Opinion
1 CA-CV 11-0125
05-01-2012
SURPRISE TOWNE CENTER HOLDINGS, L.L.C., a Delaware limited liability company, Plaintiff/Counterdefendant/ Appellee, v. ZEBRA HOLDINGS, L.L.C., an Arizona limited liability company, Defendant/Counterclaimant/ Appellant.
Mariscal, Weeks, McIntyre & Friedlander, P.A. By James S. Rigberg and Nicole F. Bergstrom Attorneys for Plaintiff/Counterdefendant/Appellee Jennings, Strouss & Salmon, P.L.C. By David Brnilovich Attorneys for Defendant/Counterclaimant/Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2009-015214
The Honorable George H. Foster Jr., Judge
AFFIRMED
Mariscal, Weeks, McIntyre & Friedlander, P.A.
By James S. Rigberg and Nicole F. Bergstrom
Attorneys for Plaintiff/Counterdefendant/Appellee
Phoenix
Jennings, Strouss & Salmon, P.L.C.
By David Brnilovich
Attorneys for Defendant/Counterclaimant/Appellant
Peoria KESSLER, Judge
¶1 Appellant, Zebra Holdings, L.L.C. ("Zebra") appeals the superior court's grant of summary judgment in favor of Surprise Towne Center Holdings, L.L.C. ("STCH"), holding Zebra liable for failing to pay its share of maintenance expenses for common areas at the Surprise Towne Center ("Shopping Center"). In so holding, the court also denied Zebra's motion for summary judgment because it concluded Zebra is not a "Consenting Owner" within the meaning of the Restriction and Grant of Easements ("RAGE") agreement that governs the real estate at the Shopping Center. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
I. The RAGE
¶2 In August 1999, at the inception of the Shopping Center, Bell Grande, L.C. ("Bell Grande") and Home Depot U.S.A., Inc. ("Home Depot") entered into the RAGE. These two entities were the only Owners of the Shopping Center as it was defined by the RAGE. In addition, these two entities were effectively the only "Consenting Owners" as defined by RAGE § 1.3(f). Bell Grande was the exclusive Consenting Owner of the Phase II Parcel.
RAGE § 1.3(s): "'Owner': The record holder of fee simple title to a Parcel, its heirs, personal representatives, successors and assigns."
Under RAGE § 1.1, Home Depot owned the Home Depot Parcel, and Bell Grande owned the "Pad 4/Pad 5 Parcel, the Phase II Parcel, and the Major C/Shops A Parcel."
RAGE § 1.3(dd) defines the Shopping Center as: "Collectively, the Home Depot Parcel, the Pad 4/Pad 5 Parcel, the Phase II Parcel, and the Major C/Shops A Parcel."
RAGE § 1.3(f): "'Consenting Owners': The Owner of the Home Depot Parcel, the Owner of the Major C/Shops A Parcel, and the Owner of the Phase II Parcel . . . ."
¶3 Bell Grande was also appointed "Maintenance Director" of the Shopping Center. RAGE §§ 10.2 and 11 require that the Maintenance Director perform and pay for maintenance on common areas, and that the other Owners reimburse the Maintenance Director for their shares of the expenses.
Zebra does not challenge that STCH is the current Maintenance Director.
¶4 Among numerous other Consenting Owner rights and responsibilities, RAGE § 15 allows Consenting Owners to opt out from paying the Maintenance Director and instead maintain the common areas on their own Parcels by themselves. II. Ownership transfers and subdivision of the Phase II Parcel.
RAGE § 15: "[A]t any time from and after the date that is four (4) years after the date a Consenting Owner first opens for business on its Parcel, such Consenting Owner shall have the right to remove the Maintenance Director . . . [and] manage, maintain, repair, replace and insure such Consenting Owner's portion of the Common Area on its Parcel . . . such Consenting Owner shall not be liable for any share of the costs of managing or maintaining the balance of the Shopping Center . . . ."
