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15 restrictions (“CC&Rs”) for certain real property in Maricopa County known as The
16 Foothills. A true and correct copy of the recorded CC&Rs are Exhibit A attached hereto.
17 13. Declarant’s intent was to develop The Foothills for commercial, office,
18 multi-family and single-family residential, hotel, golf course and other recreational uses.
19 Exhibit A, 4-1 – 4-2.
20 14. Declarant created the Association in furtherance of its development intent
21 to govern The Foothills. Exhibit A, 4-1, ¶5; Article, Section 2.1.
22 15. The Association is subject to the CC&Rs. Exhibit A, Article, Section 2.2.
23 16. The CC&Rs, among other things, identify the Association’s duties and
24 obligations. Exhibit A, Article 12.
25 17. Declarant first completed construction of the golf course.
26 18. Declarant intended to build the residential community to compliment the
27 golf course.
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 1 19. The golf course is subject to the CC&Rs. Exhibit A, 4-2, ¶1; Article 1,
2 definitions M, Cc, Dd, Ee, Ff, Uu; Article 6, Section 6.1.
3 20. Golf Course Owner is a member of the Association. Exhibit A, Article 6,
4 Section 6.1.
5 21. The Association owes Golf Couse Owner duties and obligations under the
6 CC&Rs. Exhibit A, Section 2.1 and 2.2.
7 22. The golf course is the Foothills Golf Club (the “Golf Club”).
8 23. Golf Course Owner is the owner of the Golf Club.
9 24. Golf Couse Owner and the Golf Club are beneficiaries of the CC&Rs that
10 enjoy all the rights, benefits, duties, and obligations stated therein. Exhibit A, Article 6,
11 Section 6.1.
12 25. The Golf Club is a par-72 Championship link-style golf course consisting
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13 of approximately 7,000 yards of fairways, blue lakes, and sixty-five bunkers located in
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Phoenix Arizona in the Ahwatukee Foothills.

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15 26. Construction of the golf course started and was completed before residential
16 construction occurred, plats were completed, residential lots were identified or any other
17 development activities regarding the residential community started.
18 27. The then golf club owner was not involved in the construction of the
19 residential communities, the delineation of residential lots, plats, etc., the delineation of
20 boundaries, plat/lot boundaries or other boundaries, or any other aspect concerning the
21 residential development constructed around the Golf Club.
22 28. Del E Webb Corporation was the original developer of the residential
23 communities within The Foothills.
24 29. Del E Webb Corporation constructed the residential homes, all walls and
25 other infrastructure for The Foothills.
26 30. Del E Webb Corporation built the walls for the benefit of the residential
27 homes constructed in The Foothills.
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 1 31. Del E Webb Corporation, and/or its successors, assumed full responsibility
2 for maintenance, upkeep and repair of all walls, dictated the repair and maintenance
3 schedule, and paid for the maintenance, repairs, and restoration of the walls within The
4 Foothills.
5 32. Since 1994 the Association assumed full responsibility for maintenance and
6 repair of all walls, dictated the repair and maintenance schedule, and paid to maintain,
7 repair and restore any wall within The Foothills that was not in a safe condition.
8 33. The Golf Club relied upon Del E Webb Corporation and The Association
9 to maintain, repair, and restore all walls in The Foothills.
10 34. The Association made no demand on the Golf Club to pay maintenance
11 costs associated with the walls at The Foothills.
12 35. For example, Exhibit B is a memorandum to the Association confirming
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13 that it was Del E Webb Corporation’s intent that the Golf Club have no liability for
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maintenance and upkeep of the walls.

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15 36. Exhibit C, Section 5, is a letter from the Association to the Golf Club
16 confirming that the walls along the Golf Club property are on a maintenance schedule
17 that the Association paid for.
18 37. Exhibit D, Section 5, is an additional letter from the Association to the Golf
19 Club confirming the walls along Holes 5, 14, and 17 would be maintained and repaired
20 by the Association.
