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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
R.L. WHITMER, Plaintiff/Appellant,
v.
HILTON CASITAS HOMEOWNERS ASSOCIATION, Defendant/Appellee.
No. 1 CA-CV 23-0350
FILED 1-30-2024
Appeal from the Superior Court in Maricopa County
No. CV2022-014709
The Honorable John Christian Rea, Judge (Retired)
AFFIRMED
COUNSEL
Meyer & Partners, PLLC, Phoenix
By Ross P. Meyer
Counsel for Plaintiff/Appellant
Carpenter Hazlewood Delgado & Bolen, LLP, Tempe
By Edith I. Rudder
Counsel for Defendant/Appellee
WHITMER v. HILTON CASITAS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Daniel J. Kiley delivered the decision of the Court, in which
Judge Kent E. Cattani and Judge D. Steven Williams joined.
K I L E Y, Judge:
¶1 R.L. Whitmer filed a petition asking the superior court to hold
Hilton Casitas Homeowners Association (“Hilton Casitas”) in contempt for
failing to comply with a decision rendered in an administrative proceeding
several years earlier. The court dismissed his claim for relief, and Whitmer
appeals. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Hilton Casitas is the homeowners association for the
Scottsdale condominium community where Whitmer lives. Hilton Casitas
is subject to the Arizona Condominium Act. See A.R.S. §§ 33-1201 to -1270.
¶3 In 2014, Whitmer filed a petition with the predecessor agency
to the Arizona Department of Real Estate (the “Department”) alleging that
Hilton Casitas had violated its statutory obligations regarding association
budgets. Specifically, Whitmer alleged that Hilton Casitas incurred legal
fees in 2013 and 2014 that exceeded budgeted amounts without receiving
authority from members to amend the budgets as required by A.R.S.
§ 33-1243(D).
¶4 At an evidentiary hearing before the Office of Administrative
Hearings (“OAH”), Hilton Casitas’ former board president admitted that
Hilton Casitas incurred legal fees in 2014 that “substantially exceeded the
amount of money that had been budgeted for legal fees” that year. She
explained that Whitmer had filed two or three lawsuits against Hilton
Casitas that required Hilton Casitas to incur attorney fees that had not been
anticipated.
¶5 After the hearing, the administrative law judge (the “ALJ”)
issued a decision (the “2015 Decision”) concluding that Hilton Casitas
violated A.R.S. § 33-1243(D) by “exceed[ing] the amount of money that had
been budgeted for legal fees in 2014.” The ALJ did not impose a civil penalty
against Hilton Casitas but ordered it to “fully comply with the applicable
provisions of A.R.S. § 33-1243(D) in the future.”
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WHITMER v. HILTON CASITAS
Decision of the Court
¶6 Eight years later, in 2022, Whitmer petitioned the superior
court to hold Hilton Casitas in contempt for violating the 2015 Decision. In
his petition as amended, Whitmer alleged that Hilton Casitas had incurred
legal expenses of $67,195.50 in 2021 and $46,591.60 in 2022, more than the
amounts budgeted for those years. The amended petition further alleged
that, by failing to amend its budget for either year, Hilton Casitas violated
the 2015 Decision’s directive to “fully comply with the applicable
provisions of A.R.S. § 33-1243(D) in the future.” Whitmer asked the court to
find Hilton Casitas in contempt for violating the 2015 Decision, award him
attorney fees, and order Hilton Casitas to “amend its future budgets within
thirty (30) days of exceeding or knowing [it] will exceed its adopted
budget’s authorized expenditures.”
¶7 Hilton Casitas moved to dismiss the amended petition for
failure to state a claim upon which relief may be granted. See Ariz. R. Civ.
P. 12(b)(6). It argued that the ALJ exceeded his authority by issuing the 2015
Decision because an administrative agency lacks authority to issue a
“non-specific order” requiring a condominium association “to obey A.R.S.
§ 33-1243(D) moving forward.” In the alternative, Hilton Casitas denied
that it had violated Section 33-1243(D) and argued that, in any event, “[a]ny
alleged overspend[ing]” for legal fees “in the 2021 and 2022 budgets”
resulted from Whitmer’s own actions in “continuing to file” lawsuits
against Hilton Casitas, “thereby causing the very problem of which he
complains.”
¶8 Whitmer opposed the motion to dismiss, arguing that A.R.S.