The Court's understanding of the various conveyances comes solely from the documents counsel have chosen to place in the record or supplemented from the public record on appeal and any concessions of counsel. Ultimately the details of the transfers are not material to our analysis of the sole question on appeal—whether Zebra is a Consenting Owner under the RAGE.
¶5 Under RAGE § 19.24, Home Depot and Bell Grande had the authority to subdivide their Parcels. During 2000, Bell Grande conveyed most of the property in the Phase II Parcel to various other Owners. For instance, in April 2000, Bell Grande deeded Lots 3, 5, 14, and Tract A to Surprise Towne Center, L.C. Throughout that same year, Lot 6, 9, 10, and 13 were also conveyed to various other Owners.
RAGE § 1.3(t): "'Parcel' or 'Parcels': Individually or collectively, the Home Depot Parcel, the Outparcels, the Phase II Parcel and the Major C/Shops A Parcel . . . A Parcel may be further subdivided in accordance with [§] 19.24 . . . ." RAGE § 19.24: "Subdivision of Parcels: Bell Grande and Home Depot may subdivide their respective Parcels into two or more Parcels, provided that (a) such subdivision shall be accomplished in compliance with all applicable Governmental Regulations; (b) each new Parcel shall be separately assessed from all other Parcels . . . [and] (c) each new Parcel shall be subject to all of the terms and provisions of [the RAGE] which were applicable to the original Parcel . . . ."
Zebra provided this deed for the first time on appeal. In its answering brief and seemingly below, STCH maintained that Bell Grande still owned Lot 14 in 2006 when it transferred its Consenting Owner rights to STCH.
¶6 Bell Grande's last conveyance during 2000 appears to have occurred on December 15, 2000, when it deeded Lot 12 to Nellis Land, L.L.C. ("Nellis"). On December 21, 2000, the final plat for the Shopping Center was recorded. In January 2001, Lot 12 was assigned separate parcel numbers by the county recorder.
The day before this conveyance, the final plat for the Shopping Center was approved by the Surprise City Council. The plat reflected Lot 12 and the other subdivided portions of the Phase II Parcel.
¶7 In September 2008, Nellis deeded Lot 12 to Zebra. Zebra is the current Owner of Lot 12.
III. Transfer of Bell Grande's Consenting Owner rights.
¶8 The key to the issue on appeal is RAGE § 1.3(f), which defines Consenting Owners and provides for when the right of Consenting Owner can pass to a successor Consenting Owner:
In the event the Home Depot Parcel, the Major C/Shops A Parcel, and/or the Phase II Parcel should be subdivided, then that Owner to whom the right of Consenting Owner is transferred in a recorded instrument shall be deemed to be the successor Consenting Owner.(Emphasis added.)
¶9 Prior to 2006, there is no evidence in the record that Bell Grande ever conveyed in a recorded instrument its Phase II "right of Consenting Owner." Although it appears that Bell Grande was no longer the Owner of any property in the Phase II Parcel by 2006, Bell Grande and Surprise Towne Center, L.C., together assigned to STCH "the Consenting Owner position for the Pad 4/Pad 5 Parcel, the Phase II Parcel, and the Major C/Shops A Parcel" in an "Assignment of Operating Agreements" that was recorded.
The Assignment of Operating Agreements is regarding Lot 5, 14A, and Tract A. These were properties that were deeded to Surprise Towne Center, L.C. in 2000. See supra ¶ 5. Despite STCH's assertion in its Answering Brief that Bell Grande transferred its interest in Lot 14 to STCH in 2006, it is clear from the 2000 deed that Surprise Towne Center, L.C., not Bell Grande, was the Owner of Lot 5, Lot 14 and Tract A. Bell Grande was managed by CC&G Strategic Investments, L.C. and Bell Grande was a member of Surprise Towne Center, L.C.