21 38. Exhibit C and Exhibit D constitute Rule 801(d)(2), Arizona Rules of
22 Evidence, admissions against interest.
23 39. In 1999, the Association demanded that the Golf Club pay 50% of the cost
24 to replace “Party Walls” or “Party Fences” constructed on “residential lots” adjacent to
25 or on the common boundary shared with the Golf Club.
26 40. The CC&Rs state, “The Owners of contiguous Lots or Parcels who have a
27 Party Wall or Party Fence shall both equally have the right to use such wall or fence . . .
28 .” (emphasis added). Exhibit A, Article 4, Section 4.2(p)(i).
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 1 41. The CC&Rs define “Party Fence” and “Party Wall” to “mean a fence or
2 wall constructed on, or immediately adjacent to, the common boundary of Lots or Parcels
3 or the common boundary of Common Areas and a Lot or Parcel.” Exhibit A, Article 1,
4 definitions Vv; Article 4, Section 4.5.
5 42. Interpretation of CC&Rs is a question of law. Powell v. Washburn, 211
6 Ariz. 553, 555, ¶8 (2006); Grosvenor Holdings, L.C. v. Figueroa, 222 Ariz. 588, 593, ¶9
7 (App. 2009).
8 43. The definition of Party Fence and Party Wall is not ambiguous.
9 44. When a CC&R definition is not ambiguous the provision is enforced as is
10 to give effect to the declarant’s intent. Ariz. Biltmore Estates Ass’n v. Tezak, 177 Ariz.
11 447, 449 (App. 1993).
12 45. Party Fence and/or Party Wall does not mean walls or fences between Lots
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13 and Parcels that are adjacent to or share a common boundary. Exhibit A, Article 1,
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definitions Vv.
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15 46. The owner of a “Lot” is bound to the CC&Rs. Exhibit A, 4-2, ¶2.
16 47. The Golf Club is not a “Lot” as defined by the CC&Rs. Exhibit A, Article
17 1, definitions Cc, Oo and Uu.
18 48. A Lot is not a “Parcel” as defined by the CC&Rs. Exhibit A, Article 1,
19 definitions Uu (“Parcel” shall mean all areas of real property in The Foothills except for
20 Lots. (emphasis added)).
21 49. The Golf Club is not a “Common Area and Common Areas” as defined by
22 the CC&Rs. Exhibit A, Article 1, definitions N; Article 4, Section 4.5
23 50. The Golf Club is a “Parcel” as defined by the CC&Rs. Exhibit A, Article
24 1, definitions Cc and Uu.
25 51. The Golf Club does not share a contiguous common boundary with a
26 Common Area.
27 52. There is no wall or fence that the Golf Club shares a contiguous common
28 boundary with another Parcel owner.
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 1 53. The Golf Club, at certain locations, shares a contiguous common boundary
2 with a Lot.
3 54. A wall and/or fence constructed adjacent to or on the contiguous common
4 boundary the Golf Club shares with a Lot is not a Party Fence or Party Wall as defined
5 by the CC&Rs.
6 55. The Association demanded that the Golf Club pay 50% of the repair,
7 maintenance, and restoration costs for walls adjacent to or on the common boundary
8 shared with the Golf Club property.
9 56. The Association improperly alleged that the walls constituted Party Walls
10 or Party Fences.
11 57. The CC&Rs did not obligate the Golf Club to pay any monies to repair,
12 maintain, or restore the walls adjacent to or on the common boundary shared with the
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13 Lots because the dilapidated walls are not Party Walls or Party Fences under the CC&Rs’
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express terms. Exhibit A, Article 1, Section 4.1(p)(iii).

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15 58. The Golf Club did not damage any wall the Association demanded monies
16 from the Golf Club to repair, maintain, and/or restore.
17 59. The Club Club’s activities did not damage any wall the Association
18 demanded monies from the Golf Club to repair, maintain, and/or restore.
19 60. The Golf Club never consented to a Party Wall or Party Fence being
20 constructed on any common boundary it shares with a Lot or on the Golf Club’s property.
