Jason Komorowski, et al. v. Whisper Mountain Homeowners Association - CV2018-014261

Jason and Melissa Komorowski owned Lot 52 in the Whisper Mountain subdivision in Mesa, Arizona, which they purchased in August 2013. Their property was located at the base of the north slope of Whisper Mountain. Under the subdivision's Amended and Restated Declaration of Covenants, Conditions and Restrictions (CC&Rs), specifically Section 10.1, the Whisper Mountain Homeowners Association (WMHOA) was contractually obligated to maintain, repair, and replace all drainage facilities in drainage easements in accordance with the 2004 approved Final Plat and its associated engineering drawings. These drawings specified a drainage channel designed to intercept rainwater flowing down the mountain and safely divert it away from the residential lots. However, the subdivision's developer failed to construct the drainage channel to these original engineering specifications. As a result, floodwaters and sediment inundated the Komorowskis' property during heavy storms in 2014, 2017, and 2018. Severe rainfall washed mountainside sediment down, forming a dam and chokepoint in the existing shallow ditch. This caused water to back up, overflow into the backyard, erode the soil behind their dry-stack wall, and pond within a foot or two of their home. Despite repeated requests from the Komorowskis starting in September 2017, WMHOA failed to make any improvements, prompting the Komorowskis to file a lawsuit for equitable relief and damages in November 2018. The main issues in the case were whether WMHOA breached its contractual duties under the CC&Rs by failing to maintain an effective drainage system, whether the Komorowskis were entitled to a permanent injunction forcing the HOA to maintain the facility, and what compensable damages were owed. During the active lawsuit, in September 2020, WMHOA finally hired a contractor to grade the ditch and install a masonry curb (the Deatherage Plan). Although this did not conform to the original 2004 plat drawings, experts agreed it would prevent flooding if properly maintained. Due to safety concerns amidst the COVID-19 pandemic, the parties stipulated to proceed with a bench trial. The final outcome was decided by the Honorable Joseph Mikitish following a four-day bench trial in late 2020. In a ruling issued on March 8, 2021, the court found that WMHOA had breached the CC&Rs by failing to maintain the drainage ditch. While the court denied the request to construct a completely new channel to the original 2004 specifications, it ruled that the remedial work already completed was sufficient only if accompanied by strict ongoing maintenance. Accordingly, the court issued a permanent injunction requiring WMHOA to strictly maintain the ditch. The court mandated that maintenance must include documented inspections by a professional engineer annually, within one week of any rain event of 0.5 inches or greater, or whenever flooding is reported. It also ordered professional sediment removal within one week of sediment reaching 25% capacity, when a chokepoint threatens flooding, or at least once every five years. Additionally, the court awarded the Komorowskis $17,800.01 in compensatory damages, consisting of $16,000 to regrade their yard and repair their dry-stack wall, and $1,800.01 for out-of-pocket sandbagging expenses. The court rejected a claim for diminished property value, finding that successful drainage remediation made future property devaluation too speculative to compensate. A final formal judgment resolving outstanding attorneys' fees and costs was signed and entered on June 16, 2021. Case Details: Case ID: komorowski-cv2018-014261 Docket: CV2018-014261 For more AZ HOA transparency resources visit https://azhoawatch.org Legal & Accuracy Notice - azhoawatch.org is operated by Hound LLC, a homeowner-run project, not a law firm. Nothing in this video is legal advice or creates an attorney-client relationship. We analyze public court, ADRE, OAH, and related public records and may express opinions. Not affiliated with any court, ADRE, or the OAH. Read the full Legal & Terms: https://azhoawatch.org/legal