IV. STCH's complaint against Zebra for non-payment of its share of common-area maintenance expenses.
¶10 STCH's complaint against Zebra asserted that Zebra failed to pay its share of expenses for the common area expenses at the Shopping Center. After STCH prevailed in compulsory arbitration, Zebra appealed the award to the superior court. Zebra counterclaimed, seeking a declaration that it was a "Consenting Owner" under the RAGE and filed a motion for summary judgment arguing that as a Consenting Owner, it had exercised its right under RAGE § 15 to opt out of common area maintenance.
¶11 Zebra argued that because its predecessor-in-interest, Nellis, became an Owner of Lot 12 on December 15, 2000, before the Phase II parcel was subdivided, that Bell Grande's Consenting Owner right was also granted to Nellis in the conveyance because it was an appurtenant right under the RAGE. Zebra claimed that when it became Owner of the Lot 12 Parcel in 2008, it also became a Consenting Owner because Consenting Owner rights run with the land.
¶12 STCH responded and filed a cross-motion for summary judgment arguing that neither Nellis nor Zebra was a Consenting Owner or successor Consenting Owner under RAGE § 1.3(f). STCH argued that because Nellis only obtained a portion of the Phase II Parcel in 2000, it was not a Consenting Owner for purposes of RAGE § 1.3(f) because it was not the "Owner of the Phase II Parcel." STCH also argued that under RAGE § 1.3(f) the original Consenting Owners remained such until the Phase II Parcel was subdivided, and then, the Consenting Owner right could only transfer in a recorded instrument. STCH asserted that neither the deed from Bell Grande to Nellis nor the deed from Nellis to Zebra mentioned a grant of Consenting Owner rights.
¶13 In an August 2010 minute entry, the superior court denied Zebra's motion for summary judgment and granted summary judgment in favor of STCH. Specifically, the court determined "there is no question of a material fact that [Zebra] is the owner of a 'Parcel,' . . . [b]ut based on the plain reading" of the RAGE, Zebra was not a Consenting Owner.
¶14 In its final judgment, the superior court awarded STCH $22,659.54 plus $5,186.74 in prejudgment interest, and $19,712.25 in attorneys' fees. The court also specifically found that "[t]he RAGE gives certain Owners . . . the rights of 'Consenting Owner.'" "Zebra is the Owner of 'Lot 12' . . . however, Zebra is not a 'Consenting Owner' within the meaning of the RAGE." It also found that "Zebra does not have the right, pursuant to the RAGE, § 15, to separately maintain Lot 12 and avoid" contributing to maintain the Shopping Center's common areas.
The judgment is dated and signed January 7, 2010, but the file stamp date and superior court docket correctly indicate that it was 2011.
¶15 Zebra timely filed a notice of appeal. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1) (Supp. 2011).
ISSUE ON APPEAL AND STANDARD OF REVIEW
¶16 The issue on appeal is whether the superior court correctly granted summary judgment for STCH by determining that Zebra is not a Consenting Owner under the RAGE.
¶17 We review de novo whether summary judgment is warranted, including whether genuine issues of material fact exist and whether the trial court properly applied the law. Dreamland Villa Cmty. Club, Inc., v. Raimey, 224 Ariz 42, 46, ¶ 16, 226 P.3d 411, 415 (App. 2010). We will affirm the superior court if its determination is correct for any reason. Id. Here, the parties only dispute the legal effect of the material facts as they relate to the parties' rights and responsibilities under the RAGE contract. We review the interpretation of a contract de novo. Id. at ¶ 17.
DISCUSSION
¶18 RAGE § 1.3(f) creates and defines the right of Consenting Owner. Zebra does not dispute that upon subdivision of the Phase II Parcel, the original Consenting Owner right may only be transferred in a recorded instrument to a successor Consenting Owner. And it does not contend that its Lot 12 predecessor, Nellis, was ever expressly granted the Consenting Owner right such that Nellis became a successor Consenting Owner under RAGE § 1.3(f). Rather, Zebra's claim that it is a Consenting Owner rests upon the argument that the Consenting Owner rights are appurtenant and run with the land so that when Nellis purchased Lot 12 and other purchasers bought other lots in the Phase II Parcel prior to any subdivision, they necessarily became Consenting Owners unless Bell Grande expressly reserved that right. Second, as a necessary corollary to that argument, Zebra contends that while Bell Grande sought to later assign its Consenting Owner right to STCH, it could not effectively do so because that right had already been transferred to other purchasers of the Phase II Parcel lots as appurtenances running with the land. Both arguments rest on the premise that the RAGE envisioned that there could be more than one Consenting Owner of the Phase II Parcel at any one time.