21 61. The Association backed off its demand and did not pursue the issue.
22 62. The Association occasionally revisited the issue, but backed away each time
23 the Golf Club explained that the walls did not constitute Party Walls or Party Fences
24 under the CC&Rs.
25 63. In January 2024, the Association at a member meeting admitted that the last
26 known maintenance to the Walls was conducted by the Association on or around 2014
27 and Homeowners stated they had routinely paid to maintain the Walls solely at their
28 expense.
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 1 64. Individual Lot owners over the past twenty years modified the walls on or
2 adjacent to the boundary shared with the Golf Club property.
3 65. No Lot owner can construct or modify a wall in The Foothills without the
4 Association’s approval. Exhibit A, Article 4, Section 4.2(a).
5 66. The Association assumed full responsibility for the maintenance, repair and
6 restoration of a wall built on or adjacent to a common boundary line shared with the Golf
7 Club property by permitting the Lot owners to construct and modify the walls if the Lot
8 owner did not maintain the walls.
9 67. Certain walls, include retaining walls, exceed fifteen feet in height.
10 68. The work was completed without seeking or obtaining the Golf Club’s
11 permission or approval for the construction,
12 69. The Golf Club was powerless to stop the construction because the
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13 construction occurred on the Lot owners’ property, but the Association possesses
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regulatory authority over the Lots and the walls constructed on the Lots under the CC&Rs.
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15 Exhibit A, Article 12, Section 12.3; Article 10, Section 10.4; see also Article 7, et. seq.
16 and Article 8, et. seq.
17 70. The Golf Club was powerless to demand that a Lot owner make a revision
18 to any wall constructed adjacent to or on the shared contiguous boundary line.
19 71. The Association, upon information and belief, did not and is not supervising
20 the construction, inspecting the walls to ensure the walls comply with applicable CC&Rs,
21 inspecting the walls to ensure that the walls comply with applicable City of Phoenix
22 codes, confirming that the walls are permitted, or engaging in supervisory activities to
23 guarantee that the walls are properly built and maintained.
24 72. The CC&Rs state that no structure on a Lot will be permitted to fall in a
25 state of disrepair and will be maintained in a good condition and repair. Exhibit A,
26 Article 4.2(g).
27 73. The Association is not inspecting the walls to guarantee that the walls are
28 being properly maintained, are in a good condition, and do not pose a threat to the health
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 1 and safety of the public despite its power under the CC&Rs to do so. Exhibit A, Article
2 4, Section 4.2(v).
3 74. The CC&Rs task the Association with the responsibility to enforce the
4 CC&Rs to guarantee that any wall a Lot owner builds is done in compliance with the
5 CC&Rs and is being properly maintained, repaired and restored so the wall is in a safe
6 working condition. Exhibit A, Article 5; Article 12.
7 75. The CC&Rs empower the Association to compel the Lot owner to repair
8 any dilapidated wall. Exhibit A, Article 12, Section 12.2.
9 76. The CC&Rs empower the Association to enter into contacts to maintain,
10 repair, and/or restore a wall that a Lot owner builds but is not maintaining and then back
11 bill the Lot owner for that repair work. Exhibit A, Article 12, Section 12.3; Article 10,
12 Section 10.4; see also Article 7, et. seq. and Article 8, et. seq.; Article 15, Section 15.12.
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13 77. The CC&Rs task the Association with the responsibility to inspect any wall
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constructed by a Lot owner to confirm that the wall is in a good safe condition. Exhibit
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15 A, Article 4, Section 4.2(v); Article 12.

16 78. Lot owners granted the Association permission to enter the Lot to inspect
17 the walls on the Lot for CC&R compliance. Exhibit A, Article 4, Section 4.2(v).
18 79. The Association abdicated its duties under the CC&Rs to ensure the safe
19 construction, maintenance, and/or restoration of the walls that the Lot owners constructed
20 adjacent to or on the common boundary shared with the Golf Club property.
