Financial Associates, Inc. v. Hub Properties, Inc., 2

• Decision Date: 18 December 1984
• Docket Number: No. 2,CA-CIV,2
• Citation: 143 Ariz. 543,694 P.2d 831
• Parties: FINANCIAL ASSOCIATES, INC., an Arizona corporation, Allan J. Norville and Alfena A. Norville, husband and wife, Plaintiffs/Appellants, v. HUB PROPERTIES, INC., a California corporation, Defendant/Appellee. 5284.
• Court: Arizona Court of Appeals

Page 831

694 P.2d 831

143 Ariz. 543

FINANCIAL ASSOCIATES, INC., an Arizona corporation, Allan J. Norville and Alfena A. Norville, husband and wife, Plaintiffs/Appellants, v. HUB PROPERTIES, INC., a California corporation, Defendant/Appellee.

No. 2 CA-CIV 5284.

Court of Appeals of Arizona,

Division 2.

Dec. 18, 1984.

Davis, Eppstein & Hall, P.C. by Alan L. Stein, Tucson, for defendant/appellee.

OPINION

BIRDSALL, Chief Judge.

This appeal was taken from the trial court's denial of appellants' request for a preliminary injunction to enjoin the appellee from installing a sewer line across appellants' property.

Appellants own a shopping center on the northeast corner of the intersection of Broadway and Kolb Road in Tucson. Appellants sold a building pad to appellee for the construction of a retail clothing store. Construction on the store began in October of 1984. Appellee's construction crew planned to begin excavating a trench on November 5 for the purpose of constructing a sewer line running from the building pad to a sewer drain on appellants' property. On November 2, appellants obtained a temporary restraining order preventing the construction of the line along with an order to show cause why a preliminary injunction should not be issued for the same relief. A show cause hearing on the preliminary injunction was held on November 9. The trial judge granted appellee's motion to dissolve the temporary restraining order and gave as his reasons: 1) that the city has approved the plans presently being used by the appellee, 2) that alternate plans would likely be a violation of the Tucson Plumbing Code, and 3) that approval by the City Inspector's Office of the suggested proposal of the appellants that the connection be made in another manner was doubtful. Additionally, the court denied the preliminary injunction and expressly found that the same three reasons applied in addition to its finding that irreparable injury would not occur and that any damage could be rectified through the payment of money damages.

Appellants have presented two questions: 1) whether the trial court abused its discretion or erred as a matter of law in ruling that Section 313 of the Tucson Plumbing Code precludes a connection to the "stub out" on Building C (the alternative proposed by appellants) and is therefore a defense to appellants' request for injunctive relief, and 2) whether the trial court abused its discretion or erred as a matter of law in ruling that appellants would not suffer irreparable harm if the sewer line were constructed across their property.

Appellants assert that, instead of connecting appellee's drainage system to the sewer line on appellants' property which involves digging the trench across the shopping center parking lot, appellee must connect the system to the drain of Building C, a building immediately north of appellee's building, by way of a "stub out." Appellee disputes the existence of the "stub out," and, in any event, maintains that Section 313 of the Tucson Plumbing Code of the Uniform Plumbing Code would prohibit such a connection. Section 313 provides:

"The drainage system of each new building and of new work installed in any existing building shall be separate and independent from that of any other building and when available, every building shall have an independent connection with a public or private sewer.

Exception: Where one building stands in the rear of another building on an interior lot, and no private sewer is available or can be constructed to the rear building through an adjoining court, yard or driveway, the building drain from the front building may be extended to the rear building."

The granting or withholding of a preliminary injunction rests in the sound discretion of the trial court. Jones v. Board of Regents of University and State Colleges of Arizona, 397 F.2d 259 (9th Cir.1968); Dymo Industries, Inc. v. Tapeprinter, Inc., 326 F.2d 141 (9th Cir.1964). The scope of review on appeal of an order granting or denying an injunction is limited to the consideration of whether a clear abuse of judicial discretion has been shown. American Credit Bureau, Inc. v. Carter, 11 Ariz.App. 145, 462 P.2d 838 (1969); County of Cochise ex rel. Riley v. Board of Supervisors of Cochise County, 7 Ariz.App. 571, 442 P.2d 129 (1968). In County of Cochise, supra, Division One of this court found that it was more likely that an appellate court would find an abuse of discretion where a pendente lite injunction is granted than where it is denied. With these principles in mind, we have reviewed this record and find the appellants have not demonstrated a clear abuse of the trial court's discretion in refusing the injunctive relief.

Preliminarily, we note that appellants' representation of the first question presented does not accurately reflect the trial court's ruling. The trial court did not rule that Section 313 of the Tucson Plumbing Code precluded connection to the "stub out" on Building C. Rather, the court ruled that the city had already approved the plans which appellee was going to use calling for connection to the sewer line on appellants' property, that the alternate plan would likely be a violation of the Tucson Plumbing Code, and that the suggested proposal of the appellants that the connection be made to the "stub out" would be doubtful for approval by the City Inspector's Office. Those findings are supported by the evidence at the show cause hearing.

Mr. Cole,...