¶19 Based on the specific language and structure of RAGE § 1.3(f), Zebra's claim that it is a Consenting Owner must fail. The express language in RAGE § 1.3(f) defining Consenting Owners states the right belongs to "the Owner of the Phase II Parcel" and precludes a determination that there can be more than three Consenting Owners for the entire Shopping Center at a given time. Thus, the Consenting Owner right cannot be appurtenant to a portion of each lot in the Phase II Parcel such as Lot 12 or any of the other lots conveyed in 2000, and was required to be expressly transferred, if at all, after subdivision. Consenting Owner status was expressly transferred only to STCH.
I. RAGE § 1.3(f) strictly defines the original Consenting Owners based upon their ownership of three specific Parcels.
¶20 RAGE § 1.3(f) defines "Consenting Owners" and how Consenting Owners' rights may be transferred. Specifically, RAGE § 1.3(f) defines "Consenting Owners" as: (1) the Owner of the Home Depot Parcel; (2) the Owner of the Major C/Shops A Parcel; and (3) the Owner of the Phase II Parcel. The definition states in full:
(f) "Consenting Owners": The Owner of the Home Depot Parcel, the Owner of the Major C/Shops A Parcel, and the Owner of the Phase II Parcel; provided, however, that in the event any such Owner sells its Parcel and becomes the Prime Lessee thereon, such Prime Lessee shall be deemed appointed as the entity to cast the vote or give the consent for the Parcel on behalf of the Owner so long as it is the Prime Lessee of said Parcel. Except as otherwise provided in this Agreement, whenever the approval of the Consenting Owners is required, such approval must be unanimous. In the event the Home Depot Parcel, the Major C/Shops A Parcel, and/or the Phase II Parcel should be subdivided, then that Owner to whom the right of Consenting Owner is transferred in a recorded instrument shall be deemed to be the successor Consenting Owner; provided, however, with respect to any subdivision of the Major C/Shops A Parcel, the Consenting Owner shall be the Owner of the Property with the Major C Building located thereon. For purposes of this Agreement, the Owner of the Home Depot Parcel and the Owner of the Major C/Shops A Parcel shall be referred to as the "Phase I Consenting Owners."
¶21 This is a specific definition that delineates three Consenting Owners based upon their ownership of an entire Parcel, the Consenting Owner selling the Parcel but becoming the Prime Lessee on the Parcel, or one of the original Consenting Owners transferring "the right of Consenting Owner[ship]" in a recorded document after subdivision of one of the named Parcels. At the time the RAGE was created Bell Grande was the Owner of the Phase II Parcel. See RAGE § 1.1. And because Bell Grande conveyed portions of the Phase II Parcel to subsequent Owners, none of which received the entire Phase II Parcel, Bell Grande is the only entity that can ever be called "the Owner of the Phase II Parcel" for purposes of RAGE § 1.3(f). There is no ambiguity. See generally Bennett v. Baxter Grp., Inc. , 223 Ariz. 414, 418 ¶ 13, 224 P.3d 230, 234 (App. 2010) (noting that when the terms of a contract are clear and unambiguous a court must give effect to the contract as written); see also Shattuck v. Precision-Toyota, Inc. , 115 Ariz. 586, 588, 566 P.2d 1332, 1334 (1977) ("The intent of the parties, as ascertained by the language used, must control the interpretation of the contract.").