21 80. The walls are now in a state of disrepair, constitute a public and private
22 nuisance, and present a clear and present danger to the health, safety, and wellbeing of
23 the individuals utilizing the Golf Club, including potential death.
24 81. Certain walls are crumbling to the ground.
25 82. Other walls are no longer perpendicular, but leaning over the Golf Club’s
26 property like the Leaning Tower Pisa.
27 83. Other walls are held together with chicken wire and other “MacGyver”
28 fixes.
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 1 84. Other walls include exposed rebar.
2 85. Other walls include exposed metal/iron.
3 86. The Association knows the walls adjacent to and/or on the common
4 boundary of the Golf Course property are in a state of disrepair and require maintenance,
5 repair, and restoration.
6 87. Golf Course Owner has provided the Association actual notice of the issue,
7 but the Association refuses to remedy the situation.
8 88. If a wall injures a Golf Club patron the Golf Club will be sued for the injury.
9 89. The Golf Club’s liability would be solely and exclusively based upon the
10 Association’s refusal to perform its duty to inspect, repair, maintain and/or restore the
11 walls that the Lot owners constructed.
12 90. The Golf Club would be free of any fault for an injury caused by a falling
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13 wall.
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91. Upon information and belief, neither the Association or the individual Lot
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15 owner possesses sufficient insurance to protect the Golf Club Owner from the liability the
16 Association’s actions are exposing the Golf Club Owner to.
17 92. Upon information and belief, neither the Association or the individual Lot
18 owner added the Golf Club Owner as an additional insured to their policies.
19 93. Golf Club Owner demanded that the Association repair the walls in
20 accordance with the CC&Rs.
21 94. The Association refused to do so.
22 95. The Association demands that Golf Club Owner commit to pay 50% of the
23 cost to replace, repair, restore, and maintain the crumbling walls as a condition precedent
24 to taking any action by alleging that the walls constitute Party Walls and/or Party Fences
25 under the CC&Rs.
26 96. The walls are not Party Walls or Party Fences. Exhibit A, Article 1,
27 definitions Vv.
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 1 97. The Association has no right to condition performance of the repair work
2 on Golf Course Owner paying a portion of that work. Exhibit A, Article 4, Section
3 4.2(p).
4 98. The Association’s refusal to act absent the Golf Club Owner committing to
5 pay 50% of the repair, maintenance, and restoration costs violates the CC&R’s express
6 terms.
7 99. The Association’s demand also violates the covenant good faith and fair
8 dealing.
9 100. The covenant of good faith and fair dealing “prohibits a party from doing
10 anything to prevent the other parties to the contract from receiving the benefits and
11 entitlements of the agreement.” Bike Fashion Corp. v. Kramer, 202 Ariz. 420, 424, ¶14
12 (App. 2002).
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13 101. Golf Course Owner is a party to the CC&Rs. Exhibit A, Article 1,

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definitions M, Cc, Dd, Ee, Ff, Uu; Article 6, Section 6.1.

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15 102. An express benefit of the CC&Rs is that the Association will inspect the
16 walls to guarantee the walls are maintained in good working condition, enforce the
17 CC&Rs to ensure that any wall the Lot owner built adjacent to or on a common boundary
18 line shared with the Golf Club property is built, maintained, repaired, and restored to a
19 safe condition to ensure the health, safety, and wellbeing of the Golf Club’s patrons are
20 not jeopardized by the walls that the Association permitted the Lot owners to build, and
21 take corrective action if the Lot owner refuses to maintain or repair a wall that is not in a
22 good safe working condition.
23 103. Golf Club Owner pays dues to the Association for these benefits of the
24 CC&Rs.
25 104. The Arizona Uniform Declaratory Judgment Act, A.R.S. §§ 12-1881, et.
26 seq., permits the Court to declare the parties’ rights, status, and legal relationship under a
27 contract.
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 1 105. The CC&Rs constitute a contract between Golf Course Owner and the
2 Association. Ahwatukee Custom Estates Mgmt. Ass’n v. Turner, 196 Ariz. 631, 634, ¶5
3 (App. 2000).