§ 32-2199.02(A) confers statutory authority on administrative law judges to
“order any party” to a condominium dispute “to abide by the statute,
condominium documents, community documents or contract provision at
issue.” He also asserted that Hilton Casitas violated A.R.S. § 33-1243(D) by
“overspend[ing] its adopted annual budget” in 2021 and 2022 without
asking members to approve an amended budget.
¶9 After full briefing, the superior court issued a ruling stating
that it did not interpret the 2015 Decision to require Hilton Casitas to
comply with Section 33-1243(D) for the indefinite future. Citing evidence
presented at the OAH hearing that the Hilton Casitas board “intended to
meet soon to ratify the increased legal costs,” the court stated that it
construed the 2015 Decision simply to mandate Hilton Casitas’ compliance
with Section 33-1243(D) at its upcoming board meeting to amend the 2014
budget. Accordingly, the court ruled, the 2015 Decision did not apply to
Hilton Casitas’ actions in 2021 and 2022.
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WHITMER v. HILTON CASITAS
Decision of the Court
¶10 The court went on to hold that if the 2015 Decision were
interpreted to impose an ongoing obligation on Hilton Casitas to comply
with Section 33-1243(D) for the indefinite future, the decision would be “too
vague to enforce by contempt.” The court concluded by dismissing
Whitmer’s amended petition. After awarding attorney fees to Hilton
Casitas, the court entered final judgment from which Whitmer has timely
appealed. We have jurisdiction under A.R.S. § 12-2101(A)(1).
DISCUSSION
¶11 Whitmer challenges the dismissal of his amended petition
under Arizona Rule of Civil Procedure 12(b)(6). We review an order
granting a motion to dismiss de novo. Mills v. Ariz. Bd. of Tech. Registration,
253 Ariz. 415, 420, ¶ 10 (2022). We accept the facts alleged as true and
determine whether those facts state a claim upon which relief can be
granted. See Mirchandani v. BMO Harris Bank, N.A., 235 Ariz. 68, 70, ¶ 7
(App. 2014); Ariz. R. Civ. P. 12(b)(6). We likewise review de novo the
superior court’s interpretation of the 2015 Decision. See Holcomb v. Ariz.
Dep’t of Real Estate, 247 Ariz. 439, 443, ¶ 9 (App. 2019) (“We review de novo
any legal issues addressed by the [administrative] agency or the superior
court.”); see also Abbott Lab’ys. v. TorPharm, Inc., 503 F.3d 1372, 1382 (Fed.
Cir. 2007) (“As with any other legal instrument, interpretation of the terms
of an injunction is a question of law we review de novo.”).
¶12 Pursuant to A.R.S. § 33-1243(D),
Except as provided in the declaration, within thirty days after
adoption of any proposed budget for the condominium, the
board of directors shall provide a summary of the budget to
all the unit owners. Unless the board of directors is expressly
authorized in the declaration to adopt and amend budgets
from time to time, any budget or amendment shall be ratified
by the unit owners in accordance with the procedures set
forth in this subsection. If ratification is required, the board of
directors shall set a date for a meeting of the unit owners to
consider ratification of the budget not fewer than fourteen or
more than thirty days after mailing of the summary. Unless at
that meeting a majority of all the unit owners or any larger
vote specified in the declaration rejects the budget, the budget
is ratified, whether or not a quorum is present. If the proposed
budget is rejected, the periodic budget last ratified by the unit
owners shall be continued until such time as the unit owners
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Decision of the Court
ratify a subsequent budget proposed by the board of
directors.
¶13 The superior court dismissed Whitmer’s amended petition
because it interpreted the 2015 Decision to impose no obligation on Hilton
Casitas beyond compliance with Section 33-1243(D) at its upcoming
meeting to amend the 2014 budget. The court also held, in the alternative,
that to the extent the 2015 Decision’s directive purported to require future
compliance with Section 33-1243(D) for an indefinite period, the directive
was unenforceable. Because we agree with the parties that the 2015
Decision’s directive can be read to mandate ongoing compliance with the
statute for the indefinite future, we address the superior court’s alternative
holding that such a directive is unenforceable.
¶14 Whitmer asserts that the court erred in dismissing his
amended petition for failure to state a claim for relief because, he contends,
A.R.S. § 32-2199.02(A) authorized the ALJ to issue a “forward binding
order” requiring Hilton Casitas to abide by Section 33-1243(D) on an
ongoing basis. In response, Hilton Casitas argues the 2015 Decision’s
injunction provision is insufficiently specific to be enforced by contempt.