II. The RAGE envisioned only three Consenting Owner and/or successor Consenting Owner positions.
¶22 The above definition also demonstrates that the drafters of the RAGE intended to create at most only three Consenting Owners and/or successor Consenting Owner positions for the entire Shopping Center. See Demand v. Foley, 11 Ariz. App. 267, 272, 463 P.2d 851, 856 (1970) ("The intention . . . in a contract may be manifested either expressly or impliedly, and it is fundamental that terms which are plainly or necessarily implied in the language of a contract are as much a part of it as those which are expressed.").
¶23 The first clause of the first sentence of RAGE § 1.3(f) establishes at most only three Consenting Owner positions by listing only Owners of three Parcels, and then in the second clause the first sentence prescribes:
provided, however, that in the event any such Owner sells its Parcel and becomes the Prime Lessee thereon, such Prime Lessee shall be deemed appointed as the entity to cast the vote or give the consent for the Parcel on behalf of the Owner so long as it is the Prime Lessee of said Parcel.This is consistent with maintaining only three or fewer Consenting Owner positions because it indicates that a Prime Lessee acts in the stead of a Consenting Owner. The next part of the definition, the subdivision clause, also seeks to maintain at most three Consenting Owner positions by requiring an express transfer of the right to a successor Consenting Owner in a recorded instrument:
In the event the Home Depot Parcel, the Major C/Shops A Parcel, and/or the Phase II Parcel should be subdivided, then that Owner to whom the right of Consenting Owner is transferred in a recorded instrument shall be deemed to be the successor Consenting Owner; provided, however, with respect to any subdivision of the Major C/Shops A Parcel, the Consenting Owner shall be the Owner of the Property with the Major C Building located thereon.(Emphases added.) This clause shows that even upon subdivision into numerous lots and even upon the creation of a successor Consenting Owner, there are still only three or fewer Consenting Owner positions. Additionally, the language indicates that each of the original Consenting Owners had only one right to transfer: "that Owner to whom the right of Consenting Owner is transferred in a recorded instrument shall be deemed to be the successor Consenting Owner." (Emphases added.)
"An Owner of a Parcel who sells its entire Parcel . . . and thereafter enters into a lease for the entire Parcel . . . ." RAGE § 1.3(z).
¶24 Another factor lending support to this interpretation of the language is the provision that states: "Except as otherwise provided in this Agreement, whenever the approval of the Consenting Owners is required, such approval must be unanimous." Were we to determine that there is no restriction on the number of Consenting Owners, it would likely make this provision impracticable. As the parties both discuss, there are numerous responsibilities that Consenting Owners bear and rights they enjoy, and if a Parcel had multiple Consenting Owners that must unanimously agree it could stifle the effective management of the Shopping Center. For instance, if there were ten Consenting Owners and only nine wanted to remove the Maintenance Director "without cause" under the provisions in RAGE § 9.2, it could not be accomplished. Likewise, if nine Consenting Owners wanted to allow a mall under RAGE § 5.3, or permit a drive-through facility under RAGE § 5.6, or make a change to the layout of the Shopping Center under RAGE § 4.5, or even host an event under RAGE § 5.2(b), it would be impossible without the permission of the tenth Consenting Owner.
III. Bell Grande retained the right of Phase II Consenting Owner until it was transferred in a recorded instrument after subdivision.
¶25 Under the protective definitional language of RAGE § 1.3(f), the only conceivable way that Bell Grande, as the "Owner of the Phase II Parcel," would cease to be a Consenting Owner before subdivision was if it had sold the entire Phase II Parcel. In such a case, there would be a new "Owner of the Phase II Parcel" and that entity would be a Consenting Owner by holding the deed to the Phase II Parcel. This is also consistent with maintaining only three Consenting Owners. But Bell Grande did not sell the entire Phase II Parcel. Instead, it began to deed lots out of the Phase II Parcel as early as 2000.