4 106. “A declaratory judgment will be granted only when there is a justiciable
5 issue between the parties.” Ariz. State. Bd. Of Dirs. For Junior Colls v. Phoenix Union
6 High Sch. Dist., 102 Ariz. 69, 73 (1967).
7 107. A justiciable controversy exists if there is “an assertion of rights, status or
8 legal relation in which the plaintiff has a definite interest and a denial of it by the opposing
9 party.” Keggi v. Northbrook Prop. Cas. Ins. Co., 199 Ariz. 43, 45, ¶10 (App. 2000).
10 108. The walls adjacent to and/or on the contiguous common boundary between
11 the Lots and the Golf Club property are in a state of disrepair, are not being repaired, are
12 not being maintained, and pose a present existing danger to the Golf Club’s patrons.
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13 109. The Association is responsible for maintaining, repairing, and restoring the
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walls and paying all costs associated with maintaining, repairing, and restoring the walls
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15 when the Lot owner refuses to do so in accordance with the CC&Rs. Exhibit A, Article
16 10, Section 10.4.
17 110. The Association’s obligation to maintain, repair, and restore the walls is an
18 express benefit granted the Golf Course Owner under the CC&Rs. Id.
19 111. Golf Course Owner is not responsible for maintaining, repairing, or
20 restoring the walls and is not responsible for paying any cost associated with maintaining,
21 repairing, or restoring the walls.
22 112. The Association’s obligation to pay the cost to maintain, repair, or restore
23 walls that are not in good working condition is an express benefit granted Golf Course
24 Owner under the CC&Rs.
25 113. The Association’s demand that Golf Course Owner pay a portion of the cost
26 to maintain, repair and/or restore the walls as a condition precedent to acting is a breach
27 of the covenant of good faith and fair dealing.
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 1 114. An actual dispute exists between the Golf Course Owner and the
2 Association regarding whether the walls constitute Party Walls or Party Fences, and what
3 monies, if any, Golf Course Owner is required to pay towards the maintenance, repair,
4 replacement, and/or restoration of the walls constructed adjacent to or on the common
5 boundary line the Golf Club shares with a Lot.
6 115. Golf Course Owner is entitled to declaratory relief declaring: (1) any wall
7 constructed adjacent to or on the common boundary line the Golf Club shares with a Lot
8 is not a Party Wall or Party Fence as defined under the CC&Rs; (2) Golf Course Owner
9 is not required to contribute any monies to repair, replace, maintain, or restore any wall
10 constructed adjacent to or on the common boundary line the Golf Club shares with a Lot;
11 and (3) any other relief that the Court deems necessary and appropriate to effectuate the
12 declaratory relief requested herein.
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13 116. Golf Course Owner is entitled to recover its attorneys’ fees and costs
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pursuant to the CC&Rs, A.R.S. § 12-341 and A.R.S. § 12-341.01(a).

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15 Wherefore, Golf Course Owner prays for relief against the Association as
16 follows:
17 A. Declaratory relief as requested herein;
18 B. Attorneys’ fees and costs pursuant to the CC&RS, A.R.S. § 12-341 and
19 A.R.S. § 12-341.01(a); and
20 C. Such other relief that the Court deems necessary and appropriate to
21 effectuate the declaratory relief herein.
22 DATED this 26th day of January 2024.
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GREENBERG TRAURIG, LLP
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/s/ Louis D. Lopez
26 Louis D. Lopez
Attorneys for Plaintiff
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 1 Verification
2 I, Michael Ennabe, am the managing member of AZ Management & Investments,
3 LLC. I am authorized to sign this verification on behalf of AZ Management &
4 Investments, LLC. I possess personal knowledge of the facts stated herein and believe
5 them to be true under penalty of perjury under the laws of the State of Arizona.
6 Dated: January 26, 2024 AZ Management & Investments, LLC
7 /s/ Michael Ennabe
8 Name: Michael Ennabe
9 Its: Managing Member
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EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D