¶15 Administrative law judges have authority to issue injunctions
directing parties to condominium disputes to abide by the requirements of
particular statutes and contract provisions. See A.R.S. § 32-2199.02(A) (“The
administrative law judge may order any party to abide by the statute,
condominium documents, community documents or contract provision at
issue and may levy a civil penalty on the basis of each violation.”). The
injunctions may be enforced through contempt proceedings in superior
court. Whitmer v. Hilton Casitas Homeowners Ass’n, 245 Ariz. 77, 80-81,
¶¶ 11-12 (App. 2018).
¶16 All injunctions must, inter alia, “describe in reasonable
detail—and not by referring to the complaint or other document—the act
or acts restrained or required.” Ariz. R. Civ. P. 65(d)(1). The requisite
specificity will be found “only if the enjoined party can ascertain from the
four corners of the order precisely what acts are forbidden or required.”
Havens v. James, 76 F.4th 103, 121 (2d Cir. 2023) (citation omitted).
¶17 The specificity required of injunctions serves “to prevent
uncertainty and confusion on the part of those faced with injunctive
orders,” Schmidt v. Lessard, 414 U.S. 473, 476 (1974), thereby “protect[ing]
the elementary due process requirement of notice,” Axia NetMedia Corp. v.
Mass. Tech. Park Corp., 889 F.3d 1, 12 (1st Cir. 2018) (cleaned up). As courts
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WHITMER v. HILTON CASITAS
Decision of the Court
have long held, “basic fairness requires that those enjoined receive explicit
notice of precisely what conduct is outlawed.” Schmidt, 414 U.S. at 476; see
also Granny Goose Foods v. Bhd. of Teamsters & Auto Truck Drivers Loc. No. 70,
415 U.S. 423, 444 (1974) (“[O]ne basic principle built into [Federal Rule of
Civil Procedure] 65 is that those against whom an injunction is issued
should receive fair and precisely drawn notice of what the injunction
actually prohibits.”). To provide fair notice to the defendant of what he or
she “is ordered to do or not to do,” an injunction “should be phrased in
terms of objective actions, not legal conclusions.” John H. Harland Co. v.
Clarke Checks, Inc., 711 F.2d 966, 985 (11th Cir. 1983) (citation omitted).
¶18 An injunction that lacks the required specificity, or otherwise
“does not clearly describe prohibited or required conduct, . . . is not
enforceable by contempt.” Gates v. Shinn, 98 F.3d 463, 468 (9th Cir. 1996); see
also United States v. Askins & Miller Orthopaedics, P.A., 924 F.3d 1348, 1362
(11th Cir. 2019) (noting that injunctions’ specificity requirement is
“designed,” inter alia, “to avoid the possible founding of a contempt citation
on a decree too vague to be understood”) (citation omitted). As the United
States Supreme Court has recognized, “[t]he judicial contempt power is a
potent weapon,” and “[w]hen it is founded upon a decree too vague to be
understood, it can be a deadly one.” Int’l Longshoremen’s Ass’n, Loc. 1291 v.
Phila. Marine Trade Ass’n, 389 U.S. 64, 76 (1967); see also Payne v. Travenol
Lab’ys, Inc., 565 F.2d 895, 897 (5th Cir. 1978) (finding that the specificity
requirement of Federal Rule of Civil Procedure 65(d) is “a reflection of the
seriousness of the consequences which may flow from a violation of an
injunctive order”).
¶19 “[C]ourts are generally hesitant to order a defendant to obey
a law in the future,” W. Valley View, Inc. v. Maricopa Cnty. Sheriff’s Off., 216
Ariz. 225, 228, ¶ 11 (App. 2007), and one reason for this reluctance is that
injunctions that simply direct parties to comply with the law provide no
specific guidance for future conduct. An injunction that “gives little more
direction than a general command to obey the law” sets forth mere “legal
conclusions” instead of the required “specific acts.” See Pardilla v. Vill. of
Hoffman Ests., __ N.E.3d __, 2023 IL App (1st) 211580, ¶ 37 (Ill. App. Ct.
2023). Such an order does not provide “fair and precisely drawn notice of
what the injunction actually prohibits,” leaving the defendant “to guess at
what kind of conduct would be deemed” to be a violation. Calvin Klein
Cosms. Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665, 669 (8th Cir. 1987).