¶26 RAGE § 1.3(f) simply does not permit an inference that the Consenting Owner right belongs to Owners who took title of properties from the Phase II Parcel in 2000 before the recordation of the final plat. Thus, the only way for Bell Grande to transfer its Phase II Consenting Owner right was to transfer it to a successor Consenting Owner in a recorded instrument after subdivision. Under the facts presented here, it did that in 2006 when it transferred its rights to STCH.
¶27 Zebra notes that Bell Grande no longer owned any of the property in the original Phase II Parcel by the time it transferred the Consenting Owner right to STCH. However, there is no time limit on the transfer. The RAGE does not require the right to be transferred with the last lot conveyed, nor does it divest the Owner of the Phase II Parcel of the Consenting Owner right when it ceases to own any portion of the Phase II Parcel.
Zebra also argues that Bell Grande's assignment of its rights under the Operating Agreement supports the view that Consenting Owner status was appurtenant to the land because the final paragraph provided the Operating Agreement "may affect more real property than the Real Property" described in the Operating Agreement. This does not support Zebra's argument that Consenting Owner status was transferred to each lot as it was sold. Indeed, the assignment expressly provides that the assignment to STCH included "the Consenting Owner position for the . . . Phase II Parcel . . . and all developer rights."
IV. Because there can only be three Consenting Owners at a time, the Consenting Owner right cannot run with the land and therefore the timing of subdivision is irrelevant.
A. The Consenting Owner right does not run with the land.
¶28 Zebra argues that the Consenting Owner right is appurtenant to Lot 12 and a covenant that runs with the land, and thus needed to be expressly reserved. To support its argument Zebra relies on general principles of real property law and the Restatement (Third) of Property (Servitudes) as well as RAGE §§ 1.2, 19.1, and 19.2. We disagree that the Consenting Owner right could have been impliedly transferred as a covenant that ran with the land. The drafters of the RAGE created the Consenting Owner right using language that is unambiguous, so we will not apply general principles of real property law that may change the meaning of RAGE § 1.3(f). See Mining Inv. Grp., LLC v. Roberts, 217 Ariz. 635, 639, ¶ 15, 177 P.3d 1207, 1211 (App. 2008) (refusing to apply Restatement where it would require the court to ignore the express terms in the contract and amount to rewriting contract) . As discussed above, RAGE § 1.3(f) strictly defines Consenting Owner and limits the number of Consenting Owner positions to a maximum of three. It would be illogical to say that a general provision in RAGE §§ 19.1 and 1.2 about covenants that does not even reference the Consenting Owner right may alter the explicit and implicit requirements in RAGE § 1.3(f) that there can be no more than three Consenting Owner positions. See generally ELM Ret. Ctr., LP v. Callaway, 226 Ariz. 287, 291, ¶ 18, 246 P.3d 938, 942 (App. 2010) (explaining that "we do not construe one term in a way that renders another meaningless" and "because specific contract provisions express the parties' intent more precisely than general provisions, specific provisions qualify the meaning of general provisions").
RAGE § 1.2 states in part: "Restrictions shall run with the land and inure and pass with such property and shall apply to and bind the respective successors in interests . . . ."
RAGE § 19.1 states: "Covenants Run With the Land: Each Restriction on each Parcel shall be a burden on that Parcel, shall be appurtenant to and for the benefit of the other Parcels and each part thereof and shall run with the land."
RAGE § 19.2 is titled "Successors and Assigns" and states in part: "This Agreement and the Restrictions created hereby shall inure to the benefit of and be binding upon the Owners, their heirs, personal representatives, successors and assigns, and upon any person acquiring a Parcel, or any portion thereof, or any interest therein . . . ."
¶29 Zebra also points to the fact that Bell Grande and Surprise Towne Center, L.C. both signed the Operating Agreement in 2006 that stated STCH was assigned the Consenting Owner right. Zebra maintains that this supports its argument that the right ran with the land, because like Zebra, Surprise Towne Center, L.C. received its deed in 2000 and was never expressly granted the successor Consenting Owner right in a recorded instrument. Thus, Zebra maintains this shows that the right ran with the land because it was not expressly reserved. But this does not show the right is appurtenant and ran with the land. Surprise Towne Center, L.C. owned the land, but it did not own the Consenting Owner right and was not a necessary party to the transfer of that right to the successor STCH. It appears that Bell Grande and Surprise Towne Center, L.C., simply attempted to avoid any confusion or problems in transferring Bell Grande's Consenting Owner right to STCH by both joining in the transfer.
