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William B. Esq.
William B. Esq., Attorney
Category: Legal
Satisfied Customers: 2677
Experience:  Civil litigation attorney for individuals and businesses.
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I am a pro-se litigant in a civil suit in AZ Superior Court

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I am a pro-se litigant in a civil suit in AZ Superior Court (defendant). Recently, the plaintiff won a partial summary judgement for an injunction against us. We had an oral argument as well as the papers I wrote and filed. I have never had any legal training and find this all very confusing. Seems we lost on technicality that I had no legal citings to back me up and of course, they did with a lawyer.

I asked a week ago what my options were here and was told I could file an appeal with or ask for a reconsideration. If I file an appeal and lose, do I have to pay their costs? How about a reconsideration?

We live in an HOA, have a 5-6 ft solid block privacy fence. We do have items in our yard, mostly wood that other yards do not have. A neighbor moved in behind us and is suing to clean out our entire backyard. Apparently this is the injunction. The order was granted but has no details. I thought when the order was granted it was to include the details as to what was to be done as well as to a time?

I have to file something in the next few days. I have a mental block as to what to do and write. I need to cite something in my favor but don't know exactly how? The HOA says we are not out of compliance and they are being sued as well. I cannot see how the judge has sided with the plaintiffs.

The HOA rules are over 30 years old. I read the definition "as seen from a neighboring yard" which is a 6 ft man standing at ground level. Not looking out from a second story window! The definition seems to have been ignored by the court.

What options do I have? Can you cite anything for me? Which way is better, a reconsideration or an appeal? The judge says the evidence is "overwhelming" so doubt a reconsideration would go anywhere if he is to be the judge. By the way, this was granted before we;ve even gone to trial and had our fair chance to present our evidence!
Submitted: 10 months ago.
Category: Legal
Expert:  William B. Esq. replied 10 months ago.

William B. Esq. :

Dear Customer, thank you for choosing Just Answer, I would like to assist you with your legal questions today.

William B. Esq. :

I am sorry to learn of your difficulty with the injunctive relief. What the Court is referring to with citations is the requirement that your argument be based on legal principles (either statutes or case law, as well as your contract (the CC&Rs). To do this, you will need to find the appropriate statute, quote the language and give the proper citation (AZ Rev. Stat. xxxx). I cannot give you the citation that is appropriate for your case (I can't practice law through this forum), but I will point you to the sections of the AZ code to get you started.

Customer:

I would appreciate sending me in the right direction.

Customer:

Also, which is the best way to go? Appeal, reconsideration or stay? If we appeal and lose do we have to pay the plaintiffs costs?

William B. Esq. :

With regard to the difference between a motion for reconsideration and an appeal, there is one additional difference beyond the Court's statements to consider. A motion for reconsideration must be based on new law or facts that were not present at the time of the original hearing (not just things that were omitted, but new things). This generally makes an appeal more appropriate, but this is not always the case, and I do not want to give you the improper direction as I do not have all of the facts for your case.

Customer:

Do I have to pay their costs if we lose the appeal?

William B. Esq. :

Given the fact that you are litigating under your CC&Rs, the proper place to look to determine whether or not you will owe attorneys fees is in the CC&Rs. Look for an "attorney's fees clause" in your dispute resolution section.

Customer:

The plaintiffs got approval from the HOA to bring us into the case, they sued the HOA first and brought us in about 5 months later. We are in civil court so why would the CC&R's apply to an appeal cost? They want us to pay ALL their costs so far if they win

William B. Esq. :

The primary statutes that apply to your case will be the AZ Rev Stat 33-1201 et. seq. (and the following sections) which govern HOA management; and AZ Rev Stat 12-1801 et. seq. which governs injunctions. You will need to read these sections and see which parts apply to your situation, pick out that language and write it into your brief (comparing the language in the statutes, the language and requirements of your CC&Rs, and the facts of your situation, to explain why an injunction should not be issued).

William B. Esq. :

The HOA was probably sued for a failure to enforce the CC&Rs (the argument is that they should have made you clear the things out of your yard). The neighbors then sought permission to join you as the real party in interest. This is an enforcement action, and it is likely that your CC&Rs allow for recovery of the these fees. (Remember, this is based on contract (the CC&Rs) so this is speculation on my part, but in my experience, this is fairly common.

Customer:

Thank you. Also, isn't it odd for a permanent injunction to be granted before trial? I read that before the oral argument and was shocked it was granted before any fair trial. The plaintiffs have used deceitful photos to gain entry into our yard and then took deceitful video by not taping ANY of the open areas. They then mailed the video from discovery just days before the judge was to make his decision. I had no idea that they could do that.

William B. Esq. :

While I cannot speak to all circumstances, a permanent injunction should not issue before trial. A temporary injunction can issue before trial (that is the purpose, either to protect a party from imminent harm or to maintain the status quo), but a permanent injunction is only issued after a full hearing on the merits. As far as your discovery disputes go, I don't have enough information to go into detail on them, however, discovery matters must be dealt with promptly (motions to quash etc.) as a failure to do so may mean that a judge will deny your pre-trial evidentiary motions to keep the evidence out of the trial based on these practices.

Customer:

Yes, the neighbor brought us in as you speculated. When we went into their yard for inspection, nothing in our yard can be seen. not once did these people ever contact or talk to us, just took us to court.

Customer:

So, which is the best way to file?? I do not know which way to go? Reconsider, stay or appeal? If I appeal, is that a different court?

William B. Esq. :

Check your CC&R dispute resolution requirements. It is possible that you can build an argument that they are not entitled to fees for failing to go through the pre-litigation dispute resolution process (not guaranteed, but possible).

William B. Esq. :

I can't give you a legal instruction through this site (I do not want to mis-direct you, I don't have all the facts and I am prohibited by the terms of the forum). If you do appeal, you will be lodging an appeal with the appellate court. (They have their own set of procedures, so you will need to stay on top of them). It may be a good idea to at least consult with an attorney (look for a civil litigation attorney with experience in HOA law), to get a formal legal opinion and perhaps develop a strategy. You don't have to retain them, but it might be worth your while to at least get some information based on all of the facts.

Customer:

Looks like AZ Rev Stat 33-1201 et. seq. is about condos, these are single family homes

William B. Esq. :

It is, but the application is for common interest developments (AZ Rev Stat 33-1202.11)

Customer:

Do we get any extra time for memorial day for filing

William B. Esq. :

If the filing is based on Court days, yes. If you must file based on regular days, the only extension would be if the filing lands on Memorial day (you get to file the day after).

Customer:

we have 30 days so I don't know if that adds a day or not

William B. Esq. :

Which statute are you looking at? (I am going to guess that this is 30 calendar days which means that you do not get any additional days, the only extension would be if the 30th day was memorial day (or some other holiday or weekend), in which case you would have to file on the next business day.

Customer:

The last just answer guy a week ago gave me the 30 days

Customer:

OK, guess I have what I need for now. Thank you

William B. Esq., Attorney
Category: Legal
Satisfied Customers: 2677
Experience: Civil litigation attorney for individuals and businesses.
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