So-called “obey-the-law” injunctions thus “run afoul” of the principle “that
an injunction state its terms specifically and describe in reasonable detail
the act or acts restrained or required.” Bone v. Univ. of N.C. Health Care Sys.,
1:18-cv-994, 2023 WL 4144277, at *32 (M.D.N.C. June 22, 2023) (mem.
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WHITMER v. HILTON CASITAS
Decision of the Court
decision) (cleaned up); cf. Osorio v. Ross, 1 CA-CV 20-0543, 2021 WL 2836431,
at *4, ¶ 18 (Ariz. App. July 8, 2021) (mem. decision) (affirming denial of
claim for injunctive relief because plaintiff’s request that defendants be
ordered to obey agency policies and procedures “amounts to little more
than a broad demand to obey the law,” and “ordering such relief would
have been improper”).
¶20 Because of their lack of specificity, “obey-the-law” injunctions
are generally unenforceable by contempt. See Hope v. Warden York Cnty.
Prison, 972 F.3d 310, 322 (3d Cir. 2020) (“Persons may not be placed at risk
of contempt unless they have been given specific notice of the norm to
which they must pattern their conduct.”) (citation omitted); Hughey v. JMS
Dev. Corp., 78 F.3d 1523, 1531 (11th Cir. 1996) (“Broad, non-specific
language that merely enjoins a party to obey the law . . . does not give the
restrained party fair notice of what conduct will risk contempt.”) (citation
omitted). And even courts that have approved of “obey-the-law”
injunctions often require temporal limitations for such orders to avoid
leaving defendants at perpetual risk of contempt for future statutory
violations “no matter how remote in time” they may occur. E.E.O.C. v.
AutoZone, Inc., 707 F.3d 824, 844 (7th Cir. 2013) (remanding injunction
compelling compliance with the Americans with Disabilities Act “with
instructions to modify [it] to impose a reasonable time limit”); see also Rome
v. Mandel, 405 P.3d 387, 401-02, ¶¶ 78-79 & n.10 (Colo. App. 2016) (reversing
permanent injunction compelling compliance with state securities act and
holding that, “[e]ven assuming that a court may enter such an [injunction]
in some cases,” it must contain a “temporal limit,” explaining that “[t]he
need for a temporal limit in an obey-the-law injunction derives from [its]
suspect nature and our duty to scrutinize such an injunction with great
care”).
¶21 The 2015 Decision does not identify any specific act that is
mandated or prohibited. Instead, it merely directs Hilton Casitas to “fully
comply with the applicable provisions of A.R.S. § 33-1243(D) in the future.”
(Emphasis added.) The statute includes multiple provisions governing
varied matters (including adopting and amending budgets, notice to unit
owners, setting meetings, voting, and proceeding without a ratified
budget), and the 2015 Decision does not indicate which are the “applicable
provisions” with which Hilton Casitas is being ordered to “fully comply.”
Further, the 2015 Decision contains no temporal limitation, requiring
compliance with Section 33-1243(D) for the indefinite “future.” An
unlimited “obey-the-law” injunction of this kind is too vague to be
enforceable by contempt. See City of New York v. Mickalis Pawn Shop, LLC,
645 F.3d 114, 144 (2d Cir. 2011) (holding “insufficiently specific,” and
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Decision of the Court
therefore unenforceable, injunctions purporting to direct defendants “to act
in full conformity with applicable laws pertaining to firearms” without
“specifying which laws are ‘applicable’”) (cleaned up); see also United States
v. Philip Morris USA Inc., 566 F.3d 1095, 1137 (D.C. Cir. 2009) (noting that,
because “basic fairness requires that those enjoined receive explicit notice
of precisely what conduct is outlawed[,] . . . we have held injunctions to be
too vague when they enjoin all violations of a statute in the abstract without
any further specification”) (citation omitted).
¶22 Because the 2015 Decision’s injunction provision lacks the
specificity required to be enforced by contempt, the court did not err by
dismissing Whitmer’s amended petition for failure to state a claim.
CONCLUSION
¶23 For the foregoing reasons, we affirm.
¶24 Hilton Casitas requests an award of attorney fees under
A.R.S. § 12-341.01 based on the parties’ contractual relationship. We grant
Hilton Casitas’ request for reasonable attorney fees and taxable costs upon
its compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
8