B. The timing of subdivision is irrelevant.
¶30 The parties make numerous arguments to support their positions about whether the Phase II Parcel was subdivided when Nellis was deeded Lot 12. Specifically, Zebra argues that RAGE § 1.3(f) conditioned the express transfer of a Consenting Owner position to STCH only upon one of the three delineated Parcels first being legally subdivided. Zebra contends that a lawful subdivision of the Phase II Parcel did not occur prior to the last transfer of lots in the Phase II Parcel in December 2000 so that each former transferee of a lot, including the transfer to Zebra's predecessor-in-interest, had the appurtenant right of Consenting Owner and those rights could not be unilaterally taken away by the express later transfer of such rights to STCH.
¶31 We disagree. RAGE § 1.3(f) provides that
In the event the Home Depot Parcel, the Major C/Shops A Parcel, and/or the Phase II Parcel should be subdivided, then that Owner to whom the right of Consenting Owner is transferred in a recorded instrument shall be deemed to be the successor Consenting Owner.(Emphasis added.)
¶32 That language, however, does not mean that if no lawful subdivision occurred, the transfer of any lots before subdivision impliedly carried with it Consenting Owner rights. First, Zebra's reasoning is circular. Just because RAGE § 1.3(f) required an express transfer of Consenting Owner rights after subdivision does not mean that earlier sales of lots to Owners necessarily transferred the Consenting Owner right. Second, such a conclusion would be at odds with the underlying concept of the RAGE that there could be at most only three Consenting Owners. Moreover, at oral argument, Zebra could not explain why RAGE § 1.3(f) would explicitly prescribe that the Consenting Owner right must be transferred in a recorded instrument after subdivision, but not before subdivision. Therefore, any language in the RAGE pertaining to covenants running with the land did not relate to the Consenting Owner right before subdivision.
ATTORNEYS' FEES
¶33 Both parties request attorneys' fees pursuant to Rule 21(c) of the Arizona Rules of Civil Appellate Procedure and RAGE § 19.12. In addition, STCH asserts it is entitled to fees under A.R.S. § 12-341.01 (2003). RAGE § 19.12 states: "Attorneys' Fees: In the event any Person[] initiates or defends any legal action or proceeding to enforce or interpret any of the terms of this Agreement, the prevailing party in any such action or proceeding shall be entitled to recover from the losing party in any such action or proceeding its reasonable costs and attorneys' fees (including its reasonable costs and attorney's fees on any appeal)." Under RAGE § 19.12 we are required to award reasonable costs and attorneys' fees to STCH. See Chase Bank of Ariz. v. Acosta, 179 Ariz. 563, 575, 880 P.2d 1109, 1121 (App. 1994) (stating that the court has no discretion to refuse to award fees under a contractual provision); see also Sullivan v. State Land Dep't, 172 Ariz. 599, 601, 838 P.2d 1360, 1362 (App. 1992) (determining that A.R.S. § 12-341.01 does not govern where the contract itself expressly provides for fees).
In relevant part "Person" is defined under RAGE § 1.3(x) to include "limited liability companies."
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¶34 Accordingly, we award STCH its reasonable attorneys' fees and costs incurred on appeal upon timely compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCLUSION
¶35 There are no issues of genuine material fact precluding summary judgment in favor of STCH. As a matter of law, Zebra is not a Consenting Owner under the RAGE. We affirm the superior court's entry of summary judgment for STCH.
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DONN KESSLER, Judge
CONCURRING:
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DIANE M. JOHNSEN, Presiding Judge
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PATRICIA A. OROZCO, Judge